IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO o"jg,nqz STATE OF OHIO, ex rel. JACK W. PAINTER, et al. Relators, vs. Case No JENNIFER L. BRUNNER ORIGINAL ACTION IN SECRETARY OF THE STATE OF. MANDAMUS OHIO, et al., Respondents RELATORS' MOTION FOR AN ORDER PURSUANT TO CIVIL RULE 65 AND SUPREME COURT RULE X, SECTION 2, FOR TEMPORARY INJUNCTIVE RELIEF PENDING THE COURT'S CONSIDERATION OF RELATORS' REQUEST FOR MANDAMUS RELIEF R. Joseph Parker ( ) W. Stuart Dornette ( ) John B. Nalbandian ( ) Taft Stettinius & Hollister LLP 1800 US Bank Tower 425 Walnut Street Cincinnati, GH Tel, Counsel for Relators

2 IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. JACK W. PAINTER, et al., Relators, vs. Case No JENNIFER L. BRL JNNER. ORIGINAL ACTION IN SECRETARY OF THE STATE OF MANDAMUS OHIO, et al., RELATORS' MOTION FOR AN ORDER PURSUANT TO CIVIL RULE 65 AND SUPREME COURT RULE X, SECTION 2, FOR TEMPORARY INJUNCTIVE RELIEF PENDING THE COURT'S CONSIDERATION OF RELATORS' REQUEST FOR MANDAMUS RELIEF Pursuant to Civil Rule 65 and Supreme Court Rule X, Section 2, Relator moves the Court for an order temporarily restraining Respondents the Hamilton County, Ohio Board of Elections, and their agents, servants, employees, attorneys and those persons in active concert or participation with them from undertaking any steps pursuant to Secretary Branner's January 7, 2011 letter to the Hamilton County Board of Elections and/or Directive until this Court can adjudicate the Relators' request for writ of mandamus

3 Respectfully submitted, R. Joseph Parker ( ) W. Stuart Dornette ( ) John B. Nalbandian ( ) Taft Stettinius & Hollister LLP 1800 US Bank Tower 425 Walnut Street Cincinnati, OH Te Counsel for Relators

4 MEMORANDUM IN SUPPORT [I]f the secretary of state 'has, under the law, misdirected the members of the boards of elections as to their duties, the matter may be corrected through the remedy of mandamus. If the secretary's `advice [to the board of elections] is an erroneous interpretation of the election laws there must be some remedy to correct the error and to require proper instructions in lieu of those erroneously given. State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, 20. Such relief is sought here. lmmediately before leaving her office and in the face of this Court's contrary interpretation of the relevant law earlier in the day, the Ohio Secretary of State has again erroneously interpreted Ohio law and misdirected the Hamilton County Board of Elections to count certain provisional ballots, in connection with an investigation of poll worker error. Specifically, now-former Secretary of State Jennifer Brunner decided that based on supposed statistical analysis and an apparent presumption poll worker error, "51% of [269 wrong precinct, right location] ballots were cast due to poil worker error and should be counted." Affidavit of Alex Triantafilou, January 8, 2011 ("Triantafilou Aff.") at 2; Exh. Q-2. By this action, Relators seek mandamus relief "to correct the error and to require proper instructions in lieu of those erroneously given." Even with the benefit of this Court's expedited consideration of Relators' request, there is a risk that the count directed by the Secretary of State will proceed. Such an occurrence would irreparably alter the status quo because the provisional ballots, once opened, are separated from the provisional voters' application (which is the sole document containing voter identifying information) and then conuningled with other ballots. As stated in the Affidavit of Alex Triantafilou executed December 19, 2011 ("First Triantafilou Aff."), filed contemporaneously with the Complaint: Upon completion of the review of a Provisional Ballot Application, if the provisional ballot voter is determined by the Board of Elections to be

