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MR/DMF/CBCY/tlk 09-20-07
IN THE COURT OF COMMON PLEAS 8
SUMMIT COUNTY, OHIO
STATE OF OHIO, ex rel. ) Case No.: CV 2007 09 6516
CITY OF AKRON, et al.
)
) JUDGE TEODOSIO
Plaintiffs
v.
) PRELIMINARY INJUNCTION
THE SUMMIT COUNTY BOARD MEMORANDUM OF LAW OF
) PLAINTIFFS, CITY OF AKRON,
MAYOR, DONALD L. PLUSQUELLIC
OF ELECTIONS, et al. ) AND COUNCILMAN MARCO S$.
SOMMERVILLE
Defendants )
)
STATEMENT OF FACTS
Plaintiff, City of Akron, is a political subdivision created and organized under the
Constitution and laws of the State of Ohio pursuant to its home rule authority granted under
Article XVIII of the Constitution of the State of Ohio. Plaintiff Donald L. Plusquellic is a voter,
a citizen, and the Mayor of the City of Akron. Plaintiff Marco S. Sommerville is a voter, a
citizen, and Councilman for the Third Ward of the City of Akron.
Defendants herein are the Summit County Board of Elections, which has the statutory
responsibility for conducting elections within the City of Akron, the State of Ohio Secretary of
State, who is the Chief Elections Officer in Ohio, and the Attorney General, who is the Chief
Law Officer for the State and its departments.COPY,
Pursuant to the laws of the State of Ohio and the Charter of the City of Akron, an election
was held on September 11, 2007 in the City of Akron at which voters were to elect its Mayor and
Council representatives for the ten wards of the City of Akron. Pursuant to Ohio law, the
Defendant, Summit County Board of Elections is responsible for conducting elections held
within the City of Akron.
Since the legislature amended the Ohio voting laws which became effective January 27,
2006, all qualified electors within the City of Akron have the option of voting by absentee ballot,
or voting in person at the Board of Elections or on election day at their assigned precinct until the
polls close. O.R.C. §3509.02. O.R.C. §§3509.05 and 3509.06 provides that the Board of
Elections shall count those absent voters’ ballots delivered to the director of the Board not later
than the close of the polls on election day.
On September 11, 2007, election day, representatives of the Board of Elections visited
the Main Akron Post Office at 10:00 a.m. and again at 4:00 p.m. to pickup mail for the Board of
Elections. On the second visit that day, Board of Elections representatives were told that there
was no mail for them.
The next day, 204 absentee ballots were delivered by the United States Postal Service to
the Board of Elections. 120 ballots bore postmarks dated before September 11, 2007 and 80
contained no postmark. Four were postmarked September 11, 2007.
On September 13, two days after the election, six additional absentee ballots were
delivered to the Board of Elections. One of those had been postmarked September 5, 2007.
The Board of Elections has not counted the absentee ballots delivered on September 12
and 13" and voted at its meeting on Wednesday, September 19, 2007 not to count those ballots
unless ordered to do so by this Court.COPY
LAW AND ARGUMENT
This action is in part an action for declaratory and injunctive relief against the
enforcement of Ohio Revised Code Section 3509.05, to require the counting of 210 absentee
ballots, more or less, by the Summit County Board of Elections (hereinafter Board of Elections),
cast in the September 11, 2007, City of Akron municipal primary election. The Ohio Secretary of
State, Jennifer Brunner, (hereinafter Secretary of State) has ruled and advised the Board of
Elections that the aforesaid absentee ballots should not be counted.
Unless these absentee ballots are ordered counted under these set of facts and the
Defendants herein enjoined, Defendants will deprive the 210 absentee voters, as well as all
voters in the City of Akron, of their United States and Ohio Constitutional Rights to Vote.
Defendants will also deprive the Plaintiffs of their rights and interests to have municipal
elections conducted in a fair and impartial manner. Prompt judicial intervention is necessary to
avert immediate and irreparable harm, not only to Plaintiffs, but to all residents and voters within
the City of Akron.
A dispute exists between the Plaintiffs, City of Akron (hereinafter City), Mayor Donald
L. Plusquellic (hereinafter Mayor Plusquellic) and Council President Marco S. Sommerville
(hereinafter Council President Sommerville) and the Defendants, Board of Elections, State of
Ohio, and the Attorney General Marc Dann with respect to the constitutionality of Ohio Revised
Code Section 3509.05, both on its face and as applied and as under the set of facts alleged in this
Complaint, and a judgment declaring the respective rights and obligations of the parties relative
to Ohio Revised Section 3509.05 is necessary and appropriate at this time.
This action is also in part for a Writ of Mandamus. The Plaintiffs are entitled to a Writ of
Mandamus. Notwithstanding Ohio Revised Code Section 3509.05, both the United States andCOPY
Ohio Constitutions mandate that the Defendants have a clear duty to count the aforesaid absentee
ballots. Both the United States and Ohio Constitutions provide the Plaintiffs with a clear legal
right to have the absentee ballots counted. The Plaintiffs have no adequate remedy at law.
In considering an application for a preliminary injunction, a party requesting an
injunction must show:
(1) There is a substantial likelihood of Plaintiffs’ success on the merits;
(2) Plaintiffs will suffer irreparable injury if the injunction is not granted;
(3) No third parties will be unjustifiably harmed by the granting of the preliminary
injunction; and
(4) The public interest will be served by the granting of the injunctive relief. Proctor
& Gamble Co. v. Stoneham (2000), 140 Ohio App.3d 260, 267, 747 N.E. 2d 268. In order to be
entitled to the relief of a writ of mandamus, the relator must demonstrate:
(1) _ ithas a clear regal right to the relief requested;
(2) the respondent is under a clear legal duty to perform the requested act; and
(3) it has no plain and adequate remedy in the ordinary course of law.
State ex rel. Ohio Civ. Serv. Employees Assn., AFSCME, Local 11, AFL-CID v. State Emp.
Relations Bd. (Ohio, 12-15-2004) 104 Ohio St.3d 122, 818 N.E. 2d 688. For reasons set forth
herein, the Plaintiffs will prevail on each of these claims.
O.R.C. §3509.05 sets forth the procedure for an elector who receives an absentee ballot to
mark and deliver the ballot to the director of the elections board. The full statute is attached to
this memorandum and requires the electors to mail the absentee ballot in an identification
envelope to the Director of the Board of Elections. It specifies that the absentee ballots be
delivered to the director not later than the close of the polls on the day of the election. R.C.COPY,
§3509.05(B) requires the counting of absentee ballots of electors whose return envelope
indicates that the voter will be outside the United States on the day of the election that are
delivered to the director prior to the eleventh day after the election unless it involves a
presidential primary. In that case, R.C. §3509.05(C) requires the counting of those absentee
ballots of electors whose return envelope indicates the voter will be outside the United States if
they are delivered to the director prior to the twenty-first day after that election. The relevant
portions provide as follows:
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The elector shall mail the identification envelope to the director from whom it
was received in the return envelope, postage prepaid, or the elector may
personally deliver it to the director.
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Except as otherwise provided in divisions (B) and (C) of this section, all other
envelopes containing marked absent voter’s ballots shall be delivered to the
director not later than the close of the polls on the day of an election.
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(B) Except as otherwise provide in division (C) of this section, any return
envelope that indicates that the voter will be outside the United States on the day of
the election shall be delivered to the director prior to the eleventh day after the
election. Ballots delivered in such envelopes that are received after the close of the
polls on election day through the tenth day thereafter shall be counted on the
eleventh day at the board of elections in the manner provided in divisions (C) and
(D) of section 3509.06 of the Revised Code. Any such ballots that are signed or
postmarked after the close of the polls on the day of the election or that are received
by the director later than the tenth day following the election shall not be counted,
but shall be kept by the board in the sealed identification envelopes as provided in
division (A) of this section.
(C) In any year in which a presidential primary election is held, any return
envelope that indicates that the voter will be outside the United States on the day of
the presidential primary election shall be delivered to the director prior the twenty-
first day after that election. Ballots delivered in such envelopes that are received
after the close of the polls on election day through the twentieth day thereafter shall
be counted on the twenty-first day at the board of elections in the manner providedCOPY
in divisions (C) and (D) of section 3509.06 of the Revised Code. Any such ballots
that are signed or postmarked after the close of the polls on the day of that election
or that are received by the director later than the twentieth day following that
election shall not be counted, but shall be kept by the board in the sealed
identification envelops as provided in division (A) of this section.
O.R.C. §3509.06 provides the procedure for counting absent voter’s ballots and is
attached to this memorandum.
O.R.C. Chapter 3511 provides different procedures for armed service absent voter’s
ballots. The chapter is attached to this memorandum. O.R.C. §3511.11 requires the counting of
armed service absent voter’s ballots received by the director “prior to the twenty-first day after
the day of a presidential primary election or prior to the eleventh day after the day of any other
election.” In relevant part, that statute provides:
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(C) A return envelope that indicates that the voter will be outside the United
States on the day of an election is not required to be postmarked in order for an
armed service absent voter’s ballot contained in it to be valid. Except as otherwise
provided in this division, whether or not the return envelope containing the ballot is
postmarked or contains an illegible postmark, an armed service _absent_voter’s
ballot that is received after the close of the polls on election day through the tenth
day after the election day or, if the election was presidential primary election,
through the twentieth day after the election day, and that is delivered in a retum
envelope that indicates that the voter will be outside the United States on the day of
the election shall be counted on the eleventh day after the election day or, if the
election was a presidential primary election, on the twenty-first day after_the
election day, after the office of the board of elections in the manner provided in
divisions (C) and (D) of section 3509.06 of the Revised Code. (Emphasis added.)
