Judge orders Highland County BOE to award election certificate to LC board candidate Stacie Rhonemus

Highland County Common Pleas Court Judge Rocky Coss ruled Thursday, Feb. 1 that Stacie Rhonemus, not Ashley Watson, was elected to the Lynchburg-Clay Board of Education, following a lawsuit filed by Rhonemus against the Highland County Board of Elections.

“A certified copy of this decision and judgment entry shall constitute the certification of her election and her entitlement to hold the office to which she has been elected,” Coss wrote. “If a previous certificate of election has been issued to Ashley Watson, this entry constitutes cancellation of that certificate.”

Following the election recount, Watson had been declared the winner of a third seat on the board. She has already been sworn in and served as board member for a meeting.

As previously reported, Rhonemus filed the civil lawsuit in Highland County Common Pleas Court Dec. 18 challenging the results of the Nov. 7 general election, after the Highland County Board of Elections conducted a recount Dec. 5 and determined the winners of the Lynchburg-Clay Board of Education race to be Cathy Griffith, Becky Sanderson and Watson. 

What had been scheduled as a trial in Highland County Common Pleas Court was conducted as an approximately 45-minute hearing before Judge Coss Wednesday, Jan. 17. The expedited hearing was only to consider the election contest, which was the first count of the civil lawsuit filed by Rhonemus; two other counts will be considered at a later time.

Rhonemus was represented by attorney Curt Hartman, while the Highland County Board of Elections was represented by attorneys Donald Brey and Ryan Spitzer. Watson was present without counsel, while Coss said that the Clinton and Brown County Boards were excused from attending.

In his judgment entry, Coss wrote that Rhonemus’ election contest “appears to be a case of first impression in Ohio.” Although attorneys cited numerous cases in their filings, “neither party has cited any case law involving R.C. 3506.21 which became effective Feb. 27, 2008,” Coss said, and a search for previous legal decisions “showed no results for that statute.” 

When asked by Coss for opening statements during their hearing Jan. 17, Hartman told the judge that “the parties have come to an agreement as to the facts of case” and explained that the election contest for Coss to consider boiled down to 29 ballots from the Highland County Board of Elections. 

Hartman presented the judge with two exhibits — one of which was the contested ballots, and one of which was the “agreed-upon final tallies” from the Board of Elections — and told Coss that there was Rhonemus faced a “one-vote deficit” based on the exhibits.

Hartman said the issue for Coss to consider is “whether at least two of the 29 ballots at issue should be counted in favor” of Rhonemus.

According to Hartman, of those 29 ballots, 10 of them had Rhonemus’ name (“or a clear variation thereof”) with “no ovals filed in” for any of the candidates for the LC board race; seven had Rhonemus’ name written, with ovals filled in for Griffith and Sanderson; five had Rhonemus’ name written, with ovals filled in for Sanderson and Watson; four had Rhonemus’ name written, with an oval filled in for Sanderson; and three had Rhonemus’ name written, with an oval filled in for Griffith.

Brey explained that the voters’ instructions indicate that a voter must “completely darken the oval to the left of your choice.” For a write-in candidate, voters were instructed to “completely darken the oval to the left of the blank line and write in the candidate’s name.”

According to Brey, the official count conducted by the Highland, Brown and Clinton County Boards of Elections showed Rhonemus losing by one vote, 617-616, to Watson for the third spot on the board.

Coss said he thought that part of the election contest was the “different standards in different counties.” In the initial complaint filed by Rhonemus, it states, “This election contest arises, in part, because, at a minimum, the Highland County Board of Elections and the Clinton County Board of Elections utilized different and conflicting standards when hand counting the votes for the Board of Education of the Lynchburg-Clay Local School District and, in particular, how they determined the write-in votes for [Rhonemus].”
 
Brey responded that the parties “thought it wasn’t pertinent” because the conflicting vote-counting standards “did not change the results of the election.” Hartman said that there were two ballots in Clinton County “with ovals not filled in that were counted.” 

Coss said that it “seemed to me that’s a matter that is relevant” if the contest is based on a “question of whether Ohio law requires the oval to be darkened.” He asked if that was a requirement of Ohio Revised Code or Administrative Code, or by direction of the Secretary of State’s Office or an issue of “simply the way the ballots are prepared by different vendors.” 

“If an election is conducted for a position in which several counties are involved, then it would seem to me that all those votes should be counted in each county consistently,” Coss told the attorneys.

Hartman advised he had filed a bench memorandum — and Brey and Spitzer filed a trial brief — outlining their arguments. 

Hartman said the “key provision” of the law for Coss to consider is Ohio Revised Code 3505.28, which says “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.” Hartman argued that the voters’ failure to fill in the oval by the candidate’s name is “simply a technical error,” and that writing in her name “signifies the voter’s intent.”

Hartman also referred to a previous case, Thomas v. Redington, in which he said “the Ohio Supreme Court … addressed disputed ballots that did not comply with the proper standard for marking a ballot in order to vote for a candidate,” according to his memorandum. Hartman wrote that the Supreme Court determined a “contested ballot should have been counted” because “there [was] no question as to the intention of the voter” in that contest.

