In Ohio Republican Party v. Brunner, Judge Boyce Martin took aim at Judge Alice Batchelder for failing to recuse herself from the case.
What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be substantially altered by the way the en banc majority ultimately decides this case. At stake here is the public’s confidence not only in the outcome of its elections, but also in the impartiality of its judges who must, from time to time, review the procedures which govern those elections.Judge Martin cited 28 U.S.C. § 455, which requires recusal when a judge's "impartiality might reasonably be questioned," and further requires recusal where the judge's spouse has "an interest that could be substantially affected by the outcome of the proceeding." Further, Rule 2.11 of the ABA Model Code of Judicial Conduct calls for recusal where a judge's spouse "has more than a de minimis interest that could be substantially affected by the proceeding."
After the initial opinion was issued, judge Batchelder wrote a concurring opinion defending her decision not to recuse.
I write separately because Judge Martin scolds me for failing to act on my own initiative to recuse myself from the vote on whether to rehear this case en banc. His accusation cannot be taken seriously, and I cannot now — as I could not when the question first came before us — justify recusing myself. . . .Particularly because no party in the case sought Judge Batchelder's recusal -- and, as she notes in her opinion, no member of the court suggested her recusal before issuance of the public opinion -- Judge Martin's opinion looks like petty payback for Judge Batchelder's report as acting chief judge finding merit in misconduct complaints against Judge Martin for mishandling two high-profile cases when he was Chief Judge of the Circuit. Bill Batchleder's occupation is hardly a secret, and if the Ohio Secretary of State did not think his pending election contest as a GOP candidate justified recusal, I do not see why this should have been an issue. There is no reason for one judge to impugn the integrity of another for failing to recuse when no recusal motion was filed. If Judge Martin was really so concerned about the appearance of a conflict caused by Judge Batchelder's failure to recuse, he should have raised this matter privately before impugning one of his colleagues in public. Making public accusations of this sort may have precedent on the Sixth Circuit, as Martin notes in his opinion, but that hardly justifies his dissent (and it is regrettable that three other judges, Daughtrey, Cole, and Clay, joined the opinion).Bill Batchelder . . . is not a named party to this lawsuit, and is one of literally hundreds of candidates on the November ballot in Ohio. Unless Judge Martin is claiming that only Republican candidates will benefit from preventing vote fraud, Bill Batchelder’s candidacy is no more affected by this litigation than is the candidacy of every other individual on that ballot. But this case is not about candidates. It is about voters. It is about the right of every single legally registered voter in the state of Ohio — regardless of party affiliation — to cast his or her vote, and the corresponding right of each of those legally registered voters to be protected from having that vote diluted by illegally or fraudulently cast votes. The only thing at issue here is the ability of local elections officials to obtain the necessary information to ensure legal voting and to prevent illegal and fraudulent voting. . . .
In short, there is no basis for any claim that enforcement of the voter-registration laws affects my husband differently from any other candidates because he is a Republican, or that discovery of voter fraud is more beneficial to Republicans than to others. If, as Judge Martin suggests, my husband (and his party) stand to benefit from the outcome of this decision — that is, if my husband’s chances of winning election are improved by assuring a fair election — then my husband stands to benefit in the same way as every other Ohio voter, each of whom is entitled to participate in a fair election. None of this provides any basis upon which I could recuse.
Had a recusal motion been filed, however, I think the issue is much closer than Judge Batchelder suggests. While she is certainly correct that all voters have an interest in the fair and impartial administration of the election, it is also true that the Ohio GOP believed it could obtain partisan advantage from its lawsuit. Forcing the Secretary of State to provide mismatch information to county election boards would have made it easier for the Ohio GOP to challenge potentially ineligible voters, and the Ohio GOP clearly believed that this would inure to their net benefit this November, when Bill Batchelder is standing for re-election. Thus, I think one could reasonably argue that Bill Batchelder had "an interest that could be substantially affected by the outcome of the proceeding" that could have justified Judge Batchelder's recusal.
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On the merits, I think that Batchelder's explanation is awfully weak. She comes painfully close to saying that there was no "reasonable question" about her impartiality because both she and the plaintiffs are in favor of fair elections. On that reasoning, no judge would ever be disqualified for the appearance of a conflict.
Is that different from the GOP believing it could merely obtain an advantage?
