ORIGINAL IN THE SUPREME COURT OF OHIO. STATE OF OHIO, ex rel, JOHN W. PAINTER, et al, CASE NO Relators,

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1 ORIGINAL IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel, JOHN W. PAINTER, et al, Relators, CASE NO vs. JENNIFER L. BRUNNER SECRETARY OF THE STATE OF OHIO, el al., ORIGINAL ACTION IN MANDAMUS Respondents. RELATORS' MERIT BRIEF R. Joseph Parker ( ) W. Stuart Domette ( ) John B. Nalbandian ( ) Taft Stettinius & Hollister LLP 1800 US Bank Tower 425 Walnut Street Cincinnati, OH Tel. (513) Fax (513) Counsel for Relators Richard Cordray Attorney General of Ohio Richard Coglianese *Counsel of Record Erick D. Gale Michael J. Schuler Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16"' Foor Columbus, OH Tel. (614) Fax (614) richard. gov michael. gov Counsel for Respondent Ohio Secretary of State Jennifer L. Brunner

2 Joseph T. Deters Prosecuting Attorney Hamilton County, Ohio David Stephenson James W. Harper *Counsel of Record Hamilton County Prosecutor's Office 230 E. Ninth Street, Suite 4000 Cincinnati, OH Tel. (513) Fax. (513) Counsel for Respondent Hamilton County Board of Elections Jennifer Branch Alphonse A. Gerhardstein Gerhardstein & Branch Co. LPA 432 Walnut Street, Suite 400 Cincinnati, OH Tel. (513) Fax (513) Counsel for Intervenor-Respondent Tracie Hunter Donald J. McTigue Mark A. McGinnis McTigue & McGinnis 545 E. Town Street Columbus, OH Counsel for Intervenor-Respondent Ohio Democratic Party

3 Caroline H. Gentry Porter, Wright, Morris & Arthur One S. Main Street, Suite 1600 Dayton, OH Tel. (937) Fax (937) Counsel for Intervenor-Respondent Northeast Ohio Coalition for the Homeless

4 IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel, JOHN W. PAINTER, et al., Relators, vs. JENNIFER L. BRUNNER SECRETARY OF THE STATE OF OHIO, et al., Respondents. CASE NO ORIGINAL ACTION IN MANDAMUS RELATORS' MERIT BRIEF Pursuant to Supreme Court Practice Rules 6, 8, and 10 and this Court's December 29, 2010 Order, Relators submit this Merit Brief Respectfully submitted, (T01$0069) W. Dornatte ( ) John B. Nalbandian ( ) Taft Stettinius & Hollister LLP 1800 US Bank Tower 425 Walnut Street Cincinnati, OH Tel. (513) Fax (513) nalb aw. com Counsel for Relator

5 TABLE OF CONTENTS Paee TABLE OF AUTHORITIES..... ii STATEMENT OF FACTS...:...: ARGUMENT Proposition of Law No. I...14 Ohio law does not provide a general exception for the counting of provisional ballots cast in the wrong precinct due to poll worker error; even if it did, the contact and questioning of poll workers is contrary to Ohio law and unnecessary to comply with the Federal Court Order. Proposition of Law No. II...20 Secretary Brunner abused her discretion by issuing post-election and post-certification directives that are inconsistent with one another, inconsistent with her pre-election instructions and inconsistent with Ohio law....:...31 CONCLUSION... PROOF OF SERVICE......:

6 TABLE OF AUTHORITIES (alphabetical order) CASES In re Election ofnovember 6, I990 for the Office ofattorney General of Ohio ( 1991), 58 Ohio St.3d 103, 569 N.E.2d McMillan v. Ashtabula County Board of Elections ( 1993),..." 68 Ohio St.3d 3, 623 N.E.2d 43...:... """"""""'27 Sandusky County Democratic Party v. Blackwell,.... ' (C.A.6, 2006) 387 F. 3d ::.. I5,16 State ex rel. Skaggs v. Brunner (2008), 120 Ohio St.3d 506, 2008-Ohio-633, 900 N.E.2d :... passim State, ex rel. Yiamouyiannis v. Taft (1992), Ohio St.3d 205, 602 N.E.2d CONSTITUTIONAL PROVISIONS STATUTES Article IV...: Ohio Constitution, Section 5, R.C , 16 R.C (C)... R.C , 20,22, 24 ^) R.C :... 15,16 R. C ,15,16, , 30 R.C ii

