[Cite as State ex rel. Painter v. Brunner, 127 Ohio St.3d 463, 2010-Ohio-6461.]




    THE STATE EX REL. PAINTER ET AL. v. BRUNNER, SECY. OF STATE, ET AL.
[Cite as State ex rel. Painter v. Brunner, 127 Ohio St.3d 463, 2010-Ohio-6461.]
Motions to intervene as respondents granted — Motion for temporary injunctive
        relief granted — Alternative writ in mandamus granted, and briefing
        schedule established — Complaint for writ of prohibition dismissed.
           (No. 2010-2205 — Submitted December 28, 2010 — Decided
                                   December 29, 2010.)
                            IN MANDAMUS and PROHIBITION.
                                  __________________
        {¶ 1} Relators have filed a complaint seeking writs of mandamus and
prohibition and a motion for temporary injunctive relief.
        {¶ 2} It is ordered, sua sponte, that an alternative writ of mandamus is
granted, and the following briefing schedule is set for the presentation of evidence
and filing of briefs pursuant to S.Ct.Prac.R. 10.6: Relators shall file their brief
and evidence no later than January 3, 2011, and respondents shall file their briefs
and evidence no later than January 5, 2011.
        {¶ 3} The parties shall serve all documents filed in this case by personal
service, facsimile transmission, or e-mail on the date of the filing. The Clerk’s
office shall refuse to file any reply briefs or requests for extension of time in this
case.
        {¶ 4} It is further ordered that the motions of Tracie Hunter and the
Northeast Ohio Coalition for the Homeless and Ohio Democratic Party for leave
to intervene as respondents are granted.
        {¶ 5} It is further ordered that respondents and their agents, servants,
employees, attorneys, and other persons acting on their behalf are hereby stayed
from opening the provisional ballot envelopes pending further order of the court.
                                 SUPREME COURT OF OHIO




        {¶ 6} It is further ordered that the complaint for a writ of prohibition is
dismissed.
        PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER,
and CUPP, JJ., concur.
        BROWN, C.J., concurs separately.
                                   __________________
        BROWN, C.J., concurring.
        {¶ 7} On November 2, 2010, relator John Williams and Tracie Hunter
were candidates for the elected office of judge of the Hamilton County Court of
Common Pleas, Juvenile Division. According to the most recent count of the
Hamilton County Board of Elections, only 23 votes, out of nearly 230,000 votes
cast, separate the totals for the two competing candidates. However, the votes of
849 Hamilton County electors who voted provisionally were not counted, based
on the board’s conclusion that these electors voted in the wrong precinct.
        {¶ 8} According to a statement submitted by two Hamilton County
Board of Elections members, many of these 849 Hamilton County electors arrived
at the correct multiprecinct voting location but were erroneously directed by poll
workers to vote a ballot formulated for the wrong precinct — that is, a precinct
other than the precinct in which the voter resided. In many cases, voters were
simply directed to the wrong table.1 The question presented is whether Ohio
electors otherwise qualified to vote should be disenfranchised when errors by
election officials result in their votes being cast in the wrong precinct. I believe


1
  I suspect that some Hamilton County voters in multiprecinct locations may similarly have been
mistakenly directed by poll workers to vote on voting machines programmed with ballots for
precincts other than the one in which the voter resided. However, unlike votes cast provisionally
on paper and segregated in provisional-ballot envelopes, any machine-cast regular votes, even if
cast in incorrect precincts, were immediately commingled. Those votes have since been counted.
I question whether the disparate treatment of voters who voted regular ballots in the wrong
precinct and voters who voted provisionally in the wrong precinct raises equal protection
concerns.




