State ex rel. Summit Cty. Republican Party Executive Commt. v. LaRose (Slip Opinion) ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Summit Cty. Republican Party Executive Commt. v. LaRose, Slip Opinion No. 2021-Ohio-
1464.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-1464THE STATE EX REL. SUMMIT COUNTY REPUBLICAN PARTY EXECUTIVE
COMMITTEE v. LAROSE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Summit Cty. Republican Party Executive Commt.
v. LaRose, Slip Opinion No. 2021-Ohio-1464.]
Elections—Mandamus—Writ of mandamus sought to compel secretary of state to
appoint county political party’s recommended qualified elector to the
county board of elections—R.C. 3501.07—Secretary of state abused his
discretion in rejecting party’s recommendation—Writ granted.
(No. 2021-0327—Submitted April 21, 2021—Decided April 27, 2021.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} In this expedited election case, relator, the Summit County
Republican Party Executive Committee, seeks a writ of mandamus compelling
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respondent, Secretary of State Frank LaRose, to reappoint Bryan C. Williams to the
Summit County Board of Elections. We grant the writ.
I. BACKGROUND
{¶ 2} Williams is the current chair of the committee. In January 2021, the
committee submitted a recommendation to Secretary LaRose to reappoint
Williams, who had already served two terms as a member of the board, for a third
term, to run from March 1, 2021, through February 28, 2025.
{¶ 3} LaRose rejected the appointment in a letter dated March 3, 2021. In
his letter, he did not criticize Williams’s personal qualifications or conduct; rather,
he expressed concerns about the overall performance of the board, for which he
believed Williams and the other board members should bear ultimate responsibility.
Specifically, LaRose listed seven problems at the board as the basis for his decision
to reject the recommendation: (1) he had received complaints of a hostile and
unprofessional workplace at the board, (2) the board failed to distribute its
antidiscrimination and anti-harassment policy to employees and had not updated
the policy since 2004, (3) the board failed to properly update its voter rolls by
removing the names of deceased electors, leading to at least one documented
instance of voter fraud, (4) the board may have improperly canceled the registration
of certain felons who were qualified electors, (5) the board failed to maintain
bipartisan control of election administration, (6) the board failed to cross-train
employees on election-administration tasks and to ensure continuity of operations
during staff turnover, and (7) the board failed to adequately manage and control
traffic issues during the early-voting period for the November 2020 general
election.
{¶ 4} Also, on March 3, LaRose placed the board on administrative
oversight, citing the same seven concerns.
{¶ 5} On March 12, 2021, the committee filed its complaint for a writ of
mandamus to compel LaRose to reappoint Williams to the board. As a legal matter,
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the committee questions whether the secretary has the discretion to reject a
recommendation for reasons unrelated to that person’s personal misconduct. And
as a factual matter, the committee disputes the validity of LaRose’s reasoning in
the rejection letter.
{¶ 6} We extended the briefing schedule of this expedited matter to permit
the committee to depose LaRose and Amanda Grandjean, the director of elections
with the secretary of state’s office. ___ Ohio St.3d ___, 2021-Ohio-909, ___
N.E.3d ___. The case is fully briefed.
II. ANALYSIS
A. Mandamus actions challenging the secretary of state’s rejection of a
committee’s recommendation of an appointee to a board of elections
{¶ 7} A county board of elections consists of four members—two members
from each of the two major political parties. R.C. 3501.06(A) and (B). Although all
members must be appointed by the secretary of state, the county executive committee
of the appropriate political party typically recommends a qualified elector to fill any
vacancy. R.C. 3501.05(A), 3501.07. The secretary must appoint the recommended
elector unless the secretary “has reason to believe that the elector would not be a
competent member” of the board. Id.{¶ 8} When the secretary of state refuses to appoint an elector
recommended by a county executive committee, the committee may file an action
for a writ of mandamus in this court to compel the appointment. Id. In the
mandamus action, “the burden of proof to show the qualifications of the person so
recommended shall be on the committee making the recommendation.” Id. As in
any mandamus case, in order to prevail, the committee in this case must establish,
by clear and convincing evidence, a clear legal right to have Williams appointed to
the board and a clear duty on the part of LaRose to do so. State ex rel. Waters v.
Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Because R.C.
3501.07 expressly authorizes mandamus as a remedy, the committee is not required
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to demonstrate that it lacks an adequate remedy in the ordinary course of the law.
See State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 426-427, 639 N.E.2d 83(1994), overruled on other grounds, State ex rel. Caster v. Columbus, 151 Ohio St.3d
425, 2016-Ohio-8394, 89 N.E.3d 598.
