State ex rel. Henderson v. Clermont Cty. Bd. of Elections

[This decision has been published in Ohio Official Reports at 174 Ohio St.3d 409.]

THE STATE EX REL . HENDERSON v. CLERMONT COUNTY BOARD OF

ELECTIONS.

[Cite as State ex rel. Henderson v. Clermont Cty. Bd. of Elections,

2024-Ohio-333.]

Mandamus—Relator failed to comply with personal-knowledge requirement of

S.Ct.Prac.R. 12.02(B)(2) in affidavit filed with petition—Cause dismissed.

(No. 2024-0090—Submitted January 30, 2024—Decided January 31, 2024.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} In this expedited election matter, relator, Matthew Henderson, seeks

a writ of mandamus ordering respondent, the Clermont County Board of Elections,

to place his name on the March 19, 2024 primary-election ballot as a candidate for

the Republican Party nomination for the office of U.S. Representative for the

Second Ohio Congressional District. The board determined that Henderson’s

candidate petition did not contain enough valid signatures to qualify him for

placement on the ballot.

{¶ 2} Henderson subsequently filed a motion for leave to amend the

affidavit that he filed with his complaint, in response to the board’s contention that

his affidavit does not comply with S.Ct.Prac.R. 12.02(B)(2). Because Henderson’s

amended affidavit does not cure all the defects of his original affidavit, we deny the

motion for leave as futile and dismiss the complaint for failure to comply with

S.Ct.Prac.R. 12.02(B)(2).

SUPREME COURT OF OHIO

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Process for Becoming a Congressional Candidate

{¶ 3} Henderson seeks the Republican Party nomination for a seat in the

U.S. House of Representatives representing the Second Ohio Congressional

District. Ohio’s second congressional district encompasses territory in multiple

counties.

{¶ 4} Under R.C. 3513.05, a person desiring to become a candidate for a

party nomination for a congressional office must file a declaration of candidacy and

petition no later than 4:00 p.m. on the 90th day before the day of the primary

election. To be valid, the petition must contain the signatures of at least 50 qualified

electors who are members of the same political party as the candidate. Id. When,

as here, the declaration of candidacy is for a congressional district that encompasses

territory in more than one county, the petition must be filed with the board of

elections of the most populous county within the district. Id. Clermont County is

the most populous county in the second congressional district. See Ohio Secretary

of State, County Populations and Filing Locations, Ohio Congressional Districts,

available at https://www.ohiosos.gov/elections/elections-officials/rules/#manual

(accessed Jan. 30, 2024) [https://perma.cc/ZNW7-CBHU].

{¶ 5} The board of elections with which the petition is filed shall promptly

transmit to the board of each other county within the district the petition papers “as

purport to contain signatures of electors” from those counties. R.C. 3513.05. If a

part-petition contains signatures of electors of more than one county, “the board

shall determine the county from which the majority of signatures came, and only

signatures from such county shall be counted. Signatures from any other county

shall be invalid.” Id. Each board receiving petitions “shall * * * examine and

determine the validity or invalidity of the signatures on the petition papers so

transmitted to or filed with it * * * and shall return to each other board all petition

papers transmitted to it by such board, together with its certification of its

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January Term, 2024

determination as to the validity or invalidity of the signatures thereon.” Id. Upon

return of the petition papers, the board of elections of the most populous county in

the district must then determine whether the petition contains enough valid

signatures to qualify the candidate for placement on the primary-election ballot. Id.

B. Henderson Is Not Certified for the Ballot

{¶ 6} On December 20, 2023, Henderson filed with the board a declaration

of candidacy and nominating petition to run for the Republican Party nomination

for the office of U.S. Representative for the Second Ohio Congressional District.

Henderson’s petition consisted of four part-petitions containing 63 total signatures:

• Part-petition No. 1 contains 12 signatures, with all signers purporting to be

electors of Ross County.

• Part-petition No. 2 contains 23 signatures, with all signers purporting to be

electors of Pickaway County.

• Part-petition No. 3 contains 24 signatures, with signers purporting to be electors

of Pickaway, Pike, Ross, or Scioto Counties.

• Part-petition No. 4 contains 4 signatures, with all signers purporting to be

electors of Hocking County.