KK
O.R.C. 3505.181 et. seq. set forth the requirements for county provisional ballots. It
requires the counting of the provisional ballots of persons who voted but were unable to provide
proof of identity at the time they voted, but who provided such information within the ten daysCOPY
after the election. The full statute is attached to this memorandum. Relevant portions of O.R.C.
3505.1681(B) read as follows:
RKK
(8) During the ten days after the day of an election, an individual who casts a provisional
ballot pursuant to division (A)(3),(7), (12), or (13) of this section shall appear at the office of the
board of elections and provide to the board any additional information necessary to determine the
eligibility of the individual who cast the provisional ballot.
(a) For a provisional ballot cast pursuant to division (A)(3), (12), or (13) of
this section to be eligible to be counted, the individual who cast that ballot, within
ten days after the day the election, shall do any of the following:
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(b) For a provisional ballot cast pursuant to division (A)(7) of this section to be
eligible to be counted, the individual who cast that ballot, within ten days after the
day of that election, shall provide to the board of elections any identification or
other_documentation_ required to be provided by the applicable challenge
questions asked of that individual under section 3505.20 of the Revised Code.
(Emphasis added.)
The election laws of the State of Ohio contemplate that each branch of government,
federal, state, county and municipality, work together to ensure the rights of voters to vote. R.C.
§3509.05 permits an absentee voter to mail his or her ballot to the director of the Board of
Elections. There is no question that the voters here did just that. However, the Board of
Elections instructed the U.S. Postal Service not to deliver the ballots. Instead, employees of the
Board went to the post office to retrieve the ballots. The Board may not instruct the post office
not to deliver the mail and then complain when the mail is not delivered. The State of Ohio and
the Board of Elections may not disenfranchise the voters of the City of Akron when the fault is
wholly that of the government.COPY.
In Stamos v. Genesee Co. Board of Convassers, 46 Mich. App. 636 (1973), the local
elections clerk refused to count 22 absentee ballots which were not delivered to certain precincts
prior to the closing of the polls. The ballots had been submitted by the voters to the city clerk in
accordance with statute. The clerk, however, was unable to deliver the ballots to the precincts
due to heavy traffic on election day. The Michigan appellate court ordered the ballots counted
despite the failure of delivery as required by law. The court held:
The primary object of an election is to enable the voters of the precinct to express
their choice of candidates. They ought not be deprived of the right to express that
choice by the fault or neglect of election officials. The authorities all recognize
that fraud upon the part of the voter vitiates his ballot, but fraud or mistake on the
part of the **556 inspectors of election should not operate to defeat the will of the
voter.
Id. at p. 643.
The Stamos court relied upon Brown v. Grzeskowiak, 230 Ind. 110 (1951),
wherein the Indiana Supreme Court held:
Any qualified absent voter who returns his ballot to the * * * clerk’s office in
time for it to be delivered to the voting place in the precinct before the polls are
closed on election day, and has satisfied all the statutory requirements with which
he must comply, is entitled to have his vote counted, and if because of the failure
of the county clerk or any other election official to do his duty, such ballot is not
delivered to the inspector of the precinct in time for it to be counted by the
precinct election board it will be counted by the court in an election contest
proceeding.
To hold otherwise would be to open the door for an unscrupulous clerk to hold
absent voters’ ballots in his office beyond the time when they could be delivered
to the precinct voting places and thereby disfranchise voters and control the
results of an election.
Id. at p. 147.
As in Stamos and Brown, the voters here complied with the election laws. The fault lies
with the government. The votes must be counted. The right to vote, and the concomitant rightsCOPY
to free speech, to due process and to associate through the ballot box, are fundamental rights
guaranteed by the First and Fourteenth Amendments to the United States Constitution.
When the state legislature vests the right to vote [...] in its people, the right to
vote as the legislature has prescribed is fundamental; and one source of its
fundamental nature lies in the equal weight accorded to each vote and the equal
dignity owed to each voter....
Bush v. Gore, 531 U.S. 98, 104-105 (2000).'
These fundamental rights, inherent in the concept of democracy, are similarly protected
by the Constitution of the State of Ohio.
In evaluating [election] claims, we are guided by several well-established
principles, none more important than that “ ‘our citizens must be confident that
their vote, cast for a candidate or an issue, will not be disturbed except under
extreme circumstances that clearly affect the integrity of the election.
In re Election Contest of December 14, 1999 Special Election for the Office of mayor of the City
of Willoughby Hills, 91 Ohio St.3d 302 (2001), (emphasis in original), citing Jn re Election
Contest of Democratic Primary Held May 4, 1999 for Clerk Youngstown Mun. Court (2000), 88
Ohio St.3d 258, 263, 725 N.E.2d 271, 275, quoting Jn re Election of Nov. 6, 1990 for the Office
of Atty. Gen. of Ohio (1991), 58 Ohio St.3d 103, 105, 569 N.E.2d 447, 450. See, also, Kinney v.
Kaiser Aluminum & Chemical Corp., 41 Ohio 2d 120 (1975), (“Section 16, Article I of the Ohio
Constitution provides, inter alia, that every person who sustains a legal injury ‘shall have remedy
by due course of law.’ The ‘due course of law’ provision is the equivalent of the ‘due process of
law’ provision in the Fourteenth Amendment to the United States Constitution.”)
The votes at issue here must be counted. The voters complied in all respects with the
election laws and cast their votes in the manner required by law. (“The elector shall mail the
' Bush v. Gore pertained to the right of a citizen to vote for electors in the presidential election, a
right not guaranteed by the Constitution. The right to vote here is not dependent on legislative
action.COPY,
identification envelope to the director from whom it was received in the return envelope, postage
prepaid, or the elector may personally deliver it to the director or [a named family member] may
deliver it to the director. The return envelope shall be transmitted to the director in no other
manner.... R.C. Section 3509.05. Emphasis added.)
Counting these votes will not negatively affect the integrity of the election but will, in
fact, preserve it. In Jn re election of November 7, 1995 for the Office of Rock Hill Local School
District Board of Education, 76 Ohio St.3d 601 (1996), the Lawrence County Board of Elections
refused absentee ballot applications to three voters who requested absentee ballots the day before
the general election. The board of elections denied the electors the right to vote based upon
advice from the Secretary of State of Ohio with respect to recent changes to the election laws.
The Ohio Supreme Court found that the Secretary of State had misread the law and that the
advisory issued by the Secretary of State was incorrect. The Court ordered the Board to permit
the three electors to vote and to count the votes several months after the election was over. The
Court held:
There is no *610 question that pursuant to R.C. 3509.03, the three qualified
electors had an absolute right to walk into the board of elections’ office the day
before the election and apply for, receive, and cast absentee ballots,
notwithstanding the fact that there was no “unforeseen emergency” requiring that
they do so. Each of the electors was a qualified absentee voter because each had
planned to be (and was) out of the county of election day. See R.C.
3509.02(A)(7). The summary of R.C. 3509.03 relied upon by the board of
elections was clearly erroneous and could not constitute a legitimate basis to deny
these electors the right to vote.
Id. at 609-610.
The Court in Jn re Election of November 7, 1995, supra, also considered the Lawrence
County Board of Election’s determination not to count 24 ballots on the basis that the ballots had
been mailed to the board by persons other than the electors who cast the ballots, purportedly in
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violation of R.C. Section 3509.05. The Ohio Supreme Court again ordered the ballots counted.
It held:
(E]ven if R.C. 3509.05 could be construed as requiring an absentee voter to
personally place his or her ballot and identification envelope in the mail, R.C.
3505.28 provides, “No ballot shall be counted which is marked contrary to law,
except that no ballot shall be rejected for any technical error unless it is
impossible to determine the voter’s choice.” (Emphasis added.) Here, any error
in mailing was purely technical in nature. There was no evidence of fraud with
respect to these ballots and, as the trial court noted, “requiring a voter to
personally place his or her ballot in a mailbox or hand it to a postal worker in
order for the ballot to be counted raises form over substance.” Under these
circumstances, and in light of the policy of the law favoring free and competitive
elections (see, e.g., State ex rel. Giuliani v. Cuyahoga Cty. Bd. of Elections
[1984], 14 Ohio St.3d 8, 10, 14 OBR 314, 316, 471 N.E.2d 148, 149; Stern v.
Cuyahoga Cty. Bd. of Elections [1968], 14 Ohio St.2d 175, 184, 43 0.0.2d 286.
291, 237 N.E.2d 313, 319; and **1123 State ex rel. Hanna v. Milburn [959\(- 170
Ohio St. 9, 12, 9 O.0.2d 332, 333-334, 161 N.E.2d 891, 894), the trial court found
that the twenty-four challenged electors had substantially complied with the
requirements of R.C. 3509.05. We agree that at a minimum the twenty-four
voters “substantially” complied with R.C. 3509.05.
Id. at 608.
The ballots at issue here must also be counted. The voters had an absolute right to vote.
There is no evidence that any voter was unqualified nor that any ballot or any mailing was
defective. There was no evidence of fraud by the voters nor any irregularity in their actions.
