[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Summit Cty. Republican Party Executive Commt. v. LaRose , Slip Opinion No. 2021-Ohio1464.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2021-O HIO -1464
T HE S TATE EX REL
. S UMMIT C OUNTY R EPUBLICAN P ARTY E XECUTIVE C OMMITTEE v . L A R OSE
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Summit Cty. Republican Party Executive Commt.
v. LaRose , Slip Opinion No. 2021-Ohio-1464.] Elections—Mandamus—Writ of mandamus sought to compel secretary of state to appoint county political party’s reco mmended qualified elector to the county board of elections—R.C. 3501.07— Secretary of state abused his discretion in rejecting party’s recommendation—Writ granted. (No. 2021-0327—Submitted April 21, 2021—Decided April 27, 2021. )
I N M ANDAMUS

.

__________________ Per Curiam. {¶ 1} In this expedited election case, relator, the Summit County Republican Party Executive Committee, seeks a writ of mandamus compellingS UPREME C OURT OF O HIO

2 respondent, Secretary of State F rank LaRose, to reappoint Bryan C. Williams to the Summit County Board of Elections. We grant the writ.
I. BACKGROUND {¶ 2} Williams is the current chair of the committee. In January 202 1, the committee submitted a recommendation to Secretary LaRose to rea ppoint Williams, who had already served two terms as a member of the b oard, for a third term, to run from March 1, 2021, through February 28, 2025. {¶ 3} LaRose rejected the appointment in a letter dated March 3, 2021 . In his letter, he did not c riticize Williams’s personal qualificat ions or conduct; rather, he expressed concerns about the overall performance of the boar d, for which he
believed Williams and the other board members should bear ultim ate responsibility. Specifically, LaRose listed seve n problems at the board as the basis for his decision to reject the recommendation: (1) he had received complaints of a hostile and unprofessional workplace at the boa rd, (2) the board failed to distribute its antidiscrimination and anti-harassment policy to employees and had not updated the policy since 2004, (3) the board failed to properly update its voter rolls by removing the names of deceased electors, leading to at least on e documented instance of voter fraud, (4) the board may have improperly canc eled the registration of certain felons who were qualif ied electors, (5) the board fa iled to maintain bipartisan control of election administration, (6) the board fa iled to cross-train employees on election-administra tion tasks and to ensure contin uity of operations during staff turnover, and (7) the board failed to adequately m anage and control traffic issues during the early-voting period for the November 2020 general
election. {¶ 4} Also, on March 3, LaRose placed the board on administrative oversight, citing the same seven concerns. {¶ 5} On March 12, 2021, the committee filed its complaint for a writ of mandamus to compel LaRose to reappoint Williams to the board. As a legal matter,January Term, 2021

3 the committee questions whether the secretary has the discretio n to reject a
recommendation for reasons unrelat ed to that person’s personal misconduct. And as a factual matter, the committee disputes the validity of LaR ose’s reasoning in the rejection letter. {¶ 6} We extended the briefing schedul e of this expedited matter to p ermit the committee to depose LaRose and Amanda Grandjean, the direct or of elections with the secretary of state’s office. ___ Ohio St.3d ___, 2021 -Ohio-909, ___ N.E.3d ___. The case is fully briefed.
II. ANALYSIS
A. Mandamus actions challenging the secr etary of state’s rejection of a

committee’s recommendation of an appointee to a board of elections {¶ 7} A county board of elections consists of four members—two member s from each of the two major political parties. R.C. 3501.06(A) and (B). Although all members must be appointed by the secretary of state, the county executive committee of the appropriate political party typically recommends a quali fied elector to fill any vacancy. R.C. 3501.05(A), 3501.07. The secretary must appoint the recommended elector unless the secretary “has reason to believe that the el ector would not be a competent member” of the board. Id

. {¶ 8} When the secretary of state refuses to appoint an elector recommended by a county executive committee, the committee may file an action
for a writ of mandamus in this c ourt to compel the appointment. Id. In the mandamus action, “the burden of pr oof to show the qualification s of the person so recommended shall be on the committee making the recommendation .” Id . As in any mandamus case, in order to prevail, the committee in this c ase must establish, by clear and convincing evidence, a clear legal right to have W illiams appointed to the board and a clear duty on the part of LaRose to do so. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Becaus e R.C. 3501.07 expressly authorizes mandamus as a remedy, the committe e is not requiredS UPREME C OURT OF O HIO

