News - Capital University Law School

Election Law Attorneys Grapple with Courts, COVID and Kanye

12/16/2020  - 

The 2020 presidential may go down in history as the most litigious in the history of our country, even surpassing the Bush v. Gore debacle in 2000. While the nation is watching the current legal challenges playing out in the courts, CapLaw alumni and faculty who practice election law have been dealing with their own challenges.

Over the past several months, Corey Colombo, L ’00, has handled several cases, which have included a request to allow voters to submit absentee ballot applications by email or fax, an attempt to add more ballot drop boxes throughout the state, and Kanye West’s unsuccessful quest to be on the ballot in Ohio.

“I was heavily involved in that,” Colombo says of the latter case. He represented Lewis Goldfarb who had filed a protest to the rapper’s petition, which Colombo says, “had a fatal flaw.”

Colombo is a partner and co-manager for McTigue & Colombo LLC, a Columbus law firm specializing in election law. “It’s all we do,” he says. Many of the firm’s clients are members of the Ohio General Assembly, county and city office holders, and judges or candidates for those offices, as well as statewide and local ballot issue committees.

Colombo gives much credit to Capital University Law School for the practical training that he received, including from Professor Brad Smith, the Josiah H. Blackmore II/Shirley M. Nault Professor of Law. Professor Smith served on the Federal Election Commission for five years, and was its chairman in 2004.

“It was definitely great getting to know him and taking his class,” Colombo says. Following law school, Colombo worked nine years for a private practice, where he specialized in municipal law, before joining his current firm. 

He says it has been an unusual year given the role that the pandemic has played in the election process. “Absolutely, without a doubt, COVID’s been in the background on many things we’ve had to look into this year,” he says. “We had over 30 candidates on the ballot. How do you campaign in the year of COVID?”

For Phil Richter, L'95, it’s meant fielding many phone calls from those campaigning and those voting. Richter is the executive director and staff attorney for the Ohio Elections Commission. “I don’t believe I have ever answered as many absentee ballot questions as I have leading to an election as I have this time,” he says.

During the 2020 election cycle, the commission has been dealing with a number of campaign-finance related cases and a complaint filed by the Republican Party against the Democratic Party for including Ohio Supreme Court Justice candidates on literature with other partisan candidates. That case is being monitored to determine if it is an election law or judicial canon violation. 

Richter’s experience in campaign law extends to his CapLaw school days. He worked for the Ohio Secretary of State’s Office while an evening law school student. In that position, he served as the administrator of the Elections Commission. After he obtained his law degree, the commission hired him in his current role. He says it was a smooth transition having worked in election law for the Secretary of State. “I also greatly enjoyed the Election Law class that Dr. Smith taught. It was a good rounding out of experience from the actual application of things. It gave me a broader view of all the various election law issues out there.”

Professor Mark R. Brown has been actively involved in four cases in federal appeals courts. The Newton D. Baker/Baker and Hostetler Chair of Law focuses on public access to the political process in his public interest litigation work. In one of his most recent cases, filed in the U.S. Court of Appeals for the Seventh Circuit in late March, Professor Brown’s clients sought to ease requirements for collecting the signatures that are required to be placed on the ballot. Their reasoning was that it was next to impossible to collect signatures during a pandemic.

“We won,” Brown says. “The Court ordered Illinois to modify its rules, which subsequently placed many candidates on the ballot automatically.”

The ruling significantly reduced the number of required signatures. Armed with that decision, Brown and his co-counsel on the case, Oliver Hall, founder, executive director and general counsel for the Washington, D.C.-based Center for Competitive Democracy, filed a similar case in Ohio in mid-April. Their client was seeking to place marijuana decriminalization issues on the ballots in nearly 50 cities and villages around the state. Because of the signature requirement, they had succeeded in getting enough signatures in only a handful of small towns.

“I took the case hoping to set a good precedent,” Brown says.

They argued before the Court that because Gov. Mike DeWine had ordered Ohio to be on lockdown during the pandemic, it would be illegal to go door-to-door to collect signatures. In a decision by U.S. District Court Judge Edmund A. Sargus, Jr., Brown and Hall won the case in mid-May.

“The State of Ohio was completely unsympathetic,” Brown says, adding that the State immediately appealed. The Sixth Circuit Court of Appeals agreed with the State and set aside the decision. “They said COVID’s not that big of a deal, just take hand sanitizer. They literally said, ‘Take hand sanitizer’ in the decision. We may take it to the Supreme Court.”

Brown believes that between the mid-April decision in Illinois and the mid-May decision in Ohio, the pandemic had become more political. “That’s when everyone started fighting over ballot access,” he says. “I think we got caught in the crossfire.”

As a result, most of the issues did not make it on the ballot. In the four small cities where they did – Adena, Glouster, Jacksonville and Trimble – voters approved reducing the penalty for possession in the Nov. 3 election.

In another case, litigated in the Third Circuit, Prof. Brown was working to include third-party candidates on the ballot. He says it was similar to the Ohio case in that Pennsylvania Governor Tom Wolf also had issued a stay-at-home order. The court ruled against Brown’s client.

At CapLaw, Brown uses the cases as illustrations for his students as part of his Constitutional Litigation class. “We’ve got significant interest among students in election law,” Brown says. 

In fact, he recently took on another case in the Sixth Circuit with one of his former students, Mark Kafantaris, L’06, arguing that third-party candidates should be allowed to participate in debates. The issue stemmed from the 2018 Ohio gubernatorial race in which the Libertarian Party candidate was not included in a debate with the Republican and Democratic candidates. Brown says it violates the First Amendment Freedom of Association. He says the U.S. Supreme Court is expected to rule on a similar case in December and believes the Sixth Circuit Court of Appeals is awaiting that decision before ruling on his case.