THE STATE EX REL. WELLER, APPELLANT, v. TUSCARAWAS COUNTY BOARD OF ELECTIONS, APPELLEE.
No. 2019-1348
SUPREME COURT OF OHIO
Decided October 18, 2019
2019-Ohio-4300
Submitted October 11, 2019
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Weller v. Tuscarawas Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-4300.]
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.
SLIP OPINION NO. 2019-OHIO-4300
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Weller v. Tuscarawas Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-4300.]
Elections—Mandamus—Writ of mandamus sought to compel board of elections to certify appellant‘s name on November 2019 ballot as mayoral candidate for village of Sugarcreek—By failing to complete the nominating-petition portion of the part-petitions signed by electors, appellant failed to substantially comply with
APPEAL from the Court of Appeals for Tuscarawas County, No. 2019 AP 09 0037, 2019-Ohio-4032.
{¶ 1} Appellant, Clayton Weller, appeals the Fifth District Court of Appeals’ judgment denying his request for a writ of mandamus ordering appellee, the Tuscarawas County Board of Elections, to certify Weller‘s name to the November 2019 ballot as a candidate for mayor of the village of Sugarcreek. We affirm the Fifth District‘s judgment.
{¶ 2} On June 21, 2019, Weller submitted his petition to the board. The petition was comprised of four part-petitions, all on Form No. 3-O, which is the form that the secretary of state has prescribed for candidates running for nonpartisan municipal offices. On each part-petition, Weller completed the statement-of-candidacy portion and the circulator-statement portion, but he left blank the nominating-petition portion, which precedes the lines on which electors place their signatures and states:
We, the undersigned, qualified electors of the State of Ohio, whose voting residence is in the county, city, village, or township set opposite our names, hereby nominate [NAME OF CANDIDATE] as a candidate for election to the office of [OFFICE] in the City or Village of [NAME OF CITY OR VILLAGE] for the: [CHECK ONE] * * * full term or * * * unexpired term ending [unexpired term ending date], to be voted for at the next general election, and certify said person is, in our opinion, well qualified to perform the duties of the office or position to which the person desires to be elected.
On August 19, the board rejected Weller‘s petition because he had not completed the nominating-petition portions of the Form No. 3-O part-petitions.
{¶ 3} On September 9, Weller filed a complaint in the Fifth District seeking a writ of mandamus ordering the board to certify his name to the November ballot. 2019-Ohio-4032, ¶ 1. Weller argued that (1) he had completed the statement-of-candidacy portions of his part-petitions and that the information omitted from the nominating-petition portion of Form No. 3-O is merely duplicative of the information in the statement-of-candidacy portion and (2) there was no strict requirement that he fill in the blanks in that portion of the Form No. 3-O and therefore, by completing the statement of candidacy, his petition substantially complied with
{¶ 4} On September 30, the Fifth District denied the writ based on its conclusion that Weller‘s petition did not substantially comply with
{¶ 5} Weller filed a notice of appeal on October 3. He also filed a motion to expedite, which we granted. ___ Ohio St.3d ___, 2019-Ohio-4095, ___ N.E.3d ___.
II. ANALYSIS
A. Mandamus Standard
{¶ 6} Weller is entitled to a writ of mandamus if he establishes by clear and convincing evidence that (1) he has a clear legal right to have his name placed on the ballot, (2) the board has a clear legal duty to place his name on the ballot, and (3) he 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 November election, Weller lacks an adequate remedy in the ordinary course of the law. 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. Nominating Petitions
{¶ 8} “[T]he general rule is that unless there is language allowing substantial compliance, election statutes are mandatory and must be strictly complied with.” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 15.
