THE STATE EX REL. WATERS v. SPAETH ET AL.
No. 2011-2152
Supreme Court of Ohio
Submitted January 10, 2012-Decided January 11, 2012
131 Ohio St.3d 55, 2012-Ohio-69
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Terrance Hough, pro se.
William D. Mason, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee.
Per Curiam.
{¶ 1} This is an expedited election action for a writ of mandamus to compel respondents, the Warren County Board of Electiоns and its members, to place the name of relator, Robert E. Waters, on the ballot as a candidate for the Warren County Republican Party Central Committee, Precinct 15, of the city of Lebanon, at the March 6, 2012 primary election. Because Waters voted in a primary election as a member of a different political party within the preceding two calendar years, he is barred from candidacy in the March 6, 2012 Republican primary election. Therefore, we deny the writ.
Facts
{¶ 2} Waters is a registered voter residing in Lebanon in Warren County. In February 2010, he filed a declaration of candidacy and рetition to be a Libertar-
{¶ 3} On December 7, 2011, Waters filed a petition to be a candidate for the Warren County Republican Party Central Committee for the 15th Precinct, in Lеbanon, at the March 6, 2012 Republican primary election. At a December 13, 2011 meeting of respondent Warren County Board of Elections, both board members present voted not to certify Waters‘s candidacy.
{¶ 4} Eight days later, on December 21, Waters filed this expedited election action for a writ of mandamus to compel the board and its members to certify his candidacy. Respondents filed an answer on December 30, and the parties filed briefs and evidence pursuant to the accelerated schedule in S.Ct.Prac.R. 10.9.
{¶ 5} This cause is now before the court for our consideration of the merits.
Analysis
Mandamus
{¶ 6} Watеrs requests a writ of mandamus to compel the board of elections to place his name on the March 6, 2012 primary election ballot as a candidate for member of the Warren County Republican Party Central Committee. To be entitled to the writ, Waters must establish a clear legal right to the requested relief, a clear legal duty on the part of the board and its members to provide it, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Eshleman v. Fornshell, 125 Ohio St.3d 1, 2010-Ohio-1175, 925 N.E.2d 609, ¶ 20. Because of the proximity of the March 6, 2012 primary election, Waters has established that he lacks an adequate remedy in the ordinary сourse of the law. State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d 617, ¶ 25; see also S.Ct.Prac.R. 10.9.
{¶ 7} For the remaining requirements, “[i]n extraordinary actions challenging the decisions of the Secretary of State and boards of elections, the standard is whether they engaged in fraud, cоrruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions.” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9, quoting Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11.
R.C. 3513.191(A) and 3517.01(A)(1)
{¶ 8} Waters asserts that the board of elections abused its discretion and clearly disregarded
{¶ 9}
No person shall be a candidate for nomination or election at a party primary if the person voted as a member of a different political party at any primary election within the current year and the immediately preceding two years.
{¶ 10} The applicable version of
A political party within the meaning of Title XXXV of the Revised Code is any group of voters that, at the most recent regular state electiоn, polled for its candidate for governor in the state or nominees for presidential electors at least five per cent of the entire vote cast for that office or that filed with the seсretary of state, subsequent to any election in which it received less than five per cent of that vote, a petition signed by qualified electors equal in number to at least one per cent of thе total vote for governor or nominees for presidential electors at the most recent election, declaring their intention of organizing a political party, the name of which shall be stated in the declaration, and of participating in the succeeding primary election, held in even-numbered years, that occurs more than one hundred twenty days after the date of filing.
{¶ 11} Waters claims thаt the Libertarian Party is not a political party as defined in
{¶ 13} The definition of “political party” in
a petition signed by qualified electors equal in number to at least one per cent of the total vote fоr governor or nominees for presidential electors at the most recent election, declaring their intention of organizing a political party, the name of which shall be stated in the declаration, and of participating in the succeeding primary election, held in even-numbered years, that occurs more than one hundred twenty days after the date of filing.
Waters‘s complaint did not allege that the Libertarian Party failed to meet this alternate method of qualifying as a political party for purposes of Ohio‘s election laws, and he failed to submit clear and convincing evidencе that this portion of the statutory definition of “political party” in
{¶ 14} Moreover,
{¶ 15} In addition, state election officials must follow the applicable requirements of federal election law, including pertinent federal court orders. See, e.g., State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35, 941 N.E.2d 782, ¶ 37 (“the secretary of state also has a duty to instruct election officials on the applicable requirements of federal election law as well as federal court orders that are applicable to them“). In Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.2006), the United States Court of Appeals for the Sixth Circuit held that Ohio‘s system for minor-party qualification for ballot аccess violated the rights of political parties and voters to exercise their First Amendment rights. Id. at 594-595. In 2008, a federal district court ordered, pursuant to Blackwell, that the secretary of state place the Libertarian Party of Ohio and its candidates on the November 2008 election ballot. Libertarian Party of Ohio v. Brunner, 567 F.Supp.2d 1006, 1016 (S.D.Ohio 2008). In 2011, a federal district court ordered, pursuant to Blackwell, that the secretary of state place the Libertarian Party of Ohio and its candidates on the 2011 and 2012 election ballots. Libertarian Party of Ohio v. Husted, S.D.Ohio No. 2:11-CV-722, 2011 WL 3957259 (Sept. 7, 2011), as modified by the nunc pro tunc order dated October 18, 2011. Therefore, notwithstanding
{¶ 16} The secretary of state ordered boards of elections to recognize the Libertarian Party and certain other minor political parties as political parties entitled to ballot access in 2010 and 2012. Secretary of State Directive Nos. 2009-21 and 2011-38. Based on the applicable law, the secretary of state‘s construction of the applicable statutory provisions is reasonable and is thus entitled to dеference. See Rothenberg v. Husted, 129 Ohio St.3d 447, 2011-Ohio-4003, 953 N.E.2d 327, ¶ 2. And the board of elections and its members have a duty to follow the secretary of state‘s directives.
{¶ 17} Finally, insofar as Waters claims that the Warren County Board of Electiоns treated him differently from how the Franklin County Board of Elections treated a comparable candidate, he has not submitted sufficient evidence establishing an equal-protection violation, the Warren County Board of Elections is not bound by the decisions of another county board of elections, and the issue whether the Franklin County Board of Elections acted properly is not before this court.
{¶ 18} Thеrefore, the Libertarian Party constituted a political party for purposes of applicable election law, and under the plain language of
Conclusion
{¶ 19} Because Waters failed to establish his entitlement to the requested extraordinary reliеf in mandamus, we deny the writ.
Writ denied.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
David P. Fornshell, Warren County Prosecuting Attorney, and Keith W. Anderson, Assistant Prosecuting Attorney, for respondents.