DocketNumber： No. 2008-2206
Citation Numbers： 120 Ohio St. 3d 506, 900 N.E.2d 982
Judges： Connor, Cupp, Donnell, Lanzinger, Moyer, Pfeifer, Stratton
Filed Date： 12/5/2008
Status： Precedential
Modified Date： 10/18/2024
{¶ 1} This is an original action for a writ of mandamus to (1) compel respondent Secretary of State Jennifer L. Brunner to correct her allegedly erroneous interpretation of R.C. 3505.183(B)(1)(a) and to advise respondent Franklin County Board of Elections that any provisional ballot must include both the voter’s name and signature in the statutorily required affirmation and that if it does not, it is not eligible to be counted, and (2) compel the secretary of state and the board of elections to reject any provisional ballots as not eligible to be counted if they do not include the name and signature of the voter on the affirmation required by R.C. 3505.183(B)(1)(a). We hold that the secretary of state acts improperly when she instructs all county boards of elections to apply election law according to one standard before an election and instructs one county to apply a conflicting standard after the election and after certification of ballots in other counties is complete. We therefore grant the requested writ of mandamus as it relates to the secretary of state’s conflicting directives. We also hold that while the secretary of state did not issue conflicting directives on the issue of whether provisional ballots that contain a name but no signature and those that contain a name and signature in an incorrect place should be counted, her directive that such votes should be counted was unreasonable; we therefore grant the writ of mandamus on those issues as well.
{¶2} Under R.C. 3505.181, certain individuals shall be permitted to cast a provisional ballot at an election, including an eligible voter whose name does not appear on the official list of eligible voters for the polling place, an individual who is unable to provide the specified forms of identification, and an individual who previously requested an absentee ballot for that election. See R.C. 3505.181(A).
{¶ 3} If an individual desires to cast a provisional ballot, the board of elections provides a provisional ballot form that it prepared and a ballot. The board’s form, which is designated an “application,” specifically requires the voter to print the voter’s name and to sign an affirmation. The provisional ballot form is printed on an envelope, which the voter seals after inserting the ballot.
{¶ 4} Upon receipt of the provisional ballots, the board of elections uses the information provided by the voters to determine whether they are eligible to vote and to have their votes counted. R.C. 3505.183(B)(1) and 3505.181(B)(4). Under R.C. 3505.183(D), “[n]o provisional ballots shall be counted in a particular county until the board determines the eligibility to be counted of all provisional ballots cast in that county * * * for that election.” The board of elections thus cannot open and count any provisional ballot until the eligibility of each ballot has been determined. Once a provisional ballot is separated from its envelope, the ballots are then commingled to protect voter secrecy, and it becomes impossible to track the votes of any provisional voter.
Provisional-Ballot Affirmations: Secretary of State’s Initial Instructions
{¶ 5} This case involves provisional-ballot forms on which the voter failed to provide both the voter’s name and signature. On March 31, 2008, Brian Shinn, the assistant general counsel for the secretary of state, responded by e-mail to questions from elections board officials concerning provisional ballots. Shinn advised the board of elections that a provisional ballot could not be counted if the voter signed the affirmation statement but did not print his or her name on the form and that both the voter’s name and signature were required in order for the ballot to be counted:
{¶ 6} “Voter did not print his or her name on column one but signed the provisional ballot affirmation statement. The ballot cannot be counted unless the voter’s name appears somewhere on the provisional ballot affirmation envelope written by the voter or a poll worker. Name AND signature are required by R.C. 3505.183(B)(1)(a) as stated above.”
