State ex rel. Painter v. Brunner

[Cite as State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35.]

THE STATE EX REL. PAINTER ET AL. v. BRUNNER, SECY. OF STATE, ET AL.

[Cite as State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35.]

Writ of mandamus issued compelling the secretary of state to rescind directives

2010-80 and 2010-87 and directing the board of elections to review the

disputed provisional ballots with the same procedures that it applied to

provisional ballots in its review of them leading up to its decision on

November 16.

(No. 2010-2205 — Submitted January 6, 2011 — Decided January 7, 2011.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} This is an original action for a writ of mandamus to compel

respondents Secretary of State Jennifer L. Brunner and the Hamilton County

Board of Elections to rescind certain directives and decisions relating to the

procedure for an investigation ordered by a federal court. The investigation is to

determine whether certain disputed provisional ballots that were not counted in

the November 2, 2010 election for judge of the Hamilton County Court of

Common Pleas, Juvenile Division, because they had been cast in the wrong

precinct due to poll-worker error. Because relators have established their

entitlement to the requested extraordinary relief, we grant the writ.

Facts

Election and Initial Count

{¶ 2} On November 2, 2010, an election was held for judge of the

Hamilton County Court of Common Pleas, Juvenile Division, between relator

John Williams and intervening respondent Tracie Hunter. The term for the office

began on January 1, 2011. On election night, unofficial results indicated that

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Williams led Hunter by 2,847 votes. There remained 10,500 provisional ballots

as well as a few other ballots that had not been counted.

{¶ 3} At a November 16 meeting, the board unanimously determined

that 8491 of the provisional ballots were invalid and should not be counted

because they had been cast in the wrong precinct. At the same meeting, the board

decided that 27 provisional ballots cast at the board of elections during the 28-day

period before the November 2 election should be counted because although they

were voted in the wrong precinct, that mistake was caused by poll-worker error.

Board employees stated that for provisional ballots cast at the board, the voter

would ask a board employee to vote, and the employee would give the voter a

ballot, so if the voter received the wrong ballot, poll-worker error would have

been the cause. The board’s investigation into the validity of these ballots at the

meeting was generally limited to an examination of election records, poll books,

help-line records, and provisional-ballot envelopes. The board voted to remake

these ballots so that they would be cast in the proper precincts. After the meeting,

the envelopes containing provisional ballots that the board had determined to be

valid were opened, and the ballots were counted. The board’s final count

indicated that Williams had won the election by 23 votes.

Federal District Court Action

{¶ 4} On November 21, Hunter filed a complaint under Section 1983,

Title 42, U.S.Code, for a temporary restraining order and declaratory and

injunctive relief against the board of elections and its members in the United

States District Court for the Southern District of Ohio, Western Division. Hunter

v. Hamilton Cty. Bd. of Elections, S.D.Ohio (W.D.) No. 1:10-CV-820, 2010 WL

4878957. Hunter claimed that the board and its members had violated her rights

1

Because one voter cast two provisional ballots in the wrong precinct, any references by the

board of elections, courts, or secretary of state to 849 disputed provisional ballots are mistaken.

Therefore, this opinion will refer to the number of disputed provisional ballots as 850 rather than

849.

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to due process and equal protection by refusing to investigate whether poll-worker

error caused some voters to vote at the right polling place but in the wrong

precinct, even while correcting other poll-worker error that caused a voter to vote

in the wrong precinct. She also sought a temporary restraining order and a

preliminary injunction ordering the board and its members to contact provisional

voters whose ballots had been rejected, to investigate whether poll-worker error

contributed to the rejection of provisional ballots, and to count all provisional

ballots where poll-worker error caused the voter to vote in the wrong precinct.

{¶ 5} On November 22, Judge Susan J. Dlott of the federal district court

granted Hunter’s motion for a preliminary injunction “insofar as it seeks an order

commanding [the board and its members] to investigate whether provisional

ballots cast in the correct polling location but wrong precinct were improperly

cast because of poll worker error.” Judge Dlott reasoned that because the board

of elections had, at its November 16 meeting, decided to count 27 provisional

ballots cast at the board but in the wrong precinct due to “clear poll worker error,”

its failure to apply similar scrutiny to other provisional ballots cast at the correct

polling place but in the wrong precinct “raises equal protection concerns.” To

prevent irreparable harm to Hunter, Judge Dlott ordered that the board of

elections “examine all 849 [850] rejected provisional ballots * * * for reasons

attributable to poll worker error.” Judge Dlott further ordered that the board

“immediately begin an investigation into whether poll worker error contributed to

the rejection of the [850] provisional ballots now in issue and include in the

recount of the race for Hamilton County Juvenile Court judge any provisional

ballots improperly cast for reasons attributable to poll worker error.” On

November 23, the board certified the results of the election, with Williams

certified as the winner over Hunter by a margin of 23 votes—114,989 to 114,966.

Appeal in Federal Case

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{¶ 6} Williams appealed the federal district court’s November 22

preliminary injunction, and after initially granting him a stay of the order, the

United States Court of Appeals for the Sixth Circuit dissolved its prior stay and

denied Williams’s motion for stay on December 1. Hunter v. Hamilton Cty. Bd.

of Elections, Sixth Circuit No. 10-4481. The court of appeals expressly stated that

“[t]his disparate treatment — counting the 26 [27] wrong-precinct ballots based

on poll-worker error during early voting without similarly investigating whether

poll-worker error led to any of the 849 [850] ballots being cast in the wrong

precinct on election day — forms the basis for the injunctive order in this case.”

