State ex rel. Morris v. Stark Cty. Bd. of Elections (Slip Opinion), 143 Ohio St. 3d 507

Background

Tom Bernabei, a long-time Democrat and elected Stark County Commissioner (2012), sought to run for Canton mayor as an independent in 2015 after becoming disillusioned with the primary options.
In late April 2015 he consulted counsel about running as an independent, signed a one-month lease for a Canton house (commencing May 1), paid rent, changed his voter address (postdated for May 3 then filed May 4), moved belongings and slept there several nights starting May 3–4, and filed his statement of candidacy and nominating petitions on May 4.
He delivered resignation letters from party committees to the board of elections to be forwarded to party officials; one club acknowledged receipt, two did not, and he resigned campaign-treasurer posts for Democrats the day he filed.
Protesters challenged his candidacy claiming (1) he was not a bona fide Canton resident on the filing date and (2) he had not fully disaffiliated from the Democratic Party (arguing incumbents elected as party members must resign office to run as independents).
The Stark County Board of Elections deadlocked; Secretary of State Husted broke the tie, certifying Bernabei. Petitioners sought a writ of prohibition in this court arguing Husted abused his discretion.

Issues

Issue	Plaintiff's Argument (Morris)	Defendant's Argument (Husted/Bernabei)	Held
Residence for candidacy under R.C. 3503.02	University Ave lease was temporary; Bernabei’s true residence was Hills & Dales (wife remained there); he lacked intent to make Univ. Ave permanent	Bernabei intended University Ave as his habitation and to return there when absent; change-of-address, lease, moving in, and voting there show intent to reside in Canton	Court upheld Husted: focus is on candidate’s intent on filing date; evidence supported Canton residence; no abuse of discretion
Effect of family-member residence clause R.C. 3503.02(D)	Because wife remained at Hills & Dales, Bernabei’s residence remained there	Multiple subsections of 3503.02 must be weighed; when conflicting, great weight to claimed voting residence	Court rejected that (D) automatically trumps (A); conflict resolved in favor of claimant when clear-and-convincing standard unmet against claimant
Disaffiliation requirement for running as independent (complete disaffiliation)	Bernabei had not completely disaffiliated: failed to resign from elected office (commissioner) and some club resignations not received; continued party ties	Bernabei took affirmative steps to disaffiliate (resignations, filings, stepping down as treasurer); no statutory requirement that incumbent elected as party member must resign office to be independent candidate	Court held no authority requires resignation from office; Husted did not abuse discretion in finding good-faith disaffiliation
Whether pre-petition partisan activity alone defeats disaffiliation	Long history of partisan activity proves he remained Democrat	Past partisan activity does not prove absence of present good-faith disaffiliation; look to actions under candidate’s control	Court found ambiguous/contrasting evidence insufficient to meet clear-and-convincing burden; disaffiliation upheld

Key Cases Cited

State ex rel. Monroe v. Mahoning Cty. Bd. of Elections, 137 Ohio St.3d 62 (clear-and-convincing proof required to show declaration not in good faith)
State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio St.3d 427 (standard for reviewing secretary of state discretionary determinations)
State ex rel. Walsh v. Ashtabula Cty. Bd. of Elections, 65 Ohio St.3d 197 (candidate must be registered at address within district when signing statement)
State ex rel. Stine v. Brown Cty. Bd. of Elections, 101 Ohio St.3d 252 (application of R.C. 3503.02 in residence disputes)
State ex rel. Ross v. Crawford Cty. Bd. of Elections, 125 Ohio St.3d 438 (intent central to residence analysis)
State ex rel. Duncan v. Portage Cty. Bd. of Elections, 115 Ohio St.3d 405 (residence requires intent to make fixed abode)
State ex rel. Husted v. Brunner, 123 Ohio St.3d 288 (when subsections of 3503.02 conflict, great weight to claimed voting residence)
State ex rel. Clinard v. Greene Cty. Bd. of Elections, 51 Ohio St.3d 87 (no abuse of discretion where board decides on substantial but conflicting evidence)
State ex rel. Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222 (independent-candidate declaration must be made in good faith)
Jolivette v. Husted, 694 F.3d 760 (6th Cir.) (candidate must completely disaffiliate; contrasted on facts where candidate retained party-identifying materials)
Morrison v. Colley, 467 F.3d 503 (independent-candidate good-faith requirement)
State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581 (distinguishing being elected as a party member from being affiliated with that party)

Writ denied.