State of Ohio ex rel. Dana Skaggs v. Jennifer Brunner

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0427p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Relators-Appellants, -
STATE OF OHIO, ex rel. DANA SKAGGS, et al.,
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No. 08-4585
v.
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JENNIFER L. BRUNNER, Secretary of the State of -
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Defendants-Appellees. -
Ohio, et al.,

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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 08-01077—Algenon L. Marbley, District Judge.
Submitted: November 20, 2008
Decided and Filed: November 25, 2008
Before: KENNEDY, SUTTON, and McKEAGUE, Circuit Judges.
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COUNSEL
ON BRIEF: John Wolcott Zeiger, Marion H. Little, Jr., Christopher J. Hogan, ZEIGER, TIGGES
& LITTLE, Columbus, Ohio, for Appellants. Richard N. Coglianese, Aaron David Epstein, Damian
W. Sikora, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Patrick J.
Piccininni, Anthony E. Palmer, Jr., PROSECUTING ATTORNEY’S OFFICE FOR THE COUNTY
OF FRANKLIN, Columbus, Ohio, Caroline H. Gentry, PORTER, WRIGHT, MORRIS &
ARTHUR, Dayton, Ohio, for Appellees. Meredith E.B. Bell-Platts, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, Atlanta, Georgia, Carrie L. Davis, AMERICAN CIVIL
LIBERTIES UNION OF OHIO, Cleveland, Ohio, Donald J. McTigue, Mark A. McGinnis, LAW
OFFICE, LAW OFFICE, Columbus, Ohio, for Amici Curiae.
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OPINION
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PER CURIAM. On November 4, 2008, more than 27,000 voters in Franklin County cast
provisional ballots in the various federal, state and local election contests. In reviewing those
ballots, the Franklin County Board of Elections determined that roughly 1,000 of them have a
potential defect: They do not contain the printed name or signature of the voter. That omission
implicates two questions of state law. First, does Ohio law require a provisional ballot to include
the name and signature of the voter in order to be eligible to be counted? See Ohio Rev. Code Ann.

1
No. 08-4585 State of Ohio, ex rel. Skaggs, et al. v. Brunner, et al. Page 2

§ 3505.183(B)(1). Second, if Ohio law contains such a requirement, should a ballot containing such
a defect be counted anyway given Ohio’s exemption for mistakes attributable to poll-worker error?
The Ohio Secretary of State, Jennifer Brunner, has taken the position that the 1,000 ballots
comply with Ohio law. Claiming that Ohio law prevents some or all of these ballots from being
counted, two Franklin County voters filed this action against the Secretary of State and the Board
in the Ohio Supreme Court. The Secretary of State responded to the lawsuit by removing it to
federal court. The claimants parried this thrust by filing a motion to remand the case back to the
Ohio Supreme Court. The district court kept the case, holding that it had authority to resolve the
dispute and that, under Ohio law, the ballots should be counted.
Before we can consider the district court’s decision on the merits—do these ballots comply
with Ohio law?—we must ask ourselves whether the federal courts have the power to resolve this
dispute. The short answer is that we do not. In bringing this claim, the claimants relied solely on
state law and disclaimed any reliance on federal law, stating that “[n]o federal law claims are
asserted.” Compl. ¶ 1. And in their request for relief, the claimants sought a writ of mandamus
compelling the Secretary to comply with state law—a form of relief that only a state court, not a
federal court, has the power to impose. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 106 (1984); Combs v. Wilkinson, 315 F.3d 548, 560 (6th Cir. 2002). That normally would end
the matter. The federal and state courts traditionally allow claimants to be the masters of their own
fate, permitting them to file a lawsuit in whichever court system they prefer and thus permitting
them to choose for themselves which body will decide their case—so long as the court in which the
case is filed has jurisdiction over their claim.