On December 16, a divided panel of the court of appeals denied Williams’s

petition for reconsideration of the denial of his motion for stay. The appeal

remains pending before the court of appeals, which has scheduled oral argument

for March 1.

Secretary of State Instructions

on Poll-Worker Error Regarding Provisional Ballots

{¶ 7} In Northeast Ohio Coalition for the Homeless v. Brunner,

S.D.Ohio (E.D.) No. C2-06-896, the United States District Court for the Southern

District of Ohio, Eastern Division, entered a consent decree in April 2010 in a

case challenging Ohio’s identification and provisional-ballot laws. The plaintiffs

in that case, including the intervening respondents in this case, Northeast Ohio

Coalition for the Homeless and the Ohio Democratic Party, claimed that some of

the plaintiffs’ members lacked the identification required by Ohio law to cast a

regular ballot on election day and that the provisional-ballot laws have been and

will be applied differently and unequally by the state’s 88 boards of elections.

The decree specified that boards of elections may not reject a provisional ballot

cast by a voter who uses only the last four digits of his or her Social Security

number as identification if the voter cast a provisional ballot in the correct polling

place, but—for reasons attributable to poll-worker error—in the wrong precinct.

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{¶ 8} On November 1, 2010, the secretary of state issued Directives

2010-73 and 2010-74 to boards of elections, which incorporated the provisions of

the consent decree. In Directive 2010-73, the secretary of state stated that the

“consent decree provides that an individual voting a provisional ballot using the

last four digits of his/her social security number may not be deprived of the

fundamental right to vote because of a failure of a poll worker to follow Ohio

law,” but that “poll worker error will not be presumed and must be demonstrated

through evidence.”

{¶ 9} In Directive 2010-74, which provides guidelines to boards of

elections for determining the validity of provisional ballots, the secretary of state

reiterated that the boards may not reject a provisional ballot cast by a voter who

uses only the last four digits of his or her Social Security number as identification

because the voter cast the provisional ballot in the wrong precinct but the correct

polling place for reasons attributable to poll-worker error. The secretary of state

noted an example of this type of poll-worker error and suggested an investigative

procedure for the board’s determination of poll-worker error in multiple-precinct

polling places:

{¶ 10} “Another example of poll worker error is where the provisional

ballot affirmation envelope (SOS Form 12-B) contains notations indicating that a

poll worker directed the voter to the wrong precinct at a polling location

containing multiple precincts. Because it is a poll worker’s duty to ensure that the

voter is directed to the correct precinct, these notations provide objective evidence

that the poll worker did not properly or to the fullest extent required carry out his

or her Election Day duties. Similarly, if a board of elections finds multiple

provisional ballots voted in the correct polling location but wrong precinct, it

should, either in writing, with written responses from the poll workers, or at a

public meeting of the board, question the poll workers in that polling location to

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determine whether they followed the board’s instructions for ensuring that voters

were directed to the correct precinct.”

{¶ 11} On November 30, eight days after Judge Dlott issued her

injunctive order in the federal district court case, the secretary of state issued

Directive 2010-79 to the Hamilton County Board of Elections for instructions on

supplemental procedures regarding the provisional ballots. According to the

secretary of state, the directive was prompted by the board’s rejection of over

1,000 provisional ballots cast in the November 2, 2010 general election and the

board’s lack of any “conclusive review or inquiry to demonstrate the existence or

lack thereof of poll worker error in specific provisional ballot situations” in

accordance with the consent decree and Directives 2010-73 and 2010-74. The

secretary of state reiterated her admonition in Directive 2010-73 that “poll worker

error will not be presumed and must be demonstrated through evidence” and her

instructions in Directive 2010-74 for the questioning of poll workers when

multiple provisional ballots are voted in the correct polling place but the wrong

precinct. The directive was limited to the provisional voters specified in the

Northeast Ohio Coalition for the Homeless consent decree – those voters using

only the last four digits of their Social Security numbers as identification to obtain

a provisional ballot.

{¶ 12} Directive 2010-79 further defined poll-worker error as occurring

“when a poll worker acts contrary to or fails to comply with federal or Ohio law

or directive issued by the Secretary of State” and set forth “objective criteria” for

determining poll-worker error.

{¶ 13} On December 8, pursuant to Directive 2010-79, board of elections

staff determined that 12 of the 850 provisional ballots that it had previously

invalidated for being cast in the wrong precinct fell within the category of ballots

in the directive that required the questioning of poll workers.

