State ex rel. Maras v. LaRose

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Maras v. LaRose, Slip Opinion No. 2022-Ohio-3852.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2022-OHIO-3852THE STATE EX REL. MARAS v. LAROSE, SECY. OF STATE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Maras v. LaRose,
Slip Opinion No. 2022-Ohio-3852.]
Mandamus—Elections—R.C. 3505.21—Equal Protection Clauses of the United
States and Ohio Constitutions—Rational-basis review—R.C. 3505.21,
which governs the process of appointing election observers, does not treat
candidates who are not affiliated with a political party differently from
party-affiliated candidates, and the statute serves a legitimate government
interest by obviating the potential for boards of elections to become
overwhelmed with too many election observers—R.C. 3505.21 does not
provide election observers with permission to inspect the software, source
codes, or hardware installed on automatic vote-tabulating machines, nor
does it require poll workers to tabulate votes by hand—Writ denied.
(No. 2022-1270—Submitted October 26, 2022—Decided October 28, 2022.)
IN MANDAMUS.
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SUPREME COURT OF OHIO
Per Curiam.
I. INTRODUCTION
{¶ 1} Relator, Terpsehore P. Maras, is an independent candidate for Ohio
Secretary of State on the November 8, 2022 general-election ballot. In this
expedited election case, Maras contends that R.C. 3505.21, which governs the
appointment of election observers, violates the Equal Protection Clauses of the
United States and Ohio Constitutions because it prevents certified independent
candidates from appointing election observers to the same extent as political
parties. She seeks a writ of mandamus compelling respondent, Ohio Secretary of
State Frank LaRose, to allow her to appoint election observers to inspect the
counting of votes. She also seeks an order compelling the secretary of state to
provide election observers with copies of all software, source codes, and hardware
that is installed on any automatic vote-tabulating machine. For the reasons set forth
herein, we deny the writ.
II. BACKGROUND
A. Statutory provisions governing election observers
{¶ 2} R.C. 3505.21(B) provides for the appointment of election observers
to observe the casting and counting of ballots. The statute states:
At any primary, special, or general election, any political
party supporting candidates to be voted upon at such election and
any group of five or more candidates may appoint to the board of
elections or to any of the precincts in the county or city one person,
a qualified elector, who shall serve as observer for such party or such
candidates during the casting of the ballots and during the counting
of the ballots; * * *.
(Emphasis added.) R.C. 3505.21(B).
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{¶ 3} Any political party or group of candidates appointing observers must
notify the board of elections of its appointees and the precincts at which they will
serve as observers. R.C. 3505.21(C). This notification must occur at least 11 days
before the election, on forms prescribed by the secretary of state. Id.B. The evidence in the record
{¶ 4} Maras is a general-election candidate for Ohio Secretary of State. She
appears on the November 2022 general-election ballot as an independent candidate,
rather than one affiliated with a political party.
{¶ 5} As a candidate who is not affiliated with any political party, Maras
must join with at least four other candidates in order to appoint election observers.
R.C. 3505.21(B). Maras alleges that she contacted at least eight other candidates
to join her in appointing observers but that she was unsuccessful in finding four that
would do so.
C. Procedural history
{¶ 6} Maras filed this action on October 12. She alleges that R.C.
3505.21(B) imposes “unconstitutional restrictions on [her] ability to appoint
election observers.” Maras asserts that the disparate treatment between
independent candidates and party-affiliated candidates violates the Equal
Protection Clauses of the United States and Ohio Constitutions.
{¶ 7} Maras’s complaint also contains numerous allegations concerning
what election observers appointed under R.C. 3505.21(B) are allowed to see. She
contends that in the past, election observers have not been permitted to sufficiently
observe or inspect automated voting and vote-counting machines that are used
throughout the state. Because the tabulation process now occurs electronically,
rather than by hand, Maras contends that observers cannot meaningfully observe
the tabulation process unless they are allowed to inspect all software, source codes,
and hardware used by those machines.
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{¶ 8} Maras seeks a writ of mandamus ordering the secretary of state to
allow certified independent candidates to appoint election observers without having
to join four other candidates and to allow election observers access to “copies of all
software, [source] code[s], and hardware installed on any automatic tabulating
machine in use in the precinct in which an observer is appointed so that the software
may be meaningfully inspected.” Maras further asks that tabulating-machine
software be “open or unlocked” so that observers “may inspect [the machines] to
the source code level or, alternatively, order poll workers to tally the votes.”
{¶ 9} We set an expedited schedule for the submission of evidence and
merit briefing, ___ Ohio St.3d, ___, 2022-Ohio-3646, ___ N.E.3d ___, and the
matter is now fully briefed.
