THE STATE EX REL. MARAS v. LAROSE, SECY. OF STATE.
No. 2022-1270
Supreme Court of Ohio
October 28, 2022
Slip Opinion No. 2022-Ohio-3852
Submitted October 26, 2022
[Until this оpinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Maras v. LaRose, Slip Opinion No. 2022-Ohio-3852.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-3852
THE STATE EX REL. MARAS v. LAROSE, SECY. OF STATE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Maras v. LaRose, Slip Opinion No. 2022-Ohio-3852.]
Mandamus—Elections—
(No. 2022-1270—Submitted October 26, 2022—Decided October 28, 2022.)
IN MANDAMUS.
SUPREME COURT
Per Curiam.
I. INTRODUCTION
{¶ 1} Relator, Terpsehore P. Maras, is an independent candidate for Ohio Secretary of State on the November 8, 2022 general-election ballot. In this expedited election casе, Maras contends that
II. BACKGROUND
A. Statutory provisions governing election observers
{¶ 2}
At any primary, special, or general election, any political party supporting candidates to be voted upon at such election and any group of five or more candidates may appoint to the board of elections or to any of the precincts in the county or city one person, a qualified elector, who shall serve as observer for such party or such candidates during the casting of the ballots and during the counting of the ballots; * * *.
(Emphasis added.)
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{¶ 3} Any political party or group of candidates appointing observers must notify the board of elections of its appointees and the precincts at which they will serve as observers.
B. The evidence in the record
{¶ 4} Maras is a general-election candidate for Ohio Secretary of State. She appears on the November 2022 general-election ballot as an independent candidate, rather than one affiliated with a political party.
{¶ 5} As a candidate who is not affiliated with any political party, Maras must join with at least four other candidates in order to appoint election observers.
{¶ 6} Maras filed this action on October 12. She alleges that
{¶ 7} Maras‘s complaint also contains numerous allegations concerning what election observers appointed under
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{¶ 8} Maras seeks a writ of mandamus ordering the secretary of state to allow certified independent candidates to appoint election observers without having to join four other candidates and to allow election observers access to “copies of all software, [source] code[s], and hardware installed on any automatic tabulating machine in use in the precinct in whiсh an observer is appointed so that the software may be meaningfully inspected.” Maras further asks that tabulating-machine software be “open or unlocked” so that observers “may inspect [the machines] to the source code level or, alternatively, order poll workers to tally the votes.”
{¶ 9} We set an expedited schedule for the submission of evidence and merit briefing, ___ Ohio St.3d ___, 2022-Ohio-3646, ___ N.E.3d ___, and the matter is now fully briefed.
III. ANALYSIS
A. Standard of review
{¶ 10} To be entitled to а writ of mandamus, Maras must establish by clear and convincing evidence that (1) she has a clear legal right to the requested relief, (2) the respondents have a clear legal duty to perform the requested acts, and (3) she has no adequate remedy in the ordinary course of the law. See State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. Given the proximity of the election, Maras lacks an adequate remedy in the оrdinary course of the law. See State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd. of Elections, 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, ¶ 21. The remaining elements require us to determine whether the secretary of state engaged in fraud, corruption, or an abuse of discretion or acted in clear disregard of applicable law. See State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9.
{¶ 11} Maras does not allege fraud or corruption. Thus, the dispositive issue is whether Secretary LaRose abused his discretion or clearly disregarded
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applicable law by not allowing Maras to appoint election observers and not allowing election observers to inspect the automatic-tabulating-machine software.
{¶ 12} A writ of mandamus is an extraordinary remedy, exercised by this court with caution and issued only when the right to relief is clear. State ex rel. Tаylor v. Glasser, 50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977). Not only is Maras required to prove clear entitlement to relief, she must also overcome the presumption of constitutionality that is afforded to statutes and demonstrate beyond a reasonable
B. This court‘s jurisdiction
{¶ 13} As a preliminary matter, Secretary LaRose contends that we lack subject-matter jurisdiction over this action because Maras is sеeking, in substance, a declaratory judgment that
{¶ 14} “In general, if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus and must be dismissed for want of jurisdiction.” (Emphasis added.) State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 634, 716 N.E.2d 704 (1999). However, if a mandamus complaint seeks a declaratory judgment coupled with a mandatory injunction, a writ of mandamus is a proper remedy and this court has jurisdiction over the case. See State ex rel. Arnett v. Winemiller, 80 Ohio St.3d 255, 259, 685 N.E.2d 1219 (1997). “The court distinguishes between the two by ‘examining the complaint to determine whether it actually seeks to prevent, rather than compel, official action.’” State ex rel. Gadell-Newton v. Husted, 153 Ohio St.3d 225, 2018-
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Ohio-1854, 103 N.E.3d 809, ¶ 10, quoting State ex rel. Evans v. Blackwell, 111 Ohio St.3d 437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 20.
{¶ 15} The complaint here seeks relief that would compel the secretary of state to perform affirmative acts: allow Maras to appoint election observers to inspect equipment and supervise ballot counting and make available the source codes for thе software installed on the automated equipment (or, alternatively, order poll workers to hand-tally the votes). Therefore, Maras does not seek a prohibitory injunction.
