fA

IN THE SUPREtVIR COURT OF

STATE ex rel. LETOHIOVO'I'E.ORG, et al., Case No. 2010-0367 Relators, vs. Original Action in Prohibition JENNIFER BRUNNER, OI-IIO SECRETARY OF STATE,

Respondent.

STATE ex. rel. NEW MODELS, et al.,

Relators, Case No. 2010-0415 vs. Original Action in Prohibition JENNIFER BRLJNNER, ,

Respondent.

STATE ex. ret. NORMAN B. CUMMINGS, et ^--- --___ al., Case No. 2010-0421 Relator, vs. Original Action in Prohibition

JENNIFER BRUNNER, OHIO SECRETARY OF STATE,

Respondent. MERI'I'S B EF OF RELATORS NEW MODELS AND TIMOTHY CRAWFORD FOR WRIT OF PROHIBITION

David R. Langdon (0067046) (0038034) Counsel qfRecord Thomas W. Kidd, Jr. (0066359) Richard N. Coglianese (0066830) Bradley M. Peppo (0083847) Counsel of Reeord LANGDON LAW LLC Pearl M. Chin (0078810) 11175 Reading Rd., Ste. 104 Erick D. Gale (0075723) , Ohio 45241 Assistant Attorneys General (513)577-7380 Constitutional Offices Section (513) 577-7383 fax 30 East Broad Street, 16th Floor [email protected] Columbus, Ohio 43215 [email protected]^n (614) 466-2872 bpej2pou langdonlaw.coni (614) 728-7592 fax richard.coalianese@ohioatY^^ Attorneys forRelators LetOhioVote.org, pearl.chin@ohio-,tttoi-neygeneral.gov Ttcontas E. Brinkman, Jr., Gene Pierce, erick.Qale@ohioattorneygeneral. ,.ovv and Carlo LoParo Attorneys for Respondent Ohio Secretary of State Jennifer Brunner

John H. Burtch (0025815) Brian J. Laliberte (0071125) Counsel of Record Counsel of Record Rodger L. Eckelbetry (0071207) David F. Axelrod (0024023) Robert J. Tucker (0082205) Axelrod, LLC Baker & Hostetler, LLP 250 Civic Center Drive, Suite 500 65 East State Street, Suite 2100 Columbus, Ohio 43215 Columbus, Ohio 43215 (614) 284-7171 (614) 228-1541 (614) 448-4554 (614) 462-2616 fax [email protected] [email protected] reckelberry@baker]a,A,.com Attot-neys for Relator Nonnan B. Ctcmmings [email protected]

Attorne_ys, for Relators New Models and Tiniothy Crarvford TABLE OF CONTENTS

Paee

TABLE OF AUTIIORITIES ...... ii

1. INTRODUCTION ...... 1

II. FACTUAL BACKGROUND...... I

111. LAW AND ARGUIvIENT...... 3

A. Standard for a Writ of Prohibition ...... 3

B. Secretary Brunner Has Exercised Judicial Or Quasi- Judicial Power ...... 4

C. Secretary Brunner Is Not Authorized By Law To Issue These Subpoenas ...... 5

1. Secretary Brunner Is Without Authority To Issue Subpoenas In Connection With An Investigation Of Alleged Violations Of Ohio Campaign Finance Laws ...... 5

2. Secretary Brunner Improperly Served The Subpoenas On Relators Outside Of Ohio...... 9

D. A Writ Of Prohibition Is The Proper Remedy To Prevent Secretary Brunner From Exercising Unauthorized Quasi- Judicial Power ...... 10

IV. CONCLUSION ...... 11

CERTIFICATE OF SERVICE ...... 13 TABLE OF AUTHORITIES

Cases: Page

In the Matter of Hale, 7th Dist. No. 01-BA-21, 2002-Ohio-1153 ...... 9

McFarland v. Slattery (January 13, 1983), 8th Dist. No. 44424, 1983 Ohio App. LF.,XIS 12925 ...... 9

Ohio Bell Tel. Co. v. Ferguson (1980), 61 Ohio St.2d 74 ...... 5

State ex rel. DeBrosse v. Cool, 87 Ohio St.3d I ...... 10

State ex rel. Haylett v. Ohio Bureau of Workers' Conip. ( 1999), 87 Ohio St.3d 325 ...... 4

State ex ret. Hunter v. Summit County Human Resource Comm'n (1998), 81 Ohio St.3d 450 ...... 4