III. ANALYSIS
A. Standard of review
{¶ 10} To be entitled to a writ of mandamus, Maras must establish by clear
and convincing evidence that (1) she has a clear legal right to the requested relief,
(2) the respondents have a clear legal duty to perform the requested acts, and (3)
she has no adequate remedy in the ordinary course of the law. See State ex rel.
Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13.
Given the proximity of the election, Maras lacks an adequate remedy in the ordinary
course of the law. See State ex rel. Cincinnati for Pension Reform v. Hamilton Cty.
Bd. of Elections, 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, ¶ 21. The
remaining elements require us to determine whether the secretary of state engaged
in fraud, corruption, or an abuse of discretion or acted in clear disregard of
applicable law. See State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-
Ohio-5327, 915 N.E.2d 1215, ¶ 9.
{¶ 11} Maras does not allege fraud or corruption. Thus, the dispositive
issue is whether Secretary LaRose abused his discretion or clearly disregarded
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applicable law by not allowing Maras to appoint election observers and not
allowing election observers to inspect the automatic-tabulating-machine software.
{¶ 12} A writ of mandamus is an extraordinary remedy, exercised by this
court with caution and issued only when the right to relief is clear. State ex rel.
Taylor v. Glasser, 50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977). Not only is Maras
required to prove clear entitlement to relief, she must also overcome the
presumption of constitutionality that is afforded to statutes and demonstrate beyond
a reasonable doubt that R.C. 3505.21 is unconstitutional. See State ex rel. Purdy v.
Clermont Cty. Bd. of Elections, 77 Ohio St.3d 338, 345-346, 673 N.E.2d 1351(1996).
B. This court’s jurisdiction
{¶ 13} As a preliminary matter, Secretary LaRose contends that we lack
subject-matter jurisdiction over this action because Maras is seeking, in substance,
a declaratory judgment that R.C. 3505.21(B) is unconstitutional and a prohibitory
injunction forbidding the secretary of state from enforcing the statute. He is
mistaken.
{¶ 14} “In general, if the allegations of a complaint for a writ of mandamus
indicate that the real objects sought are a declaratory judgment and a prohibitory
injunction, the complaint does not state a cause of action in mandamus and must be
dismissed for want of jurisdiction.” (Emphasis added.) State ex rel. Grendell v.
Davidson, 86 Ohio St.3d 629, 634, 716 N.E.2d 704 (1999). However, if a
mandamus complaint seeks a declaratory judgment coupled with a mandatory
injunction, a writ of mandamus is a proper remedy and this court has jurisdiction
over the case. See State ex rel. Arnett v. Winemiller, 80 Ohio St.3d 255, 259, 685
N.E.2d 1219 (1997). “The court distinguishes between the two by ‘examining the
complaint to determine whether it actually seeks to prevent, rather than compel,
official action.’ ” State ex rel. Gadell-Newton v. Husted, 153 Ohio St.3d 225, 2018-
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Ohio-1854, 103 N.E.3d 809, ¶ 10, quoting State ex rel. Evans v. Blackwell, 111
Ohio St.3d 437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 20.
{¶ 15} The complaint here seeks relief that would compel the secretary of
state to perform affirmative acts: allow Maras to appoint election observers to
inspect equipment and supervise ballot counting and make available the source
codes for the software installed on the automated equipment (or, alternatively, order
poll workers to hand-tally the votes). Therefore, Maras does not seek a prohibitory
injunction.
C. The equal-protection claim
{¶ 16} Maras argues that the “five candidate rule”—which allows a
candidate who is not affiliated with a political party to appoint election observers
only if he or she makes the request as part of a group of five candidates—is
unconstitutional under the Equal Protection Clauses of the United States and Ohio
Constitutions. She argues that we should apply strict scrutiny in evaluating the
constitutionality of R.C. 3505.21 because, in her view, “precluding the ability of
non-party affiliated candidates to appoint election observers has a real and
appreciable impact on and impermissibly interferes with the right to vote.” This is
so, Maras argues, because election observers are “critical to election integrity.”
{¶ 17} We have interpreted the Equal Protection Clause in the Ohio
Constitution as being equivalent to the federal Equal Protection Clause. See
McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1,
¶ 7. The first step in an equal-protection analysis is determining the proper standard
of review. “When legislation infringes upon a fundamental constitutional right or
the rights of a suspect class, strict scrutiny applies.” Arbino v. Johnson & Johnson,
116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 64. “If neither a
fundamental right nor a suspect class is involved, a rational-basis test is used.” Id.{¶ 18} Maras argues that R.C. 3505.21 is subject to strict scrutiny because
it impacts the right to vote. “The right to vote freely for the candidate of one’s
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choice is of the essence of a democratic society, and any restrictions on that right
strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533,
555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); see also Wesberry v. Sanders, 376 U.S.
