CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/10/2023 1

Complete Ohio 2004 Presidential Recount 

Rios v. Blackwell (3:04-cv-7724) and Delaware County 

Prosecuting Attorney v. National Voting Rights Institute 

(3:05-cv-7286) (James G. Carr, N.D. Ohio) 

and Ohio ex rel. Yost v. National Voting Rights Institute 

(Edmund A. Sargus, S.D. Ohio 2:04-cv-1139) 

The Green and Libertarian candidates for President sought a complete recount of the 2004 presidential election in Ohio. After a teleconference, a federal district judge denied injunctive relief because 

neither candidate had a chance of prevailing in a recount. In Ohio’s 

other district, a county sought an injunction against a recount 

there, and supporters of the recount removed the action to federal 

court. The district judge was reluctant to reach a decision inconsistent with the decision reached first by the judge in the other district. The second judge transferred the action to the first judge. 

Subject: Recounts. Topics: Recounts; presiding remotely; 

intervention; Electoral College. 

On Monday, November 22, 2004, the Green and Libertarian candidates for 

President, Common Cause Ohio, and seven voters filed a federal action 

against Ohio’s secretary of state in the Northern District of Ohio’s Toledo 

courthouse seeking a complete recount of the presidential vote in Ohio.1 The 

plaintiffs were concerned that the secretary’s certification timetable left only 

one day between certification of election results and the deadline for resolution of disputes before the Electoral College vote.2

 With their complaint, the 

plaintiffs filed motions for a temporary restraining order3 and a preliminary 

injunction.4

The court assigned the case to Judge James G. Carr, who was spending 

Thanksgiving week with his family in Boston.5

 After a teleconference with 

the parties on Tuesday, Judge Carr denied immediate injunctive relief.6

 The 

only plaintiffs who had standing to demand a recount were the two candi1. Complaint [hereinafter Rios Complaint], Rios v. Blackwell, No. 3:04-cv-7724 (N.D. 

Ohio Nov. 22, 2004), D.E. 1; Rios v. Blackwell, 345 F. Supp. 2d 833, 834 (N.D. Ohio 2004); 

see Terry Kinney, Ohio Recount Suits Are Frivolous, Official Says, Cincinnati Post, Nov. 23, 

2004, at A13; Diane Suchetka, Suit Asks Court to Hasten Ohio Presidential Recount, Cleveland Plain Dealer, Nov. 23, 2004, at B5. 

2. Rios Complaint, supra note 1; Rios, 345 F. Supp. 2d at 834–35. 

3. Temporary-Restraining-Order Motion, Rios, No. 3:04-cv-7724 (N.D. Ohio Nov. 22, 

2004), D.E. 4; Rios, 345 F. Supp. 2d at 834. 

4. Preliminary-Injunction Motion, Rios, No. 3:04-cv-7724 (N.D. Ohio Nov. 22, 2004), 

D.E. 5; Rios, 345 F. Supp. 2d at 834. 

5. Transcript at 18, Rios, No. 3:04-cv-7724 (N.D. Ohio Nov. 23, 2004, filed Dec. 22, 

2004), D.E. 13 [hereinafter Rios Transcript]. 

Tim Reagan interviewed Judge Carr for this report by telephone on June 18, 2012. 

6. Rios, 345 F. Supp. 2d 833; Rios Transcript, supra note 5, at 32–34; see Mary Beth Lane, 

Delaware County Court Blocks Recount, Nov. 24, 2004, at 7B. 
Complete Ohio 2004 Presidential Recount 

2 Federal Judicial Center 10/10/2023 

dates, and “[n]either candidate plaintiff can credibly maintain that he possesses even a remote chance of victory through a recount.”7