{¶ 9} To meet that standard, the committee must show that LaRose abused
his discretion. State ex rel. Democratic Executive Commt. of Lucas Cty. v. Brown,
39 Ohio St.2d 157, 161, 314 N.E.2d 376 (1974). R.C. 3501.07 gives the secretary of
state “broad discretion in determining whether recommended appointees are
competent to be members of boards of elections.” Id. at 160. Therefore, to
successfully challenge LaRose’s assessment of Williams’s fitness, the committee
must show that LaRose’s rejection of Williams’s appointment was an abuse of
discretion. Id. at 161.
B. Williams’s qualifications
{¶ 10} From 1997 through 2004, Williams served as a state representative
in the Ohio General Assembly. During that time, he served as vice-chair of the
Ethics and Elections Committee.
{¶ 11} In February 2004, he assumed the position of director of the Summit
County Board of Elections. He remained in that position for four years and then
served as deputy director for two years. Beginning in March 2014, he served two
terms as a member of the board. His second term expired at the end of February
2021.
{¶ 12} In 2007, the secretary of state appointed Williams to serve on a task
force known as Project EVEREST, which conducted a comprehensive study of
electronic voting systems in Ohio. Project EVEREST led to more widespread use
of optical-scan paper ballots for voting in Ohio.
{¶ 13} In March 2021, Governor DeWine appointed Williams to the
University of Akron Board of Trustees. He has also been a member of the state
board of education and court administrator for the Summit County Juvenile Court.
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C. The scope of LaRose’s discretion
{¶ 14} LaRose concedes in his deposition that he has “no specific
knowledge” of any misconduct by Williams during his tenure as director and
deputy director of the board. And he has no knowledge of Williams personally
engaging in workplace hostility or harassment or unprofessional conduct. Rather,
LaRose “made the decision that none of the incumbent Board members should be
reappointed because this Board needs cultural change.”1 LaRose perceived a
culture of “dysfunction” at the board, based on the seven reasons he mentioned in
his letter, for which he felt Williams had to assume responsibility.
{¶ 15} The predicate legal question in this litigation is whether LaRose may
reject a recommendation for reasons unrelated to personal misconduct by the
recommended appointee. The committee contends that it has the right to select its
own board representatives, subject only to a limited right of the secretary of state
to reject a candidate who lacks the competence or qualifications to serve. And in
this context, the committee contends, a determination of incompetence requires
“individualized evidence that an incumbent board member or proposed board
member engaged in personal misconduct or personal misbehavior.” (Emphasis
sic.)
{¶ 16} The committee is correct that the court’s appointment cases typically
involve disqualifying conduct by the specific person under consideration. Most
recently, for example, the secretary of state rejected a prospective appointee who
used an official county e-mail address for partisan political activities. State ex rel.
Lorain Cty. Democratic Party Executive Commt. v. LaRose, ___ Ohio St.3d ___,
2021-Ohio-1144, ___ N.E.3d ___, ¶ 8, 18-19. And in Brown, 39 Ohio St.2d 157,
314 N.E.2d 376, the secretary of state rejected a prospective appointee whose
1. LaRose testified that he had decided not to reappoint either of the incumbent members of the
board. However, the other incumbent member, a Democrat, whose term on the board expired in
2021, chose not to seek reappointment.
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misbehavior included “ ‘attempt[ing] to by-pass the board [of elections] to undertake
actions of dubious legality’ ” and “ ‘inject[ing] abrasive partisan bickering into the
conduct of board business.’ ” Id. at 162, quoting the secretary’s letter explaining his
reasoning. However, we have not held that personal misconduct is the only measure
of incompetence to serve.
{¶ 17} In support of a broader discretion to reject recommended appointees,
LaRose cites State ex rel. Lucas Cty. Republican Party Executive Commt. v. Husted,
144 Ohio St.3d 352, 2015-Ohio-3948, 43 N.E.3d 411. In Husted, the secretary of
state rejected two appointees to the Lucas County board of elections. The first
appointee was deemed incompetent for typical reasons of misbehavior: she had a
“long history of disruptive and confrontational behavior [and] was repeatedly
described as engaging in intimidating tactics and abusive language with board
members and staff.” Id. at ¶ 35. The secretary rejected the second
recommendation, however, under a less traditional theory: we noted that the
secretary had described that appointee as “ ‘incompetent to serve’ primarily
because [the appointee] was unable to change the caustic environment [at the board
of elections] during his tenure as director.” Id. at ¶ 38, quoting the secretary’s letter
explaining his reasoning. The secretary did not accuse the appointee of personally
engaging in caustic or unprofessional behavior. Nevertheless, this court declined
to issue a writ of mandamus. The secretary had interpreted the notion of
competence to serve on the board, see R.C. 3501.07, to include the ability to
improve a poor work environment. We deferred to the secretary’s interpretation.
