Ohio Democratic Party v. LaRose , 2020 Ohio 4778 ( 2020 )

[Cite as Ohio Democratic Party v. LaRose, 2020-Ohio-4778.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ohio Democratic Party et al., :
Plaintiffs-Appellees, :
v. : No. 20AP-432
(C.P.C. No. 20CV-5634)
Frank LaRose, in his official capacity as :
Ohio Secretary of State, (ACCELERATED CALENDAR)
Defendant-Appellant. :
Ohio Democratic Party et al., :
Plaintiffs-Appellees, :
v. : No. 20AP-439
(C.P.C. No. 20CV-5634)
Frank LaRose, in his official capacity as :
Ohio Secretary of State, (ACCELERATED CALENDAR)
:
Defendant-Appellee,
:
[The Ohio Republican Party,
:
Intervenor-Appellant].
:
D E C I S I O N
Rendered on October 2, 2020
On brief: McTigue & Colombo, Derek S. Clinger, Donald J.
McTigue, and J. Corey Colombo, for plaintiffs-appellees.
Argued: J. Corey Colombo.
On brief: Dave Yost, Attorney General, Benjamin M.
Flowers, Stephen P. Carney, Bridget C. Coontz, and Halli
Brownfield Watson, for defendant-appellant Frank LaRose,
Nos. 20AP-432 and 20AP-439 2
in his official capacity as Ohio Secretary of State. Argued:
Stephen P. Carney.
On brief: Jones Day, and Edward M. Carter, for intervenor-
appellant The Ohio Republican Party. Argued: Edward M.
Carter.
On brief: Zach Klein, City Attorney, Richard N. Coglianese,
and Alana Valle Tanoury, Assistant City Attorneys, for
amicus curiae City of Columbus; Andrew W. Garth, Interim
City Solicitor, for amicus curiae City of Cincinnati; Eve V.
Belfance, Director of Law for City of Akron, for amicus curiae
City of Akron; Dale Emch, Law Director for City of Toledo, for
amicus curiae City of Toledo; Fritz Byers, for amicus curiae
Board of Lucas County Commissioners; Michael C. O'Malley,
Prosecuting Attorney, and David G. Lambert, Assistant
Prosecuting Attorney, for amicus curiae Cuyahoga County,
Ohio; and Montgomery County Commissioners Judy Dodge,
Deborah A. Lieberman, and Carolyn Rice, pro se, all on joint
brief as amici in support of plaintiffs-appellees.
APPEALS from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} The Ohio Democratic Party and Lewis Goldfarb challenge the Secretary of
State's interpretation of R.C. 3509.05 and seek to enjoin Directive 2020-16. We agree with
the trial court that the Secretary's interpretation of R.C. 3509.05 is not reasonable and that
the statute neither prescribes nor prohibits ballot drop boxes at locations other than the
boards of elections. However, unlike the trial court, we do not find injunctive relief against
the directive to be appropriate. The directive does not violate R.C. 3509.05, and, in this
case, appellees do not raise any other statutory or constitutional challenges to the directive.
As will be explained more fully below, we find that while the Secretary was not statutorily
required to limit the location of drop boxes as he did in Directive 2020-16, he was also not
statutorily required to allow additional drop boxes. If, as appellees argue, the Secretary
wants to permit additional drop boxes, he has the authority to do so and nothing in this
decision prohibits him from rescinding Directive 2020-16 and issuing a new directive
accordingly.
[Cite as Ohio Democratic Party v. LaRose, 2020-Ohio-4778.]
I. Facts and Procedural History
{¶ 2} Defendant-appellant, Frank LaRose, in his official capacity as Ohio Secretary
of State, appeals from (1) an entry of the Franklin County Court of Common Pleas issuing a
declaratory judgment as requested by plaintiffs-appellees, Ohio Democratic Party ("ODP")
and Lewis Goldfarb, a qualified elector of Franklin County and (2) an entry of the Franklin
County Court of Common Pleas granting a preliminary injunction enjoining the
enforcement of the Secretary of State's Directive 2020-16 related to the use of ballot drop
boxes by county boards of elections. Intervenor-appellant, the Ohio Republican Party
("ORP"), also appeals from the declaratory judgment and the granting of the preliminary
injunction. In response to the global coronavirus pandemic, the Ohio General Assembly
passed a COVID-19 relief bill, 2020 Am.Sub.H.B. No. 197, containing, among many other
measures, a temporary provision for the 2020 primary election requiring each county
board of elections to install and use a drop box to facilitate the return of absentee ballots.
2020 Am.Sub.H.B. No. 197, Section 32(C); Section (E)(1). On August 12, 2020, in the lead-
up to the 2020 general election, the Secretary issued Directive 2020-16 instructing all Ohio
county boards of elections to continue using the drop boxes that were installed for the
primary. Specifically, the directive stated:
Boards of elections must continue to use the drop box that was
installed outside each board of elections pursuant to H.B. 197
for the 2020 Primary Election for the November 3, 2020
election cycle for the return of absentee ballot applications and
ballots. Beginning September 1, 2020, boards of elections must
begin to provide voters with 24/7 access to the drop box, which
will of course, already be securely monitored. Boards of
elections are prohibited from installing a drop box at any other
location other than the board of elections.
(No. 20AP-432, Directive 2020-16.)
{¶ 3} On August 25, 2020, ODP and Goldfarb filed a complaint seeking declaratory
judgment and temporary and permanent injunctive relief enjoining the enforcement of the
Secretary's instruction in Directive 2020-16 that prohibits county boards of elections from
installing additional absentee ballot drop boxes at locations other than the county elections
boards' offices. Specifically, appellees sought a declaratory judgment that:
Declare[s] that Ohio law, including R.C. 3509.05, does not limit
the number or locations of secure drop boxes that the county
Nos. 20AP-432 and 20AP-439 2
boards of elections may provide to the voters of their respective
counties, and does not limit Defendant Secretary from
instructing boards of elections that they may have multiple
drop boxes at alternate locations * * *.
(No. 20AP-432, Aug. 25, 2020 Compl. at 14.) Additionally, ODP and Goldfarb filed a
motion for temporary restraining order and preliminary injunction enjoining enforcement
of the portion of Directive 2020-16 prohibiting county boards of elections from installing
additional drop boxes.
{¶ 4} On August 31, 2020, ORP, Donald J. Trump for President, Inc., the
Republican National Committee, and the National Republican Congressional Committee
filed a joint motion to intervene as party defendants. Following a status conference, the
trial court granted intervention to ORP but denied intervention as to Donald J. Trump for
President, Inc., the Republican National Committee, and the National Republican
Congressional Committee, finding ORP's participation would fully protect any interest in
the matters those entities may have. In that same journal entry, the trial court denied
appellees' request for a temporary restraining order and scheduled a hearing on appellees'
motion for a preliminary injunction for September 11, 2020. Prior to the hearing, the trial
court granted leave to various municipalities and county commissioners to file amici briefs
in support of appellees' motion for preliminary injunction.
{¶ 5} On September 8, 2020, the Secretary filed a combined motion to dismiss and
memorandum in opposition to preliminary injunctive relief. In the motion to dismiss, the
Secretary argued that because appellees sought a declaration regarding what non-party
county boards of elections may do, their request was for an advisory opinion, not a claim
for declaratory relief. Thus, the Secretary argued appellees failed to state a claim for relief
and that appellees lacked standing. ORP similarly filed a motion for judgment on the
pleadings, asserting appellees lacked standing to seek a declaratory judgment.
{¶ 6} Appellees sought to compel testimony from the Secretary of State at the
preliminary injunction hearing. In response to the subpoena, the Secretary filed a
September 8, 2020 motion to quash stating that, in lieu of appearing to testify, he was
willing to stipulate to the following:
1. The Secretary of State interprets R.C. 3509.05 and other
provisions of Ohio law as permitting a voter to return their
Nos. 20AP-432 and 20AP-439 3
ballot only by mail or by delivering it to the director [of their
board of elections]. As the director is located at the board of
elections, there can be a drop box only at the board of elections.
2. As a policy preference, the Secretary supports the county
boards of election installing additional secure drop boxes, but
only pursuant to bipartisan standards prescribed in law by the
General Assembly that would apply uniformly in every Ohio
county and that are consistent with the Equal Protection
clause.
(No. 20AP-432, Sept. 8, 2020 Mot. to Quash at 5.) Ultimately, the Secretary did not testify
at the hearing and these proposed stipulations were not agreed to by the appellees, but the
Secretary referred to these proposed stipulations again in a post-judgment reply to a motion
to show cause.
{¶ 7} The trial court conducted a hearing on the preliminary injunction on
September 11, 2020 during which Goldfarb and Gregory Beswick, the executive director of
ODP, provided testimony and the parties submitted numerous exhibits and affidavits of
various election officials from around the state. Following the hearing, the parties
submitted post-hearing briefs. On September 15, 2020, the trial court issued an opinion
determining that the word "deliver" as used in R.C. 3509.05(A) is ambiguous. (No. 20AP-
432, Sept. 15, 2020 Opinion at 29.) The trial court thus granted a declaratory judgment
that:
* * * R.C. 3509.05(A) permits county boards of election to
obtain and use ballot drop boxes consistent with voting security
arrangements specified by the Secretary. The court further
finds that the Secretary had legal authority to require at least
one box to be used in each county for the 2020 general election,
as set forth in Directive 2020-16. * * *.
The evidence offers no explanation for the Secretary's separate
determination in Directive 2020-16 that "Boards of elections
are prohibited from installing a drop box at any other location
other [sic] than the board of elections." As a result, the court
finds that in the present context of the 2020 general election
this restriction is arbitrary and unreasonable. This restriction
blocks individual county boards of elections from even
considering the use of more than one drop box, or placing
boxes at locations separate from board offices. Given the
ambiguity of R.C. 3509.05(A), this is not required by law.
Nos. 20AP-432 and 20AP-439 4
Instead, every board of elections is legally permitted to
consider enhancing safe and convenient delivery of absentee
ballots, and may tailor ballot drop box locations or conceivably
other secure options to the needs of their individual county.
(Opinion at 29.) The trial court further reasoned that although the Secretary of State has
broad discretion to issue directives to local boards of elections, "his actions must be
reasonable to be legally enforceable. Wholly arbitrary rules are entitled to no deference."
(Opinion at 29.)
{¶ 8} The next day, on September 16, 2020, the trial court issued an entry granting
appellees' motion for a preliminary injunction and granting a stay of the preliminary
injunction pending appeal. The trial court reasoned that because it had found in its opinion
on the declaratory judgment that allowing boards of elections to use more than one ballot
drop box per county is lawful, the Secretary's Directive 2020-16 was therefore "legally
unsupportable" as it prohibited individual boards of elections from using more than one
drop box. (No. 20AP-432, Entry at 1.) The trial court found that appellees had
demonstrated the criteria to be entitled to a preliminary injunction, and thus granted a
preliminary injunction as follows:
The Secretary of State, his agents, employees, attorneys and all
those persons in active concert or participation with him who
receive actual notice of this order, must immediately cease
enforcing the limitation of one absentee ballot drop box per
county set out in the Secretary's August 12, 2020 Directive
2020-16, or any variant of that Directive imposing any
arbitrary limitation on the number or location of secure drop
boxes that individual county boards of election may employ for
the November 3, 2020 general election.
Further, the Secretary shall not issue any new Directive or
restriction to boards of elections which circumvent this order,
or prevent individual boards from considering and adopting
arrangements other than drop boxes that a board concludes are
secure and appropriate to enhance absentee voting in their
individual county.
(Entry at 3.)
{¶ 9} The Secretary of State and ORP each filed separate, timely notices of appeal.
In a September 18, 2020 journal entry, this court consolidated the cases for purposes of
Nos. 20AP-432 and 20AP-439 5
appeal. Additionally, this court expedited the briefing, oral argument, and determination
of the consolidated appeals.
II. Assignments of Error
{¶ 10} The Secretary of State assigns the following errors for our review:
[1.] The trial court erred by issuing the declaratory judgment in
this case, as the court wrongly declared that the Ballot Delivery
Law, R.C. 3509.05, allows county boards of elections to install
as many dropboxes as they like in as many places as they like.