1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (“Other rights, even the most basic, are
illusory if the right to vote is undermined”). Maras also notes that her rights as a
candidate are impacted negatively by R.C. 3505.21. See Bullock v. Carter, 405
U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (“the rights of voters and the
rights of candidates do not lend themselves to neat separation; laws that affect
candidates always have at least some theoretical, correlative effect on voters”).
Election observers, she argues, help to protect the rights of voters and candidates
by deterring and detecting voter fraud, deterring voter intimidation, and
safeguarding voter confidence.
{¶ 19} However, simply because a statute applies to elections does not
mean it triggers strict scrutiny for equal-protection purposes. Before strict scrutiny
will apply, a legislative classification must “impermissibly interfere[] with the
exercise of a fundamental right or operate[] to the peculiar disadvantage of a suspect
class.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct.
2562, 49 L.Ed.2d 520 (1976). An election statute does not burden the right to vote
when there is only “a speculative, future possibility that election irregularities might
occur.” Donald J. Trump for President, Inc. v. Boockvar, 493 F.Supp.3d 331, 419
(W.D.Pa.2020) (applying rational-basis review to state-law requirement that poll
watchers be county residents). In this case, R.C. 3505.21 has no direct impact on
the fundamental right to vote. See Werme v. Merrill, 84 F.3d 479, 485-487 (1st
Cir.1996) (rejecting constitutional challenge to a New Hampshire law limiting
election inspectors to being members of the two major political parties under
rational-basis review). The statute does not regulate the ability to vote or the right
to have one’s vote tallied. Rather, it regulates who may appoint an election
observer. Tellingly, Maras cites no case in which a court has applied strict scrutiny
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to a statute limiting the appointment of election observers. Because there is no
fundamental right for a candidate to appoint an election observer, see id. at 484,
strict scrutiny is not appropriate here.
{¶ 20} Secretary LaRose suggests this court employ the Anderson-Burdick
“sliding scale,” Arizona Green Party v. Reagan, 838 F.3d 983, 988 (9th Cir.2016),
which is a framework often applied to assess the constitutionality of election
statutes, see Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547(1983); Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).
Under the Anderson-Burdick framework, “the more severe the burden imposed, the
more exacting [the court’s] scrutiny; the less severe, the more relaxed [the]
scrutiny.” Arizona Libertarian Party v. Hobbs, 925 F.3d 1085, 1090 (9th Cir.2019).
As a practical matter, it is not clear that applying the Anderson-Burdick analysis
would yield a different result here. See, e.g., Cook Cty. Republican Party v.
Pritzker, 487 F.Supp.3d 707, 719-720 (N.D.Ill.2020) (challenge to extension of
period for curing provisional ballots from 7 to 14 days failed under the Anderson-
Burdick framework because the plaintiff did not provide any basis for thinking that
the additional time would result in election fraud, whereas the state provided a
rational justification for the extension). We therefore apply the rational-basis test.
{¶ 21} Under rational-basis review, a statute will be upheld if it is rationally
related to a legitimate government purpose. Arbino, 116 Ohio St.3d 468, 2007-
Ohio-6948, 880 N.E.2d 420, at ¶ 66. “Under such a review, a statute will not be
invalidated if it is grounded on a reasonable justification, even if its classifications
are not precise.” Id. In order to fail the rational-basis test, a classification adopted
by the General Assembly must be “clearly arbitrary and unreasonable.” McCrone,
107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, at ¶ 9.
{¶ 22} Maras argues that the legislative classification in R.C. 3505.21(B) is
between candidates who are not affiliated with a political party and party-affiliated
candidates. That is, Maras contends that candidates who are not affiliated with a
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political party are subject to the “five-candidate rule”—they cannot appoint election
observers unless they are among a group of five who agree do so—while party-
affiliated candidates are not so restricted. This characterization of the statute is
incorrect. Under R.C. 3505.21(B), candidates are not treated differently. No single
candidate, affiliated or not, may appoint an election observer in any county. Rather,
any group of five or more candidates—regardless of party affiliation—may appoint
observers. In any county in the state, for example, Maras could join with any four
candidates, including local candidates, to appoint observers in that particular
county.
{¶ 23} Maras’s challenge fails because R.C. 3505.21 passes the rational-
basis test. As the secretary of state argues, the statute ensures that appointed
election observers represent the interests of multiple candidates and are not focused
on simply furthering the interests of one particular candidate. In this way, the
statute is rationally related to the goal of minimizing disruptions that could occur if
too many observers descended on a single polling location.
