State ex rel. Ohio Democratic Party v. LaRose , 2024 Ohio 4953 ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ohio Democratic Party v. LaRose, Slip Opinion No. 2024-Ohio-4953.]
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-4953THE STATE EX REL. OHIO DEMOCRATIC PARTY ET AL v. LAROSE, SECY. OF
STATE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ohio Democratic Party v. LaRose, Slip Opinion
No. 2024-Ohio-4953.]
Elections—Mandamus—Writ sought to compel secretary of state to rescind
Directive 2024-21—Relators’ claims are barred by doctrine of laches—
Writ denied.
(No. 2024-1361—Submitted October 10, 2024—Decided October 15, 2024.)
IN MANDAMUS.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, and POWELL, JJ. BERGERON, J., dissented, with an opinion joined by
HOFFMAN, J. BRUNNER, J., dissented, with an opinion joined by BERGERON and
HOFFMAN, JJ. PIERRE H. BERGERON, J., of the First District Court of Appeals, sat
for DONNELLY, J. WILLIAM B. HOFFMAN, J., of the Fifth District Court of Appeals,
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sat for STEWART, J. STEPHEN W. POWELL, J., of the Twelfth District Court of
Appeals, sat for DETERS, J.
Per Curiam.
{¶ 1} In this expedited election case, relators, the Ohio Democratic Party
and voters Norman Wernet and Eric Duffy, have filed an original action in
mandamus against respondent, Secretary of State Frank LaRose. Relators seek a
writ ordering the secretary to rescind a directive he issued. The directive requires
that a person delivering an absentee ballot for a family member or disabled voter to
a county board of elections (1) complete an attestation at the board of elections
attesting that the person is authorized to return the ballot and (2) not return the ballot
to a drop box. Because we find that relators’ claims are barred by laches, we deny
the writ.
I. FACTUAL, PROCEDURAL, AND LEGAL BACKGROUND
A. Absentee voting in Ohio
{¶ 2} Ohio law allows electors to vote by absentee ballot. See R.C. Ch.
3509. An elector may return his or her absentee ballot to a county board of elections
by mail or in person. R.C. 3509.05(C)(1).
{¶ 3} A county “board of elections may place not more than one secure
receptacle outside the office of the board, on the property on which the office of the
board is located, for the purpose of receiving absent voter’s [sic] ballots under this
section.” R.C. 3509.05(C)(3)(a). These secure receptacles are commonly known
as “drop boxes.” Drop boxes shall be open to receive ballots “at all times”
beginning the first day after the close of voter registration before the election and
ending at 7:30 p.m. on election day. R.C. 3509.05(C)(3)(b). They must be
monitored by recorded video surveillance and may be opened only by a bipartisan
team of election officials. R.C. 3509.05(C)(3)(c) and (d).
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{¶ 4} Ohio statutes provide that only an elector, employees or contractors
of the postal service or a private carrier, and certain specified family members of
an elector may return an elector’s absentee ballot to the board of elections. See
R.C. 3509.05(C)(1) and 3599.21(A)(9). Knowingly returning an absentee ballot as
an unauthorized person or possessing the absentee ballot of another person without
authorization is a felony of the fourth degree. R.C. 3599.21(A)(9) and (10) and (C).
B. The federal-court case
{¶ 5} In December 2023, several plaintiffs filed a complaint in the United
States District Court for the Northern District of Ohio against Secretary LaRose
and other defendants, alleging, among other claims, that the federal Voting Rights
Act preempted portions of Ohio’s absentee-ballot laws. League of Women Voters
of Ohio v. LaRose, 2024 WL 3495332, *2, 7 (N.D.Ohio July 22, 2024). Section
208 of the Voting Rights Act provides that “[a]ny voter who requires assistance to
vote by reason of blindness, disability, or inability to read or write may be given
assistance by a person of the voter’s choice, other than the voter’s employer or
agent of that employer or officer or agent of the voter’s union.” 52 U.S.C. 10508.
The plaintiffs claimed that the Ohio law that prohibited persons other than an
elector and certain specified family members of an elector from returning an
elector’s absentee ballot could not stand because the law did not allow a disabled
voter to choose “‘a person of the voter’s choice.’ ” League of Women Voters of
Ohio at *7, quoting 52 U.S.C. 10508. The secretary and the other defendants
insisted that limiting the categories of persons from whom a voter covered by the
Voting Rights Act could choose did not meaningfully reduce or remove the ability
of the covered voter to choose a person of the voter’s choice. Id. at *10.
{¶ 6} On July 22, 2024, the district court rejected the secretary and the other
defendants’ argument and issued an order granting summary judgment to the
plaintiffs on their Voting Rights Act claim. Id. at *22. The court found that Section
208 of the Voting Rights Act “allows a disabled voter to select a person of their
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choice to assist them with voting, including the return of a disabled voter’s absentee
ballot. To the extent that R.C. 3599.21(A)(9) and R.C. 3599.21(A)(10) prohibit
such assistance by limiting who a disabled voter may select to assist them in this
manner, the statutes are PREEMPTED by Section 208 of the Voting Rights Act.”
(Capitalization in original.) Id. The court permanently enjoined the enforcement
of R.C. 3599.21(A)(9) and (10) “against any disabled voter or against any
individual who assists any disabled voter with the return of the disabled voter’s
absentee ballot to the extent such enforcement contradicts Section 208 of the Voting
Rights Act, with immediate effect.” Id. There is no indication in the record that an
appeal was taken from the district court’s decision, and the time for filing an appeal
has passed.
{¶ 7} The parties here agree that the federal court’s injunction expands the
categories of persons who may return an elector’s absentee ballot to include the
person a disabled voter chooses to assist with the return of the disabled voter’s
ballot.
C. The secretary’s directives and advisory
{¶ 8} Following the issuance of the federal-court injunction, on August 31,
the secretary issued Directive 2024-21 to all county boards of elections. The
directive asserts interests in preventing “ballot harvesting,” ensuring “the integrity
of each vote delivered on behalf of an absent voter,” and protecting the security of
the delivery of absentee ballots. It states that “[t]o ensure compliance with state
and federal law, and to protect the security of absentee ballot delivery, the only
individual who may use a drop box to return the ballot is the voter.” It also states
that “[a]ll individuals who are delivering ballots for a family member or disabled
voter may either mail the ballot to the county board of elections or return the ballot
to a county board of elections official at the county board of elections office and
complete an attestation at the board of elections.”
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{¶ 9} The directive requires county boards of elections to provide a person
returning an absentee ballot for another person with an attestation form to declare,
under penalty of election falsification, that the person is a family member of the
elector or is assisting a disabled voter. The prescribed attestation instructs the
attestor to deliver the attestation “with the ballot to a board of elections official in
the board of elections office.”
{¶ 10} In addition, the directive orders county boards of elections to post a
notice at or on the drop box that includes (1) instructions about who is eligible to
return an absentee ballot and (2) instructions for anyone other than the voter
attempting to return an absentee ballot. The secretary included a template sign with
the directive. The template states: “If you are assisting another voter with the return
of a ballot, you MUST see a board of elections official who can provide you with
the necessary attestation form.” (Capitalization in original.) The template also
states that anyone who is unauthorized to return a ballot on behalf of a voter could
be charged with a fourth-degree felony.
{¶ 11} On September 17, the secretary issued another directive, Directive
2024-24. This second directive informs county boards of elections about the district
court’s injunction in League of Women Voters of Ohio, 2024 WL 3495332, and says
that a disabled voter may select a person of his or her choice, other than the voter’s
employer or agent of that employer or officer or agent of the voter’s union, to return
his or her absentee ballot. The second directive refers the boards of elections to
“Directive 2024-21 regarding procedures for the return of an absent voter’s ballot.”
