811 N.E.2d 555 | Ohio Ct. App. | 2004
{¶ 1} This matter comes before this court on a motion for summary judgment and/or motion for judgment on the pleadings filed by contestee Erie County Board of Elections ("board"). Contestor, Ann B. Maschari, has filed a response in opposition to the board's motion.
{¶ 2} The relevant facts in this case are as follows. On March 2, 2004, a primary election was held in Erie County. The two candidates for the Democratic nomination for the office of judge of the Common Pleas Court of Erie County were contestor and contestee Tygh M. Tone. On March 26, 2004, the board certified that contestor received 6,118 votes and contestee Tone received 7,022 votes, and declared contestee Tone the winner of the election.
{¶ 3} On April 12, 2004, contestor filed a verified election contest petition in this court, pursuant to R.C.
{¶ 4} On April 19, 2004, the board filed an answer in which it stated, in relevant part, that the petition fails to state a claim upon which relief may be granted because it (1) is based on conduct that is not in violation of Ohio election law; (2) fails to establish that the alleged irregularities would have changed the result of the election; and (3) was untimely filed. On May 3, 2004, the board filed an amended answer, in which it further asserted that contestor's claims are barred by the doctrines of laches and estoppel. On April 20, 2004, contestee Tone filed an answer and a motion to dismiss the petition, in which he asserted that he should be dismissed from this action because he is not capable of granting the relief requested by contestor. On April 23, 2004, contestee Tone filed a motion to withdraw his motion to dismiss, which this court granted on April 27, 2004.
{¶ 5} On May 3, 2004, the board filed the motion herein, in which it essentially asserts that the petition should be dismissed for four reasons: (1) contestee failed to comply with the statutory requirements for contesting an election; (2) this court lacks subject matter jurisdiction because the action was untimely filed; (3) *369 contestor's claims are barred by estoppel and (4) the petition fails to state a claim on which relief may be granted.
{¶ 6} Attached to the motion is a memorandum in support, along with portions of the board's record of proceedings on April 24, 1998, and January 30, 2004, and the affidavits of board director Patricia L. Warner, board member J. Ralph Henry, and contestee Tone. Board member Henry stated in their affidavits that on February 16, 2004, they attended an Erie County Republican Women's meeting at which contestor appeared and urged Republican party members to vote for her in the upcoming primary election. Henry further stated in his affidavit that he received campaign literature from contestor urging the same action. Contestee Tone stated in his affidavit that he was personally aware contestor had urged Republicans to vote for her in the Democratic primary. In her affidavit, board director Warner attached an authenticated copy of minutes from the April 24, 1998 board meeting, in which board members initially voted not to challenge voters' party affiliation at primary elections. Also attached to Warner's affidavit was an authenticated copy of the minutes from the board's meeting on January 30, 2004, in which members voted to continue the no-challenge policy.
{¶ 7} On May 10, 2004, contestor filed a response and a memorandum in support. Attached to contestor's memorandum was her own affidavit, in which she stated that, although she urged Republicans to vote for her in the Democratic primary, she had no knowledge until after the election that cross-over voters would not be challenged. Also attached to contestor's memorandum was a copy of an unauthenticated document titled "Statement of Person Challenged as to Party Affiliation."
{¶ 8} Summary judgment will be granted when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Initially, the party seeking summary judgment bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996),
{¶ 9} The board first alleges in its motion that this action should be dismissed because it was untimely filed. In support thereof, the board argues that the election results were first ascertained and announced on March 2, 2004, the day the primary election was held. The board concludes that since the petition was not filed until April 12, 2004, which is more than 15 days after the election, it was untimely. Contestor responds that the final results of the election *370 were not certified until March 26, 2004 and, therefore, this action was "clearly filed within the period permitted by the statute."
{¶ 10} R.C.
{¶ 11} Upon consideration of the foregoing, this court finds that the phrase "ascertained and announced," as used in R.C.
{¶ 12} The board next asserts that it is entitled to summary judgment because its decision not to challenge cross-over voters in the March 2, 2004 primary election did not violate Ohio election law. In support thereof, the board argues that the precinct workers, and not the board, have the discretion to challenge or not challenge voters on the basis of their party affiliation. The board further argues that, even if the cross-over voters should have been challenged, contestor is estopped from asserting that an irregularity occurred in this case, because she urged Republican voters to cross over and vote for her in the Democratic primary election.
{¶ 13} It is well settled that the power of the courts to intervene in election matters is limited. In re the Election on the Issue of Zoningthe Southeasterly Section of Swanton Twp. (1982),
{¶ 14} R.C.
{¶ 15} If an election official doubts a voter's party affiliation, such affiliation may then be determined by "examining the elector's voting record for the current year and the immediately preceding two calendar years as shown on the voter's registration card, using the standards of affiliation specified in the seventh paragraph of [R.C.
{¶ 16} If the election official's doubt is confirmed and a challenge is brought based on the grounds set forth in R.C.
{¶ 17} In Ohio, voting in the primary election of a particular political party is indicative of a voter's desire to be affiliated with that party and to support its principles. See Stateex rel. Bible v.Hamilton Cty. Bd. of Elections (1970),
{¶ 18} Contestor argues that, pursuant to R.C.
{¶ 19} First, election officials, and not the board of elections, have the final authority to challenge a voter's qualifications in a primary election. See Holding v. Corey (1936),
{¶ 20} Second, both parties are asking this court to determine whether a number of the votes cast on March 2, 2004, were illegal because the qualifications of cross-over voters were not challenged pursuant to R.C.
{¶ 21} The overriding concern in cases involving statutory interpretation is the determination of legislative intent. State ex rel.Herman v. Klopfleisch (1995),
{¶ 22} Contestor's interpretation of R.C.
{¶ 23} Based on our determinations set forth above, we need not reach the issue of whether contestor is estopped by her own actions from contesting the results of the election. However, it is worth noting that contestor actively pursued cross-over voters before the election. Surely she was aware, based on her campaign tactics, that there was a high probability that cross-over voters would play a role in the March 2, 2004 primary election. Yet, by her own admission, she failed to educate herself as to the necessity of challenging those cross-over voters, and she did not take all available statutory steps to insure the integrity of the election. Those steps could have included asking the Democratic party to appoint a challenger to each precinct pursuant to R.C.
{¶ 24} This court has reviewed the entire record in this case and, upon consideration thereof and the law, finds that the duty to challenge cross-over voters pursuant to R.C.
{¶ 25} On consideration whereof, this court further finds that there exist no other genuine issues of material fact and, after construing the evidence most strongly in favor of contestor, the board is entitled to summary judgment as a matter of law. The results of the March 2, 2004 primary are affirmed, and the election contest petition is hereby dismissed. Pursuant to R.C.
Petition dismissed.
PETER M. HANDWORK, P.J., and ARLENE SINGER, J., concur.