Ohio law protects the integrity of the canvass and certification processes through several provisions. First, there are relatively harsh criminal penalties in place for violations of election laws, which would include violations of canvassing and certification laws by election officials. Ohio Rev. Code. Ann. §§ 3599.16, 3599.17, 3599.32, 3599.39. In addition, state law allows a person to file a request for the court to issue a writ of mandamus to command the performance of a legally required duty by a public official. Ohio Rev. Code. Ann. § 2731.01.
Ohio law makes it a crime for a member, director, or employee of a Board of Elections to willfully or negligently violate or neglect to perform any duty imposed by law. Ohio Rev. Code. Ann. § 3599.16. In addition, members, directors, and employees of a Board of Elections are prohibited from willfully and knowingly or unlawfully violating or seeking to prevent the enforcement of any provisions of election laws. Ohio Rev. Code. Ann. § 3599.16. A violation of either provision is a felony offense and results in the dismissal of the person from the Board of Elections. Ohio Rev. Code. Ann. § 3599.16. In addition, Precinct Election Officials are guilty of misdemeanor offenses if they fail to perform any duty imposed by law. Ohio Rev. Code. Ann. §§ 3599.17, 3599.32.
In addition, a person convicted for a violation of an election law for a second time, whether the conviction is for the same offense as the first or not, is guilty of a felony and is disenfranchised. Ohio Rev. Code. Ann. § 3599.39.
Under Ohio law, mandamus is a writ “commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station.” [1] Ohio Rev. Code. Ann. § 2731.01. The court issues the writ in the name of the state and directs it to a lower court, corporation, board, or person. Ohio Rev. Code. Ann. § 2731.01. A writ of mandamus is only used when there is no “plain and adequate remedy in the ordinary course of the law” (i.e., a request for a recount or election contest is not available). Ohio Rev. Code. Ann. § 2731.05. A person may request a writ of mandamus by petition, which must be verified by affidavit. Ohio Rev. Code. Ann. § 2731.04. The request can be made to the Supreme Court, the Court of Appeals, or the Court of Common Pleas. Ohio Rev. Code. Ann. § 2731.02.
When the right to mandamus is “clear and it is apparent that no valid excuse can be given for not doing it,” the court may allow a peremptory mandamus commanding action immediately. Ohio Rev. Code. Ann. § 2731.06. Otherwise, the court may issue an alternative writ allowing the defendant an opportunity to provide an answer. Ohio Rev. Code. Ann. §§ 2731.06, 2731.09. If the court finds the public officer, body, or board refused or neglected to perform the duty commanded by a peremptory mandamus without just cause, the court may impose a fine of up to $500. Ohio Rev. Code. Ann. § 2731.13.
Ohio law on the writ of mandamus does not specify its application to the neglect of legally required election-related duties. However, writs of mandamus have been issued in election-related matters on numerous occasions. See *e.g., State ex rel. Feighan v. Green,* 171 Ohio St. 263, 169 N.E.2d 551, 1960 Ohio LEXIS 520, 13 Ohio Op. 2d 137 (Supreme Court of Ohio September 16, 1960, Decided) (noting that the Board of Elections’ issuance of a certification of nomination or election after the expiration of the time during which a recount may be requested is a ministerial duty which may be compelled by mandamus); *State ex rel. Conrath v. Larose,* 170 Ohio St. 3d 222, 2022-Ohio-3594, 210 N.E.3d 504, 2022 Ohio LEXIS 2047 (Supreme Court of Ohio October 11, 2022, Decided) (holding that the petitioner had a right to a writ of mandamus ordering the defendants, the Secretary of State and Board of Elections, to carry out their duty to place her name on the ballot).
If an election official fails to comply with state election law, the Secretary of State is required to step in and compel compliance. Ohio Rev. Code. Ann. § 3501.05(M). This would include a case where an election official refuses to follow state law requiring certification of the county’s election results.