C. The equal-protection claim
{¶ 16} Maras argues that the “five candidate rule”—which allows a candidate who is not affiliated with a political party to appoint election observers only if he or she makes the request as part of a group of five candidates—is unсonstitutional under the Equal Protection Clauses of the United States and Ohio Constitutions. She argues that we should apply strict scrutiny in evaluating the constitutionality of
{¶ 17} We have interpreted the Equal Protection Clause in the Ohio Constitution as being equivalent to the federal Equal Protection Clause. See McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 7. The first step in an equal-protection analysis is determining the proper standard of review. “When legislation infringes upon a fundamental constitutional right or the rights of a suspect class, strict scrutiny applies.” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 64. “If neither a fundamental right nor a suspect class is involved, a rational-basis test is used.” Id.
{¶ 18} Maras argues that
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choice is of the essence of a democratic
{¶ 19} However, simply because a statute applies to elections does not mean it triggers strict scrutiny for equal-protection purposes. Before strict scrutiny will apply, a legislative classification must “impermissibly interfere[] with the exercise of a fundamental right or operate[] to the peculiar disadvantage of a suspect class.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). An election statute does not burden the right to vote when there is only “a speculative, future possibility that election irregularities might occur.” Donald J. Trump for President, Inc. v. Boockvar, 493 F.Supp.3d 331, 419 (W.D.Pa.2020) (applying rational-basis review to state-law requirement that poll watchers be county residents). In this case,
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to a statute limiting the appointment of election observers. Because there is no fundamental right for a candidate to appoint an election observer, see id. at 484, strict scrutiny is not appropriate here.
{¶ 20} Secretary LaRose suggests this court employ the Anderson-Burdick “sliding scale,” Arizona Green Party v. Reagan, 838 F.3d 983, 988 (9th Cir.2016), which is a framework often applied to assess the constitutionality of election statutes, see Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Under the Anderson-Burdick framework, “the more severe the burden imposed, the morе exacting [the court‘s] scrutiny; the less severe, the more relaxed [the] scrutiny.” Arizona Libertarian Party v. Hobbs, 925 F.3d 1085, 1090 (9th Cir.2019). As a practical matter, it is not clear that applying the Anderson-Burdick analysis would yield a different result here. See, e.g., Cook Cty. Republican Party v. Pritzker, 487 F.Supp.3d 707, 719-720 (N.D.Ill.2020) (challenge to extension of period for curing provisional ballots from 7 to 14 days failed under the Anderson-Burdick framework because the plaintiff did not provide any basis for thinking that the additional time would result in election fraud, whereas the state provided a rational justificatiоn for the extension). We therefore apply the rational-basis test.
{¶ 21} Under rational-basis review, a statute will be upheld if it is rationally related to a legitimate government
{¶ 22} Maras argues that the legislative classification in
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political party are subject to the “five-candidate rule”—they cannot appoint election observers unless they are among a group of five who agree do so—while party-affiliated candidates are not so restricted. This characterization of the statute is incorrect. Under
{¶ 23} Maras‘s challenge fails because
{¶ 24} Maras counters that the statute cannot pass rational-basis review because it is not rationally related to the state interests posited by Secretary LaRose. She notes that there are only nine statewide elections on the November 8 ballot and that she is the only independent candidate running in any of those races. Because party-affiliated candidates have party-appointed observers to represent them, Maras contends that those candidates “are not inclined to help a non-party affiliated candidate which makes five candidate consent practically unobtainable.” And Maras argues that the five-candidate rule has no rational relationship to a state interest in “preventing too many election observers [from] overburdening county boards of elections” because there are not very many statewide candidates.
{¶ 25} Maras‘s arguments are based on a misreading of the statute. She appears to assume that in order to appoint observers, she must make a joint request with four other statewide candidates. But that is not what the statute says. Under
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{¶ 26} For the same reason, the fact that there are only nine statewide candidates in this November‘s election does not make
{¶ 27} For these reasons,
D. Access to the tabulating software
{¶ 28} As noted,
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make the statute meaningful, poll workers should be required to tally the votes by hand in a way that can be observed.1
{¶ 29} However, Maras does not identify any clear statutory right to the relief she seeks. “It is axiomatic that in mandamus proceedings, the creation of the legal duty that a relator seeks to enforce is the distinct function of the legislative branch of government, and courts are not authorized to create the legal duty enforceable in mandamus.” (Emphasis sic.) State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18. There is nothing in
IV. CONCLUSION
{¶ 30} For the reasons discussed herein, we deny the writ of mandamus.
Writ denied.
O’CONNOR, C.J., and DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, FISCHER, and DEWINE, JJ., concur in judgment only.
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Mendenhall Lаw Group, Warner Mendenhall, and John Pfleiderer, for relator.
Dave Yost, Attorney General, and Ann Yackshaw, Julie M. Pfeiffer, and Allison D. Daniel, Assistant Attorneys General, for respondent.