{¶ 7} On October 24, 2008, in Northeast Ohio Coalition for the Homeless v. Brunner, S.D.Ohio No. C2-06-896, 2008 WL 4449514, a federal district court issued a consent order adopting Secretary of State Directive No. 2008-101, which
{¶ 8} “If ANY of the following apply, board staff responsible for processing provisional ballots shall recommend to the board that a provisional ballot not be counted, and a board of elections shall neither open nor count the provisional ballot:
{¶ 9} “ * * *
{¶ 10} “The individual did not provide the following:
{¶ 11} “(1) His or her name and signature as the person who cast the provisional ballot;
{¶ 12} “(2) A statement that he or she, as the person who cast the provisional ballot, is a registered voter in the jurisdiction in which he or she cast the provisional ballot; and
{¶ 13} “(3) A statement that he or she, as the person who cast the provisional ballot, is eligible to vote in the particular election in which he or she cast the provisional ballot;
{¶ 14} “or
{¶ 15} “(4) His or her name recorded in a written affirmation statement entered either by the individual or at the individual’s direction recorded by an election official.” (Boldface sic.) Secretary of State Directive No. 2008-101 at 8.
{¶ 16} On October 28, 2008, pursuant to a court order issued in Northeast Ohio Coalition for the Homeless, 2008 WL 4449514, the secretary of state issued Directive No. 2008-103, which instructed boards of elections that “provisional ballots may not be rejected for reasons that are attributable to poll worker error.”
{¶ 17} Based on the secretary of state’s instructions in Secretary of State Directive 2008-101 and her assistant general counsel’s March 2008 e-mail instructions, the office of the Franklin County Prosecuting Attorney advised the board of elections that a provisional-ballot voter must provide both the voter’s name and signature to be eligible to have the vote counted. The board was prepared to follow these instructions.
Unofficial Returns and Modified Instructions
{¶ 18} The board of elections released its initial unofficial returns for the November 4, 2008 election, and those returns showed three relatively close races, including those for the 15th Congressional District between Steve Stivers and Mary Jo Kilroy and for two Ohio House of Representatives districts. Over 27,000 provisional ballots were cast in Franklin County in the November 4 general election, and the outcome of these three races may be determined by these ballots.
{¶ 20} In response to DeRose’s e-mail, Shinn modified his previous instructions and said that for the most part, these provisional ballots lacking both voters’ names or signatures should be counted.
{¶ 21} By a November 12, 2008 e-mail, Shinn notified the board of elections that the secretary of state agreed with his earlier “advice that a provisional ballot that contains the signature of a voter but not the written name MUST BE COUNTED if the person is a registered elector, the person voted in the correct precinct, and the person was not required to provide additional information to the board [and] failed to do so.”
{¶ 22} On November 14, the board of elections met to consider whether the different groups of disputed provisional ballots (1) with names but not signatures on the affirmation, (2) with signatures but not names on the affirmation, and (3) with names and signatures, but not in the correct locations on the affirmation should be considered eligible to be opened and counted. The board of elections deadlocked two-to-two on each of the motions that these categories of provisional ballots be deemed eligible to be counted. The secretary of state is authorized to break these tie votes pursuant to R.C. 3501.11(X), and on November 20, the secretary voted to grant the motions and to find all of the disputed provisional ballots to be valid. These disputed categories of provisional ballots include approximately 1,000 provisional ballots.
{¶ 23} In other counties, including Union and Madison Counties, the boards of elections followed the preelection instructions of the secretary of state in Directive 2008-101 and disqualified provisional ballots if the voter failed to provide both a printed name and a signature on the affirmation. Evidently, the secretary of state did not provide her changed directive on the eligibility of provisional ballots to counties other than Franklin County.
{¶ 24} Relator Dana Skaggs is a Franklin County elector who voted in the November 4, 2008 election, and relator Kyle Fannin is a Franklin County elector who voted by provisional ballot in the November 4 election.
{¶ 25} On November 13, relators filed this action for a writ of mandamus to compel the secretary of state to instruct the boards of elections that any provisional ballot must include both the voter’s name and signature in the statutorily required affirmation in order to be eligible to be counted and to compel the secretary of state and the Franklin County Board of Elections to reject any provisional ballot that does not include both the voter’s name and signature.