[2.] The trial court erred in enjoining the Secretary of State's
Directive 2020-16.
ORP assigns the following errors for our review:
[1.] The trial court erred in holding that Plaintiffs have standing
when the possibility that their requested relief will redress their
harm is speculative.
[2.] The trial court erred by using anecdotal evidence and its
views of sound public policy to reject the Secretary's reasonable
interpretation of R.C. 3509.05.
[3.] The trial court erred in using its declaratory judgment
ruling to enjoin Directive 2020-16 in the absence of any legal
claim that Directive 2020-16 violates the Ohio Constitution,
Ohio law, or any federal law.
[4.] The court erred in holding that the remaining equitable
factors weighed in favor of an injunction.
III. ORP's First Assignment of Error – Standing
{¶ 11} In its first assignment of error, ORP argues the trial court erred in holding
appellees have standing to bring their declaratory judgment and injunctive relief action.
Because an argument that a party lacks standing involves a court's jurisdiction to hear the
case, we address this argument first.
{¶ 12} Pursuant to Article IV, Section 1 of the Ohio Constitution, the "judicial power
of the state is vested in a supreme court, courts of appeals, courts of common pleas and
divisions thereof, and such other courts inferior to the Supreme Court as may from time to
time be established by law." Article IV, Section 4(B) of the Ohio Constitution provides that
Nos. 20AP-432 and 20AP-439 6
the "courts of common pleas and divisions thereof shall have such original jurisdiction over
all justiciable matters and such powers of review of proceedings of administrative officers
and agencies as may be provided by law."
{¶ 13} Standing to sue is part of the common understanding of what makes a case
justiciable and is considered a "jurisdictional requirement." Fed. Home Loan Mtge. Corp.
v. Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017, ¶ 21-22. "It is fundamental that a
party commencing litigation must have standing to sue in order to present a justiciable
controversy." Id. at ¶ 41. Thus, "[b]efore an Ohio court can consider the merits of a legal
claim, the person or entity seeking relief must establish standing to sue." Ohio Pyro, Inc.
v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 115 Ohio St. 3d 375, 2007-Ohio-
5024, ¶ 27; see Moore v. Middletown, 133 Ohio St. 3d 55, 2012-Ohio-3897, ¶ 23 ("[i]t is well
settled that standing does not depend on the merits of the plaintiff's contention that
particular conduct is illegal or unconstitutional. Rather, standing turns on the nature and
source of the claim asserted by the plaintiffs"). Whether a party has established standing
to bring an action before the court is a question of law reviewed de novo on appeal.
Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St. 3d 59, 2006-Ohio-6499, ¶ 23.
{¶ 14} Ohio courts are not bound by federal standing principles derived from Article
III of the United States Constitution's "cases" and "controversies" requirement. Leppla v.
Sprintcom, Inc., 156 Ohio App. 3d 498, 2004-Ohio-1309, ¶ 30 (2d Dist.), citing Article III,
Section 2, U.S. Constitution. However, Ohio courts generally adhere to the traditional
principles of standing that "require litigants to show, at a minimum, that they have suffered
'(1) an injury that is (2) fairly traceable to the defendant's allegedly unlawful conduct, and
(3) likely to be redressed by the requested relief.' " ProgressOhio.org., Inc. v. JobsOhio, 139
Ohio St. 3d 520, 2014-Ohio-2382, ¶ 7, quoting Moore at ¶ 22, citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992); see State ex rel. Walgate v. Kasich, 147 Ohio St. 3d 1,
2016-Ohio-1176, ¶ 23 ("[t]he test for Article III standing, like the test for common-law
[standing] in Ohio, requires an injury in fact, causation, and redressability"). These three
requirements are considered the " 'irreducible constitutional minimum' " of standing.
Moore at ¶ 22, quoting Lujan at 560.
{¶ 15} ORP argues appellees lack standing because they are unable to demonstrate
they have a concrete injury that is likely to be redressed by the requested relief. However,
Nos. 20AP-432 and 20AP-439 7
we agree with the trial court that ODP has standing on its own and that the concept or
organizational standing applies to confer standing on a political party to challenge an
election law on behalf of its members. See Crawford v. Marion Cty. Election Bd., 472 F.3d
949 (7th Cir.2007) (finding a political party has standing to challenge an Indiana voting
law), aff'd on other grounds, 553 U.S. 181, 189 (2008), fn. 7 (stating "[w]e also agree with
the unanimous view of [the judges of the Seventh Circuit] that the Democrats have standing
to challenge the validity of" the voting law); Sandusky Cty. Democratic Party v. Blackwell,
387 F.3d 565, 573-74 (6th Cir.2004) (concluding the county democratic party had
"standing to assert, at least, the rights of their members who will vote in the November
2004 election" in a challenge to an election directive issued by the Ohio Secretary of State).
See also Common Cause Indiana v. Lawson, 937 F.3d 944, 950 (7th Cir.2019) ("[a] voting
law can injure an organization enough to give it standing by compelling [it] to devote
resources to combatting effects of that law that are harmful to the organization's mission")
(internal quotations omitted), citing Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)
(recognizing organizational standing). Because we conclude ODP has standing, we need
not reach the question of whether Goldfarb, individually, has standing. Dept. of Commerce
v. United States House of Representatives, 525 U.S. 316, 330 (1999) (noting that "the
presence of one party with standing assures that controversy before Court is justiciable");
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006), fn. 2
(stating the "presence of one party with standing is sufficient to satisfy Article III's case-or-
controversy requirement").
{¶ 16} Accordingly, we overrule ORP's first assignment of error.
IV. Secretary of State's First Assignment of Error and ORP's Second
Assignment of Error – Declaratory Judgment
{¶ 17} In his first assignment of error, the Secretary argues the trial court erred in
granting appellees' requested declaratory judgment. Similarly, in its second assignment of
error, ORP argues the trial court erred in issuing the declaratory judgment. Because the
Secretary and ORP present related arguments, we address these two assignments of error
jointly. Both the Secretary and ORP assert the trial court erroneously interpreted R.C.
3509.05.
Nos. 20AP-432 and 20AP-439 8
{¶ 18} "A declaratory judgment action is a civil action and provides a remedy in
addition to other legal and equitable remedies available." Burge v. Ohio Atty. Gen., 10th
Dist. No. 10AP-856, 2011-Ohio-3997, ¶ 7, citing Victory Academy of Toledo v. Zelman, 10th
Dist. No. 07AP-1067, 2008-Ohio-3561, ¶ 8. " 'The essential elements for declaratory relief
are (1) a real controversy exists between the parties, (2) the controversy is justiciable in
character, and (3) speedy relief is necessary to preserve the rights of the parties.' " Id.,
quoting Walker v. Ghee, 10th Dist. No. 01AP-960, 2002 Ohio App. LEXIS 252 (Jan. 29,
2002). On appeal, this court reviews a trial court's determination of justiciability of a
declaratory judgment claim for an abuse of discretion; however, once a matter is found to
be appropriate for declaratory judgment, an appellate court reviews a trial court's holdings
regarding questions of law under a de novo standard. Youngstown City School Dist. Bd. of
Edn. v. State, 10th Dist. No. 17AP-775, 2018-Ohio-2532, ¶ 8, citing Arnott v. Arnott, 132
Ohio St. 3d 401, 2012-Ohio-3208, ¶ 13. An abuse of discretion connotes more than an error
of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
A. Justiciability
{¶ 19} We begin by noting that both the Secretary and ORP argue that declaratory
judgment is not appropriate here because appellees have not demonstrated that a real
controversy or justiciable issue exists between the parties. "For purposes of a declaratory
judgment action, a 'justiciable issue' requires the existence of a legal interest or right, and a
'controversy' exists where there is a genuine dispute between parties with adverse legal
interests." Festi v. Ohio Adult Parole Auth., 10th Dist. No. 04AP-1372, 2005-Ohio-3622,
¶ 11, citing Wilburn v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 01AP-198, 2001 Ohio
App. LEXIS 5253 (Nov. 27, 2001). The Secretary and ORP assert appellees have alleged
only speculative or hypothetical injury as appellees are not the entities who would be
responsible for installing and maintaining additional drop boxes. As the Secretary and ORP
note, that responsibility would lie with the individual boards of elections. Appellees
respond that the controversy is not the attempted installation of more drop boxes; rather,
they argue the controversy is the meaning of R.C. 3509.05.
{¶ 20} In considering whether there existed a justiciable controversy suitable for
declaratory judgment, the trial court looked to the prospective harm that could be caused
Nos. 20AP-432 and 20AP-439 9
by not clarifying the meaning of R.C. 3509.05 prior to the November 2020 election. The
trial court relied on federal case law for the proposition that courts "have excused definitive
proof where the injury was impossible to prove with absolute certainty * * * or where the
injury could not be 'specifically identified in advance.' " Tennessee Republican Party v.
Securities & Exchange Comm., 863 F.3d 507, 517 (6th Cir.2017), quoting Sandusky Cty.
Democratic Party at 574; see also Dept. of Commerce v. New York, 588 U.S. __, 139 S. Ct.
2551, 2566 (2019) (noting Article III standing "requires no more than de facto causality,"
and standing can rely "on the predictable effect of Government action on the decisions of
third parties"). Though we caution against the risk of conflating the concept of standing
with the concept of justiciability in the context of declaratory judgment, we nonetheless
agree with the trial court that in the specialized context of election law cases, these
principles can overlap. Thus, we find the trial court did not abuse its discretion in
determining appellees presented a justiciable issue suitable for declaratory judgment.
B. Statutory Interpretation
{¶ 21} We turn now to the trial court's interpretation of the relevant statute and its
issuance of the declaratory judgment. Under Ohio's system of no-fault absentee voting, any
qualified elector may vote by absentee ballot at an election. R.C. 3509.02. Once a voter has
requested, received, completed and signed the absentee ballot, R.C. 3509.05 directs the
manner of submitting the absentee ballot to the board of elections. Specifically, R.C.
3509.05(A) provides that, after placing the absentee ballot in an identification envelope:
The elector shall mail the identification envelope to the director
from whom it was received in the return envelope, postage
prepaid, or the elector may personally deliver it to the director,
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 director.
Further, R.C. 3509.05(A) provides "[t]he return envelope shall be transmitted to the
director in no other manner, except as provided in section 3509.08 of the Revised Code,"
which relates to absent voter's ballots of those electors who are disabled, hospitalized, and
confined.
Nos. 20AP-432 and 20AP-439 10
{¶ 22} There is not an election statute that directly addresses the use of drop boxes,
but the Secretary of State has the authority, under R.C. 3501.05(B) and (C), to implement
the election laws by issuing instructions through directives to the boards of elections as to
the proper method of conducting elections. The question presented in appellees'
declaratory judgment action is whether R.C. 3509.05(A) limits the personal delivery of
absentee ballots to a single location. Specifically, the Secretary and ORP argue the statute
requires personal delivery of absentee ballots to occur only at the office of the board of
elections. Appellees, on the other hand, argue the statute's silence on the location for return
of absentee ballots means drop boxes at locations other than the board of elections are
permissible.
{¶ 23} Statutory interpretation is a question of law subject to de novo review. State
v. Fraternal Order of Police of Ohio, Inc., Ohio Labor Council, Inc., 10th Dist. No. 16AP-
457, 2017-Ohio-1382, ¶ 12, citing Licking Hts. Local School Dist. Bd. of Edn. v.
Reynoldsburg City School Dist. Bd. of Edn., 10th Dist. No. 12AP-579, 2013-Ohio-3211, ¶ 9.
A court's duty is to give effect to the words used in a statute, not to delete or insert words.
State v. Maxwell, 95 Ohio St. 3d 254, 2002-Ohio-2121, ¶ 10. "Where the language of a
statute is plain and unambiguous and conveys a clear and definite meaning there is no
occasion for resorting to rules of statutory interpretation. An unambiguous statute is to be
applied, not interpreted." Sears v. Weimer, 143 Ohio St. 312 (1944), paragraph five of the
syllabus.
