Primary Candidate for Ohio Governor for the Green Party, Constance Gadell-Newton, brought an expedited petition seeking a writ of mandamus from the Ohio Supreme Court to Order Ohio Boards of Elections to preserve digital ballot images. Ohio uses optical-scan paper ballots where the voter colors in a box for the chosen candidate or issue. The scanner creates a digital image of the ballot and the scanner’s software then interprets the image to create a cast-vote record. Tallying the cast-vote record files then provides the results for the candidates and issues. The digital ballot images and cast-vote records are stored as separate reviewable files.

Gadell-Newton asserted that the digital ballot images are public records under the Ohio Revised Code and election records that must be preserved for 22 months after the election under federal law. Gadell-Newton, supported by testimony from an employee of Elections Systems & Software, contends that encrypted ballot images are temporarily stored in the scanner’s memory, but the internal memory is cleared each time a different ballot-type is scanned. For example, scanning absentee ballots creates the cast-vote record for such ballots, but subsequently scanning provisional ballots clears the stored images of the absentee voters and creates another cast-vote record for such ballots. Thus, she alleged that election officials are routinely destroying public records that they are required by state and federal law to preserve. After receiving no response to letters to some Ohio boards of elections requesting a confirmation that the ballot images would be preserved, she filed a petition with the Ohio Supreme Court seeking first a declaratory judgment that the ballot images are, in fact, public records, and second a writ of mandamus compelling the Ohio Secretary of State and certain boards of elections to preserve the digital ballot images.

The Ohio Supreme Court expedited the case with the May 8, 2018 Primary Election approaching and issued its Decision May 11, 2018, Gadell-Newton v. Husted, Slip Op. No. 2018-Ohio-1854 which can be reviewed here. The Court dismissed the petition for lack of subject matter jurisdiction. The Court parsed through the type of relief requested and whether it was a prohibitory injunction, over which it would not have jurisdiction, or a mandatory injunction over which it over which it would have mandamus jurisdiction to compel action by a government official. The Court correctly described the difference in the two forms of relief. “The difference between the two forms of relief is simple: ‘a prohibitory injunction is used to prevent a future injury, but a mandatory injunction is used to remedy past injuries.” ¶ 10 (quoting State ex. Rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio St. 3d 480, 2008-Ohio-1593, 884 N.E.2d 1075.

The Court was not persuaded by Gadell-Newton’s argument that this action seeks to compel affirmative action by forcing the boards of elections to preserve the digital ballot images that would otherwise be routinely destroyed as the scanner memory is cleared. The Court instead interpreted the facts as requiring an affirmative act to eliminate the ballot images, i.e., scanning the next ballots:

“There is no evidence or allegation that the digital ballot images will disappear if left alone, with no affirmative actions taken to preserve them. The converse is true: the images will be destroyed only by affirmative actions that Gadell-Newton seeks to block.” @ ¶ 12.

Therefore, since the crux of the Petition sought to prohibit the boards of elections from destroying the digital ballot images, it sought prohibitory injunction relief over which the Supreme Court lacks jurisdiction.

This unfortunately appears to be an outcome determinative interpretation of the difference between mandatory and prohibitive injunctive relief. The Court just as easily could have looked at this as mandating that the boards of elections take affirmative action to save the temporary image files of the scanned ballots, before scanning the next type of ballot. Nonetheless, Gadell-Newton had an additional problem getting the relief she requested. As noted above, the Petition initially requested a declaratory judgment that these scanned temporary files are “public records” under Ohio’s Public Records Act. She, and her counsel, must have viewed this as an essential predicate to maintain her right to review those files to ensure the integrity of the election. But, Ohio’s trial courts have original jurisdiction over such declaratory judgment cases. Hopefully, the Court did not create any vagaries in Ohio injunction law by the analysis of the prohibition of affirmative action and the compelling of affirmative action. As noted, the Court correctly described the difference between the two forms of relief. However, it just as easily could have found that Gadell-Newton was properly seeking a mandatory injunction to remedy past injuries – the routine, automatic destruction of the temporary image files – as opposed to prohibiting future injuries.