(That evidence, if there were any, would be wholly in the Defendants’ possession.) “Although
‘all provisions of election laws are mandatory in the sense that they impose the duty of obedience
upon those who come within their purview,...irregularities, which were not caused by fraud and
which have not interfered with a full and fair expression of the voters’ choice, should not effect a
disfranchisement [sic] of the voters.”” Jn re Election Contest of December 14, 1999, supra, at
306.
The Board of Election’s refusal to count these votes violates the voters’ fundamental
rights to vote, to speak freely and to associate at the ballot box. It violates the City’s right to
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have its elected officials elected fairly, by a vote of all qualified voters. “No right is more
precious in a free country than that of having a voice in the election of those who make the laws
under which, as good citizens, we must live.” Burdick v. Takushi, 504 U.S. 428, 441 (1992).
The voters respected these laws. Their votes must be counted.
The fundamental right to vote is, of course, subject to regulation as necessary to protect
the integrity of the vote. Indeed, in Burdick, the United States Supreme Court stated: “It seems
to us that limiting the choice of candidates to those who have complied with state election law
requirements is the prototypical example of a regulation that, while it affects the right to vote, is
eminently reasonable.” Burdick, supra at 441, citing Anderson v. Celebrezze, 460 U.S. 780
(1983). By the same token, refusing to count the votes of those who have complied with the
election laws in all respects is inherently unreasonable.
The State may not restrict the right to vote by imposing unreasonable and unnecessary
restrictions on that right.
It is beyond cavil that “voting is of the most fundamental significance under our
constitutional structure.” Illinois Bd. of Elections v. Socialist Workers Party, 440
US. 173, 184, 99 S.Ct. 983, 990, 59 L-Ed.2d 230 (1979). It does not follow,
however, that the right to vote in any manner and the right to associate for
political purposes through the ballot are absolute. Munro v. Socialist Workers
Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986)
eK
A court considering a challenge to a state election law must weigh “the character
and magnitude of the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise
interests put forward by the State as justifications for the burden imposed by its
rule,” taking into consideration “the extent to which those interests make it
necessary to burden the plaintiffs rights.” _Jd., at 789, 103 S.Ct., at 1570;
Tashijian, supra, 479 U.S., at 213-214, 107 S.Ct., at 547-548.
[2] Under this standard, the rigorousness of our inquiry into the propriety of a
state election law depends upon the extent to which a challenged regulation
burdens First and Fourteenth Amendment rights. Thus, as we have recognized
when those rights are subjected to “ severe” restrictions, the regulation must be
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narrowly drawn to advance a state interest of compelling importance.” Norman v.
Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992).
Burdick, supra at 442-443.
The State and the Board of Elections have imposed here the most severe restriction
possible: the Board of Elections, on the advice of the Secretary of State, has refused to count
votes cast in accordance with state law. Revised Code Section 3509.05, both on its face and as
applied here, is neither narrowly drawn nor does it advance any compelling state interest.
Neither the state, in interpreting the statute, nor the Board in enforcing it, admit of any
accommodation for the voter whose vote is denied through no fault of his own, but solely due to
the failure of government to protect that vote.
More importantly, the Board’s refusal to count the votes clearly is not required in order to
protect the election process. The Board is required by law to count absentee ballots from
overseas which are delivered after the election. See, R.C. Section 3509.05. The Board is
required to count ballots from members of the military which are delivered after the election,
whether or not these ballots are postmarked. See, R.C. Sections 3511.11 and 3511.13. The
Board is required to count provisional ballots when proper voter identification is presented after
the election. See, R.C. Section 3505.181. There is no legitimate reason not to count the absentee
ballots at issue here nor to treat the absentee voters who cast these ballots differently from other
absentee voters. The statutory voting scheme serves no compelling governmental interest. It
violates the fundamental right to vote of every citizen of the City of Akron.
In addition, this differing treatment violates the Equal Protection Clauses of the
Constitutions of the United States and of the State of Ohio.
The right to vote is protected in more than the initial allocation of the franchise.
Equal protection applies as well to the manner of its exercise. Having once
granted the right to vote on equal terms, the State may not, by later arbitrary and
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disparate treatment, value one person’s vote over that of another. See, e.g.,
Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed2d
169 (1966) ( [OJnce the franchise is granted to the electorate, lines may not be
drawn which are inconsistent with the Equal Protection Clause of the Fourteenth
Amendment”).
Bush v. Gore, 531 U.S. 98, 104-105 (2000). See, also, Kinney v. Kaiser Aluminum & Chemical
Corp., 41 Ohio 2d 120 (1975), (“The limitations placed upon governmental action by the Equal
Protection Clauses of the Ohio and United States constitutions are essentially identical.”)
The standard for determining whether a statutory classification involving a
fundamental right violates the Equal Protection Clause of the Ohio Constitution is
again the strict scrutiny test. The limit placed upon governmental action by the
Equal Protection Clauses of the Ohio and United States Constitutions are nearly
identical.” [Internal citation to Kinney, supra, omitted.] Thus, the statutory
classifications of [the statute] are unconstitutional unless it can be shown that they
are necessary to promote a compelling governmental interest.
Sorrell v. Thevenir, 69 Ohio St.3d 415, 424-425 (1994), citing Shapiro v. Thompson, 394 U.S.
618 (1969.)
Once the Plaintiff shows that a fundamental right is implicated, “the state must assume
the heavy burden of proving that the legislation is constitutional.” Board of Lucas County
Comm. v. Waterville Township Board of Trustees, 171 Ohio App. 3d 354, 2007-Ohio-2141, §27,
citing, Eisenstadt v. Baird (1972), 405 U.S. 438, 447, fn. 7; Dunn v. Blumstein (1972) 405 U.S.
330, 342. In conjunction with the state bearing this “heavy burden,” statutes denying a group of
residents the right to vote are stripped of “the general presumption of constitutionality afforded
state statutes and the traditional approval given state classifications if the Court can conceive of a
‘rational basis’ for the distinctions made.” Kramer v. Union Free Sch. Dist. (1969), 395 U.S.
621, 627-28. Kramer reasons:
The presumption’ of constitutionality and the approval given ‘rational’
classifications in other types of enactments are based on an assumption that the
institutions of state government are structured so as to represent fairly all the
people. However, when the challenge to the statute is in effect a challenge of this
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basis assumption, the assumption can no longer serve as the basis for presuming
constitutionality.
395 USS. at 628
The State’s differing treatment of absentee voters, military voters, overseas voters and
provisional voters is unreasonable and wholly unwarranted. It violates the equal protection
rights of the voters and of the City of Akron.
The government, whether through the United States Postal Service or the Summit County
Board of Elections, failed in its duty to protect its citizens’ fundamental right to vote. The
government must make reasonable concessions to correct its failure and to count the votes of
each qualified elector who voted in accordance with law. Every vote counts. These votes must
be counted.
CONCLUSION
For the aforementioned reasons, Plaintiffs City of Akron, Mayor Donald L. Plusquellic
and Council President Marco Sommerville are entitled to preliminary injunction enjoining
Defendants from certifying the election results without counting the aforesaid absentee ballots.
A failure to grant the injunction will disenfranchise the voters of Akron and endanger the
integrity of elections in the City of Akron. No third parties will be unjustifiably harmed. Rather,
the public interest will be served by preserving the citizens’ fundamental right to vote and
promoting a fair election.
Plaintiffs, additionally, are entitled to a writ of mandamus herein. Plaintiffs have a clear
legal right to have the absentee ballots counted and Defendants are under a clear legal duty to
count them. Plaintiffs have no adequate remedy at law.
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Respectfully submitted,
Max Rothal — Reg. No. 0009431
Director of Law
De6érah Mf/Forfia - Reg. No. 0033581
Cheri B. Cunningham — Reg. No. 0009433
Assistant Directors of Law
161 S. High Street, Suite 202
Akron, Ohio 44308
330-375-2030/330-375-2041 (FAX)
Attorneys for Plaintiff, City of Akron
PROOF OF SERVICE
This is to certify that a copy of this Preliminary Injunction Memorandum of Law was
hand-delivered on this 20" day of September 2007 to:
John Manley
Summit County Prosecutor's Office
175 S. Main Street
Akron, Ohio 44308
FAX: (330) 643-8708
State of Ohio
c/o Secretary of State Jennifer Brunner
180 East Broad Street
Columbus, Ohio 43215
FAX: (1-614) 644-0649
Rich Coglianese
(eglianese@ag.state.oh.us)
Damian Sikora (dsikora@ag.state.oh.us)
30 East Broad Street
16th Floor
Columbus, Ohio 43215
Debéfah M. Fafrfia — Reg. No. 0033581
Cheri B. Cunningham — Reg. No. 0009433
Assistant Directors of Law
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SECTION 3. TIME OF HOLDING ELECTIONS.
A general election for the choice of elective officers provided for in this Charter shall be held on the first Tuesday
after the first Monday of November in odd numbered years. Elections so held shall be known as regular Municipal
elections. Such other elections shall be held as may be required by law or provided for in this Charter. Any matter
which by the terms of this Charter may be submitted to the electors of the City at any special election may be
submitted at the time of a primary election or of a regular election. Except as otherwise provided in this Charter,
all elections shall be held and conducted and the results thereof ascertained and certified as provided by the
general laws of the State and by the election authorities therein provided for.
(V 61 p 337; Approved by voters Nov. 6, 1951)COPY |
SECTION 4, NOMINATIONS.
