jon husted state steven linnabary in the supreme court of ohio united states district court southern...
TRANSCRIPT
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IN THE SUPREME COURT OF OHIO
STATE ex rel. STEVEN LINNABARY )))))))))
Case No. 14-359
Relator,
Vs.
JON HUSTED
Respondent.
Original Action in Mandamus
RELATOR'S EVIDENCE (SL'PPLEMENTED)
Mark G. Kafantaris (#80392)625 City Park AvenueColumbus, Ohio 43206Tel: (614) 223-1444Fax: (614) 300-5123E-mail: mark kafantaris.com
Mark R. Brown (#8194 1)303 East Broad StreetColumbus, OH 43215Tel: (614) 236-6590Fax: (614) 236-6956E-mail: mbrocvn(a^law.capital.edu
Michael DeWineAttorney General of OhioEric E. Murphy (#83284)State Solicitor - Counsel of RecordStephen P. Carney (#63460)Deputy SolicitorKristopher J. Armstrong (#77799)Assistant Attorney General30 East Broad Street, 17th FloorColumbus, Ohio 43215Tel: (614) 466-8980Fax: (614) 466-5087E-mail: eric.murphy@ohioatEorlle^al aov
Lounsel foy- Relator
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Coun.sel for Respondent
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Expedited Election CaseUnder S.Ct.Prac.R. 12.08
Now comes Relator and files the following evidence, appended hereto as
designated below, in the record of this case pursuant to S.Ct.Prac.R. 12.06:
Exhibit G--- Transcript of Proceedings - Excerpt Before the Honorable
Michael.H. Watson, Thursday, March 13, 2014; 2:00 PM, Columbus, Ohio.
Respectfully submitted,
Mark G. Kafantaris (#80392)625 City Park AvenueColumbus, Ohio 43206Tel: (614) 223-1444Fax: (614) 300-5123E-mail: mark akafantaris.com
Mark R. Brown (#81941)303 East Broad StreetColumbus, OH 43215Tel: (614) 236-6590Fax: (614) 236-6956E-mail: mbrown a]aw capital edu
Counse.l, for Relator
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing will be served
by electronic mail on the date of filing to Eric Murphy and Stephen P. Carney,
Counsel for Respondent, at eric.murphy^a.^ohioattornevgeneral.eov and
stephen.carny@,ohioattorneygeneral gov, pursuant to S.Ct.Prac.R. 12.08(C).
^ ,.
Mark R. Brown
2
EXHIBIT GTRANSCRIPT OF PROCEEDING - EXCERPT BEFORE THE
HONORABLE MICHAEL H. WATSON, MACH 13, 201.4; 2:00 pm
COLUMBUS, OHIO
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LIBERTARIAN PARTY OF }
OHIO, ET AL,
}
PLAINTIFF, ) CASE NO. 2:13-CV-953
vs. }
JON HUSTED, IN HIS
OFFICIAL CAPACITY AS OHIO)
SECRETARY OF STATE, ET AL)
}DEFENDANTS.
TRANSCRIPT OF PROCEEDINGS - EXCERPT
BEFORE THE HONORABLE MICHAEL H. WATSONTHURSDAY, N'.^ARCH 13, 2014; 2:00 P.M.
COLUMBUS, OHIOFOR THE PLAINTIFF:
Mark R. Brown, Esq.
303 East Broad Street
Columbus, Ohio 43215
Kafantaris Law OfficesBy: Mark G. Kafantaris, Esq.
625 City Park Avenue
Columbus, Ohio 43206
FOR THE DEFENDANTS:
Ohio Attorney Gener_al's OfficeBy: Richard N. Coglianese, Esq.By: Bridget C. Coontz, Esq.30 East Broad Street, 16th FloorColumbus, Ohio 43215
Zeiger, Tigges & Little LLPBy: John W. Zeiger., Esq.
By: Steven W. Tigges, Esq.41 South High Street, Suite 3500Columbus, Ohio 43215
LAHANA DUFOUR, RMR, CRR
FEDERAL OFFICIAL COURT REPORTER
85 MARCONI BOULEVARD, ROOM 121
COLUMBUS, OHIO 43215
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WITNESS INDEX
WITNESSES DIRECT CROSS REDIRECT RECROSS
PLAINTIFF's:
Matthew Damschroder 3
WITN-ESS INDEX
WITNESSES DIRECT CROSS REDIRECT RECROSS
DEFENDANT'Sw
Matthew Damschroder 20 70By Mr. Zeiger 42By Mr. Brown 58
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Thursday Afternoon Session
March 13, 2014
NIATTHEW DAM SCH.RODER
Called as a witness on behalf of the PLAINTIFF, being first
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. BROWN:
Q. Good afternoorl, Mr. Damschroder. I did this the last
time in Judge Marbley's Court, I believe. I can't get your
name correct.
A. It's all right.
Q. You are with the Secretary of State's Office?
A. I am.
Q. How long have you worked for the Secretary of State?
A. Since January of 2011.
Q. And what is exactly your title?
A. Deputy Assistant Secretary of State and Director of
Elections.
Q. And in that capacity you are familiar with Ohio election
law, the secretary's directives and the practices at the
Secretary of State's Office?
A. I am.
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Q. Intirnately?
A. Operationally, certainly.
Q. From our previous conversations I take it that's
certainly true.
Are you familiar with Directive 2006-58 issued by
Secretary Ken Blackwell on August 21st, 2006?
A. I recall it from this protest process.
Q. Are you familiar with page three of that?
I'm not sure it's in there.
MR. BROWN: Can I approach the witness, Your Honor?
THE COURT: You may.
MR. ZEIGER: Do you have copies?
MR. BROWN: No.
MR. ZEIGER: If you're going to use it, I'd like to
see it. You want to show us the part you're goirig to be
focused on to save time?
MR. BROWN: Page three.
MR. ZEIGER: We're on page three.
THE COURT: Which one are we on?
MR. BROWN: I apologize for not having copies, Your
Honor. This kind of popped up on me.
It's been in all the pleadings.
THE COURT: Why don't we take a brief recess. We'll
return at a quarter of 4:00.
(A recess was taken at 3:32 p.m. until 3:55 p.m.)
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THE COURT: Mr. Brown, this is your witness.
MR. BROWN: Yes, Your Honor. Thank you.
BY MR. BROWN:
Q. Good afternoon once again, Mr. Damschroder. When last
we spoke I asked you about Directive 2006-58 issued by
Secretary Blackwell on August 21st, 2006. And I asked you were
you familiar with that Directive.
A. Yes, you did.
Q. And then I made a very clumsy effort to approach and
show you the Directive.
MR. BROWN: May I approach again, Your Honor?
THE COURT: You may. And I've got one that's legible,
if you care.
BY MR. BROWN:
Q. Can you look at this to make sure that is 2006-58,
Secretary Kenneth Blackwell's Directive?
A. It is.
MR. ZEIGER: Mark, are you marking that as an exhibit?
MR. BROWN: No. It's not an exhibit.
THE COURT: It's already Exhibit C to the hearing
before Professor Smith. And if we're moving all of that into
the record then we have it.
MR. ZEIGER: Thank you, Your Honor.
BY MR. BROLVN :
Q. I'm going to turn to page three of five. Can you look
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at reasons not to invalidate a part petition, and read those
just to yourself. Familiarize yourself with it real quick.
A. Yes.
Q. Does Directive 2006-58 instruct boards of elections not
to invalidate part petitions when employer statements are
incorrect?
A. The instructions from the Secretary of State in that
directive are for the boards in their examination of part
petitions for that particular state issue and one of the
instructions was the boards of elections were not supposed to
reject a part petition for that reason.
Q. Why not?
A. Well, the practice of boards of elections in conducting
their review of the validity of signatures in part petitions is
that you take -- the board takes the information on the
petition at face value because it was circulated witness under
penalty of election falsification. The signature part of the
petition thev review, compare agairist their voter registration
records. And because the boards of elections don't have the
form 14s then they would have nothing to compare that
information against and so it would be unnecessary for the
Board of Elections to reject a part petition because of the
employer box.
Q. That wouldn't necessarily be true, would it, that an
employer box that just omitted an address, it had the employer
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but no address?
A. I think the instructions in that directive, and that
have been consistent over time, is that the informati_on, again,
if taken at face value, if they put something on there, the
board shouldn't reject for that reason alone.
Q. And there's no other reason for that than they may not
have all the information they need?
A. Correct. That's not part of the board's responsibility
for the review of the part petitions.
Q. Whose responsibility i.s it?
A. Again, in the context of information like this is taken
at face value, the Secretary of State's Office would take at
face value the petitions where the box is blank, were not
circulated by a person receiving compensation. And so the only
context where that to come up would be in the form of a
protest.
Q. Did Secretary Brunner issue a similar Directive 2007-14?
A. That's my recollectiori based on the proceedings of this
protest.
Q. And does that directive also say do not invalidate a
part petition if the employer information statementis blank or
incomplete, does not match or correspond with the information
provided by the circulator in the compensation statement or is
otherwise improperly filled out. Is that your understanding?
A. That's my recollection of that particular directive for
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that particular issue.