{¶ 26} The secretary of state filed a notice removing this case to the United States District Court for the Southern District of Ohio pursuant to Sections 1441(b) and 1443(2), Title 28, U.S.Code. The federal district court denied relators’ and the board’s motions to remand the case to this court. Ohio ex rel. Skaggs v. Brunner (S.D.Ohio 2008), 588 F.Supp.2d 819. The court subsequently granted the secretary of state’s motion for summary judgment and dismissed the case.
{¶ 27} On appeal, the United States Court of Appeals for the Sixth Circuit reversed the judgment of the federal district court and held that the district court erred in denying relators’ and the board’s motions to remand the case to this court. Ohio ex rel. Skaggs v. Brunner (C.A.6, 2008), 549 F.3d 468. On that same date, pursuant to our ancillary jurisdiction to grant a stay in original actions, we granted relators’ motion to stay the counting of the provisional ballots pending our resolution of this case.
{¶ 28} The parties have now submitted their briefs and evidence, and the secretary of state and the intervening respondent, the Ohio Democratic Party, also filed answers. This cause is now before the court for our expedited consideration and determination.
Mandamus
{¶ 29} “To be entitled to the requested writ, relators must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of
General Duties of the Secretary of State
{¶ 30} The secretary of state is the state’s chief election officer and has duties to “[i]ssue instructions by directives and advisories * * * to members of the boards as to the proper methods of conducting elections,” “[pjrepare rules and instructions for the conduct of elections,” “[d]etermine and prescribe the forms of ballots,” and “[cjompel the observance by election officers in the several counties of the requirements of the election laws.” R.C. 3501.05(B), (C), (G), and (M). The board of elections must perform “duties as prescribed by law or the rules, directives, or advisories of the secretary of state.” R.C. 3501.11(P).
{¶ 31} Relators claim that the secretary of state has a duty enforceable in mandamus under these and other statutory provisions to direct the board of elections not to count the disputed provisional ballots.
Request for Relief
{¶ 32} Relators assert that they are entitled to the requested extraordinary relief because the secretary of state, through her postelection instructions, misdirected the Franklin County Board of Elections that it should count the provisional ballots that do not include both the voter’s name and signature in the statutorily required affirmation.
{¶ 33} The Help America Vote Act, Section 15301 et seq., Title 42, U.S.Code, authorizes the states to determine “whether a provisional ballot will be counted as a valid ballot.” Sandusky Cty. Democratic Party v. Blackwell (C.A.6, 2004), 387 F.3d 565, 577; Section 15482(a)(4), Title 42, U.S.Code. The General Assembly has provided rules concerning this determination in R.C. 3505.181, 3505.182, and 3505.183.
{¶ 34} This case involves the validity of three categories of provisional ballots cast at the November 4 general election in Franklin County: (1) ballots with affirmations that contain printed names but no signatures, (2) ballots with affirmations that contain signatures but no printed names, and (3) ballots that contain both printed names and signatures, but one or both are not located in the correct place on the affirmation. The disputed ballots comprise about 1,000 of
{¶ 35} Relators, two Franklin County voters, request that all three categories of disputed provisional ballots be deemed invalid and not be counted. Respondent Secretary of State Jennifer L. Brunner, the intervening respondent, Ohio Democratic Party, and amici curiae, the ACLU Voting Rights Project and ACLU of Ohio, request that the court hold that all three categories be ruled valid and be counted. Respondent Franklin County Board of Elections defers to the secretary of state’s position because of her tie-breaking decisions on the disputed provisional ballots. We address the three categories of provisional ballots in order.