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{¶ 14} The next day, after becoming aware of the federal court of appeals’

dissolution of its earlier stay of Judge Dlott’s preliminary injunction, the secretary

of state issued Directive 2010-80. In her directive, the secretary of state observed

that although “Judge Dlott’s order only applies to the [850] provisional ballots

cast in the wrong precinct that were not previously counted by the board of

elections,” “the investigation of poll worker error required by Judge Dlott’s order

is broader in scope than Directives 2010-73, 2010-74, and 2010-79 in that, for the

[850] provisional ballots at issue, the determination of poll worker error is not

limited to persons who voted using only the last four digits of their Social

Security number.” The secretary of state held that in conducting the investigation

ordered by the federal district court, the board must identify the precincts and poll

workers for the precincts in which the 850 provisional ballots were cast, contact

each poll worker to determine whether he or she followed the board’s instructions

for ensuring that voters were directed to the correct precinct, question each poll

worker to determine whether he or she followed the applicable law, directives,

and procedures for casting and processing provisional ballots, and examine the

poll books for each precinct and the envelopes for the 850 provisional ballots for

indications of poll-worker error in directing voters to the wrong precinct. The

secretary of state concluded that if the board determined through its investigation

that any of the provisional ballots were cast in the wrong precinct because of poll-

worker error, then those ballots should be counted, as required by Judge Dlott’s

order.

{¶ 15} On December 11, the board of elections voted unanimously to

follow Directive 2010-80 by issuing subpoenas to 2,200 poll workers who had

worked at the November 2 election in the precincts and polling places in which

the 850 provisional ballots that were the subject of the federal district court’s

order were cast. The board had previously deadlocked two-to-two on whether to

send questionnaires to poll workers in lieu of requiring their statements under

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oath. The board also resolved to notify the Supreme Court of Ohio of the

“potential for a vacancy on the Hamilton County Court of Common Pleas,

Juvenile Division on January 1, 2011 if the board has not concluded its

investigation and contact with each poll worker.” The board began issuing

subpoenas to poll workers on December 13.

{¶ 16} On December 14, the secretary of state issued Advisory 2010-08,

which—in addition to the procedures previously set forth in Directives 2010-79

and 2010-80—authorized the board to subpoena poll workers to testify “under

oath and recorded by a court reporter, about instructions the poll workers gave to

voters who cast provisional ballots in the precincts being investigated and other

relevant matters to determine whether poll worker error occurred regarding the

provisional ballots in question” or issue questionnaires to poll workers, who could

complete the questionnaire and return it within seven days in lieu of testifying

pursuant to a subpoena.

{¶ 17} The board’s investigation of poll workers began on December 16

and continued the following day, with a total of 75 poll workers examined during

those days. On the afternoon of the second day of testimony, the secretary of

state issued Directive 2010-87, which ordered the board to accelerate its

investigation and determination. According to the secretary, she was concerned

that at the board’s December 9 and 11 meetings, it had deadlocked on six

different matters concerning the steps to be taken to complete the investigation

ordered by Judge Dlott, which jeopardized compliance with the judge’s order to

conduct the investigation “immediately.” The secretary was also concerned that

there would not be a judge on the Hamilton County Juvenile Court for the open

seat when the term commenced on January 1, 2011.

{¶ 18} Therefore, the secretary of state ordered that the board take the

following steps to complete the investigation ordered by Judge Dlott: (1) identify

and subpoena all poll workers in those precincts where the 850 provisional ballots

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had been cast that had been invalidated for having been voted in the wrong

precinct, with the subpoenas to be issued no later than December 20 and

interviews of poll workers subpoenaed to be completed no later than December

23, (2) issue questionnaires no later than December 20 to all poll workers who

had not yet testified and give them two calendar days to complete and send their

responses to avoid having to testify, (3) review all documents from the pertinent

precincts in which the provisional ballots were cast to determine any indications

of poll-worker error, with the review to be completed no later than December 27,

(4) conduct a board meeting no later than December 28 to review the results of

interviews, questionnaires, and documents to determine whether there was

evidence that poll-worker error caused any of the 850 provisional ballots to be

cast in the wrong precinct, (5) count any of the 850 provisional ballots for which

there was evidence that poll-worker error caused the voter to cast the ballot in the

wrong precinct, (6) submit any tie votes that arose in the investigation to the

secretary of state with supporting arguments and statements within 48 hours of the

vote to permit the matter to be resolved so that the judge who was elected could

timely take office, and (7) submit any currently unresolved tie votes to the

secretary of state by December 21 or meet on that date to revote these matters.

Writ Case

{¶ 19} Three days after the secretary of state issued Directive 2010-87, on

December 20, relators, Williams and John W. Painter, a Hamilton County elector,

filed this action for a writ of mandamus to compel the secretary of state to rescind

Directives 2010-80 and 2010-87 as erroneous interpretations of Ohio law and to

compel the board of elections to rescind its decision to subpoena poll workers to

testify before the board and instead to review the 850 provisional ballots that are

the subject of Judge Dlott’s order with exactly the same procedures and scrutiny

applied to any provisional ballots during the board’s review of them leading up to

its decision on November 16, without assuming that poll-worker error occurred in

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the absence of specific evidence to the contrary. Relators also requested a writ of

prohibition requiring the board of elections to refrain from further contact with

and questioning of poll workers.

{¶ 20} Relators additionally filed a motion for temporary injunctive relief

pending the court’s consideration of their request for mandamus relief, a motion

for expedited consideration, and a motion for expedited issuance of an alternative

writ. We ordered that respondents file expedited responses to relators’ motions.