{¶ 24} Maras counters that the statute cannot pass rational-basis review
because it is not rationally related to the state interests posited by Secretary LaRose.
She notes that there are only nine statewide elections on the November 8 ballot and
that she is the only independent candidate running in any of those races. Because
party-affiliated candidates have party-appointed observers to represent them, Maras
contends that those candidates “are not inclined to help a non-party affiliated
candidate which makes five candidate consent practically unobtainable.” And
Maras argues that the five-candidate rule has no rational relationship to a state
interest in “preventing too many election observers [from] overburdening county
boards of elections” because there are not very many statewide candidates.
{¶ 25} Maras’s arguments are based on a misreading of the statute. She
appears to assume that in order to appoint observers, she must make a joint request
with four other statewide candidates. But that is not what the statute says. Under
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R.C. 3505.21(B), Maras need only be part of a group of five candidates, regardless
of the office those candidates are seeking. And as the secretary of state notes, there
are 810 other candidates throughout the state—245 of whom are running as
independent candidates. Thus, Maras is wrong to characterize the five-candidate
rule as an “unobtainable” condition to appointing observers for independent
candidates, and her constitutional challenge therefore fails.
{¶ 26} For the same reason, the fact that there are only nine statewide
candidates in this November’s election does not make R.C. 3505.21(B)’s
limitations irrational. R.C. 3505.21(B) applies to any primary, general, or special
election and provides for the appointment of an election observer in any precinct of
a county or city. The limited number of statewide candidates does not mean there
are a limited number of total candidates throughout the state, considering the county
and district contests that are on the general-election ballot.
{¶ 27} For these reasons, R.C. 3505.21 is rationally related to a legitimate
government interest and is therefore constitutional under the Equal Protection
Clauses of the United States and Ohio Constitutions.
D. Access to the tabulating software
{¶ 28} As noted, R.C. 3505.21(B) provides for the appointment of persons
to “serve as observer[s] * * * during the counting of the ballots.” Maras asserts that
the Revised Code has not kept pace with technology. She contends that merely
watching the poll workers is inadequate: “Watching the ballots go in a machine and
then watching ballots come back out is * * * not a meaningful inspection process
for certified observers.” According to Maras, this observation cannot be undertaken
in any meaningful fashion unless the observers can see and inspect the software,
source codes, and hardware installed on any automatic vote-tabulating machine.
And she argues that if this court will not order the relief that she requests, then to
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make the statute meaningful, poll workers should be required to tally the votes by
hand in a way that can be observed.1
{¶ 29} However, Maras does not identify any clear statutory right to the
relief she seeks. “It is axiomatic that in mandamus proceedings, the creation of the
legal duty that a relator seeks to enforce is the distinct function of the legislative
branch of government, and courts are not authorized to create the legal duty
enforceable in mandamus.” (Emphasis sic.) State ex rel. Pipoly v. State Teachers
Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18. There
is nothing in R.C. 3505.21 that permits or requires the inspection of the software,
source codes, or hardware that is installed in automatic vote-tabulating machines.
Likewise, the Revised Code does not command poll workers to hand-tally the votes
in lieu of relying on automatic tabulation. We therefore find no basis for a writ of
mandamus to issue.
IV. CONCLUSION
{¶ 30} For the reasons discussed herein, we deny the writ of mandamus.
Writ denied.
O’CONNOR, C.J., and DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, FISCHER, and DEWINE, JJ., concur in judgment only.
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1. The secretary of state disputes Maras’s characterization of the public’s ability to observe
tabulating by the automated equipment. According to the secretary of state, automatic vote-
tabulating machines must be tested, certified by the federal Election Assistance Commission, and
meet standards of functionality, accessibility, and security. See R.C. 3506.05(H)(4)(a). Testing
reports are available for public review. See U.S. Election Assistance Commission, Certified Voting
Systems, available at https://www.eac.gov/voting-equipment/certified-voting-systems (accessed
Oct. 27, 2022) [perma.cc/H3SA-7DJJ]. The equipment must then be forwarded to the bipartisan
Board of Voting Machine Examiners, which conducts its own tests at meetings that are open to the
public. See R.C. 3506.05(B). Boards of elections perform tests before and after each election,
ensuring the accuracy of the equipment; boards give public notice of the time and place of testing.
See R.C. 3506.14(B). Finally, automatic vote-tabulating machines are subject to postelection audit
under R.C. 3505.331, in which boards of elections audit at least three contested races and at least
five percent of the total number of votes cast in those races.
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Mendenhall Law Group, Warner Mendenhall, and John Pfleiderer, for
relator.
Dave Yost, Attorney General, and Ann Yackshaw, Julie M. Pfeiffer, and
Allison D. Daniel, Assistant Attorneys General, for respondent.
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