The opinion
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Portis, Appellee, v. Summit County Board of Elections,
Appellee; Tarle, Appellant.
[Cite as Portis v. Summit Cty. Bd. of Elections (1993),
Ohio St.3d .]
Elections -- Vehicle for challenging a candidate's
qualifications is a protest -- Election contests may not
be used as a vehicle for asserting an untimely protest.
(No. 93-1933 -- Submitted and decided October 15, 1993 --
Opinion announced October 25, 1993.*)
Appeal from the Court of Common Pleas of Summit County,
No. CV-93-09-3024.
Appellant Ernie J. Tarle received more votes than the
three other Democratic candidates who ran in the September 7,
1993 primary for the Fifth Ward seat on the Akron City
Council. Appellee David Portis, who received the second most
votes, challenged Tarle's nomination by filing an election
contest against appellee Summit County Board of Elections
("board") in the Summit County Court of Common Pleas. The
common pleas court found Tarle ineligible to seek the city
council office because he had not resided in the Fifth Ward for
one year prior to the November 2, 1993 general election, as
required by the Akron City Charter. The court further
pronounced Portis the Democratic nominee.
Tarle was not named as a party to the action or served
with Portis's complaint. However, he was permitted to
* Reporter's Note: The decision in this case was announced on
October 15, 1993, "consistent with the opinion to follow."
See 67 Ohio St.3d 1476, , N.E.2d . The "opinion to
follow" is announced today.
enter an appearance, file an answer, testify and present
witnesses in a hearing held September 20, 1993, and the common
pleas court declared him a "real party in interest" in its last
judgment entry. Acting now as appellant, Tarle asks for
reversal of the judgment below and his return to the ballot as
the Democratic nominee.
A. William Zavarello Co., L.P.A., A. William Zavarello and
Mark W. Ruf, for appellee Portis.
Lynn C. Slaby, Summit County Prosecuting Attorney, and
Donna C. Carr, Assistant Prosecuting Attorney for appellee
board of elections.
Blakemore, Meeker, Varian, Looney & Bowler Co., L.P.A.,
and Donald S. Varian, Jr., for appellant.
Per Curiam. This action was filed under the aegis of R.C.
3515.08 through 3515.16, but it lacks the substantive
characteristics of an election contest. "'An election contest,
under the statute, is to ascertain and decide which candidate
received the highest number of legal votes.'" State ex rel.
Kirk v. Wheatley (1938), 133 Ohio St. 164, 167, 10 O.O. 236,
238, 12 N.E.2d 491, 493, quoting Heffner v. State ex rel.
Johnson (1936), 131 Ohio St. 13, 15, 5 O.O. 254, 255, 1 N.E.2d
146, 147. To prevail, the contestor must prove "(1) that one
or more election irregularities occurred, and (2) that the
irregularity or irregularities affected enough votes to change
or make uncertain the result of the election." In re Election
of November 6, 1990 for the Office of Attorney General of Ohio
(1991), 58 Ohio St.3d 103, 569 N.E.2d 447, syllabus. Election
contests are "the exclusive remedy for a recounting of the
votes, or a correction of all errors, frauds, and mistakes
which may occur at an election." State ex rel. Byrd v. Summit
Cty. Bd. of Elections (1981), 65 Ohio St.2d 40, 19 O.O.3d 230,
417 N.E.2d 1375, paragraph one of the syllabus. Evidence in
election contests may include testimony from voters in the
election or election officials about casting and tabulating
votes. R.C. 3515.12; In re Election of Swanton Twp. (1982), 2
Ohio St.3d 37, 2 OBR 581, 442 N.E.2d 758. The evidence must
show that the election result was contrary to the will of the
electorate, or the result will not be disturbed. In re
Election of November 6, 1990, supra, 58 Ohio St.3d at 105, 569
N.E.2d at 450; Mehling v. Moorehead (1938), 133 Ohio St. 395,
408, 11 O.O. 55, 60, 14 N.E.2d 15, 21.
Portis submitted records and testimony from the board of
elections placing Tarle's voting residence outside the Fifth
Ward since the November 1992 general election. However, this
evidence goes to Tarle's qualifications, not the manner in
which the primary election was conducted or the validity of
votes cast for him. Evidence of nonresidency says nothing
about whether the election accurately ascertained the will of
the electorate. Indeed, Portis acknowledges that Tarle
received the highest number of votes.
The vehicle for challenging a candidate's qualifications,
particularly allegations of nonresidency, is a protest. See,
e.g., State ex rel. Brown v. Summit Cty. Bd. of Elections
(1989), 46 Ohio St.3d 166, 545 N.E.2d 1256; State ex rel.
Nichols v. Vinton Cty. Bd. of Elections (1985), 20 Ohio St.3d
1, 20 OBR 75, 484 N.E.2d 690; and State ex rel. Spangler v.
Cuyahoga Cty. Bd. of Elections (1983), 7 Ohio St.3d 20, 7 OBR
487, 455 N.E.2d 1009. In fact, Portis attempted to file a
protest pursuant to R.C. 3513.05, but did not file it timely
with the board of elections.
Election contests may not be used as a vehicle for
asserting an untimely protest. As we have said, election
contests must raise questions as to "the number of ballots for
or against any candidate, or in any respect as to the validity
of the election other than the eligibility of the candidate who
* * * received the larger number of votes in the election."
Kirk, supra, 133 Ohio St. at 167, 10 O.O. at 238, 12 N.E.2d at
493-494. Thus, Portis's untimely protest did not transform
itself into an election contest just because the instant
election was over when he filed it.
Accordingly, we hold that Portis has not shown any
irregularity or uncertainty in the primary election of
September 7, 1993 that warrants the relief an election contest
affords.
Order
Based on the foregoing, the common pleas court's judgment
pronouncing Portis the Democratic nominee for the Fifth Ward
seat on Akron City Council is reversed. In view of such
reversal, Tarle is entitled to all that he lost by reason of
the judgment below, Bickett v. Garner (1876), 31 Ohio St. 28,
paragraph one of the syllabus, which in this case must include
his reinstatement as the Democratic nominee for the purpose of
the 1993 general election. The common pleas court, therefore,
is ordered to issue a judgment requiring Tarle's reinstatement
on the ballot as the Democratic nominee for the Fifth Ward seat
on the Akron City Council.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
F.E. Sweeney, JJ., concur.
Pfeifer, J., dissents.