SUBMISSION OF EVIDENCESubodh Chandra (0069233) The Chandra Law Firm, LLC 1265 W. 6th Street, Suite...

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6uprenYe (Court of

STATE EX REL.JOHN W. PAINTER, ET AL.,

Relators, Case Number 2010-2205

JENNIFER BRUNNER,OHIO SECRETARY OF STATE,ET AL.

Respondent.

Original Action in Mandamus andProhibition

RESPONDENT OHIO SECRETARY OF STATE JENNIFER BRUNNER'SSUBMISSION OF EVIDENCE

R. Joseph Parker (0018069)W. Stuart Dornette (0002955)John B. Nalbandian (0073033)Taft, Stettinius & Hollister LLP1800 US Bank Tower425 Walnut StreetCincinnati, Ohio 45202Tel: (513) [email protected]@[email protected]

Attorneys for Relators

Jennifer L. Branch (0038893)Alphonse A. Gerhardstein (0032053)Gerhardstein & Branch Co., LPA432 Walnut Street, Suite 400Cincinnati, Ohio [email protected]@gbfirm.com

Attorneys for Intervenor-RespondentTracie Hunter

RICHARD CORDRAY (0038034)Ohio Attorney General

Richard N. Coglianese (0066830)*Counsel ofRecord

Erick D. Gale (0075723)Michael J. Schuler (0082390)Assistant Attorneys GeneralConstitutional Offices Section30 East Broad Street, 16u' FloorColumbus, Ohio 43215(614) 466-2872(614) 728-7592 (fax)[email protected]@ohioattorneygeneral.govmichael. schuler@ohioattorneygeneral. gov

Attorneys for RespondentOhio Secretary of State Jennifer Brunner

'ianl 8^ ^f11fi

CLERK OF COURTSUPREME COURT OF OHIO

Joseph T. Deters (0012084)David Stevenson (0030014)Thomas E. Grossmann (0017965)James W. Harper (0009872)Colleen Marie McCafferty (0079858)Hamilton County Prosecutor's Office230 E. Ninth Street, Suite 4000Cincinnati, Ohio 45202-2 1 5 1Tel: (513) [email protected]. [email protected]@[email protected]@hcpros.org

Attorneys for Respondent Board of Elections,Hamilton County, Ohio

Caroline H. Gentry (0066138)Sheena L. Little (0083617)Porter, Wright, Morris & Arthur, LLPOne South Main Street, Suite 1600Dayton, Ohio 45402Tel: (937) [email protected]@porterwright.com

Subodh Chandra (0069233)The Chandra Law Firm, LLC1265 W. 6th Street, Suite 400Cleveland, Ohio 44113-1326Tel: (216) [email protected]

Attorneys for Intervenor-Respondent NortheastOhio Coalition for the Homeless

Donald J. McTigue (0022849)Mark McGinnis (0076275)McTigue Law Group550 East Walnut StreetColumbus, OH 43215Tel: (614) [email protected]@rrohio.com

Attorneys for Intervenor-RespondentOhio Democratic Party

Anne Marie Sferra (0030855)Bricker & Eckler100 S Third StreetColumbus, OH 43215-4291Tel: (614) [email protected]

Attorney for Ohio Republican Party

SUBMISSION OF EVIDENCE

Pursuant to S. Ct. Prac. R. X, Section 7, Respondent Ohio Secretary of State Jennifer

Brunner submits the following evidence in support of her arguments in this case:

Exhibit 1: Consent Decree, The Northeast Ohio Coalition for the Homeless, et al. v.Jennifer Brunner, Secretary of State, Case No. C2-06-896, U.S. District Courtfor the Southern District of Ohio, April 19, 2010.

Exhibit 2: Secretary of State Directive 2010-74

Exhibit 3: Order Granting in Part Plaintiff's Motion for a Preliminary Injunction, Tracie

Hunter v, Hamilton County Board of Elections, et al., Case No. 10-cv-00820,U.S. District Court for the Southern District of Ohio, November 22, 2010.

Exhibit 4: Verified Complaint for Temporary Restraining Order and Declaratory and

Injunctive Relief, Tracie Hunter v. Hamilton County Board ofElections, et

al., Case No. 10-cv-00820, U.S. District Court for the Southern District of

Ohio, November 21. 2010.

Exhibit 5: John Williams Campaign Motion to Intervene, Tracie Hunter v. Hamilton

County Board of Elections, et al., Case No. 10-cv-00820, U.S. District Courtfor the Southern District of Ohio, November 22, 2010.

Exhibit 6: John Williams Notice of Appeal, Tracie Hunter v. Hamilton County Board of

Elections, et al., Case No. 10-cv-00820, U.S. District Court for the SouthernDistrict of Ohio, November 23, 2010.

Exhibit 7: Order, Tracie Hunter et al. v. Hamilton County Board of Elections, et al.,Case No. 10-448 1, United States Court of Appeals for the Sixth Circuit,December 1, 2010.


Exhibit 9: Secretary of State Advisory 2010-08


Exhibit 11: Affidavit of Brian Shinn

Shinn Exhibit A: Email from Sally Krisel, Director of Hamilton CountyBoard of Elections, to Brain Shinn and Oyango Snell datedDecember 13, 2010.

Shinn Exhibit B: Letter attached to Exhibit A from Hamilton County Boardof Elections to Secretary of State, dated December 13, 2010

Shinn Exhibit C: Email from Krisel to Shinn requesting phone call, datedDecember 20, 2010.

Shinn Exhibit D: Email from Krisel to Shinn requesting waiver, datedDecember 20, 2010, 10:39 a.m.

Shinn Exhibit E: Email from Shinn to Krisel, notifying her that waiver hadbeen granted, dated December 20, 2010, 11:19 a.m.

Respectfully submitted,

RICHARD CORDRAY (0038034)Ohio Attorney General

F

chard N. Coglianese (0066830)*Counsel of Recordn^^v T' 0=°1. in0'7s7')1^

Michael J. Schuler (0082390)Assistant Attorneys GeneralConstitutional Offices Section30 East Broad Street, 16th FloorColumbus, Ohio 43215(614) 466-2872(614) 728-7592 (fax)richard:coglianese@ohioattorneygeneral. goverick. gale@ohioattorneygeneral. [email protected]

Attorneys for RespondentOhio Secretary of State Jennifer Brunner

Case: 2:06-cv-00896-ALM -TPK Doc #: 210 Filed: 04/19/10 Page: 1 of 6 PAGEID #: 4970

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

THE NORTHEAST OHIO COALITIONFOR THE HOMELESS, et al.,

Plaintiffs,

Case No. C2-06-896

Judge Algenon Marbley

vs.

JENNIFER BRUNNER, in her officialcapacity as Secretary of State of Ohio,

Defendant.

STATE OF OHIO

Intervenor-Defendant

CONSENT DECREE

Plaintiffs Northeast Ohio Coalition for the Homeless ("NEOCH"), the ColumbusCoalition for the Homeless ("CCH"),(the "Coalitions"), Kyle Wangler ("the IndividualPlaintiff') and the Service Employees International Union, Local 1199 ("SEIU") havebrought this action against Defendant Secretary of State and Intervenor-Defendant Stateof Ohio (collectively "Defendants"). In addition, Plaintiff-Intervenor Ohio DemocraticParty has filed a Complaint in this action against the Defendants with respect toprovisional ballot issues.

Plaintiffs have alleged that the Individual Plaintiff and some of the Coalitions'. embers lack the identification reouired by the Ohio Voter ID laws to cast a regular--- - --- -- - - - _ballot on Election Day and, further, that the Ohio Provisional Ballot Laws have been andwill be applied differently and unequally by Ohio's 88 Boards of Elections. Plaintiffsallege that they are therefore deprived of the equal protecdon of the laws and due process.Plaintiffs have further alleged that the Ohio Voter ID Laws impose an unlawful poll taxbecause the State of Ohio does not provide free State of Ohio identification cards andbecause homeless voters are unable to provide other acceptable forms of identificationsince such identification must contain proof of a current address.

The Court granted in part and denied in part the Defendants' motion to dismissthe claims in Plaintiffs' initial Complaint. The remaining claims in that Complaint, aswell as the new claims in the Supplemental Complaint, are brought solely under federallaw, namely, under the Equal Protection and Due Process Clauses of the FourteenthAmendment and the Twenty-Fourth Amendment to the United States Constitution.

State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 1, p. 1


The parties, desiring that this action be settled by an appropriate Consent Decree("Decree") and without the burden of protracted litigation, agree to the jurisdiction of thisCourt over the parties and the subject matter of this action. Subject to this Court'sapproval of this Decree, and subject to the continuing validity of this Decree if it or itsterms are challenged in any other coutt, the parties waive a hearing and findings of factand conclusions of law on all issues, and finther agree to the entry of this Decree as finaland binding among and between themselves as to the issues raised in the Plaintiffs'Complaint and Supplemental Complaint, and the matters resolved in this Decree.

This Decree, being entered with the consent of the parties, shall in no wayconstitute an adjudication or finding on the merits of Case No. 2:06-CV-896, nor beconstrued as an admission by the Defendants of any wrongdoing or violation of anyapplicable federal or state law or regulation.

In resolution of this action, the parties hereby AGREE to, and the Court expresslyAPPROVES, ENTERS and ORDERS, the following:

PURPOSES OF THIS DECREE

The purposes of this Decree are to ensure that:

a. The fundamental right to vote is fiully protected for registered andqualified voters who lack the identification required by the Ohio Voter IDLaws, including indigent and homeless voters-such as the IndividualPlaintiffs and certain members of the Coalitions-who do not have acurrent address and cannot readily purchase a State of Ohio ID Card;

b. These voters are not required to purchase identification as a condition toexercising their fundamental right to vote and have their vote be counted;

c. The legal votes cast by these voters will be counted even if they are castby provisional ballot on Election Day;

_,d. 1^hesevoters will not be deprived oi their fundaiicTitaaiiWaL w ra^c

because of differing interpretations and applications of the ProvisionalBallot Laws by Ohio's 88 Boards of Elections;

e. These voters will not be deprived of their fundamental right to votebecause of failures by poll workers to follow Ohio law. For purposes ofthis Decree poll worker error will not be presumed, but must bedemonstrated through evidence; and

f. All legal votes that are cast by indigent and homeless voters on ElectionDay will be counted.

State ex rel.Fainter, et al., v. Brunner, et al. Respondent's Merit Brief

Case No. 2010-2205 Ex. 1, p. 2


U. PARTIES BOUND BY DECREE.

2. This Order shall be binding upon the Defendants and their employees, agents andrepresentatives. The Secretary of State will issue Directives to the Boards ofElections to follow this Decree, and will use her best efforts to enforce the Decreeand all related Directives if put on notice of any alleged violations.

3. The parties recognize that Ardcle VI, Clause 2 of the United States Constitutionprovides that "[t]his Constitution, and the Laws of the United States which shallbe made in Pursuance thereof; ... shall be the supreme Law of the Land; and theJudges in every State shall be bound thereby, any Thing in the Constitution orLaws of any State to the Contrary notwithstanding."

III. GENERAL INJUNCTIVE RELIEF.

4. The Court ADOPTS and annexes hereafter Directive 2008-80 as an Order of thisCourt.

5. Defendant Secretary of State, her agents, employees and representatives willinstruct Ohio's county Boards of Elections to adhere to the following rulesregarding the casting and counting of provisional ballots for persons withoutidentification other than a social security number:

a. Boards of Elections must count the provisional ballot cast by a voter usingonly the last four digits of his or her social security number asidentification if all of the following conditions are met:

i. The individual who cast the provisional ballot is registered to vote;

ii. The individual is eligible to cast a ballot in the precinct and for theelection in which the individual cast the-pru-visional-ballot;

iii. The provisional ballot affirmation includes a statement that the..,7:.,:.1...,1 :..o.,:^in«o.i 4n vnfa in tha nraninrtt in wtliniltilBiawarauuwa i°i .vbmw.w ... .............. p.__...-.- ..___

provisional ballot was cast and a statement that the individual iseligible to vote in the election in which the provisional ballot wascast;

iv. The individual's name and signature appear in the correct place onthe provisional ballot affirmation form, unless the voter declined toexecute the affirmation and the poll workers complied with theirstatutory duties under R.C. 3505.182 and R.C. 3505.181(B)(6)when a voter declines to execute the affirmation;

v. The signature of the voter substantially confonns to the signaturecontained in the Board of Election's records for that voter;



vi. The provisional ballot affinnation includes the last four digits ofthat voter's social security number, which is not found to beinvalid;

vii. The individual's right to vote was not successfully challenged;

viii. The individual did not already cast a ballot for the election inwhich the individual cast the provisional ballot; and

ix. Pursuant to R.C. 3505.183(B)(2), the Board of Electionsdetermines that, in addition to the information included on theaffirmation, there is no additional information for determiningballot validity provided by the provisional voter or to the Board ofElections during the ten days after the day of the election that castsdoubt on the validity of the ballot or the individual's eligibility tovota:

b. 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 asidentification, for any of the following reasons:

i. The voter provided the last four digits of a Social Security Numberbut did not provide a current driver's license, state issuedidentification, or other document which serves as identificationunder Ohio law;

ii. The voter did not provide a date of birth;

iii. The voter did not provide an address that is tied to a house,apartment or other dwelling provided that the voter indicated thathe or she resides at a non-building location, including but notlimited to a street corner, alley or highway overpass located in theprecinct in which the voter seeks to cast a ballot and that the non-,__ouarwng tvcauuu yuatams as u.cutider R.C. 3503.02;

iv. The voter indicated that he or she is homeless;

v. The voter cast his or her provisional ballot in the wrong precinct,but in the correct polling place, for reasons attributable to pollworker error;

vi. The voter did not complete or properly complete and/or sign theprovisional ballot application for reasons attributable to pollworker en•or; or

vii. The poll worker did not complete or properly complete and/or signthe provisional ballot application witness line and/or the



provisional ballot affirmation form, except for reasons permittedby the governing statutes.

c. Boards of Elections must observe the following rules regarding thedelegation of processing provisional ballots, and determining theirvalidity, to board staff:

i. Ultimately, the members of Boards of Elections must determinethe validity of all votes cast in an election and must certify theresults of all elections. However, nothing in Ohio law requires thatthe members of a Board of Elections must personally complete alltasks associated with preparing for that certification.

ii. Thus, Boards of Elections may, under a policy adopted by theBoard, delegate the processing and some aspects of countingprovisional ballots to board staff. Such processing must be done inbipartisan teams.

iii. If a Board of Elections delegates the processing of provisionalballots, it must first adopt a policy setting forth procedures for theprocessing of provisional ballots. Under that policy, board staffresponsible for processing provisional ballots must make arecommendation to the Board as to the eligibility of eachprovisional ballot cast in the county, either on an individual basis,or as to groups or categories of similarly situated provisionalballots.

iv. Ultimately, the members of Board of Elections must determine theeligibility or ineligibility of all provisional ballots cast within thecounty in accordance with Ohio law. Boards may not delegate thistask.

v. Each Board of Elections must then cause the ballots to be countedby board staff, and must include the tabulation of that count in itsofficial canvass of the election results and, to the extent required,its certification of the election results to the Secretary of State.

IV. IMPLEMENTATION.

6. Defendant Secretary of State shall issue a Directive to all Boards of Elections thatsets forth the text of the injunctive relief described above.

7. Before every primary and general election, Defendant Secretary of State shallremind Boards of Elections that they must comply with the injunctive reliefdescribed above and shall distribute the text of the injunctive relief to all BoardMembers, Directors and Deputy Directors.



8. In every location where provisional ballots are processed after an election, Boardsof Elections shall post a noNce in a conspicuous place that contains the text of theinjunctive relief described above in large, capitalized and bolded type.

V. CONTINUING VALIDITY.

9. This Decree shall remain in effect until June 30,2013.

10. If the State of Ohio repeals or amends any portion of the Ohio Voter ID Laws orProvisional Ballot Laws that are identified in the Complaint, Defendant Secretaryof State shall file a notice with the Court within 30 days of passage of the lawregarding such changes. Those changes in Ohio law will supersede this consentdecree and this decree will be automatically amended by operation of law toinclude those statutory changes.

11. Any of the parties may file a motion with the Court to modify, extend or terminatethis Decree for good cause shown.

VI. MISCELLANEOUS PROVISIONS.

12. Within sixty (60) days after entry of this Decree, Defendant Secretary of Stateshall pay to counsel for Plaintiffs the attotneys' fees that were previously awardedby this Court, as follows: $321,942.15.51 to Porter Wright Morris & Arthur LLP,$99,722.58 to Carlile Patchen & Murphy LLP, and $82,749.38 to The ChandraLaw Finn, LLC.


Case: 2:06-cv-00896-ALM -TPK Doc #: 210-1 Filed: 04/19/10 Page: 1 of 7 PAGEID #: 4976

VoYer Tden4fica'don:

QkîRO SEC 'a" 4fr AYE

4ha appears at a polling place to v

11^ ^ CffVE ztro&-8oSeptember 5, 2008

This directive is intended to eliiciEy C3hici'a voter ideritification reqtiiremetboards of electicins, Qhin election officials and poll wcrrkers in Clhio. 'rhSeci3e;n i. of Dirceth>e 2007-06.

aroeteve.20o8

by ()hicr'snmersetlcs

cl%n tlais clirectiva in itside, tvhich is lprcn?irletlês rxiusst bE grtsvitltcl• ACaiCfilannH kfi bk3'e7r[}.9

$t5rig atttkYYi^ aC.

R. An crrigtna3 or copy of a cu!rcerrY erthe-r govrt7. xS7F7. original {3P ^. ^ :k):

6. P,i:n rktvi5. An,

4. An rrri ; vr COg, His tce tter mfl

t3hio or tite *..a. His or lier currma "d vaUd photo i'

tess and prouidc proof of the viri

x, His or:her caurtent and va1id Ohio d'.e'

^^êft Wtum.,'mm

i $#xOAf15TRG?i$1

herfcation t

on Day iticlude:

d the instrur tih Wa encorpoN sseqons and its Bo71'tNmrlwr Qui



t7ir 20g$ o Voter ldentifiantfvn Rec

(PItYMt ?;n Ohio driver's license or Ohio issued phatu identiinot contain the voter's address appeariztg in the records af thepoll worker mttat record the l-ast 4 digits of Che vater's driver'pollilzg place records as instructed by tbe board o£ elections. Also, b

eneral election, pursuant to tirn. Sub. H.B. 562, rrtilitaty

e

carcl may be used that doesof elections. In such case, a; qr qhio ID card nusubez° inginn.ing with the Novembor

it the name or address of the voter offering the miTitary IT# as itwill no longer have to

must, haiveuer, be able to ascerta'stt tha4 the pers.ott isfi'ering the militaryfcatirih,;poll workers

the persan he or she purports to be and has the quaifficatious to vote'in the e

eleetor appearttig on an Flection Day to vote in perprovide, any of the acceptable forms of proof of identity ouprovisional ballot pursuant to R.C. 3506.x8t.. A discussionappears in Direetive 2ao8-8r.

; identifiz atiozt is,questitin;}

ils•or refus

Please see addendum No. s to this directive. That adden.dum is aflotv chart thatpoll workers may use to ass°ist them in cieter"mitr,%r[g whether a particuir voterhas provided sufficient iden.tifcatfon to vote a regutar ballot or must vote aprmriszvrrtttl brstlot. Four copies of this aaTd+ertdu•m must be rnctuded in thepreca,n.e't/paltireg location kit,far• ETectiortDay.

Any qualified Ohio etector whose current voting residence address is the address appearing it1the records of the board of elections for that voter may request an abseti.t voter's ballot withoutslating areason. A detailed discussion of absentee voting appears in ]7ireetive 2008-$2.

