Ohio ex rel. Skaggs v. Brunner

• Decision Date: 25 November 2008
• Docket Number: No. 08-4585.,08-4585.
• Parties: State of OHIO, ex rel. Dana SKAGGS, et al., Relators-Appellants, v. Jennifer L. BRUNNER, Secretary of the State of Ohio, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

549 F.3d 468

State of OHIO, ex rel. Dana SKAGGS, et al., Relators-Appellants, v. Jennifer L. BRUNNER, Secretary of the State of Ohio, et al., Defendants-Appellees.

No. 08-4585.

United States Court of Appeals, Sixth Circuit.

Submitted: November 20, 2008.

Decided and Filed: November 25, 2008.

ON BRIEF:

John Wolcott Zeiger, Marion H. Little, Jr., Christopher J. Hogan, Zeiger, Tigges & Little, Columbus, Ohio, for Appellants. Richard N. Coglianese, Aaron David Epstein, Damian W. Sikora, Office of the Ohio Attorney General, Columbus, Ohio, Patrick J. Piccininni, Anthony E. Palmer, Jr., Prosecuting Attorney's Office for the County of Franklin, Columbus, Ohio, Caroline H. Gentry, Porter, Wright, Morris & Arthur, Dayton, Ohio, for Appellees. Meredith E.B. Bell-Platts, American Civil Liberties Union Foundation, Atlanta, Georgia, Carrie L. Davis, American Civil Liberties Union of Ohio, Cleveland, Ohio, Donald J. McTigue, Mark A. McGinnis, Law Office, Law Office, Columbus, Ohio, for Amici Curiae.

Before: KENNEDY, SUTTON, and McKEAGUE, Circuit Judges.

OPINION

PER CURIAM.

On November 4, 2008, more than 27,000 voters in Franklin County cast provisional ballots in the various federal, state and local election contests. In reviewing those ballots, the Franklin County Board of Elections determined that roughly 1,000 of them have a potential defect: They do not contain the printed name or signature of the voter. That omission implicates two questions of state law. First, does Ohio law require a provisional ballot to include the name and signature of the voter in order to be eligible to be counted? See Ohio Rev.Code Ann. § 3505.183(B)(1). Second, if Ohio law contains such a requirement, should a ballot containing such a defect be counted anyway given Ohio's exemption for mistakes attributable to poll-worker error?

The Ohio Secretary of State, Jennifer Brunner, has taken the position that the 1,000 ballots comply with Ohio law. Claiming that Ohio law prevents some or all of these ballots from being counted, two Franklin County voters filed this action against the Secretary of State and the Board in the Ohio Supreme Court. The Secretary of State responded to the lawsuit by removing it to federal court. The claimants parried this thrust by filing a motion to remand the case back to the Ohio Supreme Court. The district court kept the case, holding that it had authority to resolve the dispute and that, under Ohio law, the ballots should be counted.

Before we can consider the district court's decision on the merits—do these ballots comply with Ohio law?—we must ask ourselves whether the federal courts have the power to resolve this dispute. The short answer is that we do not. In bringing this claim, the claimants relied solely on state law and disclaimed any reliance on federal law, stating that "[n]o federal law claims are asserted." Compl. ¶ 1. And in their request for relief, the claimants sought a writ of mandamus compelling the Secretary to comply with state law—a form of relief that only a state court, not a federal court, has the power to impose. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Combs v. Wilkinson, 315 F.3d 548, 560 (6th Cir. 2002). That normally would end the matter. The federal and state courts traditionally allow claimants to be the masters of their own fate, permitting them to file a lawsuit in whichever court system they prefer and thus permitting them to choose for themselves which body will decide their case—so long as the court in which the case is filed has jurisdiction over their claim.

There are, however, at least two limits on a party's authority to pick its forum. If a party opts to file a complaint in the state court system, the defendant may remove it to federal court if it is one that originally could have been brought there—either because the parties are diverse or because the complaint seeks relief on the basis of federal law. And if a party files a complaint in federal court, the court on its own initiative or on the initiative of one of the parties may certify a pressing question of state law to the state supreme court. See, e.g., R. Prac. Sup.Ct. Ohio XVIII § 1; Planned Parenthood of Cincinnati Region v. Strickland, 531 F.3d 406, 410 (6th Cir. 2008).

