IN THE COURT OF COMMON PLEAS, UNION COUNTY, OHIO

Transcription

1 IN THE COURT OF COMMON PLEAS, UNION COUNTY, OHIO BOARD OF COMMISSIONERS, UNION COUNTY OHIO MARYSVILLE, OHIO GARY LEE MARYSVILLE, OHIO TOM MCARTHY MARYSVILLE, OHIO CHARLES HALL MARYSVILLE, OHIO 43040, PLAINTIFFS, -vs- CASE NO. JUDGE JENNIFER BRUNNER SECRETARTY OF STATE STATE OF OHIO 180 EAST BROAD STREET COLUMBUS, OHIO DEFENDANT, VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT TEMPORARY AND PERMANENT INJUNCTION Now come Plaintiffs, by and through David W. Phillips, Union County Prosecuting Attorney, who for their complaint, state as follows: Introduction

2 1. This lawsuit is brought by the duly elected Board of County Commissioners for Union County, Ohio. 2. Plaintiffs herein challenge the issuance by the Ohio Secretary of State of Directive , requiring all counties who use direct recording electronic voting machines (DRE), including Union County, to provide an optical scan ballot to any voter who requests it. 3. Plaintiffs seek permanent declaratory relief, holding that issuance of Directive is unlawful, in that the Secretary has usurped the authority of Union County to select voting machines and equipment and will, without authority or justification, require plaintiff to make an expenditure of county general funds which is neither reasonable nor necessary. 4. Plaintiff seeks permanent injunctive relief prohibiting the Secretary of State from requiring the County to supplement its existing voting technology with a voting technology not approved by Union County; from requiring the expenditure of county funds; and from disciplining, dismissing, or harassing any county election official for not complying with the Secretary s unlawful directive. Plaintiffs 5. Plaintiffs are the duly elected Board of County Commissioners, acting in their official capacity. 6. Members of the plaintiff board are candidates for election in Union County in the March, 2008 primary election, to wit: Messrs. Hall and McCarthy. 7. The Board of County Commissioners has statutory authority to select voting equipment for use in the March, 2008 primary election. (Ohio Rev. Code ) 8. Pursuant to Ohio Election Law, plaintiff Board of County Commissioners is the body responsible for appropriating such funds to the County Board of Elections as may be proper and necessary for the conduct of elections. (Ohio Rev. Code ) 9. The Board of County Commissioners has paid for voting equipment for the use in the March 2008 primary election. 10. The Board of County Commissioners has appropriated proper and necessary funds for the conduct of such elections, based upon its selection of DRE voting equipment. Defendant

3 11. Defendant Jennifer Brunner is the duly elected Secretary of State for the State of Ohio, and as such, is the principal election official for the State of Ohio pursuant to R.C She is sued in her official capacity. 12. Under Ohio Election Code, the Secretary of State is charged with the general supervision over the administration of the election laws throughout the State of Ohio, and compelling local election officials to observe the requirements of existing state and federal law. (Ohio Rev. Code and ) 13. On January 2, 2008, defendant issued Directive (the Directive ) to all county Boards of Elections, including the Union County Board of Elections. (Exhibit 1). 14. The directive orders all counties using direct recording electronic voting machines (DRE) to provide an optical scan ballot to any voter who requests it as an alternative method to casting a ballot on a DRE voting machine. 15. The directive orders the county board of elections to provide paper ballots at each precinct where DRE technology is used. 16. The directive directs the county board of elections to track costs incurred in complying with the directive. 17. Union County utilizes DREs which have been certified by the Ohio Secretary of State pursuant to Ohio Rev. Code Sec The directive will require Union County to print ballots for use in a Central Count Optical Scan System (CCOS). 19. The directive further requires the board of elections to count the optical ballots cast to be centrally counted at the Board on election night. 20. The directive further provides that the Board of Elections must provide secure ballot containers for optical scan ballots at each polling location. 21. The directive does not provide for any means for the elector to determine an undervote or overvote at the precinct level.