Candidates for all offices to be voted for at any municipal election under the provisions of this Charter shall be
nominated at a primary election to be held on the eighth Tuesday prior to such municipal election; the method of
nomination and procedures for the same shall be in conformity with the state law on the subject of nominations for
public office, and the results certified in like manner.
(V 61 p 337; Approved by voters Nov. 6, 1951)COPY ,
3505.181 Eligibility to cast provisional ballot - procedure.
(A) All of the following individuals shall be permitted to cast a provisional ballot at an election:
(1) An individual who declares that the individual is a registered voter in the jurisdiction in which the individual desires
to vote and that the individual is eligible to vote in an election, but the name of the individual does not appear on the
official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote;
(2) An individual who has a social security number and provides to the election officials the last four digits of the
individual’s social security number as permitted by division (A)(2) of section 3505.18 of the Revised Code;
(3) An individual who has but is unable to provide to the election officials any of the forms of identification required
under division (A)(1) of section 3505.18 of the Revised Code and who has a social security number but is unable to
provide the last four digits of the individual's social security number as permitted under division (A)(2) of that section;
(4) An individual who does not have any of the forms of identification required under division (A)(1) of section 3505.18
of the Revised Code, who cannot provide the last four digits of the individual's social security number under division (A)
(2) of that section because the individual does not have a social security number, and who has executed an affirmation
as permitted under division (A)(4) of that section;
(5) An individual whose name in the poll list or signature pollbook has been marked under section 3509.09 or 3511.13
of the Revised Code as having requested an absent voter's ballot or an armed service absent voter's ballot for that
election and who appears to vote at the polling place;
(6) An individual whose notification of registration has been returned undelivered to the board of elections and whose
name in the official registration list and in the poll list or signature pollbook has been marked under division (C)(2) of
section 3503.19 of the Revised Code;
(7) An individual who is challenged under section 3505.20 of the Revised Code and the election officials determine that
the person is ineligible to vote or are unable to determine the person’s eligibility to vote;
(8) An individual whose application or challenge hearing has been postponed until after the day of the election under
division (D)(1) of section 3503.24 of the Revised Code;
(9) An individual who changes the individual’s name and remains within the precinct, moves from one precinct to
another within a county, moves from one precinct to another and changes the individual’s name, or moves from one
county to another within the state, and completes and signs the required forms and statements under division (B) or (C)
of section 3503.16 of the Revised Code;
(10) An individual whose signature, in the opinion of the precinct officers under section 3505.22 of the Revised Code, is
not that of the person who signed that name in the registration forms;
(11) An individual who is challenged under section 3513.20 of the Revised Code who refuses to make the statement
required under that section, who a majority of the precinct officials find lacks any of the qualifications to make the
individual a qualified elector, or who a majority of the precinct officials find is not affiliated with or a member of the
political party whose ballot the individual desires to vote;
(12) An individual who does not have any of the forms of identification required under division (A)(1) of section 3505.18
of the Revised Code, who cannot provide the last four digits of the individual's social security number under division (A)
(2) of that section because the person does not have a social security number, and who declines to execute. an
affirmation as permitted under division (A)(4) of that section;(13) An individual who has but declines to provide to the precinct election officials any of the forms of identification
required under division (A)(1) of section 3501.18 of the Revised Code or who has a social security number but declines
to provide to the precinct election officials the last four digits of the individual's social security number.
(B) An individual who is eligible to cast a provisional ballot under division (A) of this section shall be permitted to cast a
provisional ballot as follows:
(1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in
that election.
(2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written
affirmation by the individual before an election official at the polling place stating that the individual is both of the
following:
(a) A registered voter in the jurisdiction in which the individual desires to vote;
(b) Eligible to vote in that election.
(3) An election official at the polling place shall transmit the ballot cast by the individual, the voter information contained
in the written affirmation executed by the individual under division (B)(2) of this section, or the individual’s name if the
individual declines to execute such an affirmation to an appropriate local election official for verification under division
(B)(4) of this section.
(4) If the appropriate local election official to whom the ballot or voter or address information is transmitted under
division (B)(3) of this section determines that the individual is eligible to vote, the individual’s provisional ballot shall be
counted as a vote in that election.
(5)(a) At the time that an individual casts a provisional ballot, the appropriate local election official shall give the
Individual written information that states that any individual who casts a provisional ballot will be able to ascertain under
the system established under division (B)(5)(b) of this section whether the vote was counted, and, if the vote was not
counted, the reason that the vote was not counted.
(b) The appropriate state or local election official shall establish a free access system, in the form of a toll-free telephone
number, that any individual who casts a provisional ballot may access to discover whether the vote of that individual
was counted, and, if the vote was not counted, the reason that the vote was not counted. The free access system
established under this division also shall provide to an individual whose provisional ballot was not counted information
explaining how that individual may contact the board of elections to register to vote or to resolve problems with the
individual's voter registration.
The appropriate state or local election official shall establish and maintain reasonable procedures necessary to protect
the security, confidentiality, and integrity of personal information collected, stored, or otherwise used by the free access
system established under this division. Access to information about an individual ballot shall be restricted to the
individual who cast the ballot.
eo
(6) If, at the time that an individual casts a provisional ballot, the individual provides identification in the form of a
current and valid photo identification, a military identification that shows the voter’s name and current address, or a
copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a
notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter
registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the individual’s name
and current address, or provides the last four digits of the individual’s social security number, or executes an affirmation
that the elector does not have any of those forms of identification or the last four digits of the individual's social security
number because the individual does not have a social security number, or declines to execute such an affirmation, theCOPY ,
appropriate local election official shall record the type of identification provided, the social security number information,
the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and
include that information with the transmission of the ballot or voter or address information under division (B)(3) of this
section. If the individual declines to execute such an affirmation, the appropriate local election official shall record the |
individual’s name and include that information with the transmission of the ballot under division (B)(3) of this section: :
(7) If an individual casts a provisional ballot pursuant to division (A)(3), (7), (8), (12), or (13) of this section, the
election official shall indicate, on the provisional ballot verification statement required under section 3505.182 of the
Revised Code, that the individual is required to provide additional information to the board of elections or that an
application or challenge hearing has been postponed with respect to the individual, such that additional information is
required for the board of elections to determine the eligibility of the individual who cast the provisional ballot.
(8) During the ten days after the day of an election, an individual who casts a provisional ballot pursuant to division (A)
(3), (7), (12), or (13) of this section shall appear at the office of the board of elections and provide to the board any
additional information necessary to determine the eligibility of the individual who cast the provisional ballot.
(a) For a provisional ballot cast pursuant to division (A)(3), (12), or (13) of this section to be eligible to be counted, the
individual who cast that ballot, within ten days after the day of the election, shall do any of the following:
(i) Provide to the board of elections proof of the individual’s identity in the form of a current and valid photo
identification, a military identification that shows the voter’s name and current address, or a copy of a current utility bill,
bank statement, government check, paycheck, or other government document, other than a notice of an election mailed
by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of
elections under section 3503.19 of the Revised Code, that shows the individual’s name and current address;
(ii) Provide to the board of elections the last four digits of the individual’s social security number;
(iii) In the case of a provisional ballot executed pursuant to division (A)(12) of this section, execute an affirmation as
permitted under division (A)(4) of section 3505.18 of the Revised Code.
(b) For a provisional ballot cast pursuant to division (A)(7) of this section to be eligible to be counted, the individual who
cast that ballot, within ten days after the day of that election, shall provide to the board of elections any identification or
other documentation required to be provided by the applicable challenge questions asked of that individual under section
3505.20 of the Revised Code.
(C)(1) If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which
the individual desires to vote, or if, upon review of the precinct voting location guide using the residential street address
Provided by the individual, an election official at the polling place at which the individual desires to vote determines that
the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place
for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a
provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide
the telephone number of the board of elections in case the individual has additional questions.
(2) If the individual refuses to travel to the polling place for the correct jurisdiction or to the office of the board of
elections to cast a ballot, the individual shall be permitted to vote a provisional ballot at that jurisdiction in accordance
with division (B) of this section. If any of the following apply, the provisional ballot cast by that individual shall not be
‘opened or counted:
(a) The individual is not properly registered in that jurisdiction.
(b) The individual is not eligible to vote in that election in that jurisdiction.(c) The individual's eligibility to vote in that jurisdiction in that election cannot be established upon examination of the
records on file with the board of elections.
(D) The appropriate local election official shall cause voting information to be publicly posted at each polling place on the
day of each election,
(E) As used in this section and sections 3505.182 and 3505.183 of the Revised Code:
(1) “Jurisdiction” means the precinct in which a person Is a legally qualified elector.
(2) “Precinct voting location guide” means either of the following:
(a) An electronic or paper record that lists the correct jurisdiction and polling place for either each specific residential
street address in the county or the range of residential street addresses located in each neighborhood block in the
county;
(b) Any other method that a board of elections creates that allows a precinct election official or any elector who is at a
polling place in that county to determine the correct jurisdiction and polling place of any qualified elector who resides in
the county.
(3) “Voting information” means all of the following:
(a) A sample version of the ballot that will be used for that election;
(b) Information regarding the date of the election and the hours during which polling places will be open;
(c) Instructions on how to vote, including how to cast a vote and how to cast a provisional ballot;
(d) Instructions for mail-in registrants and first-time voters under applicable federal and state laws;
(e) General information on voting rights under applicable federal and state laws, including information on the right of an
individual to cast a provisional ballot and instructions on how to contact the appropriate officials if these rights are
alleged to have been violated;
(f) General information on federal and state laws regarding prohibitions against acts of fraud and misrepresentation.
