THE STATE EX REL. BENDER v. FRANKLIN COUNTY BOARD OF ELECTIONS.
No. 2019-0767
Supreme Court of Ohio
July 15, 2019
Slip Opinion No. 2019-Ohio-2854
Submitted July 9, 2019
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Bender v. Franklin Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-2854.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Elections—Mandamus—Writ of mandamus sought tо compel board of elections to reinstate relator as city-council candidate on November 2019 general election ballot—
IN MANDAMUS.
{¶ 1} Relator, Robert Bender, seeks a writ of mandamus ordering respondent, the Franklin County Board of Elections, to reinstate his certification to the November 2019 bаllot as the Libertarian Party candidate for Reynoldsburg City Council, Ward 3. After initially certifying Bender to the ballot, the board sustained a protest challenging the validity of some of the signatures on Bender‘s petition. Because no evidence established that the protestor had standing to bring the protest and because it was too late for the board to remove Bender from the ballot sua sponte, we grant a writ of mandamus ordering the board to reinstate Bender as a candidate for the November 2019 general elеction.
{¶ 2} On February 6, 2019, Bender submitted his declaration of candidacy to be the Libertarian Party nominee for Reynoldsburg City Council, Ward 3. Bender‘s petition contained 22 signatures. The minimum number of valid signatures necessary for Bender to qualify for the ballot was 13. Jeffrey Mackey, the manager of petitions and campaign finance for the board, examined the signatures and determined that 13 of them were valid and that the petition therefore met the signature requirement. Because no other candidate sought the Libertarian nominаtion for the Ward 3 council seat, no primary election for that seat was necessary. See
{¶ 3} On February 22, the board received a timely written protеst from John H. Duus, who challenged the validity of six of the previously validated signatures on Bender‘s petition. On March 4, the board sent Bender a letter notifying him of Duus‘s protest and informing Bender that he would be notified again once a date for hearing the protest had beеn set. On May 9, two days after the primary election, the board notified Bender that it would hear Duus‘s protest at a meeting scheduled for May 28. On May 28, the board received a letter from Bender‘s attorney objecting to the hearing as untimely under
{¶ 4} At the May 28 meeting, neither Duus nor any representative for Duus appeared. Bender‘s attorney addressed the board, arguing that it should dismiss the protest for lack of standing because Duus had presented no evidence that he was a member of the Libertarian Party. Bender‘s attorney alsо argued that the board had no authority to remove Bender from the ballot after the primary election. In light of the legal issues raised by Bender‘s attorney, the board continued the hearing to June 3.
{¶ 5} At its June 3 meeting, the board heard from Mackey and the board‘s attorney, who opined that neither the concern pertaining to standing nor the concern pertaining to timeliness prohibited the board from considering the merits of the protest. The board also heard from Bender‘s attorney, who noted the continued absence of Duus or any representative for Duus and presented rebuttal arguments on the issues of standing and timeliness. The board then considered the protest and examined the six signatures questioned in the protest letter, comparing them to the electors’ signatures оn file. Despite Mackey‘s statement at the May 28 hearing that all 13 validated signatures were “within the bounds of what we generally look for,” at the subsequent June 3 hearing, the board determined that three of the challenged signatures did not match the signatures on file. Because this left Bender three signatures short of the required 13, the board sustained the protest and removed Bender from the November ballot.
{¶ 6} Bender filed this mandamus action on June 7, seeking a writ of mandamus ordering the board to again certify him as the Libertarian Party nomineе for Reynoldsburg City Council, Ward 3 for the November 5, 2019 general election. We granted Bender‘s motion to expedite, 156 Ohio St.3d 1412, 2019-Ohio-2413, 124 N.E.3d 838, and the case has now been fully briefed.
II. ANALYSIS
A. Mandamus Standard
{¶ 7} To be entitled to a writ of mandamus, a relator must establish, by clear and convincing evidence, (1) a clear
B. Statutory Timeliness and Standing Requirements
{¶ 8} There are two circumstances under which a board of elections may declare a candidate‘s petition invalid: in response to a written protest (
C. The Board Abused Its Discretion
{¶ 9} Because the board did not act until well after the 60th day before the primary election, it was not statutorily authorized to act sua sponte. See Harbarger at 46. The board claims to have acted in response to Duus‘s written protest. However, Duus‘s protest letter did not state that he was a member of the Libertarian Party, nor did he attach an affidavit to his letter, and the board had before it no affirmativе evidence regarding Duus‘s party membership. Instead, the board found that Duus qualified as a member of the Libertarian Party based on his recent voting record, which showed that he had not voted in any party‘s primary election within the previous two calendar years. Hоwever, no evidence established that Duus identified as a member of the Libertarian party at the time he filed the protest. As such, the board abused its discretion by removing Bender from the ballot based on Duus‘s protest.