Id. at ¶ 39. Our independent assessment of the term “competent” in R.C. 3501.07
supports that interpretation.
{¶ 18} “Competent” means “having requisite or adequate ability or
qualities.” Merriam-Webster’s Collegiate Dictionary 253 (11th Ed.2003).
Competence to serve “involves qualities beyond intelligence and integrity [such as]
the basic ability to get along with co-workers and inspire confidence in the election
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system.” Husted at ¶ 27. We agree with LaRose that the best measure of Williams’s
competence to serve on the board of elections is the quality of his prior performance
on that very same board, and we would include his tenure as director and deputy
director. The question, however, is whether the evidence supports LaRose’s
assertion that Williams’s acts or omissions as a board member caused or contributed
to problems at the board. And on that score, we conclude that the evidence does not
support LaRose’s assertion of deficient performance.
D. LaRose’s reasons not to reappoint Williams
1. The first reason: a toxic work environment
{¶ 19} The first item in LaRose’s rejection letter read:
1. In recent months, my Office received complaints
regarding hostility in the workplace, unprofessionalism, and a
politically charged environment. The complaints describe a pattern
of political quid pro quo spanning many years.
{¶ 20} On December 8, 2020, Grandjean received an anonymous letter
alleging that there were problems at the board. The unknown author wrote:
Untitled
Director Grandjean,
I’m writing you under the anonymous reporting provision of
the Ohio Secretary of State’s Ethics policy to outline disconcerting
circumstances going on at the Summit County Board of Elections.
For years the Board has been a hostile workplace
environment. Employees are regularly demeaned by superiors.
There is a culture of fear. Jobs are handed out to people based on
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loyalty to the county parties and how much they can fundraise by
selling tickets to fundraisers—not through merit or qualifications.
Politics happens on county time regularly. Races are
discussed, volunteers are recruited for party functions, anyone that
doesn’t deliver politically can expect to find themselves without a
job. One need only look at a given party’s campaign finance reports
to see contributions from the Board employees. These are hardly
voluntary.
One board member even hired his daughter to work at the
board, something I believe is in violation of the Elections Officials
Manual.
I hope you’ll take these concerns into consideration. I hope
you’ll share them with the appropriate law enforcement and
regulatory bodies, especially the Ohio Ethics Commission.
{¶ 21} On January 13, 2021, Grandjean wrote to the board informing it of
the anonymous complaint and instructing the board to investigate the allegations.
Lance Reed, director of the board, responded to Grandjean’s letter. With respect
to the allegations of unprofessionalism, hostility, and political activity on state time,
Reed wrote that he and the deputy director were unaware of any such problems and
that the board’s human-resources department had not received any complaints.
Reed denied the allegations that had been made in the letter, expressly refuting the
nepotism allegation by pointing out that board members play no role in hiring
seasonal and part-time staff and that full-time staff—which are hired by the board
during public meetings—does not include any family member of any board
member.
{¶ 22} In his deposition, LaRose asserted that based upon briefings from his
staff members, “my judgment of the situation is that there’s reason to believe that
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these complaints are warranted and serious.” But the record lacks any evidence to
substantiate the allegations. Neither he nor Grandjean cites any evidence that
independently verifies the allegations or refutes the committee’s evidence that the
allegations are unfounded. LaRose does not know who wrote the letter. And yet
the entire basis for the first reason given by LaRose to reject Williams’s
appointment is that single anonymous letter.
{¶ 23} R.C. 3501.07 requires a reasonable belief that a person is
incompetent to serve on the elections board. Husted, 144 Ohio St.3d 352, 2015-
Ohio-3948, 43 N.E.3d 411, at ¶ 27. For this reason, it is an abuse of discretion for
a secretary of state to reject a recommendation based on rumors or suspicion. Id.An accusation without proof, anonymous or not, is not a reasonable nor reliable
basis for rejecting a county executive committee’s recommendation.