Ballots With Printed Names But With No Signatures
{¶ 36} The first category of provisional ballots at issue consists of ballots on which the individual printed his or her name in the affirmation but did not sign the affirmation. According to DeRose, approximately 30 provisional ballots fall in this category. The most relevant statute on this issue is R.C. 3505.183(B)(1), which states:
{¶ 37} “To determine whether a provisional ballot is valid and entitled to be counted, the board shall examine its records and determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election. The board shall examine the information contained in the written affirmation executed by the individual who cast the provisional ballot under division (B)(2) of section 3505.181 of the Revised Code. If the individual declines to execute such an affirmation, the individual’s name, written by either the individual or the election official at the direction of the individual, shall be included in a written affirmation in order for the provisional ballot to be eligible to be counted; otherwise, the following information shall be included in the written affirmation in order for the provisional ballot to be eligible to be counted: {¶ 38} “(a) The individual’s name and signature;
{¶ 39} “(b) A statement that the individual is a registered voter in the jurisdiction in which the provisional ballot is being voted;
{¶ 40} “(c) A statement that the individual is eligible to vote in the election in which the provisional ballot is being voted.” (Emphasis added.)
{¶ 41} Under this statute, the affirmation must include the individual’s name and signature to be eligible to be counted, unless the individual declines to execute the affirmation. In the latter case, the individual’s name must appear in “a” written affirmation to be eligible to be counted.
{¶ 42} We must first determine whether the secretary of state’s directives on this matter before and after the election are consistent with each other. As set
{¶ 43} After the election, in her decision breaking the tie between the members of the Franklin County Board of Elections, the secretary again stated that provisional ballots that contain only a printed name in the affirmation section may be counted. In that decision, the secretary expanded her previous directive by introducing the concept of poll-worker error. She noted that an affirmation that includes only a printed name and not a signature will be valid if the individual has declined to execute the affirmation under R.C. 3505.183(B)(1) and that, in the event that an individual makes such a declination, the poll worker must record that the individual has done so pursuant to R.C. 3505.181(B)(6): “[T]he failure of a poll worker to do so constitutes poll worker error. Poll worker error cannot serve as a basis for rejecting a provisional ballot under Directive 2008-103 and the October 27, 2008 federal court order. Thus, provisional ballots containing the printed name of a voter in the affirmation form but not signature must be counted.” In short, the secretary determined that all such ballots must be counted because it is possible that the individual declined to execute the affirmation but the poll worker failed to record that declination, and the voter should not be penalized for poll-worker error.
{¶ 44} Although the secretary’s latter opinion, issued on November 20, 2008, is clearly broader than Directive 2008-101, issued on October 24, 2008, we find that they are at least arguably consistent with each other. Therefore, we must next determine whether the secretary of state’s directives in this regard were unreasonable under the law. See State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299, 2007-Ohio-5228, 874 N.E.2d 1205, ¶ 30.
{¶ 45} The relators argue that the statute requires the voter to place both a name and a signature on the ballot envelope for the affirmation to be valid and that it cannot be presumed that an individual declined to sign the affirmation (and is therefore exempt from it) merely because no signature exists. Contrarily, the secretary, and Justice Lanzinger in dissent, argue that there is no way to tell whether an individual declined to sign the affirmation or merely failed to do so, and that in the face of such uncertainty, we must err in favor of counting all such ballots to avoid disenfranchising voters.
{¶ 46} At first blush, that position seems reasonable, but it does not include consideration of other sections of the Revised Code that bear directly on the question before us. Although we agree that the relevant statutes are not the model of clarity, the secretary’s interpretation requires us to presume that
{¶ 47} There are several acts that must occur before the vote of an individual who wishes to decline to sign the affirmation will be counted. First, the individual (or an election official acting at the individual’s direction) must include his or her name “in a written affirmation.” R.C. 3505.183(B)(1). Although it is unclear what form this affirmation must take, the provisional-ballot affirmation is a written affirmation, so it qualifies. Next, pursuant to R.C. 3505.182, “[i]f the individual declines to execute the affirmation, an appropriate local election official shall comply with” R.C. 3505.181(B)(6), which states that “the appropriate local election official shall record the individual’s name and include that information with the transmission of the ballot under division (B)(3) of this section.” In fact, the secretary, in her decision breaking the tie vote in the Franklin County Board of Elections on this issue, said: “If a voter declines to execute an affirmation, the election official must record the voter’s name and note on the provisional ballot envelope that the voter declined to execute an affirmation.”
