There is no doubt about it.
The real beneficiary
- should the protesters in the Bernabei Stark County Board of Elections (BOE) certification of his "independent" candidacy (2 to 2, but tie broken by Ohio Secretary of State Jon Husted) for Canton mayor in the November general election Writ of Prohibition filed on Tuesday of this week succeed in the Ohio Supreme Court
The same applies to the protest of Frank Cicchinelli's certification in the same Jon Husted action were the loss at the BOE to be set aside by the high court except, of course, the beneficiary would be Massillon mayor Kathy Catazaro-Perry.
But there appears to be a big difference in the cases.
It seems that a "Deep Pockets" (likely the Ohio Democratic Party inasmuch as the Stark County Democratic Party has withdrawn as a protester) is footing the bill to have prominent and accomplished Canton attorney Lee Plakas who did a masterful job in presenting the protesters case to the Stark BOE on July 6, 2015.
As the SCPR wrote yesterday, though he made a compelling case on the statutory and case law of Ohio in the local BOE hearing, BOE members were never ever going to make a decision grounded in the law.
Yours truly does not buy the pretense that the "by design" Cold War standoff structure of Ohio Board of Elections produces in "high political stakes, high profile cases" - an according to Ohio law - result.
So though he did admirable work, Plakas was not going to win on July 6th. He did well in holding the Democrats in line. He was never ever going to pry a Stark BOE Republican vote lose. So much for the rule of law, no?
If Ohio's Boards of Elections weren't so blatantly political in that they are constructed to serve the selfish political interests of those who control the organized Republican and Democratic political parties, Plakas may well have won at the Stark BOE level.
Where the SCPR thought he would still thinks he will ultimately lose the case was and remains:
- once Constitutional issues were raised on the effect of "a favorable to the protesters" decision at the BOE/SOS level" on the U.S. Constitution First Amendment right of Freedom of Association.
In such a scenario, the Supremes will decide the case on Plakas not having convinced them of Husted having "abused his discretion" as secretary of state in breaking the tie.
Jon Husted is the one person in the unfolding of the protests who got closer to getting out of the purely political realm in the decision making process.
He applied the standard he articulated in the challenge to George T. Maier in breaking a tie at the Stark BOE level as to whether or not Maier was qualified under the then-statutory-specific-to-sheriff-candidates Ohio statutory law in not determining that Maier was qualified but in going to the Constitutional law safe ground of "let the people" decide"in finding in favor of ballot access.
As the SCPR sees it, Plakas has a much better chance to succeed with the Ohio Supreme Court than do the Cicchinelli protesters (if a Writ is filed).
More specifically if Plakas pulls off a win in the Supreme Court, The Report thinks it will be on the residency issue.
However, let this writer hasten to say; it is unlikely for the Bernabei protesters to succeed on any basis in Ohio's court of last resort.
Who thought that the Ohio Supreme Court would return Gary D. Zeigler to office?
Not many. But the justices did.
Of course, to have a chance in the Ohio Supreme Court, the court's scrutiny of the BOE's determinative process needs to be invoked.
Therein - the SCPR is told = lies the rub for the Cicchinelli protesters.
There ain't no way that ordinary persons protesters Richards and Schartiger are footing the bill for Steve Okey's work in the Cicchinelli protester. They testified that Mayor Kathy recruited them to be protesters and that they were more than will to join in with her request.
Initially listed protesters Tony Townsend (president of Massillon City Council) and Councilman Shaddrick Stinson (Ward 4) were listed on Okey's initial pleading which in Stinson's case he testified at the July 13, 2015 Cicchinelli protest hearing was done.
Townsend was quoted in the local Massillon newspaper as saying that he too was included without his permission.
Okey has been very generous in donating his legal talents to the Stark County Democratic Party causes. In the Bernabei protests, Commissioner Bernabei was repeatedly billed as "a dyed in the wool Democrat" before he announced as an "independent" candidate for mayor of Canton.
And The Report thinks that is a pretty accurate characterization of Bernabei's political thinking. Even as an "independent," yours truly believes Bernabei in his secret ballot votes in general elections which include partisan political candidate will continue to vote by and large if not exclusively for Democrat candidates.
A person who the SCPR thinks trumps Bernabei in his Democrat Party-esque political philosophy point of view is Steve Okey.
But there is a limit to what a professional like Okey can do in providing donated time to the Dems' and its candidates (e.g. Catazaro-Perry) causes.
Morover, the SCPR surmises that he has to be saying "who needs this grief" inasmuch as the inclusion of Townsend and Stinson as protesters might become the subject of a disciplinary complaint being filed against him.
The Report speculates that some of Catazaro-Perry's political minders and advisers assured Okey not to worry about the willingness of Townsend and Stinson to lend their names a protesters and he - being the believing and loyal Democrat - trusted them to be able to deliver.
Don't you think out of self-interest Okey has to be just a tad worried about working with the Catazaro-Perry supporting politicos?
Did they and will they, if he continues to represent on the protest "throw him under the bus." if circumstances unfold that it is their hides which are on the firing line.
The Report is being told that whether or not Okey files a Writ of Prohibition a la the protesters in Bernabei all hinges on whether or not Mayor Catazaro-Perry can raise money to remunerate Okey for his work.
While the SCPR thinks that it improves Catazaro-Perry's chances at being reelected for Frank Cicchinelli not to be in the race as an "independent" in the November general elections, The Report thinks there is a pathway (a slim one) for her to win should Cicchinelli's ballot access stand.
This is mainly because there is a Republican candidate (Lee Brunckhart) on the ballot.
Head-head against Frank Cicchinelli, she loses big-time.
Moreover, the Cicchinelli protester legal case is not nearly as formidable as the protesters' in the Bernabei case.
If the Ohio Supreme Court is unlikely to undo the Husted Bernabei protest decision, how much the more in the Cicchinelli protest case.
Accordingly, could it be that there will be no Cicchinelli protest case Writ of Prohibition filed?