State ex rel. Lomaz v. Court of'Common Pleas (1988), 36 Ohio St.3d 209 ...... 4

State ex rel. Ministerial Day Care Assoc. v. Montgomery (2003), 100 Ohio St.3d 343 ...... 5

State ex rel. Ohio Denaoc•ratie Party v. Blackwell (2006), 111 Ohio St.3d 246 ...... 5,6

Statntes•

R.C. 3501.05 ...... 5, 6, 8, 9

R.C. 3517.11 ...... 5, 6, 7, 9

R.C. 3517.13 ...... 6,7

R.C. 3517.151 ...... 6

R.C. 3517.152 ...... 8

R.C. 3517.153 ...... 6, 8, 9

R.C. 3599.37 ...... 2

Other:

Secretary of State ADVISORY NO. 2007-16 ...... 7 I. INTRODUCTION

On March 5, 2010, Relators New Models ("New Models") and Timothy Crawford ("Mr.

Crawford") (eollectively "Relators") filed a Complaint for Writ of Prohibition against

Respondent Ohio Secretary of State 7etinifer Brunner ("Secretary Brunner") directing her to

"cease and desist from attempting to enforce subpoenas, from threatening criminal prosecution for noncompliance with the subpoenas, or from attempting to compel Relators to appear and testify or to produce documents[]" Tn her pursuit of an unlawful investigation of whether

LetOhioVote.org ("Let Ohio Vote"), a ballot issue comsnittee, violated Ohio's campaign finance reporting laws, Secretary Brunner issucd subpoenas to Relators, attempting to compel them under threat of criminal prosecution to appear in Ohio to testify at a deposition and to produce documents. Secretary Brunner issued the subpoenas in furtherance of an investigation which she patently and unambiguously lacks the authority to conduct, an authority given exclusively to the

Ohio Elections Commission. Therefore, Secretary Brunner has no authority to issue the subpoenas. Moreover, the subpoenas are facially invalid because Secretary Brwmer improperly served the subpoenas on Relators outside the state of Ohio. For these reasons, and as discussed more fully below, Relators are entitled to a writ of prohibition ordering Secretaiy Brunner to cease and desist from the unlawful exercise of quasi-judicial power over Relators.

II. FACTUALBACKGROUND

Let Ohio Vote, a ballot issue committee and its members, have filed a RePerendum

Petition with the Ohio Secretary of State seeking to refer legislation concerning "video lottery terminals" to the voters of Ohio for their approval or rejection at the next general election. New

Models is the sole contributor to Let Ohio Vote. (Aff. of Mayhew at 9[ 9, attached as Exhibit 2 to

SOS's Filing of Evidence). Mr. Crawford is the president of New Models.

On Febrvary 17, 2010, Secretary Brunner issued a press release announcing that she opened a"campaign-finance investigation regarding Let Ohio Vote." (Compl. at'1[ 6; Ex. 2). In that press release, Secretary Brunner stated that as the chief elections officer, she "is responsible for oversecing campaign finance filings for statewide ballot issues." (Id. at 9[ 7a; Ex. 2). She further stated that she "issued subpoenas to LetOhioVote.org and New Models, a Glen-Allen,

Va.-based corporation, and others reported to be connected to the coinpany to submit to depositions and to produce certain records in connection with the investigation." (Id. at'J[ 7e; Ex.

2).

On February 16, 2010, Secretary Brunner's office issued two subpoenas to New Models and Timothy Crawford. (New Models Dep. at Ex. A; Crawford Dep. at Ex. E). The subpoena directed at New Models was served on CT Corporation, New Models' statutory agent in

Virginia, on February 18, 2010. (New Models Dep. at Ex. B). The subpoena directed at Mr.

Crawford was served on him personally at his residence in Virginia on February 19, 2010.

(Crawford Dep. at Ex. F). The purpose of the subpoenas was to "determine whether

LetOhioVote.org's campaign finance statement was complete and accurate and in compliance with Ohio campaign finance law." (Shinn Aff. at y[ 5, attached as Exhibit 3 to SOS's Filing of

Evidence).

The subpoenas commanded Relators to appear before Secretary Brunner in Ohio on

March 5, 2010 to testify as witnesses, and to produce an overbroad mountain of various documents. (New Models Dep. at Ex. A; Crawford Dep. at Ex. E). The subpoenas threaten

Relators with criminal punishment under R.C. 3599.37 if they fail to appear, refuse to testify, or refuse to produce the requested documents. (Id.). On March 4, 2010, counsel for Relators sent a letter to Brian Shinn, Assistant General Counsel and Chief Elections Counsel for Secretary

Brunner, objecting to the subpoenas on nuinerous grounds including that Secretary Brunner does

2 not have authority to issue the subpoenas and that the subpoenas were improperly served. (New

Models Dep. at Ex. C). Mr. Shinn responded the same day indicating that Secretary Brunner

"intends to proceed with the depositions on March 5, 2010." (New Models Dep. at Ex. D).

