State ex rel. Strbich v. Montgomery Cty. Bd. of Elections , 2024 Ohio 4933 ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Strbich v. Montgomery Cty. Bd. of Elections, Slip Opinion No. 2024-Ohio-4933.]
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. 2024-OHIO-4933THE STATE EX REL. STRBICH v. MONTGOMERY COUNTY BOARD OF ELECTIONS
ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Strbich v. Montgomery Cty. Bd. of Elections, Slip
Opinion No. 2024-Ohio-4933.]
Elections—Mandamus—Writ sought to compel county board of elections to provide
proper training to precinct election officials regarding use of unacceptable
forms of photo identification—Board failed to comply with its clear legal
duty to provide training in accordance with secretary of state’s directive—
While board updated its training materials to comply with secretary’s
directive, affected classes of individuals did not receive the updated
training—Board may comply with writ by emailing updated training
materials to affected classes of individuals—Writ granted in part and
denied as moot in part.
(No. 2024-1372—Submitted October 9, 2024—Decided October 11, 2024.)
IN MANDAMUS.
SUPREME COURT OF OHIO
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The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, BRUNNER, and DETERS, JJ. STEWART, J., concurred in part
and dissented in part and would deny the writ in its entirety.
Per Curiam.
{¶ 1} This is an expedited election case brought by relator, Marcell Strbich,
against respondents the Montgomery County Board of Elections and board
members Rhine L. McLin, Barbara P. Gorman, Erick R. Blaine, and Thomas A.
Routsong (collectively, “the board”). Strbich claims that the board has failed to
provide proper training to precinct election officials regarding the use of
unacceptable forms of photo identification for the purpose of voting, including the
use of photo identification issued to noncitizens. Strbich seeks a writ of mandamus
ordering the board to provide precinct election officials with proper training on this
issue in accordance with R.C. 3501.11(P) and Directive 2024-09 issued by
Secretary of State Frank LaRose. We grant the writ in part and deny it in part as
moot.
I. BACKGROUND
{¶ 2} Ohio law empowers the secretary of state to “[i]ssue instructions by
directives . . . to members of the boards [of elections] as to the proper methods of
conducting elections.” R.C. 3501.05(B). In turn, each board of elections “shall
establish a program as prescribed by the secretary of state for the instruction of
election officers in the rules, procedures, and law relating to elections. In each
program, the board shall use training materials prepared by the secretary of state
and may use additional materials prepared by or on behalf of the board.” R.C.
3501.27(B); see also R.C. 3501.11(P) (a board of elections shall “[p]erform other
duties as prescribed by law or the rules, directives, or advisories of the secretary of
state”).
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January Term, 2024
{¶ 3} A “precinct election official” is an “election officer” within a precinct.
R.C. 3501.22(A)(1). All precinct election officials must complete a program of
instruction in accordance with R.C. 3501.27(B). R.C. 3501.27(A). New election
officers must complete the program of instruction before participating in an election
as an election officer, and election officers who have previously received training
must complete the program of instruction when the secretary deems it necessary.
R.C. 3501.27(B). The duties of a precinct election official include “receiving the
ballots and supplies, opening and closing the polls, and overseeing the casting of
ballots during the time the polls are open.” R.C. 3501.22(A)(1). A board of
elections generally must “designate one of the precinct election officials who is a
member of the dominant political party to serve as a voting location manager,
whose duty it is to deliver the returns of the election and all supplies to the office
of the board.” Id.{¶ 4} On June 21, 2024, the secretary issued Directive 2024-09 to all board
members, directors, and deputy directors of the county boards of elections. The
secretary titled the directive “Election Administration Readiness and Preparedness
for the November 5, 2024, General Election.” The directive touches on several
topics, but the one at issue here directs designated officials with the boards of
elections to provide training to “all” precinct election officials, even if they have
previously received training, with respect to the following:
• How to verify a voter’s identity with the photo ID card provided by
the voter.
• How to ensure that only legally permissible forms of photo ID are
accepted and that [precinct election officials] are trained on
unacceptable forms of photo ID, including photo IDs issued to non-
citizens. Ohio BMV issued photo IDs now contain a non-citizen
notation on the back of the photo ID and license.
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SUPREME COURT OF OHIO
{¶ 5} In addition to Directive 2024-09, the secretary has adopted a precinct-
election-official training manual that contains examples of unacceptable forms of
identification, one of which is the “State of Ohio noncitizen identification, also
known as a Non Renewable/Non Transferable credential.”
