[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Gadell-Newton v. Husted, Slip Opinion No. 2018-Ohio-1854.]




                                           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
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2018-OHIO-1854
              THE STATE EX REL. GADELL-NEWTON v. HUSTED ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Gadell-Newton v. Husted, Slip Opinion No.
                                     2018-Ohio-1854.]
Elections—Request for declaration that digital ballot images are public records
        subject to R.C. 149.351(A) and for writ of mandamus ordering boards of
        elections to refrain from deleting digital ballot images dismissed for lack of
        subject-matter jurisdiction.
       (No. 2018-0563—Submitted May 8, 2018—Decided May 11, 2018.)
                                       IN MANDAMUS.
                                    ________________
        Per Curiam.
        {¶ 1} In this expedited election case, relator, Constance Gadell-Newton,
seeks a writ of mandamus to compel respondents, Ohio Secretary of State Jon
Husted, the Franklin County Board of Elections, and the Cuyahoga County Board
of Elections, to preserve digital ballot images created by voting equipment used in
                                 SUPREME COURT OF OHIO




the May 8, 2018 primary election.               We dismiss the complaint for lack of
jurisdiction.
                                       I. Background
        {¶ 2} Franklin County employs two voting systems. It uses optical-scan
paper ballots for six categories of voters: those using absentee ballots to vote by
mail, provisional voters, qualified 17-year-old voters, hospitalized voters, nursing-
home residents voting by absentee ballots, and election-day voters who request to
vote using paper ballots in lieu of voting on a machine.1 The county processes these
ballots using DS850 digital scanners. A paper ballot is fed into the scanner, which
reads the ballot and tabulates the votes. The Cuyahoga County Board of Elections
uses DS850 high-speed scanners for all absentee ballots (in-person and mail-in) and
DS200 digital scanners for ballots cast at polling places on election day.
        {¶ 3} According to the evidence submitted by Gadell-Newton in this case,
a DS850 scanner works by creating a digital image of each paper ballot that it scans.
The scanner’s software then uses the digital image to interpret the vote and generate
a cast-vote record (“CVR”). The scanner accumulates the votes represented by the
CVRs to create vote totals for each candidate and issue. The DS850 stores the
ballot image and the CVR as separate, retrievable files.
        {¶ 4} Gadell-Newton was a candidate for the Green Party nomination for
election as governor of Ohio. On April 10, 2018, Gadell-Newton’s counsel sent
letters to the Franklin and Cuyahoga County boards of elections in which counsel
asserted that the digital ballot images are public records within the meaning of
Ohio’s Public Records Act, R.C. 149.43, and must therefore be preserved. Counsel
also alleged that the boards of elections had a duty under 52 U.S.C. 20701 to
preserve the ballot images for a minimum of 22 months following a federal election.


1
 All other Franklin County voters—electors who vote in person at their polling place on election
day or who vote using an in-person absentee ballot at the early-voting center—use Election Systems
& Software iVotronic electronic-voting machines.




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                                January Term, 2018




Counsel demanded “written documentation that you have instructed your staff to
comply with the legal requirement to preserve all election materials and data,
including digital ballot images.” On the same day, counsel sent a letter to Secretary
Husted demanding that the secretary instruct county elections officials to preserve
all digital ballot images.
        {¶ 5} The recipients did not answer the letters. Therefore, on April 19,
Gadell-Newton filed the instant complaint for a writ of mandamus. As in the letters,
she alleged that digital ballot images are public records that under R.C. 149.351(A)
may not be removed, destroyed, or disposed of and that elections officials are under
an affirmative duty, imposed by 52 U.S.C. 20701, to preserve these records. In her
prayer for relief, she requested “[a] judgment or order that digital ballot images are
public records” and “[a] writ of mandamus ordering Respondents to preserve all
digital ballot images from the May 8, 2018 Primary Election.”             Pursuant to
Sup.Ct.Prac.R. 12.08(A), the case was automatically expedited because it was filed
within 90 days of the May 8 election.
                                 II. Legal Analysis
        {¶ 6} To be entitled to a writ of mandamus, a party must establish, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio
St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. With respect to the second
element, Gadell-Newton alleges the existence of a duty arising under both federal
and state law.
        {¶ 7} 52 U.S.C. 20701 provides:


                 Every officer of election shall retain and preserve, for a
        period of twenty-two months from the date of any general, special,
        or primary election of which candidates for the office of * * *




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       Member of the Senate [or] Member of the House of Representatives
       * * * are voted for, all records and papers which come into his
       possession relating to any application, registration, payment of poll
       tax, or other act requisite to voting in such election * * *. Any
       officer of election or custodian who willfully fails to comply with
       this section shall be fined not more than $1,000 or imprisoned not
       more than one year, or both.


