The Northeast Ohio Coalition for the Homeless, et al. v. Brunner, Jennifer, etc.

Transcription

1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE SOUTHERN DISTRICT OF OHIO 3 THE NORTHEAST OHIO ) 4 COALITION FOR THE ) HOMELESS, ET AL., ) 5 ) Plaintiffs, ) 6 ) vs. ) Case No. C ) JENNIFER BRUNNER, IN ) 8 HER OFFICIAL CAPACITY ) AS SECRETARY OF STATE ) 9 OF OHIO, ) ) 10 Defendant. ) TELEPHONIC DEPOSITION OF JEANETTE MULLANE Wednesday, October 22, Telephonic deposition of JEANETTE MULLANE, called by 15 the Plaintiffs for examination under the Federal Rules 16 of Civil Procedure, taken before me, the undersigned, 17 Arlene M. Fassinger, Registered Professional Reporter, 18 a Notary Public in and for the State of Ohio, at the 19 Stark County Board of Elections, 201 Third Street, 20 N.E., Canton, Ohio, commencing at 3:08 p.m. the day 21 and date above set forth

2 1 APPEARANCES: 2 On Behalf of the Plaintiffs: 3 Jennifer N. Fuller, Esq. (Telephonically) Porter, Wright, Morris & Arthur LLP 4 One S. Main Street, Suite 1600 Dayton, OH On Behalf of Defendant Jennifer Brunner, 6 Ohio Secretary of State: 7 Aaron Epstein, Assistant Attorney General (Telephonically) 8 Attorney General's Office 30 E. Broad Street, 17th Floor 9 Columbus, OH On Behalf of Defendant State of Ohio: 11 Robert Eskridge, Assistant Attorney General (Telephonically) 12 Attorney General's Office 30 E. Broad Street, 17th Floor 13 Columbus, OH On Behalf of Stark County Board of Elections: 15 Sharon D. Miller, Chief Assistant 16 Prosecutor, Civil Division Stark County Prosecuting Attorney Central Plaza South, Suite 510 Canton, OH ALSO PRESENT: 20 Jeff Matthews Page 2

3 1 EXHIBIT INDEX Page 3 2 STARK COUNTY MARKED OBJECTION INDEX 10 BY MS. MILLER BY MR. EPSTEIN BY MR. EPSTEIN BY MR. EPSTEIN BY MR. EPSTEIN BY MR. EPSTEIN

4 1 JEANETTE MULLANE, Page 4 2 called by the Plaintiffs for examination under 3 the Federal Rules of Civil Procedure, after 4 having been first duly sworn, as hereinafter 5 certified, was examined and testified as follows: 6 EXAMINATION 7 BY MS. FULLER: 8 Q Miss Mullane, could you please state your 9 full name for the record. 10 A. 11 Q And your position, please? 12 A Director. 13 Q And that's of the Stark County Board of 14 Elections A That's correct. 16 Q -- correct? 17 A Correct. 18 Q Miss Mullane, are you there? 19 A Yes. 20 Q Okay. Did you say that was correct? 21 A Yes, I did. 22 Q I'm sorry, I couldn't hear you. 23 MS. FULLER: I do want to 24 state on the record that this 25 deposition may be used at the

5 1 preliminary injunction hearing in Page 5 2 lieu of your appearance at the 3 hearing. 4 Are there any objections on 5 the record? 6 MR. EPSTEIN: Well, we're 7 not in a position, at this point, 8 to consent to that. It remains to 9 be seen based upon a number of 10 factors, including how far we get 11 in the deposition during the hour 12 that we have. 13 MS. MILLER: This is Sharon 14 Miller on behalf of the Board of 15 Elections of Stark County. I do 16 want to put on the record that we 17 have offered to be available for 18 an extended period for the 19 deposition today and we are, at 20 this time, only under subpoena by 21 the Plaintiffs' counsel for 22 appearance in Columbus. 23 MS. FULLER: Thank you. 24 Q Miss Mullane, how long have you held the 25 position of Director?

