THE STATE EX REL. COMBS v. GREENE COUNTY BOARD OF ELECTIONS.
No. 2019-1234
SUPREME COURT OF OHIO
October 4, 2019
Slip Opinion No. 2019-Ohio-4110
NOTICE
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SLIP OPINION NO. 2019-OHIO-4110
Elections—Mandamus—Writ of mandamus sought to compel board of elections to verify signatures on relator‘s nominating petition to be candidate for township trustee—
(No. 2019-1234—Submitted October 2, 2019—Decided Octobеr 4, 2019.)
IN
Per Curiam.
{¶ 1} Relator, L. Stephen Combs, seeks a writ of mandamus ordering respondent, the Greene County Board of Elections, to count the signatures on his petition and certify his name to the November 5, 2019 general-election ballot as a candidate for Xenia Township Trustee. We deny the writ.
I. BACKGROUND
{¶ 2} Combs submitted his nominating petition on August 6, 2019. It consisted of three part-petitions. The first had 13 signatures, the second had 11 signatures, and the third had 20 signatures. At the bottom of each part-petition, Combs signed a declаration, “under penalty of election falsification,” that included the statement, “I am the circulator of the foregoing petition containing 44 signatures.”
{¶ 3} At its August 19 meeting, the board rejected Combs‘s petition because the circulator stаtement on each part-petition indicated 44 signatures—the total number on the entire petition—rather than the number of signatures on the individual part-petition. Because it rejected the petition on this basis, the board did not complete its verification of the signatures.
{¶ 4} Combs requested an expedited reconsideration hearing. In an affidavit, Combs avers that he received no notice of a hearing but that an unnamed representative of the board told him on Sеptember 3 that the expedited hearing had already taken place and that his petition had been
{¶ 5} On Septеmber 6, Combs filed his complaint seeking a writ of mandamus ordering the board to verify the signatures on his petition and to certify his name to the November 5 ballot.
II. ANALYSIS
A. Mandamus Standard
{¶ 6} Combs is entitled to a writ of mandamus if he establishes by clear and convincing evidence thаt (1) he has a clear legal right to have his petition signatures verified and, if they are sufficient, have his name placed on the ballot, (2) the board has a clear legal duty to verify the signatures and place his name on the ballot, and (3) hе lacks an adequate remedy in the ordinary course of the law. State ex rel. Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 12. Because of the proximity of the election, Combs lacks an adequate remedy outside this proceeding. See State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18.
B. Indication of the Number of Signatures on Each Petition Paper
{¶ 7} Combs argues that he has a clear legal right to have his petition signatures verified and his name placed on the November ballot and that the board has a clear legal duty to verify the signatures and place his namе on the ballot. We disagree.
{¶ 8}
1. Statutory Interpretation and Strict Compliance
{¶ 9} Combs raises two arguments regarding the interpretation of and strict compliance with
{¶ 10} Combs first argues that he actually complied with
{¶ 12} Combs also argues that only substantial, not strict, compliance with
2. Secretary of State Form No. 3-R
{¶ 13} Combs argues that he has a clear legal right to relief because, he claims, he complied with the secretary of state‘s Form No. 3-R, which is a form created by the secretary that may be circulated to obtain electors’ signatures for a candidate for township office. Form Nо. 3-R contains a statement requiring the circulator to declare, under penalty of election falsification:
I am the circulator of the foregoing petition containing [number of] signatures; * * * I witnessed the affixing of every signature; * * * all signers wеre to the best of my knowledge and belief qualified to sign; and * * * every signature is to the best of my knowledge and belief the signature of the person whose signature it purports to be * * *.
