State ex rel. Skaggs v. Brunner

• Decision Date: 20 November 2008
• Docket Number: Case No. 2:08-cv-1077.
• Citation: 588 F.Supp.2d 828
• Parties: STATE ex rel. SKAGGS, et al., Plaintiffs, v. Jennifer BRUNNER, Secretary of State of Ohio, Defendant.
• Court: U.S. District Court — Southern District of Ohio

588 F.Supp.2d 828

STATE ex rel. SKAGGS, et al., Plaintiffs, v. Jennifer BRUNNER, Secretary of State of Ohio, Defendant.

Case No. 2:08-cv-1077.

United States District Court, S.D. Ohio, Eastern Division.

November 20, 2008.

John Wolcott Zeiger, Christopher J. Hogan, Marion H. Little, Zeiger Tiges Little & Lindsmith LLP, Columbus, OH, for Plaintiffs.

Richard Nicholas Coglianese, Ohio Attorney General, Damian W. Sikora, Pearl Chin, Ohio Attorney General's Office, Columbus, OH, for Defendant.

OPINION AND ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiffs' and Defendant's Cross-Motions for Summary Judgment. Plaintiffs Dana Skaggs and Kyle Fannin ("Plaintiffs") filed suit on November 14, 2008 against Defendant Jennifer Brunner, in her official capacity as the Secretary of State of Ohio ("the Secretary") and Defendant the Franklin County Board of Elections ("FCBE"). On November 17, 2008, 588 F.Supp.2d 819, 2008 WL 4951795, this Court granted the Secretary's Motion to Realign the Parties, making the FCBE a plaintiff in this action. The FCBE also submitted a Motion for Summary Judgment. For the reasons set forth below, the Court GRANTS the Secretary's Motion for Summary Judgment and DENIES Plaintiffs' and the FCBE's Motions for Summary Judgment.

II. BACKGROUND

A. Factual Background

At issue in this case is whether the votes of approximately 1,000 registered and eligible Ohio voters who voted by provisional ballot in the November 4, 2008 election will be counted. Also at issue are the results of three extremely close congressional races in the 15th Congressional District, the 20th House District, and the 19th House District, which may be determined by those 1,000 provisional ballots.¹ On election day, more than 27,000 Franklin County voters cast provisional ballots.² Approximately 1,000 of those ballots are in question (the "disputed ballots"). Plaintiffs do not allege that any of the disputed ballots were fraudulent, cast by ineligible voters, or cast in the wrong precinct. Nonetheless they now seek to prevent the ballots from being counted claiming what they perceive to be deficiencies in the ballot application forms.

1. How provisional ballots are cast

Under Ohio law, a voter may cast a provisional ballot by executing a written affirmation in the presence of an election official. Ohio Rev.Code Ann. § 3505.181(B)(2) (2008). The written affirmation is part of the Provisional Ballot Application ("PBA") that is printed on an envelope into which a voter inserts the provisional ballot. That voter then submits the sealed PBA containing his ballot to the election official. On receipt of the sealed PBA, a county board of elections must determine the voter's eligibility to cast a provisional ballot by reviewing the voter-provided information on the PBA. If, after completing its eligibility review, a county board of elections determines a provisional ballot voter to be eligible to vote, the envelope is opened and the ballot is removed. To preserve the anonymity of the vote, the ballot is then commingled with all of the other provisional ballots cast in the election. However, the eligibility of all PBAs must be determined before a single provisional ballot may be unsealed, separated from its PBA envelope, and counted. See Ohio Rev.Code § 3505.183(D) ("No 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 ....") Moreover, all provisional ballots must be processed and all counting completed by November 25, 2008, adding extraordinary time pressure to the need to resolve these claims. (Directive 2008-101, Section II.)

2. The disputed ballots

The disputed ballots fall into four separate categories: (1) ballots where a voter has signed the affirmation but failed to print her name; (2) ballots where the voter provided a printed name on the affirmation but failed to include a signature; (3) ballots that include both a voter signature and the voter's printed name, where the signature, the printed name, or both were written on the wrong portion of the Application; and (4) ballots where the affirmation form contained no proof that the voter presented valid identification.

All of the disputed ballots include a name, either in print or signature form, and other information (i.e. the voter's date of birth and address) that have allowed the voters who cast these ballots to be identified. In fact, the Secretary has represented and the Plaintiffs have not denied, that a determination has already been made that all of the disputed ballots were cast by voters who were properly registered and eligible to vote in that precinct. Moreover, the Court understands that where a ballot contains a signature, that signature has been matched to a voter's digitized signature in the voter registration database.