4 to demonstrate that it lacks an adequate remedy in the ordinary course of the law.
See State ex rel. Steckman v. Jackson , 70 Ohio St.3d 420, 426-427, 639 N.E.2d 83 (1994), overruled on other grounds , State ex rel. Caster v. Columbus , 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598. {¶ 9} To meet that standard, the committee must show that LaRose abus ed
his discretion. State ex rel. Democratic Executiv e Commt. of Lucas Cty. v. Brown , 39 Ohio St.2d 157, 161, 314 N.E.2d 376 (1974). R.C. 3501.07 gi ves the secretary of state “broad discretion in determining whether recommended appo intees are competent to be members of boards of elections.” Id. at 160. Therefore, to successfully challenge LaRose’s assessment of Williams’s fitnes s, the committee must show that LaRose’s rejection of Williams’s appointment was an abuse of
discretion. Id . at 161.
B. Williams’s qualifications {¶ 10} From 1997 through 2004, Williams served as a state representati ve in the Ohio General Assembly. During that time, he served as v ice-chair of the
Ethics and Elections Committee. {¶ 11} In February 2004, he assumed the position of director of the Su mmit County Board of Elections. He remained in that position for fo ur years and then served as deputy director for two years. Beginning in March 20 14, he served two terms as a member of the board. His second term expired at the end of February
2021. {¶ 12} In 2007, the secretary of state appointed Williams to serve on a task force known as Project EVEREST, which conducted a comprehensive study of electronic voting systems in Ohio. Project EVEREST led to more widespread use of optical-scan paper ballots for voting in Ohio. {¶ 13} In March 2021, Governor DeWine appointed Williams to the University of Akron Board of Trustees. He has also been a memb er of the state
board of education and court administrator for the Summit Count y Juvenile Court.January Term, 2021

5 C. The scope of LaRose’s discretion {¶ 14} LaRose concedes in his deposition that he has “no specific knowledge” of any misconduct by Williams during his tenure as d irector and deputy director of the board. And he has no knowledge of Willi ams personally engaging in workplace hostility or harassment or unprofessional conduct. Rather,
LaRose “made the decision that none of the incumbent Board memb ers should be reappointed because this Board needs cultural change.” 1 LaRose perceived a culture of “dysfunction” at the board, based on the seven reaso ns he mentioned in his letter, for which he felt Williams had to assume responsibi lity. {¶ 15} The predicate legal question in this litigation is whether LaRo se may reject a recommendation for reasons unrelated to personal misco nduct by the recommended appointee. The co mmittee contends that it has the right to select its own board representatives, subject only to a limited right of t he secretary of state to reject a candidate who lacks the competence or qualification s to serve. And in this context, the committee contends, a determination of incomp etence requires “individualized evidence that an incumbent board member or prop osed board member engaged in personal misconduct or personal misbehavior.” (Emphasis sic.) {¶ 16} The committee is correct that the court’s appointment cases typ ically involve disqualifying conduct by the specific person under cons ideration. Most recently, for example, the secretary of state rejected a prospe ctive appointee who used an official county e-mail address for partisan political a ctivities. State ex rel. Lorain Cty. Democratic Party Executive Commt. v. LaRose , ___ Ohio St.3d ___, 2021-Ohio-1144, ___ N.E.3d ___, ¶ 8, 18-19. And in Brown , 39 Ohio St.2d 157, 314 N.E.2d 376, the secretary of state rejected a prospective a ppointee whose

1. LaRose testified that he had decided not to reappoint eithe r of the incumbent members of the board. However, the other incumbent member, a Democrat, whose term on the board expired in 2021, chose not to seek reappointment.S UPREME C OURT OF O HIO

6 misbehavior included “ ‘attempt[ing] to by-pass the board [of e lections] to undertake actions of dubious legality’ ” and “ ‘inject[ing] abrasive part isan bickering into the
conduct of board business.’ ” Id . at 162, quoting the secretary’s letter explaining his reasoning. However, we have not held that personal misconduct is the only measure of incompetence to serve. {¶ 17} In support of a broader discretion to reject recommended appoin tees, LaRose cites State ex rel. Lucas Cty. Republican Party Executive Commt. v. Husted , 144 Ohio St.3d 352, 2015-Ohio-3948, 43 N.E.3d 411. In Husted , the secretary of state rejected two appointees to the Lucas County board of elec tions. The first appointee was deemed incompetent for typical reasons of misbeha vior: she had a “long history of disruptive and c onfrontational be havior [and] was repeatedly described as engaging in intimidating tactics and abusive langu age with board
members and staff.” Id . at ¶ 35. The secretary rejected the second recommendation, however, under a le ss traditional theory: we no ted that the secretary had described that appoi ntee as “ ‘incompetent to ser ve’ primarily because [the appointee] was unabl e to change the caustic enviro nment [at the board of elections] during his tenure as director.” Id . at ¶ 38, quoting the secretary’s letter explaining his reasoning. The s ecretary did not accuse the app ointee of personally engaging in caustic or unprofessi onal behavior. Nevertheless, this court declined to issue a writ of mandamus. The secretary had interpreted the notion of competence to serve on the board, see R.C. 3501.07, to include the ab ility to improve a poor work environment. We deferred to the secretary’ s interpretation.
Id . at ¶ 39. Our independent assessment of the term “competent” in R.C. 3501.07 supports that interpretation. {¶ 18} “Competent” means “having requisite or adequate ability or qualities.” Merriam-Webster’s Collegiate Dictionary 253 (11th Ed.2003). Competence to serve “involves qualities beyond intelligence and integrity [such as] the basic ability to get along with co-workers and inspire conf idence in the electionJanuary Term, 2021