{¶ 6} On September 25, Strbich, attended one of the precinct-election-
official training sessions conducted by the board. Strbich attests that he questioned
the presenter at the training about the lack of instruction addressing unacceptable
forms of photo identification, including the use of photo identification issued to
noncitizens. According to Strbich, the presenter told him that the instruction
materials related to the photo-identification issue were not “on hand” and that
because verification of a noncitizen’s identity is conducted earlier in the registration
process, there was no need to cover the issue.
{¶ 7} Strbich’s evidence also includes affidavits from Mary McGirr and
Jaclynn Shook, both of whom are voting-location managers. McGirr attests that
she attended the board’s training on September 20 and did not receive training
addressing the use of unacceptable forms of photo identification, including the use
of photo identification issued to noncitizens. Shook attests that she attended the
board’s training on September 27 and did not receive training on this issue either.
{¶ 8} Jeff Rezabek, the board’s director, attests that about two hours after
Strbich left the training session, Rezabek began receiving text messages from
individuals claiming that the board was not properly training its precinct election
officials. Within hours of receiving these messages, and to address the concerns
raised in the messages Rezabek had received, the board added additional slides to
its training materials to meet the requirements of Directive 2024-09 and added
talking points for its trainers. According to Rezabek, beginning on the evening of
September 25, the board began to train precinct election officials with these
amended materials, addressing the use of acceptable and unacceptable forms of
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January Term, 2024
photo identification, including the use of photo identification issued to noncitizens.
Beginning September 29, the board began to train voting-location managers with
these amended materials. The evidence thus establishes that before the evening of
September 25 (for precinct election officials generally) and before September 29
(for precinct election officials designated as voting-location managers), the board
was not providing training as required by the secretary’s directive regarding the use
of unacceptable forms of photo identification.
{¶ 9} Rezabek attests that an email containing the updated training
materials “will” be sent to all precinct election officials who attended the board’s
training before the evening of September 25 and that Strbich, McGirr, and Shook
will be included within the distribution. Rezabek further attests that “just before
Election Day,” the board will provide a final training session to its “Polling
Location Supervisors,” which will include photo-identification training in
accordance with the secretary’s directive.
{¶ 10} On September 30, Strbich brought this original action against the
board seeking a writ of mandamus ordering the board to comply with its legal duty
under R.C. 3501.11(P) to provide training in accordance with Directive 2024-09
“for all of its precinct election officials” regarding the use of unacceptable forms of
photo identification, including the use of photo identification issued to noncitizens.
We sua sponte expedited the case, directing the parties to file evidence and briefs
on a more expedited schedule than that required by S.Ct.Prac.R. 12.08(A). See
2024-Ohio-4763. The case is ripe for decision.
II. ANALYSIS
{¶ 11} To be entitled to a writ of mandamus, Strbich must establish by clear
and convincing evidence that (1) he has a clear legal right to the requested relief,
(2) the board has a clear legal duty to provide it, and (3) he does not have an
adequate remedy in the ordinary course of the law. State ex rel. Linnabary v.
Husted, 2014-Ohio-1417, ¶ 13. Strbich lacks an adequate remedy in the ordinary
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SUPREME COURT OF OHIO
course of the law because of the proximity of the election and therefore meets the
third element. State ex rel. LaChapelle v. Harkey, 2023-Ohio-2723, ¶ 8. An
analysis under the first two elements requires us to determine “whether the board
engaged in fraud or corruption, abused its discretion, or acted in clear disregard of
applicable law.” State ex rel. Brubaker v. Lawrence Cty. Bd. of Elections, 2022-
Ohio-1087, ¶ 10. The crux of Strbich’s argument in this case is that the board
clearly disregarded applicable law by failing to provide precinct election officials
with proper training regarding the use of unacceptable forms of photo
identification.
A. Clear legal duty
{¶ 12} Strbich argues that the board has a clear legal duty to provide training
to precinct election officials in accordance with Directive 2024-09. Strbich invokes
the precept that the “board of elections and its members have a duty to follow the
secretary of state’s directives,” State ex rel. Waters v. Spaeth, 2012-Ohio-69, ¶ 16.
And as we have already observed, R.C. 3501.11(P) requires the board to “[p]erform
other duties as prescribed by law or the rules, directives, or advisories of the
secretary of state.” In this case, however, the board does not contest that the law
imposes a duty on it to provide training in accordance with the secretary’s directive.
This element of the mandamus standard is thus easily met.