6 1 A Since March of Page 6 2 Q Did you hold any previous positions with the 3 Board of Elections? 4 A Yes. I was the Deputy Director since Q Okay. And what are your responsibilities as 6 Director of the Stark County Board of Elections? 7 A Our responsibility's to ensure a fair and 8 honest election and to implement the policies and 9 procedures of the Board and day-to-day operation 10 of the office. And we're responsible for 11 maintaining all books and records of the office. 12 Q And do your responsibilities differ greatly 13 from that of the Deputy Director? 14 A The Deputy Director and the Director share 15 many of the same responsibilities. 16 Q Did Stark County produce any documents in 17 response to the subpoena issued in this case? 18 A Yes. 19 Q And do you have those documents in front of 20 you or does the court reporter have them? 21 A Yes. 22 Q Okay. 23 MS. FULLER: Miss Court 24 Reporter, if you could please mark 25 those as Stark County Exhibit 1

7 1 for me. Page 7 2 MS. MILLER: This is Sharon 3 Miller. I want to interject that 4 the court reporter has a packet of 5 information. They're not 6 indicated, so I think we're going 7 to have to have some 8 identification before there's -- 9 you can have what's marked, but 10 there's a great number of 11 things MS. FULLER: Are you saying 13 she has documents beyond what you 14 produced with her? 15 MS. MILLER: I'm saying 16 that we have not looked at them, 17 at this point, to tell you that 18 these are the documents that were 19 produced by this Board. So if you 20 want to have the witness look at 21 them first MS. FULLER: I would like 23 to have her look at them, yes. 24 Thank you. 25 MS. MILLER: Okay. I will

8 1 say that the witness has a Page 8 2 four-page bulletin that appears to 3 have come from the Secretary of 4 State that was not sent by us and 5 that is separate from another 6 packet that she's looking at now. 7 MS. FULLER: Okay. Are the 8 documents you're looking at Bate's 9 labeled? 10 MS. MILLER: Are they face 11 labeled? 12 MS. FULLER: Yes. 13 MS. MILLER: No. Not that 14 I see. 15 Oh, are you talking about 16 Bate's stamping? 17 MS. FULLER: Yes. 18 MS. MILLER: Yes. The 19 first set is MIA MS. FULLER: Okay. That is 21 not a document you produced? 22 MS. MILLER: No. It is the 23 other document, STA, which I 24 assume is for Stark, Pages 1 25 through --

9 1 THE WITNESS: One Page 9 2 through -- 3 MS. MILLER: Oh. 4 THE WITNESS: I didn't send 5 that, anyhow. 6 One through MS. FULLER: Exactly. That 8 is what I'm referring to that 9 should be marked as Plaintiff's 10 Exhibit 1. And that is what I 11 would like the witness to review. 12 MS. MILLER: There's also 13 three pages that are attached to 14 that. They look like they're 15 marked as Plaintiff's Exhibit MS. FULLER: Okay. We'll 17 refer to that separately. 18 Okay. We'll do that. We'll 19 mark that as Stark -- STA-1 20 through 30? 21 THE WITNESS: Yes. 22 MS. FULLER: Okay. 23 Perfect. Thank you (Stark County 1 was

10 1 marked for identification.) Page Q And, Miss Mullane, have you had a chance to 4 look over these? 5 A Yes. 6 Q And are these the documents that were 7 produced in response to the subpoena in this 8 matter? 9 A Yes. 10 Q Do you have any other documents relating to 11 provisional ballots that you did not produce? 12 A I don't know. I mean, not to my knowledge. 13 MS. FULLER: Can you go 14 ahead and mark the document that 15 is labeled MIA-43 through 46 as 16 Stark Exhibit 2? (Stark County 2 was 19 marked for identification.) MS. MILLER: They're 22 marked. 23 Q Miss Mullane, have you ever seen this 24 document, Plaintiff's -- or, I'm sorry, Stark 25 Exhibit 2 before?

11 1 A It's on the bulletin board of the Secretary Page 11 2 of State's office. 3 Q Does that mean you have seen it before? 4 A I probably have. I haven't read this 5 recently. 6 Q Okay. Could you please turn to the second 7 page? And under the second question, the second 8 paragraph -- and I'm reading the last two 9 sentences -- it says, "If -- based on the 10 information provided by the voter -- the BOE can 11 verify the voter's identity and qualifications, 12 the BOE may count the provisional vote. The 13 process a BOE uses to verify the voter's ID and 14 qualifications is up to the Board -- and there 15 should be a policy in place regarding this." 16 Have you ever read that statement before? 17 A I don't recall actually reading it, but I I may have looked over this before. 19 Q And did anyone from the Secretary of State's 20 office or otherwise ever tell you that you should 21 have a policy in place regarding this? 22 A I don't know. 23 Q Do you have a policy in place regarding the 24 provisional vote as is stated in this document? 25 A We have -- I guess we would follow the