This is where the veil drops. To that point all the judges had been pretending that this dispute is about protecting voters. Over and over the judges had emphasized that the key to the HAVA provisions involved in this case is that a fraudulent vote cancels out a legitimate one.
[Judge Martin] makes clear that the real issue, as far as he is concerned, is determining the outcome of the election.
I'm pleased to see that Judge Batchelder chooses to remind Martin that the point of the case is to protect voters, not decide the election. Judge Martin should be ashamed not only for lashing out at Batchelder, but for finishing with this outrageous screed directed at Judge Griffin:
That emphasis is in the original, BTW.
A political party makes an unusual plaintiff. Suppose the plaintiff were a corporation. In your view, should the judge have recused herself if her husband were a fairly-senior middle manager at that corporation?
In a footnote to her opinion, Judge Batchelder writes: "Neither party moved for my recusal prior to, during, or since our en banc consideration; nor did any member of this court make any such suggestion prior to the public issuance of this opinion." To my knowledge, this claim has not been disputed.
Pireader --
I would think that would be grounds for recusal in most instances. As I recall, a similar issue came up in the Microsoft antitrust litigation because then-Chief Justice William Rehnquist's son did legal work for Microsoft. He did not recuse, however. So there may be rare instances in which that sort of relationship might not requre recusal, but I am not sure what those circumstances might be.
Steve --
I agree that Judge Batchelder's reasoning is potentially overbroad. I wonder whether her view is influenced by the norms in Ohio, where judges are elected and recusals are fairly rare.
JHA
That's really it. Only Republicans benefit from preventing voter fraud, because by and large it's Democrats who are in league with voter fraud organizations like ACORN.
Thanks for the astute commentary. Though you might not go this far, Judge Martin is a results-orientated disgrace to the federal judiciary. (Not unlike a judge I clerked for, who too was a disgrace in that regard). Having witnessed the pettiness of federal judges (especially those that sit on the courts of appeals) up close, Judge Martin's opinion hardly surprised me.
Like everyone else here, I have my own thoughts about whether Judge Martin handled this correctly, and I certainly am not going to take issue with anyone else's opinion.
But I do take issue with you attacking Judge Martin for his willingness to drop the pretense and say what everyone else was thinking - this case was not at all about voters. It was about votes, and more importantly, which party gets more votes. The case was most certainly about the outcome of the election - the Ohio Republican Party knew that, Brunner knew that. Why should the judges act as is the case is about something that neither party believes? This is not to say that the judges should have decided it on that basis (which, given the party line split, it appears they did), but they do not have to feign naivete. i suspect it was in this context that Judge Martin decided to do what he did. This was a political case, and Judge Batchelder is a notoriously political animal.
And I think you mischaracterize a bit of Judge Martin's admittedly caustic dissent: the context of Judges airing their views was in reference to all the arrows previously slung.
Finally, not sure if your view of the standard is correct. It's an objective standard, and the idea is simply that Bill Batchelder is both a Republican and running for reelection. The statute on impartiality roughly collapses the Judge and their spouse in the analysis, and it's my understanding that several Ohio Judges have running for reelection have recused themselves in similar state cases. Obviously there, you could make the same claim: there's no conflict because all I care about it stopping fraud and voter fairness!
But it strikes me as unseemly not to recuse oneself in the biggest voter challenge case in the country that happened to be brought by the party that your spouse belongs to and is a leader within. It's a separate issue whether a dissent is the right forum, but on the merits, it seems tough for me to think anything different. I'd be curious what some prof. responsibility scholars might think.
I could be misreading the dissent, but I thought the issue was not that he caused her more of a conflict than if her spouse had been, say, an independent or democrat, but it was simply that he was a candidate. The fact that he is a republican was tied to the fact that the Ohio Republican Party was a named plaintiff (and the dissent throws out a few theories on that of varying persuasiveness).
But I thought the point was that it was a big election case and her husband is running for reelection, not solely that he was a republican (though it was the Republican Party who was suing and thus thought it had an interest in the outcome). I could be wrong that that's what the dissent had in mind, but that's my view. If your spouse is a candidate, you probably ought not to be deciding the case on either side.
Pity we don't have a court where all the judges recuse themselves.