The Ohio General Assembly has impletnented sotnewhat different and perbaps more sfniplifiedvoter ID requirements for abseaitee voting (whether by anail or in persoit) than for Eleetion. Day

.,_ . . a ^a,, m. ,..,.. `" • ^ `a "'^,.^^°w+^+VV{ll6jj. 1NJ^Sd1116C VUG15'Q1iY lOqtLfleU tlJpiVviUC 1i9.L14 Cvvv4vlOUlLt.t Ynix}i^.a ua. utc vVF3aL^, y` uu

Arst, all absentee voters must provide IT} at the tx'me they apply for their absuntee baTloCs:Secqnd, a11 absenteevoters must also provide IT3 at khe time they-vote artd return their absen.teeba11o1^;;

eris not required to provido identirAl forms of ra:qttivetl i73 atbottz po'irtt:above us long as both fotms of ID provided are acceptable forms of ID as enurneraked below. Thefoxms of Il3 that may be used by an absentee voter include:

i. His or her O1Lia dri^ver's ls. The lastfcrur digits of his or her 9ociatSecwri.ty numtrer; or3. Arcopy ofhis or her current and valid Ohio ci iver's lieense; or.i.. A copy ofh'fs or her photo itl.cn 'trf'icatron eard issuec'i by the State of Ohio or

the TTxlited States goveinmen.t; orcopy of his or her a military icleattifScation; ori origitral or copy of a at3lity hill, or



Dir zoo8-8i Voter^ldenti

Deginningwith tlle Ncavemkter 2008 general election; pvrsuu}t to Arn. Sub. H.B. 562,ID's wvill n.o longer have to contaiin the narne or acldress of the Nvter ofPering the milita?y

IC7 as ideiititication, poll wotkers must, hnwever; be:able to ascsrxtain thatthe person offering themilitary TD as identification is the person he or shepurports ta he arnd has the qualifreations tovote in the eleeLinn in question.)

If an elector or v<iter who desires to vote absentee provides the identification infornicontained in numbers a. or 2 above, he or shc is not required also to prervid.e any ofidentii'tGation docutnentation descri.becl in numbers 3 through to above:

LatIItgto Voter

Am. Sub. H'.& g did not define manw of the terms used in the voter kD tecluirements corin that law. To ensure un.ifornt applicati:on of thime requirements tlirougho2it Ohio, atny authority under ILC. 3501.05, the following terms are de#ined, as used in relation toID:

"Current" means the document vva's issued on a ciateuithin one year iininecliately prececling thedate of the election at which the voter seelts to wote; or has on it an expiration date whieh has notpassed as af thedate of the eleetlon in which t}re voter seelts tr

+C^.rrttarmrr the purposes of veri.fying the identi,ty of the voter by Xiame, "cnnform" means that the

document shall contain the same iast name and the same first name or derivative of the firstname as the fiNt and last names appearing in the poll list or signature poll boolC. Whename or initial can be matehed, the election official or poll worker shotild also verify tiarne or iimititrl. Minor misspellings shall not pree}itde the use of a proffered ID tor purpi

'ine t'kie identity of the voter by retLdreithe frim7 and content ot the adel3'ess cint af the address appearing in the

Photo iele»:tifi,catiirxn

R.C. 3501.oi(AA) defines "photo identification" and reqtii

State ex rel. Painter, et al., v. Brunner, et al.Case No. 2010-2205

n" does not rneazt anably be deterxniDnatnre pirll book.

'ollowving;

Respondent's Merit BriefEx. 1, p. 9


Rir QnoB,,gn Voter Pdentifiaatiati Reuuirements oaze m ai`7

The phrito identitieatioti has beexi issued by ptther tlie governmeiit of th.e U

av.w;e,his or hor mititary Tl) or 2tys ar Ixet° 0hics drivc^r s lreense or Ii) eprde two envceptions4 izawever.No'acitelr eha11 be cictYrieci a regn.iiar batlot sotely

o The photo identification shows the current sal.dress of tlu itzdi5idual to whom it wasissiied, which shall Gortform to the address iit the poll list,or sigxi2ttue poll laook There

and the photograph appears to be the person who has presented the phato ID.

+ The photo identification includes an expirataon date that ]zas not passed.

• The photo identification shows the name of the fnttividuul to whnm it waswhich shall confarrn to the name in the poll list or sii;nat.ure poll book for thepresenting the photo ID.

4 The photo identiflcatiozi shows a photttgraph of the individual to whoiii ithtries are not aecepta.ble torrns of ident'itieation.

r the State of Ohio. Drivers' licenses and photo I1J cards, trom otner states or

does rFUt provide his or 1tr ettrreiit atlclx'e."rs, :or the address ort his or hert.?Itio driwr's license or 3(iC► card does ancst mateYe that in the pcril lfst orsignature pdIT 1icw1€; Note, in this case, the prill worker nxust aecept one of these fot'nisof photo ID to allow the individual to vote, but must record the last four digits of adrive'r's 1'xcense or state II) mimber if the attdress on the 11) doe,s not matt:b the adtlressfor the voter appearing in the poll list or signature pol] botrk.

Please note that there ai*e two numbers on an Cthici,driver'9 licertSe. Thenumber is the nt,imber located on the left flauicf si<te of the II7 under the phxase "LICENSENC)." The correct izuml^er arstiially begins with letters. Iu clsntrast, tlhe mimber tocated abovethe pietrire on an t3hio driver's licea.iae number is not the driuer's liceme nuxnber and eannot beused to veszfy the identity of a voter,

absentee voter iCrrtzvztles the number ahcrw iiisr's license number, the board must notily tne votor ot s

ng, within two business days of repeiving the application or vfied must be permitted to appear in person at the off"icc of the bc

inPormatioit, rn the case of a i*eturned a'bsent voter's ballot, the voter shall have until the tday after the election to provide this infc nnation to enable liiS or her ballot to be counted.

The Getieral. Assembly has not defined "Military identification;" Generally speaking, anacceptable M3litnry ID is an ide`ntifieation card issued by thc United States Department ofAefensetci:

; duty member of any branch o€the tTiuted States Arhi.ed p'orces (Air Force,'ast Guard, National Gvard, Iteserves, Joint Stiivices, lkiarinesrt or Nawy);:

a

.

m

.

A member of a reserve m.ilitary unit;

A retired militaiy persannel;

A dependent of a military personnel;

An ROTC stttdent; or

8ome civvillan governm.ent employe

The Il3 presented must allow the election official to whom it is presented to verify that thepersoti paesenting the IL1 is the person whom they purport to be, and thus, to verify that the



person prasep:e eutet3:.

D has the q,,uataftccttions to v

DD FoM 2 (sx& as DCtSB ibtat ix1

AE1 CACr; look very similar; the slight variations in the ftstatus in the niilitary and are not at issue for the purpose

g)t have:t

DD Form 2 and Dl3 Form i1.73 identification cards are veiy differexit in appearance from theCACs; and tlz.ere are several versions of each cat t3 that may look very diffirent from atie anod?mExamples of the various forms of CACs, DD Ferrre as, axtd 17It Form tzry3s areincluded in.,A,dclencivm No. 2 to this dirr"ve.

n,d

Dis

icl nn the ID hoider`s

embers o£ eYte f.U's i `aate

valid fcer an indefinite period of Cime:say °TNLtEF° where an expiration date should o

.._:»..^zU u « ....^x^^^^ ^0

sorne milita

th'ss nature are valid for p ses.;etfvotiug tivhenever pr. nted by i v,

Utility 3i~ssI}A'°nrifiitv hill" includes. but is ncrt llntited to, water, sewer, eleetrie, natural gas, heati

It doa,s aot snatteriridieates thestattYo4lfictired, De}aetidt uti,

o If the ID presented by a voter does have an expiration date csn it (and ztlastmztitary Itls do), the election oLf'^aal: reviewiag the ID should appiythu cle5nitis?u

of current containecl in this directive, meatiliag that the TT7 is valid if theexpiration date has not passed as of the date of the electi€an in which the voterseelm to vote w-h.en he csrshe Frusesits his or her ID:

It also does eiol nt..atterwhut branch of the inilitthe branch may be indicated on the ID.

Fxpitati€tndates:

°is u statement of fees caevcxl for such services. A bffl is sttff'icient even af it sh€+ws alti.te television, internet, telephone or digital te.telrssone, ana cettu;ar teaepnone service. x

uce due. The utt"litg bill presetatccl fot` the gurpases nf tdenYiffcation suust shoxv that ibala.issued to the viter who has presented it. The utility bill snustshow #he voter's riaitzcs and current

's neme attd attdress in the reccsrd tYfthe Irqard ofwhich ntust confarna to the voterdlectittns, isrclurling the poll list or signature p511 Imok and must be a current stutement asdef'mad iri th9s clirestive, The bill znay be an or3ginal crr a cogy of an oasgine3. Camputetgrneratad print-ou.ts of electranicatly trstnsnsitted hill:, are also valid.



Dir2,0o"o yoti'a` Tdantfficati^n' E2^ncîrnpnents _- tiaae b©f ^

1Ba:n.lz StatementA "bank statement" nr.cludes, but is nat limited to, a sta.tement from any financial or brokeraîustitution that bears the name and current address of the voter presertting it ftsThe name and address of the voter that appears on the baxilt statement must +ioYiforxtt tovoter's name and address in the ree€ircl of the board of elections, including the poll listsigtaature poll boolc and must be a current stateinent as defined in this directive. The statementmay be an vrrginal or a copy of an ori};inal. Computer generated print-outs of electronicallytransmmi'tt:etl statements are also vaHd.

Paydiedk

A"payclteck" f ncludes, but€s not linxited to, a payc'ftiec#, Checkstub m' reeeifit provi`'seh bearsdeposit ofwages or aarnings fi'brn any public ur private employa:r and wh

ent zddress oftkie vater presenting it for identificatisan. The name 2nd addresscurrthat appears on tht payeheclc must con{orm to tbe vt+te?s naxnc aiRd addl°ess in tltc:tècqrdboard of electlons, zrteludittg the pcill list or signature poA baak arid znust be curreist as deffin this directivs:. The paycheck may be an original or a copy ofan ariginal. Ctunputcr genetafadprint-outs of electronically trai siriitted thezck stubs or reeeipts are also valid.

s6k

A"governinetxt check" includes, but is not limited to, a payeheek, check stub or receipt provicledfor direet do.posit of funds issued by anypolitical subc#ivision of this Statr~, includ.ing the State ofOhio, or any pcliticai subdivision of or by another state or by the TTruted9ta.tes government thutbears the name and current address of the voter presenting it for identiCteatien. The name aucladdress of the voter that appears on the goverrentnnt check must cosafcirm to the voter's nameand address in the record of the board of eleetions, inelixrling the poll list or signature poll bookand niust be current as defiriod in this dàrectivve. The check may be an original or a copy of anoriginal: Computer generated print-outs of electronieally transrnitted cheek stubs or receipts arealso valid.

Other Gpur:rnmen.t L7cuntrrmerft

government document" ineludes; but is not limited; to a docuiuent that is issued by agovernment office and that b iars the natnr; and current address of the voter presenting it foridentifieatien. Thenaxne aO address o# the voter that appears on th.egoveraiment dnaimentmust conform to the voter`s name and addres8 in tttp r.ecord,tif the board oF elections, includ:ingthe poll list or signature poll book and must be current as defuied in this dfrec.tive,"ClOverttrttent offsce" includes any loeal (induding ecsunty, caty, trswns^ltsp, and villagegovernments), state, or faderat (United States) government office, branrlr, agency, department,division, or other s3milar ccrmponent, includiirg a b€rard;comrnissS,on, public collegectrunivera'xty or public community ccrllege, whether ax not in C)hio, By vvay of ekarripke, this mayinc3.ucle, but is not limited to, letters, bills for taxes and other similar obligations; hunting,fishirig and marine equipment opecatar's licenses; license rene n=al notices and other notiees;filing receipts; courtpapers; grade reports; or transcripts.


Case: 2:06-cv-00896-ALM -TPK Doc #: 210-1 Filed: 04/19/10 Page: 7 of 7 PAGEID #: 4982fTSie 24 ai3 8o Tlater TdeatificaH^n x^m^iremests naaa

Tf you haxv questiiints about this diaerdve, please cozntact4t'ttt-2 58,

e1e b14


JENt•iflFFF2 BRUNNERC}tfMO SECF4£TAi$YC}E' STA.TE

I S3QtA°_tT 6fEOAq ,•TIY)'k'r. i C>;]'H f'L.[SCl*4Y

OLUi+iF]Ur3 FJH.cO 49215 USA

Eta a-B77-7G7-644t'a 3'AXC 1-6f 4°FrU4-P3&4f). . . . .. . .Qtre.Vg.

tRECTI'Vf; 2010-74 (Raisaue of SOS

nber;

To: Ai,L CGUI*iMElyiBFRS

Re;

3, AND f?EPl,l`fY DTTI.L,°+C'10-f

izsg the validity of Pi^s,

This diractive provides gnideliues for Ohio!s board3 oFpxovisianal ballots. This inclti.des gui€iafincs on deierniunder Ohio lavv an:cl, generally, the ticneframes during tiballots to determine their eligibility for counting. 'rhis direc:ioi and complemeuts, but does not stipprsede, Directive

e iS a reissuc' of Directive 2008--81, Guidelines for Provisii5iial

Voting. This directive alsa incarporates relevant rulings froni the Ohio Supreme Court in Stateex ret. Skttgqs u, I3runner, 120 Ohio St.3d 5a6, aoo8-Ohio-6333, and the United States DistrictCourt for the Southern District oE C}liio in Nort/tea,st Ohio Coalition ,for the 77€rrnetess u.13rxmrter, S.D. Ohio No, 2:o6-cv-896.

tliis direetive, "manbeim of the board" ineans a rnajiseast a quort}m of the members of the board of elections taken at lt. public in

U. For purposes of this direat95ie., aprocessing" prouisitrnal ballnts

+ handling provisic nal ballots in provisional ballot envelopes ('°envelopes") as they-cast at a board of eleetio»s offiee or other designated site or as

irned Frotnpreeinctx on election niglrt;+ rnming or stesring prrstisional ballats at a botttd of el.t:ctians office or other

d^+ reviewing envelopes and afrrmation staternnnt5 to lni'tio'lly deternt9'ne the

lsrashrnptive eligibility ofproVisionsl hall+ sorting provisional baPtats ui thgix qnvclop

que.stionablea and ineligible, and `€P a berard so sttates iTt its poliav and procedtirc:s,into snbcategories of ineligible;

+ makiag of a recommendation by board of electiboard as to the eligibility and/ar ineligibility ocounty for the el+;ctian in guestitin; and

A documenting the numbers af provisional ballots for each categozy of provballots during the time and upon completion of all provisional ballots tprocessed.

S Cll+' ES.EC?'LQrNS

-1oi..)

in tirocessing&nd countinglie validity of provtsittnal ballotsboards may process provisional


gUalidity i

C. For purposes of this directive, °counting?' provisii

inal Ballots

ng the envelopo of provisional ballots that the metnbers of the board haveined are not eligible to be counted;

® moving, and storing in their envelopes, provisional ballots that the rnembers ofthe btrard. Ilave ttcterm.ineel are not eligible to be caunted;

• openiiig the envelapes trf provisional ballots that the inenzbers of the board havedeterinined are eligibleto be connted;

• removing provisional ballots that the meanbers of the board have deternrinerl areelig.iblt to be counted from theii envelopes and separating thuni from theirenvelopes so as to severthe voter's idontity freasn the ballot, therelay presetviiagthe secrecy crf the ballot;

• pceparing provisional ballots to be counted for stanning Iiy nLitornat'rc tabulat€ttgequipment;

+ scanning provisional ballots;• tabulating votes cast byprovi.sional ballots cletermined by the board to be eligible

to be couxited; and• reporting numbers of prmrisional votes as part of the board's official canvass of

the ciectiQn:

V.eneral#y spealdng; anel except as ot(ierurise providcd in bt.C. 350i.183(LT)(a) and in thisdirective;boards of elections tnay bagixxprocussingprxrvisionalballotsbLontaing tiia day tif'tet anelection. BoarcLs inay contintu to pracess provisional ballols d.ulsng the ten (i.o) days after anclection, and may eontinue to do so after the tsntli day, if necessary, unfil all provisitrtial ballotshave been processed. All prctuisionitl ballot proeessing sn.ust be cornpleted by the end of theo€ficia7c.anvass,which mus't be coinpletcd not latertluln thetwenty-firsY day afterkhe clection,

ely, the fotta` members of bcaaz-cls of electinlis must deterrn ine the validity o:election and must certifv the results of all electiirris. I-Iouvever, nothing i

reqtxires that the m.dmber:> o1 th^ bonid izat`4st perscanal.y, physXcally complete all tasles a.ssociiiti;dwith preparing for that certifiead.on, Thus, boards of elections maq, tu.'ttler a potiey adopted bytbe board, dele.gate the processing and sonxe aspects of the counting of provisional ballots, usdiscussezl throughdtrt this directive, to board staff. Such pxeac€ssing mnst be done in bipartisanteams according to the instructions provided ixi this diaectiie. 1'cs the extent ei>nsistentwithOhio law and this elirect.zve, boards zetay establish and follow add3tional policies and proceduresfor processing proi°iaional bnllnts.

If a board delegates the processing of provisional, ballots, it niust fprocedures for the ;proc+essim.gof provisional ballots that ineletdes the dI, abox=e, Under a board's po Iicy, board staff respiinsilite far firocesssi

pta policy setting fdi^tbiiti sns'liitted in Seetion

isional baflou mustmalee a recommeitdation to the board as to the eligihSlity of toted bailcprovisioital ballot cot In the county, either on an zndhddnal basis;, or itis tcof si.rnilarly situateel prnvisional ballots.

State ex rel. Painter, et al., v. Brunner, et al.

to be counted eachronps or catep4ries

Respondent's Merit BriefCase No. 2010-2205 Ex. 2, p. 2

Uir

l flttmat.ely; thv. mentIXdeterrnine tlre eligibi'1'accclydartee n*ith Ohio I

Each board of elections ninclude the tabulation of threqulred, its certifiaation ofthe: electerr

gV }dit^ôE

f the boa.rt't (s,cc Ser.iioln idcliglbitfty of all lyind this directive. Soare

ust theri cause the ba7:

T.A, above) c

s

nsaosral ballots 4lay not del..egâta

t^cF^Sirr£1 Pitaut^turr ^r Bna[ i

e that boards of eleetions without fail apply RC, 35as.t8,3(D) which provides that1 ballots maybe counted itx a particular e<xunt}^ iznt.il the bcaard. of clectlerns for that

eligibility of ALL prov3,4icrual ballots castpttrsusnt to "R.C, 36n5.t83 and this dlrectxvt^ Tlxis means that the bcprocessing provisiozral laallots mn.st cc+rn.pleteIy process all prouisinnal ballots and make areccommelidation to the board that permzts the board to vote on the eligibility of pxovisimalballots east to be counted, befdre the board or board staff mtty begin the procediires for €xlwaztlngpr€rvisisrnnl ball<ts.

mperative that boards reniember tliat provisional ballots, like all otlier bnllots or otherIection materials, nriYst be haaided by bipartisan teams and m:ust bThe Secretary of State's of[T.ee has requkred boards of elections t.ts Smpleinent a system

oraae using double loe:k aud Itcy - one key held by Democrats and one hey hold byRepublicans - and provisional ballots tr;ust be starea m tnat environment.