12 1 directives of the Secretary of State in regards Page 12 2 to the counting of the provisional ballots. 3 Q Okay. So you haven't developed -- your board 4 has not developed its own policies and 5 procedures? 6 A We would follow the policy and procedure that 7 the Secretary of State would have put into the 8 directive. 9 Q Just to clarify, has Stark County developed 10 any documents that summarize or explain whether a 11 provisional ballot should be accepted or 12 rejected? 13 A Are you asking if we wrote our own policy 14 rather than follow the Secretary of State's? 15 Q I'm asking you whether you created any 16 documents that either explain, further clarify or 17 summarize the directives that you've received 18 from the Secretary of State. 19 A I don't think so. 20 Q And, Miss Mullane, what is a provisional 21 ballot? 22 MS. MILLER: I'm just going 23 to object if there's a legal 24 definition to it. 25 But obviously, Jeanette,

13 1 answer to the extent you can. Page 13 2 A I mean, the purpose of a provisional ballot 3 was -- I mean, the intention of it was if a 4 person had changed their -- had moved or had not 5 notified the Board of Elections of a change of 6 address, we would allow them to vote a ballot and 7 give us the opportunity to verify their 8 registration to make sure it was valid. And this 9 was, of course, prior to the Help America Vote 10 Act, when it was put into place. 11 Q And in Stark County, who decides whether to 12 accept or reject a provisional ballot? 13 A The Board. 14 Q Can you describe the process, for me, in 15 which a provisional ballot would come before the 16 Board for review? 17 A If -- for example, if on the provisional 18 envelope the -- what -- if the envelope was not 19 filled out correctly or if the information was 20 not provided, if they were not in the right 21 precinct, then the Board -- it would be brought 22 to the Board prior to counting the ballots and 23 the Board would make a determination whether or 24 not to count them. 25 Q So are there staff members who sort the

14 1 provisional ballots -- Page 14 2 A Yes. 3 Q -- for later determination by the Board? 4 A Yes. 5 Q Miss Mullane? 6 A Yes. 7 Q I'm sorry, did you hear my question? 8 A No. 9 Q Oh, okay. 10 A There was no question. 11 MS. FULLER: Could the 12 court reporter read it back? Did 13 you catch it? 14 A We didn't hear a question. 15 Q Is the process that the staff members sort 16 the provisional ballots for later determination 17 by the Board? 18 A Yes. 19 Q Okay. And how many staff members do you have 20 at Stark County? 21 A That perform this duty? 22 Q Why don't you tell me A Well Q -- overall -- how many perform the sorting 25 duty?

15 1 A I mean, we have , 16 employees total Page 15 2 in the office, and then obviously we have 3 additional seasonal staff come in as needed. But 4 to -- we have three full-time employees that 5 would perform the provisional -- would process 6 the provisional ballots, and some additional 7 seasonal help, depending on the number of 8 provisional ballots that are voted on Election 9 Day. So it varies from election to election. 10 Q Okay. And these staff members, the full-time 11 and the seasonal helpers, are all involved in the 12 initial review of the provisional ballots; is 13 that correct? 14 A Yes. 15 Q May any staff member reject a provisional 16 ballot? 17 A The staff members do not reject a provisional 18 ballot. Only the Board can reject a provisional 19 ballot. 20 Q So I take it, then, the Director, the Deputy 21 Director, does not have the power to reject a 22 ballot, either? 23 A No. 24 Q Can I have you look, please -- the court 25 reporter should have a copy of the Ohio Revised

16 1 Code Could I have you take a look at Page 16 2 that, please. 3 MS. MILLER: Just for the 4 record, that's what was attached 5 and marked as Plaintiff's Exhibit MS. FULLER: Exactly. 8 Q Miss Mullane, do you have this in front of 9 you? 10 A Yes. Yes. 11 Q And have you seen this before? 12 A Yes. 13 Q Have you seen this document before? 14 A Yes. 15 Q Okay. Thank you. 16 And you're familiar with this provision, I 17 take it? 18 A Yes. 19 Q Okay. Could you please turn to the second 20 page. And as you'll see, on Section (B)(3), it 21 states, "If, in examining a provisional ballot 22 affirmation and additional information under 23 divisions (B)(1) and (2) of this section, the 24 board determines that all of the following apply, 25 the provisional ballot envelope shall be opened,