Gadell-Newton contends that digital ballot images are “records * * * relating to any
* * * other act requisite to voting in such election,” 52 U.S.C. 20701, and must
therefore be preserved for 22 months.
       {¶ 8} As for the state-law duty she seeks to enforce, Gadell-Newton cites
R.C. 149.351(A), which provides that all records of a public office “are the property
of the public office concerned and shall not be removed, destroyed, mutilated,
transferred, or otherwise damaged or disposed of, in whole or part.” She contends
that the digital ballot images constitute records of a public office and must therefore
not be destroyed.
       {¶ 9} In her complaint, Gadell-Newton seeks a declaratory judgment that
“digital ballot images are public records.” As a general rule, a writ of mandamus
will not issue when there is a plain and adequate remedy in the ordinary course of
the law. R.C. 2731.05. However, “where declaratory judgment would not be a
complete remedy unless coupled with extraordinary relief in the nature of a
mandatory injunction, the availability of declaratory judgment does not preclude a
writ of mandamus.” (Emphasis added.) State ex rel. Arnett v. Winemiller, 80 Ohio
St.3d 255, 259, 685 N.E.2d 1219 (1997). If the allegations of a complaint indicate
that the real objects sought are a declaratory judgment and a prohibitory injunction,
then the complaint does not state a claim in mandamus and must be dismissed for




                                          4
                                January Term, 2018




lack of jurisdiction. State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 634,
716 N.E.2d 704 (1999).
       {¶ 10} The difference between the two forms of relief is simple: “a
prohibitory injunction is used to prevent a future injury, but a mandatory injunction
is used to remedy past injuries.” State ex rel. Gen. Motors Corp. v. Indus. Comm.,
117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 12.                 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. Evans
v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 20; see also
State ex rel. Smith v. Indus. Comm., 139 Ohio St. 303, 306, 39 N.E.2d 838 (1942)
(“The functions of an injunction are ordinarily to restrain motion and enforce
inaction, while those of mandamus are to set in motion and to compel action”).
       {¶ 11} Gadell-Newton characterizes this action as one to compel
affirmative action by forcing the boards of elections to preserve digital ballot
images that will otherwise be lost, whereas Secretary Husted presents the case as
an effort to enjoin the boards of elections from destroying images that will
otherwise continue to exist. The complaint invokes both scenarios:


               Respondents have been and will be violating Ohio and
       federal public records laws by instructing or allowing election
       officials and workers under their supervision to destroy all digital
       ballot images following the election.
               Respondents have been and will be violating Ohio and
       federal public records laws by failing to instruct election officials
       and workers under their supervision to preserve all digital ballot
       images following the election.




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                             SUPREME COURT OF OHIO




Elsewhere in the complaint, however, Gadell-Newton makes clear that the problem,
from her perspective, is that in previous elections, the boards of elections have
allowed their employees to “destroy all digital ballot images following the
election.” The fact that it requires an affirmative act to eliminate the ballot images
is confirmed by Gadell-Newton’s proffered expert witness, Dr. Thomas W. Ryan,
who decries the harm to election integrity caused by “deleting” ballot images. The
affidavit from Michael M. Dvorak, an employee of Elections Systems & Software,
is consistent with this conclusion: “encrypted ballot images temporarily stored on
Franklin County’s DS850’s internal memory are cleared each time a different ballot
type is scanned, such as when provisional ballots are scanned following the
scanning of absentee ballots.”
       {¶ 12} There is no evidence or allegation that the digital ballot images will
disappear if left alone, with no affirmative actions taken to preserve them. The
converse is true: the images will be destroyed only by affirmative actions that
Gadell-Newton seeks to block. This scenario is similar to other situations in which
we have dismissed a purported mandamus complaint for lack of jurisdiction. See,
e.g., State ex rel. Esarco v. Youngstown City Council, 116 Ohio St.3d 131, 2007-
Ohio-5699, 876 N.E.2d 953, ¶ 10-12 (mandamus claim alleging that city had an
affirmative duty to remove invalid charter amendment from the ballot sought a
prohibitory injunction); State ex rel. Beane v. Dayton, 112 Ohio St.3d 553, 2007-
Ohio-811, 862 N.E.2d 97, ¶ 29 (dismissing mandamus claim that sought to compel
city to comply with newly enacted statute because it actually sought an injunction
to prevent the city from following preenactment law).
       {¶ 13} Stated differently, and as noted above, the difference between a
request for a writ of mandamus in the nature of a mandatory injunction (over which
this court has original jurisdiction) and a request for a writ of mandamus in the
nature of a prohibitory injunction (over which it does not) is temporal. Gadell-
Newton is attempting to prevent an injury that has not yet occurred but that she




