State ex rel. Mackey v. Blackwell, 2004 Ohio 7004 (OH 12/22/2004)
| Decision Date | 22 December 2004 |
| Docket Number | Case No. 85597. |
| Parties | State of Ohio, ex rel., Perris J. Mackey, et al., Relators, v. J. Kenneth Blackwell, et al., Respondents. |
| Court | Ohio Supreme Court |
{¶1} The relators, Perris J. Mackey, Colleen Pirie, and the People of the American Way Foundation, have filed a complaint for a writ of mandamus. The relators seek an order from this court which prevent the respondents, J. Kenneth Blackwell, the Secretary of the State of Ohio, the Cuyahoga County Board of Elections, and Michael Vu, Director of the Cuyahoga County Board of Elections, from invalidating the "provisional ballots" that were cast in the General Election held on November 2, 2004. For the following reasons, we sua sponte dismiss the relators' complaint for a writ of mandamus.
{¶2} In order for this court to issue a writ of mandamus, the relators must establish that: (1) the relators possess a clear legal right to the relief requested; (2) the respondents possess a clear legal duty to perform the requested act; and (3) the relators possess no plain and adequate remedy in the ordinary course of the law. State ex rel. Bardo v. Lyndhurst (1988), 37 Ohio St.3d 106, 524 N.E.2d 447; State ex rel. Westchester Estates, Inc. V. Bacon (1980) 61 Ohio St.2d 42, 399 N.E.2d 81; State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 374 N.E.2d 641. Herein, the relators essentially argue that the conduct of the respondents, by refusing to allow the "counting" of provisional ballots,
constitutes a violation of: (1) R.C. 3503.13; (2) "Voting Rights Act (42 U.S.C. § 1971(A)(2)(b))"; (3) the "Help America Vote Act (42 U.S.C. § 15482(A))"(4) the "Equal Protection Clause of the U.S. Constitution, Amendment Fourteen"; and (5) the "Due Process Clause of the United States Constitution, Fourteenth Amendment". The relators have failed to establish what right they possess under R.C. 3503.13 or that the respondents have violated any enumerated duty as required under R.C. 3503.13. Cf. State ex rel. Jerningham v. Cuyahoga County Court of Common Pleas, 74 Ohio St.3d 278, 1996-Ohio-117, 658 N.E.2d 723; State ex rel. Gantt v. Coleman (1983), 6 Ohio St.3d 5, 450 N.E.2d 1163.
{¶3} In addition, a writ of mandamus will not be issued where there exists a plain and adequate remedy in the ordinary course of the law. R.C. 2731.05; State ex rel. Hastings Mut. Ins. Co. v. Merillat (1990), 50 Ohio St.3d 152, 553 N.E.2d 646; State ex rel. Rhodes v. Van Brocklin (1988), 36 Ohio St.3d 236, 522 N.E.2d 1088; State ex rel. Stanley v. Cook (1946), 146 Ohio State 348, 66 N.E.2d 207. 42 U.S.C. § 1983 provides a cause of action against any person who, while acting under color of state law, violates or abridges rights as guaranteed by the United States Constitution or laws of the United States.