Q. So if the employer statement contradicts the
compensation statement, the boards of elections are just
supposed to ignore that?
A. Cor-rect.
Q. But they have the contradiction there. Why would they
not enforce the requirements of 3801.38(E) (sic), the employer
statement statute?
A. I think the issue is, despite the fact there might be a
contradiction, the only real contradiction would be that if the
address on the circulator statement wouldn't match the employer
statement. I think the issue is that the boards aren't the
proper forum for that kind of review and so the Secretary of
State, in order to have a uniform review of statewide issue
petitions and candidate petitions, instructed the boards of
elections not to review that portion of the part petition.
Q. So it's the Secretary of State that should invalidate
the petition?
A. No. Not necessarily. T think, again, in the context of
review of part petition where i.nformation is taken at face
value that would be done only in the context of a protest.
Q. So even if an employer statement facially contradicted
evidence in a compensation statement that the secretary
otherwise had, the secretary would still not invalidate the
part petitions?
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A. I think there's a question of what would be
contradictory in terms of what's on an individual part
petition. But I think from a resource standpoint, the duty of
the Secretary of State is to aggregate the results of the valid
and invalid signatures for the boards of elections and certify
the issue to the ballot or, in cases of certain state issues,
send them back into the field to gather more part petitions.
So, there's not an affirmative duty for the secretary to review
those. Neither would we have the resources to do it.
Q. So the Secretary of State does not enforce 3501.38(E),
the employer statement, on a candidate's part petitions?
MR. COGLIANESE: Objection, Your Honor. Misstates the
testimony that's given.
THE COURT: I'm going to overrule the objectiori. Go
ahead. Answer if you can, or restate the question, Mr. Brown.
MR. BROWN: I'll restate it, Your Honor.
BY MR. BROWN:
Q. Does the Secretary of State enforce the employer
statement rule found in 3501.38(E)(1) which is often called the
employer statement?
A. We do.
Q. Didn't you just testify that even in the face of an
obvious contradiction the secretary would not?
A. No. I think my testimony was that we don't have an
affirmative duty to review those as a part of our aggregation
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of the results determined by the boards of elections. We
would, in the context of a protest where there were facts
brought in and a determination made, then reject part petitions
on that basis.
Q. So you only enforce the law sometimes?
MR. COGLIAIv7ESE: Objection.
THE COURT: Argumentative.
BY MR. BROWN:
Q. You do not enforce the law all the time.
MR. COGLIANESE: Same objection.
BY MR. BROWN:
Q. When do you enforce the law?
MR. COGLIANESE: Same objection.
THE COURT: I'll overrule the last one.
THE WITNESS: So, in the context of enforcing whether
or not the circulator completed the employer statement of the
part petitions in the context of a protest is when the
Secretary of State enforces that provision.
BY MR. BROWN:
Q. So only in the context of a protest?
A. Correct.
Q. Which means there are numerous candidates who are still
on the ballot today even though their c?rcul.ators, who were
independent contractors, did not identify the source of their
payment on the part petition?
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L MR. COGLIANESE: Objection, Your Honor. Facts not in
evidence. It presupposes that other candidates used paid
circulators and did not fi11 out forms as opposed to using
volunteers.
MR. ZEIGER: And, Your Honor, I would join and comment
that there's been no predicate laid for that question to show
that this witness has any knowledge of those third parties and,
therefore, it's entirely speculative.
THE COURT: Well, in addition to that, before
Professor Smith at the hearing, Mr. Hatchett testified, as I
recall, that he had been collecting signatures in this manner
for ten years, and in a conversation with Mr. Bridges said he'd
never been required to fill it out.
MR. BROWN: Yes, Your Honor.
THE COURT: A loose paraphrase.
MR. BROWN: Yes, Your Honor.
THE COURT: Sustained.
BY MR. BROWN:
Q. Hypothetically, if we had two candidates, one whose
circulator did not -- an independent contractor did not fill
out the employer statement and he was protested, he would be
removed. The other, exactly the same but for the fact that
he's not protested would still be on the ballot in Ohio.
Hypothetically, if that were to occur, would that be true?
MR. COGLIANESE: Objection, Your Honor, It's purely
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speculative.
THE COURT: It's a hypothetical. Answer, if you can,
please.
THE WITNESS: if there was a protest, that's where a
review would be conducted.
BY MR. BROWN:
Q. I don't believe that's responsive to my question.
A. Can you restate the question?
Q. Yes. I didn't ask you a very good questiori. I'm sorry.
I'm a law professor and we're always throwing out
hypotheticals.
Let`s assume we've got two candidates exactly the same
in every way except one of the candidates is protested. Both
candidates use the exact same circulator, an independent
contractor, and the circulator did not fill in the employer
statement box. Exactly the same for both. So they're exactly
the same except one candidate is protested and one candidate is
not.
Hypothetically, would it be true that the candidate
who's protested would be removed from the ballot but the
candidate who is not would remain on the ballot?
A. Assuming that the protest -- the hearing officer
sustained the protest and sufficient sigriatur.es were knocked
off as a result of that, yes.
Q. So under Ohio law, candidates are treated differently
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depending on whether they're protested?
A. Not by the state.
MR. COGLIANESE: Objecti.on.
THE COURT: You were about to say not by the Secretary
of State.
THE WITNESS: Correct.
BY MR. BROWN:
Q. Then by whom?
A. By the protester.
Q. Does the protester have the ability to remove a
candidate from the ballot in Ohio?
A. No.
Q. Who does that?
A. The Secretary of State certifies candidates on the
ballot based on the number of valid signatures on valid part
petitions.
Q. And does the secretary also invalidate candidates?
A. In the context of a protest, which I think is the
hypothetical.
Q. Yes.
A. If the hearing officer determined that there were
invalid part petitions, petitions that violated the law, and
those part petitions were rejected, the candidate would not be
certified in the ballot.
Q. And who would not certify the candidate?
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A. The Secretary of State would communicate that to the
boards.
Q. Is it your understanding that Secretary Husted's
approach is the same as Secretary Blackwell's and Secretary
Brunner's?
A. Yes.
Q. Has Secretary Husted issued a directive similar to
Directive 2007-14 or 2006-58?
A. We've taken a different approach as it relates to
communicating instructions to the boards of elections. So,
what we have done is, instead of issuing a different petition,
a different directive for the review of each petition that's
filed with our office, we issue one petition that governs all
of the -- issue one directive that governs all of the petitions
for that type of petition. So I think, if my memory serves,
we've issued two directives on the review of state issue
petitions and, I believe, two directives on the review of part
petitions for statewide candidates.
Q. Do you happen to remember those numbers?
A. I do not.
Q. Do you know if they're exactly the same as 2000 --
Directive 2006-58 and 2007-14?
MR. ZEIGER: Your Honor, could we have some clarity
whether he means the entire seven-page document or he's
referring to a particular provision?
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MR. BROWN: Yes, Your Honor. Thank you.
BY MR. BROWN:
Q. Are the instructions on not invalidating part petitions
under 3501.38(E)(1) in Secretary Husted's directive the same as
they were?
A. I don't know they say it exactly the same way as
previous administrations.
Q. But the intent is the same. Is that your testimony?
A. Yes.
Q. To your knowledge, this most recent election cycle, has
any other statewide candidate been invalidated under the
employer statement statute 3501.38(E)?
A. I think the only two candidates that were protested was
the joint candidacy of Irwin Clark and then the candidate for
attorney general, Steve Linnabary.
Q. No one else was protested?
A. Correct.
Q. No one else was removed?
A. No one else had a protest filed that resulted in a
hearing that resulted in the invalidation of signatures and
part petitions that have an insufficient number to be
certified.
Q. How about 2012?
A. Not that I recall.
Q. 2010?
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A. Wasn't at the Secretary of State's Office but I don't
recall that happening in 2012.
Q. So, safe to say that in the last three election cycles,
the even numbered years, no other candidate has ever been
removed for circulators improperly filling in employer
statements?
MR. COGLIANESE: Objection, Your Honor. That is
evidence not in the record. The only thing that
Mr. Damschroder has testified to has been statewide candidates,
not other candidates of various elections.
MR. BROWN: I'll revise.
THE COURT: Thank you.
BY MR. BRC?WN :
Q. Any statewide candidates 2010, 2012, 2014, have any
statewide candidates been removed for failure to properly fill
in the employer statement rule?
A. I don't recall ariy protest being filed with that
allegation that resulted in a candidate not appearing on the
ballot.
Q. Wasn't exactly my question.
In addition, has any other candidate who wasn't
protested been removed, statewide 2010, 2012, 2014?
A. Not after being placed on the ballot.
Q. So your testimony again is no statewide candidate has
since 2010, and of course you didn't come on board until 2011
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so you wouldn't necessarily know about 2008 and 2006, but at
least since 2010 no statewide candidate has ever been removed
under the statute?
A. Not that I can recall.
Q. This use of protesters is politically dangerous, isn't
it?
A. I don't know that I'm in a position to answer for whom
it's politically dangerous or those kind of things. But it's
certainly a provision of state law.
Q. But it does allow one party to plant a member in another
party and sabotage that other party's candidate?
MR. COGLIANESE: Objection.