It is also ilnpeiative that hr?artl members aatd staff remain cogulxant at allistkportance of maikttaining the secreey csf the txotos east bY a pz'uvision2l vpter, ahiiaccordiiizlvwhen openangenctremocnn#; prctvasa.oupt ptttlots Irom enel,renvetnpes:

n OR 1NVnrnW

R.G. 3505.183. is the prima.ry statutory lens throiigh wltiieh boards of elect'ioirs mn.;t Aeiv°provisional ballots and affu7itations in order to determine the eligibility of

ballots to be count:ed. it sets forth the steps through tvhich a board or its staff must godetermine the eligibility oF a provisional ballot to becounted.

.al. Step 1- Additiclrt

R.C. ^2prrtvisioi}al I

tf€)n ILeslitired from Vate

(t)(a) provitles that boards €`'I

cfficial has indicated thYt $e [Jro 5OY1

the board of elecYapns in order tn ensure thatFor the parposes of applying R,C, g5o5.183,

t eli:vt;fope ir

Pal;c^crf:

&;Ca seS

cxa.cninelanelec

provide additional 7:prorlslurrsai oalusr wi

respnnsilile for processing pr^^rîsional ballots, andemployees or metnbers of the board of elections or

tion to

offici.al" means boarcpecilically; a teaxn ofma tion tliereof Nvith ea

member of the team being a melnber of the opposite party ofparties,'I,'he determination of a presidingiudge or poYl worker i

ions lna3+

its to be counted ^y board staff, and tbvass of the electivn results and,tc the extent

Seer

jor pc?liticalent for the


17ire 74 Guiddlstt

purposes of determining tuUnther a provisiannl vottr must provide additionalinformation to the board of elections in order to ensure that the provisional ball(yt

ee3unted. The reviewing of this statcmcnt 1>y an e3ectiesn official must be thein cietnrmiuirtg a prrn?isinnal betloE's eligibil8ty to be counted. AIIof pW1 ivcrrltes of the xts.ttctre noted 'oa!€rw mList be verifieai by an "elecdondeftnedin th.is seetion:

a) A.dttiitioaial inf€srneatiion requirecl during io days after eliwction

voter p 'des the reyriicecl &ctdi:tioual informait, still 3n its envelope, in awo e wiezdcpendent'.ly malze au..ah. u deternil

naaygrtacei:d tcr Swp a

ii. Additional inforniatu?n requilvd

If'ssuch a statcruent by a poll worker appears on a proz{isimtal bal.lot enrre:lopetheax the eltction official respcriisihle for proce.ssing famvisicsnaal, ballots must

OMNT3crpe then cli'.If nb xnrct3 stzttumnnt by aPOIi cuo

X. 35o5;i8a.(3)(8); there are only four cateprcyvisional voters who nl.e nire.tl to provide artdi#ional h'ifi3rLnatto the board of elections during the ten tidys after the day of aneleetiotj in order for their bsllots to 6c counte.el.

(i) An inilfviclual eviro hss but is unable to provida to lsrecinctelecticzn otticials a proper forrn of iduntiflc.ation;= and who has aSocaal Security nuzti.iber t7Gtt N unable to prtMde Che l zst tirur e3igitsesf tlnat nuxnber tcs prucinct eltction oifici:als,

n inclivictunl wha is chall cE .at a pollhag glace under R,G:35o,Sao azrd is deterzninei2 to he ineligible to sztte ox whosenligihillty ta vote cannot be tteterminod by eleuticm

(3) An indiwfidual ryvhrr does n.ot hatu a pro}er form ofidentFfication, who does not hmv a Social Security number, fLndwho deetirtes to exurirte an airirmation (SOS £'cxrru

(4) An individual who has a proper €orm €declines to provi.de it tzk precinct election offieials, andSocial Secnrity number but deelinn..s to provide the I?rst four digitsof that number to precinct electS,on nf'ficials.

I I3clr purpseircd t RGrt: . .q A

ideaiEil"ieation.


tt3 74 Gaidelincs fnx I)etiersuznirig S alidity Uf Ptc ^si©aai [laUo#s ^ag^ 5?f,

r rather than by telephone.

c) Adclitional'uxfnrntation required at post-ele<:tSon challenge hearing

Tfavi

the t#crard by the tunfh day aEter the ea Yoballot to count; and(2) ututt additional information Es required,

(i) that he or she is requirecl to prevv4dcr addi

elmions does nest have a telephone nu

vitle ttcttice that additional information is tvqu.,iredte dttys after the day of an election a board of

andmadj-4se the voter 4ifiat additional information is recluired by

c artsidesing tttia eh,the day of tl

electinn,the vts

is challenged by another Ohio voter prior tnndcr R C. 35o3.2.4 and the board of cleet?.ans& ptrstgatnos the hearirsg rxratil aftur the day of

lprovitle adtlitlarsal1tts ensure that his t?r

iTpon receipt of the required adclitiztne.tirective., the board staff responsible fopr,nacced to atef; 2.

Failure to prtn!ide aadditionai required informatitrn

A provisicrnal: ballot that is cast liy any voter

c boartl at ihe heartng snotxnl3 caunt,

a.dditionRl information to a board of cl.eetiaus c:cnwutxti] that votor timely pro'vid.es the required tuferrzr

this steis of thisltallotfc q

nleetit,rs deterattine.s that the a`equired itiforznatioaa has not been proti ided. theprovisiono1 ba.]lot is ttat pn.rrttitted to bc countecl. ;

R.C.provSsional baEtrats to'bc caunted is to dcterrninc the &allmv`cu

a) Whether the person who cast the provisiunal ballot is registered to

vote;


;A;ttalysis on

ides that the first step in dote

ectrun aasiruauy at that a


79 Gttidelit^esfvr fletcrntin{n^ Valid€t^ i f^rnvisien;

b) Whether the person who cast the provisionai lxatiat is eligible to votein the particular electktn in question; andc) tN3iether the pers^an who cas.t. the provisional ballot wanplecec.t theaffirmaticrn on the provisional ballot envetope.

Not Registered oi Not Fiigilile

If the on whn east the pravisionat liallot is ex*ote or %$ not e' to v-ote 41 the p 'tp

i# the voto is aast in die Ywrorrg pro dneVanci (i3)t boarcl nmy nthe

nd rlffi .'on Completed

If ttie person Is prulterly regi:atnrecl to vcrtt and it cEigible to dote in the_,particuCair eleetionin tluestion, and the person wha cas't tEte provisieballot completed the atftnnation stateuz.unt an the un.VelopM, then theboard staff reeponsiffilo for ltrocea.qitag lzrcn.risiona] kra73ats must proceed toexarni:ne the afl'irmatitrn staterncnt exe,isuted by the person tv3to east theprovisional ballot, t'ttrsnnn.tto l.i.,C, 35o5.t83tB3(1)fa}r fbJ, ane! (c), thsttaffirmation must contain at I€ast the ffiaflorving thave iteous of attftarmntiani

he peasean who cast tha prfrtrisSonal bafeit;3;°° ^lti al bh ocon ae prslZerson wko cast t

diction in whf ch h(i csr she mst thr provi:

a) A state:ment that the pt*rsern who cast tite prcivsstoraat t#ataot ts etrgtDI+:particular election In which he or she cast the prtxvcatraaial

Registered, Eligible, but No Provisional Ballot Affirmatio

peison isproperly regiatert:rl to vote andi.s wtligi'bl

.. , . fi li ^f` . ,th b=,S^r etec^firrt in aue,stipn; but he or she did not eantt

srtaaa ston Y3ie enticape, e reswballots must proceed to d ren'sne whether Gl

voter, or att eleexian in.l at the d"uer.titan of the votnr; rewrded thevvter's namn in t31e afflrrtiation and noted that the voter dec93ned to

&ll, oizio N+a, a:oii-nses mzty Che'last fanr din the wrong preeinct butworker etror. See 3eetIot3 Ln State c,z rel: Skag.4sv: ^•that the affinuatfonstatement must be comp3edeelitied to execute the affirmation, the rc ter's nasnc

he poll worker) atong with a notation that the voter deetttted to exe,isfnrra7 ha€Eotto l;e eliaibletolie countad,

Fhtcr Sutasertte Court 911signaturexrr, if the voter

ation (aitberlsvtha

ctWred stntementsthat theperaora is a r¢gisteredNIOtzr in ttfejIIrtartictilar eleetion at issue are t.tre-painted on the proN*isional ballttt envelo

person ntakes thesestatements by a completed sftirmatirrn.


llireceloa zot°-2`1 ^tridelin^s fcrr Deterrn€nist^ âliciit} caF PrQvisiDnal tiall ots

in addiiion to the inforrnstion sequired'in Step i, above, and pursuant to R.G.35o5.r$;3(11)(2), in detertnitGin, the eiigibility of nny pravtsi€tnal lsaliat to taectaunted, the licrarcl staff re~;ponsible fat laro ing pmvisie na3 bttllots nt.ust alstrezamine any infarmation pravided tsy the persan wha east the grcrvisional bztllat:

a) tltat appcars in tlae af6.rmation r u the prcwisivttal bnllot envelope;b) tthatwaa made to an electian aftic?igl at tihe time i7e or she cast tlieprQCisltsnal ba7lot pursuann,t tn R.C. 35o5,18a; ore} thttt tivss rtrsde 1:Q the btmrd <>f electiotts tlnr'tng die ten days afCer thec'lay of the.nlectieru.

Ar#tiitinnai i€tfnranatieaai oftezr priairided bv p onsl voters inc3u , lsutot limited to, cuiTent aiid -t<artti:er addresses ana aa[e err ntz2n. vt twv, a

if pravidsc., must be considered bytticm,ing the e3igtbilityof pravisinnal balhsts far counting, nvtlYiiu; 'kxdcter min .

requ'itès provisianal vcrteta to provide this ini'cirinatican. "f'hus, the absestce of Siit:lY"infcirtnstinn on a provis¢anal ballot affit-maticin is not sutficie,nC, on its ozn

disqualify a provic;ional ballcA.

in elntermitting the eligibilit,yonly the lastboard staff mivtbe'taallttt is attrilyballot may not lac rePlease see Seac#.ion VIi, belo:w, for rttore irzfori

D. SteP q- Recommmznclati<rn to Board on Pt•oui

q this stem board staff twponsilne for ptoves.aing provisional ballrrm.ation discussed abnsv, aanerna ot[1er tti7ngx, to cae[erzu:ndatiotts crn the eligibility of particular provisional ballots to bc ctnz

13a3lots Migihl.e to be Counted

apply, boardallots must recomaiend tortcl a board oE elzctians sltt

ponsfbJ.e for processingt & prcnîonal ballot

at haIliat;

lvte the aft"irmsticsnsn.cl ofitsel[, eetznattae

hiu-633:3, the Caituretzr


g V;iticlity of I'rt

tnd on the affirmation is properly registerLcl tovot_,b} Thcr tudlvidnal samed on the affirmatian is eligible to cast a ballot inthe precinct and for the election in which thc indivitlual cast theproFrisinnal balk>t^c} The indzviclusl prot=tdetl all of the ftrsl t

'the absence of thefirst three items, the foux

-14

shc cast the fn'oA statetaent that he ar, she, aq dhe pers+

provisional ballot, ts eligible to vote hr tho- part`iwhich he or shn cast the prcn%asional ballot;

OR

(4) His or her nirme recorded in a written affia•mation statemen's direecntered either by rheindividual or at the individual

reeorded by an eleet`son ofCeial, and a nota#.ion fro.rn the electioofficial nn the veriftcation statemcnt partion of SOS Form 12that the individnal deel`sned tosign the a€f6rnration statement,

Of:t

A completed tiffirniation uiidet I2 C. 3505.18(rl)(4) (SC}8 Fitrni

d) tf applicable, the indivi3iaal has provided additional liifornration asrequired by law to the boatd of elections dnxing the ten days after the dayof an election, and:e) Tt' a;.7,i,ra1,iM vh¢ 7^dividirn7 he^ L^een afforded a hesriklg condtactedunder R.C. 3503;24, whieh htts resnlted in the inclvsion of the provisionalvoter's name In the ofticial rel;istratict!

Ncit.Fligible teibe Counteri

of the follosving apply, boaprovisional ballots shall recommend to,1

isibleprotdsi,

ir processuxgnat ballot notQt ootsstt thebe c(yuntnd, and a lioar(l of elections s

provisional ballot:opers

a) The indiv"sdual nurs ed an the affirmation is not properlyvote;b) The indiviclual namedd on the affirmation is not eligible to ctu*t a ballotin the precinet or for tlre election in wlv.cli the individual cast thepravisionalballcit;


Llirectfve aoio 7A ^nidelines tor Detcnnin ng Vali iicy©f rovis"tona173aklots Pagq 9 bf

c) The individUatl did ltT{)`l' provide till of tinbelcna, or in the absenrc of the first thuTe items, th+item bel.zrw;

(i) His or hpxrst tsidxi

.nd sigatature as tki person

(2)'A stattment that he ot shi?, as tht Iserson who cttst theprovisional ballot, is :a registEred voter in the jurisdicwtion in whichhe rrr she cast the pro ^iisiorCal ball,ot; and(3) A. statement that he or she, as the perscan who east theprm4sional ballot, is eligible to vote in the particular election inwhich he or she cast the provisional ballot;

OR

(d.) His or her natne recorded inettteretl either by t.h* inditridual or at the irrdividual's direction

hv an election official, and a uaaae'rtifaiinn c+faMmnni, rialr'ftfrtt (it 2iC1"u 1'orTn1'd-t3

tbat tb.e indnddual deelirted to sign th.o af"aisnatio.

OR

(5) A cttmpleted affirzuation nniier R.C. 35aS.tR(A)(4) (SOS FormIa-T).

d) The individual has already cast a ballot, including an ubficntee ballot,for the election in whicb he or she ca*stthe provisional ballot un"s theboard deterrnines that il7e signature on the outsid.e of the absent vcstei'sidentification envehzge does not nrateh the signature of the electe r on theeleetor's registration form (€si which case tlne board should iitvestigatettxernatter af the nonmatchizig signatures and verify that tfte signaturepctrvitlod on the provisitsetat ballot affirmation matches the voter'ss,gn^w: *V .;; ri^ hrnrd'e rrrnrtl~; - see section VI,TI: of this CYirectivn) or theboard receives the elector's absettt vaCer"s ballot heyoarei the st.atttitor7,deadlisan for the return of suclz ball.ots If either ofthe latter Yc+a scenaraosapply witlXot[t exceptirrn, the board shall uatutt the prazision:al bePiot (if itcomplies witI3 all the renuiren2ents in tihis clirecHve) iztstead of the dl7sentvoter's ballott;e) If applicable, tlxe individual has not provided additional inforias retTttired lt}* law to the board vt' ulections dnring the teYi dags a£tc'day of ami elcction; andt) I€ appIicable, the indivielual has beert afforded a bearing e+under R;;C, 35o3.24., tixhich has resttlted in the cxiilasion of the provvoter's nauu.e in the ofrieial registrativn 1ist.g) Thn individual failed to irrovide an3^ oi the fotdowi":

(1.) a cblrrent and valiit photo idu:t'itification issued by ehe statefcdera.l gavernxnetit;(2) a military i.dentifEcat'icrn;

;d


any srf the fcrp.ovving kiear'ing the veas is reqnirod by âif'ective 2aa$-8o andautiflcatlala;

(a) utility bill;(b) banlcstatezuerit;(c) governinentcheck;(d) paycheck; or(e) other government document6;

OR

(q) the last four digits of the ind9vidu

OR

L?E

a under K.C. (SOS Form in-T), cirations already discitssed in tlifs dieective,

E. Step 5-- TYiqqaalificatiarn. of Provisioata't I3teTli" a-ad Ret

lf a board of elections finally d.etertnines that a provisional ballot oaunt,t be catii tedfor any of the reasons identified in Ohio law or this directive, then the board,pursuant to it,G. 35o5.tft{C7('), shall recnrd;

Yte of the proutsional irotCr who cast-the batlot;nai.ie,ntif- ticrn nunilaer of the pro'tisizinalbatlqt ep^,;fielripo, if aftpl9cab

av x4k+

ie names <>f the election ofliciitls wtao determirted thc'failure of'the validiiy ofthat ballot;the date an.Cl tiTnC' t$iitt'he qeteftTf3t

the reason that the ballot tiras axot coLutted,

The hoa,;m .chx,ll maintain this record for the duration of the PC that

applies to the provisional ballot itself.

boarct of clectioais finally detertnilies that s prtivi.Rilr aiav o'f, theieasoxiis identified in Ohio law or inbalkrt cstt=elcspe may not be opeued tuiless subscquently ordered ba

azid the briai'd shall nat couztt the votes c<z^ntain.ed on snah prcivLsional ballot.th r ursuant ta p t 35o5 f83(Q,(q), the board shall stcxre that ballot, uu+upened,.

#or the duratioh cif the retcqzticns pcrlc?d ^ipplicable to that type af ballot, a.nt) shalltheh. destroy that ballot in its envelcspe. Storage of such provisional ballots shall bemade in accordance ct -̂itb tlte requirements far stOrage of pirovisional ballots;generally, as provided in this dYrective,

rovides that naticesof eler.tipn nsailed by hcarcts of eli+ctions pursuant to TE:C 35aij9, aj?dp li 3>`oth-*n t ua4>tration notices mailed by lu Eirds of elections pnrsuant to R.C. 35o3.1q aretent tlocientanta" far voter TY) pi.trposes.

State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit Brief

Case No. 2010-2205 Ex. 2, p. 10

ctiwe 2010-74 Guidelinca for T)eterm3ntug Validity oF Psc v si 3 $allerG Z;age zi o£

V YZ. PR{3tT1Yr"1©Neh7, $Î T il'I'S'rFIAT 1lIAI' NQ7' ^ts R u sr°"r^'^.jJ7,#^.7'Cl ^(l2L^TIk1YIf'F;.R ^" R22U2t

As ex.plaiised in DiSective 2010-73 under the cor;$ent decree issued by the federal cotxrtt in

Northacrst Ohio CozzlzCfnn for the NomeYess u, Brtaneter, S.D. Ohio No, 2:a6-cv-$<)(ri (y`Nf`0CFf")

boards of efecticrans may not re.ject a provisional ballot cast by a voter vv2tcx uses onXy thelast fatxr digi[ts of bis or her Social Security ntltuber as icten.tifieat'ron for any of the

f«llowing m;asans;

tx}The vtxte-r provided the la.st four elit its af aqoc al Security ntimber but did notprovide a current dria!er's lieense, state issutvd identifieatiixn, ar other docum$nt whichserves as iCleritii'ican under l)hiu law,(2) The votor d'ui not provide a clat,c of birth;(3) The voter did not protitda aa7 adclress that is tied to a hotuse, apat-trriidweiling provided tbat the voter indicated that he or she r¢asides at a nznz.-building

dli?cation, inuluding but not limited ta a stxcet cor¢er; a1Tey, or hipway overp:zss locate"iix tbe preeinct ln whiclx dxe votec s^lcs to ct>s:t a 1ra71at and that tlze nan-btuldisig loca

tlualT^s as tlte inditritTxiaT's vatin; rasidence ilnder 1t.C. 3503.C4^'The xîterin<licat^l that he c r she fs hoineless;(53 7 he vz ter east his c^r lser prav siouaT baltr,t in the -wrong prqdnet, brst hix the correctpot7ing place fot reasarts atkributa^le tî palf wcirkar ea,Tiar;(b} The t oter did not cttrnplefie ar properly cotnplettx and/or sign the provi:,sional balTo'C

on for reasons ^ttributiibTe to paiT vvesrlc¢r error; caraplilicahi,(7^3be potl ârl er did not cami tete or properly com.i.aloto andôr s7gn the praEdsitaual

"ballat application w•itnes.s liae and /or tbe provisional ballot afiirrrsationreasons permitted by the governing statut'es.