{¶ 24} In ascertaining the meaning of a statute, a court's paramount concern is
legislative intent. State v. Jackson, 102 Ohio St. 3d 380, 2004-Ohio-3206, ¶ 34, citing State
ex rel. Asberry v. Payne, 82 Ohio St. 3d 44, 47 (1988). To discern legislative intent, a court
first considers the statutory language, "reading words and phrases in context and
construing them in accordance with rules of grammar and common usage." State ex rel.
Choices for South-Western City Schools v. Anthony, 108 Ohio St. 3d 1, 2005-Ohio-5362,
¶ 40.
{¶ 25} The issue here is the meaning of the word "deliver" as used in R.C.
3509.05(A). The parties agree that the statute is silent as to whether "deliver" must mean
returning the ballot only to the board of elections or whether it contemplates some other
location for delivery. Generally, a court cannot add a requirement that does not exist in a
Nos. 20AP-432 and 20AP-439 11
statute. State ex rel. Colvin v. Brunner, 120 Ohio St. 3d 110, 2008-Ohio-5041 ¶ 45, citing
State ex rel. Columbia Reserve Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St. 3d 167,
2006-Ohio-5019, ¶ 32 ("[w]e will not add a requirement that does not exist in the statute").
{¶ 26} Despite the statute's silence on the ballot drop boxes, the Secretary of State
maintains that R.C. 3509.05(A) permits county boards of elections to install a drop box
only at the county board of elections' offices. The Secretary argues that even if this court
determines the statute is ambiguous as to the meaning of "deliver," his interpretation of the
statute's meaning is entitled to deference. Where an election law is subject to two different,
but equally reasonable, interpretations, a court must defer to the Secretary's interpretation
of the election law. State ex rel. Heffelfinger v. Brunner, 116 Ohio St. 3d 172, 2007-Ohio-
5838, ¶ 57, citing Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St. 3d 216, 2002-
Ohio-5923, ¶ 22. The key inquiry, therefore, is whether the Secretary of State's
interpretation of the statute is reasonable.
{¶ 27} The Secretary argues that when the statute provides that an absentee ballot
may be personally delivered "to the director," that phrase must mean to the director only at
the county board of elections' office. In support, the Secretary points to R.C. 3509.04,
which requires each director to pre-print his or her official address on the return envelope
to be included with the absentee ballot. Thus, in R.C. 3509.05(A), the Secretary argues the
requirement for mailed ballots "to the director" can be only to this one address. According
to the Secretary, it must follow that if mailed ballots must be sent to that address, the
personally delivered ballots must also be delivered only to one location.
{¶ 28} There are several flaws in the Secretary's interpretation of R.C. 3509.05.
First, to accept the Secretary's interpretation, we would have to be willing to read the statute
as using the term "mail" interchangeably with the term "personally deliver." A plain
reading of the statute does not support an approach that would treat those two terms
interchangeably. Moreover, the General Assembly has demonstrated it knows how to
clearly impose a restriction to one location for election activities. For example, R.C.
3501.10(C) provides for early, in-person voting at only one location in the county. And
elsewhere in R.C. 3509.05(A), the statute refers to the completion of an absentee ballot "at
the office of the board." When the legislature uses different terms, a court must give each
of them meaning. See Maxwell at ¶ 10 (a court's duty is to give effect to the words used in
Nos. 20AP-432 and 20AP-439 12
a statute, not to delete or insert words). See also State v. Wilson, 77 Ohio St. 3d 334, 336
(1997) ("[i]n reviewing a statute, a court cannot pick out one sentence and disassociate it
from the context, but must look to the four corners of the enactment to determine the intent
of the enacting body"). The statute does not state "personally deliver to the director at the
office of the board of directors," nor does it state "personally deliver to the director at the
address printed on the identification envelope." The Secretary is urging an interpretation
of the statute that uses terms interchangeably and adds language.
{¶ 29} Second, the Secretary's proffered interpretation of the statute relies on an
unduly technical reading of the term "deliver" that is internally inconsistent. In his brief,
the Secretary concedes that personal delivery necessarily implies some transfer from an
agent of the director to the director. He acknowledges that the personal delivery
requirement would not require handing the completed absentee ballot to the director of a
board of elections face-to-face but could be accomplished by handing the ballot to a board
of elections employee at the board of elections office. Additionally, the Secretary agrees
that personal delivery to the director could be accomplished by the use of one drop box
located at the board of elections office, even setting forth in Directive 2020-16 a procedure
by which "at least one Republican and one Democratic member of the board or board staff
must together retrieve the drop box's contents at least once daily." (Directive 2020-16.)
The Secretary asserts that process of ballot retrieval for one drop box satisfies the statute's
requirement for personal delivery to the director, but he does not convincingly explain how
the statute's silence on the use or placement of drop boxes that are in the custody and
control of the director of a board of elections but at a physical location other than the board
of elections offices compels the conclusion that the statute necessarily prohibits the use of
such drop boxes in other locations. If a board of elections is willing to establish and
maintain a drop box at a different physical location, the procedures the board follows to
obtain the returned absentee ballots from within the drop box would still accomplish
delivery to the director, as the statute requires. This is true whether the drop box is placed
mere feet outside the board of elections office door or miles away. It would also be true
whether a board of elections maintained one drop box or several.
{¶ 30} Third, the Secretary argues that because the identification envelope into
which a completed absentee ballot must be placed is printed with the address of the board
Nos. 20AP-432 and 20AP-439 13
of elections, then the use of any drop box can only occur at the board of elections. However,
this argument is self-defeating as the statute does not require a board of elections' post
office address to be the same as the board's physical office address. The Secretary
acknowledges in his reply brief that the statutory scheme allows directors of boards of
elections to use both their physical office address and a P.O. Box as an official address. The
Secretary is not arguing that a person wishing to personally deliver a ballot in a county that
utilizes an off-site P.O. Box as the address printed on the identification envelope would need
to accomplish personal delivery only at the physical location of the P.O. Box or at the board
of elections. But the Secretary does not explain why it necessarily follows that an off-site
drop box, the contents of which would be retrieved by agents of the director and ultimately
transmitted to the director, does not accomplish personal delivery. Thus, the Secretary's
attempted analogy to the address printed on the identification envelope is unpersuasive.
{¶ 31} If the statute does not limit the use of drop boxes at locations other than the
board of elections, and if a board of elections is willing to install drop boxes in other
locations and keep them under the board of elections' control, we fail to see how returning
a completed absentee ballot to such a drop box would not accomplish personal delivery of
the absentee ballot under R.C. 3509.05(A). Although the statute does not require the
placement of drop boxes at locations other than the board of elections, it also does not limit
it. Thus, we find the Secretary of State's interpretation of R.C. 3509.05(A) to be
unreasonable, and it is therefore not entitled to deference. Instead, we agree with appellees
and the trial court that R.C. 3509.05(A) does not limit the number or locations of drop
boxes that a board of elections may provide. We further agree with appellees and the trial
court that R.C. 3509.05(A) does not limit the Secretary of State from instructing boards of
elections that they may have multiple drop boxes at alternate locations in their respective
counties.
{¶ 32} To be clear, and looking specifically to the declaration appellees requested,
our interpretation of R.C. 3509.05(A) is that it does not limit the location or the number of
drop boxes utilized by a board of elections. That interpretation should not be construed as
imposing a requirement that a board of elections must utilize a definitive number of drop
boxes, only that the statute does not limit it. Thus, we agree with the trial court's issuance
of the declaratory judgment only with respect to the relief actually requested by appellees:
Nos. 20AP-432 and 20AP-439 14
that the statue does not limit the location or number of drop boxes that a board of elections
may provide, and that the statute does not limit the Secretary from instructing boards of
elections that they may have multiple drop boxes at alternate locations. Therefore, we
overrule the Secretary of State's first assignment of error and ORP's second assignment of
error to the extent herein explained.
V. Secretary of State's Second Assignment of Error and ORP's Third and
Fourth Assignments of Error – Preliminary Injunction
{¶ 33} In his second and final assignment of error, the Secretary argues the trial
court erred in granting the preliminary injunction. In its third and fourth assignments of
error, ORP similarly argues the trial court erred in granting the preliminary injunction. As
these assignments of error are related and present similar arguments, we address them
jointly.
{¶ 34} In determining whether a preliminary injunction is warranted, a trial court
looks to four factors: (1) whether the evidence presents a substantial likelihood that the
plaintiff will prevail on the merits; (2) whether denying the injunction will cause the
plaintiff to suffer irreparable injury; (3) whether granting the injunction will cause
unjustifiable harm to third parties; and (4) whether the injunction serves the public
interest. Cuyahoga Re-Entry Agency v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-
740, 2012-Ohio-2034, ¶ 31, citing Vanguard Transp. Sys., Inc. v. Edwards Transfer &
Storage Co., Gen. Commodities Div., 109 Ohio App. 3d 786, 790 (1oth Dist.1996). Whether
to grant or deny an injunction is a matter within the discretion of the trial court, and a
reviewing court will not disturb the judgment of the trial court absent an abuse of
discretion. Garono v. State, 37 Ohio St. 3d 171, 173 (1988). An abuse of discretion connotes
a decision that was unreasonable, arbitrary, or unconscionable. Blakemore at 219.
{¶ 35} Appellees assert they have demonstrated a substantial likelihood of success
on the merits because they were successful in the declaratory judgment action. However,
the declaratory judgment that appellees sought, and that we clarified in our resolution of
the Secretary of State's first assignment of error and ORP's second assignment of error, was
limited to the meaning of R.C. 3509.05(A). Appellees did not seek a declaratory judgment
with respect to Directive 2020-16, and the declaratory judgment statute makes no mention
of Secretary of State directives. R.C. 2721.03 (stating "any person whose rights, status, or
Nos. 20AP-432 and 20AP-439 15
other legal relations are affected by a constitutional provision, statute, rule as defined in
section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or
franchise may have determined any question of construction or validity arising under" the
same). Instead, appellees sought a permanent injunction enjoining the Secretary from
enforcing the instruction in Directive 2020-16 that prohibits county boards of elections
from installing additional drop boxes at locations other than the boards' offices. Thus, to
be entitled to a preliminary injunction, appellees need to demonstrate they have a
substantial likelihood of success on the merits of the claim for a permanent injunction.
{¶ 36} "A party seeking a permanent injunction 'must demonstrate by clear and
convincing evidence that they are entitled to relief under applicable statutory law, that an
injunction is necessary to prevent irreparable harm, and that no adequate remedy at law
exists.' " McDowell v. Gahana, 10th Dist. No. 08AP-1041, 2009-Ohio-6768, ¶ 9, quoting
Acacia on the Green Condominium Assn., Inc. v. Gottlieb, 8th Dist. No. 92145, 2009-Ohio-
4878, ¶ 18. In order for this court to review the trial court's granting of the preliminary
injunction, we must determine whether the trial court abused its discretion in determining
that appellees demonstrated a substantial likelihood of success on their claim that the
portion of the Secretary's Directive 2020-16 prohibiting the installation of additional drop
boxes is a violation of applicable statutory law entitling them to a permanent injunction
against that instruction's enforcement.
{¶ 37} In granting appellees' motion for preliminary injunction, the trial court
confused the issue. Rather than focusing on the likelihood of success on the merits of the
request for permanent injunction, the trial court instead found appellees had already
demonstrated a likelihood of success on the declaratory judgment. This was the wrong
analysis. Appellees' argument, that the trial court adopted, is that the Secretary's rationale
for issuing Directive 2020-16 was unreasonable. However, disagreeing with the policy
behind the directive is different than demonstrating the directive is in violation of the law
or the constitution. Appellees have stipulated in this case that they are not asserting a
constitutional challenge to the directive. Thus, our focus is whether appellees have
demonstrated that Directive 2020-16 is in violation of the law.
{¶ 38} Significantly, the text of Directive 2020-16 makes no mention of the
Secretary's interpretation of R.C. 3509.05(A). The directive does not contain a statement
Nos. 20AP-432 and 20AP-439 16
that R.C. 3509.05(A) allows only one drop box; instead, it contains an instruction from the
Secretary that boards of elections must use one drop box. The directive does not contain
an explanation of the Secretary's policy considerations in issuing the instruction.