7 INTRODUCTION This action is necessary because the outgoing Secretary of State has created chaos in an Ohio election by taking unprecedented steps to change Ohio election law and procedure to benefit a candidate of her party who lost a local judicial race by 23 votes. While the Secretary asserts that her actions have been undertaken to comply with a United States District Court order, that District Court rejected Ms. Hunter's attempt to enjoin the proceedings in this Court: "It is within the province of the Ohio Supreme Court to determine whether Secretary of State Jennifer L. Brurmer's directives comply with state law governing election procedures, and this Court will not enjoin the Ohio Supreme Court from doing so." District Court Order Denying Motion to Enjoin, Doc. 32, Hunter v. Hamilton County Board ofelections, No. 1:10CV820 (S.D. Ohio Dec. 27, 2010). Because they do not comply with Ohio law governing election procedures, Relators ask that this Court issue a writ of mandamus rescinding the following actions of the Secretary as well as any actions taken pursuant to those Directives: Directive (December 9), which directed the Hamilton County Board of Elections to do something no Board had ever done before in Ohio: contact and question more than 2200 poll workers in a quest for poll worker error; Directive (December 17), issued after two days of questioning of poll workers by the Board resulted in the testimony of 77 poll workers, which directed that the Board conclude its questioning within 6 days. That Directive also required that the Board conclude its investigation no later than December 28, and reduced the time for submission of tie votes from the 14 days set out in the statute (December days = January 11, one day after the new Secretary of State will take office) to 48 hours. The direct effect of Directive was to put the Secretary in the position to break an anticipated tie vote, at the December 28 meeting, on the counting of 269 provisional ballots that had been cast in the wrong precinct, but in the correct polling location

8 STATEMENT OF FACTS The key numbers at the heart of this dispute are the following: 23 The number of votes by which Mr. Williams defeated Ms. Hunter in the certified results of the November 2, 2010 election. 849 The number of voters who cast provisional ballots in Hamilton County who did not live in the precinct in which they cast their ballot. Under Ohio statutes, such votes are invalid and are not to be counted. The Hamilton County Board of Elections voted 4-0, on November 16, 2010, to reject all of those ballots. 269 The number of provisional ballots (subset of the 849) cast in the wrong precinct but in the right polling location of a multiprecinct polling location. Ohio statutes provide no exception for votes cast in the right polling location, but wrong precinct - they are still voted in the wrong precinct. The Democrat Board members have sought to count every one of those votes, and have urged the Secretary of State to break the tie at the Board and count all of those ballots, based solely on a presumption that they were miscast because of poll worker error. This case arises out of the November 2, 2010 election for Juvenile Court Judge of Hamilton County between Relator John Williams, a former assistant prosecutor, director of the Board of Elections, director of the Clerk of Court's office, and Intervening Respondent Tracie Hunter, a lawyer, pastor of a church, and radio joumalist and broadcaster. The election was for a judicial term to begin January 1, On election night, the Board counted substantially all of the ballots that had been cast absentee and on Election Day. (Affidavit of Alex Triantafilou ("Triantafilou Aff.") 4.) Mr. Williams led Ms. Hunter by 2847 votes. (Id.) There remained about 10,500 provisional ballots and a few ballots that had not yet been counted. (Id.) In the following days, Board staff reviewed all of the provisional ballots. (Id. 5.) On November 16, the Board met and made final determinations as to which provisional ballots were valid and to be counted. (Id.) The Board unanimously concluded that 849 provisional ballots were invalid and should not be

9 counted because they had been cast in the wrong precinct. (Id.) After that meeting, the envelopes containing valid provisional ballots were opened and the ballots were counted. (Id.) The results showed that Ms. Hunter had, among the provisional ballots that were counted, made up most of the vote difference with Mr. Williams. (Id. 6.) Mr. Williams won by 23 votes. (Id.) For Ms. Hunter, and her allies, it was clear that if she could get more provisional ballots opened and counted, she might be able to change the outcome of the race. They needed to find a large enough subgroup of the 849 uncounted provisional ballots that might get her more than 23 votes. On Sunday, November 21, Ms. Hunter filed a lawsuit in federal court, Hunter v. Hamilton County Board of Elections, No. 1: 10-CV-820, pending in the U.S. District Court for the Southern District of Ohio (hereinafter, "Federal Court Case"). (Triantafilou Aff. 7.) The theory was that the Board had violated equal protection and due process rights of voters in dealing with the provisional ballots. On November 22, the federal district court issued an order directing the Board "to examine all 849 faulty provisional ballots for poll worker error and, if such error is found, count the ballots as part of the mandatory recount "(Order is attached as Ex. A to Triantafilou Aff. ("Federal Court Order").) The Federal Court Order did not specify how the Board was to conduct its examination of the ballots - appropriate since "[t]he Constitution... leaves the conduct of state elections to the states. " Warfv. Board ofelections of Green County, Kentucky (C.A.6, 2010), 619 F.3d 553, 559 (citations and internal quotations omitted). Thus Ohio law governs the mode and manner in which the examination was to proceed, and Ohio authorities are responsible for administering that law based upon statates in place at the time of the election