There are, however, at least two limits on a party’s authority to pick its forum. If a party opts
to file a complaint in the state court system, the defendant may remove it to federal court if it is one
that originally could have been brought there—either because the parties are diverse or because the
complaint seeks relief on the basis of federal law. And if a party files a complaint in federal court,
the court on its own initiative or on the initiative of one of the parties may certify a pressing question
of state law to the state supreme court. See, e.g., R. Prac. Sup. Ct. Ohio XVIII § 1; Planned
Parenthood of Cincinnati Region v. Strickland, 531 F.3d 406, 410 (6th Cir. 2008).
The claimants opted to file this case in state court, and no basis for removing the case to
federal court exists. The diversity exception does not apply because, as will generally be the case,
the parties to this election dispute all reside in the same State. And the federal-question exception
does not apply because the claimants did not rely on federal law in bringing their claim and indeed
expressly disclaimed relying on federal law. In her notice of removal, the Secretary claimed
jurisdiction based on two consent decrees previously entered by the district court regarding
provisional-voting issues. That the Secretary of State and the plaintiffs in another lawsuit have
entered into a consent decree in federal court adopting their agreement about the meaning of these
provisions does not change matters. A consent decree binds only the parties to the settlement
agreement, not the rest of the world or for that matter today’s claimants (who had no say in what the
consent decree said). Otherwise, state officials and a willing claimant could enter into federal-court
consent decrees embracing their preferred interpretation of a state law and forever prevent the final
interpreter of state law—the state supreme court—from deciding what it means. That is not how our
federal system typically decides what a state law means.
Even if the Secretary had authority to remove this action to federal court, we should point
out, we likely would have sought the Ohio Supreme Court’s input on the meaning of these state-law
provisions—by certifying the questions to the Court to consider in the first instance. No federal
court has the final say on what Ohio law means. Even a decision by the highest federal court, the
United States Supreme Court, about the meaning of an Ohio law has no more binding authority on
the Ohio Supreme Court than a decision of the Michigan Supreme Court or for that matter any other
No. 08-4585 State of Ohio, ex rel. Skaggs, et al. v. Brunner, et al. Page 3

court. The threshold question in this case is what Ohio law means. And the stakes of this
dispute—one federal and two state legislative races—make it quite sensible, even aside from the
intricacies of the removal doctrine, to find out what the ultimate arbiter of Ohio law has to say about
the matter before, rather than after, the provisional-vote-counting process has been irreversibly
conducted during this election season. For these reasons and those elaborated below, we vacate the
district court’s decision and remand the case to the Ohio Supreme Court to resolve the claimants’
state-law causes of action.
I.
When individuals go to the polls on election day, they may be prohibited from casting an
ordinary vote for any number of reasons—say, because their name does not appear on the official
list of eligible voters for the polling place or because they did not bring an acceptable form of
identification. See Ohio Rev. Code Ann. § 3505.18. Rather than allowing poll workers to turn these
voters away, federal and Ohio law permit the voters to cast provisional ballots—votes that are not
counted until the voter’s registration and eligibility are confirmed. See 42 U.S.C. § 15482(a); Ohio
Rev. Code Ann. § 3505.181(A). To make confirmation possible, Ohio law typically requires the
voter to complete a provisional-ballot “affirmation,” in which the voter attests that he is both
registered and eligible to vote. Ohio Rev. Code Ann. § 3505.181(B)(2). The affirmation—a
standard form printed on the face of the ballot envelope—contains blanks for the voter’s printed
name and signature among other things. Id. § 3505.182. After completing the affirmation “before
the election official,” the voter fills out the provisional ballot, seals it in the envelope and submits
it to election officials. Id. § 3505.181(B).
Once the polls have closed on election day, precincts deliver the provisional ballots (along
with all of the regularly cast ballots) to the county boards of elections, where the boards compare
the information contained in the written affirmation with their own records to “determine whether
the individual who cast the provisional ballot is registered and eligible to vote in the applicable
election.” Id. § 3505.183(B)(1). If the provisional-ballot voter completed an affirmation, the statute
provides that his ballot is only “eligible to be counted” if his “name and signature” appear on the
affirmation. Id. § 3505.183(B)(1)(a). If the provisional voter “decline[d] to execute” the
affirmation, the voter’s name, “written by either the individual or the election official at the direction
of the individual,” must be on the affirmation. Id. § 3505.183(B)(1).