THE COURT: Overruled.
THE WITNESS: Can you restate the question for me?
BY MR. BROh'N :
Q. Does Ohio's use of protests to police its ballots allow
one party to plant a member in another party and then use that
member to sabotage the other party's candidates?
MR. ZEIGER: Your Honor, I'm going to enter an
objection. This is entirely speculative. There's no predicate
or foundation been laid for any such allegation. There's none
in the pleadings. We're just making it up as we go now. So I
believe we're beyond anything that has any relevance to these
proceedings.
THE COURT: I'll draw conclusions. Sustained.
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BY MR. BROWN:
Q. Mr. Damschroder, I think I asked you this back in 2012.
Are you a lawyer?
A. I am not.
Q. But you understand fundamental notions of equality and
fairness?
A. I think as a common person, yes.
Q. Do you think it fair to allow a candidate who looks
exactly like another candidate, done everything the other
candidate has done, exactly the same, to be removed from the
ballot while the other one remains?
MR. COGLIANESE: Objection.
THE COURT: Sustained.
BY MR. BROWN:
Q. Do you think it consistent with equal protection?
MR. COGLIANESE: Objection.
THE COURT: Calls for a legal conclusion.
MR. BROWN: He's not a lawyer. I was just looking for
the common man's version of equality and equal protection.
THE COURT: We got that from the protester, didn't we?
MR. BROWN: Yes, we did.
THE COURT: Go ahead.
MR. BROWN: I have no further questions. Thank you,
Mr. Damschroder.
THE COURT: Gentlemen, ladies, anything further?
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1 MR. ZEIGER: Your Honor, if the Secretary of State
2 wishes to call Mr. Damschroder in their case, that will be
3 fine. Otherwise, we will plan to recall Mr. Damschroder in our
I case. But we don't have any questions in follow-up.
5 Excuse me one second, Your Honor, if I might.
Nothing further at this point, Your Honor, with the
reservation we can recall him.
THE COURT: Well let's talk a 1.ittle bit about what --
how many other witnesses are we going to hear from?
Mr. Brown, are you done?
MR. BROWN: I am not, Your Honor. Just the one
wi_tness that we discussed at sidebar.
THE COURT: Why don't we adjourn for the evening and
return tomorrow morning at nine o'clock to continue and I will
have a decision about whether or not we will call Mr. Zeiger.
MR. BROWN: Thank you, Your Honor.
THE COURT: All right. For the secretary, do you wish
to interrogate your clierit?
MR. COGLIANESE: I do wish to do a direct of
Mr. Damschroder. We would be happy to lead off tomorrow
at 9:00 with that if that is Your Honor's preference.
THE COURT: Well, I think Mr. Brown still has a
witness he'd like to call. Can we save some time and have you
do that now?
MR. COGLIANESE: Absolutely, Your Honor.
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THE COURT: Why don't we do that.
MR. ZEIGER: Your Honor, depending on what your
schedule is, we have two witnesses that we will be calling.
But if you're going to recess following Mr. Damschroder, if you
don't mind, I'd like to let them go home and tell them to be
back at nine o'clock tomorrow morning.
THE COURT: Please.
MR. COGLIANESE: Your Honor, with the Court's
permission, may I approach the witness stand to get a little
bit of water?
THE COURT: Go right ahead.
You may proceed.
MATTHEW DAMSCHRODER
Called as a witness on behalf of the DEFENDAIvTT, being first
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. COGLIANESE:
Q. Good afternoon, Mr. Damschroder. You told Mr. Brown
that you've been working for the Secretary of State since 2011,
January?
A. •Correct.
Q. Could you just kind of describe for the Court what your
role is at the Secretary of State's Office?
A. As Director of Elections I'm responsible for supervising
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my team as it relates to providing information for boards of
elections in terms of poll worker training, voting location
accessibility, compliance with the National Voter Registration
Act. We work closely with our IT department for oversight of
the statewide voter registration database required by the Help
America Vote Act. Advise the Secretary of State on various
policies as it relates to elections.
Q. Does helping to instruct the Board of Elections how to
deal with part petitions from eithescandidates or issues fall
under your purview?
A. It does.
Q. Prior to assuming your role at the Ohio Secretary of
State in January of 2011, where did you work?
A. I was the Director and then later Deputy Director of the
Franklin County Board of Elections here in Columbus.
Q. And how long were you either the Director or Deputy
Director for Franklin Gounty?
A. Started in June of 2003 and continued until January of
2011.
Q. 2003 must have been a bad year. You started with
Franklin County in June of 2003. 1 started doing elections
litiga-tion in October of 2003.
Could you please describe your role as either Director
or Deputy Director of the Franklin County Board of Elections,
what that entailed?
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A. Sure. We supervised a staff that did everything from
voter registration, data en'try, maintaining local voter rolls,
absentee ballot, preparation and tabulation, polling places,
basically all of those things that you would assume that a
local county Board of Elections would do preparing poll
workers, et cetera, including the review of candidate petitions
that we filed for local offices and then as well as review of
part petitions for statewide issues that were circulated in
Franklin County.
Q. And would you also review petitions in the Franklin
County Board of Elections for candidates for statewide office?
A. Yes. That would be filed with the Secretary of State
circulated in Franklin County, they would send thern to us for
review.
Q. I'd like, if you don't mind, for you to please describe
for the Court kind of the different role that a Board of
Elections plays in looking at part petitions versus what the
Secretary of State does with part petitions. And I'd like you
to focus that specifically on, for right now, candidates for
statewide office.
A. Sure. So, the role for the Secretary of State is to
accept the filing, accept the fee, and then divide the petition
into its respective parts for each county Board of Elections,
to send them to the counties, and then the counties actually
conduct the review of signatures and part petitions. The
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counties make the determination of whether a part petition is
valid or invalid, and the number of valid and invalid
signatures on each part petition.
The boards of elections then send those part petitions
back to us at the Secretary of State's Office where we review
the certification forms completed by the boards of elections
and aggregate the totals to make a determination of whether the
candidate had satisfied the minimum number of required valid
signatures as a part of their filing that we would then, as a
part of our duty to prescribe the form and ballot to the boards
of elections, would list the candidates who had met the minimum
threshold and essentially certify them to the ballot by the
creation of the statewide official ballot.
THE COURT: So you would not then look at the
individual petitions?
THE WITNESS: That is correct.
THE COURT: You're only looking at a recap, basically,
sent by each county?
THE WITNESS: Correct.
THE COURT: Okay. Go ahead.
BY MR. COGLIANESE:
Q. There's been a lot of talk about the employer statement
on the petition. When a part petition -- and I'd lik.e you to
put your county hat on for a minute, but when a part petition
for a statewide candidate or statewide issue gets sent to the
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county, what does the county look at when it's looking at the
petition to determine sufficiency, valid -- validitv of
signatures, validity of part petitions?
A. So, the primary thing that the boards would look at in
determining the validity of an individual part petition would
be whether or not the circulator statement is properly
completed. Specifically, whether the person had printed their
name and whether or not they had signed it under penalty of
election falsification, provided their address. And the other
important function there is the total number of signatures
witnessed by the circulator and comparing that to the total
number of signatures on the part petition.
That's the process for the board for determining the
validity or invalidity of an individual part petition. As it
relates to the individual signatures on the part petition, the
boards would then enter each signature on that part petition
into their voter registration system to determine whether the
address appearing on the part petition is indeed the address at
which that elector is registered and then also whether the
signature appearing on the petition substantially matches the
signature in the voter registration record for that person.
Q. Now, in your experience, specifically again let's just
kind of for right now talk about Franklin County when you were
working for the county, if you got statewide candidate or
statewide issue petitions, has it been your experience working
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for Franklin County that every person that circulates statewide
candidate or statewide issue petitions is a paid circulator?
A. No. Statewide issue petitions, candidates as well,
would be circulated often by both volunteers who are civically
minded, whatever, supportive of the candidate, and in other
cases by paid circulators. So it would be both.
Q. So, with the circulator's statement being left unfilled
out, if it were left blank, would one of the reasons be that it
was actually circulated by a volunteer circulator?
A. Yeah.
Q. Have you had experience and, again, I want to kind of
focus for right now your time in Franklin County. Did you have
experience in Franklin County receiving petitions for statewide
ballot issues that were circulated by paid circulators?
A. Yes.
Q. How did you know that they were circulated by paid
circulators?
A. Because I saw a number of part petitions for state
issues where the circulator had completed the employer -- the
employment statement as a part of the petitiori.
Q. And could you tell the Court to the best of your
recollection what some of those were?
A. In terms of who some of the employers were?
Q. What some of the issues were.
A. Sorry.
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Q. I apologize for not being clear.
A. That's all right.
In terms of Franklin County, I recall that there were a
number of casino issues that used both volunteer and paid
circulators to put issues on the ballot. There was, I think, a
petition that had something to do with adult entertainment.
And I think that the minimum wage petition also came through
while I was there. There were a number.
Q. And of course in your role as Franklin County either
Director or Deputy Director of the Board of Elections, if those
statewide issues were certified for the ballot, Franklin County
would be responsible for putting it on the ballot for the
electors of this county; is that right?
