Legislating from the bench

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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.[1]

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.[2] 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.”[3]  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


[1] R.C. 3501.01(E).

[2] R.C. 3503.01(A).

[3] R.C. 3503.011.

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  1. Fil  May 27, 2016

    This is an interesting blog, at least for this non-lawyer reader. I particularly like your last reference to Secretary Husted, who it seems to me has tried to enforce the extremely liberal election laws in Ohio, among the most liberal in the nation. Even to the extent of trying to institute on-line voting. At the same time, he is constantly attacked by opponents who don’t like the fact that he is trying to maintain uniformity throughout the state, rather than piecemeal regulations that vary from county to county. What ever happened to “election day” when we all took a few minutes out of our day and exercised our right? Now the state gets sued because some aggrieved party can’t vote whenever they decide they would like to vote.

    •  May 28, 2016

      I agree with you. How is it that the secretary can greatly increase the number of voting days and then cut them back a little and then be accused of wrongful conduct. I don’t know enough about this area of the law to comment, except to say that the situation is counterintuitive.

      But let’s look at this from a different perspective. Shouldn’t we do whatever we can reasonably do to make voting more accessible for everybody? For you and me, voting is easy. We have a working car and flexible work schedules. These are luxuries that many voters don’t have, which make voting difficult.

  2. Dan McCormick  May 27, 2016

    Well done though I would say that we do see partisan “interpretations” on the Supreme Court. Good example was the recent jury selection process (I think it might have been in Alabama) where there appeared to be written/stated indications to “purge” an entire class. How that wasn’t an 8-0 vote baffles me. Likewise, one where a sheriff/officer had yard signs he delivered to his mom for a candidate that was opposing the local mayor. Again, looking at it on the surface, how could it not be an 8-0 vote that what you do on your own time regarding a campaign is your issue.

    •  May 28, 2016

      Regarding the jury selection case, do you realize you dissented? It was Justice Thomas. Hard to believe, isn’t it?

  3. Matt Schaeffer  May 27, 2016

    Someone could ask Secretary Husted if he feels that the Ohio Supreme Court was “legislating from the bench” in the case that he relied on for his position. When I think of “legislating from the bench,” I think of instances where a court clearly places itself above the legislature and creates new rights where none previously existed or eliminates existing statutory rights. Judge Frye’s decision certainly isn’t a case a “legislating from the bench”–the court was trying to make sense of and apply existing statutory authority that isn’t clearly written or defined. In other words, the court was filling its fundamental role. I agree, Jack, that the accusation of “legislating from the bench” is, in this instance, an abuse of the phrase.

    •  May 28, 2016

      Oh, the irony you point to you in your comment concerning the case Husted relied on.

  4. Albert Yannon  May 27, 2016

    Reminds me of the late Justice Scalia who thought “textualism” which I interpreted as legislating from the bench was akin to heresy. I didn’t like Scalia. I thought he forgot his roots. Any way, your Judge and any Court who uses common sense and promotes their common sense judgment to achieve a proper solution should never be ostracized. The example I can think of was Scalia saying the Second Amendment meant no restriction whatsoever on gun control because it wasn’t in the text. What an ass.

    •  May 28, 2016

      I’m with you, Al. Sometimes it seems that common sense is lacking in the decisions we read, and decisions about gun policy seem to be at the top of that list.


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