Four developments form the backdrop to today’s dispute. First, on March 31, 2008, a
member of the Secretary of State’s office responded to an inquiry from the Franklin County Board
of Elections about the meaning of these provisions. He responded by saying that the “[n]ame AND
signature are required” under §3505.183(B)(1)(a) in order for a ballot to be eligible to be counted,
and the Board proceeded to interpret the provision on this basis. Compl., Ex. B at 2.
Second, in October 2008, shortly before election day, the United States District Court for the
Southern District of Ohio entered two orders concerning provisional ballots in another case—one
still pending from the 2006 election that presented federal constitutional challenges to Ohio’s
provisional-ballot and voter-identification laws. See Northeast Ohio Coalition for the Homeless v.
Brunner (Ohio Coalition for the Homeless), No. 2:06-cv-896 (S.D. Ohio filed Oct. 24, 2006).
(Apparently the case was still pending because the parties and the court had not resolved the
claimants’ request for attorney fees.) Shortly before election day, the parties in the case entered into
a settlement, by which the Secretary agreed to issue a statewide interpretation of the provisional-
voting laws—what became Directive 2008-101 and which lays out general state-wide rules for
boards of elections to apply in determining how to count provisional ballots. On October 24 the
district court, “[b]y agreement of the Plaintiffs and the Secretary of State,” adopted Directive 2008-
101 as an order of the court. Order at 1, Ohio Coalition for the Homeless, No. 2:06-cv-896 (“10/24
Order”). Soon thereafter, the parties to the same case reached a second agreement—that, consistent
No. 08-4585 State of Ohio, ex rel. Skaggs, et al. v. Brunner, et al. Page 4

with state law, provisional ballots should not be rejected if any defects in them were caused by poll-
worker error. On October 27, in the aftermath of this agreement, the district court entered a second
order directing the Secretary to tell the county boards of elections that provisional ballots should not
be rejected due to poll-worker error, though the order did not purport to define what constitutes poll-
worker error. Order at 2, Ohio Coalition for the Homeless, No. 2:06-cv-896 (“10/27 Order”). The
Secretary then issued Directive 2008-103 along these lines.
Third, on election day, November 4, 2008, approximately 27,000 provisional ballots were
cast in Franklin County, Ohio. Of those, around 1,000 are deficient in one of three ways: (1) the
affirmation has a voter’s signature but no printed name, (2) the affirmation has a printed name but
no signature or (3) the affirmation has both a signature and printed name, but either one or both of
those things are in the wrong location on the affirmation.
Fourth, two members of the Franklin County Board of Elections disagreed with two other
members of the Board and the Secretary of State over whether to count these ballots. Citing the
language of the relevant Ohio laws, the March 2008 guidance received from the Secretary’s office
and Directives 2008-101 and 2008-103, two Board members took the position that provisional
ballots suffering from these deficiencies were not “eligible to be counted” under Ohio law. The
Secretary and two other Board members took the position that the ballots should be counted as long
as the Board could verify that “the person is registered to vote, voted in the correct precinct, and that
the person was not required to provide additional information/ID within 10 days.” Compl., Ex. A
at 7.
On November 13, 2008, two Franklin County voters, Dana Skaggs and Kyle Fannin, filed
a complaint in the Ohio Supreme Court against the Secretary and the Board arguing that the
deficient ballots could not be counted under Ohio law and seeking a writ of mandamus ordering the
Secretary to direct the county boards of elections not to count provisional ballots where the written
affirmation does not contain both a printed name and a signature in the correct place on the
affirmation. Compl. at 15. The Secretary removed the action to federal district court. The claimants
and the Board filed separate motions to remand, challenging the removal on the grounds that the
complaint did not state any claims arising under federal law and that it violated the “rule of
unanimity,” which requires all defendants to join in a removal petition, see Loftis v. United Parcel
Service, Inc., 342 F.3d 509, 516 (6th Cir. 2003). For her part, the Secretary of State moved to
realign the parties, arguing that the Board’s interests lined up with the claimants, not the Secretary.