17 1 and the ballot shall be placed in a ballot box to Page 17 2 be counted." And after that, it lists five 3 factors. Does the Stark County Board rely on 4 this section in determining whether a provisional 5 ballot should be accepted? 6 A Yes. 7 Q And under Section (B)(4), it again states 8 when a provisional ballot shall be -- it states 9 when a provisional ballot shall not be opened and 10 the ballot shall not be counted, and it lists 11 seven factors. Does the Stark County Board of 12 Elections rely on this provision in determining 13 whether to accept or reject a provisional ballot? 14 A Yes. 15 Q So your testimony is that the Stark County 16 Board of Elections relies on both Sections (B)(3) 17 and (B)(4)? 18 A Yes. 19 Q And if under Section (3) a provisional ballot 20 met all five factors, would you then accept the 21 ballot or would you move on to the factors in 22 Section (4)? 23 MR. EPSTEIN: Objection. 24 MS. FULLER: You can still 25 answer.

18 1 A It's -- I mean, we consider it in totality. Page 18 2 Q So you would always go through all of the 3 factors before making a decision on the ballot? 4 A Yes. 5 MR. EPSTEIN: Objection. 6 For the court reporter, this 7 is Mr. Epstein objecting. 8 MS. FULLER: Miss Mullane, 9 did you answer that question? 10 THE WITNESS: Yes. 11 MS. FULLER: And your 12 answer was yes THE WITNESS: Yes. 14 MS. FULLER: -- is that 15 right? 16 THE WITNESS: Yes. 17 MS. FULLER: Thank you. 18 I'm sorry, I just didn't hear you. 19 Q When the provisional ballots are sent to the 20 Board for review, do they review them on an 21 individual basis? 22 A No, not -- no. 23 Q Can you tell me how the process works, 24 please. 25 A They are -- I mean, they're listed -- we

19 1 provide a list. We categorize them. Some of Page 19 2 them are categorized by no signature or 3 categorized by wrong precinct or -- depending on 4 what the problem may be. If the Board -- you 5 know, whatever problem they deem. And we list 6 each one by precinct. 7 Q So they are marked into categories; is that 8 right? Or you're saying that each individual one 9 is identified by the problem that's preventing it 10 from being accepted? 11 A Each one -- the Board has -- each one is 12 identified under a category. 13 Q And they decide whether to accept or reject 14 based on the categories? 15 A They have the ability to review each ballot, 16 if they so -- or, each -- you know, each 17 envelope. And they have the ability to approve 18 or disqualify based on the category. 19 Q Are there any circumstances under which the 20 Board would review an individual ballot? 21 A Yes. It's possible. 22 Q And do you know why they would choose to do 23 that? 24 A It may be the only one in that category or it 25 may be -- there may be -- you know, it may meet

20 1 some of the other code sections here or fall Page 20 2 under different code sections. You know, it 3 would be a unique ballot or have a unique 4 problem. 5 Q Does Stark County match the signatures on 6 provisional ballots? 7 A Yes. 8 Q And how do you do that? 9 A We have -- we have the signature of the voter 10 in the system, in our voter registration system, 11 and we compare them. 12 MR. EPSTEIN: What was the 13 answer? 14 THE WITNESS: We compare 15 the signature on the provisional 16 ballot with the signature that we 17 have from the registration in our 18 voter registration system. 19 Q And do you have any policies or standards for 20 determining if the signature is a match? 21 A That would be a Board call. 22 Q The Board reviews every one in which the 23 signature is in question? 24 A Yes. We Q They individually look at each ballot in

21 1 which you question the signature? Page 21 2 A If we question the signature, then we would 3 present it to the Board for their determination. 4 Q So a staff member or the directors would 5 never reject a provisional ballot for a 6 non-matching signature without presenting it to 7 the Board? 8 A That's correct. 9 Q And does the Stark County Board of Elections 10 verify the date of birth on the provisional 11 ballot? 12 A Yes. We -- I mean, I guess the -- whatever 13 is listed on the provisional ballot, we would 14 compare it with the date of birth that we have in 15 our voter registration system. 16 Q And if the date of birth on the provisional 17 ballot does not match the date of birth in your 18 voter registration data base, what would you do 19 next? 20 A We would either -- I don't recall -- I don't 21 recall us having that problem. But if it would 22 happen, we would address it with the Board. 23 Q Would the Board reject a provisional ballot 24 based solely on a mismatched date of birth? 25 A I don't know that.