{¶ 12} On September 20, the secretary issued Advisory 2024-03 to county
boards of elections “as a clarification to Directive 2024-21.” The advisory states
that boards of elections are permitted and encouraged to set up a “drive-through
ballot drop-off system during periods of high-volume turnout.”
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D. This mandamus action
{¶ 13} On September 27, relators filed their verified complaint in
mandamus. The Ohio Democratic Party is a legally recognized major political
party in Ohio. On its behalf, the chairwoman of the party avers in an affidavit that
many of the party’s members rely on authorized family members or, for members
with disabilities, designated assistants to return absentee ballots and that the party
and its members will be harmed by additional burdens imposed on voting by
Directive 2024-21.
{¶ 14} Wernet avers that he is a qualified and registered voter in Ohio. He
avers that he plans to cast an absentee ballot in this year’s general election and will
drop off his ballot at the drop box and that he plans to assist his wife by dropping
off her absentee ballot at the drop box. He does not want to return his ballot by
mail because of a recent experience he had with mail theft. He is a senior citizen
and would have difficulty returning the ballots if Directive 2024-21 is not
rescinded, because he would have to park his car, potentially walk several blocks,
and possibly wait in line to complete an attestation form.
{¶ 15} Duffy avers that he is a qualified and registered voter in Ohio. He is
blind. He has been in and out of the hospital and plans to vote absentee because he
is unsure if his health will permit him to vote in person this year. He intends to rely
on the assistance of a trusted friend to return his absentee ballot in person. His
friend, however, has difficulty walking, and Duffy is unsure whether his friend can
park her car, walk into the county board of elections, and wait in line without pain
and significant exertion. His friend’s limited mobility makes him “not feel
comfortable” asking her to help him if she will be required to enter the board of
elections’ office. He thus claims that if Directive 2024-21 is not rescinded, he will
be unable to receive voting assistance from the person of his choice.
{¶ 16} Relators assert that Directive 2024-21 unlawfully contradicts Ohio
statutory law, violates the Equal Protection Clause of the Ohio Constitution, and
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violates the federal Voting Rights Act. They raise no other arguments in support
of their request for a writ of mandamus concerning the directive. Relators seek a
writ ordering the secretary to rescind Directive 2024-21 and “instruct county
election officials to accept absentee ballots from voters and their authorized family
members and assistants without the Directive’s legally unauthorized attestation,
including via drop box.”
{¶ 17} Because this case relates to an election within 90 days, it is classified
as an expedited election case under S.Ct.Prac.R. 12.08. Sua sponte, we also issued
an order further expediting the case schedule. 2024-Ohio-4746. The case is now
fully briefed. In addition, the Republican National Committee and the Ohio
Republican Party jointly filed a motion to intervene as respondents. The League of
Women Voters of Ohio and the Ohio State Conference of the NAACP jointly filed
an amici curiae brief in support of relators.
II. ANALYSIS
A. The motion to intervene
{¶ 18} On October 4, the day the secretary’s merit brief was due, the
Republican National Committee and the Ohio Republican Party jointly moved to
intervene as respondents. They included a proposed answer and a merit brief.
Relators oppose the motion.
{¶ 19} The political parties seek intervention of right under Civ.R. 24(A)
or, alternatively, permissive intervention under Civ.R. 24(B). We have often
allowed political parties to intervene in election-law cases. See, e.g., State ex rel.
Ohio Democratic Party v. LaRose, 2020-Ohio-1253, ¶ 2; State ex rel. Painter v.
Brunner, 2011-Ohio-35, ¶ 20. However, a request for intervention—either of right
or permissive—must be timely. Civ.R. 24(A) and (B). Here, the secretary’s answer
was due on October 1 and relators’ brief was due on October 2. 2024-Ohio-4746.
Briefing finished on October 7. Given the short life of this case, the motion to
intervene came as close to the end of the case as to its beginning. Allowing the
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political parties to intervene at this juncture would prejudice relators because they
had to file their merit brief before the would-be intervenors filed their proposed
answer. We could reopen briefing and set a new schedule, but that would
significantly delay this time-sensitive case.
{¶ 20} As such, we deny the political parties’ motion to intervene as
untimely. We do, however, sua sponte convert their merit brief to an amici curiae
brief. See State ex. rel. Linnabary v. Husted, 2014-Ohio-1417, ¶ 11-12 (denying
motion to intervene but accepting proposed intervenor’s brief as an amicus brief).
B. Laches defense
{¶ 21} The secretary argues as an affirmative defense that relators’ claims
are barred by laches. We agree.
{¶ 22} “‘Extreme diligence and promptness are required in elections-related
matters.’ ” State ex rel. Clark v. Twinsburg, 2022-Ohio-3089, ¶ 11, quoting State
ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake,
2002-Ohio-5302, ¶ 16. “Laches will bar an action when there is (1) an unreasonable
delay or lapse of time in asserting a right, (2) the absence of an excuse for the delay,
(3) actual or constructive knowledge of the injury or wrong, and (4) prejudice to
the opposing party.” Id. With respect to the fourth factor, “the prejudice must be
material.” State ex rel. Pennington v. Bivens, 2021-Ohio-3134, ¶ 26.
{¶ 23} These four factors are present here. The secretary issued Directive
2024-21 on Saturday, August 31. Relators submit as evidence multiple news
articles written about the directive shortly after it was issued, and the Ohio
Democratic Party—an entity familiar with the election process—assuredly knew
about the directive at that time. The first day relators could have challenged the
directive was Tuesday, September 3 (the day after Labor Day). Yet, relators did
not file their complaint until 24 days later on September 27. We have found similar
delays in election cases to be unreasonable. See, e.g., State ex rel. Syx v. Stow City
Council, 2020-Ohio-4393, ¶ 11 (22-day delay); State ex rel. Fuller v. Medina Cty.
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Bd. of Elections, 2002-Ohio-5922, ¶ 11 (17-day delay); State ex rel. Landis v.
Morrow Cty. Bd. of Elections, 2000-Ohio-295, ¶ 8-9 (22-day delay); State ex rel.
Polo v. Cuyahoga Cty. Bd. of Elections, 1995-Ohio-269, ¶ 13 (17-day delay).
{¶ 24} Relators argue that their delay was not unreasonable because the
secretary issued a second directive on September 17 and an advisory on September
20. But neither the second directive nor the advisory substantially altered Directive
2024-21. The second directive informed county boards of elections about the
district court’s injunction in League of Women Voters of Ohio, 2024 WL 3495332,
and referred the boards of elections to Directive 2024-21 regarding procedures for
the return of absentee ballots. The advisory says that boards of elections may
choose to operate a drive-through ballot drop-off system during periods of high-
volume turnout. This system, however, is optional and, if anything, would make it
easier for persons to return absentee ballots, not harder. The second directive and
the advisory did not cause relators’ claimed injury; the first directive did. And the
Ohio Democratic Party was aware of that injury shortly after August 31.
{¶ 25} The individual relators—Duffy and Wernet—also argue that they
were not aware of their specific injuries until shortly before they filed the complaint
because their circumstances have recently changed. This argument is not supported
by their affidavits. Wernet avers that his wife has early-stage dementia but not that
her condition got markedly worse after the secretary issued Directive 2024-21.
Duffy avers that he was released from the hospital the day before he filed the
complaint, but he also avers that he has recently been in and out of the hospital.
Duffy could have reasonably foreseen that his hospital stays might have prevented
him from voting in person. Moreover, we will not change our laches analysis based
on one voter’s recent changed circumstances. Individual electors generally have
standing to bring mandamus actions to enforce the election duties of public officers,
see State ex rel. Holwadel v. Hamilton Cty. Bd. of Elections, 2015-Ohio-5306, ¶ 41,
but any one voter’s personal circumstances could change at any time before election
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day. Allowing one voter to seek statewide relief in a mandamus action based on
the voter’s own changed circumstances, no matter how close the election and
whatever the resulting prejudice, would effectively eliminate laches as a defense in
voting-related cases.
