State ex rel. Ames v. LaRose , 2022 Ohio 2794 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ames v. LaRose, Slip Opinion No. 2022-Ohio-2794.]
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-2794THE STATE EX REL . AMES v. LAROSE, SECY. OF STATE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ames v. LaRose, Slip Opinion No.
2022-Ohio-2794.]
Elections—Mandamus—Action to compel secretary of state to direct boards of
elections and precinct election officials to challenge electors denied as moot
because primary election is over—Boards of elections have no clear legal
duty to segregate and disqualify August 2, 2022 primary-election ballots of
electors that voted for another party at the May 3, 2022 primary election—
Writ denied.
(No. 2022-0850—Submitted August 8, 2022—Decided August 11, 2022.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} Relator, Brian M. Ames, was a candidate for the Republican Party
State Central Committee for Senate District 28 in the primary election held on
SUPREME COURT OF OHIO
August 2, 2022. In this expedited election matter, Ames asks for a writ of
mandamus requiring respondent Secretary of State Frank LaRose to “instruct and
direct” respondents Portage County Board of Elections, Geauga County Board of
Elections, and Summit County Board of Elections to “challenge” electors who
requested a ballot for a party other than the one for which the elector voted in the
May 3, 2022 primary election. Additionally, Ames asks for an order that ballots
cast in the August 2 primary be “segregated according to the party for which the
elector voted in May” and that any ballots cast for a different party “not be
counted.” We deny the writ as moot as to Secretary LaRose. As to the boards of
elections, we deny the writ because Ames is not entitled to the relief he seeks.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} The dispute in this case arises from the scheduling of an August 2, 2022
primary election for state legislative offices and party-central-committee seats, as
necessitated by litigation related to General Assembly redistricting.
{¶ 3} The original date for Ohio’s 2022 primary election, as set by the
General Assembly, was May 3, 2022. On March 16, 2022, this court invalidated for
the third time a General Assembly–district plan (“Map 3”) adopted by the Ohio
Redistricting Commission. League of Women Voters of Ohio v. Ohio Redistricting
Comm., ___ Ohio St.3d ___, 2022-Ohio-789, ___ N.E.3d ___, ¶ 2. In the wake of
that decision, Secretary LaRose issued Directive 2022-31 on March 23. Secretary of
State Directive 2022-31, Revised Form of Ballot for the May 3, 2022 Primary
Election, available at https://www.ohiosos.gov/globalassets/elections/directives
/2022/dir2022-31.pdf#page=1 (accessed Aug. 10, 2022) [https://perma.cc/7FUN-
SXGY]. In that directive, Secretary LaRose explained that “it is not possible to
include the primary contests for the Ohio House, Ohio Senate, and State Central
Committee on the May 3, 2022 Primary Election ballot.” Secretary LaRose
instructed the county boards of elections to prepare for the May 3 primary election
2
January Term, 2022
without including the primary contests for the offices of state representative and state
senator or the contests for members of the state central committees.
{¶ 4} On May 27, a three-judge panel of the United States District Court for
the Southern District of Ohio, Eastern Division, ordered Secretary LaRose “to push
back Ohio’s state primaries to August 2, 2022, and to implement Map 3 for this
year’s elections only.” (Emphasis sic.) Gonidakis v. LaRose, S.D.Ohio No. 2:22-
cv-0773, 2022 WL 1709146, *1 (May 27, 2022). The following day, Secretary
LaRose issued Directive 2022-34, which instructed the county boards of elections
that they were required to implement Map 3 for an August 2 primary election for
the offices of state representative and state senator and for the election of members
of the state central committees. Secretary of State Directive 2022-34, Instructions
for the August 2, 2022 Primary Election, available at https://www.ohiosos.gov
/globalassets/elections/directives/2022/dir2022-34.pdf#page=1 (accessed Aug. 10,
2022) [https://perma.cc/E9AP-ZA3C]. Directive 2022-34 also instructed: “Voters
may request a ballot for either major political party or an issues-only ballot, if
applicable, regardless of their participation in the May 3, 2022 Primary Election.”
{¶ 5} Ames was certified to the ballot as a candidate for the Republican
Party State Central Committee for the 28th District. On July 8, Ames inquired of
Secretary LaRose and the Portage County Board of Elections whether an elector
could request “a different party ballot for the August election than for May.” The
secretary’s office responded by email the same day, stating, “There is no
requirement for a voter to vote in the same party’s primary election as they did in
the May primary.” Similarly, the Portage County Board of Elections responded to
Ames on July 8, explaining, “Yes, per the Ohio Secretary of State, voters may
request a ballot for either major political party regardless of their participation in
the May 3, 2022 Primary Election.”
{¶ 6} Ames commenced this expedited election action on July 8. The
complaint names the secretary and the boards of elections of Portage, Summit, and
3
SUPREME COURT OF OHIO
Geauga Counties as respondents. Ames alleges that the federal court set August 2
as the date for Ohio voters “to finish the May 3 primary” and that the August 2
election was not a “second primary” for the 2022 election cycle. Ames claims that
he is “entitled to face election by precisely the same voters as he would have faced
on May 3, 2022” if the state legislative offices and central-committee seats had
been on that ballot. The complaint prays for a writ of mandamus “ordering
Secretary of State Frank LaRose, with respect to the August 2, 2022 continuation
of the May 3, 2022 primary election, to instruct and direct the county boards of
election[s] and their precinct election official[s] to challenge electors who request
a ballot for a party other than the party ballot [the elector voted on] May 3, 2022.”