7 system.” Husted at ¶ 27. We agree with LaRose that the best measure of Willia ms’s competence to serve on the board of elections is the quality of his prior performance on that very same board, and we would include his tenure as dir ector and deputy director. The question, however, is whether the evidence suppo rts LaRose’s
assertion that Williams’s acts or omissions as a board member c aused or contributed to problems at the board. And on that score, we conclude that the evidence does not support LaRose’s assertion of deficient performance. D. LaRose’s reasons not to reappoint Williams
1. The first reason: a toxi c work environment {¶ 19} The first item in LaRose’ s rejection letter read:

1. In recent months, my Office received complaints regarding hostility in the workplace, unprofessionalism, and a politically charged environment. T he complaints describe a pat tern of political quid pro quo spanning many years.

{¶ 20} On December 8, 2020, Grandjean received an anonymous letter alleging that there were pr oblems at the board. The unknown au thor wrote:

Untitled Director Grandjean, I’m writing you under the anonymous reporting provision of the Ohio Secretary of State’s Ethics policy to outline disconce rting circumstances going on at the Summit County Board of Elections. For years the Board has been a hostile workplace environment. Employees are regularly demeaned by superiors. There is a culture of fear. Jobs are handed out to people base d onS UPREME C OURT OF O HIO

8 loyalty to the county parties and how much they can fundraise b y selling tickets to fundraisers—not through merit or qualificati ons. Politics happens on county time regularly. Races are discussed, volunteers are recruite d for party functions, anyone that doesn’t deliver politically can expect to find themselves witho ut a job. One need only look at a given party’s campaign finance re ports to see contributions from the Bo ard employees. These are hardl y voluntary. One board member even hired his daughter to work at the board, something I believe is in violation of the Elections Off icials
Manual. I hope you’ll take these concerns into consideration. I hope you’ll share them with the appr opriate law enforcement and regulatory bodies, especially the Ohio Ethics Commission.

{¶ 21} On January 13, 2021, Grandjean wrote to the board informing it of the anonymous complaint and instructing the board to investigat e the allegations. Lance Reed, director of the board, responded to Grandjean’s let ter. With respect to the allegations of unprofe ssionalism, hostility, and politic al activity on state time, Reed wrote that he and the deputy director were unaware of any such problems and that the board’s human-resources department had not received an y complaints. Reed denied the allegations that had been made in the letter, e xpressly refuting the nepotism allegation by pointing out that board members play no role in hiring seasonal and part-time staff and that full-time staff—which are hired by the board during public meetings—does not inc lude any family member of an y board
member. {¶ 22} In his deposition, LaRose assert ed that based upon briefings fr om his staff members, “my judgment of t he situation is that there’s re ason to believe thatJanuary Term, 2021

9 these complaints are warranted and serious.” But the record la cks any evidence to substantiate the allegations. N either he nor Grandjean cites a ny evidence that independently verifies the allegations or refutes the committee ’s evidence that the allegations are unfounded. LaRose does not know who wrote the letter. And yet the entire basis for the first reason given by LaRose to reject Williams’s appointment is that single anonymous letter. {¶ 23} R.C. 3501.07 requires a reasonable belief that a person is incompetent to serve on the elections board. Husted , 144 Ohio St.3d 352, 2015- Ohio-3948, 43 N.E.3d 411, at ¶ 27. For this reason, it is an a buse of discretion for a secretary of state to reject a recommendation based on rumors or suspicion. Id