Another case, Board of Elections v. Henry, was also referenced by Hartman as being “nearly identical” to Rhonemus’ case. He wrote that it was also a case in which 20 ballots were in dispute due to having a write-in candidate’s name written but “without cross marks” beside the name. The Second District Court of Appeals ruled that the votes should have been counted.

Hartman concluded the memorandum by arguing that “the long-established law of the State of Ohio is clear: no ballot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.” He argued that the “century of precedent” shows that the instruction to fill in the oval is “technical” and “not mandatory.” 

During the hearing and in his memorandum, Hartman argued that the Highland County Board of Elections “should have counted all 29 contested ballots.

“The voters should not be disenfranchised,” Hartman told Judge Coss.

Coss wrote in his judgment entry that in another case, from 1995, “the Ohio Supreme Court again cited R.C. 3508.28 in finding that absentee ballots that were mailed in by persons other than the absentee voter contrary to R.C. 3505.09(A) should nonetheless be counted as it was a technical violation.

“Therefore, pursuant to R.C. 3505.28 and the previous rulings of the Ohio Supreme Court, if the failure of the [29] voters to darken the oval to the left of the line on which they wrote [Rhonemus’] name or a variation is a technical violation and the intent of the voters can be determined, then those ballots should have counted,” Coss wrote. 

During the hearing, Brey told Coss that the Highland County Board of Elections “properly rejected” the 29 ballots, based on the directive from the Ohio Secretary of State’s office, which he said was released after all the cases in Hartman’s memorandum.

“We are dealing with optical scan ballots,” Brey said, as the other cases cited by Hartman did not.

According to Brey’s trial brief, “During both the original vote and subsequent recount, the Highland County BOE counted 19 ballots in which the voters at issue darken the oval next to Rhonemus’ name and the name of all other candidates, even if the spelling of Rhonemus’ name was incorrect. The Highland County BOE did not count 29 ballots during the recount (they were also not counted during the original vote) in which the voters at issue consistently darkened the oval next to the name of all other candidates but did not darken the oval next to Rhonemus’ name.

“All ballots within Highland County were counted in the same manner,” Brey continued in the brief. 

During the hearing, Brey told Coss that the argument that the 29 voters “intended to vote for” Rhonemus “is not at all clear.

“You don’t count the intent,” Brey said. “You count what they vote, according to the rules.”

Brey told Coss that “the standard in election contests is an irregularity that changes or makes uncertain the results of the vote.”

“An election irregularity ‘must constitute more than a disagreement with the board of elections in the execution of its proper duties or an allegation that its members abused a discretion given them by statute,’” Brey wrote in the trial brief, quoting from another case, O’Farrell v. Landis.

Brey argued that Rhonemus “fails to meet her clear and convincing evidentiary burden of an election irregularity in this case. 

“Specifically, [Rhonemus] does exactly what the O’Farrell Court held should not be done — bring an elections contest against the Highland County BOE merely because [she] disagrees with how votes were or were not counted,” Brey wrote.

In his judgment entry, Coss said “the Court disagrees” that there was not “sufficient evidence of an election irregularity.

“The fact that votes for the same office were counted differently by two different boards of election applying the same directives of the Ohio Secretary of State and the law of Ohio is clearly and convincingly an irregularity in the election process,” Coss wrote. “While Highland County BOE argues in its post-hearing brief that it is not bound by the admission for the Clinton County BOE that it did count the two write-in votes cast for [Rhonemus], it is an admission by a party to this action and can be considered as as irregularity in the election.

“There are [29] ballots in issue, and if there is a court determination that two or more of those ballots should have been counted under that standard, that would clearly be an irregularity that would affect the outcome of the election.”

In a post-hearing brief submitted by Brey and filed Jan. 22, the Board argued again that Rhonemus’ “election contest petition should be rejected” for five reasons: that state law “prohibits treating the disputed ballots as votes for” her; that the case law cited by Hartman “addressed only hand-counted ballots, not machine-tabulated ballots;” that “R.C. 3506.21 describes which optical scan ballot errors will be treated as technical, and thus is reconcilable with R.C. 3505.28;” that if those two laws are “not reconcile,” then “R.C. 3506.21 would prevail as the more specific and later enacted provision;” and that Rhonemus “presented no evidence of specific voter intent and did not meet her burden.”

“Every reasonable presumption should be indulged in favor of upholding the validity of an election and against ruling it void,” Brey wrote. “Since [Rhonemus] failed to show clear and convincing evidence that an election irregularity occurred in her local school board race, the election contest petition must be denied.” 

The brief included an argument to support each of the five reasons.

Regarding the BOE’s argument that there was “no evidence of specific voter intent” presented by Rhonemus, Coss wrote that he reviewed the exhibit containing the 29 ballots and found that 18 wrote Rhonemus’ name, spelled correctly, with the other 11 misspelling, or omitting, her first name and/or surname.