Based upon Secretary Brunner's intention on proceediug with the depositions despite

Relators' objections, on March 5, 2010, Relators filed this original action seeking a writ of prohibition directing Secretary Brunner "to cease and desist from atteinpting to enforce the invalid subpoenas, from threatening criminal prosecution for noncompliance with the subpoenas, or from attempting to compel Relators to appear and testify at a deposition or to produce documents." (Comp]. at Request for Relief § B). Relatots also requested an alternative writ

"staying the enforcement of the invalid subpoenas and staying the depositions and document production scheduled for March 5, 2010, until this Couit renders a final decision on Relators'

Complaint." (Id. at § C). This Court issued the alteniative writ on March 5, 2010. (See Com-t's

3/5/2010 Order).

The sole issue before this Court is whether Secretary Brunner had the authority to issue and serve the subpoenas in question. Because Secretary Brunner does not have the substantive authority to issue subpoenas related to an investigation of violations of the Oh o campaign finance statutes slie believes were violated, and because Secretary Brunner does not have authority to issue subpoenas outside the State of Ohio, Relators' peremptory writ should be granted.

Ill. LAW AND ARGUMEN'1'

A. Standard for a Writ of Prohibition.

For a writ of prohibition to issue, the relator must prove "`(1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying a writ will result in injury for

3 which no other adequate remedy exists in the ordinary course of law."' State ex rel. Haylelt v.

Ohio Bureau of Workers' Comp. (1999), 87 Ohio St.3d 325, 334, 1999-Ohio-134, 720 N.E.2d

901 (quoting State ex rel. Kenttan v. Calabrese (1994), 69 Ohio St.3d 176, 178, 631 N.E.2d 119;

State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 465, 605 N.E.2d 31. But, when an officer is patently and unambiguously without authority, a relator is not required to demonstrate the lack of an adequate remedy of law. See State ex rel. Hunter v. Summit County

Human Resource Comm'n (1998), 81 Ohio St.3d 450,452 1998-Ohio-614, 692 NE.2d 185.

Additionally, the court issuing the writ of prohibition is empowered not only to command the cessation of future exercise of quasi-judicial power by the officer, but also is empowered to undo the previous unlawful action committed by the officer in contravention of the jurisdictional restraints it disregarded. See State ex rel. Lomaz v. Court of Contmon Pleas (1988), 36 Ohio

St.3d 209, 212, 522 N.E.2d 551 (court issuing writ of prohibition has plenary power to correct results of unlawful exercise of unauthorized power and to restore parties to the same position they occupied prior to the exercise of that power). This Court should issue a peremptory writ ordering Secretary Brunner to cease and desist from attempting to enforce the subpoenas, from threatening criminal prosecution for noncompliance with the subpoenas, or from attempting to compel Relators to appear in Ohio at any time in the future to testify and produce documents related to an alleged violation of Ohio campaign finance laws.

B. Secretary Brunner Has Exercised Judicial Or Quasi-,ludicial Power.

By issuing the subpoenas to Relators and commanding them to appear before her in Ohio to testify and produce documents related to alleged violations of Ohio's campaign finance reporting statutes, Secretary Brunner has exercised quasi-judicial power over Relators (under threat of criminal prosecution for noncompliance). The issuance of a subpoena is an inherently

4 judicial act, and thus, the issuance of a subpoena by Secretary Brunner is a quasi-judicial act. See

Olaio Bell Tel. Co. v. Ferguson (1980), 61 Ohio St.2d 74, 77, 399 N.E.2d 1206 (issuance of subpoena by state auditor is exercise of quasi-judicial power); see also State ex. ret Ministerial

Day Care Assoc. v. Montgornery, 100 Ohio St.3d 343, 346, 2003-Ohio-6446, 800 N.E.2d 18.

Beeause Secretary Brunner is acting under a quasi-judicial authority, the first prong for obtaining a writ of prohibition is satisfied.

C. Secretary Brunner Is Not Authorized By Law To Issue These Subpoenas.

1. Secretary Brunner Is Without Authority To Issue Subpoenas In Connection With An Investigation Of Alleged Violations Of Ohio Campaign Finance Laws.