The complaint did not ask specifically for mandamus relief against the county
boards of elections. However, in his merit brief, Ames asked for “additional relief”
that appears to be directed at the respective boards of elections. He requested (1)
“[t]hat ballots contained in envelopes bearing the name of the elector be segregated
according to the party for which the elector voted in May” and (2) that ballots cast
for a different party than that for which the elector cast a ballot in May “be
disqualified as to the [August 2 primary] and the votes in those contests not be
counted.”
{¶ 7} Even though Ames filed this action less than a month before the
August 2 primary, he did not file a motion to expedite this matter more than the
accelerated time frame set forth in S.Ct.Prac.R. 12.08 for expedited election
matters. The parties submitted their evidence and merit briefing pursuant to the
schedule in S.Ct.Prac.R. 12.08(A)(2), and the matter was fully briefed on August
2.
II. ANALYSIS
A. Claim Against the Secretary Is Moot
{¶ 8} As to Secretary LaRose, we deny the writ as moot. Ames prays for a
writ of mandamus ordering the secretary “to instruct and direct the county boards
4
January Term, 2022
of election[s] and their precinct election official[s] to challenge electors who
request a ballot for a party other than the party ballot vote[d] in the May 3, 2022”
primary election. The secretary can no longer perform this act: the August 2
primary election is over. Ames therefore cannot obtain the requested writ against
the secretary. See State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17,
2009-Ohio-5947, 918 N.E.2d 515, ¶ 3-4 (sua sponte dismissal on mootness grounds
is appropriate when claimant plainly cannot prevail on the allegations in the
complaint).
B. No Entitlement to Mandamus Against the Boards
{¶ 9} As against the boards of elections, Ames’s complaint does not ask for
specific relief: the only prayer for relief in mandamus is for a writ ordering the
secretary to direct the county boards of elections and their precinct election officials
to challenge any elector who requested a ballot for a party other than the party
whose ballot the elector requested on May 3. In his merit brief, however, Ames
requested “additional relief” that, on its face, reaches the boards.1 Specifically,
Ames asked (1) that ballots cast in the August 2 primary “be segregated” according
to the party for which electors voted in the May 3 primary and (2) that ballots cast
for a different party in the August 2 primary “be disqualified” and “not be counted.”
{¶ 10} To be entitled to a writ of mandamus, Ames must establish by clear
and convincing evidence that (1) he has a clear legal right to the requested relief,
(2) respondents are under a clear legal duty to perform the requested acts, and (3)
he has no adequate remedy in the ordinary course of the law. State ex rel. Linnabary
v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. Because of
the proximity of the primary election at the time he filed this action (25 days away),
1. We express no opinion on whether this request is procedurally proper. None of the respondents
have challenged the propriety of Ames’s seeking additional relief in his merit brief that he did not
request in his complaint.
5
SUPREME COURT OF OHIO
Ames lacks an adequate remedy in the ordinary course of the law. See State ex rel.
West v. LaRose, 161 Ohio St.3d 192, 2020-Ohio-4380, 161 N.E.3d 631, ¶ 15.
{¶ 11} Here, there is no evidence before this court relating to whether
Ames’s requested “segregation” of ballots is still possible now that the election is
over. But even assuming his request for “additional relief” is not moot, Ames has
not demonstrated a clear legal right to that relief or a clear legal duty on the part of
the boards of elections to provide it. For one thing, the relief Ames seeks is contrary
to Directive 2022-34, which instructed boards to allow electors to request any
party’s ballot (or an issues-only ballot, if applicable) for the August 2 primary.
Ames cites no authority for the proposition that a board of elections may act
contrary to the secretary’s directive.
{¶ 12} Additionally, Ames cites no statute for the proposition that a board
of elections can segregate ballots cast in a primary election in order for those ballots
to be challenged based on party affiliation after the election has concluded. Under
the statutory scheme governing primary elections, the decision whether to
challenge a voter’s party affiliation is not in the hands of the boards of elections at
all. Instead, R.C. 3513.19 specifies that it is precinct election officials who are
responsible for challenging an elector on the ground that the elector “is not affiliated
with or is not a member of the political party whose ballot the person desires to
vote.” R.C. 3513.19(A)(3). Ames’s requested relief inappropriately seeks to shift
to the boards a duty that the relevant statute does not impose on them.
III. CONCLUSION
{¶ 13} Ames’s complaint is moot as against Secretary LaRose. And as to
the boards of elections, Ames has failed to demonstrate a clear legal right to the
relief he seeks or a clear legal duty on the part of the boards to perform the requested
acts. We therefore deny the writ.
Writ denied.
6
January Term, 2022
O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only.
_________________
Brian M. Ames, pro se.
Dave Yost, Attorney General, and Allison Daniel and Iris Jin, Assistant
Attorneys General, for respondent Ohio Secretary of State Frank LaRose.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Marrett
Hanna and Carrie Hill, Assistant Prosecuting Attorneys, for respondent Summit
County Board of Elections.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Christopher
J. Meduri, Assistant Prosecuting Attorney, for respondent Portage County Board of
Elections.
James R. Flaiz, Geauga County Prosecuting Attorney, and Kristen Rine,
Assistant Prosecuting Attorney, for respondent Geauga County Board of Elections.
_________________
7