10 Following the Federal Court Order, there followed three different Directives and one Advisory Opinion from the Secretary of State to the Board on how to conduct the examination that conflicted with one another, were contrary to Ohio law, were not required by the Federal Court Order, and were patently designed to cause the election to come out in a particular way. The chronology of events is as follows: Nov 22 Federal Court Order. (Triantafilou Aff., Ex. A). Nov 30 Directive directs Board to investigate all provisional ballots in which the voter provided identification solely in the form of the last four digits of her/his social security number; suggests contacting and questioning poll workers in those precincts in which multiple such provisional ballots were cast. Any questioning of poll workers to occur "at a public meeting of the board." (Directive is attached as Ex. C to Triantafilou Aff.) Dec 8 Hamilton County Board staff, conferring with legal counsel for the Secretary on the appropriate interpretation of , follows the wording of Directive and concludes in a bipartisan manner that it should contact and question poll workers regarding 12 provisional ballots. (Triantafilou Aff. 13.) Dec 9; 9 am Hamilton County Board meeting. Democrat Board members propose to accept and count, without further investigation, every ballot voted in the wrong precinct, but right polling place. Vote on motion tied, 2-2. (Id. 14, Ex. F at ) Dec 9; 4 pm Directive (expands procedures of from only those voters whose sole forni of identification was the last four digits of her/his social security number to all 849 provisional ballots rejected for having been cast in the wrong precinct; directs Board to contact and question poll workers in all precincts and polling places in which any provisional ballot was cast in the wrong precinct; any questioning of poll workers to occur before the Board. (Id. 15; Directive is attached as Ex. G to Triantafilou Aff.) Dec 11 Board ties 2-2 on a proposal to send questionnaires to all pollworkers in the polling places where any of the 849 provisional ballots were cast; that vote was never submitted to Secretary. Board then votes unanimously to undertake the investigation outlined in Directive ; will subpoena about 2200 poll workers for the questioning; votes

11 unanimously to advise Ohio Supreme Court of potential that process will not be concluded in time for the winner of the election to take office January 1. (Id. 16, Ex. H at 19, 2-6.) Dec 13 Board sends, by certified mail, first subpoenas to poll workers. (Id. 19, Ex. I.) Dec 14 Advisory advises Board to issue subpoenas: Board may offer poll workers the opportunity to answer a questionnaire in lieu of responding to a subpoena (if questionnaire is returned within 7 calendar days frorn when sent); questioning of poll workers "does not have to occur in the presence of the Board at a public meeting." (Id. 17; Advisory Opinion is attached as Ex. I to Triantafilou Aff.) Dec 16 First po11 workers appear before the Board to testify pursuant to subpoena about their experiences on Election Day. (Triantafilou Aff. 21.) Dec 17 Second day of poll workers appearing before the Board to testify pursuant to subpoenas. By the end of the second day of testimony, Board has taken testimony from 77 poll workers. (Id.) Dec 17; 4:12 pm Secretary issues Directive Board must move faster; all subpoenas must be issued by December 20; all testimony must be concluded by December 23. Board must send questionnaires to all poll workers and give them the opportunity to answer questionnaire in lieu of responding to a subpoena (so long as questionnaire is returned within 2 calendar days from when sent). Entire investigation to be concluded and final determinations made by the Board no later than December 28; any tie votes of the Board on any issue are to be submitted to the Secretary within 48 hours for final determination. (Id. 22; Directive is attached as Ex. E to Triantafilou Aff.) December Board sends out questionnaires to all 2200 poll workers in precincts/polling locations. Some 800 are returned over the following week. (Triantafilou Aff. 22, 25.) December 28 Board meets as directed by Secretary in : Based upon ftirther examination of Board staff as well as information developed during in-person questioning of poll workers, Board votes 4-0 to reject 565 votes and to count 16 of them (9 of these 16 ballots were actually found to have been voted in the right precinct and 7 of them were found to have been miscast as a result of poll worker error). Democrat Board members again propose to accept all ballots cast in the right

12 location/wrong precinct. (There are actually 850 provisional votes but 849 voters because one voter was found to have cast two ballots). (Id. 26, Ex. M at ) December 30 Democrat Board Members Timothy Burke and Caleb Faux send a letter asking Secretary Brunner to cast a tie breaking vote to count the 269 provisional ballots cast in the wrong precinct but correct polling place. (Of the original 286 right location/wrong precinct ballots, the Board found 17 that were deficient for other, undisputed reasons; these were rejected as part of the 565). (Id: 29, Ex. 0.) The chronology makes clear that Secretary's actions and pronouncements have been arbitrary and contradictory taking multiple approaches to help find 23 more votes for Ms. Hunter. First approach, Nov 22 - Dec 8: the NEOCH Ballots. Once the Federal Court Order was entered, the Board, its staff, and its counsel (the Hamilton County Prosecutor) worked to understand what needed to be done to examine appropriately the 849 ballots. (Triantafilou Aff. 11.) For those with a partisan bent, it was hard not to think about the number of ballots that might be affected by what kind of investigation. Early on, one particular class of ballots drew attention - those cast by persons who had used, as their form of identification, the last four digits of their social security numbers. Pre-election guidance had identified those provisional ballots as ones for which special attention should be directed, and the number of such provisional ballots was believed to be something over sufficient to make a difference in the race if they broke for Ms. Hunter. In 2006, a homeless advocacy group, Intervening Respondent Northeast Ohio Coalition for the Homeless ("NEOCH") had challenged Ohio's voter identification requirements in a federal court action in Columbus. The challenge was based, in part, on the fact that many homeless persons did not have the statutorily required forms of identification, but rather vote with no form of identification other than the last four digits of their social security numbers. In April 2010, the federal court had entered a consent decree that created a narrow exception to