. An accusation without proof, anonymous or not, is not a reasona ble nor reliable basis for rejecting a county executive committee’s recommendati on. {¶ 24} Grandjean attests that the secretary of state received addition al complaints after placing the board on administrative oversight (that is, after the secretary had already reject ed Williams’s appointment). Affida vits from two former board employees who lodged c omplaints are in the record. Namely, Karen
Considine’s affidavit includes an attached letter that she wrot e to board members in April 2016 complaini ng about a speci fic board employee who w as (according to Considine) rude to coworkers and the public. And Cecilia Robar t’s affidavit offers a laundry list of complaints, some that mirror the allegations in the anonymous
letter and others that do not. R obart’s affidavit alleges “sev ere partisanship among management,” employees not wor king while on county time, a fail ure to train and cross-train employees, and manag ers disrespecting and insulting subordinates. {¶ 25} There are two problems with Considine’s and Robart’s affidavits

. First, R.C. 3501.07 requires the secretary of state, when rejec ting a committee’s recommendation for the board of elections, to set forth in writ ing “the reasons therefor.” It logically follows that the secretary cannot defe nd an ensuing mandamusS UPREME C OURT OF O HIO

10 action by relying on after-acquired evidence that did not help form the basis of the decision to reject the county party’s nomination. {¶ 26} Second, even with the benefit of C onsidine’s and Robart’s affid avits, LaRose’s concerns about a dysfunctional board culture remain th e product of rumors and suspicions. Considine’s affidavit features a five-y ear-old complaint about one particular board emplo yee. Robart’s accusations are serious, but LaRose does not claim to have investigat ed and confirmed her claims. {¶ 27} In State ex rel. Cuyahoga Cty. De mocratic Party Executive Commt. v. Taft , 67 Ohio St.3d 1, 615 N.E.2d 615 (1993), we held that “when th e Secretary of State rejects a recommended a ppointee for failure to comply with the campaign finance laws, suspected violations of these requirements will n ot, standing alone, justify the conclusion that the appointee is incompetent to ser ve.” Id . at 2. In that case, the secretary acted on the basis of a newspaper article d etailing the allegations and on his own review of the financial disclosures. Here, LaRo se unreasonably
relied on an even weaker indicator of incompetence, an anonymou s complaint that was much less probative. {¶ 28} We hold that LaRose abused his discretion to the extent that he rejected Williams’s appointme nt based on the first reason in hi s letter.
2. The second reason: failure t o disseminate and update an
antidiscrimination and anti-harassment policy {¶ 29} Next, LaRose wrote that he was rejecting Williams’s appointment
because:

2. According to the Board’s February 4, 2021 letter, the Board adopted an anti-discrimina tion/anti-harassment policy in 2004 but failed to train the staff on, or even distribute the p olicy to, staff. If a policy is not communicated to staff, it has no eff ect. Moreover, the Board failed to r eevaluate or update that policy in 17January Term, 2021

11 years. All employees deserve to work in a professional environment, and failure to upda te and regularly disseminate appropriate policies is a fundamental breakdown in basic human resource management.

{¶ 30} On January 21, 2021, Grandjean wrote to the board to express concerns regarding the adminis tration of the November 2020 gene ral election. This was followed by a series of letters between Grandjean and Reed, the director of the board. In one such letter, dated February 4, 2021, Reed wrote that the board had adopted an anti-discrimination a nd anti-harassment policy in 20 04 but that an investigation revealed that the policy had never been provided to board employees. In addition, Reed stated that the board had not adopted procedu res for employees to report suspected ethics violations. LaRose in his depositio n characterizes the failure to update the policy for 17 years as “a dereliction of duty” on the part of the board, including Williams. {¶ 31} In response, the committee argues that LaRose’s description of the situation is misleading. On February 25, 2021 (before LaRose r ejected Williams’s appointment), Reed sent another letter to Grandjean. Respondin g to the concern that the antidiscrimination and anti-harassment policy had not been updated since 2004, Reed passed along assurances from the insurance company t hat drafted the policy that the language was “current with industry standards.” And Reed informed Grandjean that all full-time board employees received training from the county’s human-resources department every two years. The committee asse rts that LaRose omitted this information from his rejection letter “to create a false impression that board employees did not receive any training at all.” {¶ 32} To clarify that second point, Summit County Codified Ordinance 169.21 requires that all county employees receive antidiscrimin ation and antiharassment training every two years. As a result, board employ ees receiveS UPREME C OURT OF O HIO