A. Correct.
Q. Do you recall any of the petitions that you've just
talked about where you saw paid circulators, and paid
circulator statements completed, that actually qualified for
the ballot?
A. I think all of the ones that I mentioned qualified for
the ballot.
THE CCURT: Maybe I missed it but I thought you were
describing initiative petitions and not candidate. Your
experience with Franklin County.
THE WITNESS: Correct. I think that answer was about
issue petitions.
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THE COURT: Okay. Now you're going to get to
candidates.
BY MR. COGLIANESE:
Q. In your period of time in Franklin County while you were
working for the Board of Elections did you see any candidate
petitions -- actually let me back up, Your Honor. Just lay a
predicate.
Is it your understanding that circulator statement for
paid circulators only applies to statewide candidates or does
it also apply to local candidates?
A. My understanding is it just applies to statewide issues
and candidates.
Q. Did you see any petitions for statewide candidates at
your time in Franklin County that had the paid circulator
statement filled out?
A. Not that I recall.
Q. Do you know if that was because they didn't fill them
out or because they didn't use paid circulators?
A. I don't know.
THE COURT: And your question was did you see any
petitions for statewide candidates at your time in Franklin
County that had the paid circulator filled out?
MR. COGLIANESE: Yes. That had the box filled out.
THE COURT: Right.
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BY MR. COGLIANESE:
Q. And you said you did not?
A. I don't recall any where the statewide candidates
circulated in Franklin County that used paid circulators while
I was in Franklin County.
Q. While you've been at the Secretary of State's Office,
the only candidate petitions that the Secretary of State's
Office receives are for statewide candidates; is that correct?
A. Correct. I just had to double-check in my mind about
congressional -- presidential electors by congressional
district. But those are filed locally, so, yeah.
Q. Are you aware of any statewide candidates who filed
petitions with the Secretary of State's Office in the time
since you've been there who had paid circulators who filled out
the circulator statement?
A. It would be in the current election. I think there were
some candidates for statewide office who did use paid
circulators.
Q. Would those be the candidates of the Libertarian Party?
A. Yes.
Q. Were there any candidates for any of the other parties
who filed petitions, statewide candidates with any other party,
in your period of time with the Secretary of State's Office who
filed candidate petitions and used paid circulators and those
circulators filled out a statement?
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A. Not that I know of.
Q. Are you aware of -- and let me actually ask that
question a little cleaner.
Are you aware of in your period of time at the Secretary
of State's Office any statewide candidates besides the
Libertarian Party statewide candidates who hired paid
circulators to circulate the petitions?
A. No.
Q. In your decade-plus experience with petitions and the
statewide circulator or the circulator statement, paid
circulator statement, have you been made aware of any problems
that circulators have encountered as a result of filling that
box out?
A. No.
Q. I'd like you to put back your Secretary of State hat on.
From the secretary's perspective, what's the purpose behind
that box?
A. I think there's a couple things, a couple services that
it fills. One, I think there is a deterrence of fraud aspect
in the idea that if a candidate or an issue committee knows
that their paid circulators are going to be listing their name
on the part petition, that person is going to be a paid
circulator. I think there's an incentive for the person making
the compensation to ensure that person is educated, informed as
to the rules what they're supposed to be doing because that
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person's activity is going to reflect positively or negatively
on the ultimate petitioner. So I think there's a deterrence of
fraud issue there.
The second is I think there's a detection component of
potential fraud. I think there has been situations in the past
where there have been claims, in particular as it relates to
state issue petitions for petitioner fraud and having that
information there can be helpful. to someone who's reviewing the
petitions to determine whether or not there is something more
to investigate. If there would be an investigation, sometimes
the person who circulated the part petition can be hard to find
after the netition is filed. And so if the person was
compensated, having the person's name and information who
provided the compensation provides another avenue to try to
identify, contact that person if there's a question that needs
to be answered.
Q. I'd like to focus with you a little b.it in on the
investigative side of this. In your experience either with the
county or the state, are you aware of that box ever being used
in an investigative capacity?
A. Yes. The Franklin County Prosecuting Attorney, for one
of the issues, I can't remember which one it was, but in 2010
that there was an allegation made against a handful of
circulators on whether or not they had engaged in identity
theft and the prosecutor had tried to reach out to the
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individual petitioners to no avail. And so havirig the contact
information for the person who paid them, the prosecutor was
able to make contact with that person, that entity, in order to
get additional contact information for the actual petitioner.
So it did serve a purpose in that instance that I'm aware of
with the prosecuting attorney.
Q. Can the paid circulator box, if it's completed, be used
in a way to help validate signatures?
A. Yeah. I think in the context of -- so I think that a
possible scenario would be if a candidate, or an issue petition
I guess for that matter, is deemed to have an insufficient
number of signatures different than a protest, the petitioner
can file an action in state court and the state court would
have a hearing on whether or not signatures or petitions were
improperly rejected. There have been situations in the past
where in those processes, Petitioners are brought in to talk
about whether or not they did indeed witness the signatures,
talk about the context of those things.
So I could see a scenario in which having employer
information would be the same thing as it was in the case of
the county prosecuting attorney that I described where the
Court or really the petitioner could use that information to
bring somebody in to create a fact pattern that would allow
signatures or part petitions to be counted.
Q. Could you explain for the Court what a form 14 is?
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A. So, there's two forms. I can't remember which one is
which. But there's, I think, a form 14 and a form 15. One is
for candidate committees -- one is for a candidate petition, a
statewide candidate petition. The other is for a statewide
issue petition. That is a form that is required to be filed
with the Secretary of State when a person is going to be making
an expenditure or accepting funds for the purpose of I think
the phrase is managing, supervising or otherwise organizing a
statewide petition drive.
Q. What does that disclosure, what does the form 14/form 1.5
actually disclose to the secretary?
A. It kind of is a disclosure on the front end of the
petition process, most commonly. It discloses to the Secretary
of State and the public an entity or person who's going to be
expending money for the purpose of supervising, managing,
otherwise organizing the statewide petition drive. Or also if
a person is going to be receiving that compensation to do that
same thing.
Q. And you said that's done on the front end. So before
the petition drive starts?
A. It usually is before the petition drive starts.
Although it can happen during the petition drive as additional
individuals, entities decide to expend funds for the drive or
additional people are brought in to receive compensation for
supervising the process. So it kind of happens -- it all
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happens before the petition is filed with the Secretary of
State.
Q. And I'd like to talk to you just very briefly about
campaign finance reports. When are campaign finance reports
usually filed with the Secretary of State's Office?
A. Generally the filing takes place, there's a preelection
filing that talks of the documents, contributions and
expenditures between the first filing or in the case of a
start-up maybe since its inception through I think 32 or so
days before the primary election or the election, the
preelection filing. Then there's another report that comes
after the election that documents everything from what was
disclosed in the pre up until disclosure of the post. There's
also annual filings if there's a committee that is in existence
beyond just an election year where they wou'-d have to file
twice in a year in that year as well.
Q. Is it possible -- strike that.
When a statewide candidate decides to use paid
ci.rculators to circulate his or her petitions, how does the box
that a person receiving compensation fills out on a petition
tie in with form 14/form 15 and campaign finance disclosures?
How does that all work together?
A. So, when a form 14/form 15 is filed with our office, it
doesn't list the individual people who are actually going to be
on the street with the petitions unless that same person is
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also supervising or managing, and that would be the only case
that would be filed. So at the point a petition is filed is
the only time where there is a record of the actual individual
who was compensated to actually circulate the petitions because
the form 14/15 is only on the management side of things. So it
wouldn't necessarily list all of the individual petitioners on
the street.
THE COURT: So Ms. Baker and Ms. Voorhees and
Mr. Runta, so forth, filed this form 14 or 15. because they were
receiving mor.ey;. is that correct?
THE WITNESS: So, that gets to there are some
petitioners -- petition companies who, out of an abundance of
caution, file form 14/15s for even individuals who aren't
managing anything but who are actually on the street. But
that's not a requirement of the law. So I don't -- I would
presume, based on the filing of those individuals, that their
intent, as in the form, would be to manage or supervise the
gathering of signatures.
THE COURT: Is the filing of such form a predicate for
taking out petitions?
THE WITNESS : It is not. The person can start a
petition drive without filing form 14s or 15s. And in that
case, the presumption would be they're using all volunteer
efforts until a form 14 or 15 is filed.
THE COURT: Sir, go ahead.
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BY MR. COGLIANESE:
Q. I'd like to talk to you a little bit about -- I'd like
to talk to you a little bit about the Secretary of State's
action in this case. Can you describe for the Court how a
protest occurs against a statewide candidate?
A. So, the protest would be filed with the Secretary of
State. There is a 4:00 p.m. deadline for that. I can't
remember what the day is. But there is a deadline for the
filing of a timely protest. The Secretary of State, upon
receipt of the protest, then, under state law, must hold a
hearing, give notice to all the parties, the candidates of the
date and time of the hearing, they can be represented by
counsel, et cetera. Then the Secretary of State's Office holds
a hearing to review the allegations in the protest, accept
evidence, and then make a determination of whether or not the
protest is correct or not in its allegations and then make a
determination based on that finding.