13 Ohio statutory requirements that voters must vote in the precinct in which they reside - persons who vote with no form of identification other than their social security number. Such voters' provisional ballots cast in the wrong precinct could still be counted so long as it was voted in the correct polling location (a multi-precinct polling location) and it was voted in the wrong precinct "for reasons attributable to poll worker error." NEOCH Consent Decree, Doc. 210, Northeast Ohio Coalition For the Homeless v, Brunner, No. 2:06CV896 (S.D. Ohio April 19, 2010) ("Defendant Secretary of State, her agents, employees and representatives will instruct Ohio's county Boards of Elections to adhere to the following rules regarding the casting and counting of provisional ballots for persons without identification otber than a social security number"). Those rules specified that a provisional ballot cast by someone who had used only the last four digits of their social security number as identification could not be rejected if "The voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error." (Directive ) On November 1, 2010, the day before Ohio's general election, Secretary Brunner issued Directive , expanding upon the requirements for dealing with provisional ballots under the NEOCH Consent Decree. (Directive ) The concept of contacting and questioning poll workers, on a wide-scale basis after an election to determine the validity of provisional ballots, is not provided for in R.C (determination whether provisional ballot "are eligible to be counted") or elsewhere in Ohio's election statutes.' The first place that concept appeared was in Directive , addressing the narrow circumstances under which it would 1 Contacting and questioning poll workers is not required or necessarily contemplated in the investigation the Board was directed to undertake in the District Court Order. (Triantafilou Aff at 114). No poll worker had been contacted or questioned in connection with the original review of provisional ballots that the Board had conducted leading up to its November 16 determinations of valid and invalid provisional ballots

14 be appropriate for a county board of elections to contact poll workers and question them as to the specifies of the poll worker error that was referenced in the NEOCH Consent Decree. It was an undertaking limited to poll workers at polling locations in which multiple persons subject to the NEOCH Consent Decree had voted in the wrong precinct, but right polling location. Under only those circumstances, Directive suggested but did not mandate advised that a board "should" contact the poll workers to examine poll worker error, something the Hamilton County Board did not do prior to reaching its determinations on provisional ballots on November 16, (Triantafilou Aff. 10.) On November 30, 2010, eight days after the District Court issued its order, Secretary Brunner issued Directive to Hamilton County (Triantafilou Aff. 9; see also Directive time, both Republicans and Democrats working at the Board believed that ). At the something a little over 100 provisional ballots qualified for treatment under the NEOCH Consent Aff. 9.) Directive addressed the need to investigate provisional Decree. (Triantafilou ballots cast in the correct polling place but wrong precinct by voters who identified themselves by the last four digits of their social security number and to contact poll workers as a part of that investigation. At the request of the Board, the staff of the Board of Elections worked, in their customary bipartisan fashion, to develop a recommendation to the Board for proceeding with the investigation in accordance with all of the Secretary's directives, the Federal Court Order, the NEOCH Consent Decree, and Ohio law. (Triantafilou Aff. 13.) Board staff specifically worked with the Secretary's counsel to make sure their interpretations were correct. (Id.) By the end of the day on December 8, Board staff had concluded that the Board should, under Directive , contact and question poll workers in precincts and polling locations where 12 of the

15 provisional ballots had been cast. (Id.) That conclusion, certainly not enough votes to affect the election, brought a swift change of course. Next approach: contact and question thousands of poll workers. The very next day, December 9, Secretary Brunner issued Directive , directing for the first time in the history of Ohio that a board of elections should individually question every poll worker who had worked at an election in any precinct or polling place in which a provisional ballot was cast by a voter in the wrong precinct so as to make a factual determination as to whether that ballot had been cast in the wrong precinct because of poll worker error. (Triantafilou Aff. 11,12; see Directive ) No longer was the inquiry to be limited to the provisional ballots cast also by persons subject to the NEOCH Consent Decree, it was now to address a11849 provisional ballots cast in the wrong precinct. The Board was further directed to "contact" all poll workers in the precincts and polling places in which any of the 849 provisional ballots had been cast and also "question each poll worker to determine whether they followed Ohio law, Secretary of State Directives, and the Poll Worker Manual procedures for casting and processing provisional ballots." (Directive at 3.)2 On December 11, 2010, the Board met to address how to proceed in the face of the new directive. (Triantafilou Aff. 16.) Democrat Board members wanted to send questionnaires to all 2200 poll workers who had worked in the precincts and polling places where any of the 849 provisional ballots had been cast. (Id.) Republican Board members were concerned about the propriety of that approach as well as who might fill in the answers. (Id) Reluctantly, but in an effort to comply with the latest Directive, they proposed instead to send subpoenas to the 2200 poll workers and have them appear before the Board to give swom testimony - consistent with 2 Because the 849 ballots were cast in more than 370 different precincts, Directive directs the Board to contact hundreds of poll workers and question them as to poll worker error