{¶ 24} Grandjean attests that the secretary of state received additional
complaints after placing the board on administrative oversight (that is, after the
secretary had already rejected Williams’s appointment). Affidavits from two
former board employees who lodged complaints are in the record. Namely, Karen
Considine’s affidavit includes an attached letter that she wrote to board members
in April 2016 complaining about a specific board employee who was (according to
Considine) rude to coworkers and the public. And Cecilia Robart’s affidavit offers
a laundry list of complaints, some that mirror the allegations in the anonymous
letter and others that do not. Robart’s affidavit alleges “severe partisanship among
management,” employees not working while on county time, a failure to train and
cross-train employees, and managers disrespecting and insulting subordinates.
{¶ 25} There are two problems with Considine’s and Robart’s affidavits.
First, R.C. 3501.07 requires the secretary of state, when rejecting a committee’s
recommendation for the board of elections, to set forth in writing “the reasons
therefor.” It logically follows that the secretary cannot defend an ensuing mandamus
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action by relying on after-acquired evidence that did not help form the basis of the
decision to reject the county party’s nomination.
{¶ 26} Second, even with the benefit of Considine’s and Robart’s affidavits,
LaRose’s concerns about a dysfunctional board culture remain the product of
rumors and suspicions. Considine’s affidavit features a five-year-old complaint
about one particular board employee. Robart’s accusations are serious, but LaRose
does not claim to have investigated and confirmed her claims.
{¶ 27} In State ex rel. Cuyahoga Cty. Democratic Party Executive Commt.
v. Taft, 67 Ohio St.3d 1, 615 N.E.2d 615 (1993), we held that “when the Secretary
of State rejects a recommended appointee for failure to comply with the campaign
finance laws, suspected violations of these requirements will not, standing alone,
justify the conclusion that the appointee is incompetent to serve.” Id. at 2. In that
case, the secretary acted on the basis of a newspaper article detailing the allegations
and on his own review of the financial disclosures. Here, LaRose unreasonably
relied on an even weaker indicator of incompetence, an anonymous complaint that
was much less probative.
{¶ 28} We hold that LaRose abused his discretion to the extent that he
rejected Williams’s appointment based on the first reason in his letter.
2. The second reason: failure to disseminate and update an
antidiscrimination and anti-harassment policy
{¶ 29} Next, LaRose wrote that he was rejecting Williams’s appointment
because:
2. According to the Board’s February 4, 2021 letter, the
Board adopted an anti-discrimination/anti-harassment policy in
2004 but failed to train the staff on, or even distribute the policy to,
staff. If a policy is not communicated to staff, it has no effect.
Moreover, the Board failed to reevaluate or update that policy in 17
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years. All employees deserve to work in a professional
environment, and failure to update and regularly disseminate
appropriate policies is a fundamental breakdown in basic human
resource management.
{¶ 30} On January 21, 2021, Grandjean wrote to the board to express
concerns regarding the administration of the November 2020 general election. This
was followed by a series of letters between Grandjean and Reed, the director of the
board. In one such letter, dated February 4, 2021, Reed wrote that the board had
adopted an anti-discrimination and anti-harassment policy in 2004 but that an
investigation revealed that the policy had never been provided to board employees.
In addition, Reed stated that the board had not adopted procedures for employees
to report suspected ethics violations. LaRose in his deposition characterizes the
failure to update the policy for 17 years as “a dereliction of duty” on the part of the
board, including Williams.
{¶ 31} In response, the committee argues that LaRose’s description of the
situation is misleading. On February 25, 2021 (before LaRose rejected Williams’s
appointment), Reed sent another letter to Grandjean. Responding to the concern
that the antidiscrimination and anti-harassment policy had not been updated since
2004, Reed passed along assurances from the insurance company that drafted the
policy that the language was “current with industry standards.” And Reed informed
Grandjean that all full-time board employees received training from the county’s
human-resources department every two years. The committee asserts that LaRose
omitted this information from his rejection letter “to create a false impression that
board employees did not receive any training at all.”
{¶ 32} To clarify that second point, Summit County Codified Ordinance
169.21 requires that all county employees receive antidiscrimination and anti-
harassment training every two years. As a result, board employees receive
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antidiscrimination and anti-harassment training from the Summit County
Department of Human Resources. That training includes, for example, “Diversity
and Inclusion Training” and “Sexual Harassment Training and Political Activity
Training.”
{¶ 33} LaRose contends that prior to February 2021, only one board
employee had completed the mandatory county training between 2018 and 2020.
As proof, he relies on an e-mail dated April 2, 2021, from Chip Clupper of the
Summit County Department of Human Resources and an attached spreadsheet that
were obtained by one of the attorneys who is representing LaRose in this case. Here
again, LaRose is relying on evidence that he did not have when he drafted the
rejection letter. And the quality of the evidence is dubious: an e-mail that is
arguably hearsay and an exhibit that is not authenticated. But the more significant
point is that although the parties dispute whether board employees have undergone
training, that was not the issue LaRose raised in his rejection letter.