State ex rel. Painter v. Brunner, 127 Ohio St.3d 1466, 2010-Ohio-6284, 938

N.E.2d 367. After the respondents filed their responses, we granted the motions

of Hunter, the Northeast Ohio Coalition for the Homeless, and the Ohio

Democratic Party to intervene as additional respondents, granted relators’ motion

for temporary injunctive relief, granted an alternative writ on relators’ mandamus

claim, and issued an expedited briefing and evidence schedule. State ex rel.

Painter v. Brunner, 127 Ohio St.3d 463, 2010-Ohio-6461, 940 N.E.2d 978. We

also dismissed relators’ prohibition claim. Id.

{¶ 21} On December 20, because it was impossible for the board to finish

questioning the poll workers in the brief time ordered by the secretary of state in

Directive 2010-87, the board requested, and the secretary granted, a waiver of the

requirement of subpoenaing further poll workers, and questionnaires were sent to

the remaining poll workers. On December 27, Judge Dlott denied a motion of the

intervening respondents to enjoin this writ case.

{¶ 22} On December 28, the board met and concluded its investigation,

which generated a record of the testimony of 77 witnesses and over 800

completed questionnaires. The board unanimously approved the counting of 16

of the disputed 850 provisional ballots and unanimously rejected 565 of them.

That left 269 provisional ballots that had been cast in the right polling location but

in the wrong precinct. The board split two-to-two on whether to count these 269

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provisional ballots. On December 30, the two sides submitted letters to the

secretary of state to break the tie vote.

{¶ 23} The parties submitted their evidence and briefs in this case, and the

Ohio Republican Party filed an amicus curiae brief in support of relators. This

cause is now before this court for our consideration of relators’ mandamus claim.

Legal Analysis

Jurisdiction

{¶ 24} We reject the argument of the secretary of state and the intervening

respondents Northeast Ohio Coalition for the Homeless and Ohio Democratic

Party that we lack subject-matter jurisdiction over relators’ mandamus claim

because it is a disguised action for a declaratory judgment and a prohibitory

injunction. When the issue is whether the secretary of state has misdirected

boards of elections regarding their duties—which is relators’ claim here—we

have consistently rejected this jurisdictional contention. See, generally, State ex

rel. Myles v. Brunner, 120 Ohio St.3d 328, 2008-Ohio-5097, 899 N.E.2d 120, ¶ 9,

and cases cited therein.

Laches

{¶ 25} Hunter and the secretary of state argue that relators’ mandamus

claim is barred by laches. “Laches may bar an action for relief in an election-

related matter if the persons seeking this relief fail to act with the requisite

diligence.” Smith v. Scioto Cty. Bd. of Elections, 123 Ohio St.3d 467, 2009-Ohio-

5866, 918 N.E.2d 131, ¶ 11. “The elements of laches are (1) unreasonable delay

or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3)

knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the

other party.” State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio

St.3d 143, 145, 656 N.E.2d 1277.

{¶ 26} Hunter claims that because relators are indirectly challenging the

suggestion in Secretary of State Directive 2010-74 that boards of elections

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investigate poll-worker error by questioning poll workers if the board finds

multiple provisional ballots voted in the correct polling location but wrong

precinct, which is repeated in Directive 2010-79, and because the first directive

was issued on November 1, relators’ 49-day delay in filing this mandamus action

on December 20 constituted an unreasonable delay. Similarly, the secretary of

state claims that any challenge to Directive 2010-79, which was issued on

November 30, was unreasonably delayed.

{¶ 27} Respondents are wrong. Relators are challenging Directives 2010-

80 and 2010-87, which were issued on December 9 and 17. Directives 2010-74

and 2010-79 were restricted to those situations covered by the federal consent

decree in Northeast Ohio Coalition for the Homeless and are not challenged by

relators in this action. Relators’ 11-day and three-day delays to contest Directives

2010-80 and 2010-87 were not unreasonably long, and because of the abbreviated

statutory time period to generally resolve these disputes, an expedited schedule

for briefing and evidence would have been warranted even if relators had filed

this action on December 17. Although the secretary of state also argues that the

R.C. 3505.32(A) deadline for finishing the board’s canvass would probably expire

before a recount after resolution of the pending litigation, given the delays

attributable to the litigation by both Hunter and Williams, we are persuaded that

this is a deadline that might pass even under the best of circumstances. See State

ex rel. Squire v. Taft (1994), 69 Ohio St.3d 365, 369, 632 N.E.2d 883. No

prejudice to respondents thus occurred.

{¶ 28} Therefore, because under the circumstances, relators acted with the

requisite diligence in instituting this action for extraordinary relief, we reject

Hunter’s claim that this case is barred by laches.

Mandamus

{¶ 29} Relators request a writ of mandamus to compel the secretary of

state to rescind Directives 2010-80 and 2010-87 because they are an erroneous

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interpretation of law and to compel the board of elections to refrain from taking

action to comply with the secretary of state’s instructions. In addition, relators

request a writ of mandamus directing the board of elections to review the disputed

provisional ballots with exactly the same procedures and scrutiny applied to the

board’s review of provisional ballots leading to its November 16 decisions,

without assuming that poll-worker error occurred in the absence of specific

evidence to the contrary.

{¶ 30} “To be entitled to the requested writ, relators must establish a clear

legal right to the requested relief, a corresponding clear legal duty on the part of

the secretary of state [and the board of elections] to provide it, and the lack of an

adequate remedy in the ordinary course of the law.” State ex rel. Heffelfinger v.

Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 13; see also

State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d

1215, ¶ 8. “[I]f the secretary of state ‘has, under the law, misdirected the

members of the boards of elections as to their duties, the matter may be corrected

through the remedy of mandamus.’ ” State ex rel. Colvin v. Brunner, 120 Ohio

St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 20, quoting State ex rel. Melvin v.

Sweeney (1950), 154 Ohio St. 223, 226, 43 O.O. 36, 94 N.E.2d 785.

Notwithstanding the secretary’s argument to the contrary, because of our

recognition of mandamus as the appropriate remedy and the need to resolve this

election dispute in a timely fashion, relators lack an adequate remedy in the

ordinary course of the law. Id. at ¶ 31.

{¶ 31} For the reasons that follow, the secretary of state erred in issuing

the postelection directives and instructions concerning the investigation of

provisional ballots that had previously been invalidated by the board of elections

because they had been cast in the wrong precinct.

Ohio Statutory Law for Provisional Ballots Cast

in the Incorrect Precinct

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{¶ 32} Initially, the United States Constitution “ ‘leaves the conduct of

state elections to the states.’ ” Warf v. Bd. of Elections of Green Cty., Ky. (C.A.6,

2010), 619 F.3d 553, 559, quoting Gamza v. Aguirre (C.A.5, 1980), 619 F.2d 449,

453. For example, the Help America Vote Act, Section 15301 et seq., Title 42,

U.S.Code, “ ‘conspicuously leaves * * * to the States’ the determination of

‘whether a provisional ballot will be counted as a valid ballot.’ ” State ex rel.

Skaggs v. Brunner (C.A.6, 2008), 549 F.3d 468, 477, quoting Sandusky Cty.

Democratic Party v. Blackwell (C.A.6, 2004), 387 F.3d 565, 577.

{¶ 33} “One aspect common to elections in almost every state is that

voters are required to vote in a particular precinct. Indeed, in at least 27 of the

states using a precinct voting system, including Ohio, a voter’s ballot will only be

counted as a valid ballot if it is cast in the correct precinct.” Sandusky Cty.

Democratic Party, 387 F.3d at 568. “The advantages of the precinct system are

significant and numerous: it caps the number of voters attempting to vote in the

same place on election day; it allows each precinct ballot to list all of the votes a

citizen may cast for all pertinent federal, state, and local elections, referenda,

initiatives, and levies; it allows each precinct ballot to list only those votes a

citizen may cast, making ballots less confusing; it makes it easier for election

officials to monitor votes and prevent election fraud; and it generally puts polling

places in closer proximity to voter residences.” Id. at 569.

{¶ 34} “Under Ohio law, then, only ballots cast in the correct precinct

may be counted as valid.” Id. at 578. The plain language of several statutes so

provides. See R.C. 3503.01(A) (every qualified elector “may vote at all elections

in the precinct in which the citizen resides”); R.C. 3505.181(C)(2)(a) (providing

that “if an individual refuses to travel to the polling place for the correct

jurisdiction * * * [a] provisional ballot cast by that individual shall not be opened

or counted” if the “individual is not properly registered in that jurisdiction”) and

(E)(1) (defining “jurisdiction” for purposes of provisional-ballot provisions as

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“the precinct in which a person is a legally qualified elector”); R.C. 3505.182

(requiring each individual casting a provisional ballot to execute a written

affirmation stating that he or she “understand[s] that * * * if the board of elections

determines that” the individual is not a resident of the precinct in which the ballot

was cast, the provisional ballot will not be counted); R.C. 3505.183(B)(4)(a)(ii)

(if board determines that the “individual named on the affirmation is not eligible

to cast a ballot in the precinct or for the election in which the individual cast the

provisional ballot,” “the provisional ballot envelope shall not be opened, and the

ballot shall not be counted”); and R.C. 3599.12(A)(1) (prohibiting any person

from voting or attempting to vote in any election “in a precinct in which that

person is not a legally qualified elector”) and (B) (making a violation of that

section a felony of the fourth degree). In fact, as recently as November 2009, the

secretary of state’s office acknowledged that Ohio law “does not provide any

exception when the ballot is cast in the wrong precinct due to poll worker error.”

{¶ 35} These statutes do not authorize an exception based on poll-worker

error to the requirement that ballots be cast in the proper precinct in order to be

counted. “ ‘[T]he general rule is that unless there is language allowing substantial

compliance, election statutes are mandatory and must be strictly complied with.’ ”

State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St.3d 584, 2010-

Ohio-1176, 925 N.E.2d 601, ¶ 27, quoting Husted, 123 Ohio St.3d 288, 2009-

Ohio-5327, 915 N.E.2d 1215, ¶ 15. We are not authorized to add an exception

that is not contained in the express language of these statutory provisions. State

ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333,

881 N.E.2d 1214, ¶ 39 (“the statute contains no exception, and we cannot add one

to its express language”); cf. State ex rel. Reese v. Cuyahoga Cty. Bd. of

Elections, 115 Ohio St.3d 126, 2007-Ohio-4588, 873 N.E.2d 1251, ¶ 31, and

cases cited therein (mistaken or erroneous statement or advice by board of

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elections did not estop board from acting contrary to statement by invalidating

petition).