5 eligible to vote, the envelope on which the Provisional Ballot Application is printed is opened and the ballot is removed. To assure the secrecy of the provisional voter's ballot choices, the Provisional Ballot Application envelope is then separated from the ballot it contains and the ballot is then commingled with all other provisional ballots cast in the Election. As a consequence, once the Provisional Ballot Application envelope is opened, it is impossible to determine the votes of any particular provisional voter, making an after-the fact assessment of the appropriateness of the Board of Elections' determination as to the eligibility of any particular provisional ballot voter impossible. Thus, disputes regarding the eligibility of Provisional Ballot Applications must be resolved before the Provisional Ballot Applications are opened and the enclosed ballots are separated from the Application envelopes. First Triantafilou Aff. 29. In short, the opening of the provisional ballots would ring a bell that cannot later be unrung. No legal remedy can change this fact. Thus, injunctive relief is necessary to maintain the status quo pending this Court's issuance of mandamus relief compelling the Secretary of State rescind Directive STATEMENT OF FACTS The background facts of this case are well known to the Court. Movant respectfully incorporates by reference the facts statement set forth in this Court's Opinion of last week, State ex rel. Painter v. Brunner, 2011-Ohio-35, In short, the certified results of the November 2, 2010 election (the "Election") show that Republican John Williams defeated Democrat Tracie Hunter by a margin of 23 votes in the election for Hamilton County Juvenile Court Judge. First Triantafilou Aff d 2. But, by way of a federal court action, Ms. Hunter has contested that 850 (previously uncounted) provisional ballots cast in the wrong precinct should be counted where poll worker error caused the voter to vote in the wrong precinct. Painter, 2011-Ohio-35, 4. The outcome of this election may be determined by disposition of 850 provisional ballots - previously rejected as invalid by a unanimous bipartisan decision of the Board of Elections - that are now the subject of the process dictated by post-election directives of the Secretary of State. Id. at

6 On January 7, 2010 at about 4:45 pm, this court released its Opinion in this case granting a "writ of mandamus compelling the secretary of state to rescind Directive and and to compel the board of elections to rescind its decisions made pursuant to those directives and to instead review the 850 provisional ballots that are the subject of Judge Dlott's order and are not subject to the consent decree in Northeast Ohio Coalitionfor the Homeless, with exactly the same procedures and scrutiny applied to any provisional ballots during the board's review of them leading up to its decision on November 16, without assuming that poll-worker error occurred in the absence of specific evidence to the contrary." Painter, Ohio-35, 52. That decision specifically addressed the 269 provisional ballots that had been cast in the wrong precinct but correct location in a multiple-precinct polling place, which were the subject of then-pending tie votes of the Respondent Hamilton County, Ohio Board of Elections (the "Board"), which tie votes had been submitted to Respondent Secretary Brunner. Board members Burke and Faux had submitted a statistical analysis to Secretary Brunner in support of their position that the 269 provisional ballots were cast in the wrong precinct due to poll worker error. This Court held that Faux and Burke corrimitted error by relying on statistical analysis to find poll worker error stating: Insofar as two of the board members appear to presume pollworker error in connection with the 269 provisional ballots cast in the wrong precinct but correct location in a multiple-precinct polling place, this is incorrect. Neither they nor respondents could rely on evidence obtained from the improper investigation ordered by the secretary of state and conducted by the board. Finally, the board members erred in relying on a statistical analysis comparable to the one we rejected in State ex rel. Yiamouyiannis v. Taft ( 1992), 65 Ohio St.3d 205, , 602 N.E.2d 644, to support their claim that poll-worker error occurred. Painter, 2011-Ohio-35, 51. At 6:01 pm, seventy-six minutes after this Court's decision in this case was released, Respondent Secretary Brunner issued a letter to the Board purporting to be a tie-breaking vote on two votes that the Board taken regarding the 269 provisional ballots cast in the wrong precinct but