{¶ 26} The secretary has also shown material prejudice. The attestation and
drop-box requirements in Directive 2024-21 have already been printed and mailed
to voters as part of the instructions included with absentee ballots. Chris Burnett,
the Deputy Assistant Secretary of State and State Elections Director, avers that if a
voter requests an absentee ballot, the appropriate board of elections mails a ballot
to the voter along with instructions, a preprinted return mailing envelope, and an
identification envelope. The requirements in Directive 2024-21 for the return of an
absentee ballot are included on the instructional sheet that is mailed with the
absentee ballot. Overseas and absent military voters, who started voting on
September 21, see R.C. 3509.01(B)(1), have already been sent these instructions.
Regular absentee balloting began on October 8—the first day after the close of voter
registration before the election, see R.C. 3509.01(B)(2)—and the instructions for
these ballots are either currently being mailed or already have been. Burnett avers
that it will take at least three to five days for boards of elections to print new
instructions and include them with an absentee ballot that has not already been
mailed—at a time when board employees have numerous other duties.
{¶ 27} Prejudice occurs in election cases involving requested changes to
absentee ballots if a relator’s delay in filing leads to the impossibility of relief
before the ballots are printed and mailed. See Syx, 2020-Ohio-4393, at ¶ 16; State
ex rel. Carberry v. Ashtabula, 2001-Ohio-1625, ¶ 11 (lead opinion); Polo, 1995-
Ohio-269, at ¶ 13. Here, the absentee ballots themselves would not have to be
reprinted, but the instructions included with the ballots would have to be reprinted
and in some cases mailed separately. The secretary and county boards of elections
would be prejudiced by the cost and time of printing and mailing new instructions.
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Relators argue that the writ need not require that the boards of elections send out
new instructions. Rather, relators contend that an absent voter’s assistant could
deliver the voter’s absentee ballot to a drop box even if the voter had obtained
incorrect instructions. But we will not endorse a scenario in which boards of
elections send voters incorrect instructions and unavoidably create voter confusion.
{¶ 28} Furthermore, absentee voting has already begun. As a general
matter, courts should refrain from ordering changes to the rules governing elections
during or close to the start of an election. See Purcell v. Gonzalez, 549 U.S. 1, 4-5
(2006). Such court orders may themselves result in voter confusion. Id. “Even
seemingly innocuous late-in-the-day judicial alterations to state election laws can
interfere with administration of an election and cause unanticipated consequences.”
Democratic Natl. Commt. v. Wisconsin State Legislature, 141 S.Ct. 28, 31 (2020)
(Kavanaugh, J., concurring); see also State ex rel. DeMora v. LaRose, 2022-Ohio-
2173, ¶ 71-72 (Kennedy, J., concurring in part and dissenting in part); id. at ¶ 95-98
(Fischer, J., concurring in part and dissenting in part). Though Purcell is a federal
case and therefore not binding on this court, we find its logic persuasive.
{¶ 29} While primarily built on principles of federalism, Purcell also stands
“for the common-sense principle that judges—novices in election administration—
should not meddle in elections at the last minute . . . because when they do, they are
likely to do more harm than good.” DeMora at ¶ 130 (DeWine, J., concurring in part
and dissenting in part); see also Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir.
2016) (“Call it what you will—laches, the Purcell principle, or common sense—the
idea is that courts will not disrupt imminent elections absent a powerful reason for
doing so.”); DeVisser v. Secy. of State, 510 Mich. 994, 1000 (2022) (Welch, J.,
concurring) (“[The Purcell principle] is, in essence, the equitable doctrine of laches
applied in a unique way to election matters.”). At this juncture, we should “neither
impose nor countenance substantial alterations to existing . . . procedures during the
pendency of an ongoing election.” New PA Project Edn. Fund v. Schmidt, __ Pa. __,
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__, 2024 WL 4410884, *1 (Oct. 5, 2024). And although Purcell precluded injunctive
relief in a federal case, Purcell at 5-6, the rationale set forth in Purcell applies to
relief in mandamus actions as well. Both are extraordinary remedies that direct the
conduct of a party. Nken v. Holder, 556 U.S. 418, 428 (2009) (injunction); State ex
rel. Ferrara v. Trumbull Cty. Bd. of Elections, 2021-Ohio-3156, ¶ 7 (mandamus); see
also DeMora at ¶ 131 (DeWine, J., concurring in part and dissenting in part).
{¶ 30} Thus, in situations in which a litigant has not timely asserted its
rights in a case that asks for changes in election procedures so close to the election
that the case cannot be resolved before voting begins, the rationale set forth in
Purcell necessarily informs our consideration of the prejudice requirement of
laches. Here, if we were to grant a writ, we would effectively be ordering a change
to election procedures after the election has already started. Intrusions into
elections that would lead to disparate enforcement of election procedures and
confusion among voters should be avoided. See State ex rel. Skaggs v. Brunner,
2008-Ohio-6333, ¶ 58 (“By changing her instructions for one county but not for
others after the election at the request of a candidate, the secretary of state failed to
ensure that the same rules would be applied to each provisional voter of every
county in the state.”).
{¶ 31} Finally, for laches to apply, the prejudice must have been avoidable
if the relators in a case had filed their case promptly. See State ex rel. Miller v.
Union Cty. Bd. of Elections, 2023-Ohio-3664, ¶ 20; see also State ex rel. Brinda v.
Lorain Cty. Bd. of Elections, 2007-Ohio-5228, ¶ 13. Here, much of the prejudice
to the secretary and boards of elections could have been avoided if relators had filed
their complaint shortly after the secretary issued Directive 2024-21. Because the
case relates to an election within 90 days, the briefing schedule for the case was
automatically expedited under S.Ct.Prac.R. 12.08. We sua sponte further expedited
the schedule, 2024-Ohio-4746, with briefing completed ten days after the case was
filed—as quick as reasonably possible for such an involved case, particularly given
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that relators filed their complaint late in the afternoon on a Friday. Military and
overseas balloting began on September 21, but regular absentee balloting did not
begin until October 8, and had relators filed their complaint shortly after the
secretary issued Directive 2024-21, we likely could have issued a decision by
October 8. By waiting until September 27 to file their complaint, relators made
meeting such a deadline impossible.
{¶ 32} Our “consistent requirement that expedited election cases be filed
with the required promptness is not simply a technical nicety.” Carberry at ¶ 11
(lead opinion). Because of relators’ delay in filing their complaint, if we were to
grant a writ, the secretary and county boards of elections would incur significant
prejudice and our order would change the procedures of an election that has already
begun. Therefore, we conclude that laches bars relators’ claims and deny the writ
based on laches.
{¶ 33} Because we deny the writ based on laches, we do not address the
merits of relators’ claims. See Fuller, 2002-Ohio-5922, at ¶ 12.
III. CONCLUSION
{¶ 34} Relators’ claims are barred by laches. We therefore deny the writ
and do not reach the merits of their claims. In addition, we deny the motion to
intervene filed by the Republican National Committee and the Ohio Republican
Party, but we sua sponte convert their merit brief to an amici curiae brief.
Writ denied.
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BERGERON, J., joined by HOFFMAN, J., dissenting.
{¶ 35} I join the second dissenting opinion in full, writing separately only
to elaborate on the statutory-interpretation question avoided by the majority and to
shine a spotlight on what is really happening here—a sleight of hand that should
make our citizens shudder. Respondent, Secretary of State Frank LaRose, has
dismantled a structure crafted by the General Assembly and imposed illegal barriers
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on the right to vote of some of our most vulnerable citizens. I respectfully dissent,
and I would grant the writ of mandamus and require the secretary of state to
protect—rather than undermine—the fundamental right to vote.
{¶ 36} The secretary’s directive at issue here, Directive 2024-21, cruelly
targets persons who must, by necessity, rely on the help and grace of others.