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                                January Term, 2018




anticipates will occur. That is the function of a prohibitory injunction. Gen. Motors
Corp., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, at ¶ 12. The relief
she seeks is not within our original jurisdiction to grant.
                                   III. Conclusion
       {¶ 14} Because we lack subject-matter jurisdiction over this case, we
dismiss the complaint and we decline to answer the substantive questions presented,
i.e., whether digital ballot images fall within the scope of the Public Records Act
or the federal document-preservation statute.
                                                                   Cause dismissed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, and DEGENARO, JJ., concur.
       FISCHER, J., concurs in judgment only.
       O’DONNELL, J., dissents, with an opinion.
       DEWINE, J., not participating.
                                _________________
       O’DONNELL, J., dissenting.
       {¶ 15} Respectfully, I dissent from the analysis presented in the majority
opinion. Relator, Constance Gadell-Newton, filed a complaint on April 19, 2018,
with respect to the primary election held on May 8, 2018. The complaint seeks two
forms of recovery: one, a judgment from this court declaring that the digital ballot
images are public records; the other, independent of the first claim, an order
compelling respondents to preserve and not destroy all digital ballot images from
the May 8, 2018 primary election.
       {¶ 16} The complaint fails as to each cause of action for different reasons:
the first, asking us to issue a declaratory judgment fails because we lack authority
to do so; the other, seeking an order to preserve the digital images, fails because
Gadell-Newton has delayed in seeking the relief and is guilty of laches.
Accordingly, I would dismiss the request for a declaratory judgment and deny the
claim for preservation of the records.




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                             SUPREME COURT OF OHIO




        {¶ 17} The Ohio Constitution prescribes the jurisdiction of this court.
Article IV, Section 2(B)(1) of the Ohio Constitution states that this court shall have
original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition,
procedendo, any cause on review as may be necessary to its complete
determination, and all matters relating to the practice of law.
        {¶ 18} Nowhere is there authority for this court to issue a declaratory
judgment.     Rather, that authority is the province of trial courts of general
jurisdiction in this state, and we have on numerous occasions stated so and declined
to issue such judgments, see, e.g., State ex rel. Governor v. Taft, 71 Ohio St.3d 1,
2, 640 N.E.2d 1136 (1994); State ex rel. Ministerial Day Care Assn. v. Zelman, 100
Ohio St.3d 347, 2003-Ohio-6447, 800 N.E.2d 21, ¶ 22; State ex rel. Whitehead v.
Sandusky Cty. Bd. of Commrs., 133 Ohio St.3d 561, 2012-Ohio-4837, 979 N.E.2d
1193, ¶ 19.
        {¶ 19} The concept of laches, the negligent delay in presenting a matter to
a court, is often a basis for dismissal of a cause of action. See, e.g., State ex rel.
SuperAmerica Group v. Licking Cty. Bd. of Elections, 80 Ohio St.3d 182, 186-187,
685 N.E.2d 507 (1997); State ex rel. Chillicothe v. Ross Cty. Bd. of Elections, 123
Ohio St.3d 439, 2009-Ohio-5523, 917 N.E.2d 263, ¶ 18-19; State ex rel. Duclos v.
Hamilton Cty. Bd. of Elections, 145 Ohio St.3d 254, 2016-Ohio-367, 48 N.E.3d
543, ¶ 13-14.
        {¶ 20} Here, it is apparent from the complaint that Gadell-Newton knew of
the alleged destruction of digital ballot images long ago: indeed, as the majority
points out, “Gadell-Newton makes clear that the problem, from her perspective, is
that in previous elections, the boards of elections have allowed their employees to
‘destroy all digital ballot images following the election.’ ” Majority opinion at
¶ 11.




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                                January Term, 2018




       {¶ 21} But instead of presenting the matter to the court in a timely manner,
Gadell-Newton delayed until April 19, 2018, just 19 days prior to the election and
has unnecessarily delayed seeking relief.
       {¶ 22} Apart from the analysis offered in the majority opinion as to
prohibitory and mandatory injunctions, the relief Gadell-Newton seeks is precluded
by laches.
                                    Conclusion
       {¶ 23} I would dismiss the request for a declaratory judgment because this
court is without authority to grant such relief, and I would deny relief on the claim
to preserve the digital ballot images on the basis of laches.
                                _________________
       Fitrakis & Gadell-Newton, L.L.C., and Robert J. Fitrakis, for relator.
       Michael DeWine, Attorney General, and Steven T. Voigt and Renata Y.
Staff, Assistant Attorneys General, for respondent Jon Husted.
       Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Timothy A.
Lecklider, Assistant Prosecuting Attorney, for respondent Franklin County Board
of Elections.
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Brendan R. Doyle, Assistant Prosecuting Attorney, for respondent Cuyahoga
County Board of Elections.
                                _________________




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