{¶ 34} His only point was that the policy had not been updated or circulated
since 2004. LaRose ignored the evidence that the 2004 policy was consistent with
current requirements and therefore did not necessarily need updating.
{¶ 35} Finally, LaRose makes no claim to have ordered county boards of
elections to adopt anti-harassment or antidiscrimination policies. This contrasts
with his requirement for members and employees of boards of elections to sign an
“Ethics Policy Acknowledgement Form” acknowledging that they have reviewed
the secretary of state’s ethics policy and Ohio ethics laws and will comply with
them. Section B(5)(b) of the secretary’s ethics policy requires ethics training and
states:
All members and employees of the boards of elections shall
participate in any training offered by the Secretary of State regarding
ethics that is developed by the legal services, elections, and human
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resources divisions of the Secretary of State’s office in coordination
with other state ethics agencies
{¶ 36} The board complied with that requirement, but LaRose points out
nothing in his ethics policy or any other directive regarding antidiscrimination and
anti-harassment policies or training. Moreover, LaRose has not established that the
board or any individual member of the board has the responsibility to implement
and review antidiscrimination and anti-harassment policies.
{¶ 37} We hold that LaRose abused his discretion to the extent that he
rejected Williams’s appointment based on the second reason in his letter.
3. The third and fifth reasons: failure to cancel registrations for deceased
electors and failure to maintain bipartisan administration of election
functions
{¶ 38} Each month, the secretary of state sends the State and Territorial
Exchange of Vital Events (“STEVE”) report to the boards of elections. The STEVE
report provides a list of deaths in each county for the purpose of removing deceased
voters from the registration lists.
{¶ 39} The STEVE report includes a spreadsheet with a column labeled
“County” with no other explanation. For some months, the board’s employee who
was processing the STEVE reports sorted the data by county and canceled only the
names that were listed for Summit County. But the board later discovered that the
“County” entry referred to the county in which the person died, not the county
where the person was registered to vote. Although the employee sometimes
processed the form correctly, at other times she did not. And as a result, a
fraudulent ballot was cast in the 2020 general election in the name of a Summit
County elector who was not removed from the rolls because she had died in
Cuyahoga County.
{¶ 40} In the March 3 rejection letter, LaRose wrote:
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3. In addition, ongoing audits of the Board’s list maintenance
process revealed numerous errors in processing of the State
Territorial Exchange of Vital Events (STEVE), a report of deaths
given monthly to each county board of elections. The failure to
cancel voter registrations for deceased voters enabled at least one
instance of documented voter fraud. This failure of oversight which
led to the error likely occurred for years. Removing the deceased
from the rolls is a basic responsibility and failure to do so risks fraud
and loss of voter confidence.
{¶ 41} The parties dispute how widespread the STEVE-processing errors
were and who discovered the problem. But the relevant issue is whether the
problem represents a “failure of oversight” that reflects on Williams’s competency
to serve on the board.
{¶ 42} LaRose has not explained how the STEVE problem constitutes a
failure of oversight. In Secretary of State Directive 2021-03, Section 1.12, at 3-52,
available at https://www.ohiosos.gov/globalassets/elections/directives/2021/
dir2021-03-ch03.pdf (accessed Apr. 23, 2021) [https://perma.cc/4X2G-8699],
LaRose expressly describes the processing of the STEVE reports as a responsibility
of “[b]oard staff.” There is no indication that the board members are required by
any directive to supervise this process personally, especially when it can be shown
that just a single vote should not have occurred. While board members are not
personally responsible for processing the STEVE report, this is not to say there
should be no accountability for board members who fail to engage in appropriate
oversight of staff to catch potential fraud. Here, however, we cannot see this
particular situation as a basis for the secretary to find that Williams would not be a
competent board member.
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{¶ 43} LaRose’s concern over the STEVE report is also stated in in his
concerns about board staffing decisions.
5. The Board failed to ensure bipartisan control of election
administration. It came to light that the Board assigned one person
to each aspect of list maintenance, and there was inadequate
oversight of the process.
{¶ 44} LaRose stated in his deposition that the “oversight” problem was that
“critical aspects of elections administration” such as this should be “overseen by
both a Republican and a Democrat.” LaRose went on to say: “[Y]ou would never
empower one party to unilaterally carry out a task without the other party
overseeing it. Something as important as removal of a registration from the voter
rolls should certainly receive that kind of bipartisan care and oversight.” Grandjean
makes the same point in her affidavit: “the Board only assigned one employee
(instead of a bi-partisan team) to this task.”
