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O [ INAL
BEFORE THE CHIEF JUSTICEOF THE SUPREME COURT OF OHIO
JOSHUA O'FARRELL,
Contestor,
V.
AL LANDIS,
Contestee,
and
TUSCARAWAS COUNTY BOARD OFELECTIONS, et al.,
Respondents.
Case No. 2012-2151
Election Contest Subject to R. C. 3515.08,R. C. 3515.14 and Section 6, Article II,
Ohio Constitution
CONTESTEE AL LANDIS' MEMORANDUM IN OPPOSITION TOCONTESTOR'S AMENDED MOTION TO HAND COUNT CERTAIN BALLOTS
W. Stuart Dornette (0002955)Donald C. Brey (0021965)Beth A. Bryan (0082076)TAFT STETTINIUS & HOLLISTER LLP65 East State Street, Suite 1000Columbus, Ohio 43215-4213Phone: (614) 221-2838Fax: (614) 221-2000E-mail: [email protected]
[email protected]@taftlaw.com
Donald J. McTigue (0022849)Mark A. McGinnis (0076275)J. Corey Colombo (0072398)McTIGUE & McGrlvms LLP545 East Town StreetColumbus, Ohio 43215Phone: (614) 263-7000Fax: (614) 263-7078E-mail:[email protected]
Counsel for Contestor, Joshua O'Farrell
Counsel for Contestee, Al Landis
o/'RN 0 7 Zo,!nl
CLERK OF COURTSUPREME C®URT OF OHIO
Andrew G. Douglas (0000006)CRABBE, BROWN & JAMES LLP500 South Front Street, Suite 1200
Columbus, Ohio 43215-7631Phone: (614) 228-5511Fax: (614) 229-4559E-mail: [email protected]
Robert Richard Stephenson, II (0034616)Assistant Prosecuting AttorneyTuscarawas County125 East High AvenueNew Philadelphia, Ohio 44663Phone: (330) 365-3214E-mail: [email protected]
Stephen Knowling (0030974)Holmes County Prosecuting Attorney164 East Jackson StreetMillersburg, Ohio 44654-1235Phone: (330)[email protected]
Counsel for RespondentHolmes County Board of Elections
Counsel for Respondent,Tuscarawas County Board of Elections
CONTESTEE AL LANDIS' MEMORANDUM IN OPPOSITION TOCONTESTOR'S AMENDED MOTION TO HAND COUNT CERTAIN BALLOTS
Contestor Joshua O'Farrell's Amended Motion for a hand recount of certain ballots
should be rejected because:
1. Contestor is not entitled to his requested relief of a hand recount unless and untilhe first proves and wins a judgment in his favor on his election contest;
2. Contestor has not even alleged - let alone proven beyond dispute - the elementsof the claim in which Contestor seeks a hand recount; and,
3. Contestor's claim to have conducted a partisan hand recount - behind closeddoors and outside the presence of Contestee's counsel - was unlawful and maynot be considered for any purpose.
Contestor's "Amended" Motion for a Hand Recount lacks merit for the same reasons
Contestor's original Motion for a Hand Recount lacks merit. Contestor's Amended Motion does
not even attempt to address the arguments set forth in Contestee's Memorandum in,Opposition to
Contestor's original motion. To ignore those arguments is not to refute them. Contestee
incorporates by reference the arguments made in his December 31, 2012, "Memorandum of
Contestee Al Landis in Opposition to Motion to Hand Count Certain Ballots" as if fully restated
herein.
A. CONTESTOR Is NOT ENTITLED To His REQUESTED RELIEF OF A HAND
RECOUNT UNLESS AND UNTIL HE FIRST PROVES AND WINS A.TUDGMENT IN
HIS FAVOR ON His ELECTION CONTEST.
The first claim of Contestor's Petition herein alleges that the unanimous decision of the
Tuscarawas County Board of Elections to reject Contestor's demand to remake 13 absentee and
provisional ballots was an election irregularity. Petition, pp. 5-8. In Contestor's prayer for relief
on that claim, Contestor seeks authorization to "Conduct a hand recount of the absentee and
provisional ballots" in those 13 precincts. Petition, p. 26, ¶ B. Contestor is asking for an order
1
granting Contestor the very relief he seeks on this claim before he has proven or won judgment
on this claim.