Q. So the protest in this case dealing with two different
issues. First, whether some of the circulators were, in fact,
members of the Libertarian Party and then the second protest
concerning 3501.38(E)(1).
Is an invalidation for a statewide candidate for failing
to have their circulators, paid circulators fill out circulator
statement automatic disqualification from a ballot?
A. I'm sorry, I lost you there.
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Q. I apologize. That's an unclear question.
To affect access -- let me back up.
When the secretary certifies a candidate for a primary
ballot, what does that mean?
A. So, when the secretary certifies a candidate to the
primary election, that means that the candidate has timely
filed petitions that were found to have met the minimum
requirements of the number of valid signatures, and the
Secretary of State communicates that to the board iri the form
of an official ballot that lists the name of the candidate
under the office the person seeks to be nominated for in the
case of a primary.
Q. In this particular case with the Libertarian Party, that
meant that they had 500, at least 500 valid signatures?
A. Yes.
Q. If a protest is sustained but the -- if a protest is
sustained but there are still sufficient signatures to keep the
candidate on the ballot, would the candidate remain on the
ballot?
A. Yes.
Q. So the candidate is only removed from the ballot if the
protest is'sastained with enough signatures to fall below the
minimum signature threshold; is that correct?
A. That's correct.
THE COURT: Do you mind if I ask the question that you
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didn't complete?
If a statewide candidate fails to have their circulator
fill out that little box on the back, is that an automatic
disqualification?
THE WITNESS: In the context of a protest hearing it
would be.
THE COURT: Who would see that?
THE WITNESS: So, during --
THE COURT: I assume all of these petitions are online
and they're capable of being viewed, correct?
THE WITNESS: Not online but they're all public
records once filed with us. And once things are filed with us,
everyone makes public records requests for everybody's
petitions and so that's usually where review would take place
of those public records is outside.
THE COURT: But you say it isn't the local board's
responsibility to take any action if they see that that's not
filled in.
THE WITNESS: Correct. Because the presumption would
be that the person was not a paid circulator.
THE COURT: Okay. Go ahead.
BY MR. COGLIANESE:
Q. Mr. Damschroder, when we're talking about
disqualification during the protest, are we talking about
disquaiification of the candidate or disqualification of the
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part petition?
A. So, in the protest, the protester would generally make
an allegation that either part petitions that were validated
and should not have been validated or the individual signatures
that were validated should be i.nvalid. So as a part of the
hearing process, evidence would be brought in and the hearing
officer would make a determination that these signatures are
valid, these signatures are invalid, total it all up at the end
of the hearing and if it fell -- if the total number of valid
signatures remaining was above the minimum threshold, the
candidate would remain on the ballot.
Q. Okay. So what we"re really doing with a protest is
saying the Secretary of State said -- the county boards got the
petitions from the Secretary of State, they checked everything
that they were supposed to check against their voter
registration database, they validated signatures, they
validated that this person was a registered elector where they
claimed to reside, they send you numbers, you add them up, you
come up with a total number. So what we're dealing with in a
protest then is whether or not the county board -- the numbers
that you totaled up from the county board were right or if
there were problems with the petitions as filed and sent to the
county? Is that the way this really works?
A. Correct. We're dealing with the final aggregated number
of total valid and invalidated signatures. The board's
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determination is based on the outcome of the protest hearing.
MR. COGLIANESE: Your Honor, may I briefly confer?
THE COURT: You may.
MR. COGLIANESE: Just a couple.
THE COURT: Let me first.
Mr. Damschroder, there is a directive dated July 7, 2011
from Secretary of State Husted that lists under --- it was
Exhibit E to the hearing before Professor Smith. Do you have
an E?
MR. COGLIANESE: I don't think I have it here, Your
Honor. I apologize.
THE COURT: I don't think it's in the book, but it
might be.
MR. COGLIANESE: Your Honor, what was the directive,
I'm sorry?
THE COURT: It's Directive 2011-22.
MR. KAFANTARIS: Your Honor, I believe this was filed
by the secretary yesterday or the day before. It's Exhibit 6
to document number 63. It was appended to their motion for
temporary restraining order.
MR. COGLIANESE: We're just looking.
THE COURT: I've got a big E on mine.
MR. ZEIGER: Your Honor, there may be some confusion.
The transcript, I think, of the proceeding below only shows the
protester's exhibits. I believe Professor Brown filed some
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11 things perhaps with his brief, as I remember, which were not
? offered in evidence, to my recollection, at the protest. So
3 what you may have is exhibits to his brief as distinguished
I j from --
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MR. COGLIANESE: I believe that we actually attached
this to our op to the TRO, Your Honor. I'm trying to look. I
didn't print all my attachments before I came.
I did not bring that attachment with us, Your Honor.
THE COURT: Show this to the witness, if you would.
And I'm referring to the third paragraph here.
I noted in a comparison, Mr. Damschroder, of various
directives from successi_ve secretaries of state beginning with
Secretary Blackwell that, and I'm certainly willing to be
edified if I missed it, but there's inclusion in that directive
of language that says something on the order of strict
compliance with -- read it to me, will you, the third paragraph
there.
THE WITNESS: It reads, election laws are mandatory
and require strict compliance, and substantial compliance is
acceptable only when in election provisions says that it is.
State ex rel. Vickers v. Summit County Counsel from 2002 and
the citation. That requirement has been applied to referendum
petitions, State ex re1. Committee versus Lorain County Board
of Elections from 2001.
THE COURT: And does that apply to candidate
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petitions? In application, in your experience is that same
standard applied to candidate statewide petitions?
THE WITNESS: Yes. There are some provisions of state
law that require strict compliance and other provisions that
require substantial compliance.
THE COURT: At the discretion of the decider?
THE WITNESS: To a certain extent, yes, but subject to
review. And usually what has happened over time is that the
courts have kind of just have outlined the boundaries of what
is strict compliance and what is substantial compl'Lance.
THE COURT: Thank you. Go ahead.
BY MR. COGLIANESE:
Q. Why does Secretary Husted believe that this statute is a
strict compliance statute?
A. I think the statute says so, as I recall.
THE COURT: That's a pretty good reason.
BY MR. COGLIANESE:
Q. When does that circulator -- the paid circulator
information need to be filled out by the circulator?
A. Before it's filed with the Secretary of State.
Q. So does it have to be filed while the circulator is
actually trying to get signatures?
A. It does not. And normally the circulator statement
generally isn't completed until the person has finished
circulating the petition because they need to fill in the
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number of signatures that the circulator witnessed.
Q. And do we require paid circulators to tell a person from
whom they're trying to get a signature that they're being paid
to circulate?
A. No.
Q. And do we require a circulator who is being paid to tell
a person from whom that person is tryirig to get a signature who
is paying the circulator?
A. No.
MR. COGLIANESE: Your Honor, I believe at this point I
am finished.
THE COURT: Thank you.
MR. COGLIANESE: Should I bring the exhibit back up to
the Court?
THE COURT: Unless Mr. Damschroder would like to keep
it.
Mr. Zeiger or Mr. Tigges.
MR. ZEIGER: Thank you, Your Honor.
CROSS-EXAMINATION
BY MR. ZEIGER:
Q. Good afternoon, Mr. Damschroder.
A. Good afternoon.
Q. Let's start with the obvious. Following up on the
Judge's inquiry. If you would turn to Exhibit Number 1 in that
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book there in front of you. I will represent to you, sir, that
this is the excerpted copy of the Am. Sub. H.B. 1 adopted --
A. This is the protest letter.
Q. You are correct. I am wrong.
MR. ZEIGER: Your Honor, I am wrong. I have
Mr. Tigges' disease. It is the skinny book, not the thicker of
the two.
THE COURT: So we are referring now to number 1.
MR. ZEIGER: Exhibit Number 1 in the thinner of the
two books.
THE COURT: It would appear to be a copy of a bi11.
MR. ZEIGER: That is correct. The enacted Am. Sub.
H.B. 1 which we'll talk about later.
BY MR. ZEIGER:
Q. But that, sir, is a copy of the law that was enacted in
December of 2004. If you turn to the fourth page of that
exhibit you'll see the date down in the bottom left-hand corner
December 17, 2004, effective March 31st, 2005. And that was
legislation, sir, that was the special session called by
Governor Taft to deal with election irregu'Lariti.es and finance
issues?
A. Correct.
Q. And in particular, sir, the statute we're dealing with
here, 3501.38(E)(1), was adopted as part of that legislation,
was it not?
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A. It was.
'• Q. And it's been the law of Ohio since adoption effective
in March of 2005?
A. Correct.
Q. And, sir, if you'll turn to the second page of that
exhibit you'll see that we took the liberty, Your Honor, of
bolding the relevant provision. You'll see at the left-hand
margin (E)(1), Mr. Darnschroder?
A. Yes.
Q. And then I'd like you to drop down to the bold language.
On the circulator's statement for declaration of candidacy.
I'm going to jump over the other kinds of petitions, Your
Honor, since they're not directly relevant.
For a person seeking to become a statewide candidate,
the circulator shall, see the word shall, sir?
A. Yes.
Q. Shall identify the name and address of the person
employing the circulator to circulate the petition, if any,
correct?