16 what both and had specified. (Id.) The Board deadlocked 2-2 on questionnaires, then voted unanimously to send out the subpoenas and call the poll workers in for sworn testimony. (Id. 16, Ex. H at 19, ) Recognizing the extent of the task that the Secretary's Directive had directed it to undertake, the resolution the Board adopted also called for the Board to innnediately notify the Supreme Court of Ohio of the "potential for a vacancy on the Hamilton County Court of Common Pleas, Juvenile Division on January 1, 2011 if the Board has not concluded its investigation and contact with each poll worker:". (Id. 16, Ex. H at 2-6, 11.) Never before in an Ohio election had such a process been undertaken. It was not a process contemplated by the Ohio statutes nor by any pre-election directive; it was not something that was done to any of the other provisional ballots that the Board reviewed and passed upon. It was not required by the Federal Court Order. It was plainly driven by the Secretary's postelection and post-certification Directives. Contrary to Ohio law, the post hoc Directives contemplated 849 mini-trials in which the partisan Board interviews thousand of people under oath over a period of days and weeks. These 849 mini-trials were to be conducted by the Chairman of the Hamilton County Republican Party (Mr. Triantafilou), a longtime and active leader among the Hamilton County Republican Party (Mr. Gerhardt), the Chairrpan of the Hamilton County Democratic Party (Mr. Burke), and the Executive Director of the Democratic Party (Mr. Faux). Although all four are appropriately appointed members of the Board of Elections, they were thrust into a quasi-judicial role by the Secretary's Directives that has never been contemplated by state law. The first subpoenas were sent out on Monday, December 13 with the first witnesses to appear at 8:00 am, Thursday morning, December 16. (Triantafilou Aff. 18.) On Tuesday

17 evening, Secretary Brunner stepped in to provide Advisory to the Board as to how it could proceed with its hearings. (Id. 19, Ex. I.) The Advisory provided expressly for the subpoenaing of witnesses. However, while Directive had specified that any in-person questioning of poll workers be by the board "at a public meeting of the board," Advisory contradicted that pronouncement, noting that "The questioning of poll workers does not have to occur in the presence of the Board at a public meeting." Moreover, the Advisory suggested that the Board may send each poll worker a questionnaire. For those poll workers who also were issued a subpoena, the questionnaire may specify that if the questionnaire is completed and postmarked within seven (7) calendar days from the date the subpoena/questionrtaire is sent, the poll worker may be notified by the Board that the poll worker does not have to appear and give testimony pursuant to the Board's subpoena. Advisory at 2. Examination of witnesses began Thursday, December 16. (Triantafilou Aff. 19.) After three sessions (8:00 am to 11:00 am, 1:00 pm to 4:00 pm, and 6:00 pm to 8:00 pm) on Thursday and more on Friday, the Board had completed the testimony of 77 poll workers. (Id.) It was clear that the process implemented under Directive was going to take weeks to reach a conclusion. (Id.) With Christmas and New Year's coming, there was no way it could be concluded before Secretary Brunner left office. (Id.) That realization prompted the next abrupt change in the Secretary's approach. Next approach: Rush to judgment; establish a framework in which the Secretary of State can break a tie to count 269 more provisional ballots. At 4:12 pm on Friday, December 17, near the end of the second day of poll worker testimony in Cincinnati, Secretary Brunner issued Directive (Triantafilou Aff. 20; see also Directive ) By it, the Secretary ordered that the process speed up dramatically. While the Board had examined 77 poll

18 workers in the first two days, they were to subpoena every remaining poll worker by the end of the next business day, Monday, December 20, and conclude the testimony of the remaining 2100 or so poll workers no later than December 23. (Directive ) That approach was impossible,3 and the Secretary's directive plainly recognized that fact. (Triantafilou Aff. 21.) What the Secretary now wanted was for the Board to send out questionnaires. Directive , issued eight days earlier, had made no mention of questionnaires. Advisory , issued three days earlier, had said the Board "may send each poll worker a questionnaire." (Advisory at 2.) Now the Board "must issue questionnaires." (Directive at 3.) The option of questionnaires had been presented to the Board six days earlier, and was not adopted. (Triantafilou Aff. 21, Ex. H at ) What was adopted, by a 4-0 vote, was face-to-face questioning, under oath and in an open meeting following subpoena, consistent with our nation's long history of administrative fact-finding, albeit completely novel for a Board of Elections as a means of determining which additional invalid ballots to count. (Id. 21, Ex. H at 2-11.) Directive amounted to a unilateral reversal, by the Secretary of State, of a unanimous vote of the Board, yet another first. (Id. 21.) Nor did the changes stop there. In her quest for speed above all else, the Secretary no longer wanted to give poll workers seven calendar days from the mailing of a questionnaire to return it, which had been the message from the Advisory of three days earlier. (Id. 22.) Now the poll worker was to have just two calendar days from the mailing of the questionnaire to return it. (Directive at 3.) 3 The numbers demonstrate the absurdity of the Secretary's revised process. If the Board met 24 hours a day with no breaks, starting at 8 am on the day after the subpoenas were sent out through midnight on December 23, they could devote less than 2 minutes to each of 2100 witnesses they were to question