B. Clear legal right
{¶ 13} Strbich next argues that he and other precinct election officials have
a clear legal right to receive training on the secretary’s directive pertaining to the
use of unacceptable forms of photo identification. The board does not disagree with
this proposition in the abstract, nor does it dispute that Strbich may seek the writ
on behalf of himself and other affected precinct election officials, including
officials who are voting-location managers, such as McGirr and Shook. Instead,
the board argues that the case is moot because it has provided training on
unacceptable forms of photo identification in accordance with the secretary’s
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January Term, 2024
directive. It further argues that it will be sending an email to all precinct election
officials that contains the updated training materials. Last, it argues that it will
provide a training session to polling-location supervisors before the election that
will include the training on unacceptable forms of photo identification required
under the secretary’s directive.
{¶ 14} It is the function of this court “‘to decide actual controversies’ and
withhold advice upon moot questions.” State ex rel. Grendell v. Geauga Cty. Bd.
of Commrs., 2022-Ohio-2833, ¶ 9, quoting Fortner v. Thomas, 22 Ohio St.2d 13,
14 (1970). “When an actual controversy ceases to exist, ‘this court must dismiss
the case as moot.’ ” Id., quoting M.R. v. Niesen, 2022-Ohio-1130, ¶ 7. When a
respondent in a mandamus case performs the requested act, the case is moot. State
ex rel. Carlton v. Heekin, 2021-Ohio-2822, ¶ 3.
{¶ 15} In this case, Strbich seeks a writ requiring the board to conduct
training for precinct election officials in accordance with Directive 2024-09. The
evidence establishes that beginning on the evening of September 25 for precinct
election officials generally and beginning on September 29 for precinct election
officials who are voting-location managers, the board began providing training as
required by the directive. Thus, beginning on and after the evening of September
25, the writ action is moot for precinct election officials generally. So too,
beginning on and after September 29, the writ action is moot for precinct election
officials who are voting-location managers.
{¶ 16} But the evidence also establishes that before the evening of
September 25, the board had not fulfilled its duty as set out in Directive 2024-09 to
provide training to precinct election officials generally, including Strbich.
Therefore, for this class of affected individuals, the writ action is not moot.
Likewise, the evidence establishes that before September 29, the board had not
fulfilled its duty under the directive to provide training to precinct election officials
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SUPREME COURT OF OHIO
who are voting-location managers, including McGirr and Shook. The writ action
is accordingly not moot for this class of individuals either.
{¶ 17} The board’s promise that it will send emails to all precinct election
officials with updated training materials does not render the action moot for the
above-mentioned individuals, because the evidence does not show that any emails
have been sent. And the board’s statement that it will provide a final training to
polling-location supervisors does not cure its failure to perform its duty, because
the evidence does not establish that any of the affected individuals in this case are
polling-location supervisors. Indeed, Rezabek does not elaborate on whom the term
“polling-location supervisors” includes, and that term is not defined in Title 35 of
the Revised Code, which governs Ohio’s election procedures.
C. Scope of the writ
{¶ 18} The analysis in the preceding section establishes that it is appropriate
in this case to grant in part a writ of mandamus. To this end, we order the board to
provide training, consistent with Directive 2024-09, to the class of (1) precinct
election officials generally who attended the board’s training before the evening of
September 25 and (2) precinct election officials consisting of voting-location
managers who attended the board’s training before September 29. The board may
comply with the writ by sending an email to all affected individuals that contains
the updated training materials consistent with Directive 2024-09.
{¶ 19} We recognize that the board states that it will send these emails in
the future; however, so far, it has not done so. To ensure that the board complies
with its clear legal duty to provide training in accordance with the secretary’s
directive—training that two distinct classes of affected individuals have yet to
receive—we issue the writ.
{¶ 20} Strbich argues that emailing the training materials will not be
sufficient to satisfy the board’s duty, arguing that only in-person training will do
because there is a risk that some individuals may not read their email. But Strbich
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January Term, 2024
points to no authority requiring in-person training. And just as it can be imagined
that some individuals may not read their email, it can similarly be imagined that
some individuals may not pay attention to further in-person training even if we were
to require it.
III. CONCLUSION
{¶ 21} The writ is denied in part as moot for (1) precinct election officials
generally who attended the board’s training on or after the evening of September
25 and (2) precinct election officials consisting of voting-location managers who
attended the board’s training on or after September 29. We grant a writ of
mandamus in part ordering that the board provide training in accordance with the
secretary’s directive to (1) precinct election officials generally who attended the
board’s training before the evening of September 25 and (2) precinct election
officials consisting of voting-location managers who attended the board’s training
before September 29. The board may comply with the writ by sending an email
that contains the updated training materials to the affected classes of individuals.
Writ granted in part
and denied as moot in part.
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The Law Firm of Curt C. Hartman and Curt C. Hartman, for relator.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Nathaniel S. Peterson, Assistant Prosecuting Attorney, for respondents.
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