State ex rel. Combs v. Greene Cty. Bd. of Elections (Slip Opinion), 2019 Ohio 4110

Background

On August 6, 2019, L. Stephen Combs submitted a nominating petition for Xenia Township Trustee composed of three part-petitions with 13, 11, and 20 signatures (44 total).
At the bottom of each part-petition, the circulator declaration stated: “I am the circulator of the foregoing petition containing 44 signatures.”
Greene County Board of Elections rejected the petition because R.C. 3501.38(E)(1) requires the circulator to indicate the number of signatures on each petition paper (part-petition), and Combs wrote the total for the entire petition on each paper.
Because of that defect the board did not verify the signatures; Combs requested expedited reconsideration, but the board’s minutes show no hearing was held.
Combs filed a mandamus action asking the Ohio Supreme Court to compel verification and certification to the November 5, 2019 ballot.
The Court denied the writ, holding Combs failed to show a clear legal right or the board a clear legal duty to certify.

Issues

Issue	Combs' Argument	Board's Argument	Held
Whether a circulator may state the total number of signatures on the entire petition on each part-petition to satisfy R.C. 3501.38(E)(1)	Writing “44” on each part-petition satisfied the statute	The statute requires the number of signatures on each petition paper (part-petition)	Held: No; "petition paper" means part-petition and statute demands strict compliance
Whether substantial compliance (vs strict compliance) suffices under R.C. 3501.38(E)(1)	R.C. 3513.261 allows substantial compliance with the form, so strictness is unnecessary	R.C. 3501.38(E)(1) is clear and requires strict compliance	Held: Strict compliance required for R.C. 3501.38(E)(1)
Whether the Secretary of State’s Form No. 3-R interprets the statute to permit indicating totals for the whole petition	Form No. 3-R’s language ("foregoing petition") shows administrative interpretation allows totals for the entire petition	Form language cannot override a clear statute; interpretation would be impractical where multiple circulators exist	Held: No deference; statute is clear and Form No. 3-R does not justify Combs’ method
Whether absence of fraud or a failure to provide a reconsideration hearing/notice excuses noncompliance or entitles Combs to relief	No fraud occurred; any procedural notice defect on reconsideration prejudiced Combs	No hearing occurred; boards are not required to hold reconsideration hearings and lack of notice would not itself entitle Combs to certification	Held: Lack of fraud does not excuse failure to strictly comply; Combs failed to prove a hearing occurred or that notice error gives right to certification

Key Cases Cited

Ohio Renal Assn. v. Kidney Dialysis Patient Protection Amendment Commt., 154 Ohio St.3d 86 (2018) (distinguishes between a petition and individual part-petitions/petition papers)
State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections, 96 Ohio St.3d 308 (2002) (R.C. 3501.38(E) demands strict compliance)
State ex rel. Simonetti v. Summit Cty. Bd. of Elections, 151 Ohio St.3d 50 (2017) (R.C. 3513.261 requires only substantial compliance with form, but does not alter other statutory strictness)
State ex rel. Crowl v. Delaware Cty. Bd. of Elections, 144 Ohio St.3d 346 (2015) (consideration of secretary-of-state forms vis-à-vis statutory requirements)
Ohio Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, 149 Ohio St.3d 250 (2016) (overcounts can signal systemic problems and risk of fraud)
State ex rel. Loss v. Lucas Cty. Bd. of Elections, 29 Ohio St.2d 233 (1972) (requirement that circulator state number witnessed protects against additions)
State ex rel. Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222 (2013) (mandamus standard: clear legal right, clear legal duty, and lack of adequate remedy)
State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462 (2009) (election proximity can render ordinary remedies inadequate)