State ex rel. Stokes v. Brunner

898 N.E.2d 23, 120 Ohio St. 3d 250

Opinions

Per Curiam.

{¶ 1} This is an expedited election case for a writ of mandamus to compel the secretary of state to declare that observers are permitted in all active polling places and to direct local election officials to permit observers in all early-voting locations. Because the secretary of state erroneously advised boards of elections that they are not required to permit duly appointed observers at in-person, absentee-voting locations, we grant the writ.

Advisory 2008-24

{¶ 2} On September 23, 2008, the secretary of state issued Advisory 2008-24, in which she advised the boards of elections that they are not required to allow election observers during the 35-day, in-person absentee-voting period for the November 4 election:

{¶ 3} “[T]he General Assembly has not specifically provided for election observers during the 35-day in-person absentee voting period immediately preceding Election Day. Additionally, the General Assembly appears to have intended to foreclose such observers during that time by limiting the expressly provided-for presence of observers, with respect to absentee voting, to the processing and counting of absentee ballots. For all of these reasons, I am advising Ohio’s boards of elections that they are not required to allow election observers during the 35-day in-person absentee voting period immediately preceding Election Day.”

{¶ 4} The secretary of state also cautioned boards of elections against exercising their discretion to permit election observers for in-person absentee voting:

{¶ 5} “Individual boards may receive requests that they exercise their discretion to allow opportunities for observers to be present at board offices or satellite locations during hours when in-person absentee voting takes place. The allow-anee of these requests may result in court challenges based on disparate treatment between counties. If all boards operate consistently in following the advice contained in this advisory, which is issued pursuant to R.C. 3501.05(B), any litigation regarding this advisory would necessarily be centered on the secretary of state rather than individual boards, allowing boards to proceed with election preparation unhindered by litigation. In addition, no statute provides deadlines for filing requests to be observers or conduct of observers during periods of in-person absentee voting, leaving a board open to challenge on rules established for such observers by that individual board.”

Federal Litigation

{¶ 6} On September 29, the United States District Court for the Southern District of Ohio, Eastern Division, granted a temporary restraining order preventing the enforcement of Advisory 2008-24. Ohio Republican Party v. Brun-ner (Sept. 29, 2008), S.D. Ohio No. 2:08-CV-00913, 2008 WL 4445193, *5. The district court judge concluded that the applicable statute required observers at absentee-voting locations. The next day, the United States Court of Appeals for the Sixth Circuit stayed the district court’s order. Ohio Republican Party v. Brunner (C.A.6, 2008), 543 F.3d 357, 361-362. The court of appeals observed that insofar as the district court’s order was premised upon its interpretation of state law, federal courts lack jurisdiction to enjoin state officials based on state law. Id.

Appointment of Relator as an Observer and Rejection of His Attempt to Serve

{¶ 7} Relator, Dewey Stokes, is a registered voter and a resident of Franklin County. On September 30, 2008, the Franklin County Republican Party appointed Stokes to be an observer at the alternate polling location in Franklin County during the absentee-voting period of the election. On October 3, Stokes received his credentials to serve as a poll observer in Franklin County.

{¶ 8} On that date, Stokes presented himself at an early-voting location inside Veterans Memorial in Franklin County and announced his intention to serve as an observer. The director and deputy director of the Franklin County Board of Elections informed Stokes that based on the secretary of state’s authority, he would not be permitted to serve as an observer. The board officials also handed Stokes a notice stating that pursuant to Advisory 2008-24, the board “is not accepting filings for election observers during the 35-day period for in-person absentee voting.” Stokes then left the building.

Expedited Election Case

{¶ 9} Later that day, Stokes filed this expedited election case for a writ of mandamus to compel the secretary of state to declare that observers are permitted at all active polling places and to direct local election officials to permit observers in all early voting locations “pursuant to the procedures in R.C. 3505.21.” The secretary of state filed an answer, and the parties submitted evidence and briefs on October 14 in accordance with a court-ordered schedule.

{¶ 10} This case is now before the court for our consideration of the merits.

Laches

{¶ 11} The secretary of state asserts that this mandamus case is barred by laches. But laches requires an unreasonable delay or lapse of time in asserting a right. See, e.g., State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 11. Stokes did not unreasonably delay in bringing this expedited election action, which was filed only ten days after the secretary of state issued Advisory 2008-24. Stokes then filed this case on the very day that the local election officials refused to let him serve as an observer for the absentee voting at the county polling location.

{¶ 12} Moreover, like our recent decision in State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 29, “this case differs from other cases in which we have applied laches to bar a consideration of the merits of an expedited election action concerning an issue or candidate on an election ballot because it involves the propriety of the absentee voting itself’ — i.e., here, the issue of whether duly appointed observers are permitted to be present during in-person absentee voting. (Emphasis sic.) And although the secretary of state submitted evidence that permitting observers in some counties might burden understaffed boards of elections, we view these potential concerns as, at best, speculative and insufficient to bar our consideration of the merits of this case. See State ex rel. Becker v. Eastlake (2001), 93 Ohio St.3d 502, 505, 756 N.E.2d 1228 (“the fundamental tenet of judicial review in Ohio is that courts should decide cases on their merits”).