{¶ 39} Appellees point out that the Secretary repeatedly represented throughout the
litigation that he believed R.C. 3509.05(A) required him to limit the use of a drop box to
only the board of elections' offices. As we explained in our resolution of the declaratory
judgment arguments, the Secretary's interpretation of R.C. 3509.05 was unreasonable.
However, it bears repeating that even though R.C. 3509.05 does not limit the location or
number of drop boxes and does not limit the Secretary from instructing boards of elections
that they may have more than one drop box, the statute also does not require the use of any
particular number of drop boxes, nor does the statute require that the Secretary instruct
the boards of elections that they must use any particular number of drop boxes. A finding
that R.C. 3509.05(A) does not limit the number or placement of drop boxes does not
compel the conclusion that the Secretary cannot regulate the use of drop boxes. Indeed, he
did just that in prescribing methods for monitoring the drop boxes and for accomplishing
return of the drop box contents to the boards of elections.
{¶ 40} As the Supreme Court of Ohio has explained, "[t]he secretary of state is the
chief election officer of the state" and "has many election-related duties." State ex rel.
Colvin at ¶ 32, citing R.C. 3501.04 and 3501.05. Among the duties of the Secretary of State
is to "[i]ssue instructions by directives and advisories in accordance with section 3501.053
of the Revised Code to members of the boards [of elections] as to the proper methods of
conducting elections." R.C. 3501.05(B). Additionally, the Secretary of State has the duty to
"[p]repare rules and instructions for the conduct of elections." R.C. 3501.05(C).
{¶ 41} Pursuant to that authority, the Secretary issued Directive 2020-16, which
instructed that boards of elections (1) "must continue to use the drop box that was installed
outside each board of elections pursuant to H.B. 197 for the 2020 Primary Election for the
November 3, 2020 election cycle for the return of absentee ballot applications and ballots"
with 24/7 voter access to the drop box beginning September 1, 2020, and (2) are
"prohibited from installing a drop box at any other location other than the board of
elections." (Directive 2020-16.) Appellees do not demonstrate that this instruction
conflicts with R.C. 3509.05 or any other law. Appellees repeatedly state they were entitled
Nos. 20AP-432 and 20AP-439 17
to the injunction because the Secretary's restriction on the number and location of drop
boxes is not required by law. However, this argument ignores that the Secretary's
restriction is also not prohibited by law. We agree with appellees that nothing in R.C.
3509.05 or any other law compelled him to issue the restriction on the number and location
of drop boxes, but it does not follow that the Secretary was prohibited from restricting the
location of drop boxes.
{¶ 42} Appellees urge us to conclude that because the Secretary's interpretation of
R.C. 3509.05(A) was unreasonable, that unreasonable interpretation must render the
subsequent directive unlawful. However, appellees point to no authority that a court may
grant injunctive relief on the grounds that the Secretary's policy determination was
unreasonable.1
{¶ 43} Appellees and the amici curiae through their briefs advance strong
arguments about the importance of the right to vote, access to elections, and concerns with
delays in the U.S. Postal Service that may operate to hinder the timely return of absentee
ballots by mail. All of these are important policy considerations in any election year and
are certainly highlighted by the November 2020 election occurring during the ongoing
pandemic. It is inescapable, however, that these passionate arguments speak to the
reasonableness of the Secretary's directive. Simply put, there is no authority for a court to
grant an injunction against the enforcement of a directive issued pursuant to the authority
the General Assembly bestowed upon the Secretary of State by R.C. 3501.05(B) on the
grounds that the plaintiff disagrees with the policy position behind the directive.2 An
1 The separate opinion dissenting from our resolution of the assignments of error related to the preliminary
injunction relies on Perkins v. Quaker City, 165 Ohio St. 120 (1956) for the proposition that a court's
decision to grant an injunction can depend on many factors, including a consideration of public policy.
However, the discussion of public policy in Perkins, when read in context, relates to the public policy
considerations behind granting or denying the injunction, not the public policy of, in that case, the
ordinance the plaintiff sought to enjoin. The public policy behind whether granting or denying an
injunction would cause harm is a separate and distinct question from whether the instrument seeking to be
enjoined is in violation of any law. The separate opinion additionally relies on Perkins for the proposition
that granting injunctive relief does not depend solely on whether defendants have violated some legal right.
However, that quote, when read in context, reflects that a court cannot issue an injunction solely because
there has been a violation of a legal right; rather, a court must additionally consider the harms that granting
or not granting the injunction could cause. Perkins does not hold, as the separate opinion indicates, that
an injunction can still lie where a defendant has not violated some legal right.
2 We are mindful that in the days leading up to issuance of this decision, this court also released its decision
in Ohio Democratic Party v. LaRose, 10th Dist. No. 20AP-421, 2020-Ohio-4664, considering a challenge
to a Secretary of State directive seeking injunctive relief. That decision does not alter our conclusion in this
Nos. 20AP-432 and 20AP-439 18
injunction will not lie unless the directive is clearly against the law.3 As we have outlined
above, the directive does not violate the law.
{¶ 44} The instruction on the location of drop boxes contained in Directive 2020-16
is not inconsistent with R.C. 3509.05(A), even if not required by the statute. The trial court
ignored this problem and instead granted the injunction on the grounds that the policy
behind the directive was unreasonable. Thus, because the Secretary of State's directive was
not issued in violation of any law, appellees are unable to demonstrate a substantial
likelihood of success on their claim for a permanent injunction enjoining enforcement of
the directive. Further, because appellees cannot demonstrate a substantial likelihood of
success on their claim, denying the preliminary injunction will not cause appellees
irreparable injury but granting the preliminary injunction would cause unjustifiable harm
to third parties. And since the directive does not violate the law, it cannot be said that the
preliminary injunction would serve the public interest. We conclude, therefore, that the
trial court abused its discretion in granting a preliminary injunction enjoining the
enforcement of the directive. Similarly, to the extent the trial court purported to declare,
by declaratory judgment, that the Secretary of State's directive was unlawful, the trial court
abused its discretion as appellees' request for declaratory judgment was limited to the
meaning of the statute.
{¶ 45} Although the trial court abused its discretion in granting the preliminary
injunction enjoining enforcement of Directive 2020-16, we note that to the extent the
Secretary wants to allow more drop boxes, R.C. 3509.05(A) would allow it. Accordingly,
we sustain the Secretary of State's second assignment of error and ORP's third and fourth
assignments of error.
case, as the majority opinion's use of the reasonableness standard in that case applied to the Secretary of
State's reasonableness of the construction of the statutory scheme as opposed to a review of whether the
underlying policy was reasonable.
3 We note there are other avenues of relief available to a party seeking to challenge a directive of the
Secretary of State on grounds other than a statutory violation, among them a challenge to the directive's
constitutionality, as is the subject of the federal case currently pending in the Northern District of Ohio, or
an action seeking a writ of mandamus arguing the Secretary abused his or her discretion in issuing a
directive. See A. Philip Randolph Institute of Ohio v. LaRose, N.D.Ohio No. 1:20-CV-01908, 2020 U.S.
Dist. LEXIS 168667 (Sept. 15, 2020) (pending federal case asserting constitutional challenge to Directive
2020-16); State ex rel. Skaggs v. Brunner, 120 Ohio St. 3d 506, 2008-Ohio-6333, ¶ 1 (granting requested
writ of mandamus on the grounds that the secretary of state's directive was unreasonable).
Nos. 20AP-432 and 20AP-439 19
VI. Disposition
{¶ 46} Based on the foregoing reasons, we agree with the trial court that the
Secretary of State's interpretation of R.C. 3509.05 is not reasonable and that the statute
neither prescribes nor prohibits ballot drop boxes at locations other than the boards of
elections. However, the trial court abused its discretion in granting a preliminary
injunction against enforcement of the directive as the directive does not violate R.C.
3509.05. Thus, we find that while the Secretary was not statutorily required to limit the
location of drop boxes, as he did in Directive 2020-16, he was also not statutorily required
to allow for additional drop boxes. If the Secretary wants to permit additional drop boxes
as allowed by statute, he has the authority to do so, and nothing in this decision prohibits
him from rescinding Directive 2020-16 and issuing a new directive. Having overruled the
Secretary of State's first assignment of error and ORP's first and second assignments of
error, but having sustained the Secretary of State's second assignment of error and ORP's
third and fourth assignments of error, we affirm in part and reverse in part the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed in part and reversed in part.
BROWN, J., concurs in part and dissents in part.
DORRIAN, J., concurs in part and dissents in part.
BROWN, J., concurring in part and dissenting in part.
{¶ 47} I concur in part and respectfully dissent in part from the lead opinion. I
concur with the lead opinion that ODP has standing, that the trial court did not abuse its
discretion in finding a justiciable issue for declaratory judgment, and that the trial court
abused its discretion in granting appellees a preliminary injunction. However, being unable
to agree with the lead opinion's conclusion that the Secretary's interpretation of R.C.
3509.05 was unreasonable, I dissent.
{¶ 48} R.C. 3509.05(A) provides that, after an elector has received and completed
their absentee ballot, the elector "shall mail the identification envelope to the director from
whom it was received in the return envelope," or the elector "may personally deliver it to
the director" or certain close relatives of the elector "may deliver it to the director." I concur
with the lead opinion that R.C. 3509.04 and 3509.05(A) do not indicate that an elector
Nos. 20AP-432 and 20AP-439 20
should personally deliver their absentee ballot to the pre-printed post office address
contained on the return envelope. (Lead Opinion at ¶ 27-28.)
{¶ 49} As the lead opinion recognizes, the parties agree that the statute is silent as
to whether "deliver" in R.C. 3509.05(A) means returning the ballot to the board of elections
or some other location. (Lead Opinion at ¶ 25.) Accordingly, the plain language of R.C.
3509.05(A) presents doubt or ambiguity as to where an elector must go to physically deliver
their absentee ballot to the director. See Family Med. Found., Inc. v. Bright, 96 Ohio St. 3d
183, 2002-Ohio-4034, ¶ 8 (stating that "a statute is ambiguous when its language is subject
to more than one reasonable interpretation").
{¶ 50} "The in pari materia rule of construction may be used in interpreting statutes
where some doubt or ambiguity exists." State ex rel. Herman v. Klopfleisch, 72 Ohio St. 3d
581, 585 (1995), citing State Farm Mut. Auto. Ins. Co. v. Webb, 54 Ohio St. 3d 61, 63-64
(1990). "Statutes and regulations that relate to the same general subject matter may be
read in pari materia in order to discover and carry out legislative intent." Sheet Metal
Workers' Internatl. Assn. v. Gene's Refrigeration, Heating & Air Conditioning, Inc., 122
Ohio St. 3d 248, 2009-Ohio-2747, ¶ 38. In construing statutes in pari materia, a court
"must give them a reasonable construction so as to give proper force and effect to each and
all of the statutes." Klopfleisch at 585, citing United Telephone Co. v. Limbach, 71 Ohio
St.3d 369, 372 (1994). See Santarelli v. Western Reserve Transit Auth., 7th Dist. No. 88
C.A. 57 (Feb. 10, 1989), quoting 85 Ohio Jurisprudence 3d, Statutes, Section 225, 228
(noting that " '[t]he rule of in pari materia is a reflection of the fact that the General
Assembly, in enacting a statute, is assumed, or presumed, to have legislated with full
knowledge and in the light of all statutory provisions concerning the subject matter of the
act' "). The standard of review for questions of statutory interpretation is de novo. Turner
v. Certainteed Corp., 155 Ohio St. 3d 149, 2018-Ohio-3869, ¶ 11.
{¶ 51} R.C. 3509.05(A) provides that the "return envelope shall be transmitted to
the director in no other manner, except as provided in section 3509.08 of the Revised
Code." R.C. 3509.08 pertains to absentee ballots requested by qualified electors who, "on
account of the elector's own personal illness, physical disability, or infirmity, or on account
of the elector's confinement in a jail or workhouse" will be "unable to travel from the
Nos. 20AP-432 and 20AP-439 21
elector's home or place of confinement to the voting booth in the elector's precinct" on
election day. R.C. 3509.08(A). The electors identified in R.C. 3509.08 may request an
absentee ballot, and an absentee ballot "may be mailed directly to the applicant." R.C.