22 1 Q Are there any circumstances under which the Page 22 2 Board would call a voter to clarify the 3 information on the provisional ballot? 4 A I don't know. 5 Q Has it ever happened before in your 6 experience as Director or Deputy Director? 7 A No. 8 Q Does the Board call voters whose ballots they 9 intend to reject? 10 A No. 11 Q Miss Mullane, did you hear my question? 12 A Yes. And my answer was no. 13 Q I'm sorry, I didn't hear you. I apologize. 14 If the affidavit on the provisional ballot is 15 not signed by the voter, would you reject the 16 provisional ballot solely on this basis? 17 MR. EPSTEIN: Objection. 18 THE WITNESS: Am I supposed 19 to answer? 20 MS. MILLER: Answer if you 21 can. 22 A Okay. On the signature line? Is that what 23 you're saying? 24 Q Yeah. Or the affidavit -- yeah, the 25 signature line is not signed by the voter.

23 1 A The -- I would not do it. But we would Page 23 2 present it to the Board for their determination. 3 Q And would the Board reject it solely on that 4 basis? 5 MR. EPSTEIN: Objection. 6 A That would be up to the Board. 7 Q Is there any instance in which the Board of 8 Elections would automatically reject a 9 provisional ballot? 10 A That would be up to the Board. And the Board 11 would follow the directives of the Secretary of 12 State and the Ohio Revised Code in making their 13 determination on whether to accept or reject a 14 provisional ballot. 15 Q Does the Stark County Board of Elections 16 check for citizenship? 17 A No. 18 Q Does the Stark County Board of Elections 19 check the provisional ballot envelope for the 20 signature of the poll worker? 21 A Yes. 22 Q And would you or the Board reject the 23 provisional ballot based on the failure of the 24 poll worker to put their signature A No. My answer was no.

24 1 Q I'm sorry, I didn't hear you. Thank you for Page 24 2 clarifying. 3 Has the Board ever called a poll worker to 4 ask them why they did not sign an envelope or why 5 they did not fill out the information on a 6 provisional ballot correctly? 7 A I don't know if that was -- would be the 8 specific question, but I believe that some staff 9 members may have followed up with poll workers to 10 make sure that they properly complete the 11 envelopes in the future. 12 Q So it's more of a training tool A Training tool. 14 Q -- rather than a corrective process for that 15 ballot? 16 A Well, at that point -- at that point the poll 17 worker can't come back in and sign it. And we 18 don't reject them because the poll worker failed 19 to sign it. 20 Q Okay. Thank you. 21 Do you check the identification provided by 22 the voter on the provisional ballot? 23 A Yes. 24 Q If the voter provides their Social Security 25 number, you would check that information?

25 1 A We would check that information with the Page 25 2 information that we have on the voter in our 3 voter registration system. So -- I guess that 4 would clarify my answer. 5 Q And does the voter have to provide 6 identification to cast a provisional ballot? 7 A All voters are required to -- at the polls -- 8 provide identification in order to vote. 9 Q And other than a Social Security number, how 10 can a voter verify identification on the 11 provisional ballot? 12 A Well, they -- they have the same 13 identification requirements that all other voters 14 have to provide on Election Day at the polls. 15 Q Do you check if the address listed on the 16 provisional ballot matches the voter 17 registration? 18 A Yes. I mean, my answer is yes, we would 19 check for the address. It may or may not match. 20 If it's a true provisional voter who did move, 21 their address would not match, because they 22 changed their -- they would be changing their 23 address. 24 Q And does the voter A And that's --

26 1 Q -- need to provide an address to cast a Page 26 2 provisional ballot? 3 A They either have to provide an address or a 4 description of the place that they intend to be 5 their residence. 6 Q Okay. Assuming a voter is properly 7 registered in your county, could a homeless voter 8 use a park bench as their current address for the 9 purposes of casting a provisional ballot? 10 A Yes. 11 Q And how do you verify an address such as a 12 park bench? 13 A Well, it's not easy. We would prob -- I 14 mean, in order to verify that address, we would 15 precinct that park bench within the precinct area 16 or ward area of the city or township that the 17 park bench was located. 18 Q If a voter or a poll worker does not provide 19 the reason that the voter cast the provisional 20 ballot, does that affect whether the ballot would 21 be counted? 22 A That would be up to the Board. 23 Q Are there any circumstances under which the 24 Board will contact the Secretary of State 25 regarding whether to accept or reject a

27 1 provisional ballot? Page 27 2 A The Board may contact the Secretary of State 3 for guidance. 4 Q And when you say that you are relying on the 5 directives of the Secretary of State and the Ohio 6 Revised Code, are you referring to the documents 7 that you produced in response to the subpoena 8 which we've marked as Exhibit 1? 9 A Yes. 10 Q And I believe I asked you this, but these 11 documents marked as Exhibit 1 are a true and 12 accurate copy of the documents produced by Stark 13 County Board of Elections in response to the 14 subpoena? 15 A Yes. 16 Q And as far as Stark County Board of Elections 17 is concerned, what is the ultimate source of 18 guidance in making a determination as to whether 19 to accept a provisional ballot? 20 A It would be both the directive and the Ohio 21 Revised Code. 22 Q Give me one second. Sorry. 23 How many members make up your Board? 24 A Four. 25 Q I'm sorry?