7 correct location in a multiple-precinct polling place. A copy of that letter, along with the cover e- mail, is attached to the Affidavit of Alex Triantafilou of January 8, 2011 ("Third Triantafilou Aff."), filed contemporaneously with this Amended Complaint. Third Triantafilou Aff., 2; Exhs Q-1, Q-2. Contrary to Ohio law and this Court's decision of barely an hour earlier, Respondent found that, for "the reasons stated in summary of the Board's thorough and extensive investigation as set forth in members Burke and Faux's statement in support of their votes on the motion, there is sufficient circumstantial evidence of such weight as to support the conclusion that 51% of the `wrong precinct, but correct polling place ballots' were cast due to poll worker error, and I concluded that 51 % of these ballots were cast due to poll worker error and should be counted." January 7 letter, Secretary Brunner to Hamilton County Board of Elections, p. 3, Second Triantafilou Aff., Exh. Q-2. The tie votes that had been presented to her for decision were all-or-nothing. Two Board members had voted to count all of the wrong precinct, correct voting location provisional ballots; two board members had voted to count none of them based upon Ohio law and the lack of any evidence - beyond a cursory statistical analysis of where provisional voters lived andpercentages who had cast ballots in the wrong precincts. In its "Discussion" section, the letter adopts the statistical analysis of the two board members who had voted to count all of the 269 provisional ballots, then says that a subset (51%) of the 269 "should be counted." In its "Decision" section, the letter votes with "Chairperson Triantafilou and Board Member Gerhardt against the motion to p'roceed to authorize those ballots which are only defective to the extent that they were cast in the right location but in the wrong precinct, and that all of those ballots be counted. Accordingly, the motion fails." November 7 letter at p. 4. Third Triantafilou Aff., Exh. Q

8 Nothing in the letter purports to vote in favor of any motion to authorize some subset of those 269 provisional ballots to be counted. It is as if the Secretary were saying "if the tie vote before me had been on a motion to accept 51% of the ballots, I would have voted in favor of that motion." Because that motion was not before the Secretary, she voted with to reject the two motions that sought to count any of the 269 votes. Having voted with the two Board members who believed none of the 269 should be counted,.by the same , Respondent Secretary Brunner issued Directive , which, notwithstanding the fact that the Secretary had not broken any tie in favor of counting additional provisional ballots, directs the Board to determine which of the 269 ballots comprised the 51% that she believes should be counted. Third Triantafilou Aff., Exh. Q-3. Specifically, Secretary Brunner ordered that all provisional ballots be counted for voters whose: addresses were located on the wrong side of the boundary street in the precinct in which the voter should have cast a ballot...; addresses were located outside of the address range of the precinct in which the voter should have cast a ballot...; addresses were located on streets that pass through the precinct in which the voter voted but the address did not fall within the address range of the precinct in which the voter should have cast a ballot... Directive , Second Triantafilou Aff. Exh. Q-3. If the process proceeds and the 51 % of the 269 provisional ballots are opened and counted, as now-former Secretary Brunner directs, there will be no way to determine which ballots were eligible under the Ohio statutes and which were not. First Triantafilou Aff. 29. That is because after completing its review of all of the provisional ballots and determining which ones are valid and which ones are not, the envelopes containing all of the valid ballots are opened, the ballots separated from their envelopes, and the ballots are commingled and counted. Id. This is done to preserve voter anonymity. Once the provisional ballot envelope is opened, it is impossible to

9 determine the votes of any particular provisional voter, making an after-the-fact assessment of the appropriateness of the Board of Elections' determination as to the eligibility of any particular provisional ballot voter impossible. Id. Thus, consistent with the Board of Elections' statutory mandate, disputes regarding the eligibility of provisional ballots must be resolved before the provisional ballots are opened and the enclosed ballots are separated from the Application envelopes. See R.C (D) ("No provisional ballots shall be counted in a particular county until the board determines the eligibility to be counted of all provisional ballots cast in that county...:"). In the absence of interim injunctive relief, there will be no way to correct the Secretary of State's error in misdirecting the Board of Elections under the applicable statutes. Id. LAW AND ANALYSIS As this Court has said, Ohio law clearly provides for relief in mandamus where "the secretary of state `has, under the law, misdirected the members of the boards of elections as to their duties."' State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 2008-Ohio-633, 900 N.E.2d 982, 29 (citing State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, 20).1 An action in mandamus lies because, "if the secretary's advice [to the boards of elections] is an erroneous interpretation of the election laws there must be some remedy to correct the error and to require proper instructions in lieu of those erroneously given." State ex rel. Colvin, 2008-Ohio-5041, 20. In such circumstances, no deference is due the Secretary's interpretation because "we need not defer to the secretary of state's interpretation because it is 1 Supreme Court Rule X plainly states that the provisions of the Ohio Rules of Civil Procedure are applicable in an original action before the Supreme Court, unless they expressly conflict with this Court's Practice Rules or are otherwise "clearly inapplicable." See, e.g., State ex rel. Yearley v. Harden, 68 Ohio St. 3d 136, 137 (1993) ("[W]e have applied the Civil Rules in mandamus actions..."). One such rule that is not clearly inapplicable is Civil Rule 65, which permits a movant to seek injunctive relief in order to maintain the status quo pending a resolution of the merits of the case. Accordingly, Relators are entitled to seek temporary injunctive relief, pursuant to Civil Rule 65, as part of this original action, in order to simply preserve this Court's ability to ensure the proper enforcement and implementation of Ohio's election laws

