Court Orders Preservation of Ohio’s 2004 Presidential Election Ballots “on Paper or in Any Other Format, Including Electronic Data”

King Lincoln Bronzeville Neighborhood Ass’n v. Blackwell, 448 F. Supp. 2d 876 (S.D. Ohio 2006)

Plaintiffs in this action are a collection of civic organizations and individuals that filed suit against the Secretary of State for the State of Ohio (J. Kenneth Blackwell) and various unnamed public election officials and private contractors who provided services to the State of Ohio, alleging that defendants had violated plaintiffs’ civil and constitutional rights. Plaintiffs claimed, inter alia, that during the November 2004 presidential election, “Defendants selectively and discriminatorily designed and implemented procedures for the allocation of voting machines in a manner to create a shortage in the number of machines for certain urban precincts wherein large numbers of African American voters resided.” Plaintiffs sought to enjoin Blackwell from violating plaintiffs’ constitutional rights prior to the next statewide election, in addition to other forms of relief. On the same day they filed suit, plaintiffs sent a letter to each of Ohio’s 88 county boards of elections that notified them to preserve the election ballots from the November 2004 presidential election.

Ohio’s statutory scheme requires that presidential election ballots be preserved for 22 months after the day of the election. Plaintiffs requested that Blackwell be ordered to issue a directive to all county boards of elections directing them to preserve all ballots from the 2004 presidential election, which are the subject matter of the case. Defendant Blackwell contended that he did not have authority to issue such a directive.

The court found that defendants were obligated to preserve the ballots because they were the subject matter of the lawsuit, and that defendants’ duty to preserve began “when each county board of elections office received a letter from Plaintiffs, indicating that this lawsuit was filed and requesting that the ballots be preserved because they are the subject matter of this suit.”

The court also concluded that, pursuant to Ohio Revised Code § 3501.05, Blackwell did have the authority to issue a directive to Ohio’s 88 county boards of elections to preserve the presidential election ballots from November 2004:

Because Plaintiffs filed this lawsuit against Defendants on August 31, 2006, prior to the expiration of the twenty-two month preservation period set forth in section 3505.31 of the Ohio Revised Code, and because the 2004 election ballots are the subject matter of this litigation, Defendant Blackwell is obligated to preserve those ballots while this case is pending before the Court. As the chief election officer of the state, Defendant Blackwell is authorized to issue a directive to all county board of elections offices, instructing them to preserve the 2004 election ballots.

Nevertheless, the court decided that it need not order Blackwell to issue such a directive, since the court had the inherent power to issue a preservation order directly upon the county boards of elections, even though they were not actual parties to the litigation:

It is beyond peradventure that the 2004 election ballots, which are presently in the custody of Ohio’s 88 county boards of elections, are at issue in this case and should be preserved. Indeed, the parties so agree. If the 2004 election ballots are destroyed or disposed of now, it clearly would disturb the adjudication of rights and obligations between Plaintiffs and Defendants. This Court concludes that the most effective way to preserve those election ballots during this litigation is for it to enjoin directly each Ohio county’s board of elections from destroying them. In the event the Court discovers that any Defendant or any non-party to this case, such as an employee of a county’s board of elections, has destroyed or disposed of 2004 presidential election ballots in violation of this Order, it may impose an appropriate discovery sanction.

(Citations omitted.) Accordingly, the court ordered the boards of election for each of the 88 counties “forthwith to preserve all ballots from the 2004 Presidential election, on paper or in any other format, including electronic data, unless and until such time otherwise instructed by this Court.”