28 1 A My answer was four. Page 28 2 Q Four. And are there two for each party? 3 A There are two Democrats and two Republicans 4 that serve on our Board. 5 MS. FULLER: Well, I am 6 done with questioning for this 7 time. And I believe some of the 8 other attorneys might want to ask 9 you some questions as well. 10 MR. EPSTEIN: Thank you. 11 This is Aaron Epstein on 12 behalf of the Secretary of State CROSS-EXAMINATION 15 BY MR. EPSTEIN: 16 Q How many precincts are there in Stark County 17 for the 2008 election? 18 A Three hundred sixty-four. 19 Q And how many voting locations are there? 20 A One hundred and eighty-seven, I believe. 21 Q So am I correct that some of those voting 22 locations are multi-precinct polling places? 23 A Yes. Yes. 24 Q How many poll workers will Stark County be 25 using on Election Day?

29 1 A We will hire over 1,500 poll workers. Some Page 29 2 of those poll workers are stand-by. And we will 3 also have poll greeters at our polls, also. 4 Q Can you take me briefly through the training 5 that you provide to the poll workers? 6 A How briefly do you need me to provide? I 7 mean -- 8 Q In terms of how many hours -- 9 A We provide -- okay. 10 Q -- how many sessions, that sort of thing. 11 A The poll workers -- the poll worker training 12 is mandatory. They're required to go to a 13 two-hour training in which we cover our training 14 manual and the use of the voting equipment. 15 Q Do you cover the subject of provisional 16 ballots in the sessions? 17 A Yes, we do. 18 Q And do you specifically discuss with them 19 what they are to tell voters who vote 20 provisionally as far as additional information 21 that voter may have to provide within 10 days? 22 A Yes. In fact, they're given an information 23 sheet that explains that in more detail. 24 Q Now, you mentioned seasonal staff workers in 25 the Board of Elections; is that right?

30 1 A Yes. Page 30 2 Q Do they receive the same training as the poll 3 workers or some other training? 4 A They would receive other training. Although 5 some of our seasonal staff are poll workers and 6 have gone through our poll worker training. 7 Q So would there be training that the seasonal 8 workers receive that the poll workers do not? 9 A Well, it depends on their job duty. We have 10 seasonal staff that do absentee voting. We have 11 seasonal staff that does logic and accuracy 12 testing. So it all depends on what they're 13 assigned to do. 14 Q Okay. Let's talk specifically about seasonal 15 staff that are going to be involved in handling 16 or organizing provisional ballots. 17 A Okay. 18 Q What training do they receive that is 19 different from what poll workers receive? 20 A Well, they're -- they're given the 21 information on how to process the provisional 22 ballots in our system and they're given the 23 information, I mean, that's covered in the 24 directive and the Revised Code. 25 Q Are they simply given the documents or are

31 1 there -- Page 31 2 A No. There's -- 3 Q -- any sessions in which the material is 4 explained to them? 5 A There would be a training session prior -- we 6 don't call it actual training, but staff members 7 will sit down with the seasonal staff and 8 instruct them how to process the provisional 9 ballots. 10 Q Returning to the subject of the poll workers, 11 if there were to be a change in the information 12 that poll workers should give to voters about how 13 provisional ballots work between now and the 14 election either as a result of a directive from 15 the Secretary or a court decision, how would the 16 Board of Elections communicate that information 17 to the poll workers? 18 A Well, it would depend on how quickly we got 19 the information. If we had sufficient time to 20 mail the information, we would either mail it 21 or -- if it was too late to mail, then we would 22 send that information out with our Election Day 23 technicians to deliver it to the poll workers on 24 Election Day. So it just depends on when we 25 would get any changes.