After granting the Secretary’s motion to realign the Board as a plaintiff, the district court denied the
motions to remand. Order at 1, 12, State of Ohio ex rel. Skaggs v. Brunner, No. 2:08-cv-1077 (S.D.
Ohio Nov. 17, 2008).
The parties filed cross motions for summary judgment on the merits, and the district court
granted summary judgment in favor of the Secretary. Opinion and Order at 1, 11, State of Ohio ex
rel. Skaggs v. Brunner, No. 2:08-cv-1077 (S.D. Ohio Nov. 20, 2008). The court held that Ohio law
imposed a duty on poll workers to verify that a voter had properly completed the provisional-ballot-
envelop affirmation before accepting the voter’s provisional ballot, that the deficient ballots were
the result of poll-worker error and that the Board therefore should count the ballots. See id. at
11–15.
II.
In challenging the district court’s decision, the claimants first raise two jurisdictional
arguments—that the removal violates the rule of unanimity and that the removal was improper
because the complaint does not rely on federal law. Because we agree that the complaint does not
present a federal question and because no other basis for removal exists, we need not reach the rule-
of-unanimity question or for that matter the merits of the district court’s decision.
No. 08-4585 State of Ohio, ex rel. Skaggs, et al. v. Brunner, et al. Page 5

Federal courts are courts of limited jurisdiction. Unlike state trial courts, they do not have
general jurisdiction to review questions of federal and state law, but only the authority to decide
cases that the Constitution and Congress have empowered them to resolve. When a party opts to
file a complaint in state court, the federal courts must honor that choice unless Congress has
authorized removal of the case. See Rivet v. Regions Bank of La., 522 U.S. 470, 474 (1998); 28
U.S.C. § 1441(a). Absent diverse parties or absent one of the other express (though rarely relied
upon) grounds for removal, see 28 U.S.C. §§ 1442–1444—none of which applies here—the
defendant may take the dispute to federal court only if the plaintiff’s claim “aris[es] under” federal
law, 28 U.S.C. § 1441(b); see Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007)
(en banc). A party seeking to invoke the jurisdiction of the federal courts—here the Secretary of
State—bears the burden of establishing that such jurisdiction exists. See Brittingham v. Gen. Motors
Corp., 526 F.3d 272, 277 (6th Cir. 2008). And a dispute over the removal jurisdiction of a federal
district court gets a fresh look on appeal. See City of Warren v. City of Detroit, 495 F.3d 282, 286
(6th Cir. 2007).
In “determin[ing] whether [a] claim arises under federal law,” we look only to the “well-
pleaded allegations of the complaint and ignore potential defenses” that the defendant may raise.
Mikulski, 501 F.3d at 560 (internal quotation marks omitted). Even “defense[s] that rel[y] on the
preclusive effect of a prior federal judgment or the pre-emptive effect of a federal statute,” id.
(internal quotation marks omitted), or that are “anticipated in the plaintiff’s complaint” are
irrelevant, as they do not form “part of a plaintiff’s properly pleaded statement of his or her claim,”
Rivet, 522 U.S. at 475 (internal quotation marks omitted). Although the well-pleaded-complaint rule
focuses on what the plaintiff alleges, it allows a court to look past the words of a complaint to
determine whether the allegations, no matter how the plaintiff casts them, ultimately involve a
federal question. In addition to causes of action expressly created by federal law, see City of
Warren, 495 F.3d at 286, federal-question removal thus also reaches ostensible state-law claims that
(1) necessarily depend on a substantial and disputed federal issue, (2) are completely preempted by
federal law or (3) are truly federal-law claims in disguise. See Mikulski, 501 F.3d at 560.