A. Correct.
Q. Now, that is a mandatory provision of Ohio law that the
Secretary of State is obligated to comply with? Let me restate
that. Obligated to enforce?
A. Yes.
Q. And, indeed, it's one that any statewide candidate is
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obligated to comply with?
A. Yes.
Q. And, sir, I don't have the citation in front of me but,
as I recollect, there is a specific provision of the election
laws of Ohio that are cited in our brief, Your Honor, that
mandatorily require the Secretary of State to invalidate any
candidacy petition which does not comply with the mandatory
provisions of Oh.io law; is that correct, sir?
A. That's my recollection, yes.
Q. You don't happen to know off the top of your head the
citation to that?
A. I do not.
MR. ZEIGER: Your Honor, I'll have it for you first
thing in the morning. I apologize for not having it readily
available.
BY MR. ZEIGER:
Q. So the issue before the Secretary of State on the
protest that my client initiated was one of whether or not
there was compliance with a mandatory provision of state law in
3501.38(E){1), correct?
A. Correct.
Q. And if, in fact, there was proof that there was
noncompliance with that requirement by a candidate then, in
fact, that candidate was required to be ruled off the ballot by
the Secretary of State if there were not enough otherwise valid
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L part petition signatures to keep the candidate on the ballot,
? correct?
A. Correct.
E Q. And that is, in fact, what is being referred to in
Secretary of State Directive 2011-22 as being a statute that
requires strict compliance?
A. That's the directive we just --
Q. Yes, it is.
A. Yes. That's correct.
Q. Mr. Darnschroder --
THE COURT: Excuse me. I'm sorry.
Mr. Lamschroder, if it's mandatory that the Secretary of
State enforce this then doesn't that dictate that the secretary
ought to review these petitions?
THE WITNESS: I would say no because the duty of the
secretary in statewide candidates and statewide issue petitions
is to aggregate the information from the boards of elections.
We don't conduct any review, pro forma or otherwise, of the
individual part petitions.
THE COURT: And so it is the case, then, that there
can be part petitions submitted by paid circulators who have
not filled out, what is this, the payor box who aren't
protested and otherwise make it to the ballot, right?
THE WITNESS: It could happen.
THE COURT: And so it is at the whim of somebody
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1 bringing a protest to determine whether or not Ohio election
2 law is enforced.
3 THE WITNESS: I'd probably phrase it a little bit
E differently.
THE COURT: Well, it was poorly phrased. Why don't
you phrase it for me.
THE WITNESS: I would say that it's up to a protester
to decide whether or not the protester believes there would be
enough invalid signatures to overturn the secretary's
aggregation results from the boards of elections. And that's
where, either in case of a statewide issue if the state Supreme
Court has original jurisdiction, exclusive jurisdiction on
that, so the state Supreme Court would decide that, in the
context of a candidate petition, it would be in the context of
a protest before the Secretary of State.
THE COURT: Thank you. Go ahead, Mr. Zeiger.
MR. ZEIGER: Thank you, Your Honor.
BY MR. ZEIGER:
Q. Let's see if we can help on that issue a little bit.
Sir, take a look at document number 2 in that notebook in front
of you. I'll ask you, sir, is that, in fact, the prescribed
declaration of candidacy for party primary election on
statewide candidates for governor and lieutenant governor?
A. It is.
Q. That's issued by your office?
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A. Correct.
Q. And, sir, at the top of the second page where the
signatures start Ito be added it says, signatures on this
petition shall be of persons who are of the same political
party as stated by the above candidates?
A. Correct.
Q. Now, is it fair to say that when the Secretary of State
and the boards of elections receive these part petitions they
rely on the honesty and integrity of the signers to accept
their presumed status as party members for that particular
candidate?
A. Certainly as it relates to the Secretary of State, yes.
Q. And, indeed, a lot of what goes on in the election
process because of time and because of resources is based upon
the bona fide and good faith voluntary compliance of the
participants in the process, correct?
A. Yes.
Q. And, indeed, the question of whether a Republican or a
Democrat signed a petition for someone in their own party or
someone who wasn't in their own party who was a candidate,
again, is left largely to the -- at the Secretary of State's
level, left largely to the presumption that people are being
honest?
A. In the case of individual signers of the part petition?
Q. Yes.
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A. So, that would be done by the boards of elections and
there would be a scenario where if a signer signed a part
petition but the Board of Elections records reflect that the
person voted in another party's primary in the last two years,
that signature would be -- that individual signature would be
rejected because it was the wrong party. But if the person was
unaffiliated or of the same political party based on the party
of the person's history within the last two years it would be a
valid signature.
Q. So the point is that if someone lists themselves as
being a party supporter in the absence of evidence to the
contrary, you accept the representation of the signatory?
A. Correct.
Q. And in the case of the completion of the employer box on
the statewide candidacy petition, and now let's look at the
bottom of that same page on Exhibit 2, the completion of that
box, if that box is empty and not completed, what does the
Secretary of State's Office understand about whether or not the
circulator of this peti.tion was paid or not paid based upon the
absence of any disclosure?
A. If the disclosure is blank, the presumption would be
that the person was not receiving compensation to circulate the
part petition.
Q. All right. So you basically, in the process of election
approval, rely on the representation of the circulator whose
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signature is next to that by not filling in this box creating a
presumption that that circulator was a volunteer and not a paid
person?
A. Correct.
Q. So there was questions earlier to you, sir, from
Professor Brown about whether there had been anyone ruled off
the ballot during your time at the Secretary of State's Office.
Let me ask you, in your time at the Secretary of State's Office
do you know of any other statewide candidate who submitted
phony or inaccurate or false --
MR. BROWN: Objection, Your Honor.
MR. ZEIGER: -- part petitions --
MR, BROWN: Your Honor, he's implying that we
submitted phony or fraudulent or false. None of that is true.
If he wants to rephrase.
MR. ZEIGER: Your Honor, I'm not here to argue. Let
me back up.
THE COURT: Rephrase, please.
BY MR. ZEIGER:
Q. Do you know of any other statewide candidate that had
paid circulators but failed to disclose honestly that those
circulators were paid?
A. Not that I know of.
Q. And if there had come attention to the Secretary of
State's Office, was that something that would have been
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1 investigated?
? A. In the context of a protest, that would have been
3 reviewed by the hearing officer.
E Q. So the only reason rio one else has been ruled off the
ballot, that you know of, is because you know of no facts to
suggest that a protest was ever filed for the same reasons that
we filed a protest in this case?
A. Correct.
THE COURT: Which makes a protester, then, essentially
a private attorney general, correct?
THE WITNESS: Certainly a policer of that aspect of
the petition process.
THE COURT: Oka.y. Go ahead.
BY MR. ZEIGER:
Q. Si.r, while we're at it, very quickly, would you look at
Exhibit Number 3 in the book. That is the form 14 that a
person who is either receiving compensation or paying
compensation for supervising, managing or otherwise organizing
an effort to obtain signatures for a declaration of candidacy
for a statewide position of governor or lieutenant governor
should file and complete with your office?
A. Yes.
Q. That's the one that you were asked about previously?
A. Correct.
Q. Mr. Damschroder, in the years that you have been in the
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L election process, and if I took that down correctly, you
started in 2003 so that's more than a decade now?
A. Correct.
Q. How many elections have you actually been involved in in
an election supervisory capacity either at the county level or
the state, Secretary of State?
A. Actual election days would be certainly more than 20,
probably closer to 30.
Q. And how many actual races were involved in those
campaigns in those elections?
A. Hundreds.
Q. And you've been involved in some aspect of reviewing
many of them?
A. Yes.
Q. In your experience, sir, have circulators who have been
paid for their work consistently and regularly filled out the
box that I showed you at the bottom of Exhibit 2 on the second
page?
A. I'm more familiar with the issue petitions and generally
when we're going through the petitions at the county level.
There's lots of circulator boxes that are filled out.
Q. And so no one has -- strike that.
During your tenure, sir, have you ever had a paid
circulator come to you and object to disclosing that they were
being paid?
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A. No.
Q. Have you ever had a paid circulator come to you and
object to the disclosure of the individuals paying them?
A. No.
Q. And, indeed, sir, have you ever had a paid circulator
come and object to completion of the box in the bottom
right-hand corner of page 2 of Exhibit 2?
A. Can you restate that? I'm sorry.
Q. Yes. I confused you. I apologize.
A. That's all right.
Q. In your tenure, sir, have you ever had a paid circulator
come and object to completing the box indicating who their
employer was that was paying them?
A. No.
Q. Sir, we've heard a lot of discussion. In your
experience in the application of this particular statute
relating to the paid c7rculator box, does it make any
difference if the individual being paid is an employee or an
independent contractor in terms of whether or not the box has
to be filled out?
A. No.
Q. And that's been your understanding of how the ballot
process in Ohio has been undertaken in the last ten years?
A. Correct.
Q. I believe this was covered by Mr. CoglianesP. But is it
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fair to say that the box on the bottom of page 2 disclosing
that this is a paid circulator being paid by an identified
party is not completed until after each of the elector's
signatures are placed on the petition?