Effective Date: 05-02-2006COPY
3505.32 Canvass of election returns.
(A) Except as otherwise provided in division (D) of this section, not earlier than the eleventh day or later than the
fifteenth day after a general or special election or, if a special election was held on the day of a presidential primary
election, not earlier than the twenty-first day or later than the twenty-fifth day after the special election, the board of
elections shall begin to canvass the election returns from the precincts in which electors were entitled to vote at that
election. It shall continue the canvass daily until it is completed and the results of the voting in that election in each of
the precincts are determined.
The board shall complete the canvass not later than the twenty-first day after the day of the election, or if a special
election was held on the day of a presidential primary election, not later than the thirty-first day after the day of the
special election. Eighty-one days after the day of the election, or ninety-one days after the day of a special election held
on the day of the presidential primary election, the canvass of election returns shall be deemed final, and no
amendments to the canvass may be made after that date. The secretary of state may specify an earlier date upon which
the canvass of election returns shall be deemed final, and after which amendments to the final canvass may not be
made, if so required by federal law.
(B) The county executive committee of each political party, each committee. designated in a petition nominating*an
independent or nonpartisan candidate for election at an election, each committee designated in a petition to represent
the petitioners pursuant to which a question or issue was submitted at an election, and any committee opposing .a
question or issue submitted at an election that was permitted by section 3505.21 of the Revised Code to have a qualified
elector serve as an observer during the counting of the ballots at each polling place at an election may designate .4
qualified elector who may be present and may observe the making of the official canvass.
(C) The board shail first open all envelopes containing uncounted ballots and shall count and
Preview
COPY MR/DMF/CBCY/tlk 09-20-07 IN THE COURT OF COMMON PLEAS 8 SUMMIT COUNTY, OHIO STATE OF OHIO, ex rel. ) Case No.: CV 2007 09 6516 CITY OF AKRON, et al. ) ) JUDGE TEODOSIO Plaintiffs v. ) PRELIMINARY INJUNCTION THE SUMMIT COUNTY BOARD MEMORANDUM OF LAW OF ) PLAINTIFFS, CITY OF AKRON, MAYOR, DONALD L. PLUSQUELLIC OF ELECTIONS, et al. ) AND COUNCILMAN MARCO S$. SOMMERVILLE Defendants ) ) STATEMENT OF FACTS Plaintiff, City of Akron, is a political subdivision created and organized under the Constitution and laws of the State of Ohio pursuant to its home rule authority granted under Article XVIII of the Constitution of the State of Ohio. Plaintiff Donald L. Plusquellic is a voter, a citizen, and the Mayor of the City of Akron. Plaintiff Marco S. Sommerville is a voter, a citizen, and Councilman for the Third Ward of the City of Akron. Defendants herein are the Summit County Board of Elections, which has the statutory responsibility for conducting elections within the City of Akron, the State of Ohio Secretary of State, who is the Chief Elections Officer in Ohio, and the Attorney General, who is the Chief Law Officer for the State and its departments.COPY, Pursuant to the laws of the State of Ohio and the Charter of the City of Akron, an election was held on September 11, 2007 in the City of Akron at which voters were to elect its Mayor and Council representatives for the ten wards of the City of Akron. Pursuant to Ohio law, the Defendant, Summit County Board of Elections is responsible for conducting elections held within the City of Akron. Since the legislature amended the Ohio voting laws which became effective January 27, 2006, all qualified electors within the City of Akron have the option of voting by absentee ballot, or voting in person at the Board of Elections or on election day at their assigned precinct until the polls close. O.R.C. §3509.02. O.R.C. §§3509.05 and 3509.06 provides that the Board of Elections shall count those absent voters’ ballots delivered to the director of the Board not later than the close of the polls on election day. On September 11, 2007, election day, representatives of the Board of Elections visited the Main Akron Post Office at 10:00 a.m. and again at 4:00 p.m. to pickup mail for the Board of Elections. On the second visit that day, Board of Elections representatives were told that there was no mail for them. The next day, 204 absentee ballots were delivered by the United States Postal Service to the Board of Elections. 120 ballots bore postmarks dated before September 11, 2007 and 80 contained no postmark. Four were postmarked September 11, 2007. On September 13, two days after the election, six additional absentee ballots were delivered to the Board of Elections. One of those had been postmarked September 5, 2007. The Board of Elections has not counted the absentee ballots delivered on September 12 and 13" and voted at its meeting on Wednesday, September 19, 2007 not to count those ballots unless ordered to do so by this Court.COPY LAW AND ARGUMENT This action is in part an action for declaratory and injunctive relief against the enforcement of Ohio Revised Code Section 3509.05, to require the counting of 210 absentee ballots, more or less, by the Summit County Board of Elections (hereinafter Board of Elections), cast in the September 11, 2007, City of Akron municipal primary election. The Ohio Secretary of State, Jennifer Brunner, (hereinafter Secretary of State) has ruled and advised the Board of Elections that the aforesaid absentee ballots should not be counted. Unless these absentee ballots are ordered counted under these set of facts and the Defendants herein enjoined, Defendants will deprive the 210 absentee voters, as well as all voters in the City of Akron, of their United States and Ohio Constitutional Rights to Vote. Defendants will also deprive the Plaintiffs of their rights and interests to have municipal elections conducted in a fair and impartial manner. Prompt judicial intervention is necessary to avert immediate and irreparable harm, not only to Plaintiffs, but to all residents and voters within the City of Akron. A dispute exists between the Plaintiffs, City of Akron (hereinafter City), Mayor Donald L. Plusquellic (hereinafter Mayor Plusquellic) and Council President Marco S. Sommerville (hereinafter Council President Sommerville) and the Defendants, Board of Elections, State of Ohio, and the Attorney General Marc Dann with respect to the constitutionality of Ohio Revised Code Section 3509.05, both on its face and as applied and as under the set of facts alleged in this Complaint, and a judgment declaring the respective rights and obligations of the parties relative to Ohio Revised Section 3509.05 is necessary and appropriate at this time. This action is also in part for a Writ of Mandamus. The Plaintiffs are entitled to a Writ of Mandamus. Notwithstanding Ohio Revised Code Section 3509.05, both the United States andCOPY Ohio Constitutions mandate that the Defendants have a clear duty to count the aforesaid absentee ballots. Both the United States and Ohio Constitutions provide the Plaintiffs with a clear legal right to have the absentee ballots counted. The Plaintiffs have no adequate remedy at law. In considering an application for a preliminary injunction, a party requesting an injunction must show: (1) There is a substantial likelihood of Plaintiffs’ success on the merits; (2) Plaintiffs will suffer irreparable injury if the injunction is not granted; (3) No third parties will be unjustifiably harmed by the granting of the preliminary injunction; and (4) The public interest will be served by the granting of the injunctive relief. Proctor & Gamble Co. v. Stoneham (2000), 140 Ohio App.3d 260, 267, 747 N.E. 2d 268. In order to be entitled to the relief of a writ of mandamus, the relator must demonstrate: (1) _ ithas a clear regal right to the relief requested; (2) the respondent is under a clear legal duty to perform the requested act; and (3) it has no plain and adequate remedy in the ordinary course of law. State ex rel. Ohio Civ. Serv. Employees Assn., AFSCME, Local 11, AFL-CID v. State Emp. Relations Bd. (Ohio, 12-15-2004) 104 Ohio St.3d 122, 818 N.E. 2d 688. For reasons set forth herein, the Plaintiffs will prevail on each of these claims. O.R.C. §3509.05 sets forth the procedure for an elector who receives an absentee ballot to mark and deliver the ballot to the director of the elections board. The full statute is attached to this memorandum and requires the electors to mail the absentee ballot in an identification envelope to the Director of the Board of Elections. It specifies that the absentee ballots be delivered to the director not later than the close of the polls on the day of the election. R.C.COPY, §3509.05(B) requires the counting of absentee ballots of electors whose return envelope indicates that the voter will be outside the United States on the day of the election that are delivered to the director prior to the eleventh day after the election unless it involves a presidential primary. In that case, R.C. §3509.05(C) requires the counting of those absentee ballots of electors whose return envelope indicates the voter will be outside the United States if they are delivered to the director prior to the twenty-first day after that election. The relevant portions provide as follows: KEK The elector shall mail the identification envelope to the director from whom it was received in the return envelope, postage prepaid, or the elector may personally deliver it to the director. KK Except as otherwise provided in divisions (B) and (C) of this section, all other envelopes containing marked absent voter’s ballots shall be delivered to the director not later than the close of the polls on the day of an election. KK (B) Except as otherwise provide in division (C) of this section, any return envelope that indicates that the voter will be outside the United States on the day of the election shall be delivered to the director prior to the eleventh day after the election. Ballots delivered in such envelopes that are received after the close of the polls on election day through the tenth day thereafter shall be counted on the eleventh day at the board of elections in the manner provided in divisions (C) and (D) of section 3509.06 of the Revised Code. Any such ballots that are signed or postmarked after the close of the polls on the day of the election or that are received by the director later than the tenth day following the election shall not be counted, but shall be kept by the board in the sealed identification envelopes as provided in division (A) of this section. (C) In any year in which a presidential primary election is held, any return envelope that indicates that the voter will be outside the United States on the day of the presidential primary election shall be delivered to the director prior the twenty- first day after that election. Ballots delivered in such envelopes that are received after the close of the polls on election day through the twentieth day thereafter shall be counted on the twenty-first day at the board of elections in the manner providedCOPY in divisions (C) and (D) of section 3509.06 of the Revised Code. Any such ballots that are signed or postmarked after the close of the polls on the day of that election or that are received by the director later than the twentieth day following that election shall not be counted, but shall be kept by the board in the sealed identification envelops as provided in division (A) of this section. O.R.C. §3509.06 provides the procedure for counting absent voter’s ballots and is attached to this memorandum. O.R.C. Chapter 3511 provides different procedures for armed service absent voter’s ballots. The chapter is attached to this