Citing State ex rel. Crowl v. Delaware Cty. Bd. of Elections, 144 Ohio St.3d 346, 2015-Ohio-4097, 43 N.E.3d 406, ¶ 10, Combs argues that because this declaration uses the word petition—not part-petition or petition paper—the secretary of state has interpreted
{¶ 14} As explained above, however, Combs‘s interpretation would not make sense in any situation in which there is more than one circulator: each individual circulator would be unable to make the required declaration because he would not have witnessed the signatures on the part-petitions that he did not circulate. In addition, Combs overlooks the fact that Form No. 3-R‘s declaration refers to the number of signatures on the foregoing petition. Combs‘s three declarations—coming at the end of his three part-petitions—cannot all logically refer to 44 foregoing signatures. It is therefore unlikely that the secretary has interpreted
3. Lack of Fraud
{¶ 15} Combs next argues that he has a clear legal right to relief because he committed no fraud, citing Ohio Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, 149 Ohio St.3d 250, 2016-Ohio-5377, 74 N.E.3d 399, ¶ 44 (”OMA“). In OMA, we noted that “[t]he requirement that a circulator state the number of signatures personally witnessed ‘is a protection against signatures being added later.’ ” Id., quoting State ex rel. Loss v. Lucas Cty. Bd. of Elections, 29 Ohio St.2d 233, 234, 281 N.E.2d 186 (1972) (invalidating a part-petition because the line indicating the total number of signatures witnessed was left blank). We then stated, “We are not dealing here with a case of minor or negligent miscounts. Systemic overcounts of the magnitude seen in this case are an open invitation to fraud and makе this case different from all previous cases cited by the parties.” Id.
{¶ 16} However, this case does not present an “overcount” in the sense that that word was used in OMA. Combs wrote on each part-petition that there were “44” signatures. But еach part-petition contains only 20 numbered signature lines and could therefore contain a maximum of 20 signatures. Combs did not attempt to do what the statute required (write on each part-petition the number of signatures witnessed on that part-petition) and then negligently execute that task by miscounting the signatures—he misinterpreted
{¶ 17} In this mаndamus action, Combs‘s burden is to show by clear and convincing evidence that he has a clear legal right to the relief he seeks. Combs suggests that writing on each part-petition the total number of signatures on the entire petition was sufficiеnt to accomplish
4. Reconsideration Hearing
{¶ 18} Combs asserts that the board held a hearing on his request for reconsideration, and he argues that the board violated a legal duty by not providing him with prior notice of the hearing. The board counters that it did not hold a hearing. Combs‘s evidence thаt a hearing occurred consists of his own affidavit, in which he avers that “someone” at the board told him on September 3 that his hearing request had been granted and that the hearing had already taken place. The board‘s evidence includes its meeting minutes, indicating that Combs‘s reconsideration request died for lack of a motion, and the affidavit of its deputy director, who prepared the minutes, averring that the minutes are accurate and that no hearing was held. On this record, Combs has not established by clear and convincing evidence that a hearing occurred. See Disciplinary Counsel v. Jackson, 81 Ohio St.3d 308, 311, 691 N.E.2d 262 (1998) (“When clear and convincing evidence is required, we are not disposed to let the matter turn on allegations of the possible failure of service and affidavits with possible hearsay evidence“).
{¶ 19} Moreover, as Combs acknowledges, boards of elections have no legal duty to hold reconsideration hearings. Combs is correct that if a board neverthеless chooses to hold a hearing, it must provide notice to the parties. See Secretary of State Directive 2019-18, Section 1.04, Ohio Election Official Manual, at 12-11. But Combs has not asked us to order the board to hold a new hearing with proper notice, and he hаs not explained how the notice requirement (or a board‘s failure to meet it) would give rise to a clear legal right to the relief that he does seek in this action—an order compelling the board to verify his petition signatures and place his name on the ballot.
III. CONCLUSION
{¶ 20} Because Combs has not established a clear legal right to the relief he seeks or a clear legal duty on the part of the board to provide it, we deny the writ.
Writ denied.
O‘CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only.
__________________
Isaac, Wiles, Burkholder & Teetor, L.L.C., Donald C. Brey, Mark R. Weaver, and Matthew R. Aumann, for relator.
Stephen K. Haller, Greene County Prosecuting Attorney, and Elizabeth A. Ellis, Assistant Prosecuting Attorney, for respondent.