{¶ 36} Therefore, under Ohio statutory law, the secretary of state’s

instructions to the board of elections, which required an investigation into whether

poll-worker error caused any of the 850 provisional ballots to be cast in the wrong

precinct, were erroneous because there is no exception to the statutory

requirement that provisional ballots be cast in the voter’s correct precinct.

Federal Consent Decree and Injunction

{¶ 37} Nevertheless, the secretary of state and the intervening respondents

assert that the secretary’s postelection instructions were warranted because of the

federal consent decree in Northeast Ohio Coalition for the Homeless (Apr. 19,

2010), S.D. Ohio (E.D.) No. C2-06-896, as well as Judge Dlott’s November 22

injunctive order in Hunter (Nov. 22, 2010), S.D. Ohio (W.D.) No. 1:10CV820,

2010 WL 4878957. As the state’s chief election officer pursuant to R.C. 3501.04,

the secretary of state has many election-related duties, including the duties to

“[i]ssue instructions by directives and advisories * * * to members of the boards

as to the proper methods of conducting elections,” “[p]repare rules and

instructions for the conduct of elections,” and “[c]ompel the observance by

election officers in the several counties of the requirements of the election laws.”

R.C. 3501.05(B), (C), and (M). There is nothing in these statutes that restricts the

secretary of state’s instructions to boards of elections to state election law.

Therefore, the secretary of state also has a duty to instruct election officials on the

applicable requirements of federal election law as well as federal court orders that

are applicable to them.

{¶ 38} The federal district court’s consent decree in Northeast Ohio

Coalition for the Homeless (Apr. 19, 2010), S.D. Ohio (E.D.) No. C2-06-896,

however, does not justify the secretary of state’s issuance of Directives 2010-80

and 2010-87 and Advisory 2010-08 to require the board of elections to contact

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poll workers for each of the disputed provisional ballots that were cast in the

wrong precinct and to question them to determine whether poll-worker error

caused the ballots to be cast in the improper precinct. The decree specifies only

that boards of elections may not reject a provisional ballot “cast by a voter, who

uses only the last four digits of his or her social security number as identification”

for any of several reasons, including that the “voter cast his or her provisional

ballot in the wrong precinct, but in the correct polling place, for reasons

attributable to poll worker error.” (Emphasis added.) Id. at 4. The secretary of

state’s postelection directives and advisory applied more expansively to the 850

provisional ballots cast in the wrong precinct.

{¶ 39} Notably, the secretary of state’s preelection Directive 2010-74,

which was issued on November 1, 2010, and postelection Directive 2010-79,

issued on November 30, 2010, both of which suggested that the board question

poll workers to determine whether poll-worker error caused provisional ballots in

multiple-precinct polling locations to be cast in the wrong precinct, were

accordingly limited to provisional ballots cast by voters who used only the last

four digits of their Social Security numbers as identification.

{¶ 40} Nor did the federal district court’s November 22, 2010 injunctive

order in Hunter, S.D. Ohio No. 1:10CV820, 2010 WL 4878957, justify the

secretary of state’s postelection instructions directing the board of elections to

question poll workers concerning the 850 provisional ballots cast in the wrong

precincts. The court’s order was premised on the fact that the board of elections

had carved out an exception from the general Ohio rule that provisional ballots

not be counted if they were cast in the wrong precinct, apart from the exception

provided by the federal consent decree in Northeast Ohio Coalition for the

Homeless (Apr. 19, 2010), S.D. Ohio (E.D.) No. C2-06-896, for voters using only

the last four digits of their Social Security number as identification who cast

provisional ballots in the wrong precinct due to poll-worker error. Hunter, 2010

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WL 4878957, at *4. The district court–as well as the court of appeals in its

decision denying Williams’s motion for stay–relied on the board’s determination

that 27 provisional ballots cast in the wrong precinct at the board of elections

should be counted because the evidence established that the improper casting of

these votes must have been attributable to poll-worker error. Id. But there is no

indication that any poll workers had been contacted and questioned by the board

when it made its November 16 decision to count these provisional ballots, so any

equal-protection claim did not require an investigation–it merely required the

same inquiry that the board had engaged in for its initial determination of the

validity of the provisional ballots.

{¶ 41} In fact, insofar as the secretary of state’s postelection instructions

conflict with her preelection instructions regarding the validity of provisional

ballots cast at improper precincts, they are erroneous. Cf. State ex rel. Skaggs v.

Brunner, 120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, ¶ 58 (“By

changing her instructions for one county but not for others after the election at the

request of a candidate, the secretary of state failed to ensure that the same rules

would be applied to each provisional voter of every county in the state”). That is,

in attempting to resolve equal-protection concerns implicated by the board’s

counting 27 provisional ballots cast in the wrong precinct at the board, the

secretary of state may have caused much greater equal-protection concerns. See

Bush v. Gore (2000), 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (“the

right to vote as the legislature has prescribed is fundamental; and one source of its

fundamental nature lies in the equal weight accorded to each vote and the equal

dignity owed to each voter”); League of Women Voters of Ohio v. Brunner

(C.A.6, 2008), 548 F.3d 463, 476 (“[t]he right to vote includes the right to have

one’s vote counted on equal terms with others”).