{¶ 9}
{¶ 10}
{¶ 11} Weller was therefore required to strictly comply with the requirement that his nomination to office be achieved by nominating petition and to substantially comply with the statutory form of the nominating petition. The parties appear to have overlooked
{¶ 12} In State ex rel. Allen v. Lake Cty. Bd. of Elections, 170 Ohio St. 19, 161 N.E.2d 896 (1959), the relator had submitted four part-petitions with invalid circulator‘s affidavits.2 Id. at 20. The relator argued that “since the only requirement for a circulator‘s affidavit appears in the statutory form and * * * the statute requires only that a nominating petition form shall be substantially the
The statutory form, like any suggested statutory form, need not be followed absolutely as to its wording. The statute [prescribing the form] itself provides for only substantial compliance. However, as we have said, substantial compliance would not warrant complete omission of the jurat of the circulator. Such jurat is a vital and material part of the nominating petition paper, and its inclusion is a condition precedent to the acceptance and validation of a candidate‘s nominating petition paper by a board of elections.
Id. (Emphasis added.)
{¶ 13} In State ex rel. Wilson v. Hisrich, 69 Ohio St.3d 13, 630 N.E.2d 319 (1994), the relator had filed one part-petition that contained a declaration of candidacy and had attached to it three additional part-petitions that did not contain declarations of candidacy. Id. at 15. This court held that this violated
{¶ 14} Weller points out that he completed the statement-of-candidacy portions of his part-petitions and that all of the information that he would have added to the nominating-petition portion of Form No. 3-O was included in his statement of candidacy on the same form. However, it is apparent from the language and structure of
{¶ 15} Because the statement-of-candidacy portion of the form contains no language actually nominating the candidate to office, we conclude that the nominating-petition portion of the form is a “vital and material part of the nominating petition paper,” Allen, 170 Ohio St. at 20, and that Weller‘s submission of Form No. 3-O part-petitions that omitted his name and the office he sought from the nominating-petition portion of the
{¶ 16} Under the facts of this case, in which Weller utilized Form No. 3-O, his failure to substantially comply with
{¶ 17} Weller argues that no one who signed his petition was misled or confused about who the form was nominating as a candidate for mayor, because he is a two-term incumbent mayor, he is well known in Sugarcreek, he was the sole circulator of his own part-petitions, and the information missing from the nominating petition was present in the statement of candidacy. However, this argument is similar to the argument this court rejected in Wilson—that the petition signers all saw the missing declaration of candidacy—and in Wilson there were affidavits from the petition signers, not just from the candidate. 69 Ohio St.3d at 16. Regardless, Weller did not comply with the statutory requirements, so this argument is irrelevant.
{¶ 18} The cases Weller cites in support of his argument are distinguishable because in each case, there was no requirement that the information that was omitted from or incorrectly stated on the part-petition be included. See State ex rel. Phillips v. Lorain Cty. Bd. of Elections, 62 Ohio St.3d 214, 217, 581 N.E.2d 513 (1991); State ex rel. Phillips v. Lorain Cty. Bd. of Elections, 93 Ohio St.3d 535, 540, 757 N.E.2d 319 (2001); State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St.3d 584, 2010-Ohio-1176, 925 N.E.2d 601, ¶ 38. Here, by contrast,
III. CONCLUSION
{¶ 19} For the foregoing reasons, we affirm the judgment of the Fifth District denying the writ.
Judgment affirmed.
FISCHER, DEWINE, and STEWART, JJ., concur.
O‘CONNOR, C.J., concurs, with an opinion joined by STEWART, J.
KENNEDY, J., dissents, with an opinion.
FRENCH and DONNELLY, JJ., dissent.
O‘CONNOR, C.J., concurring.
{¶ 20} I join the majority opinion. I write separately in response to the basic contention of the dissenting opinion that we should “let the people vote,” dissenting opinion at ¶ 25, and the suggestion that the majority‘s decision undermines the right to vote. I too am a proponent of the right to vote. However, this appeal does not involve one‘s right to vote. Rather, the central issue in this case is the right of a candidate to appear on the ballot.