In State ex rel. v. Blackwell, this Court held that the Ohio

Elections Commission has exclusive jurisdiction to investigate and adjudicate alleged violations of certain campaign finance statutes. 111 Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d 1188, at

11[16. Because the subpoenas issued by Secretary Brunner were admittedly issued in furtherance of Secretary Brunner's efforts to prove violations of these very statutes, Secretary Brunner has no authority to issue the subpoenas, no authority to coimnand Relators to appear and testify at a deposition or to produce documents, and no authoiity to take any action to enforce the subpoenas. The only authority Secretary Brunner has in this instance is to comply with her statutory duties under R.C. 3501.05(N)(2) and R.C. 3517.11, as discussed below.

Secretary Brunner's general authority to investigate clection irregularities is set forth in

R.C. 3501.05(N)(1), which provides:

Except as otherwise provided in division (N)(2) of this section, [the Secretary shall] investigate the administration of election laws, frauds, and irregularities in elections in any county, and report violations of election laws to the attorney general or prosecuting attorney, or both, for prosecution.

Division (N)(2) expressly excludes from Secretary Brunner's investigative authority violations of

5 the campaign finance reporting statutes. Rather, it requires Secretary Brunner to

report a failure to comply with or a violation of a provision in sections 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20 to 3517.22, 3599.03, or 3599.031 of the Revised Code, whenever the secretary of state has or should have knowledge of a failure to comply with or a violation of a provision in one of ttiose sections, by filing a complaint with the Ohio elections commission under section 3517.153 of the Revised Code.

Id. Among the statutes listed in section (N)(2) is the concealment statute which Secretary

Brunner has suggested Let Ohio Vote and Relators have violated. See R.C. 3517.13(G)(1).'

Instead of investigating violations of such statutes, whenever Secretary Brunner "has or should have knowledge of a failure to comply" with one of the specified campaign finance statutes in Chapter 3517, she is required under division (N)(2) to file a complaint with the Ohio

Elections Coinmission. Under sections 3517.151(A) and 3517.153(A) of the Revised Code, the

Ohio Elections Commission has "exclusive jurisdiction" to investigate and adjudicate alleged violations of the campaign finance laws. See Ohio Dernocratie Party, 2006-Ohio-5202, at 116

("Had the General Assembly intended to authorize other tribunals or courts to exercise the initial jur9sdietion to consider `acts or failures to act under' the specified sections of R.C. Chapter 3517, it would have so provided, but it did not. Instead, the General Assembly employed broad, sweeping language to confer the exclusive initial jurisdiction to consider these alleged violations on the Ohio Elections Commission.").

By contrast, Secretary Brunner's duties with respect to alleged violations of these sections are set forth in detail in Section 3517.11 of the Revise Code. These duties are limited to:

• examining filed statements for compliance (R.C. 3517.11(B)(4)(a)); i R.C. 3517.13(G)(l) states: "No person shall knowingly conceal or misrepresent contributions given or received, expenditures made, or any other information required to be reported by a provision in sections 3517.08 to 3517.13 and 3517.17 of the Revised Code."

6 • notifying a filer of an incomplete or inaccurate statement and determining if an addendum or amendment should be filed (R.C. 3517.11(B)(3)(a)); and

• reporting any violations of these sections to the Ohio Elections Commission (R.C. 3517.11 (C)(1)).

The later action, Secretary Brunner is required to take "promptly" if a filed statement or addendum "appears to disclose a failure to comply with or a violation of law." Id. The duty to report promptly even the appearance of noncompliance is incompatible with the notion that

Secretary Brunner could undertake her own independent investigation to prove a violation of the campaign finance reporting statutes. In other words, not only is such an effort not included among Secretary Brunner's statutory duties, it is foreclosed by those duties.

Secretary Brunner's own publications and actions evidence that she does not have the authority to issue the subpoenas to Relators. On November 16, 2007, Secretary Brunner issued

ADVISORY NO. 2007-16. (See documents produced by SOS in response to Let Ohio Vote's

Request for Production of Documents at AG-382, selections attached as Exhibit B to Let Ohio

Vote's Filing of Evidence). In ADVISORY NO. 2007-16, Secretary Brunner states "R.C.

3501.05(N) re uires the Secretary of State to report any violation of R.C. 3517.08 through R.C.

