State ex rel. Stokes v. Brunner
| Citation | 2008 Ohio 5392,120 Ohio St.3d 250,898 N.E.2d 23 |
| Decision Date | 16 October 2008 |
| Docket Number | No. 2008-1950.,2008-1950. |
| Parties | The STATE ex rel. STOKES v. BRUNNER, Secy. of State. |
| Court | Ohio Supreme Court |
Porter, Wright, Morris & Arthur, L.L.P., James P. Hadden, and Matthew D. Crumpton, Columbus, for relator.
Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, and Pearl M. Chin, Assistant Attorneys General, for respondent.
{¶ 1} This is an expedited election case for a writ of mandamus to compel the secretary of state to declare that observers are permitted in all active polling places and to direct local election officials to permit observers in all early-voting locations. Because the secretary of state erroneously advised boards of elections that they are not required to permit duly appointed observers at in-person, absentee-voting locations, we grant the writ.
{¶ 2} On September 23, 2008, the secretary of state issued Advisory 2008-24, in which she advised the boards of elections that they are not required to allow election observers during the 35-day, in-person absentee-voting period for the November 4 election:
{¶ 3}
{¶ 4} The secretary of state also cautioned boards of elections against exercising their discretion to permit election observers for in-person absentee voting:
{¶ 5}
{¶ 6} On September 29, the United States District Court for the Southern District of Ohio, Eastern Division, granted a temporary restraining order preventing the enforcement of Advisory 2008-24. Ohio Republican Party v. Brunner (Sept. 29, 2008), S.D. Ohio No. 2:08-CV-00913, 2008 WL 4445193, *5. The district court judge concluded that the applicable statute required observers at absentee-voting locations. The next day, the United States Court of Appeals for the Sixth Circuit stayed the district court's order. Ohio Republican Party v. Brunner (C.A.6, 2008), 543 F.3d 357, 361-362. The court of appeals observed that insofar as the district court's order was premised upon its interpretation of state law, federal courts lack jurisdiction to enjoin state officials based on state law. Id.
{¶ 7} Relator, Dewey Stokes, is a registered voter and a resident of Franklin County. On September 30, 2008, the Franklin County Republican Party appointed Stokes to be an observer at the alternate polling location in Franklin County during the absentee-voting period of the election. On October 3, Stokes received his credentials to serve as a poll observer in Franklin County.
{¶ 8} On that date, Stokes presented himself at an early-voting location inside Veterans Memorial in Franklin County and announced his intention to serve as an observer. The director and deputy director of the Franklin County Board of Elections informed Stokes that based on the secretary of state's authority, he would not be permitted to serve as an observer. The board officials also handed Stokes a notice stating that pursuant to Advisory 2008-24, the board "is not accepting filings for election observers during the 35-day period for in-person absentee voting." Stokes then left the building.
{¶ 9} Later that day, Stokes filed this expedited election case for a writ of mandamus to compel the secretary of state to declare that observers are permitted at all active polling places and to direct local election officials to permit observers in all early voting locations "pursuant to the procedures in R.C. 3505.21." The secretary of state filed an answer, and the parties submitted evidence and briefs on October 14 in accordance with a court-ordered schedule.
{¶ 10} This case is now before the court for our consideration of the merits.
{¶ 11} The secretary of state asserts that this mandamus case is barred by laches. But laches requires an unreasonable delay or lapse of time in asserting a right. See, e.g., State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 11. Stokes did not unreasonably delay in bringing this expedited election action, which was filed only ten days after the secretary of state issued Advisory 2008-24. Stokes then filed this case on the very day that the local election officials refused to let him serve as an observer for the absentee voting at the county polling location.
{¶ 12} Moreover, like our recent decision in State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 29, "this case differs from other cases in which we have applied laches to bar a consideration of the merits of an expedited election action concerning an issue or candidate on an election ballot because it involves the propriety of the absentee voting itself" — i.e., here, the issue of whether duly appointed observers are permitted to be present during in-person absentee voting. (Emphasis sic.) And although the secretary of state submitted evidence that permitting observers in some counties might burden understaffed boards of elections, we view these potential concerns as, at best, speculative and insufficient to bar our consideration of the merits of this case. See State ex rel. Becker v. Eastlake (2001), 93 Ohio St.3d 502, 505, 756 N.E.2d 1228 ().
{¶ 13} "To be entitled to the writ, relator[ ] must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the secretary of state to provide it, and the lack of an adequate remedy in the ordinary course of the law." State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 13. "[I]f the secretary of state `has, under the law, misdirected the members of boards of elections as to their duties, the matter may be corrected through the remedy of mandamus.'" State ex rel. Colvin v Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 20, quoting State ex rel. Melvin v. Sweeney (1950), 154 Ohio St. 223, 226, 43 O.O. 36, 94 N.E.2d 785.
{¶ 14} The secretary of state is the state's chief election officer and has duties to "[i]ssue instructions by directives and advisories to members of the boards as to the proper methods of conducting elections," "[p]repare rules and instructions for the conduct of elections," and "[c]ompel the observance by election officers in the several counties of the requirements of the election laws." R.C. 3501.05(B), (C), and (M).
{¶ 15} Stokes claims that the secretary of state has a duty enforceable in mandamus under these provisions and others to direct the boards of elections to permit duly appointed observers at absentee-voting locations.
{¶ 16} Stokes asserts that he is entitled to the requested extraordinary relief in mandamus because the secretary of state, through Advisory 2008-24, misdirected the boards of elections that they had no legal duty to permit observers at absentee-voting locations.
{¶ 17} Stokes primarily relies on R.C. 3505.21, which requires that duly appointed observers be permitted in the polling place for the precinct during the casting of the ballots:
{¶ 18} ...
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Baker, Bush, and ballot boards: the federalization of election administration.
...2009 U.S. Dist. LEXIS 92890 (S.D. Ohio Sept. 18, 2009), aff'd, 629 F.3d 527 (6th Cir. 2010); State ex rel. Stokes v. Brunner, 898 N.E.2d 23 (Ohio 2008); League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008) (affirming in part and reversing in part a series of lower court d......