12 antidiscrimination and anti-harassment training from the Summit County Department of Human Resources. That training includes, for exa mple, “Diversity and Inclusion Training” and “Sex ual Harassment Training and Pol itical Activity Training.” {¶ 33} LaRose contends that prior to February 2021, only one board employee had completed the manda tory county training between 20 18 and 2020. As proof, he relies on an e- mail dated April 2, 2021, from Chip Clupper of the Summit County Department of Human Resources and an attached spr eadsheet that were obtained by one of the attorneys who is representing LaRos e in this case. Here again, LaRose is relying on evidence that he did not have when he drafted the rejection letter. And the qualit y of the evidence is dubious: an e-mail that is arguably hearsay and an exhibit that is not authenticated. But the more significant point is that although the partie s dispute whether board employ ees have undergone training, that was not the issue LaRose raised in his rejection letter. {¶ 34} His only point was that the policy had not been updated or circ ulated since 2004. LaRose ignored the e vidence that the 2004 policy w as consistent with current requirements and ther efore did not necessarily need upd ating. {¶ 35} Finally, LaRose makes no claim to have ordered county boards of elections to adopt anti-harassmen t or antidiscrimination polici es. This contrasts with his requirement for members and employees of boards of ele ctions to sign an “Ethics Policy Acknowledgement Form” acknowledging that they ha ve reviewed the secretary of state’s ethics policy and Ohio ethics laws and will comply with them. Section B(5)(b) of the secretary’s ethics policy require s ethics training and

states:

All members and employees of the boards of elections shall participate in any training offered by the Secretary of State r egarding ethics that is developed by the legal services, elections, and humanJanuary Term, 2021

13 resources divisions of the Secret ary of State’s office in coord ination with other state ethics agencies

{¶ 36} The board complied with that re quirement, but LaRose points out nothing in his ethics policy or any other directive regarding a ntidiscrimination and anti-harassment policies or train ing. Moreover, LaRose has not established that the board or any individual member of the board has the responsibil ity to implement
and review antidiscrimination a nd anti-harassment policies. {¶ 37} We hold that LaRose abused his discretion to the extent that he rejected Williams’s appointme nt based on the second reason in h is letter.
3. The third and fifth reasons: fa ilure to cancel registrations for deceased
electors and failure to maintai n bipartisan administration of e lection
functions {¶ 38} Each month, the secretary of state sends the State and Territor ial Exchange of Vital Events (“STEVE”) report to the boards of elec tions. The STEVE report provides a list of deaths in each county for the purpose of removing deceased voters from the registration lists. {¶ 39} The STEVE report includes a spreadsheet with a column labeled “County” with no other explanati on. For some months, the board ’s employee who was processing the STEVE reports sorted the data by county and canceled only the
names that were listed for Summit County. But the board later discovered that the “County” entry referred to the county in which the person died, not the county where the person was registered to vote. Although the employee sometimes processed the form correctly, at other times she did not. And as a result, a
fraudulent ballot was cast in the 2020 general election in the name of a Summit County elector who was not removed from the rolls because she h ad died in Cuyahoga County. {¶ 40} In the March 3 rejection l etter, LaRose wrote:S UPREME C OURT OF O HIO

14 3. In addition, ongoing audits of the Board’s list maintenance process revealed numerous errors in processing of the State Territorial Exchange of Vital Events (STEVE), a report of death s given monthly to each county board of elections. The failure t o cancel voter registrations for deceased voters enabled at least one instance of documented voter fr aud. This failure of oversight which led to the error likely occurred for years. Removing the decea sed from the rolls is a basic responsibility and failure to do so r isks fraud
and loss of voter confidence.

{¶ 41} The parties dispute how widespread the STEVE-processing errors were and who discovered the problem. But the relevant issue is whether the problem represents a “failure of oversight” that reflects on Wi lliams’s competency
to serve on the board. {¶ 42} LaRose has not explained how the STEVE problem constitutes a failure of oversight. In Secret ary of State Directive 2021-03, Section 1.12, at 3-52, available at https://www.ohiosos.gov/globalassets/elections/dir ectives/2021/ dir2021-03-ch03.pdf (accessed Apr. 23, 2021) [https://perma.cc/ 4X2G-8699], LaRose expressly describes the pr ocessing of the STEVE reports as a responsibility of “[b]oard staff.” There is no indication that the board memb ers are required by any directive to supervise this process personally, especially when it can be shown that just a single vote should not have occurred. While board members are not personally responsible for proce ssing the STEVE report, this is not to say there should be no accountability for board members who fail to engag e in appropriate oversight of staff to catch potential fraud. Here, however, we cannot see this particular situation as a basis for the secretary to find that Williams would not be a competent board member.January Term, 2021

15 {¶ 43} LaRose’s concern over the STEVE report is also stated in in his concerns about board staffing decisions.

5. The Board failed to ensure bi partisan control of election administration. It came to light that the Board assigned one p erson to each aspect of list maintenance, and there was inadequate oversight of the process.

