The Supreme Court ruled a new trial is required to determine whether a board of elections private discussion to purchase voting machines was legal.

The Supreme Court ruled a new trial is required to determine whether a board of elections private discussion to purchase voting machines was legal.

The Supreme Court of Ohio ordered a new trial today to determine whether the Stark County Board of Elections violated state open meetings laws when it discussed purchasing new voting machine equipment in private.

In a unanimous opinion, the Supreme Court rejected the lower court interpretations that the Ohio Open Meetings Act allows closed-door executive sessions to discuss any purchase of public property. The Court found that the law limits closed-door sessions for property purchases to when “premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public.”

Writing for the Court, Chief Justice Sharon L. Kennedy explained that R.C. 121.22(G)(2) contains three property-related reasons a public body can meet in private, followed by a comma, and then the clause regarding premature disclosure of information.

The Fifth District Court of Appeals ruled that the law’s first reason — the purchase of public property —  is not modified by the clause regarding premature disclosure of information. Based on the decision, the board of elections in 2020 and 2021 was permitted to discuss the purchase of Dominion Voting Systems equipment in executive session. The Supreme Court reversed the Fifth District’s decision.

“We apply the ordinary rules of grammar — specifically, the rules of punctuation — to determine the plain meaning of R.C. 121.22(G)(2). In doing so, we conclude that the premature-disclosure clause applies to all the permissible reasons listed in the provision for entering executive session,” Chief Justice Kennedy wrote.

Today’s opinion stated that the ruling does not impact Stark County’s ultimate purchase of Dominion voting equipment. That matter was settled by another Supreme Court case, in which the Court ordered the county to purchase the equipment.

Board Seeks Equipment Replacement
In 2018, the Stark County Board of Elections began looking for new voting equipment for its elections. In December 2020, the board announced it was going into executive session to discuss buying voting equipment. Following the closed-door session, the board resumed the public meeting and voted to follow a staff recommendation to purchase Dominion equipment. The board then sent its decision to the Stark County Board of Commissioners so that the commissioners could buy the equipment.

The commissioners did not immediately adopt the board’s decision. The board of elections conducted monthly meetings in January, February, and March 2021, and each time, it met in executive session to discuss the purchase of voting equipment. Following each session, the board resumed its public meeting and reaffirmed its selection of Dominion equipment. When the commissioners refused to make the purchase, the board filed a lawsuit with the Supreme Court, which in May 2021 ordered the commissioners to buy the equipment.

As the lawsuit was pending, a nonprofit organization, Look Ahead America, and Stark County resident Merry Lynne Rini filed a lawsuit in Stark County, claiming that the board violated the Open Meetings Act, R.C. 121.22, by meeting in private to discuss the Dominion equipment purchase.

Trial Court Considered Executive Session Rules
R.C. 121.22 states that all meetings of a public body are open to the public at all times. The law has exceptions that allow for private discussions. R.C. 121.22(G)(2) permits executive sessions “to consider the purchase of property for public purposes, the sale of property at competitive bidding, or the sale or other disposition of unneeded, obsolete, or unfit-for-use property in accordance with R.C. 505.10, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.”

Look Ahead argued that the board of elections could not go into executive session to discuss the Dominion equipment unless the board specified how premature disclosure of the information would affect the purchase. The trial court interpreted R.C. 121.22(G)(2) using a rule of grammar known as the “last antecedent rule.” The trial court found that the premature disclosure clause applied to only the last of the three reasons, which involved the sale or disposal of unneeded property.

The trial court found that the board could go into executive session to discuss the voting machines and dismissed the lawsuit. Look Ahead appealed to the Fifth District Court of Appeals, but the appellate court affirmed the trial court’s decision. The group appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Executive Session Rule
Chief Justice Kennedy explained that the Fifth District and the Supreme Court agreed that R.C. 121.22(G)(2) is unambiguous but came to different conclusions about its meaning. The Court noted that courts use the last antecedent rule to interpret laws, but it was not the correct rule to assess this statute.

The antecedents in the law are the three separate provisions of purchasing property, selling property, and selling or disposal of unwanted property, the opinion stated. The “last antecedent rule” does not apply when commas separate all the provisions, as they do in R.C. 121.22(G)(2). The premature disclosure clause “applies to the entire list of permissible reasons for entering executive session,” the opinion stated.

Because the premature disclosure clause applies to purchasing property for public purposes, the trial court must conduct a new trial and apply the Court’s interpretation of the law.

2023-1059. Look Ahead Am. v. Stark Cty. Bd. of Elections, Slip Opinion No. 2024-Ohio-2691.

View oral argument video of this case.

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