I have no idea what influences Judge Batchelder, but:
(1) Recusal is governed by a federal statute and the Code of Conduct for United States Judges; local customs in state court should not matter; and
(2) state judges are elected in Pennsylvania, but Judge Rendell doesn't have any problem complying with the federal statute.
I am unaware of Judge Reinhardt ever recusing himself in a case where the ACLU was a party or amicus.
And God knows, I wish he would.
You write that "it is also true that the Ohio GOP believed it could obtain partisan advantage from its lawsuit." Well, so Secretary of State Brunner would characterize the case, in an act of double-talk (because it presumes that there is a need to protect the plaintiffs from her actions, while she simultaneously insists that she's doing nothing illegal or improper).
On its face, however, this is a lawsuit not to obtain a partisan advantage, but to require Secretary of State Brunner to do her job. Judge Batchelder is absolutely correct to note that HAVA is intended to promote the integrity of the voting process for all candidates and all voters.
If we indulge in your method -- in which one is permitted to impute secret, additional motives not shown in the pleadings -- rather than focusing on the pleadings (and their specification of the nature of the acts complained of, the damage alleged, and the relief sought), then there is no judge who is ever safe from recusal attacks.
In my 28 years of practice, a large majority of the recusal motions I've seen have been tactical. It's very bad public policy to shift the playing field to a "if it's arguably even close, then recuse" standard because that encourages tactical attacks. The personal pettiness you posit on Judge Martin's part may be true, but it may instead be, or also be, that he simply wanted to reduce by one the number of en banc judges joining in the majority opinion.
Judge Martin did raise the issue in private before "impugning one of his colleages in public." Before any published opinion is filed in the Sixth Circuit, it is circulated to all of the court's judges for review. Accordingly, Judge Batchelder would have received a copy of Judge Martin's proposed dissenting opinion accusing her of misconduct before that opinion was published.
I'll also note that we have no idea whether or not Judge Martin did in fact privately raise this issue with Judge Batchelder before circulating a proposed dissent. That's the definition of the word "private," we, the public, don't get to know what really went on between Judges Martin &Batchelder.
Oddly, this completely undercuts and standing argument the Republicans could have made. If they are just voters, then they have no more interest than any other citizen.
But Bill Batchelder will benefit from the Republican's voter suppression efforts, and his wife helped. If this had been a $100,000 tort cast against AT&T, and if Judge Batchelder had even $1.00 in an S&P index fund, she would have had to recuse herself. She certainly has more interest in helping the efforts of the party/litigant that her husband is a leader in.
Generally true, but Ohio Supreme Court Justices Stratton and O'Connor had the integrity to recuse themselves from election cases that could affect their races this year. Maybe Batchelder should learn from them.
Two issues. One, the federal statute requires judges to recuse themselves regardless of whether or not any party raises the matter.
And second, there was no opportunity for Batchelder to be in front of any lawyer; the panel issued an opinion last Thursday, a petition for rehearing en banc went around over the weekend, and on Tuesday the full court voted to grant en banc and also voted to reinstate the TRO. There was no oral argument or special briefing. According to the Moritz election law center, the Brennan Center filed an amicus brief, but that seems about it.
So that's why, if I was the judge, I would have thought this circumstance was unusual and would have (probably, you never know) taken extra care; the lawyers really didn't have a chance to identify the possible conflict and ask for recusal.
And the tactics probably wouldn't have made much of a difference. The vote was beyond being influenced by one judge's vote.
When weighing the equities of the TRO request, one of the questions the court must answer is whether this is a legitimate attempt to prevent fraud or a voter suppression effort. That's a question in which all Republican candidates have a stake. In deciding whether she should recuse herself, Judge Batchelder clearly took a position on that issue.
She should have followed the lead of Ohio Supreme Court justices Stratton and O'Connor and recused herself.
the state GOP is now going to argue the same case in front of the Ohio Supreme Court, which they know will find in their favor regardless of the merit. That court, of seven elected Republicans, is so far in the tank I'm not sure why they are bothering to schedule oral arguments.
That would be the State Supreme Court that ruled, 4 - 3, that Brunner was right to let people register and vote on the same day (an excellent way to encourage fraudulent votes), despite an Ohio law saying yo umust register 30 days before you vote?
What deranged world do you live in?
Because, of course, no voter would have an interest in having an honest election.
Jerk.