Disabled or elderly, they often cannot accomplish basic tasks without assistance. I
have personal experience with this, having lived through both of my parents’ losing
battles with progressive cognitive diseases. Fortunately for them, they were cared
for in an assisted-living facility, where they received food and medical oversight.
But for basically everything else, I had to step up and help them, while also juggling
the demands of my own children and a full-time job. The stress and challenges that
were imposed on me are difficult to overstate, as I’m sure caretakers across this
State can attest. Because of my job, I often had to provide my assistance after
normal business hours, which meant running errands, scheduling doctor’s
appointments, paying their bills, etcetera, at late hours of the night.
{¶ 37} So I understand, at a deep level, how pernicious Directive 2024-21
is, and we might as well call it what it is—an affront to personal dignity. The
directive adds one more unnecessary challenge to overtaxed caregivers,
encouraging them to throw up their hands and say, “I don’t have time for this.”
Voting will get triaged to the bottom of the never-ending to-do list, and, by design,
this directive will convince many people not to vote. That is a travesty beyond
description.
{¶ 38} I endorse the second dissenting opinion’s discussions of laches and
the mandamus standard and adopt them here. With that backdrop, I turn to the
relevant statutory language, which really should be the beginning and the end of
the inquiry. See State ex rel. Stokes v. Brunner, 2008-Ohio-5392, ¶ 29, quoting
State ex rel. Myles v. Brunner, 2008-Ohio-5097, ¶ 26 (“Therefore, ‘we need not
defer to the secretary of state’s interpretation because it is unreasonable and fails to
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apply the plain language’ of [the statutes at issue].”); TWISM Ents., L.L.C. v. State
Bd. of Registration for Professional Engineers & Surveyors, 2022-Ohio-4677, ¶ 3
(explaining that “the judicial branch is never required to defer to an agency’s
interpretation of the law” and that “an agency interpretation is simply one
consideration a court may sometimes take into account” [emphasis in original]).
R.C. 3509.05 sets forth a comprehensive statutory scheme for the procedures
involving absentee ballots and the appropriate ways to return those ballots.
Consistent with that framework, upon receipt of an absentee ballot, the voter must
complete “the statement of voter” by providing personal identifying information on
the outside of the identification envelope and signing that statement under penalty
of election falsification. R.C. 3509.05(A) and (B). This ensures that only an
authorized person is voting.
{¶ 39} Turning to division (C), the voter may mail his or her absentee ballot
to the office of the county board of elections or, if the board of elections has placed
at its office a “secure receptacle . . . open to receive ballots,” colloquially known as
a “drop box,” then the voter may deliver his or her ballot to the drop box. R.C.
3509.05(C)(1) and (3)(a) and (b). But division (C) goes far beyond just allowing
the board of elections to place a drop box at its office—the entire process is heavily
regulated. First, the board of elections may have only a single drop box. R.C.
3509.05(C)(3)(a) (restricting the board of elections to “plac[ing] not more than one
secure receptacle outside the office of the board . . . for the purpose of receiving
absent voter’s [sic] ballots”). Second, division (C) requires that such a drop box
must be monitored by recorded video surveillance at all times (with provisions for
making the recordings public). R.C. 3509.05(C)(3)(c). Finally, and most
importantly for present purposes, the General Assembly determined that if the
board of elections chooses to install a drop box outside its office, the drop box
“shall be open to receive ballots at all times during that period.” (Emphasis added.)
R.C. 3509.05(C)(3)(b). The term “that period” refers to “the period beginning on
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the first day after the close of voter registration before the election and ending at
seven-thirty p.m. on the day of the election.” Id. Therefore, the drop box must be
open to receive absentee ballots at all times during the early-voting window through
7:30 p.m. on election day.
{¶ 40} The provisions contained in R.C. 3509.05 ensure that drop boxes are
limited in number and that each drop box is secure, open at all times, and monitored
by recorded video surveillance. But the General Assembly did not stop there. In
December 2022, it saw fit to amend R.C. 3599.21 in order to impose criminal
penalties (in the nature of a fourth-degree felony) on anyone, other than an
authorized person as defined in R.C. 3509.05(C)(1) or employees or contractors of
the postal service or a private carrier, who returns another person’s absentee ballot.
2022 Sub.H.B. No. 458 (amending R.C. 3599.21(A)(9)).1 Therefore, our State
imposes criminal penalties on an unauthorized person who returns another’s
legitimate absentee ballot, a pretty draconian measure.
{¶ 41} Secretary LaRose apparently deemed those measures insufficient to
combat the fantom harm of “ballot harvesting,” and thus he sought to erect
additional barriers by issuing Directive 2024-21. As this court has explained, the
secretary, through the vehicle of a directive, cannot supplant or modify statutory
language passed by the General Assembly; otherwise, that transforms him into a
legislative actor with nearly unfettered power. See State ex rel. DeMora v. LaRose,
2022-Ohio-2173, ¶ 35, 37 (holding that “if the statutory language is clear and
unambiguous, a court will apply the statute as written and will not add or delete
words” and granting a writ of mandamus regarding a directive issued by the
secretary because the secretary “offered no compelling reason to disregard the
1. A federal court found these provisions were preempted by the federal Voting Rights Act as
applied to a disabled voter’s ability to choose an assistant to assist with voting, so there is an
additional group of people authorized to return absentee ballots by virtue of the federal court’s order.
See League of Women Voters of Ohio v. LaRose, 2024 WL 3495332, *20 (N.D.Ohio July 22, 2024).
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statutory language” in response to challenges to the directive); see also State ex rel.
Tjaden v. Geauga Cty. Bd. of Elections, 2024-Ohio-3396, ¶ 39, quoting State ex rel.
Whitehead v. Sandusky Cty. Bd. of Commrs., 2012-Ohio-4837, ¶ 30 (refusing to
read a provision into a statutory requirement because “‘courts are forbidden to add
a nonexistent provision to the plain language of legislation’ ” [bracketed text
omitted]); In re Election of Member of Rock Hill Local School Dist. Bd. of Edn.,
1996-Ohio-356, ¶ 18 (finding that the board of elections’ interpretation of R.C.
3509.05 was contrary to law).
{¶ 42} But that is exactly what the secretary has done, seizing the legislative
reins, and we need look no further than the language of Directive 2024-21 to
appreciate his maneuvering. The secretary, purporting to “act[] under [his]
statutory authority to compel the observance of election laws,” decided to erect new
and extrastatutory hurdles on people seeking to deliver legitimate absentee ballots,
declaring in the directive “that only a voter’s personal ballot may be returned via
drop box.”
{¶ 43} Any person, it seems, may deliver an absentee ballot to a drop box—
except those aiding our most vulnerable citizens. These assisting family members
or good Samaritans must come to the office of the county board of elections during
its business hours and complete an attestation form, under penalty of election
falsification, attesting that the person is (1) “returning a ballot on behalf of a family
member under R.C. 3509.05(C)(1) [and has] been lawfully designated to assist
another voter with the return of an absentee ballot” or (2) complying with the
Voting Rights Act if the person is assisting a disabled voter. This is little more than
voter intimidation, the latest chapter in an unfortunate history of efforts to suppress
certain categories of voters.
{¶ 44} It’s not too difficult to see why the directive violates the plain
language of Ohio’s statutes. After all, the General Assembly decreed that a drop
box “shall be open to receive ballots at all times” during the relevant voting period.
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(Emphasis added.) R.C. 3509.05(C)(3)(b). The secretary seems to insist that this
language does not actually mean that a drop box “shall receive ballots.” Why would
a drop box be open if not to receive ballots? For decoration? As a prop? There is
only one statutory (or common sense) purpose of a drop box, and in case we were
confused about that, the General Assembly laid any doubt to rest: the drop box
exists “for the purpose of receiving absent voter’s (sic) ballots under this section,”
R.C. 3509.05(C)(3)(a). Through his directive, the secretary decimates the entire
statutory purpose of a drop box.