{¶ 42} And if the secretary’s directives requiring the questioning of poll

workers for provisional ballots cast in the wrong precinct were extended to the

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entire state, it is doubtful that the time limits for resolving elections would ever be

met. See R.C. 3505.183(E)(2) (board of elections shall examine eligibility of

persons who cast provisional ballots by, at the latest, the 11th day after election);

R.C. 3505.32(A) (board of elections shall complete canvass of election returns not

later than the 21st day after the election, and canvass shall be deemed final 81

days after the election).

{¶ 43} The secretary of state and boards of elections have general

investigative authority over election irregularities, but this power is generally

limited to reporting possible violations to the attorney general or prosecuting

attorney for prosecution. See R.C. 3501.05(N)(1) and 3501.11(J). In this case,

where the federal court orders did not require the specific type of investigation

directed by the secretary of state and conducted by the board of elections and the

investigation was plainly otherwise violative of Ohio law, we hold that the

secretary and the board erred in so acting.2

{¶ 44} Therefore, the secretary of state’s postelection instructions to the

board of elections are not justified by either federal court decision.

Federalism and Collateral Attack

{¶ 45} Respondents argue that the requested writ of mandamus should be

denied because of the Supremacy Clause and the collateral-attack doctrine.

{¶ 46} Clause 2, Article VI of the United States Constitution provides that

the “Constitution, and the Laws of the United States which shall be made in

Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in

2

The secretary of state, however, by issuing Directive 2010-87, did not act in clear disregard of

R.C. 3501.11(X) by truncating the 14-day period to a two-day period for a board of elections to

submit a tie vote to the secretary for resolution. See R.C. 3501.11(X) (“In all cases of a tie vote or

a disagreement in the board, if no decision can be arrived at, the director or chairperson shall

submit the matter in controversy, not later than fourteen days after the tie vote or the disagreement,

to the secretary of state, who shall summarily decide the question, and the secretary of state’s

decision shall be final”). As the secretary of state observes, there may be circumstances that

warrant the secretary’s instructing board members that any statutory limits be shortened to further

expedite matters in election situations.

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every State shall be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.” “It has long been settled that the

Supremacy Clause binds state courts to decisions of the United States Supreme

Court on questions of federal statutory and constitutional law.” State v. Burnett

(2001), 93 Ohio St.3d 419, 422, 755 N.E.2d 857. But as for decisions of lower

federal courts, this court has observed, “We are reluctant to abandon our role in

the system of federalism created by the United States Constitution until the United

States Supreme Court directs us otherwise.” Id. at 424. Thus, “we are not bound

by rulings on federal statutory or constitutional law made by a federal court other

than the United States Supreme Court. We will, however, accord those decisions

some persuasive weight.” Id; cf. Skaggs, 549 F.3d at 477, quoting Planned

Parenthood of Cincinnati Region v. Strickland (C.A.6, 2008), 531 F.3d 406, 410

(“To allow federal courts free rein in determining whether and under what

circumstances a partially deficient provisional ballot will count–under state law–

would deprive state courts of their long-established role as the ‘final arbiter on

matters of state law’ ”).

{¶ 47} Moreover, collateral or indirect attacks on judgments are

disfavored. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire

Marshal, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 22. A

collateral attack is “ ‘an attempt to defeat the operation of a judgment, in a

proceeding where some new right derived from or through the judgment is

involved.’ ” Fawn Lake Apts. v. Cuyahoga Cty. Bd. of Revision (1999), 85 Ohio

St.3d 609, 611, 710 N.E.2d 681, quoting Kingsborough v. Tousley (1897), 56

Ohio St. 450, 458, 47 N.E. 541.

{¶ 48} Neither the Supremacy Clause nor the collateral-attack doctrine

prevents the requested extraordinary relief here. As noted previously, the two

federal court orders do not resolve the issues raised here. The Northeast Ohio

Coalition for the Homeless consent decree did not require the investigative

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January Term, 2011

procedures specified by the secretary of state for ballots cast in the wrong precinct

that were not covered by the decree, and while the Hunter injunction ordered an

investigation and an examination of the disputed provisional ballots, it did not

require the specific investigation ordered by the secretary of state and conducted

by the board of elections. As Judge Dlott herself recognized in her order in

Hunter denying the motion of the intervening respondents in this case to enjoin

this state-court action, “[i]t is within the province of the Ohio Supreme Court to

determine whether Secretary of State Jennifer L. Brunner’s directives comply

with state law governing election procedures, and this Court will not enjoin the

Ohio Supreme Court from doing so.”

Presumption against Poll-Worker Error

{¶ 49} Relators also request a writ of mandamus to compel the board of

elections to review the disputed provisional ballots with the same procedures it

used in its review of the provisional ballots in its initial November 16

determination, without assuming that poll-worker error occurred in the absence of

specific evidence to the contrary. This request has merit. As noted previously,

under Ohio law, these ballots should not be counted, so no investigation would

normally be warranted. And Judge Dlott’s injunctive order did not require the

investigation ordered by the secretary of state and conducted by the board of

elections here. At best, any equal-protection claim would have merely required

the same examination that the board conducted in concluding — incorrectly under

Ohio law — that 27 provisional ballots cast in the wrong precinct at the board of

elections during the early-voting period should be counted, even though they were

cast in the wrong precinct due to poll-worker error. That review was limited to an

examination of the poll books, help-line records, and provisional-ballot envelopes

and emanated from the uncontroverted evidence that these ballots were cast in the

wrong precinct due to poll-worker error.