{¶ 45} Bipartisan administration of critical election functions is a check and
balance aimed to prevent one political party from acting for its own partisan benefit.
There is no hint of an allegation that the failure to remove deceased electors from
the rolls was done to achieve a partisan advantage. The evidence in the record does
not indicate that assigning a member of the opposite party to process the STEVE
reports would have prevented the problem.
{¶ 46} The reason LaRose gave for his lack of confidence in Williams—the
lack of bipartisan administration of these reports—does not withstand scrutiny. We
therefore hold that LaRose abused his discretion to the extent that he rejected
Williams’s appointment based on the third and fifth reasons in his letter.
4. The fourth reason: disenfranchising people convicted of felonies
{¶ 47} The fourth reason reads:
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4. The Board may have improperly cancelled the voter
registration of persons convicted of felonies, but not incarcerated.
This likely led to the disenfranchisement of legally qualified voters
in Summit County. Not only is this clearly unacceptable but
obviously exposes the Board to the risk of litigation.
{¶ 48} Under Ohio law, a person who is convicted of a felony “is
incompetent to be an elector.” R.C. 2961.01(A). The boards of elections receive
information regarding felony convictions from two sources. At least once a month,
the clerk of the common pleas court is required to file with the county board of
elections the names and addresses of all persons convicted during the previous month
of crimes that qualify the person for disenfranchisement. R.C. 3503.18(C). And with
respect to federal felony convictions, the Department of Justice provides a list to the
secretary of state, who passes that list on to the county boards. Upon receiving such
a report, “the board of elections shall promptly cancel the registration of each elector
named in the report.” R.C. 3503.18(D).
{¶ 49} However, persons who have been disenfranchised due to a felony
conviction are competent to be electors when granted parole, judicial release, a
pardon, a conditional pardon (once the conditions have been performed), or release
under a non-jail community-control sanction or postrelease-control sanction. R.C.
2961.01(A)(2). Based on this provision, the secretary has interpreted the law to be
that only incarcerated individuals convicted of felonies should be stricken from the
voter rolls.
{¶ 50} Prior to LaRose’s March 3 rejection letter, the Summit County board
was canceling the voter registration of every person listed on the felony-conviction
reports. Thus, according to the secretary, the board may have been improperly
disenfranchising nonincarcerated individuals convicted of felonies, who were
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eligible voters. According to Grandjean, the board failed in its “responsibility to
evaluate the felony conviction information that it receives [in the two reports] and to
seek any additional information necessary to determine whether the individual is also
incarcerated before removing the voter from the voter registration database.”
{¶ 51} But if qualified electors were being removed from the rolls, it was at
least partially a problem of the secretary’s creation. In Secretary of State Directive
2021-03, Section 1.12, at 3-53, available at https://www.ohiosos.gov/
globalassets/elections/directives/2021/dir2021-03-ch03.pdf (accessed Apr. 23, 2021)
[https://perma.cc/4X2G-8699], the secretary explained the process by which felony-
conviction reports are sent to the boards. In the course of discussing the monthly
reports from the county clerks of courts, the secretary expressly informed the boards
that every name on the list is subject to disenfranchisement: “Accordingly, the list
should include only those names of persons who both have been convicted and
incarcerated.” (Emphasis added.) Id. Having first indicated to the boards that every
name on the county lists meets both criteria for disenfranchisement, LaRose bears
some responsibility for the lack of clarity that may have created error in Summit
County.
{¶ 52} In her affidavit, Grandjean asserts that LaRose did instruct the boards
to conduct their own investigation of both the county and federal lists. As support
for her claim, she points to a letter to the county boards from LaRose, in which he
wrote that “if any person on the enclosed list is registered to vote in your county, you
must cancel that person’s [registration] if you determine that the person is
incarcerated.” But those letters accompanied only the federal reports; the county
reports were sent straight to the boards of elections without going through the
secretary’s office. So, it is incorrect for Grandjean to suggest that these letters gave
any instructions regarding how to process the lists from the county clerks.
{¶ 53} The federal felony lists present a more complicated problem. The list
from the Justice Department has a column labeled “Months Custody.” For some of
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the individuals convicted of felonies, that column has a number, but for others, the
field is blank. In a February 2021 telephone conference with the secretary of state’s
staff, board chair Rich asked Grandjean and Chief Elections Counsel Jeff Hobday
what the blanks meant, whether they signified that the person was not imprisoned or
whether the data was simply incomplete for some reason. Grandjean and Hobday
indicated that they did not know and that they would look into it. As of the date of
her deposition, Grandjean stated that she had not received an answer from the
Department of Justice and still did not know what the blanks meant.