As explained in Dircative 2010-73, poll worker error xvili not be presusned and nitrst be

demonstrated through evidence.

ples of Evidence of Poll Worker Error

A. flnn example of the type of poll worker error cAnteynplatad under the Nh;QCH`"m,qr.nt r3n.rrae nccus•s when a voter fails to sian the {>rovisftatsal ballot a

asu't'son of $05 Rprm t2-B, btatthe ptx11 worker confpletes atid sig..ns tkteverif"ieation staterixent portion of SOS Form 12-13 intlicating that the vater }sAs cozrtpdeCec.l

ut iildicatixt.g Chat tbe voter rieciinccl to oatn.pleCe theanard of electians shtitilrl, either In writing;vuith written

e poll worker, rìr at a pttblic meetin:g tsf the lit7ard qste^tirrn the pollr_..__ _,.... _workers in tiiat precinct to dcteranine wbetlter they folloxved the boad's itxstructinns forcompleting the vei-ificatian statement, both as to the specific ballot in cluestccrn and ingeneral on Election Day. Wherc a poll xuorker's respoiise indieates that ht or she dict iwtproperly complete the verifieation atateYnent, that respsonse and the completed pollxvorlcer verification sta,teraent praxnde crbji:etive evidence that the pci11 worker did not

ittre that the voter hacl completed the afFirixsatiqn befare the poll worker filled out fhetioai statement porkioxx oTS(}5 Form i2-B.?

s>»rrMna ,nn t1h;n St.at7wnl. 20a8-01iio-bn'.1:;, at 49 t 5 t, in ivlTich the {)19iv Sra.prame Couet s..nt}ie absence of evidence to the contraty, poU workers ^c'nl be presumea tp nave properay perlocwduties, but that the ontcomc m.ry be different when evidenceispresontetT that poll ruc ikers faitedtti

"ly-reqnireel ctuties:rm their statatoii


0-94 Guidelines €oc Tteteringzing yatitl

93, Anotliec example of poll woF3tcr crror is where the prmr4sional }i

r^ r-n rho, wrr,na r,rec'snct at a ucillint; location cantaining multiple precicTyvel4pc, (SC7iS porrn t.2-=S) contetins notations indicating th.o-st a pnll wa

2ans pr a 1.. b d Ftl

ovide o1a-'ective evidence that the, po11 warlt.er dtd not propcr y aIs a pa 1l1 wf3T1CC'r"s dtrh'to ensuretnflt tne voter is CnroGLett co taakv"a.iuut yic

ar y, t a oa.t ocnt regttired carry ovt his or her Electton I)ay d.uttes. Stnttfinds multiAe praaisitrnal ballots voted in the corr ct polling Iocsatiat} but

elueti.on oFficial.s are required by R.C, 3505.1£42 to cozn.pl3te this ipfottnaiStatetnent" porticin of SOS p'omr 12-B is rntear evtdence af pertl

dirscted to the correct prednct:

C Failure of a poll worker to eomplete txnd sign the 'Hlectticsn Official

,determine whether they fol[crwed the board s mstLwx.'nons far e.nsurtng tlrat xote

gpar at a public meeting caf the board, cluestion th`e poll wvorlCers in that polling location to

reeltrct it *,lmuld cithc+rin writing, vcith written respenises from thepoll workers,

L"ctxar tcr^ouria^^t^^

83 does not expressly provide that a board of eldctiatts must atternpt to rnateh tht3co y r. .s'tgnature of the person casdng a pracisionut ballot to the signature on file for lhat vctcr,

rnstance where ae rcl tl eas on uates atbecause the stat xtary seheme conteurpna§slyt eestnpr<yvis"sotjpl voter dar s not ha^^ to provlde a signature (i.e„ 5tup 4, Ballot.s eligible to be counted,

1.1 . h 1 1- hallmark af electionrt as ex Iieitly pravidett lar ^ rth Ccspeet toother t^',pes of hallots under C3hta aw, azn<, ts a

ncig as ottg eT.Zt.t,(el( f)> above). I3owever, srgna[urc tnat I 1.4 .Fa , s p

asis for-election otficials to ehallenge die right of a pcrson to cast a ballot un€lna Ohio latiu; As,asuch, tul7en a aignatCtre is prmvided Islt ^ prcnqsfonal voter, hoards of elections shouli3, in verifyingfihe iclmntily of th at provisionstl voter, attempt to reiatch the signature with the signature on filefssr the vdfpr in qtwstion,

Boards of e1et,̂ tion should bear in mind when comparing signatures, thnugh, that signatures dotand to change overt'ht`te, that there are people whticlo not sip thelr.naifte identically evcnry timethey sign their name, anci that, pumaant to 'tt.C. 35ctt.o5(AA), voters hy'ave the s-sgttt tc update

torsn 26o.their sigPtatures with boards of electLons using 50S I

The Supreme Court of Ohio prov'[ded, in State ex re(. Myles v. Brmnner, 120 Cliio 5that in the absence of evidence of fraud, unduly techttis;al fritergretation.s thi2o08-03iio-5trg7 ,

impede the pub3ic policy favoring free, competitive elections must be avaidecl. Thns, boards ofelections should apply the halclirig in the 14fytes case whett rt-tatohing signatures. Boards shouldensure that their pritnary concern is achieving confidence in the identity of the troter casting theptvvrisi.onal ballpt rather than ensuring that every loop and Iine in a sigiiattrrn? precisely andexactly matches ili,e sigit.ature ou file for the voter. Boards would be well-advised to look to themovet€tent af the signature wheu performing any signature comparisons.a

®°Thelirtnt-cple of identlftcatlon is that two or inore writings are the procluCt €sP one writer, iF the3iff-'ttfi` nresnr nmenku cteientLy individtsa3 antl theco are nosSlnilaratlis, takennaeonxbinatihn, are sulE

k3iking, 3ncAnd aI'tt?tdarrteaztal diffetencsis a differenec in sontis nattlrai faatnre, ctf tbe wrhabit that eantrot bn reasonably expjaitwd. A signature contpcrrison iaz ttii{ndividutLl's wr2tint4

Sdentiffcation of signatures and involves a combination ofline qttxality and ]etter design. `Pheline qnality iathe appearauce of the svritten stroke, raetsed bybas9a mirvemants and ttreln.anttet• of uranipuiating thewriting instru3nen#. It resultsixaim a combislation offaators - skill of the wrEcer; writing fFutXicy,fluctuations in pen pi'essnre. and smoothness of moveenett."h2tp: j fs[tes,gaogla.co3nJsiteJatlvancednaagic.affarensicseienee/lescon-q


IZ.C. 350prosencount

c(D) provides that tslases that the baare

:e further pra'Odies i2tat noA prt14"isk{YIYdl 13i

Lt~5 pi

taaUoN

appointed pursuant to R.C. 3505.21, may be4ng; the clzgibility of pxosrisirrsaal 6all.bt,s tt7 be

a. aPplaes 4

be o1Tg`sbirh

SupleTIEtI'

the cobnt or any pnrt9an sile: indhidutl

State ex rel. Painter, et al., v. Bmnner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 2, p. 13

Case: 1:10-cv-00820-SJD Doc #: 13 Filed: 11/22/10 Page: 1 of 9 PAGEID #: 315

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TRACIE HUNTER,

Plaintiff,

V.

Case No. 1:10CV820

Chief Judge Susan J. Dlott

ORDER GRANTING IN PARTHAMILTON COUNTY BOARD OF . PLAINTIFFS' MOTION FOR A

ELECTIONS, et al., . PRELIMINARY IN.IUNCTION

Defendants.

This matter comes before the Court on Plaintiffs' Motion for Temporary Restraining

Order and Preliminary Injunction. (Doc. 2.) Plaintiffs filed a verified complaint (doe. 1) and

the motion for a temporary restraining order on Sunday, November 21, 2010. The Court held a

hearing on the motion the following day. For the reasons set forth below, the Court GRANTS

IN PART AND DENIES IN PART Plaintiffs' motion for a temporary restraining order. The

Court denies Plaintiff's motion insofar as it seeks an order from this Court prohibiting

Defendants from certifying the election results for Hamilton County Juvenile Court Judge on

Tuesday, November 23, 2010. The Court grants Plaintiffls motion insofar as it seeks an order

commanding Defendants to investigate whether provisional ballots cast in the correct polling

location but wrong precinct were improperly cast because of poll worker error.

1. BACKGROUND

Plaintiff Tracie Hunter is only twenty-three votes behind her opponent in the race for

Hamilton County Juvenile Court Judge. This narrow gap makes Plaintiff eligible for an

1



automatic recount; however, the recount will not include hundreds of provisional ballots that

were rejected, perhaps improperly, by the Hamilton County Board of Elections (the "Board").

Plaintiff asserts that the Board's failure to count the provisional votes of citizens who voted at

the correct polling location but at the wrong precinct violates the Equal Protection and Due

Process Clauses of the United States Constitution. This Court held a hearing on Plaintiff s

motion for a temporary restraining order on November 22, 2010. Although the motion before

the court is styled a motion for a temporary restraining order and preliminary injunction, the

motion is not ex parte, as the Board and intervening Plaintiffs received notice of the motion and

hearing. As such, this Court will treat the motion as one for a preliminary injunction.

Ohio Revised Code ("O.R.C.") § 3505.181(C) provides that a provisional ballot cast in

the wrong precinct is not to be opened or counted. Even so, Ohio Secretary of State Directive

2010-74 ("Directive 2010-74") provides 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" where the voter "cast his or her provisional ballot in the wrong precinct, but in the

correct polling place, for reasons attributable to poll worker error." Directive 2010-74 then

provides specific examples of poll worker error:

Another example of poll worker error is where the provisionalballot affirmafion envelope (SOS Form 12-B) contains notationsindicating that a poll worker directed the voter to the wrongprecinct at a polling location containing multiple precincts.Because it is a po11 worker's duty to ensure that the voter isdirected to the correct precinct, these notations provide objectiveevidence that the poll worker did not properly or to the fullestextent required carry out his or her Election Day duties. Similarly,if a board of elections finds multiple provisional ballots voted inthe correct polling location but wrong precinct, it should, either inwriting, with written responses from the pol.l workers, or at apublic meeting of the board, question the poll workers in that

2



polling location to determine whether they followed the board'sinstractions for ensuring that voters were directed to the correctprecinct.

At meetings held on November 16, 2010 and November 19, 2010, the Board reviewed

and processed approximately 11,000 provisional ballots that were cast in Hamilton County in the

November 2, 2010 general election. The Board approved approximately 8260 provisional

ballots without significant discussion. The remaining provisional ballots were discussed and

voted on by the Board to determine if they should be counted. The Board found multiple

instances of poll worker error in its review of the provisional ballots. For example, the Board

discovered that approximately twenty-six provisional ballots had been cast in the wrong precinct,

even though the ballots had been cast at the Board of Elections downtown. Because the only

explanation for such a result was poll worker error, the Board voted that these twenty-six ballots

be counted.

Ultimately, the Board rejected and refused to count 849 provisional ballots because the

ballots were cast in the wrong precinct. Timothy Burke, a member of the Hamilton County

Board of Elections, testified that of the 849 provisional ballots in which the voter voted in the

wrong precinct, at least one of those ballots included a voter who used the last four digits of his

or her Social Security number as identification. Further, Mr. Burke testified that the 849 rejected

provisional ballots also include multiple instances where voters cast provisional ballots in the

wrong precinct at a polling location containing multiple precincts. In fact, in at least three

polling locations, multiple provisional ballots were cast in the correct polling location but the

wrong precinct. Even so, the Board did not contact the poll workers as directed by Directive

2010-74. Plaintiff argues that the Board did not conduct any meaningful investigation into

3



whether poll worker error attributed to situations where voters cast provisional ballots in the

correct polling location but at the wrong precinct, and that this failure violates the Equal

Protection and Due Process Clauses of the United States Constitution.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 65 authorizes the Court to grant preliminary injunctive

relief A district court is to consider the following four factors when deciding to issue a

preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits;

(2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of

preliminary injunctive relief would cause substantial harm to others; and (4) whether the public

interest would be served by issuance of preliminary injunctive relief See Leary v. Daeschner,

228 F.3d 729, 736 (6th Cir. 2000); see also Mason County Med. Ass'n v. Knebel, 563 F.2d 256,

261 (6th Cir. 1977). "[T]he four considerations applicable to preliminary injunctions are factors

to be balanced and not prerequisites that must be satisfied.... These factors simply guide the

discretion of the court; they are not meant to be rigid and unbending requirements." In re Eagle-

Pitcher Industries, Inc., 963 F.2d 855, 859 (6th Cir. 1992) (citations omitted).

III. ANALYSIS

As a preliminary matter, the Court will resolve Defendants' argument that this federal

Court lacks jurisdiction over the controversy. Defendants cite to Sandusky County Democratic

Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) for the proposition that the state, and only the

state, has the right to determine whether provisional ballots cast in the wrong precinct are to be

counted as valid ballots.

The Sixth Circuit in Sandusky addressed the issue of whether the federal Help America

4



Vote Act ("HAVA") required states to count votes cast by provisional ballot even if cast in a

precinct in which the voter did not reside. That court held that HAVA should not be interpreted

as "imposing upon the States a federal requirement that out-of-precinct ballots be counted,

thereby overturning the longstanding precinct-counting system in place in more than half the

States." Plaintiff here is not seeking an order from this Court that all of the out-of precinct

ballots be counted. Rather, she is asking that the Hamilton County Board of Elections treat

provisional voters on an equal basis. Thus, while the Sandusky Court noted that the "ultimate

legality of the vote cast provisionally is a matter of state law," id. at 576, the holding is

inapposite to the issues presented herein. This Court has jurisdiction over the claims presented

in this case. The Court will now address whether a preliminary injunction is proper.

A. Likelihood of Success on the Merits

The right to vote includes the right to have one's vote counted on equal terms with

others. Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). Plaintiff here has demonstrated that

the Hamilton County Board of Elections does not treat all provisional ballots cast in the wrong

precinct equally. For example, Board Operations Administrator Ms. Poland testified that 849

provisional ballots were cast at polling places but voted in the wrong precinct. Board staff

observed the envelopes of all these ballots to see if there were any markings made by poll

workers indicating poll worker error. Thereafter, the staff applied differing levels of scrutiny to

provisional ballots. For provisional ballots in which the voters had used the last four numbers of

their Social Security number as their form of identification, the staff looked to see if the voter

was in the right polling location but ended up casting the ballot in the wrong precinct because he

or she was at the "wrong table." If so, then the staff took the additional step of reviewing the

5



poll books in an attempt to discern whether there was any poll worker error. Ms. Poland testified

that this inquiry revealed no poll worker error.' As for the provisional ballots cast in the wrong

precinct by voters who did not use a Social Security number as their form of identification, the

staff undertook no additional inquiry into whether there might be poll worker error. At the

November 16, 2010 hearing, the Board Members unanimously voted to reject a11849 provisional

ballots cast at correct polling locations but in the wrong precinct.

Not all provisional ballots were cast at poll locations. Some provisional ballots were cast

at the Board of Elections site in Downtown Cincinnati. When a voter casts a provisional ballot

at the Board, a poll worker hands the voter the ballot that is supposed to correspond to that

voter's precinct. Upon their review of the provisional ballots so cast for the November 2, 2010

general election, Board stafftliscovered that twenty six provisional ballots cast at the Board were

cast in the wrong precinct. As discussed in the Board meeting of November 16, 2010, this was

"clear poll worker error." Specifically, "[s]omebody came here to vote. They were given the

wrong ballot." The Board unanimously voted to "remake the ballot to the proper precinct" and

then count the vote. Tr. Bd. Mtg. 11/16/2010 p. 41 113-5.

While Ms. Poland discussed at the hearing other scenarios of differing scrutiny and

treatment of provisional ballots, the differing treatment of the various provisional ballots cast in

the wrong precinct raises equal protection concerns. The Court agrees with Defendants that

Directive 2010-74 forbids them to reject a provisional ballot cast by a voter who uses only the

last four digits of his Social Security number as identification if the voter cast his or her

provisional ballot in the wrong precinct but in the correct polling place for reasons attributable to

' Board of Elections staff treated provisional ballots cast using Social Security numbersas identification in this way based on their interpretation of Directive 2010-74.

6



poll worker error. However, the logic of Defendant's justification for not investigating potential

poll worker error as a cause for the other provisional ballots cast in the wrong precinct but

correct polling place breaks down in light of the fact that Directive 2010-74 - nor any other

Directive - forbids the Board to reject provisional ballots cast in the wrong precinct when the

ballot was obtained at the Board of Elections on voting day. In other words, the Hamilton

County Board of Elections has - without any specific statutory mandate - carved out

situations in which it will count provisional ballots cast in the wrong precinct.

While the Court is not certain that Plaintiff will succeed on the merits of her equal

protection claim, her chance of success is likely enough that this factor weighs in favor of

granting the preliminary injunction. Plaintiff raises a due process claim in addition to her equal

protection claim. Because she has demonstrated a likelihood of success on the equal protection

claim, the Court need not additionally consider whether she is also likely to prevail on her due

process claim.

B. Irreparable Injury

When the Board of Elections has completed the canvass of the election returns from the

precincts in Hamilton County, it shall determine and declare the results of the election. O.R.C. §

3505.33. Thereafter, the Board shall certify the abstracts of the results and transmit them to the

Secretary of State. Id. Plaintiff here asks this Court to prevent the Board of Elections from

sending the abstracts of the results of the November 2010 general election on Tuesday,

November 23, 2010 as the Board intends.

The Court finds that it need not stop the Board from sending the abstract of the election

results in order to permit Plaintiff the opportunity to have the rejected 849 provisional ballots

7



examined for potential poll worker error. The specific race challenged here involving Plaintiff

Hunter and John Williams is subject to a mandatory recount because the number of votes cast for

John Williams does not exceed the number of votes cast for Plaintiff Hunter by a margin of one-

half of one percent or more of the total vote. O.R.C. § 3515.011. Pursuant to Ohio Revised

Code § 3505.32(A), the canvass of election returns can be amended up to eighty-one days after

the day of the election. Because a mandatory recount will already delay a final determination of

the winner of the race for Hamilton County Juvenile Court Judge, there is already a cushion of

time in which the Board can re-examine the denied provisional ballots.

Defendant is counting some but not all provisional ballots cast in the wrong precinct.

Their justification for so doing is that some were cast in the wrong precinct due to "clear poll

worker error." Tr. Bd. Mtg. 11/16/2010 p. 4011 19-20. Plaintiff will suffer irreparable harm if

the provisional ballots that were not counted also were the result of "clear poll worker error" that

was undiscovered because Defendants declined to investigate the issue, and if those uncounted

ballots tip the scale in Plaintiff's favor making her the winner of the race. That said, Plaintiff

may address this issue without this Court stopping the certification of the election results on

November 23. To prevent irreparable harm to Plaintiff, Defendant is hereby ordered to examine

all 849 faulty provisional ballots for poll worker error and, if such error is found, count the

ballots as part of the mandatory recount.

C. Substantial Harm to Others and Public Interest

No significant harm will come to Defendants or others by an order from this Court

compelling Defendants to examine all 849 rejected provisional ballots to determine which ones

were cast in the wrong precinct but in the correct polling place, and to then examine whether

8



such vote was improperly cast for reasons attributable to poll worker error. The Board already

did so with respect to the provisional ballots cast at the Board of Elections and in so doing

demonstrated its authority to count such ballots. Evidence presented at the hearing demonstrates

that such a review can likely be accomplished in two weeks' time. Ensuring that voters casting

provisional ballots have their votes counted when the error was not their own serves the

important interests of the public in a fair election.

