TRAFICANT CASE Decision on special election sets legal precedent, experts agree

The federal court decision says the elections are mandatory.
By DAVID SKOLNICK
VINDICATOR POLITICS WRITER
YOUNGSTOWN -- While he sits in an upstate New York federal prison cell, former U.S. Rep. James A. Traficant Jr. is setting legal precedent that could become the law of the land.
The 6th U.S. Circuit Court of Appeals in Cincinnati ruled in a 2-1 vote Monday that Gov. Bob Taft should have ordered a special election in 2002 to fill Traficant's vacancy in the U.S. House. When Taft refused to fill the seat, the American Civil Liberties Union of Ohio filed a federal lawsuit to force the governor to hold a special election.
The judges ordered the state to pay the ACLU's legal fees, and sent the case back to U.S. District Judge Edmund Sargus Jr. of Columbus to calculate those fees. ACLU officials say they don't know how much was spent on legal fees. Judge Sargus had declined in August 2002 to force the governor to hold special elections to replace Traficant.
Traficant was expelled from the House in July 2002, five months before his term was to expire. Traficant is serving an eight-year prison sentence after a federal jury found him guilty of bribery, racketeering and tax evasion.
Governor's reasons
After Traficant was expelled, Taft refused to fill the congressional seat for a variety of reasons.
At the top of the list was the cost. It would have cost Mahoning, Trumbull and Columbiana counties about $400,000 for a special primary election and then another $400,000 for a special general election. Taft could have scheduled the special general election on Election Day in 2002 to save the three counties $400,000. Because it takes about two weeks for county election boards to certify elections, the winner of the special election probably would have served in the House for about five to six weeks.
The court's decision states that it didn't matter that Traficant's replacement wouldn't have cast a vote in the House. The U.S. Constitution requires governors to establish dates for elections to fill vacant House seats. Neither the Constitution nor the Monday court decision gives a time frame for governors to hold elections. But the court decision says the elections are mandatory.
Reaction
The Traficant decision could have huge ramifications nationwide, said Rick Farmer, a fellow at the University of Akron's Ray C. Bliss Institute of Applied Politics and an associate political science professor at the college.
"It will likely be seen as a precedent nationwide," he said. "It will have a direct impact on future House vacancies in Ohio, a strong impact on the other states in the 6th District [Kentucky, Michigan and Tennessee], and could have an impact across the whole country."
The majority court decision cited the U.S. Constitution in ruling in favor of the ACLU stating: "When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies."
Besides the expense and the short time frame that the replacement would serve in Congress, Taft was also concerned about voter confusion because the 17th Congressional District was redistricted by the state, effective with the November 2002 election. The old 17th included Columbiana, Mahoning and Trumbull counties. The new 17th included only portions of Mahoning and Trumbull, and none of Columbiana County.
Law of the land
The decision has national implications, said Paul Sracic, a Youngstown State University political science professor.
"This is now the law of the land," he said. "The constitution says 'shall.' There is no discretion in this case. There was a period of time where we had no representation. It would have been difficult and expensive, but it had to be done. Now we have case law for the next time."
In his dissent, Judge James Ryan said those who wrote the Constitution didn't anticipate a situation such as this. Under these circumstances, the strict application of the law, he wrote, would be "foolish, wasteful, and probably ineffective." He also wrote "the interpretation of constitutional principles must not be too literal."
National impact
Scott Greenwood, the ACLU of Ohio's general counsel, said the victory should have a huge impact on filling House vacancies nationwide.
"The governor thought the people of the 17th District were too poor and too stupid to have a member of Congress," he said. "Democracy is expensive. You don't dispense with the law because of expense."
Greenwood said the 17th District wasn't represented on important House votes including the Iraq war resolution on Oct. 10, 2002, and the creation of the Department of Homeland Security on Nov. 13, 2002. No House votes were taken that year after Nov. 13.
The replacement wouldn't have voted on either of those matters if the special election was held Nov. 5, the 2002 Election Day, said Kim Norris, an Ohio Attorney General's Office spokesman. It takes at least 10 days for election boards to certify voting results. The AG's office is representing Taft in this case, and may consider an appeal.
"The person elected would have never served a day," Norris said. "Political leaders and local officials came to the governor and agreed [not holding a special election] was a good approach. Logistically, it would have been difficult."