{¶ 44} LaRose stated in his deposition that the “oversight” problem wa s that “critical aspects of elections administration” such as this sho uld be “overseen by both a Republican and a Democrat.” LaRose went on to say: “[Y] ou would never empower one party to unilaterall y carry out a task without the other party overseeing it. Something as important as removal of a registra tion from the voter rolls should certainly receive that kind of bipartisan care and oversight.” Grandjean makes the same point in her affidavit: “the Board only assigned one employee (instead of a bi-partisa n team) to this task.” {¶ 45} Bipartisan administration of critical election functions is a c heck and balance aimed to prevent one political party from acting for it s own partisan benefit. There is no hint of an allegati on that the failure to remove de ceased electors from the rolls was done to achieve a partisan advantage. The evidenc e in the record does not indicate that assigning a member of the opposite party to p rocess the STEVE reports would have prev ented the problem. {¶ 46} The reason LaRose gave for his lack of confidence in Williams—t he lack of bipartisan administrati on of these reports—does not wit hstand scrutiny. We
therefore hold that LaRose abused his discretion to the extent that he rejected Williams’s appointment based on t he third and fifth reasons in his letter.
4. The fourth reason: disenfranch ising people convicted of felo nies

{¶ 47} The fourth reason reads:S UPREME C OURT OF O HIO

16 4. The Board may have improperly cancelled the voter registration of persons convicted of felonies, but not incarcer ated. This likely led to the disenfranchisement of legally qualified voters in Summit County. Not only is this clearly unacceptable but obviously exposes the Boar d to the risk of litigation.

{¶ 48} Under Ohio law, a person who is convicted of a felony “is incompetent to be an elector.” R.C. 2961.01(A). The boards of elections receive information regarding felony convictions from two sources. At least once a month, the clerk of the common pleas court is required to file with th e county board of elections the names and addresses of all persons convicted duri ng the previous month of crimes that qualify the person for disenfranchisement. R.C. 3503.18(C). And with respect to federal felony convictions, the Department of Justic e provides a list to the secretary of state, who passes that list on to the county board s. Upon receiving such a report, “the board of elections shall promptly cancel the reg istration of each elector named in the report.” R.C. 3503.18(D). {¶ 49} However, persons who have been disenfranchised due to a felony
conviction are competent to be electors when granted parole, judicial release , a pardon, a conditional pardon (onc e the conditions have been per formed), or release under a non-jail community-control sanction or postrelease-cont rol sanction. R.C. 2961.01(A)(2). Based on this provision, the secretary has inte rpreted the law to be that only incarcerated individuals convicted of felonies should be stricken from the
voter rolls. {¶ 50} Prior to LaRose’s March 3 rej ection letter, the Summit County b oard was canceling the voter registr ation of every person listed on the felony-conviction reports. Thus, according to the secretary, the board may have been improperly disenfranchising nonincarcerated individuals convicted of felon ies, who wereJanuary Term, 2021

17 eligible voters. According to Grandjean, the board failed in i ts “responsibility to evaluate the felony conviction information that it receives [in the two reports] and to seek any additional information necessary to determine whether the individual is also incarcerated before removing the voter from the voter registrat ion database.” {¶ 51} But if qualified electors were being removed from the rolls, it was at least partially a problem of the secretary’s creation. In Secr etary of State Directive 2021-03, Section 1.12, at 3-53, available at https://www.ohioso s.gov/ globalassets/elections/directiv es/2021/dir2021-03-ch03.pdf (acc essed Apr. 23, 2021) [https://perma.cc/4X2G -8699], the secretary e xplained the proce ss by which felonyconviction reports are sent to the boards. In the course of di scussing the monthly reports from the county clerks of courts, the secretary express ly informed the boards that every name on the list is subject to disenfranchisement: “ Accordingly, the list should include only those names of persons who both have been convicted and
incarcerated .” (Emphasis added.) Id . Having first indicated to the boards that every name on the county lists meets both criteria for disenfranchise ment, LaRose bears some responsibility for the lack of clarity that may have creat ed error in Summit County. {¶ 52} In her affidavit, Grandjean asserts that LaRose did instruct the boards to conduct their own investigation of both the county and feder al lists. As support for her claim, she points to a letter to the county boards from LaRose, in which he wrote that “if any person on the enclosed list is registered to vote in your county, you must cancel that person’s [registration] if you determine that the person is incarcerated.” But those letters accompanied only the federal reports; the county reports were sent straight to the boards of elections without g oing through the secretary’s office. So, it is incorrect for Grandjean to sugge st that these letters gave any instructions regarding how to process the lists from the co unty clerks. {¶ 53} The federal felony lists present a more complicated problem. T he list from the Justice Department has a column labeled “Months Custod y.” For some ofS UPREME C OURT OF O HIO