3509.08(A). However, if the applicant is confined in a public or private institution within
the county, "the board shall designate two board employees * * * for the purpose of
delivering the ballot to the disabled or confined elector and returning it to the board." R.C.
3509.08(A). "In all other instances, the ballot shall be returned to the office of the board in
the manner prescribed in section 3509.05 of the Revised Code." R.C. 3509.08(A).
Construing R.C. 3509.05(A) and 3509.08(A) in pari materia, the statutes indicate that
when an elector or an elector's close relative deliver an absentee ballot "to the director,"
they do so by returning the ballot to the "office of the board." R.C. 3509.05(A); 3509.08(A).
{¶ 52} Furthermore, in H.B. No. 197 the General Assembly instructed boards of
elections to place "a secure receptacle outside the office of the board for the return of
ballots" for the 2020 primary election. H.B. No. 197, Section 32(E)(1). The General
Assembly stated that absentee ballots cast for the 2020 primary would be "eligible to be
counted if they [were] received at the office of the appropriate board of elections" prior to a
specified date, or if "[b]allots received by mail at the office of the board" were postmarked
before a specified date. H.B. No. 197, Section 32(E)(1) and (2).
{¶ 53} Although Section 32(E) was an uncodified statute which applied only to the
2020 primary election, Section 32(E) demonstrates that the General Assembly expected
electors to return their 2020 primary absentee ballots by either physically returning those
ballots to the office of the board or mailing them. We presume the General Assembly
enacted Section 32 of H.B. No. 197 with full knowledge and in light of the two absentee
ballot return methods provided for in R.C. 3509.05(A). Accordingly, construing R.C.
3509.05(A) and Section 32(E) of H.B. No. 197 in pari materia indicates the General
Assembly's understanding that an elector would deliver their absentee ballot to the director
at the office of the board of elections. Compare Aratari v. Dept. of Rehab. & Correction, 48
Ohio App. 2d 239, 243 (10th Dist.1976) (construing "R.C. 2743.16(A), of the Court of Claims
Act, in pari materia with the uncodified section 3 of such Act" to ascertain the meaning of
the uncodified section).
Nos. 20AP-432 and 20AP-439 22
{¶ 54} The lead opinion concludes that the Secretary's interpretation of R.C.
3509.05(A) was unreasonable, as R.C. 3509.05(A) neither expressly prescribes nor
prohibits ballot drop boxes at locations other than the offices of the boards of elections.
(Lead Opinion at ¶ 1, 31.) However, construing R.C. 3509.05(A) in pari materia with R.C.
3509.08(A) and H.B. No. 197 demonstrates that the Secretary's interpretation of R.C.
3509.05(A), as requiring that delivery to the director occur solely at the office of the board
of elections, was reasonable. Even if R.C. 3509.05(A) is subject to other equally reasonable
interpretations, the Secretary's reasonable interpretation of the statute is entitled to
deference. State ex rel. Barth v. Hamilton Cty. Bd. of Elections, 65 Ohio St. 3d 219, 225
(1992) (holding that "[w]hen an election statute is subject to two different, but equally
reasonable, interpretations, the interpretation of the Secretary of State, the state's chief
election officer, is entitled to more weight"); State ex rel. Colvin v. Brunner, 120 Ohio St. 3d
110, 2008-Ohio-5041, ¶ 57. Accordingly, I would defer to the Secretary's reasonable
interpretation of R.C. 3509.05(A). As Directive 2020-16 reflects the Secretary's reasonable
interpretation of R.C. 3509.05(A) and was issued pursuant to the Secretary's authority in
R.C. 3501.05(B) and (C), Directive 2020-16 is reasonable and should not be disturbed.
{¶ 55} For these reasons, I would sustain the Secretary's first assignment of error
and ORP's second assignment of error, and reverse the trial court's declaratory judgment.
DORRIAN, J., concurring in part and dissenting in part.
{¶ 56} For the following reasons, I concur in part and dissent in part.
{¶ 57} I concur with the lead opinion finding Secretary LaRose's interpretation of
R.C. 3509.05 to be unreasonable. I concur with the lead opinion in overruling the
Secretary's first assignment of error and ORP's first and second assignments of error, and
affirming the trial court's September 15, 2020 declaratory judgment opinion. However, I
respectfully dissent from the lead opinion in sustaining the Secretary's second assignment
of error and ORP's third and fourth assignments of error, and reversing the trial court's
September 16, 2020 entry granting a preliminary injunction to enjoin enforcement of the
instruction in Directive 2020-16 erroneously based on the unreasonable interpretation of
R.C. 3509.05.
Nos. 20AP-432 and 20AP-439 23
A. Availability of Injunctive Relief
{¶ 58} Here, we have found the Secretary's interpretation of R.C. 3509.05(A) to be
unreasonable and, therefore, not entitled to deference. We further find that R.C.
3509.05(A) does not limit the number or locations of drop boxes that a board may provide,
nor does it limit the Secretary from instructing boards of elections that they may have
multiple drop boxes at alternate locations in their respective counties. Nevertheless, the
lead opinion concludes that Directive 2020-16, which applies the Secretary's unreasonable
interpretation of R.C. 3509.05(A) to the boards of elections by prohibiting them from
installing a drop box at any location other than the boards of elections, cannot be enjoined
in this action. I disagree.
{¶ 59} First, it is important to note that had the Secretary, upon receiving
notification of the trial court's declaratory judgment, agreed to rescind Directive 2020-16,
injunctive relief would not be necessary in this case. See Ohio Hosp. Assn. v. Ohio Bur. of
Workers' Comp., 10th Dist. No. 06AP-471, 2007-Ohio-1499, ¶ 26. Indeed, the record
reflects the Secretary's statement that he would allow the boards of elections to install
secure drop boxes in additional locations if a judicial order made it clear that such action
was permissible under Ohio law.4 Nevertheless, despite the trial court's finding that the
Secretary's interpretation of R.C. 3509.05 to limit additional drop boxes was unreasonable
and the Secretary's acknowledgment that he had "publicly stated he supports additional
drop boxes if they are legal," the Secretary did not rescind Directive 2020-16. (Emphasis
sic.) (Sept. 16, 2020 Secretary's Response to Show Cause Order at 2.) Instead, the Secretary
continued to enforce Directive 2020-16, issuing a message to the boards of elections that
"Directive 2020-16 remains in effect," thereby preventing the boards of elections from
adding additional drop boxes at other locations. (Sept. 16, 2020 Secretary's Response to
Show Cause Order at 3.) See State ex rel. Hodges v. Taft, 64 Ohio St. 3d 1, 8 (1992). The
Secretary then requested the trial court rule on the preliminary injunction motion in order
to seek immediate appeal.
4See affidavits of Andre Washington, President of the A. Philip Randolph Institute of Ohio (Aug. 25, 2020
Mot. for Temporary Restraining Order, Ex. E at 1-2.), and Paula Hicks Hudson, State Representative for
Ohio's 44th House District (Ex. G at 1.).
Nos. 20AP-432 and 20AP-439 24
{¶ 60} Second, it is also important to note that the lead opinion's analysis and
holding is unnecessary. The Secretary's sole justification for instructing the boards of
elections was his unreasonable interpretation of R.C. 3509.05(A). In his merit brief, he
defines the first issue as "[d]id the Secretary's Directive unreasonably interpret the Ballot
Delivery Law?" (Secretary's Merit Brief at vi.)5 He reasons that "[t]his case begins and ends
with the text of the Ballot Delivery Law." (Secretary's Merit Brief at 9.) He further states
that the answer in this case "turns on the statutory text, not the wisdom of the policy choices
that motivated [the] passage [of the statutory text]." (Secretary's Merit Brief at 17.) Because
the sole justification is the unreasonable interpretation of the statute, the preliminary
injunction must issue as the Secretary offered no other justifications to consider.
Accordingly, it is not necessary to consider whether a preliminary injunction can issue for
the unreasonableness of the Secretary's exercise of discretion based on any other
justification.
{¶ 61} In support of reversing the preliminary injunction, the lead opinion points to
the fact that appellees did not argue and establish Directive 2020-16 resulted in a
constitutional or statutory violation. However, given the two considerations I note above,
this was not necessary. Considering the Secretary's prior public statements that he would
comply with a court order declaring he had the authority to allow additional drop boxes, it
is unclear why appellees would have sought to make such claims in addition to their request
for a declaratory judgment and relief in the form of an injunction enjoining enforcement of
the prohibition in Directive 2020-16 on boards of elections installing additional drop boxes.
Regardless, appellees' decision to not make such claims has no bearing on the matter before
us, as the availability of equitable relief in the form of an injunction does not turn on the
demonstration of a constitutional or statutory violation.
{¶ 62} Third, the lead opinion sets new precedent without any authority or support.
In determining whether the trial court abused its discretion by granting the motion for
5The Secretary defines the third issue as "Even if the Ballot Delivery Law permits the installation of multiple
dropboxes, can Directive 2020-16 be upheld as a permissible exercise of the Secretary's authority to provide
election guidance through directives?" (Secretary's Merit Brief at vii.) Yet—in the discussion of this issue,
the Secretary addresses no other justifications for issuance of the instruction in Directive 2020-16 except
his unreasonable statutory interpretation.
Nos. 20AP-432 and 20AP-439 25
preliminary injunction, the lead opinion states the trial court erroneously determined the
first injunction factor, i.e. likelihood of success on the merits, to be satisfied. The lead
opinion instead states the "focus" for determining whether injunctive relief is appropriate
is "whether appellees have demonstrated that Directive 2020-16 is in violation of the law."
(Lead Opinion at ¶ 37.) However, a court's power to issue injunctive relief is not
circumscribed to only such cases.
{¶ 63} Rather, " '[a]n injunction is an extraordinary remedy in equity where there is
no adequate remedy available at law. It is not available as a right but may be granted by a
court if it is necessary to prevent a future wrong that the law cannot.' " Toledo v. State, 154
Ohio St. 3d 41, 2018-Ohio-2358, ¶ 15, quoting Garono v. State, 37 Ohio St. 3d 171, 173
(1988). The question of whether to grant an injunction "depends largely on the character
of the case, the peculiar facts involved and other pertinent factors, among which are those
relating to public policy and convenience." Perkins v. Quaker City, 165 Ohio St. 120, 125
(1956). See Cementech, Inc. v. Fairlawn, 109 Ohio St. 3d 475, 2006-Ohio-2991, ¶ 10.
Furthermore, the granting of injunctive relief "depends not upon the strict right of the
parties to some redress, nor upon the question whether the defendants have violated some
legal right, but it depends upon whether, under the circumstances, this extraordinary
process should go in the particular instance." (Emphasis added.) Perkins at 125.
{¶ 64} The Supreme Court of Ohio has recognized that "[i]f the secretary's 'advice
[to the boards of elections] is an erroneous interpretation of the election laws there must
be some remedy to correct the error and to require proper instructions in lieu of those
erroneously given.' " State ex rel. Colvin v. Brunner, 120 Ohio St. 3d 110, 2008-Ohio-5041,
¶ 20, quoting State ex rel. Melvin v. Sweeney, 154 Ohio St. 223, 226 (1950). There is
precedent for mandamus being one avenue for relief when challenging the reasonableness
of a directive. However, case law makes clear that it is not the only method. See Colvin at
¶ 20; Hodges at 8; State ex rel. Pressley v. Indus. Comm., 11 Ohio St. 2d 141, 150 (1967)
(stating that "where a petition which is labeled an 'action in mandamus' but its allegations,
in effect, seek an injunctive remedy to restrain and enjoin the respondents rather than to
compel respondents to perform a clear legal duty, such a petition does not state a cause of
action in mandamus but states a cause of action in injunction"). (Emphasis sic.) In Colvin,
the court noted that "if the secretary of state 'has, under the law, misdirected the members
Nos. 20AP-432 and 20AP-439 26
of the boards of elections as to their duties, the matter may be corrected through the remedy
of mandamus.' " (Emphasis added.) Colvin at ¶ 20, quoting Melvin at 226.