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the answer is no. An elector’s fundamental constitutional right to participate in
our democracy and cast a ballot must prevail over a technical application of the
statutory law, particularly in the face of a poll worker’s mistake. Nevertheless, I
reluctantly concur in the court’s grant of an expedited alternative writ that will
allow presentation of evidence and briefs prior to this court’s resolution of the
merits of this case. I write separately to explain why my concurrence is reluctant.
           {¶ 9} In my view, relators’ claims appear to lack merit. Additionally,
respondents have presented highly convincing arguments that relators’ claims for
extraordinary relief should ultimately be dismissed. I am not prepared to
conclude, however, that respondents have met the standard required for dismissal
of an original action at this procedural stage, i.e., the S.Ct.Prac.R. 10.5
determination. That is, I do not find it beyond doubt, after presuming the truth of
all material factual allegations of relators’ complaint and making all reasonable
inferences in their favor, that relators are not entitled to the requested
extraordinary relief in mandamus. See State ex rel. Duke Energy Ohio, Inc. v.
Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450, 930
N.E.2d 299, ¶ 13.
           {¶ 10} Elections are seldom perfectly administered. Relators argue that
Ohio statutes2 provide that votes cast in the wrong precinct are to be excluded. In
my view, however, when a voter votes in the wrong precinct as a result of error by
election officials, the fundamental constitutional rights of a qualified Ohio elector
to have his or her vote counted in a race in which the elector was clearly qualified
to vote must prevail. And those most fundamental constitutional rights under the
Ohio and United States Constitutions should prevail over a technical violation of
R.C. 3599.12(A)(1), which prohibits a person from voting “in a precinct in which
that person is not a legally qualified elector.”


2
    See, e.g., R.C. 3503.01(A), 3505.181(C)(1), and 3599.12(A)(1).




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       {¶ 11} The record before us clearly supports the inference that election
officials in Hamilton County may have made mistakes in administering the
election as to a subset of provisional voters. For example, there are allegations
that some of the voters at issue had recently been reassigned to new precincts,
some as a result of redrawn precinct lines, and some had been reassigned to new
multiprecinct voting locations. Despite these challenges, these voters arrived to
vote at the proper location where, through no fault of their own, they were
directed by poll workers to the wrong table.            As a result, these voters
inadvertently voted in the wrong precinct.            In these circumstances, the
fundamental constitutional rights of the elector require that the votes be counted.
A federal judge has issued an order to election officials to investigate and
determine whether poll-worker error contributed to electors’ voting in the wrong
precinct. No one has suggested that Hamilton County poll workers intentionally
misdirected voters who appeared at multiprecinct voting locations. But if an
investigation discloses that poll workers did err, albeit innocently, the interests of
affected Ohio electors in having their votes counted should, in my view, prevail.
       {¶ 12} My view is shared by two Ohio federal district court judges who
believe that issues of equal protection and due process are implicated by the
failure to count votes in these circumstances.          These federal courts have
recognized that the United States Constitution prohibits the exclusion of votes
from the official election count when a vote was improperly cast in the wrong
precinct because of poll-worker error. The federal constitution is the supreme law
of the land, and no Ohio statute that, as applied, conflicts with a voter’s
constitutional rights can prevail.
       {¶ 13} In Northeast Ohio Coalition for the Homeless v. Brunner, S.D.
Ohio (E.D.) No. C2-06-896, the United States District Court for the Southern
District of Ohio, Eastern Division, entered a consent decree in April 2010 in a
case challenging Ohio’s identification and provisional-ballot laws. The decree



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stated that its purpose included the following: ensuring that “the fundamental
right to vote is fully protected for registered and qualified voters who lack the
identification required by the Ohio Voted ID Laws” and ensuring that “voters will
not be deprived of their fundamental right to vote because of failures by poll
workers to follow Ohio law.” The decree further noted that the Supremacy
Clause, Clause 2, Article VI of the United States Constitution, provides that the
federal constitution constitutes “the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.” Consistent with these purposes, the decree
specified that boards of elections may not reject a provisional ballot cast by a
voter who uses only the last four digits of his or her Social Security number as
identification if the voter has cast a provisional ballot in the correct polling place
but — for reasons attributable to poll-worker error — in the wrong precinct.
       {¶ 14} Similarly, in a case arising out of the same circumstances that
underlie this case, i.e., the November 2, 2010 race for Hamilton County Juvenile
Court judge, Chief Judge Susan J. Dlott of the federal district court issued a
preliminary injunction in Hunter v. Hamilton Cty. Bd. of Elections, S.D. Ohio
(W.D.) No. 1:10-cv-820, 2010 WL 4878957. Judge Dlott granted a preliminary
injunction “insofar as it seeks an order commanding [the board and its members]
to investigate whether provisional ballots cast in the correct polling location but
wrong precinct were improperly cast because of poll worker error.” Judge Dlott
reasoned that because the board of elections had previously counted 26
provisional ballots cast at the Hamilton County board office but in the wrong
precinct due to “clear poll worker error,” its failure to apply similar scrutiny to
other provisional ballots cast at the correct polling place but in the wrong precinct
“raises equal protection concerns.” To prevent irreparable harm, Judge Dlott
ordered that the board of elections “examine all 849 faulty provisional ballots for