{¶ 45} The secretary fashions two other arguments in seeking to persuade
us of the legitimacy of Directive 2024-21. First, he insists that the directive was
necessary to comply with the federal court’s order in League of Women Voters of
Ohio v. LaRose, 2024 WL 3495332 (N.D.Ohio July 22, 2024). This is a curious
justification indeed. In that case, a federal court concluded that certain Ohio
statutory provisions limiting whom a disabled voter may select to assist in returning
the voter’s absentee ballot were preempted by the federal Voting Rights Act. Id. at
*22. It strains credulity to point to a decision ensuring and promoting voting rights
as a justification to suppress the franchise.
{¶ 46} Second, the secretary maintains that because a county board of
elections is not mandated to install a drop box at all, he enjoys relative free reign to
regulate in this area. But this argument proves too much. The secretary is correct
that a board of elections does not have to provide a drop box, see R.C.
3509.05(C)(3)(a), but if it does, the General Assembly has imposed a litany of rules
that govern its use. This is really no different than any governmental program or
option that, although not required, is heavily regulated if the government opts in
favor of it. The discretionary nature of a drop box does not grant the secretary
license to dismantle the protections and directions established by the General
Assembly. After all, the relief that relators seek, if granted, would apply only to
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boards of elections that have provided a drop box, thus negating much of the
relevance of the secretary’s retort.
{¶ 47} The secretary’s arguments seek to shift the target because he has
little else to say about the plain language of the statute, a telling point. The statute
does not limit what person may use a drop box. See R.C. 3509.05(C)(1). It does
not impose various conditions and qualifications on a voter seeking to use a drop
box—and why would it? The entire purpose of the drop box is to make it easier
for people to vote. Rather than stand in line during normal poll hours, voters may
deliver their absentee ballots at their convenience.
{¶ 48} As in DeMora, 2022-Ohio-2173, at ¶ 35, 37, the secretary here is
violating statutory law by imposing conditions on voters that the legislature could
have considered.2 “Had the General Assembly intended to impose an obligation on
an absentee voter . . . it certainly knew how to do so, i.e., the term . . . could easily
have been inserted in R.C. 3509.05.” (Emphasis in original.) Election of Member
of Rock Hill Local School Dist. Bd. of Edn., 1996-Ohio-356, at ¶ 16. The General
Assembly has shown no hesitation in enacting provisions that it believes are
necessary to combat potential voter fraud, as evidenced by the recent criminal-
penalty provision discussed above. See R.C. 3599.21(A)(9). If the General
Assembly wished to require returners of absentee ballots to sign an attestation form
or jump through other hoops, it would have delineated those measures in the
appropriate statute. But it did not. Consistent with our longstanding duty to
“‘liberally construe election laws in favor of the right to vote,’ ” State ex rel. Skaggs
v. Brunner, 2008-Ohio-6333, ¶ 50, quoting State ex rel. Colvin v. Brunner, 2008-
Ohio-5041, ¶ 62, abrogated on other grounds by TWISM Ents., 2022-Ohio-4677,
2. I appreciate that relators have raised certain constitutional and federal statutory arguments. Given
the clarity of R.C. 3509.05, I need go no further to tackle those issues, and I would leave them for
another day.
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at ¶ 26, 42-43, the clarity of the statutory language highlights the brazenness of the
secretary’s efforts.
{¶ 49} The secretary’s directive both silences the voice of the people’s
representatives in the General Assembly by amending statutes without the power
to do so and targets an incredibly vulnerable population, rendering it much more
difficult for such voters to vote. And this effort is really a solution in search of a
problem that doesn’t exist. In May 2024, the State conducted the primary election
without the instructions set forth in Directive 2024-21. Yet nothing untoward
happened. In addition to violating the plain language of the governing statutes,
Secretary LaRose has failed to show in any meaningful way how allowing an
already authorized person to deliver a loved one’s absentee ballot to a drop box
would in any way interfere with the election process. This is discrimination, pure
and simple.
{¶ 50} I wish we could dismiss Directive 2024-21 as just another attention-
grabbing measure hollow of substance. But I know that real voters will be
concretely affected by it, just like relators Norman Wernet and Eric Duffy, along
with countless others. Our government, and particularly our courts, should ensure
the protection of the most vulnerable members of our population—those without
money, power, or political might. The directive issued by Secretary LaRose, and
the decision by the majority allowing it to persist, sends the message that
marginalized citizens may be safely relegated to the sidelines in our democracy.
__________________
BRUNNER, J., joined by BERGERON and HOFFMAN, JJ., dissenting.
I. INTRODUCTION
{¶ 51} On August 31, 2024, respondent, Secretary of State Frank LaRose,
violated the election laws of Ohio by issuing Directive 2024-21, impermissibly
imposing additional burdens on certain distinct classes of Ohio voters who vote by
absentee ballot. Ohio law provides that any absentee voter may have a near relative
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(with the degree of relation specified in the law) deliver the voter’s absentee ballot
in person to a county board of elections in lieu of delivery by mail. R.C.
3509.05(C)(1). More broadly, federal law provides that any voter with a disability
may be given assistance to vote by almost any person of the voter’s choice. 52
U.S.C. 10508. Boards of elections in Ohio are permitted to supply a “secure
receptable,” known as a drop box, outside the office of the board of elections for
absentee ballots to be delivered to at all times during the period designated for early
voting through 7:30 p.m. on election day. See R.C. 3509.05(C)(3)(a) and (b).
Directive 2024-21 instructs boards of elections that “the only individual who may
use a drop box to return the ballot is the voter” and that a person delivering an
absentee ballot for a family member or disabled voter must return the ballot to a
board of elections official at the board of elections’ office and, while doing so,
complete an attestation form. In addition, the directive requires each board of
elections to place this warning sign (or one with substantially similar language) at
or on a drop box:
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Ohio Secretary of State, Drop Box Protocol Sign, https://www.ohiosos.gov
/globalassets/elections/eoresources/pol-loc-resources/dropboxprotocol_2024-
08_legalsize_v2.pdf (accessed Oct. 12, 2024) [https://perma.cc/3FBY-PM69].
Despite the secretary’s holding no prosecutorial powers, the sign misleadingly
features an Ohio flag shaped into a shield—much like a police badge encased in a
circle—to represent the secretary’s Public Integrity Division and is accompanied
by prosecutorial and threatening language, such as:
Ohio law prohibits the unauthorized return of a ballot on behalf of
another voter. Anyone charged with this offense could be charged
with a fourth degree felony, punishable by up to 18 months in prison
and/or a fine of up to $5,000.
The sign also provides:
If you are assisting another voter with the return of a ballot, you
MUST see a board of elections official who can provide you with
the necessary attestation form.
(Capitalization in original.) Finally, a potential drop-box user is warned that the
“secure drop box is monitored under 24/7 video surveillance.”
{¶ 52} Relator the Ohio Democratic Party (“ODP”) and relators Norman
Wernet and Eric Duffy—two citizens directly aggrieved by the secretary’s
directive—have sought relief from this court in mandamus. In response, the
secretary claims that it is too late in the election cycle to rescind the directive
without reprinting absentee instructions and causing chaos. The chaos in this
unfortunate situation arises from the secretary’s lack of statutory authority to have
issued Directive 2024-21 in the first place and his subsequent modification of the
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instructions in the directive two more times by his issuance of a second directive
and an advisory. Even more unfortunate is this court’s failure to uphold the rule of
law and to stop the secretary from engaging in illegal official behavior and instead
applying the doctrine of laches in a laissez-faire fashion. The timing issues were in
play from the beginning here as a result of the secretary’s frenzied political
maneuvers; he should have known better than to foist unwieldy changes on Ohio’s
election officials and the State’s voters this close to a general election in which
electors will vote for a new president.