Contestor's request to remake the ballots and subsequent allegation that an election
irregularity occurred is not supported by any evidence. Rather, it is simply based on speculation
that maybe the voting machines might not have counted certain ballots. "Maybe something
might not have happened" certainly does not meet the high standard of clear and convincing
evidence needed to establish an election irregularity. In re Contest of Election Held on Stark
Cty. Issue 6, 132 Ohio St.3d 98, 2012-Ohio-2091, 969 N.E.2d 1172, ¶ 17 ("To prevail in their
election contest, contestors `had to establish by clear and convincing evidence that one or more
election irregularity affected enough votes to change or make uncertain the results ....").
"Sentence First - Verdict Afterwards" is the rule only in Alice in Wonderland.l It is not
the rule in election contests. In election contests, the tribunal with authority to pronounce
judgment2 may, after receiving all evidence and pronouncing judgment, order a recount as part of
that judgment. See, e.g., R.C. 3515.13 and Squire v. Geer, 117 Ohio St.3d 506, 511 (2008).
There is no authority for demanding the relief of a recount before a Contestor has proven his or
her case.
S. CONTESTOR HAS NOT EVEN ALLEGED THE ELEMENTS OF THE CLAIM IN
WHICH CONTESTOR SEEKS A HAND RECOUNT.
Contestor alleges in count one of his petition that it was an election irregularity for the
Tuscarawas County Board of Elections not to remake 13 ballots cherry picked by Contestor. The
two Republicans and two Democrats on the Tuscarawas County Board of Elections reviewed
1 L. Carroll, Alice in Wonderland, Chap XII.2 In the instant action, the tribunal with authority to pronounce judgment is the Ohio Houseof Representatives, per R.C. 3515.14 and Section 6, Article II, Ohio Constitution.
2
each of these ballots and all agreed that the ballots did not need to be remade. See Petition ¶ 24.3
The unanimous decision of the Board makes sense in light of Contestor's own admission that
each of the ballots was successfully scanned by the non-partisan automatic tabulating equipment.
Petition ¶ 23.
At ¶ 17 of his Petition, Contestor quotes R.C. 3506.21(B)(1)'s list of various
circumstances in which a mark on an optical scan ballot can be remade (such as circling the oval
or the candidate's name, or making certain other marks). The fact that a ballot can be remade in
certain instances is not the same as a requirement that a ballot be remade. All indications are that
the machines properly scanned the ballots. Therefore, there is no need for the ballots to be
remade.
Contestor also fails to mention R.C. 3506.21(B)(2), which limits the application of R.C.
3506.21(B)(1), as follows:
"Marks made on an optical scan ballot in accordance with division(B)(1) of this section shall be counted as valid votes only if that
optical scan ballot contains no marks that can be scanned and
electronically read by automatic tabulating equipment." Emphasis
added.
Secretary of State Directive 2012-22, similarly, instructed the Tuscarawas County Board of
Elections that it had authority to remake a ballot only if it is either folded, torn and/or mutilated
or has technical and/or printing deficiencies, or "because the voter marked the entire ballot
contrary to the instructions."
3 That review followed the directions of the Ohio Secretary of State that the Board apply,to these ballots, "the same standard of ballot review ... that has already been employed by the
Board" to all the other ballots in the County. See Secretary of State December 12, 2012 letter,
Exhibit A to Contestee's December 31, 2012, Memorandum in Opposition to Motion for
Recount.
3
When a voter marks an entire ballot contrary to the instructions such that it cannot be
read, the automatic tabulating equipment will not scan the ballot, but will "kick" it out for review
by a bipartisan team at the board of elections. If the ballot is not kicked out, this is because the
voter properly marked at least some of the races on the ballot so they could be read by the
automatic tabulating equipment. A ballot can be remade only if the voter consistently made an
unreadable mark that the Board of Elections determines reflected the voter's intent.
Where some of the races are properly marked and others are not, such that the ballot is
successfully scanned by the machines, R.C. 3506.21(B)(2) and SOS Directive 2012-22 prohibit
the remaking of the ballot. This ensures that, as far as possible, votes are tabulated by non-
partisan objective machines and not by the partisan or subjective judgments of others.
Since the Tuscarawas County Board of Elections had no authority to remake the 13
ballots, there was no "fraud or irregularity" warranting any relief on Contestor's first count, let
alone warranting the award of the relief of a hand recount now, before all of the evidence is in
and the case is tried.
C. CONTESTOR'S CLAIM To HAVE CONDUCTED A PARTISAN HAND RECOUNT -
BEHIND CLOSED DOORS AND OUTSIDE THE PRESENCE OF CONTESTEE'S
COUNSEL - WAS UNLAWFUL AND MAY NOT BE CONSIDERED FOR ANY
PURPOSE.
