Ohio Democratic Party v. LaRose

• Decision Date: 02 October 2020
• Docket Number: No. 20AP-439,No. 20AP-432,20AP-432
• Parties: OHIO DEMOCRATIC PARTY et al., Plaintiffs-Appellees, v. Frank LAROSE, in his official capacity as Ohio Secretary of State, Defendant-Appellant. Ohio Democratic Party et al., Plaintiffs-Appellees, v. Frank LaRose, in his official capacity as Ohio Secretary of State, Defendant-Appellee, [The Ohio Republican Party, Intervenor-Appellant].
• Court: Ohio Court of Appeals

159 N.E.3d 1241

OHIO DEMOCRATIC PARTY et al., Plaintiffs-Appellees,

v.Frank LAROSE, in his official capacity as Ohio Secretary of State, Defendant-Appellant.

Ohio Democratic Party et al., Plaintiffs-Appellees,

v.Frank LaRose, in his official capacity as Ohio Secretary of State, Defendant-Appellee,

[The Ohio Republican Party, Intervenor-Appellant].

No. 20AP-432

No. 20AP-439

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on October 2, 2020

DECISION

LUPER SCHUSTER, J.

{¶ 1} The Ohio Democratic Party and Lewis Goldfarb challenge the Secretary of State's interpretation of R.C. 3509.05 and seek to enjoin Directive 2020-16. We agree with the trial court that the Secretary's interpretation of R.C. 3509.05 is not reasonable and that the statute neither prescribes nor prohibits ballot drop boxes at locations other than the boards of elections. However, unlike the trial court, we do not find injunctive relief against the directive to be appropriate. The directive does not violate R.C. 3509.05, and, in this case, appellees do not raise any other statutory or constitutional challenges to the directive. As will be explained more fully below, we find that while the Secretary was not statutorily required to limit the location of drop boxes as he did in Directive 2020-16, he was also not statutorily required to allow additional drop boxes. If, as appellees argue, the Secretary wants to permit additional drop boxes, he has the authority to do so and nothing in this decision prohibits him from rescinding Directive 2020-16 and issuing a new directive accordingly.

I. Facts and Procedural History

{¶ 2} Defendant-appellant, Frank LaRose, in his official capacity as Ohio Secretary of State, appeals from (1) an entry of the Franklin County Court of Common Pleas issuing a declaratory judgment as requested by plaintiffs-appellees, Ohio Democratic Party ("ODP") and Lewis Goldfarb, a qualified elector of Franklin County and (2) an entry of the Franklin County Court of Common Pleas granting a preliminary injunction enjoining the enforcement of the Secretary of State's Directive 2020-16 related to the use of ballot drop boxes by county boards of elections. Intervenor-appellant, the Ohio Republican Party ("ORP"), also appeals from the declaratory judgment and the granting of the preliminary injunction. In response to the global coronavirus pandemic, the Ohio General Assembly passed a COVID-19 relief bill, 2020 Am.Sub.H.B. No. 197, containing, among many other measures, a temporary provision for the 2020 primary election requiring each county board of elections to install and use a drop box to facilitate the return of absentee ballots. 2020 Am.Sub.H.B. No. 197, Section 32(C); Section (E)(1). On August 12, 2020, in the lead-up to the 2020 general election, the Secretary issued Directive 2020-16 instructing all Ohio county boards of elections to continue using the drop boxes that were installed for the primary. Specifically, the directive stated:

Boards of elections must continue to use the drop box that was installed outside each board of elections pursuant to H.B. 197 for the 2020 Primary Election for the November 3, 2020 election cycle for the return of absentee ballot applications and ballots. Beginning September 1, 2020, boards of elections must begin to provide voters with 24/7 access to the drop box, which will of course, already be securely monitored. Boards of elections are prohibited from installing a drop box at any other location other than the board of elections.

(No. 20AP-432, Directive 2020-16.)

{¶ 3} On August 25, 2020, ODP and Goldfarb filed a complaint seeking declaratory judgment and temporary and permanent injunctive relief enjoining the enforcement of the Secretary's instruction in Directive 2020-16 that prohibits county boards of elections from installing additional absentee ballot drop boxes at locations other than the county elections boards' offices. Specifically, appellees sought a declaratory judgment that:

Declare[s] that Ohio law, including R.C. 3509.05, does not limit the number or locations of secure drop boxes that the county boards of elections may provide to the voters of their respective counties, and does not limit Defendant Secretary from instructing boards of elections that they may have multiple drop boxes at alternate locations * * *.