{¶ 65} Against this backdrop, it is important to consider that both ORP and the
Secretary have asserted that appellees were required to bring a mandamus action in order
to obtain the relief they sought. However, both ORP and the Secretary also argued that
appellees could not succeed in a mandamus action. Specifically, ORP and the Secretary
argued that appellees lacked standing to bring a claim in mandamus because they could not
establish the Secretary was under a clear legal duty, as required in mandamus, to allow
boards to install drop boxes different in number or location than provided under Directive
2020-16 because R.C. 3509.05 was silent on the matter. See State ex rel. Linnabary v.
Husted, 138 Ohio St. 3d 535, 2014-Ohio-1417, ¶ 13 (stating that to prevail in mandamus, a
party "must establish a clear legal right to the requested relief, a clear legal duty [for the
respondent] to provide it, and the lack of an adequate remedy in the ordinary course of the
law"); Hodges at 8.
{¶ 66} In Hodges, the Supreme Court found a directive issued by the Secretary to be
contrary to Ohio election law. However, the court recognized that the relators could not
succeed in establishing a right to the issuance of a writ of mandamus because, although the
Secretary "is required to advise the boards [of elections], the content of his advice [in the
issued directive] is discretionary." Hodges at 8. Furthermore, even though the Secretary's
directive was contrary to law, the court found it would be "unrealistic to contend that the
boards of elections could ignore the secretary's advice," but rather found that "there is
authority that the boards were required to follow it." Id. at 8. Despite finding the relators
had no remedy in mandamus due to the lack of clear legal duty, the court stated that the
relators could seek relief "in an action for declaratory judgment pursuant to R.C. Chapter
2721." Id. The court opined that "the prohibitive relief requested by relators is more suited
to declaratory judgment or injunction than to mandamus, which is a command to perform
an affirmative act." Id., citing Pressley at 150 (stating that "where a petition which is labeled
an 'action in mandamus' but its allegations, in effect, seek an injunctive remedy to restrain
and enjoin the respondents rather than to compel respondents to perform a clear legal duty,
such a petition does not state a cause of action in mandamus but states a cause of action
in injunction"). (Emphasis sic.)
Nos. 20AP-432 and 20AP-439 27
{¶ 67} Thus, Colvin makes clear there must be a remedy when the Secretary issues
a directive based on an unreasonable interpretation of the law. Furthermore, Colvin stands
for the proposition that such relief "may be corrected through the remedy of mandamus,"
but does not provide that mandamus is the only avenue of relief. (Emphasis added.) Id. at
¶ 20. Consistent with this reasoning in Colvin, Hodges specifically allows that relief in such
a case might more properly be found in an action for a declaratory judgment or injunction.
Compare Ohio Democratic Party v. LaRose, 10th Dist. No. 20AP-421, 2020-Ohio-4664,
¶ 31.
{¶ 68} Thus, as R.C. 3509.05 is silent on the question at hand, namely the ability of
the boards of elections to add additional drop boxes at locations other than their offices, it
is arguable as to whether the Secretary had a clear duty to act. We need not resolve the
question of whether an action in mandamus would lie in this instance, however, since a
remedy in the form of injunctive relief is available in order to correct the Secretary's
unreasonable interpretation of election law.
{¶ 69} Furthermore, the lead opinion suggests that a court review of reasonableness
is limited only to review of the construction of a statute. However, in a recent decision
involving a different directive issued by the Secretary, this court reviewed a trial court's
decision granting a declaratory judgment and preliminary injunction. LaRose. In that case,
we considered the policy justifications the Secretary advanced for the issuance of his
Directive 2020-13. LaRose at ¶ 46-53, and (Dorrian, J., concurring) ¶ 88-103. Although
the panel was divided on the outcome, the question considered was whether the Secretary
"acted unreasonably in exercising his authority to issue a directive." Id. at ¶ 49, and
(Dorrian, J., concurring) at ¶ 89.6 Furthermore, we did so even after determining the
Secretary's interpretation of the statute at issue was reasonable. How is it possible then to
6 The lead opinion suggests the majority in LaRose examined the reasonableness of the Secretary's
interpretation of the statutory scheme as opposed to a review of whether the underlying policy is reasonable.
In fact, in LaRose the court conducted both analyses, and the discussion of whether the Secretary acted
reasonably did not commence until after the statutory analysis was complete. The majority in that case
determined "the [S]ecretary had authority to issue instructions * * * and, in exercising that authority,
issued a reasonable instruction limiting return of absentee ballot applications to mail and in-person
delivery." (Emphasis added.) Id. at ¶ 53.
Nos. 20AP-432 and 20AP-439 28
reconcile that a court cannot look at the reasonableness of exercising discretion when the
interpretation of a statute is unreasonable?
{¶ 70} Next, granting a preliminary injunction in this case does not prevent the
Secretary from issuing further directives reasonably interpreting gaps in Ohio's election law
scheme.7 See State ex rel. Peregrine Health Servs. of Columbus, LLC v. Sears, 10th Dist.
No. 18AP-16, 2020-Ohio-3426, ¶ 33, quoting Northwestern Ohio Bldg. & Constr. Trades
Council v. Conrad, 92 Ohio St. 3d 282, 289 (2001) ("[A] legislative gap is not equivalent to
a lack of authority for the agency to act. * * * [T]he power of an administrative agency to
administer a * * * program necessarily requires the formulation of policy and the making of
rules to fill any gap left, implicitly or explicitly, by the legislature.)8 (Internal quotations
omitted.); LaRose at ¶ 48. In examining the propriety of declaratory and injunctive relief,
our decision, like the trial court's, is limited to examining the reasonableness of the directive
based on the record in this case, including any evidence submitted by the Secretary. As
noted previously here, the Secretary argued that analysis of the reasonableness of his
interpretation "begins and ends with the text of the Ballot Delivery Law, R.C. 3905.05."
(Secretary's Merit Brief at 9.) Rather than advancing other factors in support of the
reasonableness of his interpretation, the Secretary argued that "R.C. 3509.05 cannot be
interpreted to grant boards [of elections]" the authority "to accept absentee ballots at
multiple locations." (Sept. 8, 2020 Mot. to Dismiss at 25.)
{¶ 71} If under his authority to "[i]ssue instructions by directives * * * to members
of the boards [of elections] as to the proper methods of conducting elections" the Secretary
chooses to issue a subsequent directive limiting the number or location of drop boxes, and
7 It is significant to note that the parties in this case stipulated to the following: " '[plaintiffs] do not claim a
legal right to a certain number or location of drop boxes in this case[, and do not] seek to require any county
board of elections to provide additional drop boxes in this case.' " (Sept. 15, 2020 Opinion at 13, quoting
Joint Stip. at 11-13.)
8 In a different context of "filling the gap," rules adopted pursuant to R.C. 119 cannot be unreasonable or
unlawful. R.C. 119.03(D); Sterling Drug, Inc. v. Wickham, 63 Ohio St. 2d 16 (1980). Accordingly, review of
such a rule is not confined to considering whether the rule is unlawful. Courts may also consider whether a
rule is unreasonable. Although the Secretary's authority to issue instructions by directives and advisories
pursuant to R.C. 3501.05(B) is not subject to R.C. 119, in the absence of any authority indicating otherwise
for directives and instructions issued by the Secretary pursuant to R.C. 3501.05(B) and (C), by analogy they
too should not be unreasonable or unlawful. If reasonableness of the exercise of authority is challenged
courts should also be permitted to consider the same.
Nos. 20AP-432 and 20AP-439 29
if a challenge to such directive is brought, the court could then examine the reasonableness
of the Secretary's exercising of discretion with the issuance of such directive or the process
undertaken for its issuance. R.C. 3501.05(B). Other arguments the Secretary might assert
in support of the reasonableness of such a directive are not presently before us in this case.
Therefore, we need not issue an advisory opinion or speculate further on the same at this
time. See Devine-Riley v. Clellan, 10th Dist. No. 11AP-112, 2011-Ohio-4367, ¶ 3 ("Appellate
courts are not required to render an advisory opinion on a moot question or to rule on a
question of law that cannot affect matters at issue in a case."); Harper v. Lefkowitz, 10th
Dist. No. 09AP-1090, 2010-Ohio-6527, ¶ 35 (declining to provide an opinion on an issue
not affecting the case because of this court's reluctance to issuing advisory opinions).
{¶ 72} The Secretary is owed deference regarding his policy determinations, and
indeed it is a high bar to meet for a court to determine the exercise of discretion pursuant
to R.C. 3501.05(B) and (C) is unreasonable. Cementech at ¶ 10, quoting Danis Clarkco
Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St. 3d 590, 604 (1995), quoting
Leaseway Distrib. Ctrs, Inc. v. Dept. of Adm. Servs., 49 Ohio App. 3d 99, 106 (10th
Dist.1988) (stating that "the granting of an injunction should be done with caution,
' "especially in cases affecting a public interest where the court is asked to interfere with or
suspend the operation of important works or control the action of another department of
government" ' "). However, I respectfully cannot agree with the lead opinion where it sets
two unnecessary, unsupported and unsettling precedents that (1) injunctions cannot issue
against the Secretary unless there is a statutory or constitutional violation, and
(2) reasonableness of the Secretary's exercise of discretion pursuant to R.C. 3501.05(B) and
(C) cannot be remedied by way of injunctive relief.9 Neither of these precedents should
stand. A Secretary of state, whether Republican, Democrat, otherwise affiliated or
unaffiliated, cannot have unfettered discretion. This is especially pertinent given that the
Secretary possesses broad authority pursuant to R.C. 3501.05(B) and (C) as well as
authority, pursuant to R.C. 3501.053(A), to issue temporary directives, which are not
9 By implication, the lead opinion seems to suggest exercise of discretion can only be challenged by way of
mandamus, the granting of which requires a showing of a clear legal right and a clear legal duty to the
requested relief.
Nos. 20AP-432 and 20AP-439 30
subject to public review and public comment requirements, in the 90 days prior to the day
of the election. This was the case with the issuance of Directive 2020-16.
{¶ 73} Finally, I end where I began, I agree with the lead opinion that the Secretary
is entitled to deference on a reasonable interpretation of election law. However, where the
Secretary's interpretation is the sole justification for the instruction and the interpretation
is unreasonable and therefore not entitled to deference, it cannot be the case that the
Secretary can continue through the exercise of his discretion to misdirect the boards of
elections. Based on the foregoing, I would consider the factors for the issuance of injunctive
relief.
B. Preliminary Injunction Elements
{¶ 74} A party requesting a preliminary injunction must show that: (1) there is a
substantial likelihood that the plaintiff will prevail on the merits, (2) the plaintiff will suffer
irreparable injury if the injunction is not granted, (3) no third parties will be unjustifiably
harmed if the injunction is granted, and (4) the public interest will be served by the
injunction. Garb-Ko, Inc. v. Benderson, 10th Dist. No. 12AP-430, 2013-Ohio-1249, ¶ 32.
A party seeking a preliminary injunction bears the burden of establishing a right to the
preliminary injunction by demonstrating clear and convincing evidence of each of these
factors. Youngstown City School Dist. Bd. of Edn. v. State, 10th Dist. No. 15AP-941, 2017-
Ohio-555, ¶ 50. However, "[i]n determining whether to grant injunctive relief, no one of
the four preliminary injunction factors is dispositive; rather, a balancing should be
applied." Id. "A court should exercise great caution regarding the granting of an injunction
which would interfere with another branch of government * * * and we have recognized
that a court cannot employ equitable principles to circumvent valid legislative enactments."
(Internal quotations and citations omitted.) Toledo, 2018-Ohio-2358, at ¶ 16.
{¶ 75} The decision to grant or deny an injunction is within the discretion of the trial
court and generally will not be reversed absent an abuse of discretion. Garb-Ko at ¶ 32. An
abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶ 76} The trial court in this case determined appellees established a substantial
likelihood of success on the merits, that they would be irreparably injured absent an
injunction, that there is no evidence of harm to other parties, and that the public interest
Nos. 20AP-432 and 20AP-439 31
will be served by the issuance of an injunction. (Sept. 16, 2020 Entry Granting Preliminary
Injunction at 2-3.) I would find that, in so doing, the trial court did not abuse its discretion.