The candidates were pursuing recounts with each county’s elections 

board; on November 23, Delaware County filed an action in state court to 

enjoin their “vain, purposeless, meaningless, wasteful, and useless” pursuit.8

One week later, the candidates removed this action to the U.S. District Court 

for the Southern District of Ohio,9

 which assigned the case to Judge Edmund 

A. Sargus.10 On the morning after removal, Judge Sargus held a telephone 

conference with the parties.11

Two days later, after the county had obtained a temporary restraining 

order from a state judge, Judge Sargus heard oral arguments on both sides’ 

motions for preliminary injunctions.12 That day, the campaign for John Kerry and John Edwards moved to intervene in support of the recounts.13 At the 

hearing, however, the campaign backed away from the recount effort.14

Judge Sargus denied the motions.15 Judge Sargus found that the county 

was not subject to irreparable harm; all an injunction would do is prevent the 

filing of a lawsuit.16 As for the candidates’ request, Judge Sargus was reluctant 

to reach a conclusion different from Judge Carr’s.17 “The Court has a high 

regard for Judge Carr and his abilities. But more importantly, the parties 

have a right to finality; that once a matter is decided by a judge, that the same 

issues aren’t being re-litigated before another judge, hoping to get another 

result.”18 In addition, time was fast running out for performance of a recount.19

On May 9, 2005, Judge Sargus transferred his case to the Northern District for joinder with Judge Carr’s case.20

7. Rios, 345 F. Supp. 2d at 836. 

8. Complaint at 5, State ex rel. Yost v. Nat’l Voting Rights Inst., No. 04-CVH-11-827 

(Ohio C.P. Nov. 23, 2007), attached to Notice of Removal, Ohio ex rel. Yost v. Nat’l Voting 

Rights Inst., No. 2:04-cv-1139 (S.D. Ohio Nov. 30, 2004), D.E. 1 [hereinafter Yost Notice of 

Removal]. 

9. Notice of Removal, supra note 8; see Transcript at 2, Yost, No. 2:04-cv-1139 (S.D. Ohio 

Dec. 3, 2004, filed Dec. 15, 2004), D.E. 28 [hereinafter Yost Transcript]. 

10. Docket Sheet, Yost, No. 2:04-cv-1139 (S.D. Ohio Nov. 30, 2004). 

Tim Reagan interviewed Judge Sargus for this report by telephone on August 8, 2012. 

11. Yost Transcript, supra note 9, at 2. 

12. Minutes, Yost, No. 2:04-cv-1139 (S.D. Ohio Dec. 3, 2004), D.E. 19; Yost Transcript, 

supra note 9; see Lane, supra note 6; Mark Niquette, Parties Ask Court to Get Ohio Going on 

Recount, Columbus Dispatch, Dec. 3, 2004, at 4A. 

13. Intervention Motion, Yost, No. 2:04-cv-1139 (S.D. Ohio Dec. 3, 2004), D.E. 16. 

14. Interview with Hon. Edmund A. Sargus, Jr., Aug. 8, 2012. 

15. Order, Yost, No. 2:04-cv-1139 (S.D. Ohio Dec. 3, 2004), D.E. 21; see Mark Niquette, 

Recount OK’d But Will Be Too Late, Columbus Dispatch, Dec. 4, 2004, at 1A. 

16. Yost Transcript, supra note 9, at 83–84. 

17. Id. at 84–88. 

18. Id. at 85. 

19. Id. at 85–86. 

20. Order, Yost, No. 2:04-cv-1139 (S.D. Ohio May 10, 2005), D.E. 58; see Docket Sheet, 

Del. Cty. Prosecuting Att’y v. Nat’l Voting Rights Inst., No. 3:05-cv-7286 (N.D. Ohio July 8, 
Complete Ohio 2004 Presidential Recount 

Federal Judicial Center 10/10/2023 3

After Judge Carr’s ruling in the first case, Ohio’s Republican Party and 

two voters sought to intervene.21 The following June, they withdrew their 

motion because the Republican candidate for President had been inaugurated.22

In 2006, Judge Carr granted the secretary’s motion to dismiss the actions 

on sovereign immunity grounds.23

2005). 

21. Intervention Motion, Rios v. Blackwell, No. 3:04-cv-7724 (N.D. Ohio Nov. 24, 2004), 

D.E. 10. 

22. Order, id. (June 16, 2005), D.E. 18. 

23. Rios v. Blackwell, 433 F. Supp. 2d 848 (N.D. Ohio 2006); see Rios v. Blackwell, 433 F. 

Supp. 2d 851 (N.D. Ohio 2006) (denying a motion to amend the judgment); see also John 

McCarthy, Judge Dismisses Election Lawsuit, Cincinnati Post, Feb. 10, 2006, at A6.