Plaintiffs assert that the first three categories of disputed ballots are defective and should not be counted. The Secretary counters that any possible "defects" in the disputed ballots were caused by poll worker error and urges this Court to uphold its instruction to count those ballots. For the fourth category, however, because a poll worker has an express duty to record a voter's identification information under Section 3505.181(B)(6) of the Ohio Revised Code, the Parties agree that the poll worker bears the duty of completing the missing information. Thus, Plaintiffs do not challenge the validity of the Secretary's directive to the FCBE to count those provisional ballots that do not include the necessary identification information.

3. This Court's Orders regarding counting provisional ballots

As a result of two consolidated provisional ballot election cases currently pending before this Court—Ohio Republican Party v. Brunner, No. 2:08-cv-913, and The Northeast Ohio Coalition for the Homeless v. Brunner, No. 2:06-cv-896— this Court has previously issued two Orders directing the proper method for counting ballots in the 2008 election. Directive 2008-101, which was incorporated as a Court order on October 24, 2008, establishes the processes and procedures the Ohio boards of elections should follow when counting provisional ballots. This Court also issued an order on October 27 ("October 27 Order"), which expressly stated that provisional ballots cast by an otherwise eligible voter could not be rejected for reasons attributable to poll worker error.³ The background of these orders is explained in detail in this Court's November 17, 2008 Order upholding removal and denying remand. (Doc. No. 20).

4. The Secretary's instructions to the FCBE regarding counting provisional ballots

Pursuant to her statutory mandate, the Secretary promulgated a PBA containing a voter affirmation form, the PBA (also known as Form 12-B), for voters to use to cast provisional ballots in the November 4, 2008 Election. Ohio Rev.Code § 3505.04. Rather than use the Secretary's prescribed affirmation form, however, the FCBE crafted its own version of the form, which was critically different from that of the Secretary. Where the Secretary's form contemplated that a poll worker must print the voter's name and sign the form, the FCBE's form placed the requirement of completing the PBA solely on the voter, requiring the voter both to print his name and to sign the form. Furthermore, though the FCBE form requires that each voter provide both a printed name and signature, the Secretary's form includes no such mandate.

Also in her role as "Chief election official," Ohio Rev.Code § 3501.04, the Secretary issued Directive 2008-27, which requires Ohio county boards of elections to train poll workers using the Poll Worker Manual and Poll Worker Quick Reference Guide. See Ohio Rev.Code § 3501.05(B) (the Secretary shall "[i]ssue instruction by directives and advisories ... to members of the boards as to the proper methods of conducting elections"). Directive 2008-27 requires boards of elections to provide a copy of these documents to all poll workers and to provide each precinct with three copies of the Poll Worker Quick Reference Guide to use on election day. The Poll Worker Manual addresses provisional voting instructing poll workers to "check to make sure the voter's [provisional ballot affirmation] envelope is completed" and that "[t]he completed [provisional ballot affirmation] envelope should be doublechecked by a second poll worker." (See Poll Worker Manual 37-40.)

Finally, as authorized by statute, the Secretary issued various rules and instructions to the boards of elections for the conduct of elections. Ohio Rev.Code § 3501.05(C). Following the November 4, 2008 Election, the Secretary instructed the FCBE to count ballots falling in the four disputed ballot categories as long as it could determine from the information provided "that the person [was] registered to vote, voted in the correct precinct and that the person was not required to provide additional information/id within 10 days ...." (Nov. 10, 2008 email chain, Ex. D Pf. Mot. TRO.) Also, on November 12, the Secretary informed the FCBE, "[Y]our poll workers are trained to review the provisional ballot affirmation before completing the poll worker portion. Your poll worker should have noticed that the voter did not put his/her name in column one and instructed the voter to do so ... That is why I conclude that the omission of a name is poll worker error." (Damschroder Aff., 2.)

B. Procedural History

This case was originally filed in the Ohio Supreme Court on November 13, 2008. Plaintiffs requested a Writ of Mandamus and Motion for a Temporary Restraining Order ("TRO"). The Secretary and the FCBE were named as Relator-Defendants. On November 14th, the Secretary filed a Notice of Removal to the Federal District Court for the Southern District of Ohio. The case was originally assigned to the Hon. Gregory L. Frost, but was transferred by Judge Frost to ...