1. First Element: Substantial Likelihood of Success on the Merits
{¶ 77} There is no need to further discuss the first element of substantial likelihood
of success on the merits as we have concluded appellees are entitled to declaratory relief.
As a result, and for the reasons outlined in the lead opinion regarding the same, this factor
weighs in favor of granting injunctive relief. LaRose at ¶ 34. See generally State v.
Cincinnati Citizen Complaint Auth., 1st Dist. No. C-180509, 2019-Ohio-5349, ¶ 22
(analyzing success on the merits factor in the context of a declaratory judgment claim). I
would find the trial court did not err or abuse its discretion in determining appellees
established a substantial likelihood of success on the merits.
2. Second and Fourth Elements: Irreparable Injury and Public Interest
a. Unusual Background Factors – COVID-19 and Delay of U.S. Mail Delivery
{¶ 78} When considering the second and fourth elements of preliminary injunction,
it is important to note the trial court's discussion in the opinion granting declaratory
judgment of the unusual background factors of the COVID-19 pandemic and delay of U.S.
mail delivery. (Sept. 15, 2020 Opinion at 3-6.) Indeed, these factors weigh heavily in
consideration of whether appellees established the elements of irreparable injury if the
injunction is not granted and the public interest will be served by the granting of an
injunction.
i. COVID-19 Pandemic
{¶ 79} On March 9, 2020, the Governor of Ohio declared a state of emergency to
protect the well-being of Ohioans from the effects of COVID-19. Office of Governor Mike
DeWine, Executive Order 2020-01D (Mar. 9, 2020). Executive Order 2020-01D noted that
COVID-19 "is a respiratory disease that can result in serious illness or death * * * and can
easily spread from person to person" and that the virus causing COVID-19 "is spread
between individuals who are in close contact with each other (within about six feet) through
respiratory droplets produced when an infected person coughs or sneezes." Executive
Order 2020-01(D) indicated that as of March 9, 2020, the Ohio Department of Health
("Ohio Dept. of Health") confirmed that three patients in Ohio had tested positive for
Nos. 20AP-432 and 20AP-439 32
COVID-19, and there were no reported deaths.10 Later that same week, the Director of Ohio
Dept. of Health ("the Director") issued orders closing all K-12 schools in the state and
limiting or prohibiting mass gatherings. Ohio Dept. of Health, Director's Order In Re:
Order the Closure of All K-12 Schools in the State of Ohio (Mar. 14, 2020); Ohio Dept. of
Health, Director's Order In Re: Order to Limit and/or Prohibit Mass Gatherings in the
State of Ohio (Mar. 12, 2020).
{¶ 80} On March 16, 2020, the Director issued an order closing polling locations for
the primary election to be held the following day "to avoid the imminent threat with a high
probability of widespread exposure to COVID-19 with a significant risk of substantial harm
to a large number of the people in the general population, including the elderly and people
with weakened immune systems and chronic medical conditions." Ohio Dept. of Health,
Director's Order In Re: Closure of the Polling Locations in the State of Ohio on Tuesday
March 17, 2020 (Mar. 16, 2020). The Director further concluded that "[t]o conduct an
election at this time would force poll workers and voters to face an unacceptable risk of
contracting COVID-19." Id. The same day, the Secretary issued a directive suspending the
March 17, 2020 primary election until June 2, 2020. Secy. of State, Directive 2020-06
(Mar. 16, 2020). The General Assembly subsequently enacted legislation voiding the
Secretary's directive and providing that any elector who had not previously cast a ballot in
the March 17, 2020 primary election could request and cast an absentee ballot by April 28,
2020. Am.Sub.H.B. No. 197, Sec. 32(A), (C)(1)(a). This legislation became effective on
March 27, 2020. Pursuant to Am.Sub.H.B. No. 197, with limited, specific exceptions, the
primary election was conducted exclusively by absentee ballot.
{¶ 81} The statewide state of emergency declared by Executive Order 2020-01(D)
remains in effect, as COVID-19 remains a threat to public health. Although limited
reopening has been authorized under the Responsible RestartOhio Plan, Governor DeWine
stated "[w]e put this plan together based on all the information we have about how
dangerous COVID-19 still is right now, balanced with the fact that it's also dangerous to
10Subsequent data compiled by Ohio Dept. of Health indicates that as of March 9, 2020, there were 539
cases of COVID-19 in Ohio, 17 hospitalizations, and 1 death. Ohio Dept. of Health, State of Ohio COVID-19
Dashboard, https://coronavirus.ohio.gov/wps/portal/gov/covid-19/dashboards (accessed Oct. 1, 2020).
The Dashboard indicates "All data displayed is preliminary and subject to change as more information is
reported to ODH."
Nos. 20AP-432 and 20AP-439 33
have people not working. COVID-19 is still out there. It's still killing people. We're asking
Ohioans to be reasonable and rational." Gov. of Ohio, Press Release: Governor DeWine
Announces Details of Ohio's Responsible RestartOhio Plan (Apr. 27, 2020),
https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/covid19-
update-april-27 (accessed Oct. 1, 2020). Ohio Dept. of Health data indicates that when the
Secretary issued his directive suspending the March 17, 2020 primary election, there had
been 1,593 confirmed and probable cases of COVID-19 in Ohio, 86 hospitalizations, and 1
death. As of August 12, 2020, when the Secretary issued Directive 2020-16, there had been
111,142 cases of COVID-19 in Ohio, 11,473 hospitalizations, and 3,948 deaths. By the time
oral argument in this expedited appeal was held on September 25, 2020, there had been
152,610 total reported cases of COVID-19 in Ohio, 13,913 hospitalizations, and 4,777
deaths.11 12
{¶ 82} The parties have stipulated that election officials are expecting a major
increase in mail-in voting this year due to COVID-19. (Joint Stip. at 6.) The Secretary
stipulated that there were 1,206,416 total absentee ballots in the 2016 general election in
Ohio. (Joint Stip. at 1.) This year, Ohio has already mailed approximately 7.8 million
absentee ballot applications in conjunction with the 2020 general election. The Secretary
has stated the percentage of Ohioans who vote by mail could increase from 20 percent to
50 percent this year. (Joint Stip. at 7.) In a September 29, 2020 press release posted on
the Secretary's website, he announced more than 2 million Ohioans have requested an
11 COVID-19 case, hospitalization, and death data taken from the Ohio Dept. of Health COVID-19
Dashboard, available at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/dashboards (accessed Oct.
1, 2020). The Dashboard indicates "All data displayed is preliminary and subject to change as more
information is reported to ODH."
12Additionally, the Ohio Public Health Advisory System categorizes all Ohio counties as one of four levels,
depending on whether certain risk indicators have been met. The levels are as follows: Level 1, indicating
active exposure and spread of COVID-19; Level 2, indicating increased exposure and spread of COVID-19;
Level 3, indicating very high exposure and spread of COVID-19; and Level 4, indicating severe exposure
and spread of COVID-19. The guidance for Levels 2, 3, and 4 indicate "[d]ecrease in-person interactions"
with others and "[h]igh-risk individuals should take care to follow precautions." Level 3 guidance further
provides individuals are advised to "[l]imit activities as much as possible," and Level 4 guidance provides
individuals are advised to "[s]tay at home" and "[o]nly leave home for supplies and services." As of
September 23, 2020, two days before oral argument in this appeal, of Ohio's 88 counties, no counties were
categorized as Level 4, nine counties were categorized as Level 3, and 47 counties were categorized as Level
2. See Ohio Dept. of Health, Ohio Public Health Advisory System (accessed Oct. 1, 2020),
https://coronavirus.ohio.gov/static/OPHASM/County-Level-Indicator-Breakdown.pdf.
Nos. 20AP-432 and 20AP-439 34
absentee ballot, compared to the same time in 2016 when 957,260 Ohioans had requested
an absentee ballot. Ohio Secretary of State, Secretary LaRose Announces More Than 2
Million Ohioans Have Requested an Absentee Ballot, https://www.sos.state.oh.us/media-
center/press-releases/2020/2020-09-29/ (accessed Oct. 1, 2020).
{¶ 83} Appellee Goldfarb testified that "[w]ith the COVID outbreak, I don't feel
comfortable voting in person." (Sept. 11, 2020 Tr. at 8.) Goldfarb stated he had "underlying
medical conditions that make me at high risk for COVID." (Sept. 11, 2020 Tr. at 9.) Many
members of appellee ODP, as well as intervenor ORP, likely fall into a high-risk category as
well.13 Goldfarb expressed concern that "[i]f there's only one drop box," there would be
"long lines" of voters waiting to drop off their completed ballots. (Sept. 11, 2020 Tr. at 18.)
Goldfarb stated that "I don't want to wait in line to drop my ballot in the drop box. With my
high-risk health conditions, I do not want to wait in line with other people." (Sept. 11, 2020
Tr. at 19.) Goldfarb testified that "safety concerns" as well as "inconvenience" prevented
him from driving to the Franklin County Board of Elections to utilize their drop box.
(Sept. 11, 2020 Tr. at 19.)
ii. Delay of U.S. Mail Delivery
{¶ 84} During the period when the 2020 primary election was being conducted
exclusively by absentee ballot pursuant to Am.Sub.H.B. No. 197 (i.e., late-March 2020
through late-April 2020), the Secretary became aware that delays in delivery of mail by the
U.S. Postal Service created a risk that a voter who requested an absentee ballot might not
receive that ballot in time to receive it and return their voted ballot by election day and have
it counted. LaRose at ¶ 95 (Dorrian, J., concurring). Appellant expressed concern about
postal delays affecting voting in a letter to Ohio's congressional delegation. In the letter, he
indicated that the postal delays "mean it is very possible that many Ohioans who have
requested a ballot [for the primary election] may not receive it in time." Id. at ¶ 95. Those
concerns ultimately proved to be well-founded; after the primary election, it was reported
that more than 300 ballots that were postmarked on or before April 27, 2020 were delivered
13 The Ohio Dept. of Health states that "Over 60% of Ohioans are considered high-risk based on CDC
guidance. High-risk individuals are at an increased risk of severe illness and should take every precaution
to guard against contracting COVID-19." See Ohio COVID-19 Risk Level Guidelines for the Public dated
July 1, 2020 (accessed October 1, 2020).
Nos. 20AP-432 and 20AP-439 35
to the Butler County Board of Elections on May 12, 2020. Although the ballots would have
been eligible to be counted based on the postmark dates, they could not be counted because
they were received after the legal deadline for counting votes. Id.
{¶ 85} In a July 30, 2020 letter, the general counsel for the United States Postal
Service advised the Secretary that there is a significant risk that delays in the delivery of
mail may result in otherwise timely ballots not being counted. Specifically, the general
counsel informed the Secretary that "certain state-law requirements and deadlines appear
to be incompatible with the Postal Service's delivery standards" and "[a]s a result, to the
extent that the mail is used to transmit ballots to and from voters, there is a significant risk
that, at least in certain circumstances, ballots may be requested in a manner that is
consistent with your election rules and returned promptly, and yet not returned in time to
be counted." (Aug. 25, 2020 Mot. for Temporary Restraining Order, Ex. C-1 at 2.)