(No. 20AP-432, Aug. 25, 2020 Compl. at 14.) Additionally, ODP and Goldfarb filed a motion for temporary restraining order and preliminary injunction enjoining enforcement of the portion of Directive 2020-16 prohibiting county boards of elections from installing additional drop boxes.

{¶ 4} On August 31, 2020, ORP, Donald J. Trump for President, Inc., the Republican National Committee, and the National Republican Congressional Committee filed a joint motion to intervene as party defendants. Following a status conference, the trial court granted intervention to ORP but denied intervention as to Donald J. Trump for President, Inc., the Republican National Committee, and the National Republican Congressional Committee, finding ORP's participation would fully protect any interest in the matters those entities may have. In that same journal entry, the trial court denied appellees' request for a temporary restraining order and scheduled a hearing on appellees' motion for a preliminary injunction for September 11, 2020. Prior to the hearing, the trial court granted leave to various municipalities and county commissioners to file amici briefs in support of appellees' motion for preliminary injunction.

{¶ 5} On September 8, 2020, the Secretary filed a combined motion to dismiss and memorandum in opposition to preliminary injunctive relief. In the motion to dismiss, the Secretary argued that because appellees sought a declaration regarding what non-party county boards of elections may do, their request was for an advisory opinion, not a claim for declaratory relief. Thus, the Secretary argued appellees failed to state a claim for relief and that appellees lacked standing. ORP similarly filed a motion for judgment on the pleadings, asserting appellees lacked standing to seek a declaratory judgment.

{¶ 6} Appellees sought to compel testimony from the Secretary of State at the preliminary injunction hearing. In response to the subpoena, the Secretary filed a September 8, 2020 motion to quash stating that, in lieu of appearing to testify, he was willing to stipulate to the following:

1. The Secretary of State interprets R.C. 3509.05 and other provisions of Ohio law as permitting a voter to return their ballot only by mail or by delivering it to the director [of their board of elections]. As the director is located at the board of elections, there can be a drop box only at the board of elections.

2. As a policy preference, the Secretary supports the county boards of election installing additional secure drop boxes, but only pursuant to bipartisan standards prescribed in law by the General Assembly that would apply uniformly in every Ohio county and that are consistent with the Equal Protection clause.

(No. 20AP-432, Sept. 8, 2020 Mot. to Quash at 5.) Ultimately, the Secretary did not testify at the hearing and these proposed stipulations were not agreed to by the appellees, but the Secretary referred to these proposed stipulations again in a post-judgment reply to a motion to show cause.

{¶ 7} The trial court conducted a hearing on the preliminary injunction on September 11, 2020 during which Goldfarb and Gregory Beswick, the executive director of ODP, provided testimony and the parties submitted numerous exhibits and affidavits of various election officials from around the state. Following the hearing, the parties submitted post-hearing briefs. On September 15, 2020, the trial court issued an opinion determining that the word "deliver" as used in R.C. 3509.05(A) is ambiguous. (No. 20AP-432, Sept. 15, 2020 Opinion at 29.) The trial court thus granted a declaratory judgment that:

* * * R.C. 3509.05(A) permits county boards of election to obtain and use ballot drop boxes consistent with voting security arrangements specified by the Secretary. The court further finds that the Secretary had legal authority to require at least one box to be used in each county for the 2020 general election, as set forth in Directive 2020-16. * * *.

The evidence offers no explanation for the Secretary's separate determination in Directive 2020-16 that "Boards of elections are prohibited from installing a drop box at any other location other [sic] than the board of elections." As a result, the court finds that in the present context of the 2020 general election this restriction is arbitrary and unreasonable. This restriction blocks individual county boards of elections from even considering the use of more than one drop box, or placing boxes at locations separate from board offices. Given the ambiguity of R.C. 3509.05(A), this is not required by law. Instead, every board of elections is legally permitted to consider enhancing safe and convenient delivery of absentee ballots, and may tailor ballot drop box locations or conceivably other secure options to the needs of their individual county.

(Opinion at 29.) The trial court further reasoned that although the Secretary of State has broad discretion to issue directives to local boards of elections, "his actions must be reasonable to be legally enforceable. Wholly arbitrary rules are entitled to no deference." (Opinion at 29.)

{¶ 8} The next day, on September 16, 2020, the trial court issued an entry granting appellees' motion for a preliminary injunction and granting a stay of the preliminary injunction pending appeal. The trial court reasoned that because it had found in its opinion on the declaratory judgment that allowing boards of elections to use more than one ballot drop box per county is lawful, the Secretary's Directive 2020-16 was therefore "legally unsupportable" as it prohibited individual boards of elections from using more than one drop box. (No....