900 N.E.2d 982 (Ohio 2008), 2008-2206, State ex rel. Skaggs v. Brunner

Docket Nº:2008-2206.
Citation:900 N.E.2d 982, 120 Ohio St.3d 506, 2008-Ohio-6333
Opinion Judge:PER CURIAM.
Party Name:The STATE ex rel. SKAGGS et al. v. BRUNNER, Secy. of State, et al.
Attorney:Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., Columbus, and Christopher J. Hogan, for relators. Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, Aaron Epstein, Pearl M. Chin, and Michael J. Shuler, Assistant Attorneys General, for respon...
Judge Panel:MOYER, C.J., and LUNDBERG STRATTON, O'CONNOR, O'DONNELL, and CUPP, JJ., concur. PFEIFER and LANZINGER, JJ., concur in part and dissent in part. PFEIFER, J., concurring in part and dissenting in part. LANZINGER, J., concurring in part and dissenting in part.
Case Date:December 05, 2008
Court:Supreme Court of Ohio
 
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Page 982

900 N.E.2d 982 (Ohio 2008)

120 Ohio St.3d 506, 2008-Ohio-6333

The STATE ex rel. SKAGGS et al.

v.

BRUNNER, Secy. of State, et al.

No. 2008-2206.

Supreme Court of Ohio.

December 5, 2008

         Submitted Dec. 2, 2008.

Page 983

          Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., Columbus, and Christopher J. Hogan, for relators.

          Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, Aaron Epstein, Pearl M. Chin, and Michael J. Shuler, Assistant Attorneys General, for respondent Secretary of State Jennifer L. Brunner.

          Ron O'Brien, Franklin County Prosecuting Attorney, and Patrick J. Piccininni and Anthony E. Palmer Jr., Assistant Prosecuting Attorneys, for respondent Franklin County Board of Elections.

          McTigue Law Group, Donald J. McTigue, and Mark A. McGinnis, Columbus, for intervening respondent Ohio Democratic Party.

          Carrie L. Davis and Jeffrey M. Gamso, Cleveland, urging denial of the writ for amicus curiae ACLU of Ohio.

          Meredith Bell-Platts, Atlanta, GA and Neil Bradley, urging denial of the writ for amicus curiae ACLU Voting Rights Project.

         PER CURIAM.

          {¶ 1} This is an original action for a writ of mandamus to (1) compel respondent Secretary of State Jennifer L. Brunner to correct her allegedly erroneous interpretation of R.C. 3505.183(B)(1)(a) and to advise respondent Franklin County Board of Elections that any provisional

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ballot must include both the voter's name and signature in the statutorily required affirmation and that if it does not, it is not eligible to be counted, and (2) compel the secretary of state and the board of elections to reject any provisional ballots as not eligible to be counted if they do not include the name and signature of the voter on the affirmation required by R.C. 3505.183(B)(1)(a). We hold that the secretary of state acts improperly when she instructs all county boards of elections to apply election law according to one standard before an election and instructs one county to apply a conflicting standard after the election and after certification of ballots in other counties is complete. We therefore grant the requested writ of mandamus as it relates to the secretary of state's conflicting directives. We also hold that while the secretary of state did not issue conflicting directives on the issue of whether provisional ballots that contain a name but no signature and those that contain a name and signature in an incorrect place should be counted, her directive that such votes should be counted was unreasonable; we therefore grant the writ of mandamus on those issues as well.

         [120 Ohio St.3d 507]Provisional-Ballot Procedure in Franklin County

         {¶ 2} Under R.C. 3505.181, certain individuals shall be permitted to cast a provisional ballot at an election, including an eligible voter whose name does not appear on the official list of eligible voters for the polling place, an individual who is unable to provide the specified forms of identification, and an individual who previously requested an absentee ballot for that election. See R.C. 3505.181(A).

         {¶ 3} If an individual desires to cast a provisional ballot, the board of elections provides a provisional ballot form that it prepared and a ballot. The board's form, which is designated an " application," specifically requires the voter to print the voter's name and to sign an affirmation. The provisional ballot form is printed on an envelope, which the voter seals after inserting the ballot.

         {¶ 4} Upon receipt of the provisional ballots, the board of elections uses the information provided by the voters to determine whether they are eligible to vote and to have their votes counted. R.C. 3505.183(B)(1) and 3505.181(B)(4). Under R.C. 3505.183(D), " [n]o provisional ballots shall be counted in a particular county until the board determines the eligibility to be counted of all provisional ballots cast in that county * * * for that election." The board of elections thus cannot open and count any provisional ballot until the eligibility of each ballot has been determined. Once a provisional ballot is separated from its envelope, the ballots are then commingled to protect voter secrecy, and it becomes impossible to track the votes of any provisional voter.