3517.13 to the Ohio Elections Commission" and "[t]herefore, all violations of R.C. 3517.08 through R.C. 3517.13 ... will be refen-ed to the Ohio Elections Commission." (Id. at AG-385)

(underline emphasis added). ADVISORY NO. 2007-16 states that Secretary Brunner is required to report any violation to the Ohio Elections Commission, but nothing in ADVISORY NO. 2007-

16 states that Secretary Brunner shall issue subpoenas or conduct any discovery related to an alleged violation prior to reporting it to the Elections Commission.

In addition, since January 2007, Secretary Brunner has filed approximately 764 complaints with the Ohio Elections Commission. However, she has not issued a single subpoena

7 other than the ones at issue in this action related to those complaints. (See SOS's Responses to

Let Ohio Vote's Request for Production of Documents at 5, attached as Exhibit B to Let Ohio

Vote's Filing of Evidence). That Secretary Brunner has not issued any subpoenas related to hundreds of complaints she has filed in the Ohio Elections Cominission is undeniable evidence that Secretary Brunner need not engage in any discovery prior to filing a complaint with the Ohio

Elections Commission.

Moreover, the statutory scheme as a whole supports a determination that the Ohio

Elections Commission has exclusive authority to investigate violations of the statutes within its

exclusive jurisdiction. The membership of the Commission is, by statutory design, bipartisan,

with three members who are Democrats, three members who are Republicans, and one member

who is an independent. See R.C. 3517.152(A). Indeed, the overarching intent at the time that the

Commission was established was to create a bipartisan body to consicler allegations of campaign

misconduct and to avoid investigations that individual state officials might be tempted to

undertake 1'or more political reasons.

Finally, Secretary Brunner has not been provided the power to enforce any subpoena she

might issue to investigate a violation of Oliio campaign finance statutes. While R.C. 3501.05

provides her the right to "issue subpoenas," it does not provide her any right to enforce the

subpoenas. The Ohio Legislature could have provided her such a right, but did not. For

example, the Legislature provided the Ohio Elections Commission the right to apply to the Court

of Common Pleas of Franklin County upon the relusal of any person to obey a subpoena. R.C.

3517.153. That the Legislature did not provide Secretary Brunner with a similar enforcement

power further indicates her lack of authority to issues these subpoenas.

The subpoenas issued by Secretary Brunner are based upon an investigative authority that

8 she does not possess, but rather, an authority that has been given exclusively to the bipartisan

Ohio Elections Commission. If it appears to Secretary Brunner that Let Ohio Vote's statement discloses a violation of law, her duty is limited to promptly filing a complaint with the Ohio

Elections Commission. See R.C. 3501.05(N)(2); R.C. 3517.11. She simply has no authority to initiate an investigation and issue subpoenas to Relators. By issuing the subpoenas (and threatening eriminal penalty for noncompliance), Secretary Brunner has exceeded her lawful authority.

2. Secretary Brunner Improperly Served The Subpoenas On Relators Outside mE' Ohio.

The subpoenas issued to Relators are also defective because they exceed the scope of the subpoena powers of the Secretary of State. Secretary Brunner, like any Ohio court, lacks the power to serve a subpoena outside the state of Ohio. The subpoena power of an Ohio court does not reach out-of-state witnesses. See McFarland v. Slattery (January 13, 1983), 8th Dist. No.

44434, 1983 Ohio App. LEXIS 12925, at *5 (the subpoena of the Ohio court did not reach out- of-state witnesses); see also In the Matter of Hale, 7th Dist. No. 01-BA-21, 2002-Ohio-1153, at

*8 ("Any witnesses that Phillip wished to call ... were beyond the subpoena power of the court as they lived in either New Mexico or West Virginia").

Even if Secretary Brunner has the substantive authority to issue these subpoenas, which she does not, her authority would not be any greater than that granted to the Ohio Elections

Commission. The Ohio Legislature expressly provided that the Ohio Elections Commission may only issue subpoenas "to any person in the state compelling the attendance of witnesses and the production of relevant papers, books, accounts, and reports." R.C. 3517.153. If the Ohio

Elections Commission only has subpoena power over persons in the state of Ohio, Secretary

Brunner should have the same limitation.

9 There is no dispute that Secretary Brunner served these subpoenas on Relators in

Virginia. (New Models Dep. at Ex. A; Crawford Dep. at Ex. E). Ohio law unequivocally states that Ohio courts and the Ohio Elections Commission do not have subpoena power over witnesses outside the state of Ohio. If Ohio courts and the Elections Commission do not have such subpoena power, Secretary Brunner acting in a quasi judicial capacity does not have such power either. Thus, aside from the fact that Secretary Brunner does not have the substantive authority to issue the subpoenas, the subpoenas were also improperly issued to, and served on, Relators outside of Ohio and are therefore facially invalid. 2

D. A Writ Of Prohibition Is The Proper Remedy To Prevent Secretary Brunner N3rorn Exercising Unauthorized Quasi-judicial Power.

