The State ex rel. Gadell-Newton
Husted et al.
Submitted May 8, 2018
Fitrakis & Gadell-Newton, L.L.C., and Robert J. Fitrakis,
Michael DeWine, Attorney General, and Steven T. Voigt and
Renata Y. Staff, Assistant Attorneys General, for respondent
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.
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 the May 8, 2018 primary election. We
dismiss the complaint for lack of jurisdiction.
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.  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. 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.CtPracR.
12.08(A), the case was automatically expedited because it was
filed within 90 days of the May 8 election.