32 1 Q And do you have a sense of what that cutoff Page 32 2 date would be as far as when it becomes too late 3 to notify by ordinary mail? 4 A I would say the Friday or Saturday before the 5 election at the latest. The Saturday before the 6 election the poll workers come in to pick up 7 their supplies, and that would be the ideal time 8 to hand out any last-minute information so the 9 poll workers had time to read over it, digest it, 10 and understand it. So that would be the latest 11 time that -- if I had a preference date. 12 Q Has voting begun in your county? 13 A Yes. According to Ohio Revised Code. 14 Q Well, have people been coming to the Board of 15 Elections or some other location already to cast 16 ballots? 17 A Yes. They've been coming into the main Board 18 office. 19 Q Is there any other place that people can cast 20 ballots right now? 21 A No. 22 Q To your knowledge, have provisional ballots 23 been cast already for the November, election? 25 A Yes. My answer was yes.

33 1 MR. EPSTEIN: Thank you. Page 33 2 That's all the questions I have. 3 MR. ESKRIDGE: No 4 questions. 5 MS. FULLER: And I just 6 have a few more. This is Jennifer 7 Fuller again. Sorry. One second, 8 please FURTHER EXAMINATION 11 BY MS. FULLER: 12 Q Miss Mullane, the poll workers do not make a 13 determination as to whether to count or reject a 14 provisional ballot; is that correct? 15 A That is correct. The poll workers do not. 16 That is left up -- that decision is left up to 17 the Board. 18 Q So if there were any changes made in the 19 basis for accepting or rejecting a provisional 20 ballot, there would be no need to institute 21 additional training for poll workers; is that 22 correct? 23 A It would all depend on what the changes are. 24 I mean, if it's information that the poll workers 25 are supposed to collect from the voter that

34 1 affects the determination later on, obviously we Page 34 2 would need to train the poll workers on that 3 information. 4 Q And if it was strictly for the later analysis 5 of the information, would they need additional 6 training? 7 A I don't really know. 8 Q Does the Stark County Board of Elections 9 check to see whether a voter has already voted? 10 A Yes. 11 Q And how do you do that? 12 A We check the ward and precinct that they 13 previously were assigned to -- if they were a 14 provisional ballot -- where their former address 15 was. And we would check in the system just to 16 make sure that they didn't vote absentee. 17 Q And if they had already voted, their 18 provisional ballot would not be counted; is that 19 correct? I'm sorry, what did you say? 20 A And we also verify that they have not voted 21 in any other county. 22 Q And if they have already voted, would their 23 provisional ballot be counted? 24 A If they have already voted, their provisional 25 ballot would most likely not be counted. And the

35 1 Board would make that determination. Page 35 2 Q If a provisional ballot envelope contains 3 multiple ballots, what would the Board or the 4 staff do with it? 5 A That would be up -- that would be left up to 6 the Board. 7 Q So are you telling me that every provisional 8 ballot is sent for review to the Board? 9 A No. 10 Q Did you say no? 11 A That's correct, I said no. 12 Q Can you explain to me the difference, how 13 they're designated to go to the Board or not? 14 A The only one -- if the provisional ballot 15 meets all the qualifications and is legally 16 sufficient, then the Board would not have to make 17 a determination whether or not to count it. Only 18 those provisional ballots that may be 19 insufficient are addressed to the Board. 20 Q And who makes the determination whether all 21 the factors are there to accept the ballot? 22 A We would have our four -- our full-time 23 workers, our full-time staff, who are sworn 24 election officials. 25 Q And they are qualified to accept a

36 1 provisional ballot? Is that correct? Page 36 2 MR. EPSTEIN: Object to 3 the form of the question. 4 A They're -- 5 THE WITNESS: Yeah. Do you 6 want me to answer? 7 MS. MILLER: Do you 8 understand the question? 9 A The Board -- the Board makes the final 10 determination on whether or not we count or not 11 count ballots. The staff members would be making 12 a recommendation or would be reviewing them in 13 preparation for that Board determination. 14 Q So it's my understanding that what you're 15 saying is that the staff workers designate -- or, 16 recommend that a certain number of the 17 provisional ballots, based on their review, 18 should be accepted and counted and that a certain 19 number need further determination by the Board. 20 Is that correct? 21 A Yes. 22 Q And is there any piece of information on the 23 provisional ballot that the failure to include 24 that information would render it fatal and 25 rejected?

