Chapter 1 Pike, Ohio. A coin flip made Mr. Taft the winner. But following an automatic recount, Mr. Taft’s total was reduced by one vote in Precinct D, and Mr. Bain was declared to be the winner. Five days later, the board of elections examined all of the ballots in Precinct D and found that one ballot had a chad8 next to Mr. Taft’s name that was attached by only one corner. Under state law, a ballot could be counted if the chad was hanging by two corners or fewer, but the county prosecutor told the board it could not change the certified election result so the result went unchanged. Five days after that, Mr. Taft filed an election contest. In response, Mr. Bain swore that when he saw that ballot, the chad was hanging by three corners (and therefore an invalid vote), and that the handling by the election officials changed the ballot’s condition (to become a valid vote). Two masters aiding the court examined the ballot, found that the chad was hanging by one corner and that the ballot should be counted for Mr. Taft, which resulted in Mr. Taft and Mr. Bain being tied again. The court then decided that no evidence could be presented by Mr. Bain beyond the documents already presented in the case, ruled that the election was tied, and told the board of elections to decide by lot who should be the winner. Since the board of elections already had flipped a coin to decide that Mr. Taft won the earlier tie vote, they saw no reason to flip a coin again and declared that Mr. Taft won. On appeal, the Ohio Supreme Court first had to decide whether Mr. Bain was correct in claiming that the lower court did not have jurisdiction to handle Mr. Taft’s lawsuit because Mr. Taft did not file an adequate bond for his lawsuit: he had filed a cash bond, not a surety bond; the bond did not obligate Mr. Taft to pay all of the expenses of the lawsuit; and it said that Mr. Taft bound himself only to the board of elections. The supreme court began its decision by saying, Bain is correct that, in general, “[t]he procedure prescribed by statute to bring an election contest within the jurisdiction of a judge must be strictly followed.” If the contestor fails to comply with the bond requirement of [the statute], “the court is without jurisdiction to hear or determine the controversy.” Nevertheless, we have adopted and applied a substantial compliance standard for the statutory bond requirement. At 476 (internal citations omitted). The supreme court noted that the clerk of the lower court had approved the form and amount of Mr. Taft’s bond, and went on to find that Mr. Taft had substantially complied with the statute’s requirements because paying in cash instead of a surety check was acceptable, and the bond obligated Mr. Taft to pay the costs incurred by him, although he could have used clearer language to say so. And it made no difference that Mr. Taft bound himself only to the board of elections, because he was willing to pay all the costs of the contest. Finally, the supreme court found that there was no evidence that Mr. Bain had been prejudiced because of the bond that Mr. Taft posted and the clerk approved. Thus, Mr. Taft was able to meet the threshold requirements for getting his lawsuit started. But he did not do so well on other issues in the case. Once the bond question was disposed of, the supreme court ruled that Mr. Bain should have been allowed to have an evidentiary hearing, and that the board of elections was wrong in not conducting a second flip of the coin, and reversed those aspects of the lower court’s decision.9 A chad is the little piece of a cardboard ballot that is punched out to cast a vote. Sometimes the punch does not completely detach the chad (in the shape of a circle, square or rectangle), raising a question as to whether the voter intended to punch it out. The concept of substantial compliance affects substantive issues as well as procedural issues in election dispute adjudication. This concept is discussed at length in Chapter 3. 8 9 9