{¶ 54} But if Grandjean does not know what the blanks mean, then she does
not know whether these are nonincarcerated individuals convicted of felonies, which
means she cannot know whether the board has in fact wrongly disenfranchised
anyone. Criticism of the board for proceeding to disenfranchise individuals
convicted of felonies whose names appear on the federal list without investigating
what the blanks mean is not the same criticism that LaRose made in his rejection
letter.
{¶ 55} The secretary of state is the chief election officer of the state, R.C.
3501.04, and yet the secretary’s staff cannot explain to boards of elections what the
federal reports mean and has only recently taken steps to find out. When asked
whether the secretary’s office investigates to make sure that the people on the federal
list are incarcerated, Grandjean replied, “We are not required to.” Given these facts,
we are not persuaded that Williams is incompetent on the basis that his board,
receiving incomplete instruction from the secretary of state, may have
disenfranchised the people on the federal list, as it was apparently required to do,
without knowing what the blanks on the lists given the board signify.
{¶ 56} We hold that LaRose abused his discretion to the extent that he
rejected Williams’s appointment based on the fourth reason in his letter.
5. The sixth reason: lack of cross-training
{¶ 57} Next, LaRose wrote:
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6. The Board failed to cross-train employees on election
administration tasks and ensure that there was correct continuity of
operations when there is turnover in staffing.
{¶ 58} This assertion is not supported by the record. Three board members
attested that all eight front-office clerks are cross-trained on processing voter
registrations and candidate filings, updating and canceling registrations, verifying
petition signatures, and performing other administrative tasks. LaRose, on the other
hand, testified that he does not “have evidence one way or the other” regarding the
training of the employees. Cecilia Robart makes this allegation in her affidavit,
but, again, LaRose did not have that evidence when he wrote the rejection letter, so
it is unclear what basis he had for the assertion.
{¶ 59} Rather than defend the assertion, LaRose’s merit brief changes his
reason. He complains in his brief that the board staff has no standard operating
procedures or employee handbook and does not receive formalized written
performance reviews. But no matter whether those claims are true, they were not
given by LaRose as a reason for rejecting Williams’s appointment and cannot be
offered as post-hoc justifications for the decision.
{¶ 60} We hold that LaRose abused his discretion to the extent that he
rejected Williams’s appointment based on the sixth reason in his letter.
6. The seventh reason: traffic-control problems during early voting
{¶ 61} Finally, LaRose accused the board of failing to prepare adequately
for a high volume of early voters in the 2020 general election.
7. The Board failed to adequately prepare for and execute
efficient early in-person voting and control traffic issues during
early voting for the November 3, 2020 General Election. The Board
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should have heeded our warnings over the summer to expect at least
a doubling in absentee and early voting and make adequate
preparations to accommodate increased traffic. Even after I
personally contacted the Board Chair regarding the unacceptable
mismanagement of ballot drop off traffic, the Board failed to address
the situation. Many other boards set up multiple drive through drop-
off lanes and provided adequate staff and law enforcement presence
to effectively manage the increase in traffic which was predictable
and expected.
The evidence suggests that the traffic congestion during early voting was partly a
problem of LaRose’s creation and partly a consequence of unavoidable factors.
{¶ 62} In the spring of 2020, LaRose began alerting the boards to prepare
for the number of early absentee voters to double from previous years. In August
2020, LaRose directed the boards to have at least one drop box at each facility to
receive early ballots. At the same time, LaRose prohibited the boards from placing
drop boxes in any location other than at the board office itself.
{¶ 63} The Summit County board of elections office is located on Grant
Street. The board arranged for traffic arriving from Grant Street to travel through
the parking lot in a one-way flow around the building to the drop box and back to
Grant Street at a different exit.
{¶ 64} Close to 60 percent of all ballots in the 2020 general election were
cast before election day. The board experienced a few days of heavy traffic from
the combination of people returning absentee ballots and voting early in-person.
The problem, according to board chair Rich, was that just before the board office,
Grant Street narrows from four lanes to two. In other words, the congestion was
not due to the arrangements at the board but resulted from a traffic bottleneck on
the street approaching the board office.
