Sunday, October 11, 2009

More Supreme Court Decision on Husted Residency

We chatted about this issue on the radio show last night, but I hadn't had a chance to actually read the whole decision from the Supreme Court. I have now done so and I have to take notice that the Court failed to adequately address the residency of the Husted family. Here is what the Court says on page 11 (PDF):
Third, the secretary of state erroneously relied exclusively on R.C.
3503.02(D) (which creates a presumption that the place where the family of a married person resides is the person’s place of residence) to decide the residency issue. All of R.C. 3503.02, including section D, is phrased in mandatory language, so elevating R.C. 3503.02(D) over others, e.g., R.C. 3503.02(A) through (C), without reasonable justification is impermissible.
My dear Justices of the Supreme Court of the Great State of Beautiful Ohio, THAT IS THE WHOLE POINT. The Court has elevated A - C over D in this decision. And that is unacceptable. The whole point behind having a law like this is to establish circumstances under which residency could be determined. If the Court's interpretation is correct, a person would have to violate EVEY section of that law in order to have their residency status revoked. Does that sound like a law that makes sense?
By effectively treating the R.C. 3503.02(D) factor as the exclusive factor applicable to Husted, the secretary created an irrebuttable presumption to classify Husted as a nonresident of Montgomery County, which is not constitutionally permissible. Bell v. Marinko (C.A.6, 2004), 367 F.3d 588, 593.
I would have to ask for proof from this Court that Bell vs. Marinko was decided correctly. We have no reference as to what the particulars of that case are and how relevant they are to this case. You have already wasted 11 pages, why not do the work of explaining this issue more fully other than just sweeping it under the rug with a case citation. Democrats do that, I expect more out of a Court filled with nothing but Republicans.
Our holding is consistent with precedent. For example, in Klink,
157 Ohio St. 338, 47 O.O. 198, 105 N.E.2d 399, we held that a board of elections properly decided that a married person whose family lived in Franklin County was a qualified elector of Hamilton County because of substantial evidence that
the person intended to eventually return to Cincinnati. See also State ex rel. Lakes
v. Young (1954), 161 Ohio St. 341, 53 O.O. 249, 119 N.E.2d 279 (married man did not lose voting residence in township even though his family moved temporarily to a city).
What significant evidence was presented that Husted intends to return? Since when is the word of a politician classified as significant evidence of anything? This is purely a subjective and partisan determination.

Let me point you to Justice Pfieffer's opinion, because he concurred with the decision, but not the opinion, at the end of the PDF:
For each Ohio citizen, where he or she deems to be home is a highly personal matter. Home is often different from where one is presently living. R.C. 3503.02 attempts to recognize that elusive, emotional connection to “home.” But this particular case is not difficult: considering that R.C. 3503.02 allows voters to retain a residence by relying on a vague notion of intent to return, it must certainly allow all members of the General Assembly to retain their residences in the places they regard to be home while living with their families in the state capital.
" must certainly allow..." Really? What a cop-out, Mr. Justice! I always thought that our judges were supposed to rule on what laws actually say not what they "must certainly allow". The law either does allow or it doesn't. If you want to say that the law is not clear, say so.

As I said on the radio show last night, what we have here is a flawed law which unscrupulous politicians have circumvented in order to do whatever they want to do. I do not believe that those who created that law ever envisioned a time when a public servant would ever be so enamored with the centers of power as we have today. Tom Blumer was right when he said it last night: the legislators back in the horse and buggy days had it much more difficult than we do in today's 65 m.p.h. modern era. How pathetic has our political class become?