In filing this complaint in the Ohio Supreme Court, the claimants presented a single cause
of action under state law and sought a writ of mandamus and injunctive relief as a remedy. Compl.
at 15–16. Their complaint expressly disclaimed any reliance on federal law. Compl. ¶ 1. And none
of the three grounds for otherwise characterizing their complaint as a federal question applies:
(1) Their claim does not necessarily depend on a substantial federal issue; (2) their claim is not
completely preempted by federal law; and (3) there is no cognizable basis for saying that they have
filed an ersatz state-law claim that, when all is said and done, amounts to nothing more than a
federal claim.
Our esteemed district-court colleague, who as is so often the case in an election dispute was
given little time to resolve this matter, reached a different conclusion. The court concluded that the
complaint arose under two separate sources of federal law: the two consent decrees that the court
had issued in the Ohio Coalition for the Homeless case, and the Equal Protection Clause of the
United States Constitution. We consider each ground in turn.
Does the complaint allege a violation of the consent decrees or turn on them? No. The
claimants, to start with, did not allege that the Secretary had violated the consent decrees or any
other federal court order. In the statement of the claim and the prayer for relief, the complaint does
not invoke the consent decrees, and indeed it never mentions either consent decree. The most that
can be said is that, at one point in the complaint, the claimants mention the Secretary’s Directive
2008-101, though not the consent decree. See Compl. ¶ 18. But that reference was not in the
context of alleging that the Secretary had violated a federal court order; it was in the context of
alleging that the Secretary had offered one interpretation of the relevant statutes before the election
and had offered another interpretation of the statutes after the election when the significance of these
No. 08-4585 State of Ohio, ex rel. Skaggs, et al. v. Brunner, et al. Page 6

provisional-ballot-counting issues had become apparent, see id. ¶¶ 17–22. Nowhere did the
claimants allege that the Secretary, by adopting a different interpretation of the state laws on
November 10, had “violated” her prior administrative directive or the court order that “adopt[ed]
and annexe[d]” it, 10/24 Order at 1. To read the complaint any other way would suggest that the
defendant, not the claimants, is “the master of [their] complaint.” NicSand, Inc. v. 3M Co., 507 F.3d
442, 458 (6th Cir. 2007) (en banc).
The Secretary alternatively seeks to uphold the removal decision on the ground that, even
if the complaint alleged only state-law grounds for relief, it still “necessarily depends on resolution
of a substantial question of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1, 28 (1983). The substantial-federal-issue exception opens the federal removal door only if
“(1) the state-law claim . . . necessarily raise[s] a disputed federal issue; (2) the federal interest in
the issue [is] substantial; and (3) the exercise of jurisdiction [will] not disturb any congressionally
approved balance of federal and state judicial responsibilities.” Mikulski, 501 F.3d at 568. As the
Secretary and the district court see it, the complaint meets these requirements because this action
cannot proceed without interpreting the two federal-court consent decrees, which incorporate the
Secretary’s two advisory directives. But, as we see it, the complaint does not satisfy any of these
requirements, much less all three of them.
First, the consent decrees do not transform this state-law cause of action into a federal cause
of action for a threshold reason: The decrees represent a settlement agreement between the parties
to the Ohio Coalition for the Homeless case and thus cannot control the outcome of a case involving
different parties, much less insulate a question of Ohio law from review by the one court with a final
say over its meaning: the Ohio Supreme Court. Consent decrees derive their authority from the
parties’ consent, which permits the parties to give away their rights, not the rights of third parties.
See City of Warren, 495 F.3d at 287. That a defendant in a state-court lawsuit has previously
entered into an agreement with other parties about the meaning of state law that was approved in a
federal-court consent decree does not inject a substantial federal issue into a subsequent state-court
case. See id.