18 the individuals convicted of fel onies, that column has a number , but for others, the field is blank. In a February 2021 telephone conference with t he secretary of state’s staff, board chair Rich asked Grandjean and Chief Elections Cou nsel Jeff Hobday what the blanks meant, whether they signified that the person w as not imprisoned or whether the data was simply incomplete for some reason. Grandj ean and Hobday indicated that they did not know and that they would look into it. As of the date of her deposition, Grandjean stated that she had not received an a nswer from the Department of Justice and still did not know what the blanks me ant. {¶ 54} But if Grandjean does not know what the blanks mean, then she d oes not know whether these are nonincarcerated individuals convicte d of felonies, which means she cannot know whether the board has in fact wrongly dis enfranchised anyone. Criticism of the board for proceeding to disenfranchis e individuals convicted of felonies whose names appear on the federal list wi thout investigating
what the blanks mean is not the same criticism that LaRose made in his rejection
letter. {¶ 55} The secretary of state is the chief election officer of the sta te, R.C. 3501.04, and yet the secretary’s staff cannot explain to boards of elections what the federal reports mean and has only recently taken steps to find out. When asked whether the secretary’s office investigates to make sure that t he people on the federal list are incarcerated, Grandjean replied, “We are not required to.” Given these facts, we are not persuaded that Williams is incompetent on the basis that his board, receiving incomplete instruction from the secretary of state, m ay have disenfranchised the people on the federal list, as it was appar ently required to do, without knowing what the blanks on the lists given the board si gnify. {¶ 56} We hold that LaRose abused his discretion to the extent that he rejected Williams’s appointme nt based on the fourth reason in h is letter. 5. The sixth reason: lack of cross-training {¶ 57} Next, LaRose wrote:January Term, 2021

19 6. The Board failed to cross-train employees on election
administration tasks and ensure that there was correct continui ty of operations when there is turnover in staffing.

{¶ 58} This assertion is not supported by the record. Three board mem bers attested that all eight front-office clerks are cross-trained o n processing voter registrations and candidate filings, updating and canceling reg istrations, verifying petition signatures, and performing other administrative tasks. LaRose, on the other hand, testified that he does not “have evidence one way or the other” regarding the training of the employees. Cecilia Robart makes this allegatio n in her affidavit, but, again, LaRose did not have th at evidence when he wrote the rejection letter, so
it is unclear what basis he had for the assertion. {¶ 59} Rather than defend the asserti on, LaRose’s merit brief changes his reason. He complains in his brief that the board staff has no standard operating procedures or employee handbook and does not receive formalized written performance reviews. But no matte r whether those claims are tr ue, they were not given by LaRose as a reason for rejecting Williams’s appointmen t and cannot be offered as post-hoc justifi cations for the decision. {¶ 60} We hold that LaRose abused his discretion to the extent that he rejected Williams’s appointme nt based on the sixth reason in hi s letter.
6. The seventh reason: traffic-co ntrol problems during early vo ting {¶ 61} Finally, LaRose accused the board of failing to prepare adequat ely for a high volume of early vot ers in the 2020 general election.

7. The Board failed to adequate ly prepare for and execute efficient early in-person voting and control traffic issues dur ing early voting for the November 3, 2020 General Election. The Bo ardS UPREME C OURT OF O HIO

20 should have heeded our warnings over the summer to expect at le ast a doubling in absentee and early voting and make adequate preparations to accommodate increased traffic. Even after I personally contacted the Board Chair regarding the unacceptable mismanagement of ballot drop off traffic, the Board failed to a ddress the situation. Many other boards set up multiple drive through dropoff lanes and provided adequate s taff and law enforcement prese nce to effectively manage the increase in traffic which was predict able and expected.

The evidence suggests that the traffic congestion during early voting was partly a problem of LaRose’s creation and pa rtly a consequence of unavoi dable factors. {¶ 62} In the spring of 2020, LaRose began alerting the boards to prep are for the number of early absent ee voters to double from previous years. In August 2020, LaRose directed the boards to have at least one drop box at each facility to receive early ballots. At the sa me time, LaRose prohibited the boards from placing drop boxes in any location other than at the board office itsel f. {¶ 63} The Summit County board of elections office is located on Grant Street. The board arranged for traffic arriving from Grant Str eet to travel through the parking lot in a one-way flow around the building to the dr op box and back to
Grant Street at a different exit. {¶ 64} Close to 60 percent of all ballots in the 2020 general election were cast before election day. The board experienced a few days of heavy traffic from the combination of people returning absentee ballots and voting early in-person. The problem, according to board chair Rich, was that just befor e the board office, Grant Street narrows from four lanes to two. In other words, t he congestion was not due to the arrangements at the board but resulted from a tr affic bottleneck on the street approaching the board office.January Term, 2021