19 And to make sure that the process - including being able to break any tie votes that would arise - would be completed on her watch, the Directive also truncated statutory time periods in clear violation of Ohio law. (Triantafilou Aff. 23.) R.C (X) provides that tie votes of a board of elections are to be submitted "not later than fourteen days after the tie vote" to the Secretary of State for final determination by the Secretary. But 14 days was too long - if the Board met on December 28 to conclude its work on the investigation, 14 days later would be January 11, after Secretary Brunner had left office. (Id. 23.) To make sure that she would be in place to break the critical tie vote, she shortened the 14-day period set out in the statute to 48 hours. (Id.; see also Directive ) Recognizing it was impossible to complete its examination of witnesses by December 23, the Board knuckled under to the Secretary's strong-arm tactics, discontinued the in-person examinations, and sent out questionnaires to more than 2100 poll workers, asking that they be returned within two days. (Triantafilou Aff. 24.) On December 28, 2010 the Board met - as directed by the Secretary in Directive in order to vote on whether poll worker error existed. They had a record at that point of 77 witnesses' testimony and questionnaires from some 830 others. (Id.) Based upon its examination of Board staff as well as information developed during in-person questioning of poll workers, the Board unanimously approved the counting of 16 of the 8494 provisional ballots and unanimously rejected 565 ballots. (Id., Ex. M) The Democrat Board members again proposed to accept all ballots cast in the right location/wrong precinct, amounting to some 269, despite the absence of evidence of poll worker error. For them, the presumption of regularity became a presumption of irregularity. (Id. 24, 4 While the number of provisional ballots voted in the wrong precinct has been consistently viewed as 849, that technically is a count of voters, not ballots. One voter cast two provisional ballots - at the same precinct which was not his correct precinct. There are actually 850 provisional ballots cast by 849 voters

20 Ex. M at ) The Board voted 2-2 on these provisional ballots. (Id.) Therefore, on December 30, 2010, the Democrat Board Members sent a letter to the Secretary asking her to break the tie and count the 269 ballots. (Id. 24, Ex. 0.) As of this writing, the Secretary has not issued the tie-breaking vote. (Id. 24.) ARGUMENT The conflicting directives from the Secretary and the decisions, to date, by certain Board members to presume the existence of poll worker error are in direct conflict with Ohio statutes and pronouncements from this Court. And, importantly, none of those actions in conflict with Ohio law are necessary to comply with the Federal Court Order that additional investigation into poll worker error be conducted by the Board. That court has ordered an investigation but that investigation must comport with Ohio law. To date, it has not. 1. Ohio law does not provide a general exception for the counting of provisional ballots cast in the wrong precinct due to poll worker error; even if it did, the contact and questioning of poll workers is contrary to Ohio law and unnecessary to comply with the Federal Court Order. It is important for this Court to understand that, as a general matter, there is no exception under Ohio law for counting wrong precinct ballots for poll worker error. It is up to the Ohio legislature to determine whether such an exception ought to exist and to determine whether and to what extent an investigation into poll worker error might be practical in light of the need to administer, determine, and certify elections within reasonable time frames in Ohio. Relators understand, however, the practical reality that the Hamilton County Board of Elections, in its initial review of provisional ballots in the days following the November 2 election, did count certain votes that it apparently determined were miscast as a result of poll

21 worker error. But the nature of any further investigation in this case must, at a minimum, be informed by whatdhio law is.5 no general exception in Ohio law for the counting of provisional A. There is ballots cast in the wrong precinct due to poll worker error. Ohio's election system, like the majority of states, is precinct-based. Under this system, a person is only qualified to vote in the precinct in which he or she resides. See R.C (A) (a person "may vote at all elections in the precinct in which the citizen resides"). Indeed, it is illegal for a person to vote or attempt to vote in "a precinct in which that person is not a legally Sandusky County Democratic Party v. Blackwell (C.A.6, qualified elector." R.C ; 2010), 387 F.3d 565, 571. The federal Help America Vote Act established a "system for provisional balloting, that is, a system under which a ballot would be submitted on Election Day but counted if and only if the person was later determined to have been entitled to vote" Sandusky, 387 F.3d at 569. While federal law requires that states have a system for provisional ballots, states determine Id. at 577. As a result, Ohio has "whether a provisional ballot will be counted as a valid ballot." See State ex rel. enacted specific rules conceming the determination of a valid provisional vote. (2008), 120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, at 33 (citing Skaggs v. Brunner sections Ohio General Assembly adopted for provisional voting: R.C ("Eligibility to cast provisional ballots - procedure"), ("Provisional ballot affirmation - verification"), and ("Testing and counting of provisional ballots - rejection")). 5 In his concurring opinion to this Court's grant of Relators' alternative writ of mandamus, Former Chief Justice Brown essentially states that there exists a fundamental constitutional right to have one's vote counted where the deficiency under state law was due to poll worker error. however, Un ted StatesSupeme Courtf And moreover, in herofederpal case, Mhe d cisions of the is Hunter has never made such an argument

