941 N.E.2d 782 (Ohio 2011), 2010-2205, State ex rel. Painter v. Brunner

Docket Nº:2010-2205.
Citation:941 N.E.2d 782, 128 Ohio St.3d 17, 2011-Ohio-35
Opinion Judge:PER CURIAM.
Party Name:The STATE ex rel. PAINTER et al. v. BRUNNER.
Attorney:Taft, Stettinius & Hollister, L.L.P., R. Joseph Parker, W. Stuart Dornette, and John B. Nalbandian, Cincinnati, 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 Jennife...
Judge Panel:O'CONNOR, C.J., and LUNDBERG STRATTON, O'DONNELL, LANZINGER, and CUPP, JJ., concur. PFEIFER and McGEE BROWN, JJ., dissent. PFEIFER, J., dissenting.
Case Date:January 07, 2011
Court:Supreme Court of Ohio
 
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941 N.E.2d 782 (Ohio 2011)

128 Ohio St.3d 17, 2011-Ohio-35

The STATE ex rel. PAINTER et al.

v.

BRUNNER.

No. 2010-2205.

Supreme Court of Ohio.

January 7, 2011

Submitted Jan. 6, 2011.

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Taft, Stettinius & Hollister, L.L.P., R. Joseph Parker, W. Stuart Dornette, and John B. Nalbandian, Cincinnati, 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, Cincinnati, for intervening respondent Tracie Hunter.

Porter, Wright, Morris & Arthur, L.L.P., Caroline H. Gentry, Dayton, Sheena L. Little, Columbus, and Brad Hughes; The Chandra Law Firm, L.L.C., and Subodh Chandra, Cleveland; and McTigue Law Group, Donald J. McTigue, and Mark A. McGinnis, Columbus, 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, Columbus, urging granting of the writ for amicus curiae, Ohio Republican Party.

PER CURIAM.

[128 Ohio St.3d 18] {¶ 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 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.

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{¶ 3} At a November 16 meeting, the board unanimously determined that 849 1 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 [128 Ohio St.3d 19] 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 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

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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.

[128 Ohio St.3d 20] Appeal in Federal Case

{¶ 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.

{¶ 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 [128 Ohio St.3d 21] 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

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for the board's determination of poll-worker error in multiple-precinct polling places:

{¶ 10} " Another example of poll worker...

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