IV. CONCLUSION

The factors to consider in granting a preliminary injunction weigh in Plaintiff's favor.

Accordingly, this Court GRANTS IN PART Plaintiff's Motion for a Temporary Restraining

Order and Preliminary Injunction. (Doc. 2.) Defendant may proceed with certifying abstracts of

the results of the November 2 election. However, Defendant must also 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.

IT IS SO ORDERED.

s/Susan J. DlottChief Judge Susan J. DlottUnited States District Court

9



UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TRACIE HUNTERCommittee to Elect Tracie M.Hunter for Judge901 Elm StreetCincinnati, Ohio 45202

vs.

HAMILTON COUNTY BOARDOF ELECTIONS804 BroadwayCincinnati, OH 45202

CaseNo. 1: 10 -cv- 82 0

VERIFIED COMPLAINT FORTEMPORARY RESTRAININGORDER AND DECLARATORYAND INJUNCTIVE RELIEF

and

ALEX TRIANTAFILOU, Chair ofHamilton County, Ohio Board ofElections, and membersTIMOTHY BURKE, CALEBFAUX, and CHARLES "CHIP"GERHARDT, III,804 BroadwayCincinnati, OH 45202,

all sued in their official capacitiesas Chair and members of theHamilton County, Ohio Board ofElections.

1. PRELIMINARY STATEMENT

1. This civil rights action seeks an order requiring Defendants, among other

things, to count the provisional votes of citizens who voted at the wrong precinct solely

due to poll worker error. Plaintiff Tracie Hunter is only 23 votes behind her opponent in

the race for Hamilton County Juvenile Court Judge. Hundreds of provisional votes have


Case No. 2010-2205 Ex. 4, p. 1


been rejected by Defendants because the voters allegedly voted in the wrong precinct. A

single polling place often is the site for voting for numerous precincts. A citizen must not

only locate the right polling place but also the right table within the voting place in order

to vote in the correct precinct. Poll workers employed by the Defendant Board of

Election have a duty to direct the voter to the correct table so the voter can vote in the

correct precinct. Some poll workers did not direct the voter to the correct precinct table

and instead simply handed the voter a provisional ballot. A provisional ballot cast in the

wrong precinct due to such poll worker error will not be counted by the Defendant Board

even though the voter did everything the Defendants employees asked of the voter. This

is unjust.

2. This action seeks to maintain the status quo and enjoin the certification of

the vote for Hamilton County Juvenile Court Judge until the Court can determine the

rights of provisional voters whose ballots have been rejected by Defendants even though

the reason for the rejection may be due solely to poll worker error. Principles of Due

Process and Equal Protection require that demonstrated poll worker error should not deny

to citizens their right to have their vote counted.

II. JURISDICTION AND VENUE

3. Jurisdiction over the federal claims is conferred on this Court by 28 U.S.C.

§ 1331 and § 1343(3) and (4). Venue is proper under 28 U.S.C. § 1391 and Local Rule

82.1 (c).

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Case: 1:10-cv-00820-SJD Doe #: 1 Filed: 11/21/10 Page: 3 of 16 PAGEID #: 3

III. PARTIES

4. Plaintiff Tracie Hunter is a resident of Hamilton County, Ohio. She is a

registered voter in Hamilton County, Ohio. She is a candidate for Hamilton County

Juvenile Court Judge in the November 2, 2010 general election.

5. Defendant Hamilton County Board of Elections ("BOE") is the Ohio

Secretary of State's representative for county election matters in Hamilton County, Ohio

(ORC § 3501.06). The Hamilton County Board of Elections is responsible for

determining which provisional ballots shall be approved for counting in an election. The

Board is sued for injunctive relief only.

6. The chair and members of the Hamilton County Board of Elections (BOE)

are responsible for determining which provisional ballots shall be approved for counting

in an election. The chair and members are sued in their official capacities only.

IV. FACTS

A. The Juvenile Court Election Results

7. Tracie Hunter is a candidate for election to the office of Hamilton County

Juvenile Court in the November 2010 general election. The BOE reported on election

night that a total of 279,489 votes were cast in the County wide race for Juvenile Court.

Ms. Hunter garnered 109,512 of the votes. Her opponent received 112,359 votes. Ms.

Hunter was behind by 2,847 votes as of the unofficial and incomplete count that night.

8. After election night the BOE reported that there were approximately 1,500

additional ballots to be counted: eligible absentee ballots that had arrived after

November 2, 2010 and unscanned ballots that were damaged or unable to be scanned on

3

State ex ►el. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 4, p. 3


election night. In addition, more than 11,000 provisional ballots had been cast in

Hamilton County and those needed to be reviewed and counted.

9. During two Board meetings on November 16, 2010 and November 19,

2010, the Board voted on all the provisional ballots and the unscanned and the late

arriving absentee ballots. The Board approved over 9,000 provisional ballots and

rejected about 2,000 provisional ballots.

10. On the evening of November 19, 2010, the BOE announced on its website

the new totals for the Juvenile Court race. There were 289,791 votes cast.' Tracie

Hunter's total rose to 114,966 votes. Her opponents total was 114,989 votes. Ms. Hunter

closed the gap from 2,847 votes to 23 votes. Thus, as of today she is only 23 votes

behind her opponent.

11. This narrow gap makes her eligible for an automatic recount. But a recount

reviews only the votes determined eligible before the official count is certified. Thus a

recount will not address the problem in this case - the failure to count the ballots of

voters who voted in the wrong precinct due solely to poll worker error.

B. The Provisional Balloting System in Hamilton County

12. All duly registered and eligible voters in Hamilton County were permitted to

vote in the November 2010 general election. O.R.C. § 3505.18.

13. If a voter is unable to cast a regular ballot, a voter is permitted to cast a

provisional ballot for a multitude of reasons, including, the voter's name does not appear

on the voting list at the precinct, or the voter is unable to provide proper identification, or

I Of the 289,791 cast, 92 ballots over-voted (voted for both candidates so neither vote counted) and59,744 voters did not vote for either judicial candidate in this race.

4



the voter is challenged, or the voter has requested an absentee ballot, among others.

O.R.C. § 3505.181 (A).

14. A provisional ballot cast in the wrong precinct is not to be opened or

counted, O.R.C. § 3505.181 (C). However, if a voter believes she is in the correct

precinct but the poll worker believes the voter is in the wrong precinct, the poll worker

has a duty to direct the voter to the correct precinct. The poll worker can also allow the

voter to cast a provisional vote at the current precinct, but the poll worker must warn the

voter that if the current precinct is the wrong precinct, the ballot will not be counted. The

poll worker must give the voter the telephone number of the board of elections. O.R.C. §

3505.181 (C) (1). The statute does not address whether or not a ballot is to be counted if

poll worker error causes the voter to incorrectly vote provisionally, i.e., in the wrong

precinct.

15. There are several other polices and practices that allow otherwise invalid

provisional ballots to be counted if there is poll worker error.

16. The Ohio Secretary of State issued Directive 2010-74 on November 1, 2010

regarding guidelines for determining the validity of provisional ballots. Exhibit A

attached. Directive 2010-74 orders Boards of Election to count a provisional ballot, even

though it was cast in the wrong precinct, under the following circumstance: the voterwas

in the correct polling location, but voted in the wrong precinct; the voter used as

identification the last four digits of his social security number as identification;2 and there

was poll worker error:

2 This directive comes from a Court Order following a consent decree in the case Northeast

Coalition for the Homeless v. Brunner, S.D. Ohio No. 2:06-ov-896 (Marbley, J.). That case focused onhomeless voter's right to cast provisional ballots. The prohibition on rejecting provisional ballots cast in

5



"In detennining the eligibility of a provisional ballot cast by a voter who usesonly the last four digits of his or her Social Security number as identification,the board staff must attempt to determine whether a potentially disqualifyingflaw in the ballot is attributable to poll worker error. An otherwise qualifyingprovisional ballot may not be rejected for reasons that are attributable to pollworker errors." Directive 2010-74 p. 7.

17. Directive 2010-74 goes on to provide some examples where provisional

ballots shall not be rejected due to poll worker error at pp. 11-12. For example, if a voter

declines to sign the provisional ballot affirmation, the poll worker must indicate the

voter's declination on the poll worker verification form. However, when the voter fails to

sign the provisional ballot affirmation statement but the poll worker signs the verification

statement that the voter has completed the affirmation and fails to verify that the voter

declined to complete the affirmation, the Board has a duty to further investigate and

question the poll worker.

"If this occurs, the board of elections should, either in writing, with writtenresponse from the poll worker, or at a public meeting of the board, questionthe poll workers in that precinct to determine whether they followed theboard's instructions for completing the verification statement, both as to thespecific ballot in question and in general on Election Day. Where a pollworker's response indicates that he or she did not properly complete theverification statement, that response and the completed poll worker

. • . • • .•.. _ .L_.aL...-.,11 .....«Lev ALl n.4verification statement provide objective evtucuw nia^ tnc Pc.. vrv,nv. ... =,..a

ensure that the voter had completed the affinnatiom before the poll workerfilled out the verification statement portion of SOS Form 12-B." Directive

2010-74 p. 11.

18. Another example of poll worker error is when there are notations in the poll

book indicating that a poll worker directed the voter to the wrong precinct at a polling

location containing multiple precincts (sometimes referred to as "right location, wrong

table" or "right church, wrong pew"). The Secretary of State directed Boards of election

to investigate these provisional ballots. "Because it is a poll worker's duty to ensure that

the right location, wrong precinct, applies only to voters using the last four digits of their social security

6



the voter is directed to the correct precinct" the Board can use the notations as evidence

that the poll worker did not properly carry out her duties. In that case the board should

"either in writing, with written responses from the poll workers, or at a public meeting of the

board, question the poll workers in that polling location to determine whether they followed

the board's instructions for ensuring that voters were directed to the correct precinct."

Directive 2010-74 p. 12.

19. Likewise, the Board should make the same inquiry if there are multiple

provisional ballots cast in the correct location but wrong precinct. Id.

20. The Ohio Supreme Court held in State ex rel. Skaggs v. Brunner, 120 Ohio

St. 3d 506, 2008-Ohio-6333 (2008) that it was not reasonable for the Secretary of State to

change how provisional ballots are to be counted after some counties have already

counted the ballots. However, the court indicated that the Secretary of State would be

reasonable in prohibiting the rejection of provisional ballots cast due to poll worker error

if there is evidence of poll worker error. The Supreme Court acknowledged that the

statutory scheme for casting, processing, and counting provisional ballots was "far from

lucid" and called on the General Assembly to amend the laws so every vote is counted.

Id. at 527.

21. The General Assembly has not amended the provisional balloting statutes

since Skaggs. Absent any amendments, the Secretary of State and local Boards of

elections are left without statutory guidance to determine how to count provisional

ballots.

numbers as identification.



22. The Hamilton County Board of Elections has created a practice of

investigating if there is poll worker error and if poll worker error is found, of accepting

provisional ballots.

23. At the Board meeting on November 16, 2010, the Board spent three hours

carefully scrutinizing the provisional ballots to determine whether they should be

counted. About 8,260 provisional ballots were approved for counting without any

significant discussion. The remaining provisional ballots were investigated, discussed,

examined, and voted on by the Board to determine if they should be counted.

24. Provisional ballots are sealed in an envelope where the voter has to fill out

an affirmation saying she solemnly swears or affirms that "I ... solemnly swear or affirm

that I am a registered voter in the jurisdiction in which I am voting this provisional ballot

and that I am eligible to vote in the election in which I am voting this provisional ballot. .

;' Voters sign the affirmation under the pains and penalty of falsification. O.R.C. §

3505.182.

25. The BOE carefully examined the provisional ballot envelopes to determine

whether the provisional ballot was correct or should be rejected. In many cases the board

members asked questions of the board staff, read the notes on the provisional envelopes,

read the notes in the pollbooks, and inquired if there was a call on the BOE help line on

election day regarding this voter.

26. In all cases where the provisional ballot had a mistake and the BOE found

poll worker error, the BOE voted to approve the provisional ballot to be counted. For

example, 26 provisional ballots had been cast in the wrong precinct. The ballots had

been cast at the Board of Elections downtown. The Board members asked their staff how

8


Case: 1:10-cv-00820-SJD Doc #: 1 Filed: 11/21110 Page: 9 of 16 PAGEID #: 9

could a voter come down to the Board to vote and be handed the wrong ballot. The

answer was poll worker error. The staff recommended the votes be counted. Legal

Counsel to the BOE opined that the recommendation was appropriate. The Board

unanimously voted to approve these provisional ballots, even though the ballots were cast

in the wrong precinct. Exhibit B attached (transcript of 11-16-10 Board meeting) pp. 40-

46.

27. There were 685 provisional ballot envelopes where the poll worker filled in

contradictory information stating both that the voter did provide identification and stating

the voter was required to provide additional information to the Board. The Board staff

investigated the voters to make sure they were registered voters and recommended the

votes be counted even though the voters did not bring identification to the Board. BOE

Legal counsel agreed that this circumstance fell within the Secretary of State's directive

on poll worker error. The Board agreed to unanimously approve these ballots. Exhibit B

pp. 29-33.

28. The Board staff investigated ten ballots where the voter had not signed the

envelope and found that the voter should not have been required to vote a provisional

ballot. Because the poll worker must have erred in making the voter vote a provisional

ballot, the ballot was accepted by the Board even though the envelope was not signed.

Exhibit B pp. 71-72.

29. At the November 19, 2010 board meeting the staff found additional ballots

where poll worker error was found. The staff opened several provisional envelopes

where the envelope listed the correct precinct but when the envelope was opened the

9



ballot inside was for the wrong precinct. The Board unanimously agreed to count the

ballots even though they were cast in the wrong precinct because of poll worker error.

C. Poll Worker Error in This Case

30. The Board rejected 849 provisional ballots because the voter voted in the

wrong precinct. Some of the voters in this group voted in the correct polling location but

voted at the wrong table (wrong precinct). Board member Faux stated that he was

concerned that the reason somebody would end up voting at the wrong table "had more to

do with directions they were given by the inside poll workers than it did with their own

ineptitude." Nevertheless the Board did not separate out of the 849 provisionals those

ballots cast in the right location but at the wrong table, Nor did the Board investigate

whether there was poll worker error. In other situations the Board asked staff questions,

checked the pollbook, and inquired if there were calls to the help line. In this situation

the Board did none of that. The Board unanimously voted to reject all 849 ballots.

Exhibit B pp. 24- 40.

31. The Board did not follow the Secretary of State's directive in the situation

of the right location, wrong precinct, where the Board is directed to contact the poll

workers to determine whether they followed the board's instructions for ensuring voters

were directed to the correct precinct.

32. Counsel for Ms. Hunter asked the Board to reconsider the 849 votes it

rejected and consider poll worker error, as it had with other provisional ballots. The

Board declined. Exhibit B pp. 46-49. Counsel raised the issue again at the Board

meeting on November 19, 2010 and the Board again declined.

10



33. Plaintiff and her counsel also sought access to the provisional ballot

envelopes, poll books, names of provisional voters and precincts where they voted but

were denied access by Defendants on the grounds that the information sought was not a

public record before the Board certifies the results. Exhibit C (letter from Joe Deters

November 19, 2010).

34. The Board also rejected a number of provisional ballots where the voter

either did not print their name on the affirmation on the envelope but signed the envelope

or printed their name but did not sign the envelope. The Board rejected these ballots

without determining whether the poll worker error was involved.

35. The Board rejected a number of additional provisional ballots for various

reasons without determining whether there was poll worker error.

36. The BOE is scheduled to meet Tuesday November 23, 2010 at 9:00 a.m. to

certify the election results. Because the margin of victory in the Juvenile Court race is

less than one half of one percent of the votes cast, the BOE must order a recount of the

race.

37. If the BOE certifies the results and orders a recount, without including the

additional provisional ballots that were rejected due to poll worker error, Plaintiff Tracie

Hunter will suffer irreparable harm in that all the votes cast in the race will not be

counted.

38. The BOE has arbitrarily and knowingly denied citizens of Hamilton County

to right to vote in violation of the equal protection clause of the Fourteenth Amendment

to the U.S. Constitution by refusing, without any reasonable basis, to investigate whether

poll worker error caused some voters to vote at the right polling place but at the wrong

11



table while otherwise investigating similarly situated circumstances where poll worker

error caused a voter to vote in the wrong precinct. The BOE has arbitrarily and

knowingly denied citizens of Hamilton County the right to vote in violation of the equal

protection clause of the Fourteenth Amendment to the U.S. Constitution by arbitrarily

allowing some provisional voters the right to vote when the error in the ballot was caused

by the poll worker, but denying other provisional voters the right to vote when the error

in the ballot was caused by the poll worker.

39. Defendant Hamilton County Board of Election's system of rejecting

provisional ballots is so unfair that it denies or fundamentally burdens Ohioan's

fundamental right to vote. Denying a provisional voter his or her right to vote is a severe

burden on that voter's right to vote.

40. Defendant BOE has shown that it has an interest in counting the votes of

provisional voters when there is poll worker error. It also has an interest in making sure

there is no fraud in casting a vote. When balancing these interests with the provisional

voter's severe burden of having their vote rejected, the BOE's decision to reject these

votes without considering poll worker error is not narrowly tailored to serve the BOE's

interest.

D. Need for Injunction

41. There is no adequate remedy at law that would enjoin the Defendants from

certifying the election or that would order Defendants to include certain rejected

provisional votes in the certification before a recount.

42. Plaintiff has demonstrated a substantial likelihood of success in this matter.

The Board has acted arbitrarily by refusing to investigate poll worker error when voters

12



cast a ballot in the right polling place but at the wrong table or precinct and has acted

without due process by rejecting these ballots without narrowly tailoring its rejection of

provisional ballots to those that were cast in error due to some reason other than poll

worker error.

43. Plaintiff will be denied her right to have all the eligible votes cast in her race

counted by the BOE. Moreover, the public deserves a system where provisional ballots

are not rejected solely due to poll worker error. The need is urgent for court action on

this pressing problem. Only prompt action by this federal court ordering declaratory and

injunctive relief will serve the public interest.

CLAIM FOR RELIEF

First Claim - 42 U.S.C. §1983 - - United States Constitution

44. Defendants, acting under color of law, have violated rights secured to the

Plaintiff by the Fourteenth Amendment to the United States Constitution including the

right to due process of law and the right to equal protection under the law.

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests that this Court:

A. Issue a Declaratory Judgment that the practices at issue in this case violate

the constitutional rights of Plaintiff;

B. Issue a preliminary and permanent injunction against the Defendants and

all those acting in concert prohibiting rejection of provisional ballots due

to poll worker error;

C. Issue a preliminary and permanent injunction against the Defendants

ordering Defendants to notify all provisional voters that their ballot was

13



rejected and provide each an opportunity to explain if there was poll

worker error (i.e., voted in the wrong precinct because poll worker told

voter where to go).

D. Issue a preliminary and permanent injunction against the Defendants

ordering Defendants to review all rejected provisional ballots for poll

worker error, including reading all poll worker notes on the envelopes, in

the poll books, or other documents; reviewing the help line notes; and

inquiring of poll workers regarding their actions; and

E. Issue a preliminary and permanent injunction against the Defendants

ordering Defendants to approve for counting all provisional ballots where

poll worker error was demonstrated.

F. Award to Plaintiffs reasonable costs, expenses and attorney fees;

G. Award such other and further relief as this court shall deem just and

reasonable.


