Brunner had been taking the position that those who failed to check the box were indicating that they weren't qualified electors, and therefore not entitled to receive an absentee ballot. The Supreme Court rejected that argument (rightly, in my opinion), holding:
[Ohio election law] does not expressly require that the statement be located a certain distance from the applicant’s signature. Because the statute also does not strictly require that the box next to the qualified-elector statement bemarked, we cannot require it. . . . Moreover, we “must avoid unduly technical interpretations that impede the public policy favoring free, competitive elections.” No vital public purpose or public interest is served by rejecting electors’ applications for absentee ballots because of an unmarked check box next to a qualified-elector statement. There is also no evidence of fraud. As relators persuasively assert, the “only reason to complete the form was to obtain an absentee ballot for the November 4, 2008 election,” and signing it necessarily indicated that the applicant represented, “I am a qualified elector and would like to receive an Absentee Ballot for the November 4, 2008 General Election,” regardless of whether the box next to the statement was marked.
(Slip op., paras. 21-23) (citations omitted). So I'll say it: the Republicans were right, and Jennifer Brunner was wrong.
I'll admit: it was fun watching Brunner stick it to the Ohio GOP. After all, the McCain campaign had created an unnecessarily encumbersome form, so it was the GOP's own fault that not everyone filled it out as intended. Moreover, it's been the GOP that has, over the past eight years, strived to create additional barriers to access to the ballot box. And Brunner's position wasn't going to deny anyone the right to vote: all voters had to do was submit a new absentee ballot request. If they didn't, they'd still be able to vote on Election Day. (These weren't, after all, registration forms.)
But the principles enunciated by the Ohio Supreme Court were exactly right, and I'm glad they reached the decision they did. Our public policy should be geared towards making it easier to vote, not harder. And the GOP (some of whose members believe the Seventeenth Amendment should be repealed) should bear this in mind when open access doesn't necessarily favor their candidates.