{¶ 86} -Goldfarb testified he wished to use a drop box closest to his residence to vote
because "I've been keeping up on what's going on with the post office, and I don't trust that
if I mail my ballot, it will get there in time. I see that with all the delays that are going on
with the post office, I want to make sure my vote is counted, so I plan to drop it off at a drop
box." (Sept. 11, 2020 Tr. at 8-9.) Goldfarb further testified he was "concerned" about
whether his completed ballot would be returned to the board of elections on time because
"my understanding is I won't receive my ballot until at least October 6th, when they start
mailing them out. So there's not a lot of time between October 6th and November 3rd, the
date of the election." (Sept. 11, 2020 Tr. at 11.) Goldfarb stated: "I just feel much more
comfortable, instead of mailing my ballot with the mail delays, making sure that my vote is
delivered by dropping it in a drop box." (Sept. 11, 2020 Tr. at 11.)
b. Additional Factors - Long Lines, Traffic Backups, and Burdensome Transit
Times
{¶ 87} In addition to discussing the unusual background factors of COVID-19 and
delay of U.S. mail delivery, the trial court also discussed evidence presented regarding the
experience of two boards of elections which experienced long lines and traffic backups as
voters were attempting to access the drop box. The trial court noted that in Hamilton
County "the 2020 primary election resulted in serious traffic safety problems due to
increased number of voters personally delivering their absentee ballot [and] on the last day
Nos. 20AP-432 and 20AP-439 36
of primary voting lines of vehicles waiting to get to the drop box extended into a nearby
four-lane state highway, and were estimated to be as long as a mile in both directions."
(Sept. 15, 2020 Opinion at 8.) (See also affidavit of Caleb A. Faux, Member of the Hamilton
County Board of Elections, ¶ 13-14.) The court further noted that in Montgomery County
an exterior drop box located on one of Dayton's main east-west thoroughfares led to traffic
congestion. Ultimately, the drop box was moved to the loading dock of a county building,
but "[s]till, only a small number of vehicles can wait in line * * * before traffic backs up on
to Third Street." (Sept. 15, 2020 Opinion at 9.)14
{¶ 88} The trial court also referenced data in the record regarding transit times.
Specifically, a spreadsheet attached to the affidavit of Bradley W. Thomas showed the
shortest, one-way travel times using public transportation from various public library
branches in Hamilton and Franklin County to the board of elections offices in each of those
counties. The spreadsheet also showed the shortest, one-way travel times using public
transportation from each of the county library branches to a proposed drop box located
downtown in both Franklin and Hamilton counties. Based on this information, the trial
court concluded the "potential time savings for some voters would be substantial."
(Sept. 15, 2020 Opinion at 8.) The spreadsheets reveal that, depending upon the location
from which a voter begins transit, in some instances the time savings from adding one
additional drop box could be 33-58 minutes. (See affidavit of Bradley W. Thomas, former
trustee of the Southwest Ohio Regional Transit Authority, and attached spreadsheets, Exs.
F, F-1 and F-2.)
c. Irreparable Injury has been Established
{¶ 89} " 'Irreparable harm' is an injury 'for the redress of which, after its occurrence,
there could be no plain, adequate and complete remedy at law, and for which restitution in
[money] would be impossible, difficult or incomplete.' " Aids Taskforce of Greater
Cleveland v. Ohio Dept. of Health, 8th Dist. No. 105971, 2018-Ohio-2727, ¶ 52, quoting
Cleveland v. Cleveland Elec. Illum. Co., 115 Ohio App. 3d 1, 12 (8th Dist.1996); Obama for
14 Although this quotation appears in the trial court's opinion, the underlying exhibit, which appears in the
list of joint stipulated exhibits, was not transmitted with the record in this appeal.
Nos. 20AP-432 and 20AP-439 37
Am. v. Husted, 697 F.3d 423, 436 (6th Cir.2012). "Irreparable harm depends upon the
context in each case." Aids Taskforce of Greater Cleveland at ¶ 52.
{¶ 90} Within the context of elections, where a plaintiff seeking a preliminary
injunction has demonstrated, by clear and convincing evidence, a threat or impairment to
their constitutional right to vote, irreparable harm is presumed. Magda v. Ohio Elections
Comm., 10th Dist. No. 14AP-929, 2016-Ohio-5043, ¶ 38; Colvin, 2008-Ohio-5041, at ¶ 62;
Robert W. Clark, M.D., Inc. v. Mt. Carmel Health, 124 Ohio App. 3d 308, 315 (10th
Dist.1997). Conversely, assertions of a threat or impairment to the constitutional right to
vote that are vague and speculative do not constitute clear and convincing evidence of
irreparable harm to support a preliminary injunction. Robert W. Clark, M.D., Inc.; League
of Women Voters v. LaRose, S.D.Ohio No. 2:20-cv-1638 (Apr. 3, 2020).
{¶ 91} The Secretary and ORP intervenors argue that plaintiffs will not be
irreparably injured as "Ohio is generous when it comes to absentee voting," and "Ohio
voters quite simply have more than adequate opportunities to vote without drop boxes
located off board premises." (Secretary's Merit Brief at 26; Intervenor ORP's Merit Brief at
30.)
{¶ 92} We have recently stated that the burden on the right to vote in this type of
case should be considered " 'within the landscape of all opportunities that Ohio provides to
vote.' " LaRose at ¶ 59, quoting Mays v. LaRose, 951 F.3d 775, 785 (6th Cir.2020). See
Purcell v. Gonzalez, 549 U.S. 1, 4 (2006), quoting Dunn v. Blumstein, 405 U.S. 330, 336
(1972) (stating the public has a "strong interest in exercising the 'fundamental political
right' to vote"). See Obama for Am. at 436; League of Women Voters of N. Carolina v.
N. Carolina, 769 F.3d 224, 248 (4th Cir.2014). However, courts cannot accurately evaluate
all the opportunities Ohio provides to facilitate voting, including absentee voting, without
considering the unique circumstances within which those opportunities exist. Courts must
consider whether such circumstances increase the magnitude of the injury or compromise
the opportunities to vote. The unique circumstances surrounding the 2020 general election
that must be considered in evaluating whether appellees will be irreparably harmed are the
continuing state of emergency in Ohio due to COVID-19 and the uncertainty of normal
postal service operations.
Nos. 20AP-432 and 20AP-439 38
{¶ 93} Clear and convincing evidence in this case reveals that Goldfarb's risk of
exposure to or infection by COVID-19 and risk of not having his ballot timely returned by
U.S. mail delivery in order to be counted is more than speculative. We need not wait to see
if COVID-19 or delay of U.S. mail delivery will compromise opportunities to vote. These
circumstances already did compromise opportunities to vote in the 2020 primary election,
and the circumstances have not improved since then. Furthermore, Goldfarb may
encounter long lines or traffic jams which would impede his access to a single ballot drop
box located at the office of a board of elections. Goldberg's injury is real, it is significant.
"Irreparable harm is an injury for the redress of which, after its occurrence, there could be
no plain, adequate and complete remedy at law, and for which restitution in [money] would
be impossible." (Internal quotations and citations omitted.) Aids Taskforce of Greater
Cleveland at ¶ 52. Indeed, in his letter to the deputy postmaster general regarding the 300
ballots not counted in Butler County due to mail delay, the Secretary himself wrote "[o]ur
democratic republic is built upon the power of the vote and the trust citizens have that their
vote will be counted. For these Ohioans, that trust was violated." LaRose at ¶ 95 (Dorrian,
J., concurring). I would find the trial court did not abuse its discretion in determining
appellees established they would suffer irreparable injury if the injunction is not granted.
d. Public Interest has been Established
{¶ 94} The trial court also found that the public interest will be served with the
granting of the injunction. The Secretary and intervenor ORP argue the public interest is
not served by making changes to election rules close to an election. This argument is not
persuasive as applied to this case for two reasons, first, absentee voting has yet to start and
when it does start next week on October 6, 2020, it will continue until November 2, 2020
if delivered and postmarked by U.S. mail (and received by November 13, 2020) and until
November 3, 2020 if delivered to the boards of election.15 Second, if appellees pursue the
placement of additional drop boxes at additional locations, it would add opportunities for
voting, not take them away.
15 https://www.ohiosos.gov/globalassets/publications/election/2020electioncalendar_12x18.pdf
Nos. 20AP-432 and 20AP-439 39
{¶ 95} Furthermore, the public health emergency existing in 2020 makes the unique
circumstances surrounding the 2020 general election substantially different than an
ordinary election. See Republican Natl. Commt. v. Democratic Natl. Commt., __ U.S. __,
140 S. Ct. 1205, 1210 (2020) (Ginsburg, J., dissenting) ("The Court's suggestion that the
current situation is not 'substantially different' from 'an ordinary election' boggles the
mind."). The evidence in this case, including the Secretary's own stipulations, indicates that
because of those circumstances there will likely be a substantial increase in the number of
voters who will seek to vote by absentee ballot. As noted above, the unusual public health
conditions in which this election is being conducted are compounded by the disruption in
normal postal delivery service. If the procedures for application, delivery, and return of
absentee ballots are not adequate to meet the increased demand, voters may be faced with
the dilemma of either endangering their own or others' health due to COVID-19 by voting
in-person or risking not having their vote counted either because the ballot was not
delivered in a timely manner via U.S. mail or access to the ballot drop box was impeded by
long lines, traffic jams, or travel times. I would find the trial court did not abuse its
discretion in determining appellees established that the public interest will be served by the
granting of the injunction.
3. Third Element: No Harm to Third Parties
{¶ 96} The trial court found the evidence does not reflect that injunctive relief would
result in harm to third parties. The Secretary has argued that injunctive relief would harm
Ohio voters and the state by changing election procedures so close to the election. However,
as noted above, at the time of this decision, absentee voting has not yet begun in Ohio.
Furthermore, when it does begin on October 6, 2020, it will continue until November 2,
2020 if delivered and postmarked by U.S. mail (and received by November 13, 2020) and
until November 3, 2020 if delivered to the boards of election. The Secretary has not pointed
to evidence in the record to support the assertion that allowing a change in the number and
location of drop boxes at this point would result in harm. I note that in multiple affidavits
stipulated to by the parties, members of various county boards of elections stated that, in
essence, it would be difficult to resolve issues related to the installation of multiple drop
boxes prior to the election. However, the issuance of injunctive relief in this case would not
require county boards of elections to install multiple drop boxes, but rather would only
Nos. 20AP-432 and 20AP-439 40
permit boards of elections to install additional drop boxes if they determine appropriate
exercising their authority pursuant to R.C. 3501.11.16
{¶ 97} Furthermore, the evidence also does not support finding that injunctive relief
would harm ORP. The trial court found that "[v]oters of both major parties (and
independent voters) all will benefit from easier and safer access to absentee ballot drop box
locations or other measures that individual boards may adopt allowing voters to securely
deliver their ballots without using the U.S. Postal Service." (Sept. 16, 2020 Entry Granting
Preliminary Injunction at 2.) The trial court further stated that ORP would not be harmed
by the issuance of injunctive relief because "each board of elections operates only through
two members of ORP and two members from ODP, precluding as a practical matter action
that gives partisan advantage to either major party." (Sept. 16, 2020 Entry Granting
Preliminary Injunction at 2.)
{¶ 98} Rob Secaur, executive director of ORP, stated in his affidavit that ORP would
be harmed by an injunction enjoining application of Directive 2020-16 because ORP would
have to "fund and support activities designed to provide Ohio voters with information about
drop boxes that are not located on county board of elections." (Rob Secaur Affidavit at 3.)
However, the Secretary stipulated that "historically, there is no significant difference
between Republican and Democratic voters when it comes to voting by mail in Ohio."
(Joint Stip. at 8.) Furthermore, the parties stipulated that "[b]oth major parties in Ohio
heavily organize around encouraging their supporters to vote by mail." (Joint Stip. at 9.)
As any increase in educational efforts would be borne by both major parties, the record does
not reflect that injunctive relief would result in increased effort solely by ORP. I would find
the trial court did not abuse its discretion in determining appellees established that the
public interest would be served by the granting of an injunction.
Conclusion
{¶ 99} Ohio voters have a "strong interest in exercising the 'fundamental political
right' to vote." Purcell at 4, quoting Dunn at 336. " 'That interest is best served by favoring
enfranchisement and ensuring that qualified voters' exercise of their right to vote is
successful.' " Obama for Am. at 437, quoting Hunter v. Hamilton Cty. Bd. of Elections, 635
16 Supra at fn 9.
Nos. 20AP-432 and 20AP-439 41
F.3d 219, 244 (6th Cir.2011). For the reasons outlined above, I concur in part and
respectfully dissent in part. I would affirm both the September 15, 2020 grant of appellees'
motion for declaratory judgment as well as the September 16, 2020 grant of appellees'
motion for preliminary injunction.