22 Under Ohio law, a person whose name does not appear on the poll book for that precinct is permitted to cast a provisional ballot if the person complies with certain statutory requirements, including providing identification and signing an affirmation. R.C The casting of a provisional ballot does not guarantee that the provisional ballot will be counted. Indeed, "the voter casts a provisional ballot at the peril of not being eligible to vote under state law; if the voter is not eligible to vote, the vote will not be counted." Sandusky, 387 F.3d at 576; R.C (affirmation required to be signed by provisional voter: "I understand that, if the board of elections determines that I am not... a resident of this precinct,... my provisional ballot will not be counted"). Section is not the only place in Ohio's provisional ballot law that the General Assembly made clear that provisional ballots cast in the wrong precinct are not to be counted. That fact is clear in each of the three sections enacted. Specifically, R.C (C)(2)(a) provides that a provisional ballot cast by an individual shall not be opened or counted if "the individual is not properly registered in that means the precinct in which a person is jurisdiction." R.C (E)(1) states "Jurisdiction" legally qualified to vote. And the same principle is found in R.C (B)(4)(a)(ii), which states that the board "shall not" count, or even open, a provisional ballot where it determines that "[t]he individual named on the affirmation is not eligible to cast a ballot in the precinct... in which the individual cast the provisional ballot" (emphasis added). Thus, Ohio law is clear. A provisional ballot that is cast in the wrong precinct is not valid and should not be counted. The statutes provide no exception. The one exception to Ohio's general rule regarding not counting out-of-precinct ballots is the result of a specific federal court action and Secretary of State directive. In October 2006,

23 Intervenor NEOCH filed a complaint on behalf of its homeless members in federal court in Columbus alleging that Ohio's voter identification law violated Equal Protection and Due Process. Intervenor Ohio Democratic Party eventually joined this suit as a Plaintiff. Ohio's voter identification law requires that individuals provide proof of the elector's identity by providing certain documents that would confirm an individual's address. R.C But R.C also allows a person who does not possess any of the listed identifications to cast a provisional ballot by providing the poll worker the last four digits of his Social Security number. R.C (A)(2). NEOCH specifically alleged that Ohio county boards of elections were applying different standards to the term "current" identification that must be presented by the prospective elector and the voter identification laws violated equal protection because its homeless members did not have identification to show a current address. The parties, including NEOCH and the Ohio Democratic Party, eventually entered into a consent decree on April 19, 2010 ("NEOCH Consent Decree"), which creates the following extremely narrow exception in which provisional ballots cast in the wrong precinct are to be counted: 1) a person uses the last four digits ofxheir Social Security number as their only form of identification; 2) the person voted in the correct polling location, but wrong precinct; and 3) the person voted at the correct polling place but wrong precinct for reasons attributed to "poll worker error" (the "NEOCH Test"). NEOCH Consent Decree. The NEOCH Test creates a mechanism whereby county boards of elections can count the votes of homeless people that would otherwise go uncounted. Ohio's precinct-based voting system is derived from residential addresses. In accordance with the NEOCH Consent Decree, Ohio's Secretary of State, Jennifer Brunner, issued Directive That directive states that "[i]f the person who cast the not registered to vote or is not eligible to vote in the particular provisional ballot is either

24 election in question (e.g., if the vote is cast in the wrong precinct), then pursuant to R.C (B)(4)(a)(i) and (ii), the board may not count that ballot " (Directive (emphasis in original).) Later in the directive, under the section entitled, "VII PROVISIONAL BALLOTS THAT MAY NOT BE REJSCTED DUE TO POLL WORKER ERROR," it states that provisional ballots that satisfy the NEOCH Test should be counted. However, the directive does not set forth specific criteria that must be followed by the Board to determine poll worker error. Instead, it merely states "poll worker error will not be presumed and must be demonstrated through evidence." (Directive (emphasis in original).) The language about poll worker error not being presumed came directly from this Court's decision in Skaggs, 120 Ohio St.3d 506, 900 N.E.2d 982. That case involved provisional ballots that were disputed because of defects related to names and affirmations on the provisional applications. In that specific context, the Court rejected a premise that had been drawn by the Secretary of State that poll worker error must have been the cause of certain defects. But the Court determined the opposite: "[I]n the absence of evidence to the contrary, public officers, administrative officers and public authorities, within the limits of the jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully." Skaggs at 51, quoting State ex rel. Speeth v. Carney (1955), 163 Ohio St. 159,185, 126 N.E.2d 449. The "secretary's interpretation requires us to presume that numerous statutory subsections were not followed by poll workers from both political parties and to in effect assume no error by any voter." Skaggs at 46. Importantly, this Court directed the Secretary of State to advise the relevant county board of elections that it could not count any provisional ballot unless it contained both the name and signature as required by Ohio law. If such a ballot did not contain the correct information, it had g

25 to be rejected. There was no exception recognized by this Court for poll worker error, whether presumed or not. Skaggs at 63. decision did address what would not qualify as poll worker error, it did While the Skaggs not concem provisional ballots cast in the wrong precinct. This Court certainly did not establish, any sort of broad-based exception to allow votes cast in the wrong precinct to be in Skaggs, counted in the event of poll worker error. B. Even if Ohio law provided a general exception for counting ballots cast in the wrong precinct due to poll worker error, the contact and questioning of poll workers is not provided for under Ohio law. Even if this Court were to recognize a general exception - that poll worker error must be investigated - that investigation must be limited to an examination of the poll books, help lines, and provisional ballot envelopes. In no event should this Court endorse a procedure like the one contained in the Secretary of State's post-election Directives mandate, for Hamilton County alone, that ordered an investigation consisting of the individual questioning of more than 2200 poll workers from hundreds of different precincts. This process is neither provided for nor contemplated under Ohio law. Moreover, an investigation undertaken in that fashion will unduly prolong the determination of the outcome of this or any election. No such investigation has been done in any other County in this election or in prior elections. If applied to all of Ohio's 88 counties, such an investigation of provisional ballots cast in the wrong polling location would preclude Ohio from completing its counting of votes until many weeks following an election. Furthermore, such a process would be anything but an orderly investigation. It would be an investigation in which truth is sacrificed to speed. It will add huge costs in overtime and fatigue to Board staff who have already dealt with a major election and its aftermath; it will discourage poll workers from staying their positions if they know that what they do on Election