/s/ Jennifer L. BranchJennifer L. Branch #0038893Trial Attorney for the PlaintiffGERHARDSTEIN & BRANCHCO. LPAAlphonse A. Gerhardstein #0032053Attorney for the Plaintiff432 Walnut Street, Suite 400Cincinnati, Ohio 45202(513) 621-9100(513) 345-5543 faxj branch (>gbfirm.comagerhardstein(a^ebfirm.com

14


Case No. 2010-2205 Ex. 4, p. 14

NOV-21-2010 18:16 P.02Case: 1:10-cv-00820-SJD Doc #: 1 Filed: 11/21/10 Page: 15 of 16 PAGEID #: 15

VERIFICATION

I, Tracie Hunter, pursuant to 28 U.S.C. § 1746, declare under the penalty of perjury

under the United States of America that the following is true and correct.

1. The allegations in this complaint are true and accurate to the best of my

knowledge.

2. The attached exhibits are true and accurate copies of public records obtained by

me or my counsel.

Executed: November 21, 2010

State ex ret. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 4, p. 15


CERTIFICATION

I, Jennifer L. Branch, pursuant to 28 U.S.C. § 1746, declare under the penalty of

perjury under the United States of America that the following is true and correct.

1. I will give notice by email and phone to David Stevenson, counsel for Defendants

as soon as this pleading is filed with the Court.

2. I cannot guarantee that Mr. Stevenson will receive the notice prior to this court

setting a hearing for the Temporary Restraining Order.

3. Time is of the essence since the Board of Elections is currently scheduled to vote

to certify the November 2010 general election at 9:00 a.m. on Tuesday, November

23, 2010.

J



UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF OHIOFOR THE WESTERN DIVISION

TRACIE HUNTER CASE NO. 1:10-cv-820

Plaintiff,

-vs- JUDGE DLOTT

HAMILTON COUNTY BOARD OFELECTIONS, et al., JOHN WILLIAMS CAMPAIGN

MOTION TO INTERVENEDefendants.

Pursuant to Fed. R. Civ. P. 24(a), John Williams ("Mr. Williams"), by and through

counsel, moves this Court for leave to intervene as a Defendant in this action as a

matter of right. Mr. Williams has a substantial legal interest that may be impaired by the

disposition of this action and the existing parties do not adequately represent that

interest. Alternatively, Mr. Williams moves for permissive intervention under Fed. R. Civ.

P. 24(b) as there are common questions of law and fact between Mr. Williams and the

nama__rl narties in this litiaation. The bases for this Motion are set forth in the........

accompanying Memorandum in Support. Pursuant to Fed. R. Civ. P. 24(c), Mr.

Williamss proposed Answer is attached hereto as Exhibit A.


R. Joseph Parker (0018069)Beth A. Bryan (0082076)Taft Stettinius & Hollister LLP425 Walnut Street, Suite 1800Cincinnati, OH 45202-3957Phone: (513) 381-2838Fax (513) 381-0205dornette@taftlaw. [email protected]

12002470.1State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 5, p. 1


MEMORANDUM IN SUPPORT

1. INTRODUCTION

Plaintiff Tracie Hunter ("Hunter") initiated this action against the Hamilton County

Board of Elections (the "Board") and its members, Alex Triantifilou ("Triantifilou"),

Timothy Burke ("Burke"), Caleb Faux ("Faux") and Charles "Chip" Gerhardt, III

("Gerhardt") (collectively, "Defendants"), alleging that her civil rights were violated by the

Defendants' improper actions as it pertained to the race for Hamilton County Juvenile

Court Judge between Mr. Williams and Hunter. (PI. Verified Compl. ¶¶ 1, 30-40).

Hunter requests that this Court enjoin the certification of the vote for Hamilton County

Juvenile Court Judge until the Court can determine the rights of provisional voters

whose ballots have been wrongfully rejected. (PI. Verified Compl. ¶2).

Mr. Williams should be permitted to intervene because the Motion is timely, Mr.

Williams has a direct and substantial legal interest that may be impaired by the

disposition of this action in its absence and the existing parties do not adequately

represent that interest. Therefore, Mr. Williams respectfully requests that this Court

grant its Motion to Intervene in this action.

II. ARGUMENT

A. Pursuant to Fed. R. Civ. P. 24(a), Mr. Williams Is Entitled To Intervene As Of

Right.

Intervention of right is governed by Fed. R. Civ. P. 24(a) which provides, in

pertinent part:

Intervention of Right. On timely motion anyone the Court must permit anyone tointervene who ...(2) claims an interest relating to the ... transaction which isthe subject of the action and is so situated that disposing of the action may as apractical matter impair or impede the movant's ability to protect that interest,unless existing parties adequately represent that interest.

-2-12002470.1

State ex rel. Painter,et al., v. Brunner, et al. Respondent's Merit Brief

Case No. 2010-2205Ex. 5, p. 2


Fed. R. Civ. P. (24)(a)(2). A movant is entitled to intervene as of right under when it

demonstrates each of the following: "(1) timeliness of the application to intervene; (2)

the movant's substantial legal interest in the case; (3) impairment of the movant's ability

to protect that interest in the absence of intervention; and (4) inadequate representation

of that interest by parties already before the court." Michigan State AFL-CIO v. Miller,

103 F.3d 1240, 1245 (6th Cir. 1997). As set forth herein, Mr. Williams has met each of

these requirements. Accordingly, it is entitled to intervene in this action as of right.

1. Mr. Williams' Application is Timely

The Sixth Circuit has directed district courts to consider the following factors in

determining whether a motion to intervene is timely:

(1) the point to which the suit has progressed;

(2) the purpose for which intervention is sought;

(3) the length of time preceding the application during which theproposed intervenors knew or should have known of their interest inthe case;

(4) the prejudice to the original parties due to the proposed intervenor's

(5)

faiiiirP tn nrnmntiv intervene after thev knew or reasonably should......-.._._r.-...^..j...____ _„

have known of their interest in the case; and

the existence of unusual circumstances militating against or in favorof intervention.

Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989); see also St. Paul Fire & Marine Ins.

Co. v. Summit-Warren Indus., 143 F.R.D. 129 (N.D.Ohio 1992).

Here, there is no question as to the timeliness of Mr. Williams' Motion to

Intervene. Plaintiff initiated this action on November 21, 2010 (one day ago). In

addition, Mr. Williams is not requesting a continuance of any hearing. Accordingly, Mr.

Williams' motion will not cause any prejudice to the Plaintiff or the named Defendants.

-3-12002470.1



2. Mr. Williams possesses a significant legal interest in the results ofthe election, which Plaintiff alleges is at issue in this action.

There is no clear definition of what constitutes an "interest" for purposes of

intervention under Fed. R. Civ. P. 24(a)(2). Bradley v. Milliken, 828 F.2d 1186, 1192

(6th Cir. 1987). The Sixth Circuit has opted "for a rather expansive notion of the

interests sufficient to invoke intervention of right," and "close cases should be resolved

in favor of recognizing an interest under Rule 24(a)." Indiana Insurance Co. v. Midwest

Maintenance, 2000 WL 987829 (S.D. Ohio 2000), citing Michigan State AFL-CIO v.

Miller, 103 F.3d 1240, 1245 (6th Cir. 1997); Grutter, 188 F.3d at 399.

Here, Mr. Williams undoubtedly has a direct and significant interest in the claims

asserted by the Plaintiff. Specifically, Mr. Williams represented candidate John

Williams, who was ruled the winner of the election that the Plaintiff is contesting.

Therefore, Mr. Williams has a direct and significant interest in the claims asserted by the

Plaintiff.

3. Disposition of this action in the absence of Mr. Williams will impairits ability to protect its interest.

Where a prospective intervenor can show that impairment of its substantial legal

interest is possible if intervention is denied, the prospective intervenor has met its

burden. See Grutter, 188 F.3d at 399. In order to satisfy this element, an applicant-in-

intervention must only establish that impairment of its substantial legal interest is

possible should intervention be denied. See Michigan State AFL-CIO v. Miller, 103 F.3d

1240, 1245 (6th Cir. 1997); Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991).

Here, once again, Mr. Williams easily satisfies this burden. If Mr. Williams is not

made a party to this action, John Williams' significant legal interest in asserting that the

-4-12002470.1


Case No. 2010-2205 Ex. 5, p. 4


election was lawful would be drastically impaired, particularly given that an adverse

ruling by this Court could result in John Williams not being permitted to serve as a

Hamilton County Juvenile Court Judge. Accordingly, Mr. Williams has exceeded its

minimal burden of showing impairment of its interest in its absence and a grant of leave

to intervene is warranted.

4. Mr. Williams will not be adequately represented by the existingparties to the case.

Closely related to the third prong of the test is the final requirement of Fed. R.

Civ. P. 24(a) that the parties to the proceedings will not adequately protect the potential

intervenor's interests. Again, the burden of proving the inadequacy "is a minimal one."

Fairview Gen. Hosp. v. Fletcher (1990), 69 Ohio App.3d 827, 834, 591 N.E.2d 1312,

citing Trbovich v. United Mine Workers of Am., 404 U.S. 528, 92 S.Ct. 630 (1972). It is

"sufficient that the movant[] prove that representation mav be inadequate." Miller, 103

F.3d at 1247 (emphasis added); Linton v. Comm'r of Health and Environment, State of

Tenn., 973 F.2d 1311, 1319 (6th Cir. 1991); Grutter,188 F.3d at 400 ("there can only be

+hA nn4pn4ialfnr inarfPnuate renresentation°) (emphasis added).

Here, Mr. Williams' interests may not be adequately represented by the existing

parties because the Board is merely concerned that the election was lawful, whereas,

Mr. Williams is not only concerned that the law is followed, but additionally, that John

Williams is declared the winner of the election. This distinction renders Mr. Williams'

participation as a party imperative.

-5-12002470.1


Case No. 2010-2205 Ex. 5, p. 5


B. Alternatively, Permissive Intervention Should Be Allowed Under Fed. R.Civ. P. 24 (b).

Fed. R. Civ. P. 24(b)(2) provides for permissive intervention where the motion is

timely and when a movant "has a claim or defense that shares with the main action a

common question of law or fact in common ...[provided that] intervention will [not]

delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P.

24(b)(2), (3). As set forth above, Plaintiff, Mr. Williams, and the named Defendants all

have a question of law or fact in common - the lawfulness of the election. Therefore, if

this Court declines to grant intervention as a matter of right, Mr. Williams respectfully

requests that this Court grant leave to intervene Pursuant to Fed. R. Civ. P. 24(b)(2).1

III. CONCLUSION

Pursuant to Fed. R. Civ. P. 24(a), Mr. Williams has satisfied the four elements

necessary to show that it is entitled to intervene as of right in this action brought by

Plaintiff. The Motion is timely, Mr. Williams has a direct and substantial legal interest

that may be impaired by the disposition of this action in its absence and the existing

nartiPq rtn nnt adenuatelv renresent that interest. Therefore, . Mr. Williams respectfully^^...____.._____^_.___.+-_^-____.__._

requests that this Court grant its Motion to Intervene in this action.

' R.C. 3515.08 et seq. contemplates the inclusion of both the contestor (here, Hunter) and the contestee(here, John Williams) in an election contest. R.C. 3515.09 (stating that "the contestor and the personwhose right to the nomination or election to such office is being contested, to be known as the contestee,shall be liable to the officers and witnesses for the costs made by them respectively; but if the results ofthe nomination or election are confirmed or the petition is dismissed or the prosecution fails, judgmentshall be rendered against the contestor for the costs; and if the judgment is against the contestee or if theresults of the nomination or election are set aside, the county shall pay the costs as other electionexpenses are paid.") Here, even though the Hunter has improperly filed this action, this Court should notallow the Hunter to circumvent the protections of the contestee to participate in the action afforded understate law. Therefore, Mr. Williams's Motion should be granted.

-6-12002470.1




/s/ R. Joseph ParkerR. Joseph Parker (0018069)Beth A. Bryan (0082076)Taft Stettinius & Hollister LLP425 Walnut Street, Suite 1800Cincinnati, OH 45202-3957Phone: (513) 381-2838Fax (513) [email protected]@taftlaw.com

-7-12002470.1


Case No. 2010-2205 Ex. 5, p. 7


CERTIFICATE OF SERVICE

I hereby certify that on November 22, 2010, this Motion was filed electronicallywith the Clerk of the Court using the CM/ECF system, which will send a notice ofelectronic filing to all parties.

/s/ Beth A. BryanBeth A. Bryan

-8-12002470.1



UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF OHIOFOR THE WESTERN DIVISION

TRACIE HUNTER, Case No. 1:10-cv-820

PLAINTIFF, Judge Dlott

V.

HAMILTON COUNTY BOARD OFELECTIONS, et al.,

DEFENDANTS.

NOTICE OF APPEAL

Please take notice that Defendant John Williams hereby appeals to the United States

Court of Appeals for the Sixth Circuit from the Order entered in this action on November 22,

2010, granting a preliminary injunction requiring that the Hamilton County Board of Elections

undertake an investigation into whether 849 provisional ballots cast in the November 2, 2010

election at the correct polling place but wrong precinct were cast in the wrong precinct as a result

of poll worker error.


/s/ R. Joseph ParkerR. Joseph ParkerBeth A. BryanTaft Stettinius & Hollister LLP425 Walnut Street, Suite 1800Cincinnati, OH 45202-3957Tel.: 513.381.2838Fax: 513.381.0205

Attorneys for John Williams




I hereby certify that the foregoing was filed on November 23, 2010 using the Court's

CM/ECF system, which will transmit notice of the filing to all counsel of record in this case.

/s/ Beth A. BryanBeth A. Bryan

12002763.1State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 6, p. 2


No. 10-4481

UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

TRACIE HUNTER, Committee to Elect Tracie M.

Hunter for Judge,

Plaintiff - Appellee,

NORTHEAST OHIO COALITION FOR THEHOMELESS; OHIO DEMOCRATIC PARTY,

Intervenors - Appellees,

V.

FILEDDec 01, 2010

LEONARD GREEN, Clerk

ORDER

HAMILTON COUNTY BOARD OFELECTIONS, et al.,

Defendants,

JOHN WILLIAMS,

hitervenor - Appellant

OHIO REPUBLICAN PARTY,

Amicus Curiae.

Before: MERRITT, GILMAN, and COOK, Circuit Judges.

Following an emergency hearing, the district court issued a preliminary injunction directing

the Hamilton County Board of Elections ("Board") to "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." At the same time, the court denied a

request to stay the Board's "certifying abstracts of the results of the November 2 election." John



No. 10-4481-2-

Williams was leading the race by 23 votes at the time the Board initially approved the election

results. He appeals the district court's order and moves for a stay of that order. On November 24,

2010, a temporary stay was granted to permit consideration by a full panel of this court.

The factors relevant to a stay pending appeal are: 1) whether the stay applicant has

demonstrated a likelihood of success on the merits; 2) whether the stay applicant will be irreparably

injured absent a stay; 3) whether issuance of the stay will substantially injure the other interested

parties; and 4) where the public interest lies. Family Trust Found. of Ky., Inc. v. Ky. Judicial

Conduct Comm'n, 388 F.3d 224, 227 (6th Cir. 2004).

Williams argues that a stay is necessary to prevent irreparable harm. The claim of irreparable

harm is based primarily upon the possible opening and counting of the provisional ballots in

question. Ohio law provides that in counting provisional ballots, "[n]o person shall recklessly

disclose the count or any portion of the count ofprovisional ballots in such a manner as to jeopardize

the secrecy of any individual ballot." Ohio Rev. Code § 3505.183(D). Williams argues that if a

ballot is removed, separated from its envelope, and later deemed to have been incorrectly counted,

it will be impossible to undo the act-"opening the provisional ballots would ring a bell that cannot

be unrung." But the challenge in this case appears to not be over individual ballots, but the treatment

of groups of ballots. A group of provisional ballots can be segregated after opening without

jeopardizing the secrecy of an individual ballot. We thus are unconvinced that Williams faces

irreparable harm in the absence of a stay.

We next tucn to whether Williams has demonstrated a likelihood of success on the merits.

In reviewing which provisional ballots to count, the Board counted 26 provisional ballots that were

cast in early voting at its main office on the incorrect precinct-ballot form. The Board decided to

count these 26 ballots because it concluded that incorrect precinct-ballot forms were used solely due



No. 10-4481-3-

to poll-worker error. But the Board decided not to count 849 provisional ballots that were cast in

the wrong precinct at the regular polling stations on election day without investigating whether poll-

worker error was equally at fault in causing any of these ballots to be cast in the wrong precinct.

This disparate treatment--counting the 26 wrong-precinct ballots based on poll-worker error during

early voting without similarly investigating whether poll-worker error led to any of the 849 ballots

being cast in the wrong precinct on election day-forms the basis for the injunctive order in this

case. We cannot conclude that the district court abused its discretion in determining that this

disparate treatment made it "likely enough that [the likelihood-of-success] factor weighs in favor of

granting the preliminary injunction." See United States StudentAss'n Found, v. Land, 546 F.3d 373,

380 (6th Cir. 2008) (reviewing a district court's decision to grant a preliminary injunction under the

abuse-of-discretion standard). This analysis weighs against Williams's motion to stay the district

court's preliminary injunction.

1___at__ cl-_ L_la^.....f1L,. f....4..«., A...... ....4.. ^Ae. .. k.^ .ev r441o n4inn fL^U1LL101, bllu UZIl[111GG Vl 111G 1O113Allllll

,.s 10.\.W1J UVGJ 11V11J1.1JUaUV tiJ w Siaub ull. 11iv.avu iw u

stay. This case shall thus proceed in the normal course. See Moltan Co. v. Eagle-Picherlndus., Inc.,

55 F.3d 1171, 1174 (6th Cir. 1995) (holding that appeal from preliminary injunction does not divest

the district court of jurisdiction to proceed on the merits).

Therefore, the motion for a stay is DENIED, and the temporary stay is DISSOLVED.

ENTERED BY ORDER OF THE COURT

Clerk

State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010•2205 Ex. 7, p. 3


UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540Leonard Green POTTER STEWART U.S. COURTHOUSE Tel. (513) 564-7000

Clerk CINCINNATI, OHIO 45202-3988 www ca6.uscourts.eov

Filed: December 01, 2010

Ms. Jennifer L. BranchGerhardstein & Branch432 Walnut StreetSuite 400Cincinnati, OH 45202

Mr. Timothy Michael BurkeManley Burke225 W. Court StreetCincinnati, OH 45202

Mr. W. Stuart DometteTaft, Stettinius & Hollister425 Walnut StreetSuite 1800Cincinnati, OH 45202

Ms. Caroline H. GentryPorter, Wright, Morris & ArthurOne S. Main StreetSuite 1600 One Dayton CentreDayton, OH 45402

Mr. Alphonse A. GerhardsteinGerhardstein & Branch432 Walnut StreetSuite 400Cincinnati, OH 45202

Mr. James W. HarperHamilton County Prosecutor's Office




230 E. Ninth StreetSuite 4000Cincinnati, OH 45202

Mr. Mark A. McGinnisMeTigue & McGinnis545 E. Town StreetColumbus, OH 43215

Mr. Donald J. McTigue3886 N. High StreetColumbus, OH 43214-0000

Mr. John B. NalbandianTaft, Stettinius & Hollister425 Walnut StreetSuite 1800Cincinnati, OH 45202

Mr. R. Joseph ParkerTaft, Stettinius & Hollister425 Walnut StreetSuite 1800Cincinnati, OH 45202

Mr. James Preston SchuckBricker & Eckler100 S. Third StreetColumbus, OH 43215

Ms. Anne M. SferraBricker & Eckler100 S. Third StreetColumbus, OH 43215

Mr. David Todd StevensonHamilton County Prosecutor's Office230 E. Ninth StreetSuite 4000Cincinnati, OH 45202

Re: Case No. 10-4481, Tracie Hunter v. Hamilton County Board of Elect

Originating Case No. : 10-00820

Dear Sir or Madam,



The Court issued the enclosed (Order/Opinion) today in this case.