memorandum. O.R.C. §3511.11 requires the counting of armed service absent voter’s ballots received by the director “prior to the twenty-first day after the day of a presidential primary election or prior to the eleventh day after the day of any other election.” In relevant part, that statute provides: kK (C) A return envelope that indicates that the voter will be outside the United States on the day of an election is not required to be postmarked in order for an armed service absent voter’s ballot contained in it to be valid. Except as otherwise provided in this division, whether or not the return envelope containing the ballot is postmarked or contains an illegible postmark, an armed service _absent_voter’s ballot that is received after the close of the polls on election day through the tenth day after the election day or, if the election was presidential primary election, through the twentieth day after the election day, and that is delivered in a retum envelope that indicates that the voter will be outside the United States on the day of the election shall be counted on the eleventh day after the election day or, if the election was a presidential primary election, on the twenty-first day after_the election day, after the office of the board of elections in the manner provided in divisions (C) and (D) of section 3509.06 of the Revised Code. (Emphasis added.) KK O.R.C. 3505.181 et. seq. set forth the requirements for county provisional ballots. It requires the counting of the provisional ballots of persons who voted but were unable to provide proof of identity at the time they voted, but who provided such information within the ten daysCOPY after the election. The full statute is attached to this memorandum. Relevant portions of O.R.C. 3505.1681(B) read as follows: RKK (8) During the ten days after the day of an election, an individual who casts a provisional ballot pursuant to division (A)(3),(7), (12), or (13) of this section shall appear at the office of the board of elections and provide to the board any additional information necessary to determine the eligibility of the individual who cast the provisional ballot. (a) For a provisional ballot cast pursuant to division (A)(3), (12), or (13) of this section to be eligible to be counted, the individual who cast that ballot, within ten days after the day the election, shall do any of the following: kK (b) For a provisional ballot cast pursuant to division (A)(7) of this section to be eligible to be counted, the individual who cast that ballot, within ten days after the day of that election, shall provide to the board of elections any identification or other_documentation_ required to be provided by the applicable challenge questions asked of that individual under section 3505.20 of the Revised Code. (Emphasis added.) The election laws of the State of Ohio contemplate that each branch of government, federal, state, county and municipality, work together to ensure the rights of voters to vote. R.C. §3509.05 permits an absentee voter to mail his or her ballot to the director of the Board of Elections. There is no question that the voters here did just that. However, the Board of Elections instructed the U.S. Postal Service not to deliver the ballots. Instead, employees of the Board went to the post office to retrieve the ballots. The Board may not instruct the post office not to deliver the mail and then complain when the mail is not delivered. The State of Ohio and the Board of Elections may not disenfranchise the voters of the City of Akron when the fault is wholly that of the government.COPY. In Stamos v. Genesee Co. Board of Convassers, 46 Mich. App. 636 (1973), the local elections clerk refused to count 22 absentee ballots which were not delivered to certain precincts prior to the closing of the polls. The ballots had been submitted by the voters to the city clerk in accordance with statute. The clerk, however, was unable to deliver the ballots to the precincts due to heavy traffic on election day. The Michigan appellate court ordered the ballots counted despite the failure of delivery as required by law. The court held: The primary object of an election is to enable the voters of the precinct to express their choice of candidates. They ought not be deprived of the right to express that choice by the fault or neglect of election officials. The authorities all recognize that fraud upon the part of the voter vitiates his ballot, but fraud or mistake on the part of the **556 inspectors of election should not operate to defeat the will of the voter. Id. at p. 643. The Stamos court relied upon Brown v. Grzeskowiak, 230 Ind. 110 (1951), wherein the Indiana Supreme Court held: Any qualified absent voter who returns his ballot to the * * * clerk’s office in time for it to be delivered to the voting place in the precinct before the polls are closed on election day, and has satisfied all the statutory requirements with which he must comply, is entitled to have his vote counted, and if because of the failure of the county clerk or any other election official to do his duty, such ballot is not delivered to the inspector of the precinct in time for it to be counted by the precinct election board it will be counted by the court in an election contest proceeding. To hold otherwise would be to open the door for an unscrupulous clerk to hold absent voters’ ballots in his office beyond the time when they could be delivered to the precinct voting places and thereby disfranchise voters and control the results of an election. Id. at p. 147. As in Stamos and Brown, the voters here complied with the election laws. The fault lies with the government. The votes must be counted. The right to vote, and the concomitant rightsCOPY to free speech, to due process and to associate through the ballot box, are fundamental rights guaranteed by the First and Fourteenth Amendments to the United States Constitution. When the state legislature vests the right to vote [...] in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.... Bush v. Gore, 531 U.S. 98, 104-105 (2000).' These fundamental rights, inherent in the concept of democracy, are similarly protected by the Constitution of the State of Ohio. In evaluating [election] claims, we are guided by several well-established principles, none more important than that “ ‘our citizens must be confident that their vote, cast for a candidate or an issue, will not be disturbed except under extreme circumstances that clearly affect the integrity of the election. In re Election Contest of December 14, 1999 Special Election for the Office of mayor of the City of Willoughby Hills, 91 Ohio St.3d 302 (2001), (emphasis in original), citing Jn re Election Contest of Democratic Primary Held May 4, 1999 for Clerk Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 263, 725 N.E.2d 271, 275, quoting Jn re Election of Nov. 6, 1990 for the Office of Atty. Gen. of Ohio (1991), 58 Ohio St.3d 103, 105, 569 N.E.2d 447, 450. See, also, Kinney v. Kaiser Aluminum & Chemical Corp., 41 Ohio 2d 120 (1975), (“Section 16, Article I of the Ohio Constitution provides, inter alia, that every person who sustains a legal injury ‘shall have remedy by due course of law.’ The ‘due course of law’ provision is the equivalent of the ‘due process of law’ provision in the Fourteenth Amendment to the United States Constitution.”) The votes at issue here must be counted. The voters complied in all respects with the election laws and cast their votes in the manner required by law. (“The elector shall mail the ' Bush v. Gore pertained to the right of a citizen to vote for electors in the presidential election, a right not guaranteed by the Constitution. The right to vote here is not dependent on legislative action.COPY, identification envelope to the director from whom it was received in the return envelope, postage prepaid, or the elector may personally deliver it to the director or [a named family member] may deliver it to the director. The return envelope shall be transmitted to the director in no other manner.... R.C. Section 3509.05. Emphasis added.) Counting these votes will not negatively affect the integrity of the election but will, in fact, preserve it. In Jn re election of November 7, 1995 for the Office of Rock Hill Local School District Board of Education, 76 Ohio St.3d 601 (1996), the Lawrence County Board of Elections refused absentee ballot applications to three voters who requested absentee ballots the day before the general election. The board of elections denied the electors the right to vote based upon advice from the Secretary of State of Ohio with respect to recent changes to the election laws. The Ohio Supreme Court found that the Secretary of State had misread the law and that the advisory issued by the Secretary of State was incorrect. The Court ordered the Board to permit the three electors to vote and to count the votes several months after the election was over. The Court held: There is no *610 question that pursuant to R.C. 3509.03, the three qualified electors had an absolute right to walk into the board of elections’ office the day before the election and apply for, receive, and cast absentee ballots, notwithstanding the fact that there was no “unforeseen emergency” requiring that they do so. Each of the electors was a qualified absentee voter because each had planned to be (and was) out of the county of election day. See R.C. 3509.02(A)(7). The summary of R.C. 3509.03 relied upon by the board of elections was clearly erroneous and could not constitute a legitimate basis to deny these electors the right to vote. Id. at 609-610. The Court in Jn re Election of November 7, 1995, supra, also considered the Lawrence County Board of Election’s determination not to count 24 ballots on the basis that the ballots had been mailed to the board by persons other than the electors who cast the ballots, purportedly in 10COPY violation of R.C. Section 3509.05. The Ohio Supreme Court again ordered the ballots counted. It held: (E]ven if R.C. 3509.05 could be construed as requiring an absentee voter to personally place his or her ballot and identification envelope in the mail, R.C. 3505.28 provides, “No ballot shall be counted which is marked contrary to law, except that no ballot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.” (Emphasis added.) Here, any error in mailing was purely technical in nature. There was no evidence of fraud with respect to these ballots and, as the trial court noted, “requiring a voter to personally place his or her ballot in a mailbox or hand it to a postal worker in order for the ballot to be counted raises form over substance.” Under these circumstances, and in light of the policy of the law favoring free and competitive elections (see, e.g., State ex rel. Giuliani v. Cuyahoga Cty. Bd. of Elections [1984], 14 Ohio St.3d 8, 10, 14 OBR 314, 316, 471 N.E.2d 148, 149; Stern v. Cuyahoga Cty. Bd. of Elections [1968], 14 Ohio St.2d 175, 184, 43 0.0.2d 286. 291, 237 N.E.2d 313, 319; and **1123 State ex rel. Hanna v. Milburn [959\(- 170 Ohio St. 9, 12, 9 O.0.2d 332, 333-334, 161 N.E.2d 891, 894), the trial court found that the twenty-four challenged electors had substantially complied with the requirements of R.C. 3509.05. We agree that at a minimum the twenty-four voters “substantially” complied with R.C. 3509.05. Id. at 608. The ballots at issue here must also be counted. The voters had an absolute right to vote. There is no evidence that any voter was unqualified nor that any ballot or any mailing was defective. There was no evidence of fraud by the voters nor any irregularity in their actions. (That evidence, if there were any, would be wholly in the Defendants’ possession.) “Although ‘all provisions of election laws are mandatory in the sense that they impose the duty of obedience upon those who come within their purview,...irregularities, which were not caused by fraud and which have not interfered with a full and fair expression of the voters’ choice, should not effect a disfranchisement [sic] of the voters.”” Jn re Election Contest of December 14, 1999, supra, at 306. The Board of Election’s refusal to count these votes violates the voters’ fundamental rights to vote, to speak freely and to associate at the ballot box. It violates the City’s right to 11COPY have its elected officials elected fairly, by a vote of all qualified voters. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” Burdick v. Takushi, 504 U.S. 428, 441 (1992). The voters respected these laws. Their votes must be counted. The fundamental right to vote is, of course, subject to regulation as necessary to protect the integrity of the vote. Indeed, in Burdick, the United States Supreme Court stated: “It seems to us that limiting the choice of candidates to those who have complied with state election law requirements is the prototypical example of a regulation that, while it affects the right to vote, is eminently reasonable.” Burdick, supra at 441, citing Anderson v. Celebrezze, 460 U.S. 780 (1983). By the same token, refusing to count the votes of those who have complied with the election laws in all respects is inherently unreasonable. The State may not restrict the right to vote by imposing unreasonable and unnecessary restrictions on that right. It is beyond cavil that “voting is of the most fundamental significance under our constitutional structure.” Illinois Bd. of Elections v. Socialist Workers Party, 440 US. 173, 184, 99 S.Ct. 983, 990, 59 L-Ed.2d 230 (1979). It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute. Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986) eK A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs rights.” _Jd., at 789, 103 S.Ct., at 1570; Tashijian, supra, 479 U.S., at 213-214, 107 S.Ct., at 547-548. [2] Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “ severe” restrictions, the regulation must be 12COPY, narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). Burdick, supra at 442-443. The State and the Board of Elections have imposed here the most severe restriction possible: the Board of Elections, on the advice of the Secretary of State, has refused to count votes cast in accordance with state law. Revised Code Section 3509.05, both on its face and as applied here, is neither narrowly drawn nor does it advance any compelling state interest. Neither the state, in interpreting the statute, nor the Board in enforcing it, admit of any accommodation for the voter whose vote is denied through no fault of his own, but solely due to the failure of government to protect that vote. More importantly, the Board’s refusal to count the votes clearly is not required in order to protect the election process. The Board is required by law to count absentee ballots from overseas which are delivered after the election. See, R.C. Section 3509.05. The Board is required to count ballots from members of the military which are delivered after the election, whether or not these ballots are postmarked. See, R.C. Sections 3511.11 and 3511.13. The Board is required to count provisional ballots when proper voter identification is presented after the election. See, R.C. Section 3505.181. There is no legitimate reason not to count the absentee ballots at issue here nor to treat the absentee voters who cast these ballots differently from other absentee voters. The statutory voting scheme serves no compelling governmental interest. It violates the fundamental right to vote of every citizen of the City of Akron. In addition, this differing treatment violates the Equal Protection Clauses of the Constitutions of the United States and of the State of Ohio. The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and 13COPY disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed2d 169 (1966) ( [OJnce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). Bush v. Gore, 531 U.S. 98, 104-105 (2000). See, also, Kinney v. Kaiser Aluminum & Chemical Corp., 41 Ohio 2d 120 (1975), (“The limitations placed upon governmental action by the Equal Protection Clauses of the Ohio and United States constitutions are essentially identical.”) The standard for determining whether a statutory classification involving a fundamental right violates the Equal Protection Clause of the Ohio Constitution is again the strict scrutiny test. The limit placed upon governmental action by the Equal Protection Clauses of the Ohio and United States Constitutions are nearly identical.” [Internal citation to Kinney, supra, omitted.] Thus, the statutory classifications of [the statute] are unconstitutional unless it can be shown that they are necessary to promote a compelling governmental interest. Sorrell v. Thevenir, 69 Ohio St.3d 415, 424-425 (1994), citing Shapiro v. Thompson, 394 U.S. 618 (1969.) Once the Plaintiff shows that a fundamental right is implicated, “the state must assume the heavy burden of proving that the legislation is constitutional.” Board of Lucas County Comm. v. Waterville Township Board of Trustees, 171 Ohio App. 3d 354, 2007-Ohio-2141, §27, citing, Eisenstadt v. Baird (1972), 405 U.S. 438, 447, fn. 7; Dunn v. Blumstein (1972) 405 U.S. 330, 342. In conjunction with the state bearing this “heavy burden,” statutes denying a group of residents the right to vote are stripped of “the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made.” Kramer v. Union Free Sch. Dist. (1969), 395 U.S. 621, 627-28. Kramer reasons: The presumption’ of constitutionality and the approval given ‘rational’ classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this 14COPY basis assumption, the assumption can no longer serve as the basis for presuming constitutionality. 395 USS. at 628 The State’s differing treatment of absentee voters, military voters, overseas voters and provisional voters is unreasonable and wholly unwarranted. It violates the equal protection rights of the voters and of the City of Akron. The government, whether through the United States Postal Service or the Summit County Board of Elections, failed in its duty to protect its citizens’ fundamental right to vote. The government must make reasonable concessions to correct its failure and to count the votes of each qualified elector who voted in accordance with law. Every vote counts. These votes must be counted. CONCLUSION For the aforementioned reasons, Plaintiffs City of Akron, Mayor Donald L. Plusquellic and Council President Marco Sommerville are entitled to preliminary injunction enjoining Defendants from certifying the election results without counting the aforesaid absentee ballots. A failure to grant the injunction will disenfranchise the voters of Akron and endanger the integrity of elections in the City of Akron. No third parties will be unjustifiably harmed. Rather, the public interest will be served by preserving the citizens’ fundamental right to vote and promoting a fair election. Plaintiffs, additionally, are entitled to a writ of mandamus herein. Plaintiffs have a clear legal right to have the absentee ballots counted and Defendants are under a clear legal duty to count them. Plaintiffs have no adequate remedy at law. 15COPY Respectfully submitted, Max Rothal — Reg. No. 0009431 Director of Law De6érah Mf/Forfia - Reg. No. 0033581 Cheri B. Cunningham — Reg. No. 0009433 Assistant Directors of Law 161 S. High Street, Suite 202 Akron, Ohio 44308 330-375-2030/330-375-2041 (FAX) Attorneys for Plaintiff, City of Akron PROOF OF SERVICE This is to certify that a copy of this Preliminary Injunction Memorandum of Law was hand-delivered on this 20" day of September 2007 to: John Manley Summit County Prosecutor's Office 175 S. Main Street Akron, Ohio 44308 FAX: (330) 643-8708 State of Ohio c/o Secretary of State Jennifer Brunner 180 East Broad Street Columbus, Ohio 43215 FAX: (1-614) 644-0649 Rich Coglianese (eglianese@ag.state.oh.us) Damian Sikora (dsikora@ag.state.oh.us) 30 East Broad Street 16th Floor Columbus, Ohio 43215 Debéfah M. Fafrfia — Reg. No. 0033581 Cheri B. Cunningham — Reg. No. 0009433 Assistant Directors of Law 16COPY SECTION 3. TIME OF HOLDING ELECTIONS. A general election for the choice of elective officers provided for in this Charter shall be held on the first Tuesday after the first Monday of November in odd numbered years. Elections so held shall be known as regular Municipal elections. Such other elections shall be held as may be required by law or provided for in this Charter. Any matter which by the terms of this Charter may be submitted to the electors of the City at any special election may be submitted at the time of a primary election or of a regular election. Except as otherwise provided in this Charter, all elections shall be held and conducted and the results thereof ascertained and certified as provided by the general laws of the State and by the election authorities therein provided for. (V 61 p 337; Approved by voters Nov. 6, 1951)COPY | SECTION 4, NOMINATIONS. Candidates for all offices to be voted for at any municipal election under the provisions of this Charter shall be nominated at a primary election to be held on the eighth Tuesday prior to such municipal election; the method of nomination and procedures for the same shall be in conformity with the state law on the subject of nominations for public office, and the results certified in like manner. (V 61 p 337; Approved by voters Nov. 6, 1951)COPY , 3505.181 Eligibility to cast provisional ballot - procedure. (A) All of the following individuals shall be permitted to cast a provisional ballot at an election: (1) An individual who declares that the individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote; (2) An individual who has a social security number and provides to the election officials the last four digits of the individual’s social security number as permitted by division (A)(2) of section 3505.18 of the Revised Code; (3) An individual who has but is unable to provide to the election officials any of the forms of identification required under division (A)(1) of section 3505.18 of the Revised Code and who has a social security number but is unable to provide the last four digits of the individual's social security number as permitted under division (A)(2) of that section; (4) An individual who does not have any of the forms of identification required under division (A)(1) of section 3505.18 of the Revised Code, who cannot provide the last four digits of the individual's social security number under division (A) (2) of that section because the individual does not have a social security number, and who has executed an affirmation as permitted under division (A)(4) of that section; (5) An individual whose name in the poll list or signature pollbook has been marked under section 3509.09 or 3511.13 of the Revised Code as having requested an absent voter's ballot or an armed service absent voter's ballot for that election and who appears to vote at the polling place; (6) An individual whose notification of registration has been returned undelivered to the board of elections and whose name in the official registration list and in the poll list or signature pollbook has been marked under division (C)(2) of section 3503.19 of the Revised Code; (7) An individual who is challenged under section 3505.20 of the Revised Code and the election officials determine that the person is ineligible to vote or are unable to determine the person’s eligibility to vote; (8) An individual whose application or challenge hearing has been postponed until after the day of the election under division (D)(1) of section 3503.24 of the Revised Code; (9) An individual who changes the individual’s name and remains within the precinct, moves from one precinct to another within a county, moves from one precinct to another and changes the individual’s name, or moves from one county to another within the state, and completes and signs the required forms and statements under division (B) or (C) of section 3503.16 of the Revised Code; (10) An individual whose signature, in the opinion of the precinct officers