Moreover, even if for the sake of argument we were to suppose that these orders bound the
Secretary in this case, that at most would raise a defense to this action; it would not make the orders
an essential element of the claim. Unlike the case on which the district court most heavily relied,
EBI-Detroit, Inc. v. City of Detroit, 279 F. App’x 340 (6th Cir. 2008), where the plaintiffs explicitly
alleged that the defendant had contravened an existing district-court order and therefore had to prove
that point to obtain relief, see id. at 346, the claimants in this case have not brought any claims
premised on the Secretary’s failure to adhere to the terms of the consent decrees. If the Ohio
Coalition for the Homeless orders come into play at all in this case, that will be because the
Secretary takes the position that the orders tie her hands and preclude her from adopting any
inconsistent interpretation of the statutes. But the issue-preclusive shadow cast by a prior federal
decision is an affirmative defense, not an ingredient of the claimants’ claim, and as such it cannot
convert a state-law claim into a federal one. See Rivet, 522 U.S. at 476–77.
Second, the federal interest in this dispute is not “substantial,” as measured by the four
factors we consider in assessing this point: (1) whether a federal agency is involved; (2) whether
the federal question is important; (3) whether a decision on the federal question will resolve the
parties’ dispute; and (4) how many other cases a decision on the issue in this case will resolve. See
Mikulski, 501 F.3d at 570. For one, no federal agency is involved in this dispute. It involves only
Ohio voters and Ohio public officials. In this respect, too, the instant facts differ materially from
those presented in EBI-Detroit, where the complaint alleged misconduct by a specially appointed
federal officer in the performance of his appointed duties, a circumstance necessarily adding to the
substantiality of the federal question presented. See 279 F. App’x at 346.
No. 08-4585 State of Ohio, ex rel. Skaggs, et al. v. Brunner, et al. Page 7

For another, the Secretary’s directives, even though they have been included in two federal-
court consent decrees, do not create important federal questions in any meaningful sense. The orders
do not contain any conclusion that Ohio’s election laws violate any provision of positive federal law
or that the Constitution, a congressional enactment or an agency regulation requires reading the state
statutes in a certain way—say, to avoid constitutional doubts. Rather, both orders by their terms
reflect only the parties’ mutual agreement about the meaning of these state laws, see 10/24 Order
at 1; 10/27 Order at 1, a subject on which the state courts presumptively have the last word, cf.
Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 246 (6th Cir. 2006). No less
importantly, the Secretary’s directive with respect to poll-worker error says nothing at all about what
constitutes poll-worker error under state (or federal) law, much less about whether a voter’s failure
to sign a provisional ballot application or include one’s name on it constitutes poll-worker error.
And the other directive merely restates Ohio law without offering any elaboration on how it would
apply to the ballot-counting problem presented in this case. The mere incorporation of state-law
requirements in a federal-court consent decree does not automatically create a federal question,
much less an important one.
For still another reason, the interpretation of these consent decrees will not resolve this
dispute. As noted, they have no direct bearing on the merits of this lawsuit because they merely
reflect an agreement among parties to a different suit. And because the decrees offer no specific
guidance about how to resolve these disputes, other than by reciting or paraphrasing the relevant
language of the state laws, our interpretation of them here would be no more helpful to our
resolution of this case than our interpretation of the underlying state laws themselves.
For a final reason, no one suggests that the federal court’s resolution of this issue will head
off future lawsuits. Exactly the opposite, it would seem, is more likely to happen. Until the Ohio
Supreme Court finally decides what these state-law provisions mean, injured parties are bound to
continue to ask that Court to resolve this dispute once and for all—as indeed is their right.
Third, this is hardly a case where “the exercise of jurisdiction [will] not disturb any
congressionally approved balance of federal and state judicial responsibilities.” Mikulski, 501 F.3d
at 568. Congress’s most recent handiwork concerning provisional ballots, the Help America Vote
Act of 2002, Pub. L. No. 107-252, Title III, § 302, 116 Stat. 1666, 1706 (codified at 42 U.S.C.
§ 15301 et seq.), leaves no doubt which lawmaking body—the federal or state governments—has
plenary authority over the counting of provisional ballots. It “conspicuously leaves . . . to the
States” the determination of “whether a provisional ballot will be counted as a valid ballot,”
Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 577 (6th Cir. 2004); see 42 U.S.C.