10 unreasonable and fails to apply the plain" language of the statutes at issue. State ex rel. Stokes v. Brunner, 120 Ohio St.3d 250, 2008-Ohio-5392, 898 N.E.2d 23, 29. Indeed, in Stokes and Skaggs, the Court granted relief in mandamus where the Secretary of State erroneously advised the boards of elections. Id. at 30; State ex rel. Colvin, 2008-Ohio-5041, 63. Because such advice was premised on an incorrect interpretation of Ohio Election law, mandamus relief was appropriate. So, too, in State ex rel. Myles v. Brunner, 120 Ohio St. 3d 328, 2008-Ohio-5097, 899 N.E.2d 120, 27, the Court granted a writ of mandamus where the secretary of state issued a memorandum to boards of elections that had advised them to teject certain absentee ballot applications that did not contain a "check" in an affinnation box. Because the applicable statutory provision does not "strictly require that the box" be checked, the Secretary of State's interpretation failed to "apply the plain language" of the statute. Id. at 21, 26. Therefore, mandamus relief was appropriate. Id. at 27.2 Since a Writ of Mandamus is the proper remedy for addressing the Secretary of State's failure to comply with Ohio election laws, interim injunctive relief should be entered pending the Court's determination of Relators' request. The traditional factors to be considered for issuance of temporary injunctive relief under Civil Rule 65 track those elements necessary for mandamus relief: (1) whether the movant has shown a strong or substantial likelihood of success on the merits; (2) whether the movant has shown that it will suffer irreparable injury if the injunction is not granted; (3) whether issuance of an injunction will cause substantial harm to the respondent or to third parties; and (4) whether an injunction would serve the public interest. See Corbett v. Ohio 2 See also State ex rel. Melvin v. Sweeney (1950), 154 Ohio St. 223, 225 ("where there is an act of an officer requiring the construction of a statute, conceming which there may be an honest difference of opinion, mandamus is the proper remedy to compel such officer to act in accordance with the required construction, or to show cause why he does not")

11 Bldg. Auth. (10th Dist. 1992), 86 Ohio App. 3d 44, 49, 619 N.E.2d Here, each of the elements warranting entry of an injunction are present. A. Relators are Likely to Succeed on the Merits. To establish an entitlement to mandamus relief in an action against the Secretary of State, the Relators must establish: (1) "a clear legal right to the requested relief'; (2) "a corresponding clear legal duty on the part of the secretary of state to provide it"; and (3) "the lack of an adequate remedy in the ordinary course of the law." Stokes, 2008-Ohio-5392, at 13. Each of these elements is clearly present here. 1. Relator Painter, an Ohio resident and Hamilton County voter, has a clear legal right to the requested relief. Relator Williams, the successful candidate has a clear legal right to the requested relief. As a threshold matter, Relator Painter in this case, an Ohio citizen and Hamilton County elector, has standing to seek mandamus relief. Indeed, this Court has a "long line of cases establishing that mandamus is available to enforce public duties, that any duty related to an election is public, and that a citizen has the capacity to sue even if the duty only generally affects hirn." State ex rel. Barth v. Hamilton County Board of Elections (1992) 65 Ohio St.3d 219, 221, 602 N.E.2d 1130 (emphasis added). Thus, as a matter of law, Relator Painterhas a clear legal right to enforce "any duty related to an election," including the duty of the Secretary of State to ensure compliance with Ohio's election statutes. See, e.g., id. Similarly, Relator Wilhams has a clear legal right to have the outcome of the election decided in accord with Ohio's election laws. 2. The Secretary of State has a clear legal duty to ensure compliance with Ohio's election-related statutes, and to not "nusdirect" the County Boards of Elections. It is well settled that "election laws are mandatory and require strict compliance and that substantial compliance is acceptable only when an election provision expressly states that it is." Myles, 2008-Ohio-5097, at 18 (quoting State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St. 3d 472, 476, 448 N.E.2d 452). Consistent with this settled proposition, the Court has repeatedly