There is absolutely no difference between illegitimately blocking a legal voter from voting, and illegitimately allowing an illegal voter to vote. Because every vote cast by the illegitimate voter cancels out the vote of a legitimate voter.
No, I take that back. There is one difference. With the legitimate voter being blocked, we know who was screwed. With the illegal voter we don't know who was screwed.
But that's the only difference. If you care about people's right to vote, you must be opposed to fraudulent voters.
Judge Batchelder puts the Democratic-Republican point in an unfortunately tendentious way that seems to assume before adjudication the point of the plaintiff (the party she's suspected of favoring) that its case is all about "discovery of voter fraud" and that there's no reason to believe Republicans are more interested than Democrats in that. First, as some commenters suggest, perhaps they are. Second, I assume that, as in a lot of instances, there are a variety of goals that are in some tension. Sure, we want to prevent voter fraud, but we also want to make sure that people don't lose their right to vote because of a clerical error that creates an appearance of a mismatch. And we also want to allow hard-working bureaucrats to spend their time and our money on whatever other tasks they think are more important than tracking down mismatches. It doesn't follow that folks who put a relatively higher value on the second and third of those goals than on the first are utterly uninterested or affirmatively in favor of voter fraud; they just weight the balance differently. And, unfortunately for Judge Batchelder, as an empirical matter based at least on who is suing whom, it does seem that Republicans place a relatively higher value on the first of those goals than do the Democrats.
Her other point strikes me as the closer one. Voters and candidates both participate in the political system, and it is not immediately clear that having a candidate spouse is any stronger ground for recusal than having a voting spouse. It's not like state legislator is some huge plum, at least not for everyone (my attitude, based mostly on some unsuccessful attempts in a past life to avoid being tagged it to run a homeowners' association, is " . . . and second prize is two terms as a state legislator"). For that matter, non-voter non-candidates can have stakes, maybe even bigger ones (if Judge Batchelder was a Michigan resident and her husband was on Ohio's death row, would she have to recuse herself from an Ohio election case where one, but only one, of the gubernatorial candidates had promised to commute all death sentences?).
The actual case seems a tough call, because (as Angus and others mention) judges are supposed to recuse themselves without waiting for a party motion where it is warranted; because (for reasons related to the question raised by Corneille1640) judges are not supposed to recuse themselves needlessly to avoid the work of being a judge, which sometimes requires tough decisions they'd rather not make; and because it was a call that had to be made very quickly without as much time for reflection and research as Judges Batchelder and Martin might have wanted.
Sure, we want to prevent voter fraud, but we also want to make sure that people don't lose their right to vote because of a clerical error that creates an appearance of a mismatch.
Repeat after me "provisional ballot." Enforcing matching won't lead to honest voters losing their votes. They may have to work a little bit harder to vote, as a cost of screwing up their Registration. But they will still get to vote. It's the dishonest voters who are stopped by this.
Which makes it interesting that Ohio Democrats (and non-Ohio Democrats) are fighting so hard to prevent it.
Who screwed up their registrations? Take a look at another midwestern state.
From the Washington Post: “Thousands Face Mix-Ups In Voter Registrations”, p.3:
Alongside a 22% mismatch rate in the Wisconsin databases, there's also recent news that the Wisconsin GOP has started advertising "Help Wanted" for work in Milwaukee as a polling-place goon.
The voting rights act states:
All the same, law or no law, the GOP goons are fully expected to act exactly as they did in 2004 and 2006.
Many people will be wrongfully denied a vote.
"GOP goons?" Where? Who? Name one.
Old boy, I'd believe your whining a bit more if the GOP had its own version of ACORN. But we both know that's not the case, don't we?
During recent elections, reports of unlawful polling place activity were also received from Cleveland, among other places. I'd have to search to dig up those reports from past elections. But what happened has been documented.
This is an inapt analogy.
The issue at question is election law, not any specific election.
The better analogy would be to suppose the plaintiff were a corporation seeking a ruling on corporate law and the judge's husband was a fairly-senior middle manager at another corporation. Yes, any such ruling could impact his interests, but would it rise to the level of conflict of interest.
See “Report from Volunteer Attorneys Observing Voting throughout Southeastern Wisconsin on November 2, 2004”, pp.3-4 (contained within Hearing on the Conduct of Elections and Proposals for Reform, U.S. House of Representatives, Committee on House Administration, pp.151-2 (pp.153-4 in PDF)):
In fairness, I know conservatives of similar mind-set, willing to believe unsubstantiated rumors that fit their narrative. But I don't think it's 50-50 on the national scene.
