Two months ago, Judge Richard A. Frye of the Franklin County Court of Common Pleas issued a decision that made a number of 17-year olds happy and caused him to be accused of “legislating from the bench.” The decision is remarkable for both reasons.
First, let’s take a look at what was at stake. By statute, Secretary of State Jon Husted is obligated to promulgate instructions for how voting is to be conducted throughout the state. The 2015 Election Official Manual (page 7-5) published by his office stated that 17-year-old voters who would be 18 years old on or before the next general election could vote in the primary election “solely on the nomination of candidates.” These same 17-year olds, however, would “not [be] permitted to vote for presidential delegates, because delegates are elected and not nominated.”
The phrase, “presidential delegates,” is a little misleading. The names of the delegates corresponding to each presidential candidate do not appear on the primary election ballot. The names that do appear are those of the candidates themselves who are vying for their party’s nomination for the general election. In essence, the results of the primary tell the parties how their delegates are to vote at the convention.
The upshot of Secretary Husted’s instructions was that qualified 17-year olds would not be allowed to vote for any of the presidential contenders.
The basis for Secretary Husted’s position was a statute that refers to two types of primaries, one where persons are “nominated” as a party’s candidate for office (e.g., Democratic candidates Ted Strickland and P.G. Sittenfeld running for the U.S. Senate), and another where persons are “elected” as delegates who will then vote at a political convention to select a party’s nominee (e.g., Hillary Clinton versus Bernie Sanders) for the general election.
Based on an Ohio Supreme Court decision from over a hundred years ago, Secretary Husted concluded that qualified 17-year olds could not vote for presidential delegates because doing so equated to “electing” them, when qualified 17-year olds are entitled only to nominate.
Judge Frye gave little weight to the case the secretary relied upon. “It is a relic of a bygone era when primary elections were a novelty, and all women along with men under age 21 could not vote. The decision does not address a comparable situation, such as voting by 20-year olds who would turn 21 by the fall elections.”
Judge Frye based his ruling on two statutes. The first defines “electors” (i.e., people eligible to vote) as citizens who are 18 years old or older. The second provides that electors who will be 18 years old as of the general election may vote at a primary. Significantly, this second statute makes no distinction between nominating and electing and refers to qualified 17-year olds being “entitled to vote such ballot at the primary election.” In Judge Frye’s words, “It “clearly does not say that a 17-year old voter is only entitled to vote a part of the ‘ballot.’ It speaks to voting the entire ballot.”
Because of Judge Frye’s decision, 17-year olds were able to have a say as to which presidential candidates will make it to the general elections. And they received quite the civics lesson as well.
The second notable aspect of the decision is Secretary Husted’s reaction. He didn’t take it well, referring to Judge Frye’s decision as “last minute legislating from the bench,” which is another way of saying, “I don’t like it when a judge rules against me.” Gee, who does?
Accusing a judge of “legislating from the bench” is standard fare for disgruntled politicians and special interest groups. The companion criticism is, he’s an “activist judge.” Those were the words of Michael Gonidakis, president of Ohio Right to Life, a few days back after a federal judge ordered the state of Ohio to temporarily resume funding Planned Parenthood (until, at least, June 6, when a hearing will be conducted) on grounds it may be unconstitutional for the state to stop funding the agency.
These are loosely defined terms that have one thing in common: disdain for a judge’s decision. And while trial judges might overstep their authority on occasion (judges, after all, are human beings and subject to all the frailties that come with humanity), the criticisms of “legislating from the bench” and “activist judge” are abused.
Neither Secretary Husted’s nor Mr. Gonidakis’ comment is unusual. After all, nobody likes to lose. When’s the last time you heard someday say, “As I think back on it, I took the wrong position, and I’m glad the judge ruled against.” Why blame yourself or the facts or the law when you can blame the judge?
But Judge Frye’s decision was grounded in the law. Criticism concerning a judge’s statutory interpretation is often based on the belief a judge has inserted his personal views. It’s hard to find any evidence of that with Judge Frye’s decision. His was an earnest effort at interpreting the law. Secretary Husted just didn’t like the result.
In fairness to Secretary Husted, he’s been fair and even progressive in other election-related issues. He has long supported on-line voter registration and has been a proponent of a more evenhanded approach to drawing legislative districts. He just got this one wrong.
Jack D’Aurora writes for considerthisbyjd.com
 R.C. 3501.01(E).
 R.C. 3503.01(A).
 R.C. 3503.011.
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