THE STATE EX REL. WEST ET AL. v. LAROSE, SECY.
No. 2020-1044
Supreme Court of Ohio
September 10, 2020
2020-Ohio-4380
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. West v. LaRose, Slip Opinion No. 2020-Ohio-4380.]
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. 2020-OHIO-4380
THE STATE EX REL. WEST ET AL. v. LAROSE, SECY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. West v. LaRose, Slip Opinion No. 2020-Ohio-4380.]
Elections—Mandamus—
(No. 2020-1044—Submitted September 4, 2020—Decided September 10, 2020.)
IN MANDAMUS.
{¶ 1} In this expedited election case, relators, Kanye West and Michelle Tidball, seek a writ of mandamus compelling respondent, Ohio Secretary of State Frank LaRose, to accept their statement of candidacy and nominating petition for president and vice president of the United States and to certify their names for placement on the November 3, 2020 general-election ballot. The secretary of state rejected the nominating petition for noncompliance with
{¶ 2} We deny the writ. The nominating petition did not substantially comply with the requirements of
I. Background
{¶ 3} West and Tidball are prospective independent candidates for president and vice president of the United States. On August 5, 2020, Matthew Aumann, the designated representative of West and Tidball‘s campaign in Ohio, filed with the secretary of state‘s office (1) a document containing West and Tidball‘s originally signed statement of candidacy, (2) a nominating petition that on its face contained a sufficient number of signatures to nominate West and Tidball as joint candidates for president and vice president, and (3) a slate of presidential electors pledged to West and Tidball.
{¶ 4} The nominating petition filed by Aumann consisted of approximately 1,400 part-petitions. With the part-petitions, Aumann filed only one “wet ink” original statement of candidacy that was signed by West and Tidball. Though each of the approximately 1,400 part-petitions included a copy of a statement of candidacy with West‘s and Tidball‘s signatures, none of those is a copy of the original that Aumann filed.
{¶ 5} The secretary of state‘s office transmitted the nominating petition to the various county boards of elections for verification of signatures. Reports from the county boards of elections indicate that there are more than 5,000 valid signatures on the nominating petition, which is a sufficient number to qualify for the ballot. See
{¶ 6} On August 19, J. Corey Colombo, one of the attorneys representing intervening respondent Lewis Goldfarb in this action, sent an e-mail to the secretary of state‘s office concerning West and Tidball‘s nominating petition. The e-mail stated that based on a review of documents he had obtained from the secretary of state‘s office, it appeared that the original nominating petition and statement of candidacy did not match the copies that were circulated with the part-petitions. Colombo suggested that this was a “fatal flaw” to the nominating petition and that the petition should not be certified. At the request of the secretary of state‘s chief legal counsel, Colombo later provided a more detailed explanation of his position that the nominating petition was invalid, with citations to statutes and caselaw.
{¶ 8} Following the secretary of state‘s rejection of the nominating petition, his office posted on its website a copy of the “original” version of the statement of candidacy and nominating petition that had been filed with the secretary of state alongside the “circulated version” that was attached to the part-petitions that had been filed:
West and Tidball have presented no evidence showing that they filed an original of the “circulated version” with the secretary of state as part of their nominating petition.
{¶ 9} None of the statements of candidacy attached to the part-petitions filed with the secretary of state is a copy of the original that was filed. Though Grandjean‘s August 21 rejection letter noted only the variance between Tidball‘s signatures,
- The dates of West‘s and Tidball‘s signatures on the original statements of candidacy are different from the dates on the circulated version. And Tidball‘s signature on the original is dated after the circulated version.
- The information provided in Tidball‘s statement of candidacy is handwritten on the original but typewritten in the circulated version.
- The original does not disclose the existence of a nominating committee, whereas the circulated version contains the names and addresses of five individuals purporting to be members of the nominating committee.
- The “Nominating Petition” section of the form in the circulated version has West‘s and Tidball‘s names printed in the spaces to name the candidates, but the original does not.
{¶ 10} West and Tidball filed this action on August 26, seeking a writ of mandamus to compel the secretary of state to (1) accept their statement of candidacy and nominating petition as candidates for president and vice president of the United States and (2) certify their names for placement on the November 3 general-election ballot. This court set an expedited schedule for the secretary of state to answer and for the parties to file their evidence and briefs. 159 Ohio St.3d 1484, 2020-Ohio-4213, ___ N.E.3d ___. Goldfarb, who had filed a protest against West and Tidball‘s nominating petition with the secretary of state under
II. Overview of Ballot-Access Statutes
{¶ 11} Several statutes in
{¶ 12}
A nominating petition may consist of one or more separate petition papers, each of which shall be substantially in the form prescribed in this section. If the petition consists of more than one separate petition paper, the statement of candidacy of the candidate or joint candidates named need be signed by the candidate or joint candidates on only one of such separate petition papers, but the statement of candidacy so signed shall be copied on each other separate petition paper before the signatures of electors are placed on it.
(Emphasis added.) Thus, if the nominating petition consists of more than one petition paper, the statement of candidacy that appears on the separate petition papers may be a copy of the original statement of
{¶ 13} The statement of candidacy and nominating petition must be filed with the secretary of state by 4:00 p.m. on the 90th day before the election.
III. Analysis
{¶ 14} To be entitled to a writ of mandamus, West and Tidball must establish by clear and convincing evidence that (1) they have a clear legal right to the requested relief, (2) the secretary of state has a clear legal duty to provide it, and (3) West and Tidball do not have an adequate remedy in the ordinary course of law. State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13.
