The state's legal filing avoids the fact that the governor is compelled to hold a special election, an ACLU official says.
By DAVID SKOLNICK
VINDICATOR POLITICS WRITER
COLUMBUS -- Gov. Bob Taft is not abusing his power by opting not to hold a special election to fill the vacant 17th Congressional District seat, because conducting one would cause harm to the public, according to the Ohio Attorney General's Office.
A 27-page motion filed by the attorney general asks U.S. District Court Judge Edmund A. Sargus Jr. to dismiss a lawsuit from the American Civil Liberties Union of Ohio to compel the governor to hold a special election for four reasons:
* The federal court lacks jurisdiction over the claims accusing the governor of violating the state constitution and state statutes.
* The ACLU has no legal standing to file the lawsuit.
* The ACLU delayed 11 days in filing the suit when "the utmost haste is required in election matters."
* The ACLU has not "satisfied the factors necessary to grant injunctive relief because it is not likely to succeed on the merits, and a balance of the harms to the ACLU members, the taxpayers and local boards of election in the 17th District, and the public interest in the integrity of elections, weighs against granting the injunction."
Raymond Vasvari, the ACLU's legal director, called the attorney general's motion a smokescreen.
"The Constitution imposes a mandate by saying the governor shall hold a special election," Vasvari said. "Shall is a command. It is not a command the state can avoid by dragging its feet. What they don't argue is they have to hold a special election. They are doing their best to muddy the waters."
The real issue is the governor is compelled by state law to hold a special election, he said.
"Today, the governor decides not to hold this special election; what about tomorrow?" Vasvari said.
The ACLU, which has about 140 members in the current 17th District, will file a motion today stating its side of the case, and the judge is expected to hold a hearing Monday on the issue. The judge could make a decision at the hearing.
The seat has been vacant since James A. Traficant Jr. was expelled from the U.S. House on July 24. He is serving an eight-year federal prison sentence for bribery, racketeering and tax evasion.
What the law says
State law on filling U.S. House vacancies reads: "The governor, upon satisfactory information thereof, shall issue a writ of election directing that a special election be held to fill such vacancy in the territory entitled to fill it on a day specified in the writ."
State law doesn't require a certain time frame for a special election.
The attorney general's motion said a tentative schedule would have the special primary election held Sept. 10 and the special general election held Nov. 5, the same day as Election Day.
In a best-case scenario, the Ohio Secretary of State would certify the winner of a Nov. 5 special election on Nov. 25, and if Congress is not in session that week because of Thanksgiving break, the vacancy likely could not be filled until Dec. 2, a month before the term expires, the attorney general's filing reads.
Besides the short amount of time that special election winner would serve in the U.S. House, the attorney general's filing also says the special election would cost Mahoning, Trumbull and Columbiana counties up to $800,000, and because of state redistricting, there would be other problems.
The current 17th District includes Mahoning, and most of Columbiana and Trumbull counties. The new 17th District, beginning Jan. 1, will include portions of Mahoning, Trumbull, Portage and Summit counties.
'Risk of confusion'
If the special election and the general election were held on the same day, those in Columbiana County and in portions of Mahoning County would vote for two congressmen -- one for the current 17th District through the end of this year, and one for the new 6th District, where the county will be located effective next year.
"Public confidence in the integrity of the election process will be strongly jeopardized because of the increased risk for error and widespread voter confusion," the attorney general's motion reads.