The claimants opted to file this case in state court, and no basis for removing the case to federal court exists. The diversity exception does not apply because, as will generally be the case, the parties to this election dispute all reside in the same State. And the federal-question exception does not apply because the claimants did not rely on federal law in bringing their claim and indeed expressly disclaimed relying on federal law. In her notice of removal, the Secretary claimed jurisdiction based on two consent decrees previously entered by the district court regarding provisional-voting issues. That the Secretary of State and the plaintiffs in another lawsuit have entered into a consent decree in federal court adopting their agreement about the meaning of these provisions does not change matters. A consent decree binds only the parties to the settlement agreement, not the rest of the world or for that matter today's claimants (who had no say in what the consent decree said). Otherwise, state officials and a willing claimant could enter into federal-court consent decrees embracing their preferred interpretation of a state law and forever prevent the final interpreter of state law—the state supreme court—from deciding what it means. That is not how our federal system typically decides what a state law means.

Even if the Secretary had authority to remove this action to federal court, we should point out, we likely would have sought the Ohio Supreme Court's input on the meaning of these state-law provisions—by certifying the questions to the Court to consider in the first instance. No federal court has the final say on what Ohio law means. Even a decision by the highest federal court, the United States Supreme Court, about the meaning of an Ohio law has no more binding authority on the Ohio Supreme Court than a decision of the Michigan Supreme Court or for that matter any other court. The threshold question in this case is what Ohio law means. And the stakes of this dispute— one federal and two state legislative races—make it quite sensible, even aside from the intricacies of the removal doctrine, to find out what the ultimate arbiter of Ohio law has to say about the matter before, rather than after, the provisional-vote-counting process has been irreversibly conducted during this election season. For these reasons and those elaborated below, we vacate the district court's decision and remand the case to the Ohio Supreme Court to resolve the claimants' state-law causes of action.

I.

When individuals go to the polls on election day, they may be prohibited from casting an ordinary vote for any number of reasons—say, because their name does not appear on the official list of eligible voters for the polling place or because they did not bring an acceptable form of identification. See Ohio Rev.Code Ann. § 3505.18. Rather than allowing poll workers to turn these voters away, federal and Ohio law permit the voters to cast provisional ballots—votes that are not counted until the voter's registration and eligibility are confirmed. See 42 U.S.C. § 15482(a); Ohio Rev.Code Ann. § 3505.181(A). To make confirmation possible, Ohio law typically requires the voter to complete a provisional—ballot "affirmation," in which the voter attests that he is both registered and eligible to vote. Ohio Rev.Code Ann. § 3505.181(B)(2). The affirmation—a standard form printed on the face of the ballot envelope—contains blanks for the voter's printed name and signature among other things. Id. § 3505.182. After completing the affirmation "before the election official," the voter fills out the provisional ballot, seals it in the envelope and submits it to election officials. Id. § 3505.181(B).

Once the polls have closed on election day, precincts deliver the provisional ballots (along with all of the regularly cast ballots) to the county boards of elections, where the boards compare the information contained in the written affirmation with their own records to "determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election." Id. § 3505.183(B)(1). If the provisional-ballot voter completed an affirmation, the statute provides that his ballot is only "eligible to be counted" if his "name and signature" appear on the affirmation. Id. § 3505.183(B)(1)(a). If the provisional voter "decline[d] to execute" the affirmation, the voter's name, "written by either the individual or the election official at the direction of the individual," must be on the affirmation. Id. § 3505.183(B)(1).

Four developments form the backdrop to today's dispute. First, on March 31, 2008, a member of the Secretary of State's office responded to an inquiry from the Franklin County Board of Elections about the meaning of these provisions. He responded by saying that the "[n]ame AND signature are required" under § 3505.183(B)(1)(a) in order for a ballot to be eligible to be counted, and the Board proceeded to interpret the provision on this basis. Compl., Ex. B at 2.

Second, in October 2008, shortly before election day, the United States District Court for the Southern District of Ohio entered two orders concerning provisional ballots in another case—one still pending from the 2006 election that presented federal constitutional challenges to Ohio's provisional-ballot and voter-identification laws. See Northeast Ohio Coalition for the Homeless v. Brunner (Ohio Coalition for the Homeless), No. 2:06-cv-896 (S.D. Ohio filed Oct. 24, 2006). (Apparently the case was still pending because the parties and the court had not resolved the claimants' request for attorney fees.) Shortly...