26 Day is going to be the subject of a public grilling 6-8 weeks after the fact; and it will turn a carefully crafted non-partisan process into a highly partisan and political process wherein the ultimate winner of an election is to be determined by the "final" determination of a potentially partisan occupant of the office of Ohio Secretary of State in her last few weeks in office. R.C (X). If this type of an investigation is supposed to be a part of Ohio law, the General Assembly should be the one to adopt it. Finally, the contact and questioning of individual poll workers was never required - expressly or implicitly - by the Federal Court Order. No poll workers had been contacted or questioned prior to the Board's original determination on the provisional ballots. Thus no equal protection issue arose from the failure to contact or question such poll workers. II. Secretary Brunner abused her discretion by issuing post-election and postcertification directives that are inconsistent with one another, inconsistent with her pre-election instructions and inconsistent with Ohio law. Given this general background regarding what Ohio law generally requires, this Court must resolve the specific question of what the investigation should look like in this particular case in order to comply both with the Federal Court Order and Ohio law. Again, under Ohio law as enacted by the General Assembly and interpreted by this Court, it may well be that the Hamilton County Board of Elections erred when it decided to count some wrong precinct ballots that had been cast at the Board prior to the election on account of poll worker error. But be that as it may, it is apparent that the "investigation" that the Secretary of State ordered here, in a series of post-election Directives, violates Ohio law and constitutes an abuse of discretion. An additional investigation can occur in this case that both complies with the Federal Court Order and is consistent with the Secretary's pre-election Directives and Ohio law

27 It is an abuse of discretion for the Secretary to issue post election instructions that conflict with pre-election rules. Skaggs at 42. In Skaggs, this Court found that the Secretary "abused her discretion when she instructed the Franklin County Board of Elections during the counting of the votes that... disputed provisional ballots should be counted when she previously reasonably instructed them - and other county boards of elections - that they should not be counted." Id. at 59. Moreover, the Secretary's Directives resulted in an investigation where poll workers were issued subpoenas and questionnaires by the Board. (Directive ) 77 poll workers responded to those subpoenas and were questioned in person by the Board. Other poll workers responded to questionnaires. This quasi-judicial procedure, which occurred under Directives and , is unwarranted under Ohio statutory law and unworkable as a general matter. A more workable solution and one consistent with the federal court's order, is reversion to the Secretary's Directive , which, in turn, is essentially consistent with her Directive That additional investigation will involve a review of records existing at the Board of elections, like poll books and help line records. In addition, the Board can follow the procedure that it started following the issuance of Directive to identify any multi-precinct locations that had evidence of multiple errors for further investigation. A. Secretary Brunner issued post election directives concerning the contact and questioning of poll workers that are inconsistent with her pre-election instructions and anything that has ever been contemplated under Ohio law. Directives and , contrary to Skaggs, changed the rules for the election - after it was conducted and certified - by directing the Board to contact and question poll workers to determine the existence of poll worker error, when no such requirement existed prior to the Election. In fact, such a procedure has never existed under Ohio election law and was never

28 required for any provisional vote prior to the election, but merely "suggested" for a narrow group of provisional ballots in which the individual identified himself or herself by their social security number. Directive (After the federal court ordered a further investigation into the 849 provisional ballots, the Secretary issued , which directed inquiry on that narrow group of provisional ballots). Consistent with Directive , the Board's bipartisan staff did the analysis and came to the conclusion that 12 ballots were potentially implicated - and that poll workers should be contacted and questioned in the precincts in which those 12 ballots were cast to see if poll worker error had led those persons to cast a ballot in the wrong precinct. (Triantafilou Aff. 13.) As soon as that conclusion was reached (within 24 hours), the Secretary issued Directive requiring the Board to contact and question every poll worker in every precinct in which any of the 849 ballots was cast - more than 2200 people. (Id. 15.) This change in course is not permitted under Skaggs and is a clear abuse of the Secretary's discretion. B. Secretary Brunner abused her discretion mandating a procedure that the Board previously and unanimously voted to reject. Under Ohio law, the Board is not a functionary of the Secretary. It does not answer to the Secretary, but rather, it is an independent body set up by the legislature in each county to manage the elections within that county. See R.C The Secretary is not a board member. R.C The Secretary's role in the operations of the Board is to appoint board members, appoint directors and deputy directors of the board, and to break tie votes at the Board level. The Secretary may not direct the Board to act, unless a tie vote of the Board is submitted to the R.C. 3501,11(X) ("In all cases of a tie vote or a disagreement in the board, if no Secretary. See shall submit the matter in controversy... decision can be arrived at, the director or chairperson to the secretary of state, who shall summarily decide the question, and the secretary of state's