2019 Ohio 2854
Ohio2019Background
- Robert Bender, Libertarian, filed a declaration of candidacy for Reynoldsburg City Council, Ward 3; his petition had 22 signatures and the board initially validated 13 (the minimum) and certified him for the November 2019 ballot.
- John H. Duus timely submitted a written protest challenging six signatures on Bender’s petition; Duus did not appear at hearings and submitted no affidavit or direct evidence of party membership.
- The board postponed and then held hearings after the primary; board staff initially said 13 signatures were valid, but at a later hearing the board concluded three challenged signatures did not match signatures on file and sustained the protest, removing Bender from the ballot.
- Bender sought an expedited writ of mandamus, arguing (1) Duus lacked statutory standing as a Libertarian elector and (2) the board was time-barred from removing a candidate sua sponte after the 60th day before the primary.
- The Supreme Court of Ohio found no evidence Duus was a Libertarian member when he filed the protest, rejected the board’s reliance on a presumption based on Duus’s lack of primary voting in the prior two years, and held the board abused its discretion by removing Bender after the sua sponte period had passed.
- The court granted mandamus and ordered the Franklin County Board of Elections to reinstate Bender on the November 2019 general-election ballot.
Issues
| Issue | Plaintiff's Argument (Bender) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Whether protestor had statutory standing as a member of the Libertarian Party to file the protest | Duus presented no evidence he was a Libertarian elector when he filed; therefore protest lacked standing | Board treated lack of primary votes in prior two years as a statutory proxy for party membership and thus as sufficient evidence of standing | Held: No evidence of party membership; board abused its discretion by accepting a presumption in lieu of evidence |
| Whether board could remove candidate sua sponte after the 60th day before the primary | Bender argued the board was time-barred from acting sua sponte and could not act without a valid protest | Board maintained it acted in response to Duus’s written protest (not sua sponte) and so timing rule did not block removal | Held: Because there was no valid protest evidence, the board effectively acted sua sponte after the deadline and therefore abused its discretion |
| Whether R.C. 3513.05(7) two-year voting-lookback applies to protestor standing | Bender argued paragraph 7 applies to petition signers/circulators only and cannot be used to presume protestor party membership without evidence | Board argued paragraph 7’s mechanics sensibly extend to protestors to determine party membership | Held: Paragraph 7 does not apply to protestor standing; presuming membership from voting history in a quasi-judicial hearing is unlawful without evidence |
| Standard for board action when reviewing protests in quasi-judicial setting | Bender contended board must base standing and removal decisions on evidence presented at the hearing | Board relied on internal presumption and voting records rather than evidence of self-identification at time of protest | Held: Protest hearings are quasi-judicial and findings must be supported by evidence; irrebuttable presumptions and findings without evidence are arbitrary |
Key Cases Cited
- State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55 (2012) (mandamus elements and remedy analysis)
- State ex rel. Yeager v. Richland Cty. Bd. of Elections, 136 Ohio St.3d 327 (2013) (board may not invalidate petitions sua sponte after 60th day before primary)
- State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections, 75 Ohio St.3d 44 (1996) (timeliness rules for written protests and requirement to promptly set hearing)
- State ex rel. Stevens v. Fairfield Cty. Bd. of Elections, 152 Ohio St.3d 584 (2018) (party affiliation is self-identification; context matters for applying R.C. provisions)
- State ex rel. Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222 (2013) (refusal to extend R.C. 3513.05(7) look-back beyond petition-signature context)
- State ex rel. Beck v. Hummel, 150 Ohio St. 127 (1948) (administrative action arbitrary without substantial evidence)
- State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St.3d 584 (2010) (election-protest hearings are quasi-judicial)
- Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections, 80 Ohio St.3d 302 (1997) (boards operate in a quasi-judicial capacity when considering protests)