21 {¶ 65} LaRose learned of the heavy traffic from social media and news reports and called Rich. LaRose urged Rich to place a bipartis an team of ballot
collectors on Grant Street in fr ont of the board office, but Ri ch believed that would actually slow down the process even more. Instead, Rich propos ed stationing bipartisan teams on a nearby road, Exchange Street, so drivers would not have to turn onto Grant Street at all. Alternatively, Rich proposed pl acing collection teams on Grant Street at a point before the bottleneck. According to Rich, LaRose vetoed those suggestions because he felt the collection teams would be located too far from the board office. LaRose testified in his deposition that he “ didn’t give specific guidance” for how to solve the problem because doing so “would [not] have been appropriate.” {¶ 66} LaRose fails to connect the tra ffic-flow problems during early voting to any action or inaction by Williams. LaRose made the decisio n to prohibit ballot drop boxes at any location other than the board of election off ice itself. Williams had no control over the high volume of early voting or the bott leneck traffic pattern on Grant Street. LaRose does not dispute Rich’s assessment tha t the traffic problems stemmed from the bottleneck on Grant Street rather tha n from the configuration the board had selected for drivers once they reac hed the board’s parking lot. Nor does he contest Rich’s opinion that setting up staffed drivethrough drop-offs in the board’s parking lot, what LaRose calls “a Chick-fil-A-style drive-through where you have multiple lanes,” would have tied u p traffic more , not less. And finally, LaRose does not testify that the congestion could have been prevented if the board ha d taken some other action. {¶ 67} We hold that LaRose abused his discretion to the extent that he rejected Williams’s appointment based on the seventh reason in his letter. E. Additional rationales for the rejection of the recommendation {¶ 68} The rejection letter contained an eighth justification for reje cting the committee’s recommendation, beyond the numbered points discusse d above.S UPREME C OURT OF O HIO

22 LaRose wrote that “[t]hough you [Williams] have many years of e xperience overseeing the Summit County Board of Elections, this long tenu re has been marred by a history of conflict within the Board and missteps in admin istering elections.” However, Williams’s fellow board members, Rich and Bevan (both Democrats), described Williams as “professional and collegial.” And LaRose could point to no
evidence of conflict between W illiams and his Democratic counte rparts on the
board. {¶ 69} In his merit brief, LaRose raises a number of new allegations a gainst Williams. In addition to the reasons cited above, Grandjean’s affidavit refers to a complaint the secretary received from the Summit County Health Department that board employees were refusing to wear masks at work in violatio n of COVID-19-
related health orders. And she avers that the board approved a COVID-19 policy but neglected to circulate it to the staff. Here again, LaRose did not provide these specific allegations as bases for Williams’s alleged incompeten cy and cites no authority for the proposition that he can defend his decision b y raising these new, specific allegations that were not part of his stated reasons f or the rejection. Because these allegations were raised for the first time in LaR ose’s merit brief and the committee has had no opportunity to take discovery or test the truthfulness of the allegations, we dec line to consider them.
III. CONCLUSION {¶ 70} The committee has met its burden of proof to show that LaRose’s reasons for rejecting Williams’s appointment were not valid and that he abused his discretion. We therefore grant a writ of mandamus ordering LaR ose to reappoint
Williams to the Summit C ounty Board of Elections. Writ granted.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , S TEWART , and
B RUNNER , JJ., concur.
D ONNELLY , J., concurs, with an opinion.January Term, 2021

23 _________________ D ONNELLY , J., concurring. {¶ 71} I agree wholeheartedly that mere rumors, suspicions, and anonymous complaints that are not substantiated by any investig ation are not an appropriate basis to conclude that an appointee is incompetent to serve on a county’s board of elections under R.C. 3501.07. See State ex rel. Lorain Cty. Democratic Party Executive Commt. v. LaRose , ___ Ohio St.3d ___, 2021-Ohio1144, ___ N.E.3d ___, ¶ 24-25 (Donnelly, J., dissenting), discu ssing State ex rel. Lucas Cty. Republican Party Executive Commt. v. Husted , 144 Ohio St.3d 352, 2015-Ohio-3948, 43 N.E.3d 411, ¶ 27. Consistent with my dissen ting opinion in Lorain Cty. Democratic Party Executive Commt. , I concur in the decision to grant a writ of mandamus compelling re spondent, Secretary of State Fr ank LaRose, to reappoint Bryan C. Williams to t he Summit County Board of Elect ions.

_________________ Roetzel & Andress, L.P.A., Ste phen W. Funk, and Emily K. Anglew icz, for
relator. Dave Yost, Attorney General, a nd Julie M. Pfeiffer, Michael A. Walton, and Caitlyn N. Johnson, Assistant A ttorneys General, for respon dent.

_________________