updated 8/11/2006 1:32:20 PM ET 2006-08-11T17:32:20

The process of replacing Republican U.S. Rep. Bob Ney on the November ballot has gone according to script - the Democrats' script.

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The next act likely will take place in a courtroom.

Ohio law allows Republicans to run a candidate who lost a race earlier this year or simply appoint her to take Ney's place on the ballot, the state's attorney general said Thursday.

Secretary of State Ken Blackwell sought Attorney General Jim Petro's legal opinion on state Sen. Joy Padgett's eligibility as Republicans consider how to replace Ney, who announced Monday he would not seek re-election amid a congressional lobbying scandal in Washington.

Ohio law generally prevents candidates defeated in a primary from running for office in the fall as an independent or write-in. Padgett ran for lieutenant governor on a ticket this spring with Petro, who lost to Blackwell in the race for the GOP nomination for governor.

However, Petro said Padgett's status in the May primary was not covered by the state's "sore loser" law and she is free to seek Ney's seat.

The Democrats were expecting Petro's ruling and believe Padgett will be appointed rather than nominated through a special primary because Republicans will be making the decisions every step of the way, Ohio Democratic Party spokesman Brian Rothenberg said.

"You'd think they would prefer a monarchy rather than an election," Rothenberg said.

If Padgett is certified for the November ballot, no matter how it's done, the Democrats will take the case to court, Rothenberg said.

Democratic case
The party believes the "sore loser" law applies and Padgett also falls under a provision that says one cannot run for federal and state offices in the same election. That provision was put in the law by the GOP-run Legislature to keep Ted Strickland, the Democratic candidate for governor, from running simultaneously for that office and another term in Congress, something Strickland said he never considered.

Blackwell was asked for guidance by Bob Bennett, the state GOP chairman. Blackwell turned to Petro for an official legal opinion and will pass it along to Bennett, Blackwell spokesman James Lee said.

Democrats likely will go to court once a special election is set up or if Padgett otherwise is certified for the November ballot, Ohio Democratic Party spokesman Brian Rothenberg said.

"The Democrats are proving yet again that theyd rather win elections in court than at the ballot box," Bennett countered in a news release.

Ohio law
The law says a person who loses a primary cannot seek office in the general election if that person got on the primary ballot through nominating petition or by a declaration of intent to become a write-in.

Padgett got on the May ballot by "declaration of candidacy," a term not covered under the law, Petro said.

Ney has been under scrutiny for his ties to Jack Abramoff, a lobbyist at the center of a congressional corruption scandal. The six-term congressman denies wrongdoing and has not been charged.

Bennett wanted to know whether state law precluded the party from appointing a nominee if Ney doesn't file a notice of withdrawal by Aug. 19, or 80 days from the Nov. 7 election. As of Thursday, he had not filed his notice with the Tuscarawas County Board of Elections.

If Ney withdraws before then, Ohio law requires a primary election in his eastern Ohio district to choose a candidate. If he does not, the party has a four-day window to put a replacement candidate on the ballot.

Copyright 2006 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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