If, as Contestor asserts, the Tuscarawas County Board of Elections permitted Counsel for
Contestor to conduct a private "hand count" of the provisional and absentee ballots from three
precincts, behind closed doors and without the knowledge, consent or presence of Counsel for
Contestee, such a "hand recount" was unlawful.
R.C. 3515.13 authorizes a recount to be ordered as part of the final relief in an election
contest. But nothing in Ohio law authorizes a County Board of Elections to voluntarily permit a
second recount in the absence of a fmal judgment in an election contest. "Where there has been
4
one recount conducted to the satisfaction of the ballot commissioners, and the ballots have been
resealed and indorsed, the right to demand a further recount by candidates at whose insistence or
in whose presence the one recount has been made ought not to be allowed." State ex rel.
Vandelinde v. McComas, 97 W. Va. 664, 125 S.E. 816 (1924), ¶ 3 of syllabus by the court.
Ohio law specifically mandates the sealing and preservation of ballots until any
recount or election contest concludes. R.C. 3515.04 ("At the time and place fixed for making
a recount, the board of elections, in the presence of all observers who may be in attendance,
shall open the sealed containers containing the ballots to be recounted, and shall recount
them.") (emphasis added); 2004 Ohio Atty. Gen. Op. No. 2004-050 ("Chapter 3515 clearly
indicates the General Assembly's intent that a board of elections maintain the ballots under seal
until any possible recount or election contest is completed") (emphasis added). These specific
rules that apply to the preservation of ballots are very different from other sorts of records. They
are at the heart of the integrity of the election process and must be maintained as such.
Nor are those ballots themselves subject to Rule 34 discovery in an election contest.
There is a specific provision of the Ohio Revised Code that addresses access to ballots during an
election contest, and it sets out specific procedures, to be mandated by the court, for delivery of
the ballots not to the parties, but to the court. R.C. 3515.13 states:
"If any contest of election involves a recount of the ballots in anyprecincts, the court shall immediately order the ballots of theprecincts in which the recount is demanded to be sent to the courtin such manner as the court designates, and such court mayappoint two master commissioners of opposite political parties tosupervise the making of the recount. The attorneys representing thecontestor and the prosecuting attorney of the county or the attorneygeneral or one of the attorney general's assistants representing thecontestee shall be present at all hearings on such recount."
On the morni_ng of December 28, 2012, in response to Contestor's attempt to obtain a
hand recount in the guise of discovery, Counsel for Contestee sent a letter to Counsel for
5
Contestor and for the Tuscarawas County Board of Elections objecting to this means of obtaining
a hand recount. A copy of this letter is attached hereto as Exhibit A. Later on Friday December
28, 2012, in response to Contestee's objections, Contestor filed his original motion for an order
to hand count certain ballots.
On Monday December 31, 2012, Tuscarawas County Board of Elections met and voted
to seek outside legal counsel to represent the Board in this matter. Counsel for Contestee Al
Landis provided copies of the pleadings and correspondence in this case to and had several
telephone conversations with the new counsel for the Tuscarawas Board of Elections about
Contestor's desire and Contestee's objection to Contestor's proposal to review certain ballots to
conduct a private hand recount. Counsel for Contestee were led to believe that the Tuscarawas
Board of Elections would not permit inspection of the ballots or any sort of hand recount unless
and until the Chief Justice ruled upon the pending motion before her regarding that issue.
Thus, Counsel for Contestee were quite surprised to learn, after the fact, that on
Wednesday morning, January 2, 2012, Contestor was permitted to conduct his own hand count
of three of the 13 precincts. Counsel for Contestee were not present, and received no notification
or telephone calls from Counsel for the Tuscarawas County Board of Elections about this until
this alleged hand recount was afait accompli.
It should come as no surprise that the hand tally of counsel for Contestor favors his client.
But Contestor had no authority to conduct and the Tuscarawas County Board of Elections had no
authority to authorize an unsupervised and impermissible recount during a pending election
contest. Contestor's Amended Motion states at page 1:
"The undersigned counsel for Contestor kept a hand tally of the
votes on those ballots for Contestor and Contestee as he inspectedthe ballots. He then compared the totals for each of the two
candidates in each precinct with the results reported by the Board
6
of Elections for provisional ballots counted in each of thoseprecincts. The results were confirmed in precincts 30 and 34."
Emphasis added.