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SUPREME COURT OF OHIO

{¶ 50} Moreover, as we explicitly held in another case challenging the

secretary of state’s instructions concerning the validity of disputed provisional

ballots, see Skaggs, 120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, at ¶

51, quoting State ex rel. Speeth v. Carney (1955), 163 Ohio St. 159, 186, 56 O.O.

194, 126 N.E.2d 449, election officials err in presuming poll-worker error because

“ ‘[i]n the absence of evidence to the contrary, public officers, administrative

officers and public authorities, within the limits of the jurisdiction conferred upon

them by law, will be presumed to have properly performed their duties in a

regular and lawful manner and not to have acted illegally or unlawfully.’ ”

{¶ 51} Insofar as two of the board members appear to presume poll-

worker error in connection with the 269 provisional ballots cast in the wrong

precinct but correct location in a multiple-precinct polling place, this is incorrect.

Neither they nor respondents could rely on evidence obtained from the improper

investigation ordered by the secretary of state and conducted by the board.

Finally, the board members erred in relying on a statistical analysis comparable to

the one we rejected in State ex rel. Yiamouyiannis v. Taft (1992), 65 Ohio St.3d

205, 208-209, 602 N.E.2d 644, to support their claim that poll-worker error

occurred.

Conclusion

{¶ 52} Based on the foregoing, relators have established their entitlement

to the requested extraordinary relief in mandamus. The secretary of state’s

postelection instructions to the board of elections were not justified by Ohio law

or the pertinent federal court orders. Therefore, we grant relators a writ of

mandamus to compel the secretary of state to rescind Directives 2010-80 and

2010-87 and to compel the board of elections to rescind its decisions made

pursuant to those directives and to instead review the 850 provisional ballots that

are the subject of Judge Dlott’s order and are not subject to the consent decree in

Northeast Ohio Coalition for the Homeless, with exactly the same procedures and

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January Term, 2011

scrutiny applied to any provisional ballots during the board’s review of them

leading up to its decision on November 16, without assuming that poll-worker

error occurred in the absence of specific evidence to the contrary.

Writ granted.

O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,

and CUPP, JJ., concur.

PFEIFER and MCGEE BROWN, JJ., dissent.

__________________

PFEIFER, J., dissenting.

{¶ 53} I dissent from today’s decision but not on the merits. Instead, my

concern is the unnecessary expediting of this case. The rush to judgment was

started by the secretary of state in a fairly transparent attempt to play a role in the

resolution of the election before her successor takes office on January 10. Now,

this court is along for the ride.

{¶ 54} The two-judge juvenile court remains in good hands in Cincinnati:

Judge Karla Grady remains on the bench, and former Chief Justice Eric Brown

assigned retired juvenile judge Thomas Louden to preside as the second juvenile

judge through February while this election remains unresolved. Thus, we have

time to make a decision. This court would benefit from ordering relators to file a

reply brief in this case because some of the defenses, e.g., laches, lack of

jurisdiction, the Supremacy Clause, and the collateral-attack doctrine, raised by

respondents in their briefs have arguably not been sufficiently addressed by

relators in their merit brief. I would order relators to file a reply brief by January

13, 2011, so that all the pertinent issues have been addressed. And in a case that

may involve the profound unfairness of votes not being counted because

registered voters were directed by poll workers to the wrong table in a multiple-

precinct polling place, we should make the most informed decision possible.

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{¶ 55} Moreover, although the secretary of state is in her final days of

office, she does have a successor. And it is possible that this writ case will be

rendered moot if her successor, who takes office on Monday, January 10, rescinds

the challenged directives. There is thus no need to resolve this case before the

secretary of state elect has had the opportunity to give his opinion on this matter.

By acting more quickly than is necessary under these circumstances, we are

acting contrary to “our general rules precluding advisory opinions and extolling

judicial restraint.” See State ex rel. LetOhioVote.Org v. Brunner, 125 Ohio St.3d

420, 2010-Ohio-1895, 928 N.E.2d 1066, ¶ 22. Therefore, I dissent.

__________________

Taft, Stettinius & Hollister, L.L.P., R. Joseph Parker, W. Stuart Dornette,

and John B. Nalbandian, for relators.

Richard Cordray, Attorney General, and Richard N. Coglianese, Erick D.

Gale, and Michael J. Schuler, Assistant Attorneys General, for respondent

Secretary of State Jennifer Brunner.

Gerhardstein & Branch Co., L.P.A., Jennifer L. Branch, and Alphonse A.

Gerhardstein, for intervening respondent Tracie Hunter.

Porter, Wright, Morris & Arthur, L.L.P., Caroline H. Gentry, Sheena L.

Little, and Brad Hughes; The Chandra Law Firm, L.L.C., and Subodh Chandra;

and McTigue Law Group, Donald J. McTigue, and Mark A. McGinnis, for

intervening respondents Northeast Ohio Coalition for the Homeless and Ohio

Democratic Party.

Bricker & Eckler, L.L.P., Anne Marie Sferra, James P. Schuck, and

Christopher N. Slagle, urging granting of the writ for amicus curiae, Ohio

Republican Party.

______________________

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