Mandamus

{¶ 13} “To be entitled to the writ, relator[ ] must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the secretary of state to provide it, and the lack of an adequate remedy in the ordinary course of the law.” State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 13. “[I]f the secretary of state ‘has, under the law, misdirected the members of boards of elections as to their duties, the matter may be corrected through the remedy of mandamus.’ ” State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 20, quoting State ex rel. Melvin v. Sweeney (1950), 154 Ohio St. 223, 226, 43 O.O. 36, 94 N.E.2d 785.

General Duties of the Secretary of State

{¶ 14} 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,” and “[c]ompel the observance by election officers in the several counties of the requirements of the election laws.” R.C. 3501.05(B), (C), and (M).

{¶ 15} Stokes claims that the secretary of state has a duty enforceable in mandamus under these provisions and others to direct the boards of elections to permit duly appointed observers at absentee-voting locations.

R.C. 3505.21 and Related Statutes

{¶ 16} Stokes asserts that he is entitled to the requested extraordinary relief in mandamus because the secretary of state, through Advisory 2008-24, misdirected the boards of elections that they had no legal duty to permit observers at absentee-voting locations.

{¶ 17} Stokes primarily relies on R.C. 3505.21, which requires that duly appointed observers be permitted in the polling place for the precinct during the casting of the ballots:

{¶ 18} “At any primary, special, or general election, any political party supporting candidates to be voted upon at such election * * * 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 * * * during the casting and counting of the ballots; provided that separate observers may be appointed to serve during the casting and during the counting of the ballots. * * * Any political party * * * appointing observers shall notify the board of elections of the names and addresses of its appointees and the precincts at which they shall serve. Notification shall take place not less than eleven days before the election on forms prescribed by the secretary of state and may be amended by filing an amendment with the board of elections at any time until four p.m. of the day before the election. The observer serving on behalf of a political party shall be appointed in writing by the chairperson and secretary of the respective controlling party committee. * * * Observers appointed to a precinct may file their certificates of appointment with the presiding judge of the precinct at the meeting on the evening prior to the election, or with the presiding judge of the precinct on the day of the election. Upon the filing of a certificate, the person named as observer in the certificate shall be permitted to be in and about the polling place for the precinct during the casting of the ballots and shall be permitted to watch every proceeding of the judges of elections from the time of the opening until the closing of the polls. The observer also may inspect the counting of all ballots in the polling place or board of elections from the time of the closing of the polls until the counting is completed and the final returns are certified and signed. Observers appointed to the board of elections under this section may observe * * * at any precinct in the county. The judges of elections shall protect such observers in all of the rights and privileges granted to them by Title XXXV of the Revised Code.” (Emphasis added.)

{¶ 19} In construing R.C. 3505.21, “our paramount concern is the legislative intent in enacting the statute.” State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. “ ‘To discern this intent, we first consider the statutory language, reading words and phrases in context and construing them in accordance with rules of grammar and common usage.’” Heffelfinger, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 35, quoting State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 40.

{¶ 20} A review of the language of R.C. 3505.21 reveals the following pertinent requirements for observers appointed by political parties: (1) the political party appointing the observer must support candidates to be voted upon at the election, (2) the person appointed must be a qualified elector, (3) the appointment must be for any primary, special, or general election, (4) the appointment must be to the board of elections or to any of the precincts in the county or city, (5) the person appointed shall serve as an observer for the party during the casting and counting of ballots, unless the party selects separate observers to serve during the casting of ballots and the counting of them, (6) the political party must notify the board of elections of the names and addresses of the appointees and the precincts at which they will serve as observers, and (7) appointees must file their certificate of appointment with the presiding judge of the precinct.

{¶ 21} It appears uncontroverted that the Republican Party supports candidates to be voted on at the November 4 general election, that Stokes is a qualified elector, that the party notified the board of elections of his appointment as an observer, and that Stokes is prepared to file his certificate of appointment. At issue is (1) whether the absentee-voting period relates to “any primary, special, or general election,” (2) whether the appointment of Stokes as an observer is to the board of elections or to any of the precincts of the county or city, and (3) whether the in-person absentee voting is included in the casting and counting of ballots so as to be part of the general election.

{¶ 22} For these remaining requirements, the secretary of state asserts that R.C. 3505.21 applies only to the November 1+ date of the general election, but the plain language of the statute contradicts the secretary’s interpretation. The general election encompasses the in-person casting of absentee ballots for that election, which is manifestly part of the general election even though some of it may occur before November 4. An election is considered to refer to “the combined actions of voters and officials meant to make a final selection.” See Foster v. Love (1997), 522 U.S. 67, 71, 118 S.Ct. 464, 139 L.Ed.2d 369; see also Millsaps v. Thompson (C.A.6, 2001), 259 F.3d 535, 546. Insofar as the secretary cites other provisions of R.C. 3505.21 that specify time requirements for filing notices and certificates of appointment and reference the day of the election, these provisions must be construed to cover the absentee voting that is part of the election.