{¶ 15} As to the third element, West and Tidball lack an adequate remedy in the ordinary course of law due to the proximity of the election, which is less than 60 days away. 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.
{¶ 16} The remainder of the analysis requires this court to determine whether the secretary of state “engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable law.” State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio St.3d 427, 2010-Ohio-1873, 928 N.E.2d 1072, ¶ 9. West and Tidball make much of the fact that Goldfarb‘s attorneys had “ex parte” communications with the secretary of state‘s office, advocating for the rejection of their nominating petition, and that the secretary of state rejected the petition for the same reason presented in those communications. But they do not argue that these communications constituted fraud or corruption on the part of the secretary of state. Nor have West and Tidball cited any authority for the proposition that the communications were improper. Therefore, “the dispositive issue is whether [the secretary] abused his discretion or clearly disregarded applicable law.” Linnabary at ¶ 14.
A. Authenticity of Tidball‘s Signature
{¶ 17} West and Tidball‘s first argument focuses on the authenticity of Tidball‘s signatures on the statements of candidacy that were filed with the secretary of state. Citing the rejection letter from Deputy Secretary of State Grandjean, West and Tidball argue that “the entire basis for the rejection” of their nominating petition “is that the Office of the Secretary of State simply ‘questioned’ which of two signatures purportedly that of [Tidball] was her genuine signature.” Tidball, however, avers under oath in the verified complaint that the signatures on both the original statement of candidacy and on the copies circulated with the separate part-petitions are hers. West and Tidball therefore argue that the secretary of state abused his discretion and disregarded applicable law in
{¶ 18} West and Tidball‘s argument is without merit because it misstates the secretary of state‘s legal basis for rejecting their petition. The secretary of state rejected the nominating petition because West and Tidball‘s original statement of candidacy did not match the copies of the statement of candidacy that were circulated with the various part-petitions. According to the secretary of state, this mismatch between the original statement of candidacy and the copies circulated with the part-petitions rendered the nominating petition deficient under
{¶ 19} In other words, even if Tidball‘s signature is genuine on her original statement of candidacy and on the copies circulated with the part-petitions, that fact does not entitle West and Tidball to relief in mandamus. The reason the secretary of state rejected the petition is that West and Tidball did not file the original statement of candidacy that was copied to the approximately 1,400 part-petitions that were filed as part of the nominating petition. And a comparison of the originally signed statement of candidacy and the “circulated version” reveals multiple differences, in addition to the apparent mismatch of Tidball‘s signatures, showing that the “circulated version” is not a copy of the “original.”
{¶ 20} Accordingly, the argument that Tidball‘s signature is genuine on both the original filed with the secretary of state and the copies that were circulated with the part-petitions is a red herring. West‘s and Tidball‘s entitlement to relief depends on whether their petition complies with
B. Strict or Substantial Compliance with R.C. 3513.261
{¶ 21} The parties disagree over the standard of compliance with
{¶ 22} We need not resolve the issue whether substantial compliance or strict compliance applies in this case. Even if substantial compliance is the standard, West and Tidball did not substantially comply with
C. The Nominating Petition Did Not Comply with R.C. 3513.261
{¶ 23} When a nominating petition consists of more than one part-petition,
{¶ 24} West and Tidball argue that they complied with
{¶ 25}
{¶ 26} West and Tidball, however, urge that this court‘s decisions in State ex rel. Osborn v. Fairfield Cty. Bd. of Elections, 65 Ohio St.3d 194, 602 N.E.2d 636 (1992), State ex rel. Beck v. Casey, 51 Ohio St.3d 79, 554 N.E.2d 1284 (1990), and Saffold, 22 Ohio St.2d 63, 258 N.E.2d 112, support the view that their nominating petition complies with
{¶ 27} Saffold and Osborn are readily distinguishable. In Saffold, the statements
{¶ 28} Finally, West and Tidball‘s reliance on Beck is also misplaced. In Beck, this court decided the validity of a nominating petition filed under
candidacy on a different day if, for example, “he ran out of copies or original declarations.” Id.
{¶ 29} West and Tidball argue that the secretary of state‘s rejection of their nominating petition is inconsistent with this court‘s holding and the secretary of state‘s position in Beck. But there is a fundamental distinction between the factual scenario in Beck and what occurred in this case.
{¶ 30} In Beck, 51 Ohio St.3d 79, 554 N.E.2d 1284, the candidate signed three declarations of candidacy, all of which were filed with the board of elections. There was no assertion in Beck that the candidate had filed copies of a declaration of candidacy without also filing the original. Although in Beck this court allowed for the possibility that multiple declarations of candidacy could be signed, Beck does not stand for the proposition that copies of such declarations attached to separate part-petitions are valid when the original from which they were copied is not filed with the petition papers.
{¶ 31} Requiring a candidate who files copies of a signed statement of candidacy to also file the original statement of candidacy “so signed” is consistent with
{¶ 32} For these reasons, the secretary of state did not abuse his discretion or clearly disregard applicable law when he rejected the nominating petition. We therefore deny the writ.
Writ denied.
O‘CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
The Law Firm of Curt C. Hartman and Curt C. Hartman, for relators.
Dave Yost, Attorney General, and Bridget C. Coontz and Halli Brownfield Watson, Assistant Attorneys General, for respondent.
McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, Derek S. Clinger, and Ben F.C. Wallace, for intervening respondent.
Notes
If the petition * * * to be filed with the declaration of candidacy, consists of more than one separate petition paper, the declaration of candidacy of the candidate named need be signed by the candidate * * * on only one of such separate petition papers, but the declaration of candidacy so signed shall be copied on each other separate petition paper before the signature[s] of electors are placed on it.