{¶ 53} As often as politically motivated claims are made that judges should
not legislate from the bench, neither should they give away their power, in this case,
the power of deciding what the law is, just because the secretary has said it is too
late to do that. Good judgment by this court would be to tell the secretary that he
has violated his constitutional duties rather than followed them. Good judgment
would be to resist the temptation to decide that there is no way to deal with the mess
the secretary has created. Good judgment would be to avoid penalizing the people
who have petitioned for redress of their grievances relating to the secretary’s
actions.
{¶ 54} Laches is not the same as mootness when it comes to elections, and
laches should be applied only rarely and not when the interest sought to be protected
is substantial—namely, the right to vote. When faced with the tension that is before
us between the illegal actions of the secretary and the realities of the mess those
actions have created, we must not throw up our hands after having been fed what
amount to feeble excuses. We must mandate compliance with the law. What the
secretary has done is brazen and reckless. This case’s timing is an issue because
his deliberate and repeated actions have created the chaos of which he complains.
Now he asks that we turn away relators for allegedly sitting on their claims for too
long for this court to provide them a remedy. Nothing could be further from the
evidence, and nearly everything about the secretary’s actions strays from justice.
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When this court permits Directive 2024-21 to continue unhindered, it permits a
continued assault on the fairness of Ohio’s general election, torching Ohioans’
voting rights all the way to election day.
{¶ 55} It is said that a court’s job is to “call the balls and strikes,” which are
determined according to rules—in this instance, the rule of law. Laches is an
equitable defense. It is to be used by one whose hands are clean to begin with.
When the secretary breaks laws that govern what he can and cannot do, he vitiates
his ability to use an equitable defense such as laches. When the secretary—as the
principal actor—has by his overreach and lateness created the constitutional
infirmity complained of, laches is no defense. In reaching its decision, the majority
disavows the idea that elections belong to the people as a whole and not to just
some of them—who can deliver their ballots to the boards of elections without
assistance. When the protections of the law have been denied to some, with early
voting already underway, fairness does not require that all must be deprived. The
law requires obedience and demands remedies to preserve its efficacy and the
substance of people’s faith in what is merely an idea—democracy. Even though
some citizens may experience the effects of government’s misguided intentions and
failures, a remedy at nearly any juncture before mootness means that all need not
suffer those effects. Laches is inapplicable in this case.
{¶ 56} I would grant the petition for a writ of mandamus sought by relators
here. Because the majority instead dismisses this action on the basis of the
equitable defense of laches, I respectfully dissent.
II. FACTS
{¶ 57} On August 31, 2024, the secretary issued Directive 2024-21,
providing the following instructions regarding the delivery of absentee ballots to
Ohio’s 88 county boards of elections:
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[T]he only individual who may use a drop box to return the ballot is
the voter. All individuals who are delivering ballots for a family
member or disabled voter may either mail the ballot to the county
board of elections or return the ballot to a county board of elections
official at the county board of elections office and complete an
attestation at the board of elections.
{¶ 58} The directive requires county boards of elections to provide the
person assisting a voter with an attestation form declaring that (1) the person is
“returning a ballot on behalf of a family member under R.C. 3509.05(C)(1), and
that [the person has] been lawfully designated to assist another voter with the return
of an absentee ballot” or (2) “[i]f the person is assisting a disabled voter, that [the
person is] complying with Section 208 of the Voting Rights Act and that [the person
is] not the voter’s employer or agent of that employer or officer or agent of the
voter’s union.” The directive also requires that a sign be posted at or on a drop box;
the template for this sign provided by the secretary informs Ohioans, in
prosecutorial and threatening language, that a person assisting another voter with
the return of an absentee ballot could be charged with a felony and subjected to
prison time or a fine if the person uses a drop box to deliver the ballot and does not
instead see a board of elections official who can provide a required attestation form.
When the secretary issued the directive, it was 66 days before the date of the general
election, 38 days before the start of early voting, and only 21 days before the first
absentee ballots were to be mailed.
{¶ 59} On September 17, 2024, the secretary issued Directive 2024-24,
directing county boards of elections, in accordance with the federal court’s decision
in League of Women Voters of Ohio v. LaRose, 2024 WL 3495332, *7-20
(N.D.Ohio July 22, 2024), to not enforce Ohio restrictions on whom a disabled
voter chooses to return the voter’s absentee ballot, other than that, as a matter of
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federal law, such person cannot be the voter’s employer or agent of that employer
or officer or agent of the voter’s union. Directive 2024-24 also instructs boards of
elections to “see Directive 2024-21 regarding procedures for the return of an absent
voter’s ballot.” When the secretary issued Directive 2024-24, it was 49 days before
the date of the general election, 21 days before the start of early voting, and only 4
days before the first absentee ballots were to be mailed.
{¶ 60} On September 20, 2024, the secretary issued Advisory 2024-03,
recommending that county boards of elections develop traffic-mitigation plans for
absentee-ballot deliveries during periods of high-volume turnout and stating that if
board members voted to utilize such a plan, “[t]he board must require the bipartisan
team of board employees to require any person assisting another with the return of
a ballot to complete Form 12-P: Absentee Ballot Delivery Attestation as required
by Directive 2024-21.” When the secretary issued Advisory 2024-03, it was 46
days before the date of the general election, 18 days before the start of early voting,
and only 1 day before the first absentee ballots were to be mailed.
{¶ 61} Seven days later, on September 27, 2024, relators filed an original
action in mandamus seeking a writ ordering the secretary to rescind Directive 2024-
21 and to instruct county election officials to accept absentee ballots from voters
and voters’ authorized family members and assistants without the attestation,
including by drop box. Wernet avers that he would like to utilize the drop box in
Franklin County to deliver his wife’s absentee ballot. He explains that his wife has
early-stage dementia and that he is also elderly and will struggle to walk from his
car to the county board of elections’ office, wait in line, and execute the required
attestation. Duffy avers that he is blind, has been in and out of the hospital recently,
and would like to have someone deliver his absentee ballot for him but that he is
unsure whether his preferred assistant could deliver his ballot—if the assistant is
not permitted to use the drop box—without pain and significant exertion because
the assistant has difficulty walking and standing in line for extended periods of
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time. The chairwoman of ODP, on behalf of ODP, avers that many of ODP’s
members and constituents rely on authorized relatives or, for members and
constituents with disabilities, designated assistants to deliver absentee ballots and
that Directive 2024-21 will likely deter some of ODP’s members and constituents
from voting.
III. ANALYSIS
A. Standards
{¶ 62} In general, an administrative rule (or, in this case, directive) “may
not add to or subtract from a legislative enactment. If it does, the rule clearly
conflicts with the statute, and the rule is invalid.” (Citation omitted.) State ex rel.
Am. Legion Post 25 v. Ohio Civ. Rights Comm., 2008-Ohio-1261, ¶ 14; see also
State ex rel. Painter v. Brunner, 2011-Ohio-35, ¶ 35, 36, 52 (demonstrating the
same principle regarding secretary-of-state directives). Moreover, courts do not
defer to the secretary on matters of law. See State ex rel. Hildreth v. LaRose, 2023-
Ohio-3667, ¶ 22.
{¶ 63} To obtain a writ of mandamus, relators must show by clear and
convincing evidence (1) a clear legal right to the requested relief, (2) a clear legal
duty on the part of the secretary to provide it, and (3) the lack of an adequate remedy
in the ordinary course of the law. Id. at ¶ 10. There is no dispute that relators lack
an adequate remedy in the ordinary course of the law given the proximity of the
November general election. See id. It is also well-established in our caselaw that
when considering the merits, if a directive of the secretary conflicts with election
laws, a writ should issue. State ex rel. Colvin v. Brunner, 2008-Ohio-5041, ¶ 20,
abrogated on other grounds by TWISM Ents., L.L.C. v. State Bd. of Registration
for Professional Engineers & Surveyors, 2022-Ohio-4677, ¶ 26, 42-43, citing State
ex rel. Melvin v. Sweeney, 154 Ohio St. 223, 225-226 (1950).