§ 15482(a)(4). To allow federal courts free rein in determining whether and under what
circumstances a partially deficient provisional ballot will count—under state law—would deprive
state courts of their long-established role as the “final arbiter on matters of state law,” Planned
Parenthood, 531 F.3d at 410. If all it takes to transform purely state-law questions into a substantial
issue of federal law—sufficient to end state courts’ supremacy in interpreting their own statutes—is
the agreement of two putatively opposed parties and one federal judge incorporating an
interpretation of that law into a consent decree, it is hard to imagine any state-law matter lying
outside a federal court’s reach.
Accordingly, we hold that the claimants’ cause of action does not satisfy any of the three
required elements of the substantial-federal-issue exception to the well-pleaded-complaint rule, as
set forth in Mikulski. We therefore conclude that the Secretary has failed to carry her burden of
demonstrating that the claimants’ state-law claim necessarily presents a substantial federal question
that warrants removal to federal court.
No. 08-4585 State of Ohio, ex rel. Skaggs, et al. v. Brunner, et al. Page 8

Did the complaint allege a violation of the Equal Protection Clause? No. On its face, the
complaint does not set forth an equal-protection claim, and indeed it explicitly disavows any reliance
on federal law: “No federal law claims are asserted.” Compl. ¶ 1.
The Secretary nonetheless claims that the complaint amounts to artful pleading because it
invokes the substance of an equal-protection claim even if it leaves the form of such a claim behind.
See Mikulski, 501 F.3d at 561. In making this argument, she points to paragraphs 4 and 5 of the
complaint where, in a section devoted to identifying the relevant parties, the claimants say that they
are “bring[ing] this action to assure that [their] vote[s are] not diluted as a result of the misdirected
instructions of the Secretary of State to count provisional ballots that are not lawful or valid under
Ohio law.” Compl. ¶ 5. Yet the claimants made these allegations not in order to raise an equal-
protection claim sotto voce but in order to gain admission to the state courts. Under Ohio law, the
claimants were required to identify an injury to establish standing to bring this claim. See State ex
rel. Toledo v. Lucas County Bd. of Elections, 765 N.E.2d 854, 857 (Ohio 2002) (per curiam) (“The
applicable test for standing is whether [the] relator would be directly benefited or injured by a
judgment in this case, and this test applies to mandamus actions concerning election matters.”).
As with all allegations that a State is counting ballots it should not, one form of injury caused
by that problem will be vote dilution. But that reality does not preclude the claimants from relying
on state law to redress the harm, particularly when the source of the injury is an alleged
misinterpretation of Ohio law. Even if it is true that the claimants might have brought a separate
federal constitutional claim to redress this injury, a point on which we need not take a stand, neither
the federal courts nor a state official may force them to do so.
Because the Equal Protection Clause also is not a “necessary element of one of the
[claimants’] well-pleaded state claims,” Franchise Tax Bd., 463 U.S. at 13, this case does not fit
within that “special and small category” of cases finding federal jurisdiction on that ground, Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006). The complaint alleges that the
Secretary’s instructions to the Board violate several Ohio statutes—claims that do not “necessarily
depend[],” Franchise Tax Bd., 463 U.S. at 28, on the resolution of any kind of equal-protection
question. The district court, it is true, identified the specter of an equal-protection problem: the
chance that a ruling in favor of the claimants might lead to non-uniform provisional vote counting
across counties. But such a claim is not a “necessary element of one of the well-pleaded state
claims,” Franchise Tax Bd., 463 U.S. at 13, but at best a federal defense that the Secretary may or
may not wish to inject into the case in the Ohio courts in support of her proposed interpretation of
state law.
One other thing. A federal court may not enjoin a state official to follow state law, see
Pennhurst, 465 U.S. at 106, which means that, if the Secretary’s position in this case were accepted,
it is doubtful that the claimants could ever obtain relief. Consider the three possible ways in which
the federal court could resolve this case. One is that the federal court might reject the claim because
it is inconsistent with state law. Another is that the federal court might reject the claim because,
even though it is consistent with state law, the federal Constitution (or a federal law) prohibits the
claimants from obtaining relief. The third possibility is that the federal court might agree with the
claimants’ interpretation of state law, might reject the Secretary’s’ federal-law defenses and might
wish to grant the requested relief: an injunction preventing the Secretary from counting the disputed
provisional ballots. But because the United States Constitution prohibits federal courts from
enjoining state officials to follow state law, the court could not enter such an order. The only relief
the federal courts could give in this instance thus would appear to involve the denial of the
claimants’ request for relief. “Heads I win, tails you lose” is not a traditional way, let alone a fair
way, to apply the removal doctrine.