12 held that the Secretary of State has a clear legal duty, among others, to "[c]ompel the observance by election officers in the several counties of the requirements of the election laws." Id. at 11 (emphasis added); see also Stokes, 2008-Ohio-5392, at 14. Where the Secretary advises or instructs local boards of elections in a manner inconsistent with the express statutory language, she also has a clear legal duty, enforceable in mandamus, to correct her error and to ensure the boards' compliance with the plain statutory language. See Myles, 2008-Ohio-5097, at 27; Stokes, 2008-Ohio-5392, at 30. Consistent with these decisions, Secretary Brunner has a clear legal duty to advise county boards of election in strict compliance with the applicable election statutes and Ohio law. Ohio law is clear that voters must vote in the precincts in which they reside. R.C (eligible voter "may vote at all elections in the precinct in which the citizen resides"); (A)(1) ("No person shall... [v]ote or attempt to vote in any primary, special, or general election in a precinct in which that person is not a legally qualified elector"). Ballots cast in the wrong precinct will not be counted. R.C (C) ("ballot will not be counted if it is cast in the wrong precinct"). Indeed, in its January 7, 2011 Opinion in this case, the Court recognized that "[u]nder Ohio law, then, only ballots cast in the correct precinct may be counted as valid" and held that Ohio law "do[es] not authorize any exception based on poll-worker error to the requirement that ballots be cast in the proper precinct in order to be counted." Painter, 2011-Ohio-35, (citation and intemal quotation marks omitted). This Court yet further recognized in its Opinion of last week that there is a presumption against poll worker error under Ohio law, in any event, and that board of elections may not rely on statistical analysis to establish poll worker error: Moreover, as we explicitly held in another case challenging the secretary of state's instructions concerning the validity of disputed

13 provisional ballots, see Skaggs, 120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d982, at 51, quoting State ex rel. Speeth v. Carney (1955), 163 Ohio St. 159, 186, , 126 N.E.2d 449, election officials err in presuming poll-worker error because "`[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."' Insofar as two of the board members appear to presume pollworker error in connection with the 269 provisional ballots cast in the wrong precinct but correct location in a multiple-precinct polling place, this is incorrect. Neither they nor respondents could rely on evidence obtained from the improper investigation ordered by the secretary of state and conducted by the board. Finally, the board members erred in relying on a statistical analysis comparable to the one we rejected in State ex rel. Yiamouyiannis v. Taft (1992), 65 Ohio St.3d 205, , 602 N.E.2d 644, to support their claim that poll-worker error occurred. Painter, 2011-Ohio-35, Thus, for the same reasons that this Court held that the Ohio Secretary of State erred in directing the Board of Elections to conduct certain investigation into poll worker error, Ohio law plainly establishes that Secretary Brunner may not direct the Board to count 51% of 269 wrong precinct, right location provisional ballots. Secretary Brunner should have directed the Board to act in accordance with this Court's January 7, 2011 Opinion, Painter, 2011-Ohio-35. Instead, she directed the Board to act contrary to it. The Ohio Secretary of State has a clear legal duty to correct this error and to ensure that the statutes are properly enforced. 3. Relators do not have an adequate remedy in the ordinary course of the law As a matter of law, Relators lack an adequate remedy at law. As this Court stated in Colvin, "[G]iven the proximity of the... election as well as the recognized propriety of mandamus as an appropriate remedy to compel the secretary of state to issue instructions to boards of elections correcting previous erroneous instructions, Relators have established that they lack an adequate remedy in the ordinary course of the law." Colvin, 2008-Ohio-5041, at 17 (emphasis added); see also State ex rel. Heffelfinger v. Brunner (2007), 116 Ohio St. 3d 172, 2007-Ohio-