Relators ask this Court to prohibit Secretary Brunner's unauthorized exercise of quasi- judicial power. As the has recited in evaluating its course of action in the context of evaluating a petition for extraordinary writ:

Under S. Ct.Prac.R. X(5), dismissal is appropriate if it appears beyond doubt, after presuming the truth of all material factual allegations and making all reasonable inferences in favor of relator, that relator is not entitled to the requested extraordinary relief. If, on the other hand, the complaint may have merit, an alternative writ should issue. Finally, if it appears beyond doubt that relator is entitled to the requested extraordinary relief, a peremptory writ should issue.

(internal citations omitted) State ex rel. DeBrosse v. Cool, 87 Ohio St.3d 1, 6, 1999-Ohio-239,

716 N.E.2d It14.

2 While the subpoenas are facially invalid, they were also not served in accordance with the procedural provisions of Rule 45. The subpoenas were not served with the fee for witnesses residing outside the eounty, they fail to allow a reasonable time to comply, they are overly broad and unduly burdensome in that they require the production of documents that could not conceivably be related to an investigation of Let Ohio Vote, and they seek disclosure of privileged or othetwise protected matter, including confidential privacy inforniation of individuals.

10 It is beyond doubt that Relators are entitled to the extraordinary relief requested. As a matter of law, Secretary Bninner does not have authority to investigate violations of Ohio campaign finance reporting statutes. Secretary Brunner has admitted that the subpoenas she issued to Relators are for that exact purpose. (See Shinn Aff. at 15, attached as Exhibit 3 to SOS

Filing of Evidence). A peremptory writ is necessary to protect Relators from having to appear in Ohio to provide testimony and produce documents to an individual who is not charged with investigating Relators. If this Court docs not issue a peremptory wi7t, Relators will be forced to either unwillingly sabmit to the depositions and produce documents, even though Secretary

Brunner lacks the authority to issue such subpoenas, or risk Secretary Brunner seeking orders holding Relators in contempt for failing to comply with thc subpoenas. For these reasons, a

peremptory writ is the proper remedy to prevcnt Secretary Brunner from exercising quasi- judicial authority over Relators.

IV. CONCLUSION

For the foregoing reasons, Relators respectfully request this Com-t issue a Peremptory

Writ of Prohibition directing Respondent Ohio Secretary of State Jennifer Brunner to cease and

desist from attempting, through these subpoenas, to compel Relators, under threat of criminal

prosecution, to appear before Secretary Brunner in Ohio to testify and produce docuinents.

11 Respectfully submitted,

3. Burtch (0025815) Counsel of Record Rodger L. Eckelberry (0071207) Robert J. Tucker (0082205) Baker & Hostetler, LLP 65 East State Street, Suite 2100 Columbus, Ohio 43215 (614) 228-1541 telephoue (614) 462-2616 fax [email protected] [email protected] [email protected]

Counsel for Relators New Models and Titnothy Crawford

12 CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the tbregoing Merits BrieP was served by regular and eleetronic mail this 5th day of April, 2010 upon the following:

RICHARD CORDRAY Brian J. Laliberte Ohio Attorney General Counsel of Record Richard N. Coglianese David F. Axelrod Counsel of Record Axelrod, LLC Pearl M. Chin 250 Civic Center Drive, Suite 500 Erick D. Gale Columbus, Ohio 43215 Assistant Attorneys General [email protected] Constitutional Offices Section 30 Last Broad Street, 16th Floor Attorneys for Relator Nonnan B. Cuntrrtings Columbus, Ohio 43215 iichard [email protected] pearl.chinCq)ohioattorneyg e nerai.gov arick.gale(q)ohioattorneygeneral.gov

Attorneys for Respondent Ohio Secretary of State Jennifer 13runner

David R. Langdon Thomas W. Kidd, Jr. Bradley M. Peppo LANGDON LAW LLC 11175 Reading Rd., Ste. 104 Cincinnati, Ohio 45241 dlangdoti@Iangdoiil,tw.com tkidd@lang,clonlaw.com [email protected]

Attorneys for Relators LetOhioVote.org, Th.ornas E. Brinkman, Jr., Gene Pierce, and Carlo LoParo

13