{¶ 10} The board argues that its reliance on Duus‘s voting record comports with
For purposes of signing or circulating a petition of candidacy for party nomination or election, an elector is considered to be a member of a political party if the elector voted in that party‘s primary election within the preceding two calendar years, or if the elector did not vote in any other party‘s primary election within the preceding two calendar years.
{¶ 11} The board‘s application of paragraph 7 of
{¶ 12} “[I]rrebuttable presumptions” are disfavored when “the fact presumed is an essential constitutional or statutory predicate to government action.” Granzow v. Montgomery Cty. Bur. of Support, 54 Ohio St.3d 35, 37, 560 N.E.2d 1307 (1990). More broadly, “[a] finding without evidence to support it is arbitrary and unlawful.” Gen. Motors Corp. v. Baker, 92 Ohio App. 301, 309, 110 N.E.2d 12 (2d Dist.1952). In State ex rel. Beck v. Hummel, 150 Ohio St. 127, 80 N.E.2d 899 (1948), this court held that the secretary оf state abused his discretion by blocking the Ohio Wallace-for-President Committee from placing presidential and vice-presidential candidates on the Ohio ballot for the 1948 national election based on a presumption that communists on the committee advocated the overthrow of the government. The court explained that an administrative official acts arbitrarily when there is not “some substantial evidence to support the finding and determination” made by the official. Id. at 138.
{¶ 13} “Party affiliation in Ohio is purely a matter of self-identification, and that self-identification is subject to change.” State ex rel. Stevens v. Fairfield Cty. Bd. of Elections, 152 Ohio St.3d 584, 2018-Ohio-1151, 99 N.E.3d 376, ¶ 20; State ex rel. Young v. Gasser, 21 Ohio St.2d 253, 257, 257 N.E.2d 389 (1970) (“party affiliation or membership is that which [the voter] desires it to be from time to time“). Duus‘s failure to vote in a primary election in the two calendar years before he filed his prоtest against Bender‘s candidacy did not constitute evidence that at the time he filed the protest, Duus specifically identified as a member of the Libertarian Party.
{¶ 14} The board‘s reliance on a presumption in place of actual evidence оf Duus‘s party membership was particularly problematic in this case because under
{¶ 15} The board‘s reliance on Stevens and on the secretary of state‘s Ohio Election Official Manual is unavailing. In Stevens, this court accepted the parties’
{¶ 16} By contrast, in State ex rel. Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, we held that a board of electiоns erred by applying paragraph 7 of
The board erroneously applied [the] two-year look-back provision for petition signatures [in
R.C. 3513.05 , paragraph 7] to the separate analysis of disaffiliation underR.C. 3513.257 . According to the board, “[b]ecause there is no law that specifies how a person disaffiliates frоm a political party for the purposes of running as [an independent] candidate, the Board made a reasonable comparison to Ohio‘s law on how a person disaffiliates from a political party for purposes of signing a petition.”The General Assembly expressly wrote a two-year look-back requirement for petition signatures into
R.C. 3513.05 . Had the legislature intended the same rule to apply to claims of disaffiliation, it would have been a simple matter to draftR.C. 3513.257 accordingly, but the legislature did not do so.
(Emphasis and first brackets added; additional brackets sic.) Davis at ¶ 21-22. Similarly, the legislature has not made paragraph 7 of
III. CONCLUSION
{¶ 17} Because no evidence established the protestor‘s standing and because the time for sua sponte action by the board had passed, the board abused its discretion by removing Bender from the ballot. Accordingly, we issue a writ of mandamus ordering the board to reinstate Bender as a candidate for the November 2019 general election.
Writ granted.
O‘CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ., concur.
KENNEDY and DEWINE, JJ., concur in judgment only.
Mark R. Brown and Mark G. Kafantaris, for relator.
Ronald J. O‘Brien, Franklin County Prosecuting Attorney, and Timothy A. Lecklider and Nick A. Soulas Jr., Assistant Prosecuting Attorneys, for respondent.