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State ex rel. Gadell-Newton v. Husted

Supreme Court of Ohio

May 11, 2018

The State ex rel. Gadell-Newton
v.
Husted et al.

          Submitted May 8, 2018

          In Mandamus.

          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.

          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 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. 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.

         II. ...


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