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January Term, 2021
{¶ 65} LaRose learned of the heavy traffic from social media and news
reports and called Rich. LaRose urged Rich to place a bipartisan team of ballot
collectors on Grant Street in front of the board office, but Rich believed that would
actually slow down the process even more. Instead, Rich proposed stationing
bipartisan teams on a nearby road, Exchange Street, so drivers would not have to
turn onto Grant Street at all. Alternatively, Rich proposed placing collection teams
on Grant Street at a point before the bottleneck. According to Rich, LaRose vetoed
those suggestions because he felt the collection teams would be located too far from
the board office. LaRose testified in his deposition that he “didn’t give specific
guidance” for how to solve the problem because doing so “would [not] have been
appropriate.”
{¶ 66} LaRose fails to connect the traffic-flow problems during early voting
to any action or inaction by Williams. LaRose made the decision to prohibit ballot
drop boxes at any location other than the board of election office itself. Williams
had no control over the high volume of early voting or the bottleneck traffic pattern
on Grant Street. LaRose does not dispute Rich’s assessment that the traffic
problems stemmed from the bottleneck on Grant Street rather than from the
configuration the board had selected for drivers once they reached the board’s
parking lot. Nor does he contest Rich’s opinion that setting up staffed drive-
through drop-offs in the board’s parking lot, what LaRose calls “a Chick-fil-A-style
drive-through where you have multiple lanes,” would have tied up traffic more, not
less. And finally, LaRose does not testify that the congestion could have been
prevented if the board had taken some other action.
{¶ 67} We hold that LaRose abused his discretion to the extent that he
rejected Williams’s appointment based on the seventh reason in his letter.
E. Additional rationales for the rejection of the recommendation
{¶ 68} The rejection letter contained an eighth justification for rejecting the
committee’s recommendation, beyond the numbered points discussed above.
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LaRose wrote that “[t]hough you [Williams] have many years of experience
overseeing the Summit County Board of Elections, this long tenure has been marred
by a history of conflict within the Board and missteps in administering elections.”
However, Williams’s fellow board members, Rich and Bevan (both Democrats),
described Williams as “professional and collegial.” And LaRose could point to no
evidence of conflict between Williams and his Democratic counterparts on the
board.
{¶ 69} In his merit brief, LaRose raises a number of new allegations against
Williams. In addition to the reasons cited above, Grandjean’s affidavit refers to a
complaint the secretary received from the Summit County Health Department that
board employees were refusing to wear masks at work in violation of COVID-19-
related health orders. And she avers that the board approved a COVID-19 policy
but neglected to circulate it to the staff. Here again, LaRose did not provide these
specific allegations as bases for Williams’s alleged incompetency and cites no
authority for the proposition that he can defend his decision by raising these new,
specific allegations that were not part of his stated reasons for the rejection.
Because these allegations were raised for the first time in LaRose’s merit brief and
the committee has had no opportunity to take discovery or test the truthfulness of
the allegations, we decline to consider them.
III. CONCLUSION
{¶ 70} The committee has met its burden of proof to show that LaRose’s
reasons for rejecting Williams’s appointment were not valid and that he abused his
discretion. We therefore grant a writ of mandamus ordering LaRose to reappoint
Williams to the Summit County Board of Elections.
Writ granted.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, STEWART, and
BRUNNER, JJ., concur.
DONNELLY, J., concurs, with an opinion.
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January Term, 2021
_________________
DONNELLY, J., concurring.
{¶ 71} I agree wholeheartedly that mere rumors, suspicions, and
anonymous complaints that are not substantiated by any investigation are not an
appropriate basis to conclude that an appointee is incompetent to serve on a
county’s board of elections under R.C. 3501.07. See State ex rel. Lorain Cty.
Democratic Party Executive Commt. v. LaRose, ___ Ohio St.3d ___, 2021-Ohio-
1144, ___ N.E.3d ___, ¶ 24-25 (Donnelly, J., dissenting), discussing State ex rel.
Lucas Cty. Republican Party Executive Commt. v. Husted, 144 Ohio St.3d 352,
2015-Ohio-3948, 43 N.E.3d 411, ¶ 27. Consistent with my dissenting opinion in
Lorain Cty. Democratic Party Executive Commt., I concur in the decision to grant
a writ of mandamus compelling respondent, Secretary of State Frank LaRose, to
reappoint Bryan C. Williams to the Summit County Board of Elections.
_________________
Roetzel & Andress, L.P.A., Stephen W. Funk, and Emily K. Anglewicz, for
relator.
Dave Yost, Attorney General, and Julie M. Pfeiffer, Michael A. Walton,
and Caitlyn N. Johnson, Assistant Attorneys General, for respondent.
_________________
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