It is general knowledge among Democrat officials of every stripe that virtually all (or literally all) of the voter fraud going on is composed of fraudulent registrations on the Democrat side.
If Martin is seriously convinced that her Republican husband has a better chance of winning if the voter fraud is addressed, then he's admitting what it is.
Someone needs to point this out, more eloquently I hope.
No doubt, Martin and "news reader" agree with the son of US Representative Gwen Moore and the son of former Milwaukee Mayor Marvin Pratt in slashing the tires of Republican poll workers.
Its no secret that there is rampant election fraud in the south-east Wisconsin (Milwaukee) area and its at disgrace that the sitting Democratic governor refuses to sign legislation that would implement some simple safeguards. Wisconsin's system of same-day registration and voting, coupled with weak ID requirements (you only need a recent utility bill) make the process very easy to game.
Bonus question: If Democratic/ACORN operatives impede the ability of Republicans to get to the polls; is that voter supression?
The allegations of "Volunteer Attorneys Observing Voting," if true, are quite disturbing. Let us suppose that the GOP's intention actually is to suppress voting, and we should therefore reject their solution. What is your solution to the problem? Do you think people should be allowed to vote, unchallenged, without producing any evidence that they live in the state, or that they haven't already voted? Even if the Republicans have nefarious motives, there are also groups on the left that seem willing to use lax enforcement of election laws to unfairly influence the outcome. How would you stop them?
To argue that a Republican candidate will be unfairly benefited if an election is free of fraudulent voting, one must first accept the premise that fraudulent elections will benefit the Democrats, and that this situation is both fair and the norm.
Hey News Reader - I guess that Republican dominance in Wisconsin politics is really getting to you, huh? You may want to get after the Big Bad Republican Machines in Chicago, Philly, NYC, Boston and LA while you're busy rooting out Republican vote fraud.
No doubt the Ohio GOP shared this high-mindedness with her Honor, and was equally disinterested and public-spirited.
Judge Martin was rudely and unpardonably cynical, not to mention uncollegiate.
Gee, apparently you missed the stories about homeless people being offered cigarettes to vote, by Democrat Party activists who told them how to vote, took them to the polls to register on election day, and occasionally were caught going into the polling booth with the people to make sure they voted the correct way?
Or is all that vote fraud good, because it's by Democrats?
A State that allows same day registration, and doesn't check photo ID (because the scum of the earth Democrat Gov. has consistently vetoed laws taht would require it), is a complete invitation to vote fraud. Given that the Democrats have fought hard to make it that way, no Democrat there gets to complain about Republican efforts to cut down on the fraud you people created.
Not only did I miss those two specific allegations, but also apparently Republican Party of Wisconsin chairman Richard Graber missed them too. He stated in a 2001 press release:
The Journal-Sentinel reported only:
(Emphasis added.)
Anyhow, never mind the non sequitor about stopping these 10 serious violations of election law with a photo id requirement. Assume —for the sake of argument— that a photo ID requirement would stop someone from handing out cigarettes and rides to the polls.
UWM-ETI's widely-cited study found:
So, in order to stop 10 people from getting cigarettes and a ride to the polls, you want to make life tough for almost 180,000 elderly people.
In addition, as an EAC-commissioned study found, there's a correlation between increasingly severe ID requirements and lower voter turnout.
Nathan Hall,
Serious election reform efforts are counter-cyclical. Other than emergency fixes for the most severe problems, you just don't change the system this close to an election. And it's worth taking a good look at exactly what happens this November.
That said, I personally favor returning Milwaukee to a clean, hard-working Socialist administration.
If people don't have state issued photo ID help them get those id. Don't use that as an excuse for allowing vote fraud.
Oh, I forgot. That's what you would do if you gave a damn about those people. You don't. You just want an excuse to allow continued vote fraud.
If you really believe the problem is only 10 illegal votes, then you are as dumb as you are dishonest.
Angus babbles
Jerk.
you are as dumb as you are dishonest
Please do us all a favor and page down to see the VC's comment policy. While there are certainly ruder and cruder comments being made today, maybe we can keep this particular thread from degenerating.