{¶ 64} Thus, the simple question in this case is: Does Directive 2024-21
conflict with a statute?
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B. Ohio and Federal Law Allow a Voter’s Assistant to Deliver the Voter’s
Absentee Ballot to an Existing Drop Box at Any Time During the Voting
Period, but the Secretary’s Directive Does Not
{¶ 65} Under federal and Ohio law, in certain circumstances, a voter is
permitted to have assistance with the delivery of the voter’s absentee ballot. 52
U.S.C. 10508 provides: “Any voter who requires assistance to vote by reason of
blindness, disability, or inability to read or write may be given assistance by a
person of the voter’s choice, other than the voter’s employer or agent of that
employer or officer or agent of the voter’s union.” R.C. 3509.05(C)(1) provides
that any “elector may personally deliver [the elector’s absentee ballot] to the office
of the board, or the spouse of the elector, the father, mother, father-in-law, mother-
in-law, grandfather, grandmother, brother, or sister of the whole or half blood, or
the son, daughter, adopting parent, adopted child, stepparent, stepchild, uncle, aunt,
nephew, or niece of the elector may deliver it to the office of the board.”
{¶ 66} Ohio law also provides that a county board of elections may choose
to maintain a secure, video-monitored, ballot box to which absentee ballots may be
delivered at any time during the early voting period and through 7:30 p.m. on the
day of the election. R.C. 3509.05(C)(3)(a) through (d). As relevant to this case,
R.C. 3509.05(C)(3) provides:
(a) The board of elections may place not more than one
secure receptacle outside the office of the board, on the property on
which the office of the board is located, for the purpose of receiving
absent voter’s [sic] ballots under this section.
(b) A secure receptacle shall be open to receive ballots only
during the period beginning on the first day after the close of voter
registration before the election and ending at seven-thirty p.m. on
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the day of the election. The receptacle shall be open to receive
ballots at all times during that period.
{¶ 67} The upshot of the provisions quoted above is this: as a matter of
federal and Ohio law, a voter may have a relative (as set out in R.C. 3509.05(C)(1))
deliver the voter’s absentee ballot and a disabled voter may be given assistance to
vote by “a person of the voter’s choice” (other than the voter’s employer or agent
of that employer or officer or agent of the voter’s union), which presumably
includes assistance with the delivery of the disabled voter’s absentee ballot, and the
delivery of an absentee ballot may be to a secure ballot box (if one has been
established) which “shall be open to receive ballots at all times” of the day or night
starting the day after the close of voter registration and through 7:30 p.m. on
election day. 52 U.S.C. 10508; R.C. 3509.05(C)(1) and (3)(a) and (b). Yet
Directive 2024-21 instructs that “the only individual who may use a drop box to
return the ballot is the voter. All individuals who are delivering ballots for a family
member or disabled voter may either mail the ballot to the county board of elections
or return the ballot to a county board of elections official at the county board of
elections office and complete an attestation at the board of elections.” This
directive is plainly in conflict with Ohio’s statutory scheme. Just as plainly,
therefore, a writ of mandamus should issue. See Am. Legion Post 25, 2008-Ohio-
1261, at ¶ 14, 23; Hildreth, 2023-Ohio-3667, at ¶ 10, 23; Colvin, 2008-Ohio-5041,
at ¶ 20. Yet despite this analysis of the merits showing that relators are entitled to
the writ and even though the secretary took action to violate the law shortly before
an election, the majority declines to issue a writ because it holds that relators waited
too long to file their mandamus complaint. I disagree with the majority’s decision.
C. Laches
{¶ 68} “Laches may bar an action for relief in an election-related matter if
the persons seeking this relief fail to act with the requisite diligence.” Smith v.
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Scioto Cty. Bd. of Elections, 2009-Ohio-5866, ¶ 11. And “[w]e have consistently
required [the] relators in election cases to act with the utmost diligence.”
Blankenship v. Blackwell, 2004-Ohio-5596, ¶ 19. “The elements of laches are (1)
unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse
for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4)
prejudice to the other party.” State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections,
1995-Ohio-269, ¶ 10.
{¶ 69} As an equitable defense, laches is unavailable to parties with unclean
hands. See generally Kettering v. Berger, 4 Ohio App.3d 254, 261-262 (2d Dist.
1982). We have stated:
Laches is an equitable doctrine and it is fundamental that he who
comes into equity must come with clean hands. A knowing
violation of applicable law would certainly preclude a party from
asserting the affirmative, equitable defense of laches.
(Citation omitted.) State ex rel. Mallory v. Pub. Emps. Retirement Bd., 1998-Ohio-
380, ¶ 27; see also State ex rel. Columbus Coalition for Responsive Govt. v. Blevins,
2014-Ohio-3745, ¶ 12 (noting that a party who engages in reprehensible conduct
will be considered to have unclean hands). Here, the secretary, a State official
charged with administering the State’s elections, overreached and issued a directive
that is contrary to Ohio’s statutory scheme and that the evidence shows has the
effect of disenfranchising voters. Further, the evidence appears to show that
Directive 2024-21 was issued in calculated proximity to an election in order to
evade challenge.
{¶ 70} August 31, the date Directive 2024-21 was issued, was a Saturday,
not a regular working day at the secretary’s office. See R.C. 124.18(B)(5). The
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next succeeding Monday, two days later, was a holiday, Labor Day. See R.C.
124.19(A).
{¶ 71} Why did the secretary issue Directive 2024-21 on a holiday weekend
so close in time to an election? The secretary attempts to explain his extraordinary
action as an effort to prevent “ballot harvesting.” But the only evidence or incident
of “ballot harvesting” that he supplies is a case in which his office and a county
prosecutor’s office wrongfully sought the prosecution of a nursing-home employee
who dropped off absentee ballots for nursing-home residents as permitted by 52
U.S.C. 10508. That felony case was dismissed, however, after a federal court ruled
that Ohio law was preempted by the federal Voting Rights Act and that the secretary
and other Ohio officials could not enforce criminal consequences against persons
such as nonfamily caregivers who assist disabled voters in returning those voters’
ballots under 52 U.S.C. 10508, see League of Women Voters of Ohio, 2024 WL
3495332, at *7-20. The absence of any reasonable explanation for issuing Directive
2024-21 or for the timing of its issuance leads to the inference that the secretary
issued it with intention to avoid judicial review.
{¶ 72} This bears out in that, even assuming relators exercised
extraordinary diligence and managed to find out about the issue, retain counsel over
a holiday weekend, and file and serve a complaint by Friday, September 6, this
court’s rules still would have created an untenable timeline. By rule, an answer
would have been due on September 9, relators’ evidence and briefing would have
been due on September 12, the secretary’s briefing and evidence would have been
due on September 16 (as September 15 was a Sunday), and relators’ reply brief
would have been due on September 19. See S.Ct.Prac.R. 12.08(A). This timeline
would have left zero days before the first absentee instructions and ballots were
finalized and just one day before they were mailed for this court to review the
evidence and filings, vote on the case, and draft, circulate, edit, and release a
decision. One day or even several is not a sufficient amount of time to fully
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adjudicate an original action such as this. Briefing in this case was completed on
October 7, and our decision is only now released on October 15. There was no
realistic way for this case to be filed, briefed, and decided before the Uniformed
and Overseas Citizens Absentee Voting Act (“UOCAVA”) ballots and instructions
were printed on September 20 and mailed on September 21, even if relators had
acted with greater haste, and it is difficult to imagine that the secretary did not know
this. The secretary’s own actions therefore deny him the equitable defense of
laches.