A. It would be up to the circulator but it would have to be
completed before it's filed with our office.
Q. But there's no requirement that it be completed at the
time that the signatures are being solicited?
A. That is correct.
Q. Have you ever had any paid circulator come to you and
tell you that they could not obtain signatures on a
candidacy -- statewide candidacy petition because of the fact
that they would have to disclose who was paying them to do
this?
A. No.
Q. They ever told you that it in any way impairs their
business as professional circulators?
A. No.
Q. Do you know of any circumstance that indicated -- strike
that.
Have any of the paid circulators ever told you that they
have been harassed, annoyed or subject to reprisals as a result
of the disclosure that they were a paid circulator?
A. No.
Q. Do you know of any situation in which the person paying
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the paid circulator has been subject to annoyance, harassment,
retaliation or reprisals because of the fact that the status as
a paid circ -- as a person paying the circulator was disclosed?
A. No.
Q. Sir, you mentioned in response to Mr. Coglianese's
questions about the state interest in having this disclosure
contained on these part petitions, one of them was the
detection of fraud. T;ust want to tie down with you, sir, is
this disclosure that's set forth in the box on the statewide
candidacy petition, is that helpful in determining through a
cross-checking process whe'^her or not there's been compliance
with Ohio campaign finance laws?
A. It could be.
Q. And has it been used that way in the past?
A. Not to my knowledge.
Q. All right. And, sir, is it also useful in having a
cross-check to see if the appropriate form 14s have been filed?
A. That cou'_d happen as well.
Q. So it does provide a cross--check mechanism for election
officials to determine violations of law?
A. Yes.
Q. And, indeed, in our case, provided us wi th a rriechanism
of digging out facts about unpaid circulators because we saw
the signed form 14s saying they were paid circulators but then
we saw the petitions weren't disclosing that. So it can be
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used by the private attorney generals, again, as a means of
ensuring compliance with Ohio campaign laws -- election laws?
A. Yes.
Q. Finally, sir, in the time that you have spent in
election oversight for the past decade or more, have you
determined whether there is a greater risk of fraud or
circulator misconduct when paid circulators circulate candidacy
or issue petitions as compared to volunteers?
A. I don't think there's an official finding on that. But
my personal opinion is that a person who's receiving
compensation to do something, anything, potentially has a
greater incentive to do something wrong to get to their outcome
than would a person who's doing it purely out of civic-minded
volunteerism.
Q. And, indeed, sir, over the decade or more that you have
been involved in reviewing election issues, has that borne out
in terms of the validity rate of volunteer-circulated petitions
signatures as compared to the validity rate after review by
those collected by paid circulators?
A. Again, I don't think there's been an official finding.
But my personal experience would be that volunteers have
generally had a higher validation rate with one exception.
That was because the issue took forever to be filed. But
volunteers usually do a better job of getting their neighbors
and friends, et cetera, who they know to be registered to vote
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to sign petitions.
Q. And so there would be a state interest -- as an electiori
oversight official, do you believe that the state has
legitimate interest in knowing whether or not these petitions
have been circulated by a paid person as distinguished from a
volunteer?
A. I do.
MR. ZEIGER: Your Honor, I have nothing further.
THE COURT: What are you doing tomorrow morning,
Matthew?
THE WITNESS: I'm available.
THE COURT: Can you leave a phone number ifi we need
you?
THE WITNESS: Yes.
THE COURT: Unless you intend for him to be here in
any event.
MR. COGLIANESE: I don't need Mr. Damschroder any
further, Your Honor. If he wants to come down tomorrow
morning, otherwise we will make sure that we can get him down
here if we need to.
THE COURT: Do you have additional follow-up?
MR. BROWN: I do, Your Honor. I'm thinking ten
minutes.
THE COURT: Okay. Have at it.
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CROSS-EXAMINATION
3 BY MR. BROWN:
I Q. You testified that you were not aware of any statewide
candidates who had used paid circulators; is that correct? I'm
sorry, other than the candidates at issue in this case?
A. I think there might have been other Libertarians who
used paid circulators. But not any other candidates for other
parties.
Q. No Republicans, no Democraties?
A. Not that I'm aware of.
Q. How would you know?
A. I wouldn't necessarily. This is why to the best of my
knowledge I don't know.
Q. So they could have and you just wouidn't know if they --
A. Correct.
Q. -- if they used independent contractors and didn't fill
out the employer statement?
A. I don't have any specific knowledge of other parties for
other candidates paid anybody to circulate petitions.
Q. I believe you testified that subsection 3501.38(E), the
employer statement, does not apply to local elections?
A. Correct. That's my recollection of the statute, that it
only applies to candidates and issues for statewide office or
statewide issues.
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Q. So earlier on my direct when you testified that you're
not aware of any statewide candidate who had ever been
invalidated because of the employer statement, that simply
means you're not aware of any candidate who's ever been
invalidated because of the employer statement rule?
A. Correct. Outside of the current protest.
Q. Outside of the current protest.
You stated that the employer statement rule is a good
deterrent of -- I'm sorry. Can you repeat what it deters?
A. To me what I think it's a deterrent for potential
election falsification or petitioning fraud because, to me, it
gives an incentive to the person paying for signatures or
organizing the effort because they know that the person
circulating the petition is going to say, you paid me to do
this petition. The incentive there is for that person to make
sure that the circulator is well-trained, understands the
rules, knows what they're supposed to do so that there isn't
any fraud in the collection of the signatures,
misrepresentation of the petition. There's also incentive for,
in that case, for the paid person, from education standpoint,
to make sure that those signatures are valid so they're doing
what they're supposed to do.
Q. Might it also deter people from circulating?
A. I don't think so.
Q• If they know that they've got to disclose whomever paid
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them. No risk that they might not circulate?
A. Not that I can think of.
Q. Let me give you a hypothetical.
A. Sure.
Q. Let's assume we've got husband and wife, father and
mother, they've got one child who is a son. He's 18 and he
sits at home and watches -- plays video games. Let's assume
the parents are of different political parties and the father
gets tired of his son watching video games, playing video games
and says to his son, I know a great candidate who's running for
office. Here's 20 bucks, go circulate for him.
Father knows that wife is going to be really mad about
that. Son knows that, too. I've got a couple of questions.
First, does the son have to disclose that the father
gave him $20 to circulate on employer statement?
A. He should.
Q. According to the secretary's stance, right?
A. According to the statute.
Q. According to your interpretation of the statute?
A. Fair enough.
Q. You think son might think twice about that, father might
think twice about that knowing mother is going to get really,
really mad?
A. Not to be flip, but I think in the current example I
think the 18 year old would probably take the 20 bucks and go
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:i. gather the signatures.
2 Q. There's a risk.
3 THE COURT: And fiaure Mom would get over it?
I BY MR. BROWN:
5 Q. But you see the point. The point being that a funding
source and a circulator might not be happy about the
disclosure?
A. I can see that point. But I guess I don't know that
that in that example, absent a whole lot of evidence, that that
would weigh against the state's interest for knowing who's
receiving compensation for putting things on the ballot to
potentially influence the direction of the state or the laws,
et cetera.
THE COURT: Mr. Brown, let me interject a question.
If memory serves, Secretary Husted made a statement
publicly at some time in the last year or so about the
incidence of fraud in elections and how it was pretty
nonexistent in the State of Ohio; is that correct?
THE WITNESS: Correct. After the 2012 election, the
Secretary of State directed boards of elections to review and
refer to us aggregate totals of voter fraud which would be a
different category than petition fraud.
THE COURT: But fraud in elections.
THE WITNESS: In the broad scheme, yes. But the
narrow in direction of the board was as it related to voter
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impersonation, voting twice, those kinds of things on election
days.
THE COURT: Thank you. Go ahead.
BY MR. BRQWivT :
Q. Just to follow up with Judge Watson's question. In an
unopposed primary, is there fraud?
A. Again, I guess the clarification would be fraud on
election day in terms of voter fraud or something else?
Q. I'm asking about in the circulation process. Unopposed,
why would there be fraud?
A. I think there's -- just because a candidate is unopposed
doesn't mean that a petitioner or a person signing the petition
may have or could commit fraud. It's entirely possible in an
unopposed primary election that I could sign my wife's sig --
my wife's name to a petition. That would be committing fraud.
Q. How often does that happen?
A. I think there are a number of instances every election
where somebody signs their spouse's name or a circulator
misrepresents the number of -- I think in all cases, not with
malintent but commits fraud in the petition process.
Q. Any fraud in the petitions filed by Charlie Earl?
A. Not that I know of.
THE COURT: Isn't there a stipulation in the record
that Mr. Hatchett's failure to obtain the signatures was not a
knowing violation or something to that?
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MR. BROWN: I believe Mr. Hatchett said that he never
filled out the employer statement because he didn't think he
had to. And he was very honest.
THE COURT: I thought there was sorne conclusi_on by
Professor Smith. I'll have to go back and look-at it again.
Go ahead. I'm sorry.
BY MR. BROWN:
Q. Do protesters have to disclose their financial sources
under Ohio law?
A. They do not.
Q. But candidates do, circulators do. Protesters don't?
A. The individual protester does not.
Q. Did the protester in this case ever come to you and
indicate who was paying him or his lawyers?