***
No. 08-4585 State of Ohio, ex rel. Skaggs, et al. v. Brunner, et al. Page 9

In the final analysis, this case does not present one of those “limited circumstances” where
“a defendant may force a plaintiff into federal court despite the plaintiff’s desire to proceed in state
court.” Mikulski, 501 F.3d at 560. By the terms of their complaint, the claimants raise only a state-
law claim and disavow any reliance on federal law. Absent a substantial federal issue lurking
beneath their claim, “we should take [the claimants] at [their] word.” NicSand, 507 F.3d at 458.
Both parties, elbows drawn, accuse the other of engaging in forum shopping. But to the
extent the lawyers for the parties wish to obtain the best forum for resolving their clients’ claims,
they are doing only what their professional obligations require. To the extent the parties are doing
the same thing, the law expressly allows them to do so. The central premise of the well-pleaded-
complaint rule is to facilitate forum shopping—to allow claimants to pick the law under which they
seek redress, to pick the forum that they would like to resolve their claim and to have the courts
(most of the time) respect those choices. See Holmes Group, Inc. v. Vornado Air Circulation
Systems, Inc., 535 U.S. 826, 831 (2002); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
Nor do we see any reason to think that a state-court forum for resolving this question of state
law will favor one party over the other. In the 2008 calendar year, by our count, there have been at
least six original actions decided by the Ohio Supreme Court involving the Secretary of State and
interpretations of state law. Not only were none of these six actions removed to federal court, but
the Secretary also has won three of them, lost two, and achieved mixed results in one. See State ex
rel. Stokes v. Brunner, ___ N.E.2d ___, 2008 WL 4810591 (Ohio Oct. 16, 2008) (per curiam); State
ex rel. Myles v. Brunner, ___ N.E.2d ___, No. 2008-1842, (Ohio Oct. 2, 2008) (per curiam); State
ex rel. Colvin v. Brunner, ___ N.E.2d ___, 2008 WL 4443962 (Ohio Sept. 29, 2008) (per curiam);
State ex rel. Lawrence County Republican Party Executive Comm. v. Brunner, 892 N.E.2d 428
(Ohio 2008) (per curiam); State ex rel. Summit County Republican Party Executive Comm. v.
Brunner, 890 N.E.2d 888 (Ohio 2008) (per curiam); State ex rel. Parrott v. Brunner, 882 N.E.2d 908
(Ohio 2008) (per curiam). In a seventh case, we should point out, the defendant removed the case
to federal court, but the district court remanded the case to the Ohio Supreme Court after concluding
that the plaintiff’s mandamus petition (as here) “d[id] not on its face state a claim arising under
federal law,” or necessarily “require resolution of substantial, disputed issues of federal law,” but
simply “ask[ed] the court to compel the Secretary to comply with her duties under state law.” Ohio
ex rel. Myhal v. Brunner, No. 2:08-cv-893, 2008 WL 4647701, *1–2 (S.D. Ohio Oct. 20, 2008).
The resolution of this dispute by the Ohio Supreme Court also does not prohibit the Secretary
from asserting any relevant defenses, including the defense, if she wishes, of saying that the failure
to count these provisional ballots would violate federal law. And if a federal defense is raised and
the Ohio Supreme Court rejects it, the Secretary is free to attempt to seek review in the United States
Supreme Court. See Bush v. Gore, 531 U.S. 98, 102–03 (2000) (per curiam).
III.
For these reasons, we vacate the district court’s opinion and remand the case to the Ohio
Supreme Court.