“The Court finds Highland BOE’s argument that the evidence of specific intent of the voters who wrote in her name or a variation is speculative to be totally without merit,” Coss said. “The Court finds that the fact that each of the [29] voters took the time and made the effort to write in [Rhonemus’] name or a variation, coupled with the fact that none of the [29]  voted for all three of the candidates whose names were printed on the ballot and also cast votes in other races and issues, constitutes clear and convincing evidence that they each intended to cast a write-in vote for [Rhonemus].

“Based on the evidence, it is simply illogical to argue that there is insufficient evidence of voter intent, for there is no other reasonable inference to be made. To do so would be pure speculation.” 

Coss summarized the other four reasons in the Highland BOE’s filing as arguing “that R.C. 3506.21 prevails over R.C. 3505.28 in this case because it prohibits the counting of an optical scan ballot unless one of the exceptions under R.C. 3506.21(B)(1) or (2) apply.

“Highland County BOE argues that the cases in which R.C. 3505.28 or its previous versions [are cited] are not applicable because they involved paper ballots, not an optical scan tabulating device,” Coss wrote. “The Court finds that there is no legal distinction between cases in which paper ballots were counted by hand and those in which the votes are cast and/or counted by voting machines. 

“Each involves a voter not marking their ballot as provided by law. A voter’s failure to darken an oval next to [Rhonemus’] name on the ballot is the same as failing to mark an X next to a candidate’s name on a paper ballot counted by hand. The implementation of new technology to count votes does not change the prior case law.” 

Coss added that he “researched the legislative history of R.C. 3506.21,” which “provided for amendments to over 50 election statutes” and added “18 new sections.

“R.C. 3505.28 was not amended, but R.C. 3505.26, 3505.27 and R.C. 3505.32 were, along with several other provisions of Title 3505,” the judge wrote. “Clearly, the Ohio General Assembly looked at all of the then-existing provisions of R.C. 3505 and determined that the bill would not amend R.C. 3505.28.”

A “final analysis of the act prepared by the Ohio Legislative Commission” also did not reference amending 3505.28, Coss wrote, and “did not address what types of marks would constitute valid voters for paper ballots or other types of tabulating equipment.” 

Therefore, Coss said, the “legislative history” shows that R.C. 3506.21 “was enacted into law as a statutory authorization for counting ballots by an optical scan machine” and not as a means to “modify R.C. 3505.28.

“To the extent that it did, as Highland BOE argues, define ‘technical error,’ the Ohio General Assembly did not choose to make that an exception to R.C. 3505.28,” Coss wrote. “Furthermore, R.C. 3505.28 specifically states that even when a ballot is marked contrary to law, it shall not be rejected for any technical error unless it is not possible to determine the intent of the voter’s choice. If, as Highland BOE contends, the [29] ballots were marked contrary to law, that is exactly the type of situation that R.C. 3505.28 addresses.

“Therefore, to the extent that the choice of the voters who wrote in the names on the [29] ballots can be determined, R.C. 3505.28 required the Highland BOE to count those votes, notwithstanding R.C. 3506.21 and the regulations and directives issued by the Ohio Secretary of State.”

Coss concluded that “the Court finds by clear and convincing evidence that the choice of the [18] voters who wrote in the name ‘Stacie Rhonemus’ were casting votes for [her], and those votes must be counted in favor of [her].” Nine of the other 11 ballots with various misspellings were also found by the Court to be “clear and convincing” votes for Rhonemus.

“Therefore, the Highland BOE was required to count an additional [27] votes in favor of [Rhonemus],” Coss wrote. “The Court further finds by clear and convincing evidence that the [27] votes that should have been counted by Highland BOE results and are ordered to be counted for [Rhonemus] in addition to those votes that she received as shown in Exhibit B.

“Therefore, [Rhonemus] received a total of [596] votes Highland County and an overall total for all three counties of [642].”

Coss wrote that Watson “was in no way at fault in this matter, and the Court was impressed by her closing statement to the Court during the hearing.” Watson had told the judge that she is “an innocent bystander in all of this” and that she has “no argument as to whether I should win or whether I shouldn’t.

“The way the votes were counted is not a decision I was involved in, in any way, shape or form,” Watson said.

Coss also noted that he did not “imply that the Highland County BOE member and staff committed any misconduct” in following the Secretary of State’s directives. 

“However, one goal of a democratic republic is to ensure that the votes of all persons legally entitled to do [so] are counted,” Coss wrote. “Not counting write-in votes that contain a technical error yet clearly demonstrates the choice of those voters would be putting form over substance and undermines that principle.”

Along with ordering a certification of election to Rhonemus, Coss ordered that the Highland County BOE “pay the costs of this action.”

In addition to the election contest, Rhonemus’ lawsuit also included an allegation of “violations of the Open Meetings Act by the Highland County Board of Elections” and an allegation of federal civil rights violations. As mentioned, those counts are to be considered at a future hearing.