{¶ 23} Stokes is also authorized to serve as an observer “during the casting of the ballots” for the general election. “Cast” means “[t]o formally deposit (a ballot) or signal one’s choice (in a vote).” See Black’s Law Dictionary (8th Ed. 2004) 230. Although the ballots are not actually counted for purposes of voting until election day, electors who deposit their absentee ballots at a polling location during the absentee-voting period have cast their ballots under the plain language of R.C. 3505.21 by marking them and formally depositing them. These absentee ballots are being cast for the general election even though casting occurs before the date of the election.

{¶ 24} For the last requirement, Stokes had to be appointed to serve as an observer for either the board of elections or a precinct. On his certificate of appointment, Stokes is listed as an observer for the alternate polling location in Franklin County during the absentee-voting period. “Precinct” is defined as “a district within a county established by the board of elections of such county within which all qualified electors having a voting residence therein may vote at the same polling place,” and “[pjolling place” is defined as “that place provided for each precinct at which the electors having a voting residence in such precinct may vote.” R.C. 3501.01(Q) and (R). A duly appointed observer “shall be permitted to be in and about the polling place for the precinct during the casting of the ballots.” (Emphasis added.) R.C. 3505.21.

{¶ 25} For purposes of the in-person absentee voting at issue here, these statutes must be construed in pari materia with R.C. 3501.11(Z), which provides that elections boards have the following duty: “On any day on which an elector may vote in person at the office of the board or at another site designated by the board, consider the board or other designated site a polling place for that day. All requirements or prohibitions of law that apply to a polling place shall apply to the office of the board or other designated site on that day.” (Emphasis added.) Therefore, the requirements concerning observers at polling places apply to the in-person absentee-voting period for the general election. In effect, the absentee-voting location serves as the pertinent precinct or polling place for purposes of R.C. 3505.21.

{¶ 26} Because R.C. 3505.21 does not limit its application to election-day voting, we cannot add this requirement to the plain language of the statute. See, e.g., State ex rel. Columbia Res. Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815, ¶ 32 (“We will not add a requirement that does not exist in the statute”).

{¶ 27} Nor does the secretary’s citation of R.C. 3509.06(F), which provides that “[observers may be appointed under section 3505.21 of the Revised Code to witness the examination and opening of identification envelopes and the counting of absent voters’ ballots under this section,” warrant a contrary result. R.C. 3509.06(F) applies only to the counting of absentee ballots and is thus inapplicable to the issue of observers during the in-person casting of absentee ballots, which is governed by the plain language of R.C. 3505.21 and 3501.11(Z).

{¶ 28} Although we cannot create the legal duty enforceable in mandamus, see State ex rel. Lewis v. Rolston, 115 Ohio St.3d 293, 2007-Ohio-5139, 874 N.E.2d 1200, ¶ 22, R.C. 3501.05, 3501.11, and 3505.21 set forth the legal duty on the part of the secretary of state to correct her erroneous advisory in order to permit the presence of duly appointed observers during the in-person absentee voting for the November 4 general election.

{¶ 29} Therefore, “we need not defer to the secretary of state’s interpretation because it is unreasonable and fails to apply the plain language” of R.C. 3505.21 and 3501.11(Z). See State ex rel. Myles v. Brunner, 120 Ohio St.3d 328, 2008-Ohio-5097, 899 N.E.2d 120, ¶ 26, citing State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299, 2007-Ohio-5228, 874 N.E.2d 1205, ¶ 30.

Conclusion

{¶ 30} Based on the foregoing, we grant a writ of mandamus to compel the secretary of state to direct that duly appointed observers are permitted in all active polling places and to forthwith instruct boards of elections to allow observers in all early-voting locations as long as the pertinent requirements of R.C. 3505.21 have been satisfied. By so holding, we emphasize what the secretary of state has previously acknowledged that “[p]oll observers play an important role in assuring the public that election processes are open and transparent, affecting public trust of the process, and thus, the potential for future participation in the democratic process.” Secretary of State Directive 2008-29 (Feb. 25, 2008). We do not address Stokes’s additional claims concerning public policy and equal protection because they have been rendered moot by our disposition of this case.

Writ granted.

Pfeifer, Slaby, O’Donnell, and Cupp, JJ., concur. Moyer, C.J., and Wolff and Lanzinger, JJ., dissent. William H. Wolff Jr., J., of the Second Appellate District, sitting for Lundberg Stratton, J. Lynn C. Slaby, J., of the Ninth Appellate District, sitting for O’Connor, J.