A. No.
Q. Do protesters often come to you and ask advice?
A. No.
Q. Do circulators often come to you and ask, complain, ask
advice?
A. It would not be uncommon for us to get a call from a
candidate asking questions about what petition do I use, how do
I do it? We would refer them to the candidate requirement
guide that would have that information.
Q. Do circulators?
A. Not individual circulators, generally.
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Q. I ask because you were asked a series of questions about
whether a circulator has ever come to you. They just don't.
A. Have not.
Q. You indicated that forms 14 andlor 15 would include some
of the information that's also disclosed on the employer
statement. Is that true?
A. I think in two situations. One would be if the person
employing, managing, supervising, whatever, goes towards
overcompliance and fills out a form 14 or 15 for everybody
circulating, whether or not they're supervising that effort.
The other situation would be if a person who is organizing,
managing, supervising, whatever, is also circulating at the
same time there would be overlap there.
Q. So it would be very easy to use those form 14s/15s to
cross-check against the employer statement to see if the
employer statement failed to disclose?
A. I think onlv in the context of if the entity paying
overdisclosed and listed -- sent in a. form 14 for every
individual they were paying to be on the street to gather
sLgnatures.
Q. But if they did that, the SOS would have that
information?
A. It would be on file with our office.
Q. Readily at hand?
A. It would be on file wit.h our office.
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L Q. Easily cross-check?
A. Easily cross-check, I don't know. I testified earlier
> that's not part of our duty. We just aggregate the numbers
from the boards. I think the example I would give would be the
S.B. 5 referendum from a couple years ago that filed a million
signatures with us. Even if we had an affirmative duty, which
we don't, it would be a pretty time-consuming task to do that
cross reference and sti.ll get our job done to certify by the
statute, in that case, constitutional deadline.
Q. I believe you testified that if an employer statement is
left blank, you simply presume that the circulator is unpaid?
A. Correct.
Q. What if the employer statement is partially filled out?
A. I think if my recollection serves, the Rothenberg case
talks about incomplete and we accept that as valid.
Q. I don't think Rothenberg said that. We can argue about
that.
A. Again, not a lawyer.
Q. A lot of people don't think I am either.
But your position at the Secretary of State's Office is
if you have an employer statement that is partially filled out,
you're not going to touch it. You're not going to invalidate
that part petition?
A. That's cor.rect.
Q. Even though omitting the address, putting the employer's
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name and omitting the address is a violation of 3501.38(E)?
A. Again, as part of our process, we don't review those.
Q. As a strict compliance matter that an employer statement
is incorrect and should result in the invalidation of an entire
part petition?
A. If brought forward in the context of a protest of the
candidacy or court proceeding.
Q. But only a protest?
A. Correct.
Q. It has to be a protest.
Are you familiar with the Evans case?
A. Only in the context of hearing about it in this protest.
Q. Really, you didn't hear about that before?
A. Well, I remember the issue. I think it was 2006 at a
Board of Elections level we had checked the signatures, sent
them back to the state and we were held up printing ballots
because we didn't know whether the issue was on or off. I
think that's what the Evans case resulted operationally at the
Board of Elections level.
Q. The Secretary of State's Office was wrong in that case;
is that correct?
MR. COGLIANESE: Objection.
THE WITNESS: I don't remember. I don't know enough
about the Evans case.
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BY MR. BROWN:
Q. Your primary responsibility, or one of them, is
candidate qualzficati.on. And you don't know about the Evans
case?
A. I think our primary duty is to aggregate the results
from the boards of elections and certify the candidate or issue
to the ballot.
Q. But then the Secretary of State also enforces protest?
A. We do.
Q. And is it safe to say that the Secretary of State is
just ignoring the Evans case?
MR. COGLIANESE: Objection.
THE COURT: I'm going to sustain tE-hat.
BY MR. BROWN:
Q. The Secretary of State draws no distinction between
independent contractors and employees in terms of the employer
statement rule?
A. We do not.
Q. Even though the Court of Appeals in the Evans case said
there is a distinction?
MR. COGLIANESE: Objection.
MR. ZEIGER: Your Honor, please note also that that is
not a fair representation of the decision. In that decision,
the Tenth District Court of Appeals held that independent
contractors still had to complete the employer box.
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THE COURT: Well, and isn't the issue that the
information sought is who the payor is, correct? Maybe the
language of the little box shouldn't say who the employer is,
it ought to say who's the payor.
MR. BROWN: I agree, Your Honor. That's exactly
right. It doesn't say that, does it?
BY MR. BROWN:
Q. It does not say payor, does it, the employer statement
box?
A. It does not.
Q. You testified that, to your knowledge, there has been no
harassment of circulators because they have filled in the
employer statement?
A. Correct.
Q. Are you familiar with the facts of this case? Have you
read the record before Hearing Officer Smith?
A. I was there for part of the hearing, yes.
Q. How long were you there?
A. Most of the morning and part of the afternoon.
Q. So you saw what happened there?
A. What particular part?
Q. You saw the protesters arguing with Strategy Network
lawyers or I should say protester's lawyers arguing with
Strategy Network lawyers over who was funding the circulators.
Did you not see that?
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A. I saw an adversarial exchange between counsel for the
protesters and a witness.
Q. Very adversarial. What were they arguing about?
A. If I remember, part of it was -- I was only there for a
part of the end of Ian l7ames' testimony. I think it was
whether or not his individuals received compensation to
circulate.
Q. Do you think Ian James felt harassed?
MR. COGLIANESE: Objection.
THE COURT: I would sustain on relevance.
BY MR. BROWN:
Q. Did any of the circulators invoke privilege, do you
remember?
MR. COGLIANESE: Objection.
THE COURT: I've read the record.
MR. BROWN: No further questions, Your Honor.
THE COURT: Thank you, Mr. Brown.
MR. COGLIANESE: Your Honor, may I just do a couple of
quick follow-ups since I was doing my direct?
THE COURT: Why certainly.
MR. COGLIANESE: It's not going to be more than two
minutes, I promise.
THE COURT: Go right ahead. Famous last words.
MR. COGLIANESE: I already saw Mr. Mayton check his
clock.
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REDIRECT EXAMINATION
BY MR. COGLIANESE:
Q. Mr. Damschroder, Mr. Brown asked you a question about an
18 year old whose father and mother are of different political
parties and so the father says, here's 20 bucks, go circulate
for this candidate.
A. Yes.
Q. Let's assume that same fact scenario. Instead of saying
here's 20 bucks, go circulate for this candidate, father says,
here's petition, go circulate for this candidate in X party
primary. Is that circulator still going to have to identify
who he or she is?
A. If there wasn't compensation, no.
Q. Is the circulator going to have to sign a circulator
statement?
A. Yes.
Q. What's the circulator statement provide?
A. That I, Matt Damschroder, witnessed X number of
signatures and my signature and my address.
Q. So the child is still going to go ahead and identify
himself as a circulator of petition that the other parent -- of
a candidate for a party that the other parent doesn't like. Is
that fair?
A. If he wants the petition to count, yes.
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Q. When you were in Franklin County, did Franklin County
have any candidate protests while you were there?
A. Yes. Not for statewide candidates of course, but yes.
Q. Local candidates?
A. Uh-huh.
Q. How many protests did Franklin County hear during the
time you were there?
A. I don't know for sure, but dozens I would think.
Q. And were some of those brought in by candidates who
filed to run in various party primaries?
A. Yes.
Q. And, lastly, Mr. Brown was asking you about the Ian
James testimony at the protest hearing. I'd like to talk to
you a little bit about your understanding of Mr. James'
business model and business practices.
As a matter of course, does Mr. James fill form 14/form
15 out to identify all circulators that he pays?
A. He often does that, yes.
MR. COGLIANESE: Nothing further, Your Honor. I might
have been over two minutes but I think I was under three.
THE COURT: Are we finished with Mr. Damschroder?
MR. ZEIGER: Your Honor, when the lights go out, I get
the message. I have no further questions of Mr. Damschroder.
THE COURT: Mr. Brown?
MR. BROWN: No further questions, Your Honor.
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L THE COURT: You're done with him, aren't you?
'• MR. COGLIANESE : Yes, Your Honor.
THE COURT: Ms. Coontz, are you finished with him?
MS. COONTZ: Absolutely, Your Honor.
THE COURT: Thank you, Mr. Damschroder. You are
excused, sir.
Why don't we make it 10:00 in the morning and if you
want to file anything in the meantime on whether or not the
Court should inquire as to the funding of the payor or not the
payor, the protester, I'd be willing to consider that. All
right?
So, ten o'clock in the morning. Thank you all very
much.
(The proceedings were adjourned at 5:42 p.m.)
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C E R T I F I C A T E
I, Lahana DuFour, do hereby certify that the foregoing
is a true and correct transcript of the proceedings before the
Honorable Michael H. Watson, Judge, in the United States
District Court, Southern District of Ohio, Eastern Division, on
the date indicated, reported by me in shorthand and transcribed
by me or under my supervision.
s/Lahana DuFour
Lahana DuFour, RMR, CRR
Official Federal Court Reporter