         Provisional-Ballot Affirmations: Secretary of State's Initial Instructions

         {¶ 5} This case involves provisional-ballot forms on which the voter failed to provide both the voter's name and signature. On March 31, 2008, Brian Shinn, the assistant general counsel for the secretary of state, responded by e-mail to questions from elections board officials concerning provisional ballots. Shinn advised the board of elections that a provisional ballot could not be counted if the voter signed the affirmation statement but did not print his or her name on the form and that both the voter's name and signature were required in order for the ballot to be counted:

          {¶ 6}" Voter did not print his or her name on column one but signed the provisional ballot affirmation statement. The ballot cannot be counted unless the voter's

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name appears somewhere on the provisional ballot affirmation envelope written by the voter or a poll worker. Name AND signature are required by R.C. 3505.183(B)(1)(a) as stated above."

         {¶ 7} On October 24, 2008, in Northeast Ohio Coalition for the Homeless v. Brunner, S.D.Ohio No. C2-06-896, 2008 WL 4449514, a federal district court issued a consent order adopting Secretary of State Directive No. 2008-101, which [120 Ohio St.3d 508] settled part of that case. The secretary's directive provided guidelines for determining the validity of provisional ballots, including the following:

         {¶ 8}" If ANY of the following apply, board staff responsible for processing provisional ballots shall recommend to the board that a provisional ballot not be counted, and a board of elections shall neither open nor count the provisional ballot:

         {¶ 9} " * * *

         {¶ 10} " The individual did not provide the following:

         {¶ 11} " (1) His or her name and signature as the person who cast the provisional ballot;

         {¶ 12} " (2) A statement that he or she, as the person who cast the provisional ballot, is a registered voter in the jurisdiction in which he or she cast the provisional ballot; and

         {¶ 13} " (3) A statement that he or she, as the person who cast the provisional ballot, is eligible to vote in the particular election in which he or she cast the provisional ballot;

         {¶ 14} " or

         {¶ 15} " (4) His or her name recorded in a written affirmation statement entered either by the individual or at the individual's direction recorded by an election official." (Boldface sic.) Secretary of State Directive No. 2008-101 at 8.

         {¶ 16} On October 28, 2008, pursuant to a court order issued in Northeast Ohio Coalition for the Homeless, 2008 WL 4449514, the secretary of state issued Directive No. 2008-103, which instructed boards of elections that " provisional ballots may not be rejected for reasons that are attributable to poll worker error."

         {¶ 17} Based on the secretary of state's instructions in Secretary of State Directive 2008-101 and her assistant general counsel's March 2008 e-mail instructions, the office of the Franklin County Prosecuting Attorney advised the board of elections that a provisional-ballot voter must provide both the voter's name and signature to be eligible to have the vote counted. The board was prepared to follow these instructions.

         Unofficial Returns and Modified Instructions

         {¶ 18} The board of elections released its initial unofficial returns for the November 4, 2008 election, and those returns showed three relatively close races, including those for the 15th Congressional District between Steve Stivers and Mary Jo Kilroy and for two Ohio House of Representatives districts. Over 27,000 provisional ballots were cast in Franklin County in the November 4 general election, and the outcome of these three races may be determined by these ballots.

          [120 Ohio St.3d 509] {¶ 19} On November 10, Bob DeRose, an attorney for the Kilroy for Congress Committee, sent an e-mail to several people, including the director and deputy director of the Franklin County Board of Elections and the secretary of state's assistant general counsel, challenging the board's position, which was purportedly based on the secretary of state's instructions, that " provisional ballots that either lack a printed name but have a signature

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in the affirmation or have a printed name but lack a signature in the affirmation, will not be counted." DeRose claimed that " any provisional ballot that lacks a printed name but has a signature, or that has a printed name but lacks a signature, or lacks a printed name and has no signature was cast on November 4, 2008 as a result of poll worker error" and that pursuant to Secretary of State Directive 2008-103, these ballots could not be rejected. DeRose further noted that according to their information, approximately 620 of the provisional ballots contain a signature but not a printed name and approximately 30 of the ballots have a printed name but not a signature.

         {¶ 20} In response to DeRose's e-mail, Shinn modified his previous instructions and said that for the most part, these provisional ballots lacking both voters' names or signatures should be counted.

         {¶ 21} By a November 12, 2008 e-mail, Shinn notified the board of elections that the secretary of state agreed with...

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