37 1 A Yes. I mean, we would follow the Secretary Page 37 2 of State directive and the Ohio Revised Code. 3 For example, the failure to have a signature 4 would render it fatal -- would be a fatal error, 5 and that is -- 6 Q Anything else? 7 A I mean, if they voted in the incorrect 8 precinct, that would be a fatal error. If 9 they've cast a ballot in another precinct, that 10 would be a fatal error. Or they voted absentee. 11 Q Anything else that you can recall? 12 A I mean, it would be all of those requirements 13 in the Ohio Revised Code, which I don't think you 14 want me to read all of them, that state that it 15 would be disqualified. 16 MS. FULLER: Thank you, 17 Miss Mullane. And I don't have 18 any more questions. 19 Do you have any more, 20 Mr. Epstein? 21 MR. EPSTEIN: I do not. 22 Thank you. 23 MR. ESKRIDGE: I have no 24 questions. Thank you. 25 MS. FULLER: Thank you so

38 1 much for your time today. We Page 38 2 appreciate your cooperation. And, 3 Miss Mullane, I don't know if your 4 attorney has explained signature 5 to you. 6 MS. MILLER: I will 7 explain. 8 You have an opportunity to 9 review the transcript on this to 10 look to see if there are any 11 misspellings, inaccuracies. 12 You're not allowed to change 13 anything, so my advice to you is 14 just to waive that reading. So if 15 you would like to do that -- we 16 will be waiving reading. 17 THE WITNESS: Okay. 18 MS. MILLER: Miss Mullane 19 is indicating she is waiving 20 reading. 21 MS. FULLER: Thank you. 22 MS. MILLER: And, Jennifer, 23 who will we be hearing from 24 regarding your subpoena for 25 tomorrow?

39 1 MR. EPSTEIN: As I said, Page 39 2 I'm hopeful that I'm going to have 3 a definitive answer within the 4 hour. Tell me who to call and 5 give me a phone number. I will 6 get back to you as soon as 7 possible. 8 MS. MILLER: Do you want 9 them to call me or MR. EPSTEIN: And we're 11 certainly going to do everything 12 we can to avoid having people come 13 down here for no reason. 14 MS. MILLER: Jennifer, is 15 that how you prefer to handle 16 this, the AG to release the Board 17 from the subpoena? 18 MS. FULLER: If they will 19 agree to accept your testimony by 20 deposition versus live testimony, 21 then we will not object to their 22 position. 23 MS. MILLER: So you agree 24 to them calling, or accept it? Or 25 do you want them to call you and

40 1 you call us? I just want to know Page 40 2 who to expect to hear from and 3 that that is agreeable to the 4 parties. 5 MS. FULLER: I trust that 6 Mr. Epstein will not represent to 7 you anything that has not been 8 agreed upon by the parties. 9 MS. MILLER: So, Aaron, if 10 you would like to give me a call. 11 MR. EPSTEIN: Who's "me"? 12 MS. MILLER: This is Sharon 13 Miller from the Prosecutor's 14 office. 15 MR. EPSTEIN: And, Sharon, 16 if you can give me a during hours 17 and an after hours number just in 18 case we run late. 19 MS. MILLER: Okay. I'm out 20 of the office for the deposition, 21 so I'll give you my cell phone MR. EPSTEIN: ? 24 MS. MILLER: Yes. 25 MR. EPSTEIN: All right. I

41 1 will call you as soon as I can. Page 41 2 MS. MILLER: Okay. Thank 3 you. 4 MR. EPSTEIN: Okay (Deposition concluded at 3:53 p.m.) (Signature waived.)

42 1 The State of Ohio, ) ) SS: CERTIFICATE 2 County of Cuyahoga. ) 3 I, Arlene M. Fassinger, Notary Public within and for the State of Ohio, duly commissioned and 4 qualified, do hereby certify that the within-named JEANETTE MULLANE was by me first duly sworn to testify 5 the truth, the whole truth, and nothing but the truth in the cause aforesaid; that the testimony then given 6 by him/her was by me reduced to stenotypy in the presence of said witness, afterwards transcribed on a 7 computer, and that the foregoing is a true and correct transcript of the testimony so given by him/her as 8 aforesaid. 9 I do further certify that this deposition was taken at the time and place in the foregoing caption 10 specified and was completed without adjournment. 11 I do further certify that I am not a relative, employee of, or attorney for any of the 12 parties in the above-captioned action; I am not a relative or employee of an attorney for any of the 13 parties in the above-captioned action; I am not financially interested in the action; I am not, nor is 14 the court reporting firm with which I am affiliated, under a contract as defined in Civil Rule 28(D); nor 15 am I otherwise interested in the event of this action. 16 IN WITNESS WHEREOF I have hereunto set my hand and affixed my seal of office at Cleveland, Ohio 17 on this 23rd day of October, Arlene M. Fassinger, Notary Public in and for the State of Ohio. 22 My commission expires 3/21/ Page 42

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