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poll worker error.” Judge Dlott further ordered that the board “immediately begin
an investigation into whether poll worker error contributed to the rejection of the
849 provisional ballots now in issue and include in the recount of the race for
Hamilton County Juvenile Court Judge any provisional ballots improperly cast for
reasons attributable to poll worker error.” That order was appealed to the United
States Court of Appeals for the Sixth Circuit, and that appeal remains pending.
        {¶ 15} In my view, the filing of this action raises significant issues of
comity and jurisdictional priority, which weigh heavily against the issuance of
extraordinary relief in the form of a writ of mandamus. This court should not
interfere with the litigation of these issues already underway in the federal courts.
It is difficult to see the filing of this action as anything other than an attempt by
relators to collaterally attack a federal court order issued in federal litigation. As
argued by respondents, the requested writ would place the board and the secretary
in “an untenable position of potential competing court orders.” Moreover, the
relators’ filing of an original action in this court did not occur until after the Sixth
Circuit dissolved a stay it had previously issued. That is, relators turned to this
court to seek a stay and other relief only after being denied similar relief by the
federal court.
        {¶ 16} Relator John W. Painter, a Hamilton County elector who voted in
the November 2, 2010 election, and whose vote has presumably already been
included in the vote count, asserts that his vote is subject to dilution if any of the
ballots at issue that were voted provisionally are counted. However, the relators
do not contend, nor is there any reason to suspect, that the provisional voters at
issue were not qualified to vote for the countywide judge’s race at issue. As to
that race, whether a qualified Hamilton County voter cast his ballot in the wrong
precinct is irrelevant.
        {¶ 17} I concur in the court’s order allowing intervention by Tracie
Hunter, the Northeast Ohio Coalition for the Homeless, and the Ohio Democratic



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Party and in the court’s dismissal of relators’ claim seeking a writ of prohibition.
I further concur in the court’s order of a stay that will, until this original action is
resolved, preclude respondents from opening the envelopes containing ballots cast
provisionally by 849 Hamilton County electors. The secrecy of those votes must
be protected. Finally, as discussed above, I reluctantly concur in the court’s grant
of an expedited alternative writ that will allow presentation of evidence and briefs
prior to this court’s resolution of the merits. I would, however, allow more time
for the presentation of evidence and briefs than provided by the majority.
                               __________________
        Taft, Stettinius & Hollister, L.L.P., R. Joseph Parker, W. Stuart Dornette,
and John B. Nalbandian, for relators.
        Richard Cordray, Attorney General, and Richard N. Coglianese, Erick D.
Gale, and Michael J. Schuler, Assistant Attorneys General, for respondent
Secretary of State Jennifer Brunner.
        Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T.
Stevenson, James W. Harper, Colleen M. McCafferty, and Thomas Grossmann,
Assistant Prosecuting Attorneys, for respondent Hamilton County Board of
Elections.
        Gerhardstein & Branch Co., L.P.A., Jennifer L. Branch, and Alphonse A.
Gerhardstein, for intervening respondent Tracie Hunter.
        Porter, Wright, Morris & Arthur, L.L.P., Caroline H. Gentry, and Sheena
L. Little; and The Chandra Law Firm, L.L.C., and Subodh Chandra, for
intervening respondent Northeast Ohio Coalition for the Homeless.
        McTigue Law Group, Donald J. McTigue, and Mark A. McGinnis, for
intervening respondent Ohio Democratic Party.
                               __________________




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