Sincerely yours,

s/Florence P. EbertCase ManagerDirect Dial No. 513-564-7026Fax No. 513-564-7098

cc: Mr. James Bonini

Enclosure


J'ENNRFER BF'i.UNNE;ROHIC} SECRETARY CqF STATE

E80 GA$X BPtlqfl SiREET. 16fH rLG,oti

(:Gt.uti!ftti's^. Q4i;e? 437_}5. USA

TtL. 1-577..72.'.7^a,$q6^^ F.au

COUNTY BOARD OP pLECt`I(}NSDIitFCTOR, AND DEPUTY DIRECTCIT{

RE: Supplemental Procedures Regarding the 849 Provisional BallotsSubject to the Court

Order in Hitnter

This Directive pro-vides clarification to the I-Iamilton County Board of Elections regarding thecounting of provisiirnal ballots pursuant to Directives 2010-73, 20io-74, and 2oao=79 andreflects changed cireumstances as a result of my resolution of the tie vote matter regardixig tlieappeal of the decision of Chief. Judge Susan Dlott of the U.S. District Court for the SouthernDistrict of Ohio in Hrtnter v. Fi¢rntYton Cty &d. of GTectitlns, S.D. Ohio Case No. iati-ev-oo820,on November 22, 2trio, and the U.S. Sixth Circutt Court of Appeals' ordei dissolv"mg its earherstay of tliat decisioii issued December i, 2ctio. tturt}or v. Flmrtiltcm Cty Bd. of !i"Teetro»s, SixthCircuit Case No, ztt=4481. In'kight of these changecicircumstaitces, this ITireetive providesmd,3itin,aal inu;clanee to fhe b6ard of elections with reRard to the investigation of $qq provisionxilballots,as ordered by Judge I)3ott.

Poll Worker Error Inouirv under Directives 2oioag, 2oio-74, and 2010

Directives 2010-73, 201o>74, and 2010-79 addres.sed the consent decree in Northeast OQliioCorztition for the Homeless v.l3rurnter, S.D. Ohio Ido. 2:o6-cv-$96 (`?d'EOCF7'), which prohibitsboards of eleetions from rejecting a provisional ballot cast by a voter wlso uses only the lastfour digits of his or lt er Social Securi ty muriber as identification for the following

.er Pro1Rt1C3t dri}r(arT s }ie

r,ztiian requirezt for a ret.ex (lid not provide a datto of bi

voter did not provide an address that is tied to a honse, apartnteait, or vth

reason5:

qualifies as the individual's votuig residence under R.C. 3603.02;4) The voter indicated that he or she is hoineless;5) The voter cast his or her provisional ballot in the wrong precinct, but in the eorrect.

polhng place, for reasons attributable to poll worker error;6) 1r?he voter did not comiplete or properly complete and/or sign the provisional ballot

including liut not limited to a street corner, alley, or highxxay overpass located in theprecinct in wtiich the voter seeks to cast a ballot and that the non-building W-atiirn

prov ida:d tlxat the voter indic:ated that he or she res ides at a non:build`xng Ioca

appl"ication,for ivason:.s attributable to poll worker error; or



Directive 2oio-8o Supplemental Procedures Regarding the 849 Provisional Sailota Subject tothe Court Order int3unter Page 2 of 3

7) The poll Nvorker did not complete or properly c:amplete andJor sign the provisional ballotapplication witness line and/or the pravzsional ballot af£rnFation forrreasons permitted by the governing statutes.

Directive 2o to-79 provided objective criteria for determining poll worker error and additionalsteps for the board of clections to take to determine the validity of the provisional ballots.

iI, Scanc oFthe Ordgr u^ Hitnrer v aanifion^^rttt^Boar o I Igction^.

The order issued by Judge Dlott in the Hunter case requires the Hamilton County Board ofElections to investigate 849 provisional ballots east in the wrong precinct to determine if pollworker error was the reason for the ballots being cast in the wrong precinct and to count anyballots cast in the wrong precinct due to poll worker error. Thus, Judge I}lott's order onlyapplies to the 849 provisional ba#lots cast in the wrong precinct th'at were not previouslycounted by the board of eleetions. However, the investigatiota of poll worker error requited byJudge D1ott's or(ler is broader in the seope than llirectives 2010-73, 2010-74, and 2010-79 inthat, for the 849 provisional ballots at issue, the deterniination of poll worker error is notlimited to persons who voted using only the last four digits of their Spcial security number.

Consequently, this I)ire.>etive provides instructions to the Hamilton County Board of Elections toassist it in complying with Jiv€Ige Dlott's order.

III.Objective Criteria for Determining ljoll Worker Error

As explained in Directive 2010-79, poll worker error occurs when a poll worker acts contrary toor fails to contply with federal or Ohio law or directive issued by the Secretary of State. Pollworkers have a duty to follow federal and state election laws, the directives of the Secretary ofState and the rules, instructions and policies explicitly outlined in the Poll Worker Manual.

In determining whether poll worker error occurred, a baar(i of elections should apply thef€tllow-ing criteria:

i) Did the poll worker carry out his/her duties in accordance with directives and federalan0i a6ateia$r'7

2) Did the po1l worker adhere to the proceduresJguldeliiies otttlined in the PoIt WorkerManual regarding proidsional voting? For exatnple, did the poll worker properly do the

folloiving:

• Check-hi e:.tch voter? ltex-iew the Szxpple2nental Voter List in the back of theSignature Poll 8oolc to find the voter's name (if applicable)?

• C.heek the Precinct Voting l.osation Guide puisuantto R.0.3So5.t8i(E)(?); alsoknown as the :Precinct8tceet D'uwtory, to verify if the voter's current address isin, or ou:t of, the pree.inc.r?

• Examine the identification provided by the voter to determine if it is a valid forniof identificatian7


Case No. 2010-2205 Ex. 8, p. 2

Directive 2oio-8o Supplemental Proecdures Regarthe Court Order in Fturtter

8allots Sub}ect toPage 3 of 3

IV. Add.itional Stens to,petermine Validitv

The court identified 849 provisional ballots that w-ere cast in the wrong precinct and ordered theboard to investigate whet"her poll worker error caused the batlots to be cast in the wrongprecinct. The board must take the following steps during its investigation:

i) Identify the precincts in which the 849 provisonal ballots were cworkers for each of those preciacts;

2) By applying the criteria outlined above in Section III of this Directive, the board shouldcontact each poll worker for the preeinets involved to determinetivhether each follinvedthe board's instructions for ensuring that voters were directed to the eorrect precinct;

3) The board should also question eaeh poll worker to determine whether they followedOhio law, Secretary of State Directives, and the Poll Worker Manual procedures forcasting and processing provisional ballots;

4) The board should examine the poll books for each precinct for indications of poll workererror in directing voters to the wrong precinct; and

5) The board should examine the envelopes fr>r each of the 849 provisional ballots forindications that poll workers directed the voter to the wrnttg precinct.

If the #lamilton County Board of Elections determines through its investigation that any of theprovisional ballots w8re cast in the wrong precinct as a result of poll we Tker error, then thoseballots should be counted as required by Judge Itlott's order.

In addition to the five steps listed above, the board may also c'hoose to interview the individualvoters who cast these provisional ballots for ekidence that the voter was directed by poll workersto the wrong precinet. If the board decides to interview voters as part ctf its investigation, theinterview must be conducted by a bipartisan team of election officials. Moreover, the samequestions should be asked of each voter interviewed to ensure consistent treat[neat of vaters.

7f have nnachrinc abnnt thic T)irr_+r.Yice or tbe eo?n9ent d2erf>', please contaCt theelections.. )...., ,... .y.....,.^..... ..

attomey assigned to your county at 614-455-25$5.

Sin.eerely,


1FFR BRLiÔM9Df7 SEC W. TARS! f5F' .. . h.TE

P£3U E?..sr 6w.GacUNNus, br!TEi.:t7â77-767-9d4

Ncen71'7@r ls}, 20

TO: I-1AMSLTCIN COUNTY BOARD C}MEC.CLONSTuYEld , DIYt:ECPflR, AND DEPIl'1Ì' Di1XCIOR

RE: Supplemxirittsl Po11 Worlwr (Voter) tnvestigation Proeeclurrs

tJn November 30> 2010, the Seimtary of State°s o£Ftce issued D:iMi:iVe 2010-79 a tirequired pr acedrres regarcliug prcrvis'roual ballz3ts east in the Nrxir - 2,2010 <ianeralL;lectinn: in reslscszrse to a fedecal court orcler issnecl by Chief Judge 8uaan J. Ll1rnt fxtr the t3 S.1?i.sttiet Csatirt for the 3outhern TS'istriet t+f Oh#o in 1lunter u. YJ€irreitiort Gty l'd. OfEtecitorzs, 5<17.4kaia Case Nr. 1;1o•cv-0o820, erzr November 22, 2oto, sznci tbe LF.S. Si {;ircsit Coeart of

5' 4rttet " w^ng its eaxlier 5tay rsf :7uclge blcatt^ decisic ri issued ^ C7 ber 2>AealElr^

ppS^re^ry ok^te;s c^f&cc i^^^l lî receit e 20^0 ^3Gt arnlili£j irip t cquireti p ttres.

regardirt^the 8q9 prr^ 15ac^n tllial2ots t#^+t x'eea sulr;je^ to ictilge T51o^C's order in ttutit ^r.

As eaplaina^cl in 13irective aoxo-^^g, po11 vêznonstrated through evidence. I3ir^tives 2eitetermining po11 t+orker errur. ênera3ly, ^,oll

e

failrs to camply wit1^ fecêz aI arrkers lxava a ciuty ta fcslic^w feder il aato and the rules, iustrnctioms, and

The purpose of this Advisory is to provide the Board with specific guidaninvestigation regarding potential poll worker error antl in furtherance offederal court order in FIuoter.

d by tkte Smthe dixectives

A #ti the Po

g theiofthe

nduct a thorough and efficiont inr•estll;atsan that b#ing,sa.1y"ka tinie. In ailcl`stit.n to the procedures exp1%eitly statol in

'^..d isaclvlsetT as to a7l af tfie fbllme mg:

d cnay subpoena poll wtrrkers to give tcstixnnn;y, underoath and recoreled}iy a court rep€arter, abcrutinztructi.ciiis the poll wo.rkers gave to voterswho cast praEdsionalballots in the prauneu being inveshigated and other reItrvAnt

State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205

not be,i?resu0-6o prai#de otrj

urswh.en a poll wrea

Ex. 9, p. 1

{tion Froceilures

occurredtvgarditzg the provisional

question;ade

. IssUingQ rr ` nnai.res Iii I{ex -of 5ubaaenrzs: Tn adclition to Essning subpoerras

Board may send each poll worker a nuestionnaire. For thosc poll workers whe! also wer^issued a subpoena, the questionnaire may specifythat if the questionnaire is eotnpleted

and postmarked N1+ithi.n seven (y) calendar daysf'rom the date thesubpoeena/ziuestionnai.re is sent, the poll worker may be naRlfied by the Board that thepoll w-orkex' daes not hav e to appear and give te,sGimorry pursuaant to the Boarcl"ssnfiipoena:

atx ibrr: The Ba;axd may review doeuttsents rin;the Board to betmr focus its investigation on those ballots ffir

appear to be in(lications fr_onr related documercrtsthat poilwqrker error oceurred, Snch areview, if conducted, may contemporaneouslybe taking place while testimony is takenregarding any poll worlter error, pursuant to strbpoenas or questionnaires or laoth. Thedoc:ument review should be conducted bybi-inrtisnul teams evenly eoni.prised ©fmenibers of the two major political parties, it this case, Democrats and Republicans.The taking of testimony should be under oath and recat'ded by a COurt reptsrter, aSforth beloxv.

The Rpestioning of pall

occur in the presence of the Bortrd at a publie rneeting,d above it must be conducted under exath and Tecordedbya cour't

w ltoard maY appoin t iudivldualsr preferably attorneys, or at least nri

nublies who are authoriaed to take oaths, who are experienced in talcirig nkvhen tluostiOtli7'kg polIworlKeCS. Initial questi'ons ot pi;tll worKc'CS snC3lnapi

,istent from pall woYker to poll worker, vk+ith additional questi oxts being asreflective of wlrat is learned in the teseimony. The attorney or notary shottld prepare a

it wottld be advisalile for'the Board to appoint tealns af attoxneys, eaehoard that inr,titdes reoommendations rr;gardsng t.ne countarig at tnannouac

th one Democrat and one 1^t^public2n. `Ph.eso teams nlay also y,uestion i-adiwidual.voters if gi'ven that authority by theBoard. 'Pltie Soard shotlld proovide ea.oh'Ceam iii.th adeadline for wwpl.eting the investigation and mald.n.g a report aiidcecomntenc]ation.The Board should then meet promptly at:t.er the deadline, with priur haCice, and Vati

the re.contmeitdations in the reports.

o Uriauetilahiiji y of Pokl WarkedVol-ers. If a ppll worker (or voter) eannot be reached orinay not be available before the deadline that'the Board sets to conclude theinvestigation, then the investigation tna.y proceed without that particular poll worker orvoter, ffut in no instance should ariy member or agent of a member of the Boardencourage a po11 worker or voter taavoid setvice of proeess in the lnvestigation of theprovisional ballots in question or tlae circumstances involved in the casting of a

provisional ballot.

it would lie atlvisa'ble for the Board to got a doadline by which its in.vestfgation 9hould be

couxupleted and a deadline by whieh the Board must bring the matter to clasure, including; voting


de in the inx egtigattive rei,5orts, itailiire to set a defi;

ntergCade; Ibenefil o'

t Court i'ar tYle

f State pcsrsuanxditictusiy In th

nci thc voters of f:T.s

vuthernDixtrict oCOhip and liy Rtatu la.o R.G, 39o1.7a ani3 "t itle 35 of the C)hio R.e+isi

The Soard rnust follow t

natC'er svitb An t 6jective of !'aieaess.jor atl, tor tttO

0

tttct

Ohio.

electians attorney arsigned to yourIf you have gnestiaris about this Advisory, pleacounty at 614-456-1-1585•

Jen

YJTIl

dbv the 1J.S, l?is..trd by the Secretary

unncr


JEf*5WÊ,R BRUNNFERt3Fi1c3S15(;FtW'r' Y OVISTA ;

T)zIt.EC`FIV73 ao1o-97December 17, 2oao

TO: HAMILTON Ct7t7hT'I`1' BOARD OF ELECTIONSMEMBERS, DIRECTOR, AND DEPUTY DIRECTOR

Steps that the T3anrltan Cciun.ty Board of F.^lectiotis Must Talce rzs Part of the Tnvestigatitrnof 849 Pravis`strnal Ballots €ts ordered by Jndgo DlotY

speraue ske. in orde

r v. Hatnifitare ('ty Od>uernber2-^z, attto. Judge VoWs pi

prevent irraptrrable btarrn to PlQintaft', Deflpr.okision.ttlblllpts fUPpol1 wcuker errorarid,mandatory roeaunt:" Moreover, Judge Dlitt"immediately." Id. at 9.

nsng the 849 prov'sstanal ball.ots e zst in the rncoerect precinet tas• t) eaumi

d of Eleetians ("the 7loard")se ir€reirtrg$ticrn tii dered by Chie€'Jutlge SusanTS.SA 6^,}ô ^4$e,N{#. 1:10-CW'005291 CtT#3es thhdfaXlcnving langua'ge on Page 8: '"3.dit is hcrcli^, ordered to exax,nine all 849 faultysuch error is faunel, cotint file baflirt as part of therdered ehe 6oarri to bogin its Invcstigaticin

the quoted langixage, the ]Iosard's ina estigation ordered by Judge Dlc#tt has two.^,. ,.^..^.....,

deterzn.9ne wbethcr they wera zwtst in tha ineorrW pi'eciaet due to pall worker ertvr, and q) ifpoll wsirlcer error is found to be the cause of tht} prdvisional ballot being caat in the iitcotrect

u._tt_e hrT... nc£jh ,xan+6 912wsYV)nr3[*f.7it(hIn

blotL s order is not Ifmited to prnv `ssio»al tiallats ts.st by persons u.sing ttaelast tour qigts at. ctaeirSocial Security number only. Aelditionally, Jucl:ge Dlatt s order is noelint.iteel to pmvidonal

`'ballats cast in the svros g precinct but correct ptalli.ng lot-aturn, (or In tba tcrnxs ctsed b;udy the v;,rreo-t pnthng Tncnt?ofl l,nt wreincr thble), but to the exhAtettce of poll warker error ingencrsl regarding the crasting of provisional ballots.

tll.thouglt I previously protnded speci#ie guidance to the Sottrd in the €orn} of Directit•es 2070-79and aata-8o and Atlzisory 2010-08, ta ttidthe Hoatrd in conclticCing the tnvestigatiesn :xnd indcternaining cvlrnth..er poll warlter error oecuxred, the Baard has been unalsle to reach con.sensttstrn allthe specific steps to be taken to eantplete the investigatian orrlerecl by Judge D1ott.Aecerrding t© Directos Sal3y J, "sel, tlxex•e are cura.•ently six ttzvotes that occuzred atthn Board'sSJeeo-mber 9 and x1 meetings rt;lated Ca tliis inrestigation. "Chn disagre Oeut by the 13oard

regarding the specif'ic steps to Like as parLrtf the int+cstigstion c€tlls.irt.to clnestion whether the&sardis co.nplying svitb JudgeTSlatt's order to beginits Snvestlgation "inzm^diatelxr"

L.Tndêr R.C. 35oi.t.r.(X), the Tioarcl must sralamit ti.e votas to the Secretary of State "not lat.er t,•n days after the tie intte or disagrecinent." The t&h day after Deceitber 9?

lIn an e-u ail dstecl Decenxbeer a5, 20 ro, l)ireetorTti'isel informed my trKice that the ltoarcl has issuedsttbpoenas to mpprm'rtnately 2x& pall cvorCeera£ta appear axtd give testimony on Deeaanber 18 and 17 aoa#s,17tit bad weather has apparently hampered the abr`kity of these poD worluers to appear pursuattt'tw thesubpoenas:


and the four@eenth day after December Xi is Deceinbet 25. Both of th.ose dates fall in the midd

encin¢ date of Januarv 1, 2011. If t3te. Board does not submit its arguments ties. N:loreover, the Hamilton County:Juveilile Caurk judgeslxip at.issua has a terme Christnias holiday season -vhen rrlany peopte take tmtia off tvork to spend with thetr

ast possiblf; Clute, tl3eJ'1 the n'6'4"@fit?g-'tttt}n ttrq;flreCi I7Y,l.uage trtDCl.lYlaynpC necctmple7ect

until after the eommenr.ing datefor the newFzvenile Court judge's tem. That is antinacceptable course of action. 9'h.e citizens{af Efamittrin Cpuntyin general and, specifically, theju'enilos who are iucaraorated snd avaaitir,g court lreai9ngs and the -c ms invohred should not1?aT their legal proceedings ddelaycd hemuse the P;oud c: rnncrt proccc d tivit:h an ordcr.lyirrvestigati4n otr with atl investig'atiztn that is uathisnpers,̂ dby tie votes at evoryr proeeduraaj:l.lnztllre... .. . .. . . . .

perform best kyhen they foclss on proceas and; tnot outcciiree. Prricess in thisspeed, and the purposL of this dires tive is to faster a tliarouph lutt exI `.aczs