{¶ 21} The dissenting opinion contends that “‘any restrictions on the [right to vote] strike at the heart of representative government.‘” Id. at ¶ 42, quoting Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). However, that view creates a tension between our right to vote and the rule of law. The rule of law plainly requires that appellant Clayton Weller‘s nomination be made only by a nominating petition,
{¶ 22} The dissenting opinion seemingly conflates the requirement of substantial compliance as to the form of the nominating petition, which is all that
Here,
R.C. 3513.261 provides that a nominating petition “shall be substantially in the form prescribed in this section.” Thus, the statute requires only substantial compliance with the prescribed “form” of the nominating petition, but the statute contains no language regarding substantial compliance as to other matters.
Id. at ¶ 26. As Weller‘s nominating petition pictured in the dissenting opinion clearly illustrates, there was simply no compliance whatsoever because the contents of the nominating petition that precedes the electors’ signatures is entirely blank. Simply because the secretary of state chose to combine the statement of candidacy and the nominating petition into one form does not repudiate the statute‘s requirement of strict compliance as to content. It is our duty to follow the election laws of this state regardless of whether they lead us to the result we desire.
{¶ 23} “As we have consistently held, ‘“[c]ounty boards of elections are of statutory creation, and the members thereof in the performance of their duties must comply with applicable statutory requirements.“‘” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 11, quoting Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 12, quoting State ex rel. Babcock v. Perkins, 165 Ohio St. 185, 187, 134 N.E.2d 839 (1956). So too must we.
{¶ 24} To hold county boards of election to a standard other than what the General Assembly has prescribed does not promote the public policy favoring free, competitive, and fair elections but, rather, opens the door to allowing county boards and the judiciary to ignore the rule of law and play to subjective evaluation or political whims. I therefore concur in the court‘s judgment affirming the Fifth District Court of Appeals’ judgment denying the writ.
STEWART, J., concurs in the foregoing opinion.
KENNEDY, J., dissenting.
{¶ 25} Because I would let the people vote, I dissent and would reverse the judgment of the Fifth District Court of Appeals and grant the writ.
{¶ 26}
{¶ 27} Applying this standard here, appellant Clayton Weller‘s petition to be a candidate for mayor of the village of Sugarcreek on the November ballot sufficiently conformed with
Facts and Procedural History
{¶ 28} Weller submitted four part-petitions to the board of elections in order to be placed on the ballot for mayor of Sugarcreek. On each part-petition, Weller completed the statement of candidacy, but no one filled in the nomination section of the petition:
Law and Analysis
{¶ 31} The General Assembly has imposed specific requirements for a nominating petition in addition to providing a sample form.
{¶ 32} These are substantive requirements. The candidate‘s signed statement of candidacy is required to confirm that the candidate is willing to accept the nomination and serve in the elective office while also verifying that he or she is qualified to do so. The addresses of the signers and the date of signing are needed to confirm that each signer is eligible to nominate the candidate. And the circulator‘s statement is needed to protect against forged signatures. And this is why the Form No. 3-O promulgated by the secretary of state states in bold type that “[t]he candidate must fill in, sign and date this statement of candidacy before the signatures of electors are affixed” and that the circulator statement “[m]ust be completed and signed by the circulator.”
{¶ 33} In one case on which the majority relies, State ex rel. Wilson v. Hisrich, 69 Ohio St.3d 13, 630 N.E.2d 319 (1994), we refused to order a board of elections to place a candidate‘s name on the ballot. The board had rejected his petition because it omitted the candidate‘s declaration of candidacy on three part-petitions, a flaw that involved such an express, substantive requirement that it affected the validity of the petition.
{¶ 34} In contrast, this court has held that a petition‘s failure to contain material included in the sample petition form but not expressly required by the statute does not necessarily invalidate a petition. For example, the sample form provided by
{¶ 35} Similarly, neither the relevant statutes nor the form itself provides any specific instruction that the candidate, the signers, or the circulator must fill out the blanks in the nomination section of the petition. Rather,
[t]he form of the nominating petition * * * shall be substantially as follows:
* * *
We, the undersigned, qualified electors of the state of Ohio, whose voting residence is in the County, City, Village, Ward, Township or Precinct set opposite our names, hereby nominate .................... as a candidate for election to the office of ........................... in the ............................ (State, District, County, City, Village, Township, or School District) for the ................. (Full term or unexpired term ending ...................) to be voted for at the next general election next hereafter to be held, and certify that this person is, in our opinion, well qualified to perform the duties of the office or position to which the person desires to be elected.