{¶ 73} However, since a majority of this court proceeds on the path of
granting the secretary the equitable defense of laches, it is worthwhile to examine
that doctrine in this opinion. The first three elements of laches are, at least arguably,
established by the secretary. The complaint was filed 27 days after Directive 2024-
21 was issued. The effects of Directive 2024-21 are expressed in the directive itself
and arguably little of consequence to this action was contributed by Directive 2024-
24 issued on September 17 and Advisory 2024-03 issued on September 20. Thus,
considering 27 days in this instance is not out of the question. Our precedent shows
that we have, depending on the circumstances, found delays of a similar length to
be unreasonable. See, e.g., State ex rel. Syx v. Stow City Council, 2020-Ohio-4393,
¶ 11. Wernet and Duffy suggest that they needed time to realize their changed
circumstances, the impact of Directive 2024-21 on those circumstances, and,
presumably, to undertake the tasks involved in filing a complaint. Our caselaw
shows little tolerance for practical explanations of this nature given the requirement
of “utmost diligence.” Id. at ¶ 11-13.
{¶ 74} However, the evidence of the fourth element—prejudice—in this
case is unacceptably thin. The secretary asserts that the prejudice at issue is that
new absentee ballot instructions would need to be printed and mailed. It is true that
instructions would need to be reprinted given that the instructions previously
printed and mailed to voters inform them that “[t]he person delivering the ballot for
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a family member of disabled voter must complete an attestation form at the county
board of elections office (Form 12-P). . . . Drop boxes may only be used by a voter
to return their own personal ballot.” However, for laches to apply, the alleged
prejudice to a respondent such as the secretary must be causally avoidable. See
State ex rel. Miller v. Union Cty. Bd. of Elections, 2023-Ohio-3664, ¶ 20-21. The
evidence in this case does not support this tenet. The secretary’s own evidence
establishes that the UOCAVA absentee ballots and instructions were finalized on
September 20 and mailed starting on September 21. Even if relators had more
promptly realized their changed circumstances and filed within one week of the
secretary’s issuing Directive 2024-21, it is effectively impossible that the case
would have been decided before the UOCAVA absentee ballots and instructions
were finalized and mailed. In the electronic age, websites and written instructions
are easily changed, along with the creation of media releases from the secretary’s
office, encouraging state and local media to assist in public dissemination of the
changed information. By either legal or equitable view, laches is inappropriate and
insufficient.
D. The Purcell Principle
{¶ 75} In addition to laches, the majority further evades the clear merits of
this case by citing what one member of the majority once referred to as “the
common-sense principle that judges—novices in election administration—should
not meddle in elections at the last minute.” State ex rel. DeMora v. LaRose, 2022-
Ohio-2173, ¶ 130 (DeWine, J., concurring in part and dissenting in part), citing
Purcell v. Gonzalez, 549 U.S. 1, 5-6 (2006). As Ohio’s 52nd Secretary of State,3
3. Ohio Secretary of State, Secretaries of State of the State of Ohio: 1788 - Present,
https://www.ohiosos.gov/elections/election-results-and-data/historical-election-comparisons
/secretaries-of-state-of-the-state-of-ohio-1788-present/ (accessed Oct. 12, 2024)
[https://perma.cc/2VDY-R6S8].
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January Term, 2024
my name appears in the captions of many cases decided and cited by this court, and
I well understand that Purcell represents the principle that when weighing a
directive that would change the rules close in time to an election, a court should
consider the fact that rule changes close in time to an election are, themselves,
disruptive of voting. The United States Supreme Court in Purcell put it this way:
Faced with an application to enjoin operation of voter
identification procedures just weeks before an election, the Court of
Appeals was required to weigh, in addition to the harms attendant
upon issuance or nonissuance of an injunction, considerations
specific to election cases and its own institutional procedures. Court
orders affecting elections, especially conflicting orders, can
themselves result in voter confusion and consequent incentive to
remain away from the polls. As an election draws closer, that risk
will increase.
Purcell at 4-5. Nothing in Purcell or its progeny states or implies that late-coming
court decisions are per se improper—and for good reason: if courts were always
prevented from altering the state of play late in an election cycle, the person (or
party) in charge of making the election rules could create rules to disenfranchise
certain voters without consequence.
IV. CONCLUSION
{¶ 76} Ohio law provides that a voter may have a near relative (with the
degree of relation specified in the law) deliver the voter’s absentee ballot to a secure
drop box at a county board of elections at any time of the day or night during the
voting period, and federal law provides that a disabled voter may have almost any
person of the voter’s choice assist the voter with voting. Yet the secretary has
issued a directive that instructs, contrary to plain statutory law, that “the only
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SUPREME COURT OF OHIO
individual who may use a drop box to return the ballot is the voter” and has issued
a template for a sign to be posted at or on a drop box that states that a person
assisting a voter “MUST”—under threat of felony charges and resulting prison time
or fines—return the voter’s absentee ballot to a board of elections official who will
provide “the necessary attestation form.” (Capitalization in original.)
{¶ 77} The secretary overreached, issuing Directive 2024-21 just three
weeks before the first absentee ballots were to be finalized and mailed. This
directive requires county boards of elections to post a sign at or on a drop box that
provides more intimidation than information about voting. According to the
secretary’s own evidence, a remedy in this case would require reprinting and
resending of absentee-ballot instructions, a task that left little time for
implementation by virtue of his continuing procedural changes close in time to an
election. From the secretary’s own evidence, it seems that a correction of these
changes could be similarly and quickly accomplished for more voters to have their
votes recorded and counted without fear of intimidation and illegal prosecution.
The secretary’s issuance of Directive 2024-21 on a Saturday, when State offices
were closed, during the weekend before the Labor Day holiday when State offices
would continue to be closed, is highly unusual at best and suspiciously calculated
to avoid judicial review at worst—a strong basis on which to hold that the secretary
has unclean hands and should not be permitted to avail himself of the equitable
defense of laches. And even if he were entitled to assert that defense, he cannot
show prejudice in the legal sense that is necessary, because nothing the relators
could have done here would have avoided the outcome of reprinting instructions
after absentee voting had begun.
{¶ 78} Finally, although the Purcell principle counsels against late
interference in elections by courts, the principle does not forbid a court’s
intervention, because courts must maintain the ability to act as a check on election
officials, especially when the rights at issue involve voting. Otherwise, an election
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January Term, 2024
official could freely and deliberately take illegal action requiring egregious
corollary action such as mandating intimidating signs at drop boxes, as long as the
official did so late enough in the process to trigger Purcell and avoid court review.
{¶ 79} By refusing to reach the merits of relators’ claims, this court permits
unlawful interference by a State election official with a fair election process.
Whatever intentions accompanied the secretary’s actions, the result is noxious and
repugnant to elections that are free, fair, open, and honest. I would grant relators’
petition for a writ of mandamus, and thus, I respectfully dissent.
__________________
McTigue & Colombo, L.L.C., Donald J. McTigue, and Stacey N. Hauff;
and Elias Law Group, L.L.P., Ben Stafford, Jyoti Jasrasaria, and Marisa A. O’Gara,
for relators.
Dave Yost, Attorney General, and Heather L. Buchanan, Michael A.
Walton, Stephen P. Tabatowski, and Jonathan D. Blanton, Assistant Attorneys
General, for respondent.
ACLU of Ohio Foundation, Freda J. Levenson, Amy Gilbert, and Carlen
Zhang-D’Souza; and American Civil Liberties Union, Megan C. Keenan, and
Sophia Lin Lakin, for amici curiae League of Women Voters of Ohio and Ohio
State Conference of the NAACP, in support of relators.
Jones Day, John M. Gore, E. Stewart Crosland, Joshua S. Ha, Sarah Welch,
and Jesse T. Wynn, for proposed intervenors the Republican National Committee
and Ohio Republican Party.
__________________
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