What will be the effect of ‘Husted Rule’?

One observer says the decision on state senator’s residency could be a big victory for voter rights

Ohio Supreme Court justices unanimously overturned Secretary of State Jennifer Brunner's ruling that state Sen. Jon Husted, R-Kettering, does not live in Kettering and should not be permitted to vote from there. Associated Press file photos

Kiichiro Sato/STF Ohio Supreme Court justices unanimously overturned Secretary of State Jennifer Brunner's ruling that state Sen. Jon Husted, R-Kettering, does not live in Kettering and should not be permitted to vote from there. Associated Press file photos

ENLARGE PHOTO

Jay LaPrete/STR Ohio Supreme Court justices unanimously overturned Secretary of State Jennifer Brunner's ruling that state Sen. Jon Husted, R-Kettering, does not live in Kettering and should not be permitted to vote from there. Associated Press file photos

ENLARGE PHOTO

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By Lynn Hulsey, Staff Writer Updated 10:20 PM Saturday, October 10, 2009

The Ohio Supreme Court ruling on state Sen. Jon Husted’s residency could make it easier for people to commit voter fraud, according to Ohio Secretary of State Jennifer Brunner.

She is worried enough about it that she is formulating a directive for boards of elections.

“I think there are more ways now for people to get around the rules,” Brunner said after the court’s Oct. 6 ruling. “We are in the process of crafting a directive so we can advise the boards with the best instructions possible to prevent voter fraud.”

In a decision some Democrats charge was politically motivated, the justices unanimously overturned Brunner’s ruling that Husted, R-Kettering, does not live in Kettering and should not be permitted to vote from there.

Democrats said the all-Republican court protected a fellow Republican, who himself accused Brunner and other Democrats of playing politics in the residency investigation.

“It’s appalling that she used the office of secretary of state and wasted taxpayer dollars on her partisan shenanigans,” said Husted, who is running for Ohio secretary of state in 2010.

Husted said Brunner’s political bias is evident in the length of time the case took to resolve — nearly a year — especially since she ruled in less than a month on a residency case in Morgan County in 2008.

In that case Brunner voted with Republican elections board members to protect the voter registration of a Republican county prosecutor who spent much of the time that he was out the county deployed to Iraq and other military assignments.

Brunner, a Democrat running for U.S. Senate in 2010, denies being partisan and said she ruled on Husted’s case based on the evidence, the law and previous court rulings.

“I didn’t do anything but handle what was given to me,” said Brunner, who was required by law to break a tie vote by the Montgomery County Board of Elections.

The board broke twice along party lines over complaints about Husted’s residency, with Republicans supporting him and Democrats opposed. Husted said the demands of his job require that he spend most of his time living with his wife and kids at her Upper Arlington home but he returns to Kettering weekly. The court agreed that the law allows him to leave Kettering while in government service without losing his residency.

Voter rights

Some say the high court ruling expands voter rights — and the possibility of voter fraud — by making it harder to challenge residency and putting more emphasis on a voter’s stated intent to return to a residence.

“They did not look at any of the evidence (on Husted’s residency), such as utility bills, water bills to determine the veracity of his statement, ‘I intend to return,’ ” said Dennis Lieberman, a Montgomery County elections board member and former chairman of the county Democratic Party.

Observers say the court’s ruling could have residency implications for state legislators’ ability to regularly live outside their districts, but there is disagreement over how far-reaching those will be. Ohio law requires that legislators live in their districts.

In a separate opinion, Justice Paul Pfeifer said that with the law “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.”

Predicting it will become known as the “Husted Rule,” the case clarifies that legislators can leave on state business and not be required to defend residency based on evidence such as utility bills, said Greg Gantt, chairman of the Montgomery County elections board and the county Republican Party.

“It’s going to set a precedent for a very broad definition of what residency is for legislators,” said Nancy Martorano Miller, assistant professor of political science at the University of Dayton.

Husted and state Senate President Bill Harris, R-Ashland, say the ruling breaks no new ground as far as residency. But House Minority Leader Bill Batchelder, R-Medina, is not so sure because he said the court makes “intent” predominant.

“At the end of the day where they lay their head down at night is irrelevant,” said Batchelder, then adding with a chuckle, “Sometimes they return sooner than they hoped.”

Standard of proof

Brunner is concerned because the court required a higher standard of proof to cancel Husted’s registration, but specifically applied it only to his case and not to other voters.

The justices made no mention of the 2006 Sixth District appellate case that Brunner based a key part of her ruling on because it involved an elected official’s wife not living in the same county as him. The appellate court upheld cancellation of the official’s voter registration.

“I thought it was really suspect that the court never even mentioned the case that was nearly on all fours a match to Sen. Husted’s case,” said Brunner. “And I thought the least the court could have done was to overrule that decision. But it did not.”

She said the court made it harder for elections boards to prove voters are not living where they say they live and added requirements for canceling registrations, which will lengthen the process

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