{¶ 48} Finally, “[a]n election official at the polling place shall transmit * * * the individual’s name if the individual declines to execute such an affirmation to an appropriate local election official for verification,” and the official receiving the individual’s name must then verify whether the individual is eligible to vote before his or her vote will be counted. R.C. 3505.181(B)(3) and (4).
{¶ 49} The statutory scheme designates the process to be followed when a voter wishes to decline to sign the affirmation for some reason. Only one of these statutorily mandated actions, the individual’s simply putting his or her name in the affirmation without a signature, occurred here. The only indication here that the provisional voters at issue actually declined to complete the affirmation is the fact that their affirmations contained no signature. There is no evidence that the relevant elections officials noted anywhere on the ballot envelopes that the provisional voters at issue here declined to execute the affirmation, that the official transmitted that information to a separate election official, or that the receiving official verified the information, all of which must occur if the ballot of a voter who declines to sign the affirmation is to be counted.
{¶ 50} We acknowledge that we are bound to “liberally construe election laws in favor of the right to vote.” State ex rel. Colvin, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 62. However, this rule does not allow us to simply ignore facts and make unreasonable assumptions if doing so favors the right to vote. We are mindful of the interest of those voters who cast their votes pursuant to
{¶ 51} “[I]n the absence of evidence to the contrary, public officers, administrative officers and public authorities, within the limits of the jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully.” State ex rel. Speeth v. Carney (1955), 163 Ohio St. 159, 186, 56 O.O. 194, 126 N.E.2d 449.
{¶ 52} Relying solely on the presence of incomplete affirmations, the secretary presumes that poll workers failed to take the proper actions to record the individuals’ declination and transmit their names to local election officials, and that the officials failed to verify the eligibility of any names that were transmitted, even though no corroborating evidence of these alleged failures was submitted. In fact, even Mary Jo Kilroy’s campaign team does not argue that these ballots are failed declinations: According to DeRose, “[a]s to these 30 provisional ballots [that contain a printed name but no signature], because you have a name and the precinct where the provisional ballot was cast, the Board of Elections should immediately notify these voters of the defect and have them come into the Board to sign the affirmation.” (Emphasis added.) The secretary then concludes, solely on the basis of these presumptions, that these otherwise defective affirmations were actually valid declinations, and the votes must be counted as if they were valid.
{¶ 53} If we were presented with evidence that the election officials had performed any of their statutorily required actions or evidence that they had affirmatively failed to do so because they were improperly trained or improperly instructed regarding their duties in these circumstances, we may have been persuaded that declinations could be presumed.
{¶ 54} Without such evidence, the secretary and the dissent ask too much. They ask that we apply no presumption of regularity, that we assume systematic poll-worker error so as to change an invalid affirmation to a valid one, and that we assume no other reason than poll-worker error for a voter failing to affix a signature to the ballot envelope. This interpretation allows the exception in R.C. 3505.183 for individuals who decline to execute an affirmation to swallow the rule. By presuming that any incomplete affirmation should be treated as an unnoticed declination, the secretary eliminates the statutory procedures for declinations altogether and encourages voter dilution. Such a presumption is unreasonable.
{¶ 55} We therefore grant the writ of mandamus in regard to the first category of provisional ballots.
{¶ 56} For the second category of provisional ballots, those with signatures in the affirmation but no printed names, our analysis of the pertinent statutes again reveals that they present a quagmire of intricate and imprecisely stated requirements, including internal inconsistencies and multiple affirmations and declinations, some of which even the parties appear to confuse in their respective merit briefs. In view of these generally murky statutes, we hold that the secretary of state’s preelection interpretation of these statutory provisions as reflected in both her assistant general counsel’s March 31 e-mail response to the Franklin County Board of Elections as well as Secretary of State Directive 2008-101 was reasonable insofar as it relates to ballots with affirmations that contain signatures but no printed names. Colvin, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 57 (“The secretary of state’s construction is reasonably supported by the pertinent provisions, and in accordance with well-settled precedent, the court must defer to that reasonable interpretation”).