14 5838, 876 N.E.2d 1231, 13 ("Given the proximity of the... election, relators have established that they lack an adequate remedy in the ordinary course of law"). The same elements compelling this conclusion in Colvin are present here: extreme time sensitivity given the necessity for certification of the election results, and the Secretary's insistence that the Hamilton County Board of Elections act inconsistent with Ohio law. The nature of the irreparable harni likely to be sustained here is even more pronounced when the Court considers that once the provisional ballot envelopes are opened, the bell cannot be unrung. The opened provisional ballots are commingled with all other provisional ballots, and thus it is impossible for any court reviewing this matter in an election contest to make an afterthe-fact assessment of the eligibility of any particular provisional ballot. See Skaggs, 2008-Ohio B. Relators Will Suffer Irreparable Harm Absent Temporary Injunctive Relief. Absent a temporary injunction enjoining the opening of the provisional ballot envelopes, Relators will suffer irreparable hann, in the form described above. Once the provisional ballot envelopes are opened and the ballots intermingled, no legal remedy will be able to "unring the bell." See Skaggs, 2008-Ohio-633. No court will be able to remedy the harm caused by erroneous instructions from Secretary Brunner once the ballots are opened and commingled. C. The Harm Suffered Absent Temporary Injunctive Relief Clearly Outweighs The Alternative, And The Public Interest Favors Enforcement Of Ohio's Election Statutes. Any harm imposed by an order temporarily enjoining the opening of provisional ballot envelopes is clearly outweighed by the alternative, which would effectively deprive the Court of an opportunity to ensure that Ohio's election laws are properly enforced by the state official who is primarily charged with enforcing them. For the same reason, the public interest would clearly be served by a temporary injunction that merely preserves this Court's ability to ensure the proper

15 enforcement and implementation of Ohio's election laws. Election races, of course, should be determined consistent with the requirements of Ohio law, as opposed to the Secretary of State's current effort to rewrite the rules after the election has been held. See Skaggs, 2008-Ohio-633. CONCLUSION For the foregoing reasons, this Court should grant a temporary injunction restraiiiing and enjoining Respondents the Hamilton County Board of Elections, and their agents, servants, employees, attorneys and those persons in active concert or participation with them from undertaking any steps pursuant to Secretary Brunner's January 7, 2011 letter to the Hamilton County Board of Elections and/or Directive until this Court can adjudicate the Relators' request for writ of mandamus. Respectfully Submitted, `er ( ) W. Sa.ar'(Dornette ( ) John B. Nalbandian( ) Taft Stettinius & Hollister LLP 1800 US Bank Tower 425 Walnut Street Cincinnati, OH Tel parker@taftlaw.com dornette@taftlaw.com nalbandian@taftlaw.com

16 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing has been served this 10a' day of January, 2011, via , upon the following: R. Michael DeWine Ohio Attorney General 30 E. Broad Street, 17`b Floor Columbus, Ohio (614) Counsel for Respondent Ohio Secretary of State Jennifer Brunner Joseph T. Deters Prosecuting Attorney, Hamilton County, Ohio 230 E. Ninth Street, Suite 4000 Cincinnati, Ohio (513) Jennifer Branch Alphonse A. Gerhardstein Gerhardstein & Branch Co. LPA 432 Walnut Street, Suite 400 Cincinnati, OH jbranch@gbfirm.com agerhardstein@gbfinn.com Counsel for Intervenor-Respondent Tracie Hunter Donald J. McTigue Mark A. McGinnis McTigue & McGinnis 545 E. Town Street Columbus, OH dmctigue@electionlawgroup.com Counsel for Intervenor-Respondent Ohio Democratic Party

17 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