In keeping a "hand tally" of votes, comparing the totals with previous results, and
allegedly "confirm[ing]" voting results, Contestor usurped the function of the Tuscarawas
County Board of Elections and this Court by personally conducting a recount. Contestor has no
right or ability to recount ballots and "confirm" election results. See R.C. 3515.04 ("At the time
and place fixed for making a recount, the board of elections, in the presence of all observers who
may be in attendance, shall open the sealed containers containing the ballots to be recounted,
and shall recount them") (emphasis added); see also R.C. 3515.13 ("If any contest of election
involves a recount of the ballots in any precincts, the court shall immediately order the ballots of
the precincts in which the recount is demanded to be sent to the court in such manner as the
court designates [. . . ]") (emphasis added).4
Contestor's alleged private recount was also procedurally defective under Ohio's
election laws, which exist to specifically handle recounts and election contests, and which must
be strictly followed. Moss v. Bush, 104 Ohio St.3d 1429, 819 N.E.2d 711, 711 (2004) ("Election
laws are mandatory and require strict compliance") (citing State ex rel. Steele v. Morrissey, 102
Ohio St.3d 355, 815 N.E.2d 1107 (2004)).
Contestor improperly assumed the role created for impartial master commissioners. See
R.C. 3515.13 ("[...] such court may appoint two master commissioners of opposite political
parties to supervise the making of the recount"). Instead of ensuring fairness by having the
recount supervised by members of opposite political parties, just as is required for the initial
4 As noted above, the Ohio House of Representatives acts as the court for purposes ofrendering judgment in the instant election contest. Regardless, Ohio law clearly does not grant a
party to an election contest with such authority.
7
recount, R.C. 3515.04, Contestor conducted an unashamedly partisan recount outside the
presence of any representative of Contestee.
Permitting Contestor to conduct a private recount of three precincts, without proper
notice to Contestee, makes it inappropriate for Contestor's claimed findings in that private
recount to be relied upon for any purpose. R.C. 3515.13 requires that in any proper recount,
"Both the contestor and contestee may appoint one observer who shall be allowed to see all
ballots and tally sheets and observe the recount." (emphasis added). Without being present to
observe the January 2, 2013 private inspection, Contestee cannot verify or refute the findings
Contestor claims to have made.
This is precisely the sort of partisan secret recount that Ohio's laws are designed to
prevent. See, e.g., State ex rel. Byrd v. Board of Elections of Summit County, 65 Ohio St.2d
40,46, 417 N.E.2d 1375, 1379 (1981) ("It is necessary that any such election laws be reasonable,
impartial and uniform in their application in order to be constitutional"). Allowing a party to an
election contest to personally and privately conduct a recount usurps the Court's function,
represents a dangerous precedent, and invites partisan machinations during future recounts and
election contests. Yet, Contestor asks this court to rely upon his private findings at his personal
recount as the principal basis for ordering a full recount of the absentee and provisional ballots
from all but two of the 13 precincts handpicked by Contestor.
Since Contestor's January 2, 2013 private inspection was partisan, unreliable and violated
Ohio law, his alleged findings from the inspection and recount cannot form the basis of the
requested relief in his Amended Motion. None of the allegations or statements contained within
the Amended Motion should be considered by this Court in ruling on Contestor's initial Motion.
8
WHEREFORE, for the foregoing reasons and for the reasons contained in Contestee's
December 31, 2012, Memorandum in Opposition to Contestor's original motion, the Court
should deny Contestor's Amended Motion.
Res ectfully submitted,
W. Stuart Dornette (0002955)Donald C. Brey (0021965)Beth A. Bryan (0082076)Taft Stettinius & Hollister LLP65 East State Street, Suite 1000Columbus, Ohio 43215-4213Phone: (614) 221-2838Fax: (614) 221-2000E-mail: [email protected]
[email protected]@taftlaw.com
Counsel for Contestee, Al Landis
9
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct of copy of the foregoing was
served this 7th day of January, 2013 on the following by e-mail:
Donald J. McTigueCounsel for [email protected]
Andrew G. DouglasCounsel for Tuscarawas County Board of [email protected]
Robert StephensonCounsel for Tuscarawas County Board of [email protected]
Steve KnowlingCounsel for Holmes County Board of [email protected]
C. Brey
10
_;.^ . . . ,. .^ ..... .... ... ... . ... _.^5 . ... .. .. . .._ . . . _ . ^. ... .