{¶ 36} The majority holds that another statute,
{¶ 37} Importantly, we have explained that strict compliance is appropriate when “‘such complete and absolute conformance to each technical requirement of the printed form serves a public interest and a public purpose.‘” Stewart, 124 Ohio St.3d 584, 2010-Ohio-1176, 925 N.E.2d 601, at ¶ 28, quoting Stern, 14 Ohio St.2d at 180, 237 N.E.2d 313. As we observed in Stewart:
“The public policy which favors free competitive elections, in which the electorate has the opportunity to make a choice between candidates, outweighs the arguments for absolute compliance with each technical
requirement in the petition form, where the statute requires only substantial compliance, where, in fact, the only omission cannot possibly mislead any petition signer or elector, where there is no claim of fraud or deception, and where there is sufficient substantial compliance to permit the board of elections, based upon prima facie evidence appearing on the face of the jurat which is part of the petition paper, to determine the petition to be valid.”
Id., quoting Stern at 184. Our decision in State ex rel. Allen v. Lake Cty. Bd. of Elections, 170 Ohio St. 19, 161 N.E.2d 896 (1959), on which the majority relies—and which upheld the rejection of a petition because the circulator‘s jurat included only in the statutory form was invalid—predates our adoption of this substantial compliance standard.
{¶ 38} A nominating petition with an incomplete nomination section can constitute substantial compliance, because the signer‘s intent to nominate the candidate for the office and term indicated in the candidate‘s statement of candidacy is unambiguously manifested by the fact that the signer has affixed his or her signature to the nominating petition—there is no conceivable reason that an elector would sign a nominating petition if the elector did not genuinely intend to nominate the candidate. See State ex rel. Myles v. Brunner, 120 Ohio St.3d 328, 2008-Ohio-5097, 899 N.E.2d 120, ¶ 23 (“the ‘only reason to complete the form was to obtain an absentee ballot for the November 4, 2008 election,’ and signing it necessarily indicated that the applicant represented, ‘I am a qualified elector and would like to receive an Absentee Ballot for the November 4, 2008 General Election,’ regardless of whether the box next to the statement was marked“).
{¶ 39} Further, any concerns that a petition signer or elector could be misled by the failure to fill in the blanks in the nomination section of the petition are dispelled when that information is wholly duplicative of information prominently included in the candidate‘s statement. See Stewart at ¶ 38 (noting that a signer would not be misled by the omission of the primary-election date on a declaration of candidacy). Nor does it invite fraud or deception, because a mismatch between the candidate‘s statement and the nomination section of the petition would attract a board‘s scrutiny and presumably result in the invalidation of the petition.
{¶ 40} In the last analysis, Weller met the express requirements of
Conclusion
{¶ 41} Weller, the incumbent mayor of the village of Sugarcreek, circulated his own petition. A sufficient number of qualified electors signed that petition. No protest was brought against his candidacy. But now, the board‘s action removing the incumbent from the ballot based on the
{¶ 42} Rather than elevate form over substance and ignore reality, we should “‘avoid unduly technical interpretations that impede the public policy favoring free, competitive elections.‘” Myles, 120 Ohio St.3d 328, 2008-Ohio-5097, 899 N.E.2d 120, at ¶ 22, quoting State ex rel. Ruehlmann v. Luken, 65 Ohio St.3d 1, 3, 598 N.E.2d 1149 (1992). After all, “[t]he right to vote freely for the candidate of one‘s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). “Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
{¶ 43} For these reasons, I would reverse the judgment of the court of appeals and grant the requested writ.
Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Tonya J. Rogers, for appellant.
Ryan D. Styer, Tuscarawas County Prosecuting Attorney, and Robert R. Stephenson II, Assistant Prosecuting Attorney, for appellee.