On February 22, the Ohio Supreme Court forwarded all the evidence collected in O’Farrell v Landis, 2012-2151, to the Clerk of the Ohio House of Representatives. O’Farrell v Landis is an election contest over which candidate won the 98th district House race last November. The Ohio House will now proceed to decide which candidate should be seated. The official election returns show that Republican Al Landis won by eight votes over Democrat Josh O’Farrell, but O’Farrell has presented evidence which he believes shows that the returns are faulty. Under the Ohio Constitution, each house of the legislature is the judge of contested elections for itself. The Ohio House has not been asked to adjudicate an election contest in over 100 years, although the Ohio Senate has done that in more recent years.
The headline is misleading. Ohio law requires all election contests to be heard by a judge. But judgment in legislative contests is rendered by the respective houses of the legislature.
This particular house district is in two counties, which meant that the Chief Justice of the Supreme Court (or another justice she designates) hears the case. So the Supreme Court as a body is not involved, and it is not acting in any sense as an appellate court. The Chief Justice is simply the individual designated to hear the case, and was primarily acting in the oversight of the depositions and other evidence.
Her final order says:
“It is ordered that the Clerk assemble the entire record of this matter, including all pleadings and orders of the Chief Justice, all evidence, and the transcripts of all testimony, and cause such record to be filed with the Clerk of the Ohio House of Representatives.”
There is one particular issue of 13 ballots that the Tuscarawas County Board of Elections voted not to be remade (a ballot is remade when it is marked in a way that voter intent can be determined by a human, but not a scanning machine. For example if a voter circled all the candidate names rather marking an oval, a new ballot would be made that was marked in the correct mode). The Chief Justice refused to look at the ballots, and said that the if the House wanted to look at the ballots they could do so.
Al Landis has already been sworn in. It will be up to the Ohio House to determine what it will do. It has a 60:39 Republican majority, and is likely to conclude that there is no “clear and convincing evidence” of election irregularities that would cause the result to be reversed or voided.
They will look at the evidence and conclude that the Board of Elections followed state law in not counting certain ballots. There is zero chance that they would conclude that there is any constitutional infirmity in any of the laws.
There is a huge demographic and political difference between the two counties involved. Holmes County has a very large Amish population, and low rates of voter participation. And even among those who cast ballots, there was a 5.4% undervote in the presidential and senatorial races. Landis carried Holmes County 4872:1437 (77% for Landis). O’Farrell carried Tuscarawas County 21,948 to 18,521 (54.2%).
O’Farrell did not present any evidence of irregularities in Holmes County.