{¶ 57} Having initially adopted that reasonable construction of an imprecise statutory scheme, which was evidently followed by other counties, including Madison and Union Counties, the secretary of state acted unreasonably in modifying her earlier instructions for those two categories of ballots by apparently advising only one county in the 15th Congressional District Franklin County of that modification. See State ex rel. Myles v. Brunner, 120 Ohio St.3d 328, 2008-Ohio-5097, 899 N.E.2d 120, ¶ 26 (court need not defer to secretary of state’s unreasonable interpretation of election law). This selective modification of instructions, particularly at the request of one of the candidates for office, concerning provisional ballots was fundamentally unfair.
{¶ 58} As the United States Court of Appeals for the Sixth Circuit recently held, “[t]he right to vote includes the right to have one’s vote counted on equal terms with others.” League of Women Voters of Ohio v. Brunner (C.A.6, 2008), 548 F.3d 463, 476; Bush v. Gore (2000), 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (“the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter”). By changing her instructions for one county but not for others after the election at the request of a candidate, the secretary of state failed to ensure that the same rules would be applied to each provisional voter of every county in the state. The other counties have now certified their election results based on the secretary’s original instructions, and those results cannot be modified.
{¶ 59} Therefore, based on our interpretation of -the pertinent state law, we conclude that the secretary of state abused her discretion when she instructed the Franklin County Board of Elections during the counting of the votes that
Ballots with Names and Signatures in an Incorrect Place
{¶ 60} The final category of provisional ballots at issue, those that contain names and signatures in incorrect places on the affirmation, does not appear to have been addressed by the secretary’s preelection directive. However, the assistant general counsel’s March 2008 instructions were actually consistent with his and the secretary’s postelection instructions that, as long as the voter’s name and signature appear somewhere on the envelope, the ballot should be counted.
. {¶ 61} Nevertheless, there is uncontroverted evidence here that most of the ballots in this category had signatures and names located on a completely different affirmation — the identification affirmation set forth in R.C. 3505.181(B)(6). These ballots violate R.C. 3505.182, which clearly states that “[e]ach individual who casts a provisional ballot under section 3505.181 of the Revised Code shall execute a written affirmation,” the form of which must be substantially similar to the one set forth in R.C. 3505.182. This affirmation requires the individual to swear or affirm that he or she (1) is “a registered voter in the jurisdiction in which [he or she is] voting,” (2) is “eligible to vote in the election,” (3) understands in what circumstances his or her vote will not be counted, (4) understands that providing false information is unlawful and may result in criminal prosecution, and (5) declares that all of the sworn or affirmed statements are true and correct to the best of the individual’s belief and knowledge. Id.
{¶ 62} By failing to contain either the voters’ names or signatures in such an affirmation, these individuals’ ballots plainly failed to comply with R.C. 3505.182. Therefore, the secretary’s instructions to count those votes was unreasonable, and we accordingly grant the writ of mandamus in regard to this category of ballots.
Conclusion
{¶ 63} Because relators have established that the secretary of state misdirected the Franklin County Board of Elections to count the disputed provisional ballots, we grant the writ of mandamus to compel the secretary of state to forthwith direct respondent Franklin County Board of Elections that in order for a provisional ballot to be eligible to be counted it must contain both the voter’s name and signature in a manner prescribed by R.C. 3505.182 and that if it does not, it is not eligible to be counted, and to further compel the secretary of state and the board of elections to forthwith reject any provisional ballots as not
Writ granted.
. In their complaint, relators also requested a writ of mandamus compelling respondents to reject any provisional ballot that did not include the required identification verification information required by R.C. 3505.18, but in their merit brief filed here, relators specify that they do not challenge any provisional ballot based on the identification affirmation.