The United States Court of Appeals for the Sixth Circuit, in Sandusky County Democratic Party v. Blackwell, (C.A. 6, 2004), 387 F.3d 565, held that:
{¶4} The Supreme Court of Ohio has established that a Section 1983 action provides an adequate remedy at law which renders an action in mandamus unavailable in a state court proceeding. State ex rel. Carter v. Schotten, 70 Ohio St. 3d 89, 1994-Ohio-37, 637 N.E.2d 306. See, also, State ex rel. Hogan v. Ghee, 85 Ohio St.3d 150, 1999-Ohio-445, 707 N.E.2d 494; State ex rel. Wilson-Simmons v. Lake Cty. Sheriff's Dept. (1998), 82 Ohio St.3d 37, 1998-Ohio-597, 693 N.E.2d 789; State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 663 N.E.2d 639; Ohio Academy of Nursing Homes, Inc. v. Barry (1990), 56 Ohio St.3d 120, 564 N.E.2d 686; Johnson v. Rodriguez (C.A. 5, 1997), 110 F.3d 299. It must also be noted that an action brought pursuant to Section 1983 "* * * provides a supplement to any state remedy, and there is no general requirement that state judicial or administrative remedies be exhausted in order to commence an Section 1983 action." Schotten, supra, at 91. Finally, an action is presently pending within the United States District Court for the Southern District of Ohio, Schering v. Blackwell, Case No. 1:04-CV-755, which addresses the identical issues as presently raised by the relators through their complaint for a writ of mandamus. See Exhibit A as attached to brief captioned "J. Kenneth Blackwell's Brief Demonstrating That A § 1983 Claim Is An Adequate Remedy At Law". Thus, we find that the relators have failed to state a claim upon which relief can be granted. State ex rel. Peeples v. Anderson, 73 Ohio St.3d 559, 1995-Ohio-335, 653 N.E.2d 371. See, also, State ex rel. Kimbro v. Glavas, 97 Ohio St.3d 197, 2002-Ohio-5808, 777 N.E.2d 257; State ex rel. Luna v. Huffman (1996), 74 Ohio St.3d
486, 659 N.E.2d 1279; State ex rel. Cossett v. Executive State Governors Federalism Summit (1995), 74 Ohio St.3d 1416, 655 N.E.2d 737.
{¶5} Accordingly, we sua sponte dismiss the relators' complaint for a writ of mandamus. Costs to relators. Clerk of the Eighth District Court of Appeals to serve notice of this judgment upon all parties as provided by Civ.R. 58(B).
Dismissed.
{¶6} I concur in judgment only in part and dissent with respect to portions of the majority decision as outlined below.
{¶7} Relators seek redress on three specific issues involving the invalidating of provisional ballots asserting: 1. Improper use of the electronic voter data base rather than the original voter registration forms as required by R.C. 3503.13; 2. Rejection of provisional ballots based on nonmaterial omissions or errors involving signatures in violation of the Voting Rights Act, H.A.V.A. and the Equal Protection Clause; 3. Rejection of provisional ballots based on nonmaterial omissions or errors involving missing affirmations documents or stickers in violation of the Voting Rights Act, H.A.V.A. and the Equal Protection Clause.
{¶8} With respect to the first request for relief, for the reasons outlined below, I believe petitioners have stated a valid claim under mandamus. I would direct the Secretary of State and the Cuyahoga County Board of Elections to recount all rejected provisional
ballots using the original completed voter registration forms.
{¶9} With respect to the claims raised in the second and third portions of the request for relief, I agree with the majority decision and analysis that there exists a plain and adequate remedy at law, specifically 42 U.S.C., Section 1983.
{¶10} Relators assert that all votes should be counted pursuant to the statutory requirements. They are seeking to have votes that were cast counted pursuant to the statutorily mandated process.
{¶11} A writ of mandamus is proper where the Secretary of State or the election board refuses to count votes. State ex rel. White v. Franklin County Board of Elections, et al. (1992), 65 Ohio St.3d 5, 598 N.E.2d 1152. Here, relators claim that the respondent's failure to use either the precinct register or the permanent office record of the board of elections to establish who is an actual registered voter, or the failure to create and maintain a viable electronic voter registration record, is a violation of the legal duty to administer elections in accordance with Ohio law. In effect, votes are not counted and voters are disenfranchised by the failure to follow the requirements of R.C. 3503.13(A), 3503.13(C)and 3503.13(D).
{¶12} "(A) Except as provided in division (C) of this section, registration forms shall consist of original and duplicate cards or loose-leaf pages as prescribed by the secretary of state. When such registration forms have been filled out and filed in the office of the board of elections, the original forms shall be filed together in one file and the duplicate forms shall be filed together in another file. Except as otherwise provided in division (D) of this section, the original forms shall be filed by precincts and shall constitute the precinct register for use in polling places on election day. The duplicate forms shall be filed alphabetically and shall constitute the permanent office record of the board. It shall not be
removed from the office of the board except upon the order of a court." §3503.13. Registration forms, records.
{¶13} The use of electronic...
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