under section 3505.22 of the Revised Code, is not that of the person who signed that name in the registration forms; (11) An individual who is challenged under section 3513.20 of the Revised Code who refuses to make the statement required under that section, who a majority of the precinct officials find lacks any of the qualifications to make the individual a qualified elector, or who a majority of the precinct officials find is not affiliated with or a member of the political party whose ballot the individual desires to vote; (12) An individual who does not have any of the forms of identification required under division (A)(1) of section 3505.18 of the Revised Code, who cannot provide the last four digits of the individual's social security number under division (A) (2) of that section because the person does not have a social security number, and who declines to execute. an affirmation as permitted under division (A)(4) of that section;(13) An individual who has but declines to provide to the precinct election officials any of the forms of identification required under division (A)(1) of section 3501.18 of the Revised Code or who has a social security number but declines to provide to the precinct election officials the last four digits of the individual's social security number. (B) An individual who is eligible to cast a provisional ballot under division (A) of this section shall be permitted to cast a provisional ballot as follows: (1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election. (2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is both of the following: (a) A registered voter in the jurisdiction in which the individual desires to vote; (b) Eligible to vote in that election. (3) An election official at the polling place shall transmit the ballot cast by the individual, the voter information contained in the written affirmation executed by the individual under division (B)(2) of this section, or the individual’s name if the individual declines to execute such an affirmation to an appropriate local election official for verification under division (B)(4) of this section. (4) If the appropriate local election official to whom the ballot or voter or address information is transmitted under division (B)(3) of this section determines that the individual is eligible to vote, the individual’s provisional ballot shall be counted as a vote in that election. (5)(a) At the time that an individual casts a provisional ballot, the appropriate local election official shall give the Individual written information that states that any individual who casts a provisional ballot will be able to ascertain under the system established under division (B)(5)(b) of this section whether the vote was counted, and, if the vote was not counted, the reason that the vote was not counted. (b) The appropriate state or local election official shall establish a free access system, in the form of a toll-free telephone number, that any individual who casts a provisional ballot may access to discover whether the vote of that individual was counted, and, if the vote was not counted, the reason that the vote was not counted. The free access system established under this division also shall provide to an individual whose provisional ballot was not counted information explaining how that individual may contact the board of elections to register to vote or to resolve problems with the individual's voter registration. The appropriate state or local election official shall establish and maintain reasonable procedures necessary to protect the security, confidentiality, and integrity of personal information collected, stored, or otherwise used by the free access system established under this division. Access to information about an individual ballot shall be restricted to the individual who cast the ballot. eo (6) If, at the time that an individual casts a provisional ballot, the individual provides identification in the form of a current and valid photo identification, a military identification that shows the voter’s name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the individual’s name and current address, or provides the last four digits of the individual’s social security number, or executes an affirmation that the elector does not have any of those forms of identification or the last four digits of the individual's social security number because the individual does not have a social security number, or declines to execute such an affirmation, theCOPY , appropriate local election official shall record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot or voter or address information under division (B)(3) of this section. If the individual declines to execute such an affirmation, the appropriate local election official shall record the | individual’s name and include that information with the transmission of the ballot under division (B)(3) of this section: : (7) If an individual casts a provisional ballot pursuant to division (A)(3), (7), (8), (12), or (13) of this section, the election official shall indicate, on the provisional ballot verification statement required under section 3505.182 of the Revised Code, that the individual is required to provide additional information to the board of elections or that an application or challenge hearing has been postponed with respect to the individual, such that additional information is required for the board of elections to determine the eligibility of the individual who cast the provisional ballot. (8) During the ten days after the day of an election, an individual who casts a provisional ballot pursuant to division (A) (3), (7), (12), or (13) of this section shall appear at the office of the board of elections and provide to the board any additional information necessary to determine the eligibility of the individual who cast the provisional ballot. (a) For a provisional ballot cast pursuant to division (A)(3), (12), or (13) of this section to be eligible to be counted, the individual who cast that ballot, within ten days after the day of the election, shall do any of the following: (i) Provide to the board of elections proof of the individual’s identity in the form of a current and valid photo identification, a military identification that shows the voter’s name and current address, or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the individual’s name and current address; (ii) Provide to the board of elections the last four digits of the individual’s social security number; (iii) In the case of a provisional ballot executed pursuant to division (A)(12) of this section, execute an affirmation as permitted under division (A)(4) of section 3505.18 of the Revised Code. (b) For a provisional ballot cast pursuant to division (A)(7) of this section to be eligible to be counted, the individual who cast that ballot, within ten days after the day of that election, shall provide to the board of elections any identification or other documentation required to be provided by the applicable challenge questions asked of that individual under section 3505.20 of the Revised Code. (C)(1) If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which the individual desires to vote, or if, upon review of the precinct voting location guide using the residential street address Provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions. (2) If the individual refuses to travel to the polling place for the correct jurisdiction or to the office of the board of elections to cast a ballot, the individual shall be permitted to vote a provisional ballot at that jurisdiction in accordance with division (B) of this section. If any of the following apply, the provisional ballot cast by that individual shall not be ‘opened or counted: (a) The individual is not properly registered in that jurisdiction. (b) The individual is not eligible to vote in that election in that jurisdiction.(c) The individual's eligibility to vote in that jurisdiction in that election cannot be established upon examination of the records on file with the board of elections. (D) The appropriate local election official shall cause voting information to be publicly posted at each polling place on the day of each election, (E) As used in this section and sections 3505.182 and 3505.183 of the Revised Code: (1) “Jurisdiction” means the precinct in which a person Is a legally qualified elector. (2) “Precinct voting location guide” means either of the following: (a) An electronic or paper record that lists the correct jurisdiction and polling place for either each specific residential street address in the county or the range of residential street addresses located in each neighborhood block in the county; (b) Any other method that a board of elections creates that allows a precinct election official or any elector who is at a polling place in that county to determine the correct jurisdiction and polling place of any qualified elector who resides in the county. (3) “Voting information” means all of the following: (a) A sample version of the ballot that will be used for that election; (b) Information regarding the date of the election and the hours during which polling places will be open; (c) Instructions on how to vote, including how to cast a vote and how to cast a provisional ballot; (d) Instructions for mail-in registrants and first-time voters under applicable federal and state laws; (e) General information on voting rights under applicable federal and state laws, including information on the right of an individual to cast a provisional ballot and instructions on how to contact the appropriate officials if these rights are alleged to have been violated; (f) General information on federal and state laws regarding prohibitions against acts of fraud and misrepresentation. Effective Date: 05-02-2006COPY 3505.32 Canvass of election returns. (A) Except as otherwise provided in division (D) of this section, not earlier than the eleventh day or later than the fifteenth day after a general or special election or, if a special election was held on the day of a presidential primary election, not earlier than the twenty-first day or later than the twenty-fifth day after the special election, the board of elections shall begin to canvass the election returns from the precincts in which electors were entitled to vote at that election. It shall continue the canvass daily until it is completed and the results of the voting in that election in each of the precincts are determined. The board shall complete the canvass not later than the twenty-first day after the day of the election, or if a special election was held on the day of a presidential primary election, not later than the thirty-first day after the day of the special election. Eighty-one days after the day of the election, or ninety-one days after the day of a special election held on the day of the presidential primary election, the canvass of election returns shall be deemed final, and no amendments to the canvass may be made after that date. The secretary of state may specify an earlier date upon which the canvass of election returns shall be deemed final, and after which amendments to the final canvass may not be made, if so required by federal law. (B) The county executive committee of each political party, each committee. designated in a petition nominating*an independent or nonpartisan candidate for election at an election, each committee designated in a petition to represent the petitioners pursuant to which a question or issue was submitted at an election, and any committee opposing .a question or issue submitted at an election that was permitted by section 3505.21 of the Revised Code to have a qualified elector serve as an observer during the counting of the ballots at each polling place at an election may designate .4 qualified elector who may be present and may observe the making of the official canvass. (C) The board shail first open all envelopes containing uncounted ballots and shall count and