8kter, 71X}gtng it to C oSure timely with o Co191Sm8Rc6me11 th n

important for the public in Hanlilton County that a judge be in place for the1, January i, 2oaa., who is able to beg'sn the dutics of office acc:ordin.g to an

parent v ote count that comports with legal requireme.uts. In this instttn,c:e,xents inehade Judge L7lt>tk's Ordec, the statutes of Ohio and the directives of

the Secretary ofState:tihoselegal requitaccurate and trarstart of the new

inl=estigtFtioll (:

judicial tei2n.

ance

d's Deeemlrer:g, 2030 rYleeting, Eoard Chair Alex I"riatitafi.lou stated on the record

oact72sanshia, so does the ntetaplz.orieal tiragging of feet to resolvi: this lnatter: 13s`sng process toexpediting the subnrissf ou ol''tlte tie votes to the 8eatbtar^* (yf 8tate would aan8tate mightlre aaf ocseparty or another."v While Board Chair Triantafilou bdays. I thiii.lc it wcruld be pal lLsaiii for us to dacid.e to mt+ve this along because the 8eceatary of

there a as no n:aaron. to cxpe&liie the Boards tie upte sidnnisai.nrtt "The law saya iye have 14

itical issue is that delay, obfuscation atld nlxstructioirisrn denies the citizens of I-Iamitt

process. Moreover, the afPecpve "€a.Aout" is not jusefor the votem and thec.antlidatdr.;, but alsofor the juvenile aecused, the victinis and the families involved. W'hat is critic$l here has nothingto do with the impending change of 8ecretary of 8taid eldministraticrn on January 10, 20lii tlle

administrations) shakes the cciiafiidence of voters in a free, fair, 6pc.n and hrraxest esf€eet-outeome basedoti znatters external to the etectkon nnuolveU j.change a

v+hrqlvxn,^fi l nPh_icnnu n rikw tUveni113 (:,futrt ttu'tae in BSIaGe on.lt]lillaCt 1, 2oll, CreatnlB

way, especially when it comes tn matters aflor,tinl; juveniles a.nd theft ftstni'Iies:enrlantproblanls ivi.th court admiuistration, The jitdic9ary isnot a place where politics should

onsistent with my antlxority utnder R.C. 3501,o5(3) and (C) tcxissue insh-ret3onsbyr the proper nretlrorl of condticting electtons, the Board is hereby direc:ted to take the

below:allowing :steps to cornplete its investigation ordered by Judge Dlott and iti the time frarme listed

i) A5 provided in Directive 2oio-So and Advisory aoio-o8, identify all poll workers in theprecincts in which the 844 provisional hallvts at issue ryerc: cast, and issus a splipoeuaioeach of them to give testilnony. The subpoenas must be issued lio later than the close ofbusiness on December aia, 2oxo to anyr poll wirrk"er not 1ireviously sulxpoenaed. Theinterviervs of poll wvorlwrs subpoenaed mustbe completed no laturthan Decenitner 23,2010,

eript of the Board's Deceiriber 9, 2rla:t3 meeting at;Si

State ex ref. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 10, p. 2

Directive zoxo-8,LT3aniilto

2) As provided inr4dvisory2010-08, t:he Board anust issue queselounaires by m.ail AndJcir e-no later than close of business on T7e€ember 2a, 2010, to a1I the poll wtark:ers WIIri

senCdla the precincts zn which the &q.9provig'tcrnal haitots at tssue_were cast ivno navenat,yet appeared in person to vetestirn<uny. The questionr aslêd in the ^.estionnairesb,cûldbe the saiue qupsîons t^C the Baarcl asleed po,d. trotkers during the in-per'saitintezvi.evt^ on December i£a and 17: The poTl w'orkers'niust be giventtvo (2) calendar days

'sd havingtplete ansi e-mafl iit post maxk the3r respoaase to fhe cluesiionnaire to avrear to give tesCllntsn.y as provided in th

13h d4' TAi0RTsOry 20 tOÔc , l:tSS provid.ed in AdYk O

precincts in which the 849 provtsioiral ballots as of poll vrerrker exror:an indi atinth nyere are

than December 27, 2010.

4) The Board must schedule a board meethe results of the interviews vaikh poliwci

;s} and tlre docunxcnts from tli.e icthere is euitience ttaa't pi?tt uvorxer ereato be cas.'k i,n ttiavtr(mg precinet:

84^y provisional ballots for wRh'xehJ. the voter to cast the ballot in the wrangp

Judge Dlott's order.

20Y0 tC3 revSC'1M1'

iedbypollmine Fvhetherna1 b'a.llots at issue

poll worker erLoriunted as ptouided iti

6) Any additional tie votes of the Board that arise regarding the investigation € rcleredbyJudge Dlattand pursuant to the directives issued in regard to this matter nmtist besiibi,nitted to the Secretary of State, along with supporLing arguments or statenreuts,within 48 hours of the tie vote in order to permit this matter to be resolved fos theJuvenile Court Judge detennined to be elected to timely take bfrice.

71 Any aatd al1 currently unresolved ta.e votc:s of Ehe Board must bc subm3tted to theûeeretary of ^ta^ti atorzg waCh suppnrting ar^t^zent5 or stateznents by eleetronin deiiv^na later than, the eiose s^fliu.siness esn DeceTn^r 21, 2csao. Tf the atembet's of tl^ boas'dhei;e..e any gaar^}t tqn vcxh_ac ^r^ iCL1^f)t:t15 a. Tesult^(Tf tiR& Direcilve theY CnaV so:St3te With

, 51.7,bIx[lssi{7t1.:

the Board may meet uri Decembur 21, 2010 and teviite any cuYrantlq8) Al'teruatively ,unregolved tie votes to resolve aceording to the procedures provided in this nnt[ prevudiroetives regarding this judfcial eleeticin.

haa6 questions about this Directive, please contact IIlectious A.ttorttey Oyangs? 5uel1 or

General Counsel Brian 5hinn at 6i4-466-2a

dOcnnfent3

, cast to determine whethernust bt; completed na later

Xnuires ecand to det849 provisi


3Jn tbe

6tIprQl1iP Court of Oblll

STATE EX REL.JOHN W. PAINTER, ET AL.,

Relators, Case Number 2010-2205

V.

JENNIFER BRUNNER,OHIO SECRETARY OF STATE,ET AL.

Original Action in Mandamus andProhibition

Respondent.

AFFIDAVIT OF BRIAN E. SHINN

I, Brian E. Shinn, having been duly sworn and cautioned according to law, hereby state

that I am over the age of eighteetn years and am competent to testify to the facts set forth below

based upon my personal knowledge.

1. I am an attorney licensed to practice law in the state of Ohio under the Attorney

Registration Number 0066362.

2. I have been employed in the Ohio Secretary of State's office since January 8, 2007,

first in the position of Assistant General Counsel & Elections Counsel: From October

2009 until May 2010, I held the position of Assistant General Counsel & Chief

Elections Counsel. Since May 9, 2010, I have held the position of General Counsel.

3. As General Counsel, I supervise the elections attorneys employed by the Secretary of

State. The elections attorneys are assigned to work with specific Ohio county boards

of elections, and Elections- Counsel Oyango Snell is assigned to work with the

' State ex rel. Painter, et al., v. Brunner, et al.Case No. 2010-2205


Hamilton County Board of Elections. I also communicate directly with Ohio county

board of elections members and staff on various electons-related matters.

4. At the December 9 and 11, 2010 meetings of the Hamilton County Board of

Elections, there were six tie votes that occurred relating to the federal court ordered

investigation. The Board could not agree on whether to send questionnaires to the

poll workers, to send subpoenas to the poll workers, or agree on a schedule for the

questioning and meetings with poll workers.

5. On December 13, 2010, Sally J. Krisel, Director of the Hamilton County Board of

Elections ("the Board") sent an email to Elections Counsel Snell and me regarding a

letter from the Board to Secretary of State Brunner. The e-mail and the letter attached

to the email are attached to this affidavit as Exhibits A & B.

6. OrrDecember 20, 2010, Director Krisel e-mailed me to request that I call her. The e-

mail is attached to this affidavit as Exhibit C.

7. When I spoke to Director Krisel on December 20, 2010, she requested, on behalf of

the Board, a waiver from certain provisions of Directive 2010-87 related to issuing

subpoenas to poll workers. I requested that she send the waiver request to me in an e-

mail. Director Krisel e-mailed the waiver request to me on December 20, 2010 at

10:39 am. The e-mail is attached to this affidavit as Exhibit D.

8. After receiving the e-mail from Director Krisel, I consulted with Secretary of State

Branner and Elections Counsel Snell. Secretary Brunner granted the waiver. On

December 20, 2010, at 11:19 am, I e-mailed Director Krisel and informed her that the

waiver request was granted. The e-mail is attached to this affidavit as Exhibit E.

2


9. In my approximately four years of working at the Secretary of State's office, it has

been my experience that it is not uncommon for Ohio county boards of elections to

contact poll workers/judges of elections in a precinct after the election to investigate

discrepancies or issues related to their performance of their duties on election day,

10. The Secretary of State's office has been informed by the Board that it has completed

the federal court-ordered investigation. The Board has also informed the Secretary

that there are 269 outstanding ballotson which the Board members are divided on

whether to count. The Board has submitted that tie-vote to the Secretary.

AFFIANT FURTHER SAYETH NAUGHT

Brian E. Shinn, Esq.

Sworn to before me and signed in my presence, a Notary Public in and for said State and

County, on this 5 4" day of January, 2011.

RIASERNSRES;NbIneyAtUvENtyGRYPIU•STAIEOFOINOMytaAWbniwW.#tlmma

SLN)A3RC.

3

Notary Public


From: Krisel, Sally [mailto: Sally. [email protected]]Sent: Monday, December 13, 2010 1:01 PMTo: Snell, Oyango; Shinn, BrianCc: Searcy, Amy (HAM-BOE); Alex Triantafilou ; Faux, Caleb (Hamilton County); Gerhardt,Chip (HamiltonCo); Burke, Timothy M. (Hamilton)Subject:

Attached is a letter I'm sending by mail today to Secretary Brunner per board motion on Saturday, Dec.

11, 2010. Thank you for your attention.

Sally J. L{risel, I3ireclorHamilton County Board of Elections824 Broadway, 3rd FloorCincinnati, OH 45202Phone: 513/632-7011Fax: 513/579-0988

State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 11, A-1

ALE%M. TRIANTAFILOUC15YIrio3n

C(NCINNATI, A#{IO 46202-1343513 f 6324090

133979.f1988 .fx'IS1744^883iiehafiUlOncslGMy,4rg: ^.^

December 13, 2010

The Honorable Jernufer BrunntSecretary of StateState of Ohio180 E. Broad Street, 15`h FloorColumbus, OH 43215

Dear Secretary Brunner,

AMYL:eEARCYOeputy Oirector of Elee[

Per instructions fromthe Hamilton County Board of Elections issued on Saturday,December11, 2010, 1 am writing to request advice on how the boara snouia proceeawith the questioning of poll workers as ordered by Federal t.:ourt Vrder inHiuriter v. Board of Elections, U.S. District Court, Case No,, 1:10-(;V-820 andDirective 2010-80 issued by yourself on December 9, 2010.

In particular, the board requests advice on the method of questioning. As you know

this matter is af extreme importance and the board will begin conducting these

i>7op,,views rjn Thursdav. December 16,2,010. Tf you have any questi.ons, please

^ L 1[4.]Lta4e t^ vo^+aft imQ(6V31

Thank you in advanc

Sineerely;

Sally J. Krisel, Director `Hain.ilton County Board o

HAMILTON COUNTY, OHIO SALRYJ. KR1EEfi.

8lreqor o[£lect(one..

Elections


Respondent's Merit BriefEx. 11, B-1

From: Krisel, Sally [mailto:[email protected]]Sent: Monday, December 20, 2010 8:39 AMTo: Shinn, Brian; Snell, OyangoSubject:Importance: High

Brian,Please call me asap this morning.

Sallv J. Krisel. llirectorHamilton County Board of Elections824 Broadway, 3rd FloorCincinnati, OH 45202Phnna- _513/632-7011Fax: 513/579-0988

State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 11, C-1

Prom: Krisel, Sally [mailto: Sally. [email protected]]Sent: Monday, December 20, 2010 10:39 AMTo • Farreli David• Snell Oyango• Shinn Brian. I , ICc: Alex Triantafilou ; Burke, Timothy M. (Hamilton); Gerhardt,Chip (Hamilton Co); Faux, Caleb(Hamilton County); Searcy, Amy (HAM-BOE); Dave Stevenson; Mallory, Joe; Poland, Sherry; Goldsmith,Diane; Ossenbeck, Coleen ; Curran, Kathy; Kloepfer, FranSubject: FW: Directive 2010-87 - Request for Waiver of SubpoenasImportance: High

Secretary Brunner,We are in receipt of your Directive 2010-87, dated, December 17, 2010.

As you know we are in the process of questioning poll workers in the precinct locations where 849provisional ballots were cast in the wrong precinct. To date 442 poll workers have been subpoenaedand scheduled to appear through this week. The additional number of subpoenas that would need tobe issued for interview is around 1500. We are requesting a waiver of all the subpoenas for this week; itis very unlikely that we could issue the balance of subpoenas today and have the poll workers appear inperson this week, but we can comply in getting a questionnaire out to all poll workers via mail and email

by the end of business today.

Our board has agreed to a questionnaire and a process to get this questionnaire out to all remaining pollworkers in the 849 precincts by the end of today (to be returned by Thursday, December 23rd ). Thequestionnaire would have the same questions that board members asked of poll workers who appeared

on Thursday, December 16 and Friday, December 17th.

^^i ..-... ^+........., ,...- ^.-..- '- ...--_._.. ..O ur b

.Oard

..nas rev i ewed au internal ^__.uV6u

.nicn from.. t.v...«̂n «4. ce 4AO nrerinrtc• anei nlanc tn mPPtlnfl tomorrow

morning, Tuesday, December 21" at 8:00 am to determine a meeting time prior to or on December 28`hto review the results of poll worker interviews and questionnaires. Additionally the board will discuss

tomorrow any unresolved tie votes.

Please notify us as soon as possible if this waiver is granted.

Sally J.KriseC, DirectorHamilton County Board of Elections824 Broadway, 3rd FloorCincinnati, OH 45202Phone: 513/632-7011Fax: 513/579-0988

State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 11, D-1

From: Shinn, BrianSent: Monday, December 20, 2010 11:19 AMTo: 'Krisel, Sally'; Farrell, David; Snell, Oyango; Dwyer, GaryCc: Alex Triantafilou ; Burke, Timothy M. (Hamilton); Gerhardt,Chip (Hamilton Co); Faux, Caleb(Hamilton County); Searcy, Amy (HAM-BOE); Dave Stevenson; Mallory, Joe; Poland, Sherry; Goldsmith,Diane; Ossenbeck, Coleen ; Curran, Kathy; Kloepfer, FranSubject: RE: Directive 2010-87 - Request for Waiver of SubpoenasImportance: High

Sally,

Oyango and I spoke to Secretary Brunner.

Your waiver request is granted. The Hamilton County Board of Elections does not have to send out thesubpoenas described in item #1 of Directive 2010-87 provided that the Board complies with the other

steps of the Directive.

Please let Oyango or me know if you have any questions.

Brian Shinn

Brian E. Sliinn

General Counsel

Ohio Secretary of State Jennifer Brunner

180 East Broad Street, 15th Irloor

Coltanibtis, Ohic> 43215-3726

614-728-5639

614-485-7510fax

[email protected]

----------From:From: Krisel, Sally [mailto: Sally. [email protected]]Sent: Monday, December 20, 2010 10:39 AMTo: Farrell, David; Snell, Oyango; Shinn, BrianCc: Alex Triantafllou ; Burke, Timothy M. (Hamilton); Gerhardt,Chip (Hamilton Co); Faux, Caleb(Hamilton County); Searcy, Amy (HAM-BOE); Dave Stevenson; Mallory, Joe; Poland, Sherry; Goldsmith,Diane; Ossenbeck, Coleen ; Curran, Kathy; Kloepfer, FranSubject: FW: Directive 2010-87 - Request for Waiver of SubpoenasImportance: High

Secretary Brunner,We are in receipt of your Directive 2010-87, dated, December 17, 2010.

As you know we are in the process of questioning poll workers in the precinct locations where 849provisional ballots were cast in the wrong precinct. To date 442 poll workers have been subpoenaedand scheduled to appear through this week. The additional number of subpoenas that would need tobe issued for interview is around 1500. We are requesting a waiver of all the subpoenas for this week; it


Case No. 2010-2205 Ex. 11, E-1

is very unlikely that we could issue the balance of subpoenas today and have the poll workers appear inperson this week, but we can comply in getting a questionnaire out to all poll workers via mail and emailby the end of business today.

Our board has agreed to a questionnaire and a process to get this questionnaire out to all remaining pollworkers in the 849 precincts by the end of today (to be returned by Thursday, December 23rd ). Thequestionnaire would have the same questions that board members asked of poll workers who appeared

on Thursday, December 16 and Friday, December 17`n

Our board has reviewed all internal documents from the 849 precincts; and plans to meeting tomorrowmorning, Tuesday, December 21st at 8:00 am to determine a meeting time prior to or on December 28into review the results of poll worker interviews and questionnaires. Additionally the board will discuss

tomorrow any unresolved tie votes.

Please notify us as soon as possible if this waiver is granted.

Sallv J. ICrisel. ^ArectorHamiltnn Cniintv Rnard nf Flections..........._.. ___.._^ ___._ _824 Broadway, 3rd FloorCincinnati, OH 45202Phone: 513/632-7011Fax: 513/579-0988

State ex rel. Painter, et al., v. Brunner, et al. Respondent's Merit BriefCase No. 2010-2205 Ex. 11, E-2


I hereby certify that a copy of the foregoing Respondent Ohio Secretary of State Jennifer

Brunner's Submission of Evidence was served by email and mailed via regular U.S. Mail,

postage prepaid this 5th day of January, 2011 to:

R. Joseph ParkerJohn NalbandianWilliam DornetteTaft, Stettinius & Hollister LLP1800 US Bank Tower425 Walnut StreetCincinnati, Ohio [email protected]@[email protected]

Attorneys for Relator

Jennifer L. BranchAlphonse A. GerhardsteinGerhardstein & Branch Co., LPA432 Walnut Street, Suite 400Cincinnati, Ohio [email protected]@gbfirm.com

Attorneys for Intervenor-RespondentTracie Hunter

Joseph T. DetersDavid StevensonThomas E. GrossmannJames W. HarperColleen Marie McCaffertyHamilton County Prosecutor's Office230 E. Ninth Street, Suite 4000Cincinnati, Ohio [email protected]@[email protected]@[email protected]

Attorneys for Respondent Board of Elections,Hamilton County, Ohio

Anne Marie SferraBricker & Eckler100 S Third StreetColumbus, OH [email protected]

Attorney for Ohio Republican Party

Caroline H. GentrySheena L. LittlePorter, Wright, Morris & Arthur, LLPOne South Main Street, Suite 1600Dayton, Ohio [email protected]@porterwright.com

Subodh ChandraThe Chandra Law Firm, LLC1265 W. 6th Street, Suite 400Cleveland, Ohio [email protected]

Attorneys for Intervenor-RespondentNortheast Ohio Coalition for the Homeless

Donald J. McTigueMark McGinnisMcTigue Law Group550 East Walnut StreetColumbus, OH 43215mctiguelaw@n•[email protected]

Attorneys for Intervenor-RespondentOhio Democratic Party

ard N. Coglianese (0066830)

SUBMISSION OF EVIDENCESubodh Chandra (0069233) The Chandra Law Firm, LLC 1265 W. 6th Street, Suite...

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