VV. UA^ :r 7f3i<NE i l'E
:e'i -;.67.Sv5 3
d arr. tta:lwtaft?a rv : crn
December 28, 2012
Robert Richard Stephenson, iii:'ros^cut'ing Attomey's OfficeTuscarawas County125 East Higi^ AvenueNew Philadelpi'iias OH 44663
Re: Seburity of Baliots Fn TuscaratNas ^ounty
Dear Bob:
I write regarding two matters -- :°^ , ,-. qaesi for p, _ c ction of documents that wc-received last evening directed to the Tuscarawas County Board of Elections and whatwe understand to have been an earlier request made by Donald McTigue, coutisei forthe Contestor in the election contest before the Ohio Supreme Court involving the 98House District "to inspect the paper ballots in 13 precincts ... [on] Jan 2 aL 8:30 a,m.a3As we understand them, both items request that the ballots, irom some dc-signat¢dprecincts, be taken from the Board of Elections, removed from their sealed containers,and produced as evidence in this election contest. Such a procedure is directly contraryto Ohio law and, on behaIl' of the Contestee, we demand that the Board of Elections ofTuscarawas County not permit it to haDpeti.
Ohio law specifically mandates the sealing and ,- : ^,:^ervatior; of ballcsis until anyrecount or eiection contest cortc;udes, Ohio Rev. Code § 3515.04 ("At the tirr:e andplace fixed for making a recount, the board of elections, in the presence of all observerswho may be in attendance, shail open the sealed containers containing the ballotsto be ^^cotini;ed, and shall recount them.") (emphasis added); 2004 Ohio Atiy. Gen.Op. No. 2004-050 ("Chapter 3515 clearly indicates the Gant~ra} Assembly's intent that aboard of elections maintain the baiiots under sea[ ur€Ei( any possible recount or :: . `Oncontest i:s comp;eted°') (ernphasis added).
These specific rules that apply to the preservation of ballots are very differentfrom other sorts of records. They are at the heart of the integrity of the election processand mus^ be maintained as such.
Nor are those ballots themselves subject to Ruie 34 discovery * in an election^^n'Lesi. There is a specific provision of the Ohio Revised Code 'ti•;at addresses access
5:3220 ' u4. `tEXHIBIT
A
Robert Stephenson, IfD.,eember 28, 2012
^
to b^^^^t^^ an election contest, and it sets out s-scifiC procedures, to be €^^^^^^t-odby the court, ':)r delivery of the ba€€ots not to the pan i:as, but to the court:
If any contest of election involves a recount of the ba€iots in^^iy precincts, t}^^ courL shai€ immediately order the ballots ofthe precincts in which the recount is demanded A'o be sentto the ^^^irt in such manner as the court designates, andsuch court may apcoin'. tvvo masfer commissioners ofopposite political parties to supervise the making of therecount. The attorneys representing the contestor and theprosecuting attorriey of the county or the attorney general oro;,ti of the afitor^ey gener,-€'F a:.:xsistants representing the
shall be present _,. F-, hearings ot^ such recouni,
Ohio Rev, Code §3515.13 (emphasis added)
Here, we do not have the circumstances ^^^'t would warrant the ^urt-designatedr^court. There is nothing in the complaint that challenges the recount that wasundertaken by the Boards of Elections in Holmes or Tuscarawas Counties. Nor has"there been a deLerrniriatiorz ^^ ^ ^^utL to invoke the recount process set out in 3515. 13,Squire v. Geer, 117 O:hio St.3d 506, 511, 885 ME2d 213, 219 (2008) ("R.C. 3515A3leaves it withix^ the court's discretion to order a courf-s^^ervisec^ recount"). As matterscurrently st.arid, this is not a contest involving a recount. And, aside from §351:. ; 3,there is no basis for- removing ballots from the control of the Board ofElections.
Finally, the reques'L. for production of bal€ots - and the proposed production ofballots for hand counting -- both run afoul of Ohio Rev. Code §3515.04:
Ballots shall be handled only by the members of the board orby the director ^^othe,: employees of the boarc. Observersshall be permitted to see the ballots, but "Lhey shall not bepermitted to touch them.
Even when a recount is ordered as ^ai-t of an election contest, the sarn^ principleapplies:
Both the contestor and contestee may appoint one observerwho sha€I be a€(owed to sea all ballots and tally sheets andobserve the recount.
Ohio Rev. Code ^3513.13 (emphasis added)
Nothing in Ohio law con°tempiaies the production of ballots to any private litigant.
;:a2:;>1;.34. :
Rober" ^:tephenson, ItDecer . r ?8, 20`^2Page 3
Please confirm as soon as possible today that the Tuscarawas County Board' ofElections will not allow this unwarranted and unprecedented access to ballots.
V^ y tr€.€iy yours,
1A
"z"^jar, Dor, -atteWSD:sv
cc: Donald J. McTigueSteve KnowlingJack ChriistopherDonald C. Brey
i
13220134.1