4 22. The directive mandates that the Board of Elections provide a minimum number of optical scan ballots at each polling location computed by multiplying the number of ballots cast in each precinct in a like election by 10%. The defendant Secretary of State is without authority to issue Directive Union County evaluated and specifically rejected the use of Optical Scan equipment in Union County. 24. The decision as to which type of voting method is to be used in a particular county is delegated to the county board of elections, acting independently or with its board of county commissioners. 25. After throrough testing and evaluation of both Optical Scan and DRE systems, the county board of election and the commissioners for Union County selected ivotronic election equipment DRE system equipment manufactured by Election Systems & Software (ES&S). 26. The ivotronic system was certified by the Ohio Secretary of State for use in Ohio Elections and is approved for use in Federal Elections. 27. The ivotronic is a touchscreen system which includes a voter verified paper audit trail printer to create a verifiable paper record of the voter s selections. 28. When a voter votes on the ivotronic equipment, the voter is allowed to cast a single ballot, and has the opportunity to correct any undervote (i.e,, not voting for any candidate or on the issue) or overvote (i.e., voting for more candidates than is permitted). 29. Plaintiff Union County Commissioners purchased said election equipment upon the recommendation of the Union County Board of Elections at a cost of $550,716.36, including $111, appropriated from the County General Fund. 30. The directive mandates that the Board of Elections provide a minimum number of optical scan ballots at each polling location computed by multiplying the number of ballots cast in each precinct in a like election by 10%.

5 31. By requiring specified counties, including Union County, to use CCOS systems together with its DRE system, the Secretary has required the County to use an election machine which the county has not selected. 32. The Secretary of State has no statutory authority to direct the County to use a particular voting system, and Directive usurps the authority of the County Board of Elections, County Commissioners and/or electorate to choose the type of voting equipment to use in a particular election in contravention of Ohio Rev. Code Sec The Secretary s Directive will require the appropriation of funds by plaintiffs of at least $68, to meet the directive which have not heretofore been appropriated. (Exhibit 2) 34. The Secretary s Directive will require the appropriation of funds by the County Commissioners to the Board of Elections which are neither necessary nor reasonable. The Directive is in violation of federal law. 35. The Help America Vote Act requires each state to adopt a "uniform and nondiscriminatory election technology" that meets specific voting system standards. 36. The State of Ohio has submitted a plan to the federal government in accordance with HAVA noting that, It is appropriate to consider this factor in the instant case, and to respect the authority of each county board of elections to make the decisions deemed best for its county. See, 69 Fed. Reg (Mar. 24, 2004). 37. The directive will require Union County to use two separate voting systems. 38. This is a material change to the HAVA plan. 39. Section 254 of HAVA provides that a state may not make any material change in the administration of the State Plan unless the change is developed and published in the Federal Register and made subject to public notice and comment in the same manner as the State Plan. See 42 U.S.C.A (a)(11). 40. The defendant has made material changes without following federal law.

6 41. The adoption of a CCOS system and DRE system will create a dual system of voting which will not allow voters using the CCOS system to be notified of an undervote or overvote. 42. Such error will result in a greater percentage of spoiled ballots of those using the CCOS system, while providing voters using the DRE system the opportunity to immediately correct an overvote or undervote. 43. Said directive will require Union County to operate two, unequal systems under the color of law, and will result in the County using an unequal and non-uniform system of voting. Need for Injunctive Relief 44. The Union County Board of Elections has received a directive from the Secretary of State ordering the Board to implement her unlawful plan. 45. The Board of Elections considered the directive, and tied in a 2-2 vote whether to follow or reject the directive. 46. The Secretary has threatened removal of any board of elections member who refuses to follow directive (Exhibit 3 ). 47. Unless enjoined by the Court, future elections will be conducted in accordance with Directive Unless enjoined, plaintiffs will be compelled to fund expenses of the Board of Elections which are neither necessary nor proper. 49. Unless enjoined, plaintiff s lawful decision regarding the selection of election equipment to use will be superseded by the Secretary s unlawful directive. 50. Unless enjoined, plaintiff will be required to use two, unequal voting systems in the conduct of local elections. Prayer for Relief

7 WHEREFORE, having fully stated its complaint, plaintiffs respectfully request this court issue the following relief against this Defendant: A. Declare that Defendant through her directive , has acted outside the scope of her statutory authority by requiring the County to use two separate voting systems; to expend funds which are neither necessary nor proper; and to violate state and federal law. B. Preliminarily and permanently enjoin Secretary Brunner from implementing directive C. Issue a permanent injunction requiring Secretary Brunner to recognize the County s choice of voting system and prohibit interference through the issuance of directives requiring the county to use voting systems other than those chosen by them in accordance with law. D. Enjoin Secretary Brunner from taking any action, including the removal or threatening to remove any election official, in contravention of the court s order. E. Retain jurisdiction of this matter for such time as is necessary to enforce the mandate of this court in furtherance of this relief, and; F. For such other relief as may be legal or equitable in the court s sound discretion. Respectfully submitted, David W. Phillips UNION COUNTY PROSECUTING ATTORNEY David W. Phillips ( ) 221 West Fifth Street Marysville, Ohio Phone: 937/ Fax: 937/ dphillips@co.union.oh.us Gary Lee, VERIFICATION