{¶ 7} The board unanimously rejected Henderson’s petition at its regular

meeting on December 22. The board found that the “Petition for Candidate” section

had not been completed on part-petition No. 1, thus rendering it invalid in its

entirety. And regarding part-petition No. 3, the board noted that it contained

signatures of purported electors from four different counties, and because the most

signatures came from purported electors of Pickaway County, the valid signatures

from only that county would be counted and “[a]ll other signatures would be

invalidated.” See R.C. 3513.05. As a result, Henderson’s petition contained fewer

than the 50 valid signatures required to qualify him for placement on the primary-

election ballot.

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SUPREME COURT OF OHIO

{¶ 8} The board declined Henderson’s request that it reconsider its decision.

Henderson commenced this action on January 16, 2024, requesting a writ of

mandamus ordering the board to certify his name for placement on the March 19

primary-election ballot as a candidate for the Republican Party nomination for U.S.

Representative of the Second Ohio Congressional District. Along with his

complaint, Henderson submitted an affidavit in which he avers “upon personal

knowledge or information” that the facts alleged in the complaint “are true and

accurate as [he] verily believe[s].” We set an expedited schedule for the board to

file an answer to the complaint and for the parties to submit evidence and merit

briefs. 172 Ohio St.3d 1449, 2024-Ohio-153, 225 N.E.3d 998.

{¶ 9} In its answer, the board denied that Henderson was entitled to relief

and raised as an additional defense that Henderson’s complaint was defective for

failing to include an affidavit as required by S.Ct.Prac.R. 12.02(B)(2). Henderson

then filed a motion for leave to amend his affidavit, which the board opposes.

II. ANALYSIS

{¶ 10} A complaint for a writ of mandamus “must be * * * verified by

affidavit.” R.C. 2731.04. In addition, S.Ct.Prac.R. 12.02(B)(1) states that a

complaint in an original action in this court “shall be supported by an affidavit

specifying the details of the claim.” Our rules further provide that the affidavit

“shall be made on personal knowledge, setting forth facts admissible in evidence,

and showing affirmatively that the affiant is competent to testify to all matters stated

in the affidavit.” S.Ct.Prac.R. 12.02(B)(2).

{¶ 11} In this case, Henderson submitted an affidavit purporting to testify

to the truth of the facts set forth in his complaint and to the authenticity of the

documents attached to the complaint. The board argues that Henderson’s affidavit

is fatally defective for two reasons: (1) it is not properly notarized and (2) it does

not satisfy the personal-knowledge requirement. Henderson filed a motion for

leave to amend his original affidavit and attached a copy of his amended affidavit

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January Term, 2024

to both the motion for leave and his reply brief. The amended affidavit is identical

to the original affidavit except that it cures the notarial defect that was in the original

affidavit.1

{¶ 12} In its opposition to the motion for leave, the board acknowledges

that Henderson’s amended affidavit is properly notarized. However, the board

argues that Henderson’s motion should still be denied because the amended

affidavit has not cured the other material deficiency of the original affidavit—it

does not satisfy the personal-knowledge requirement under S.Ct.Prac.R.

12.02(B)(2). See State ex rel. McDougald v. Greene, 160 Ohio St.3d 82, 2020-

Ohio-2782, 153 N.E.3d 75, ¶ 14 (court may deny motion for leave to amend when

the amendment would be futile).

{¶ 13} Both the original and the amended affidavit state in the preamble that

Henderson is testifying “upon personal knowledge or information.” (Emphasis

added.) Henderson concludes both affidavits by stating, “I have reviewed the facts

set forth in the foregoing Complaint and verify that the facts are true and accurate

as I verily believe.”

{¶ 14} “An affidavit that is made ‘ “to the best of” ’ an affiant’s ‘personal

knowledge and information’ does not satisfy S.Ct.Prac.R. 12.02(B)(2), because that

type of statement does not make clear ‘which allegations are based on personal

knowledge and which allegations are based simply on information.’ ” State ex rel.

Simonetti v. Summit Cty. Bd. of Elections, 151 Ohio St.3d 50, 2017-Ohio-8115, 85

N.E.3d 728, ¶ 11, quoting State ex rel. Commt. for the Charter Amendment for an

Elected Law Dir. v. Bay Village, 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d

574, ¶ 12-13, quoting State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-

1. Henderson’s original affidavit was defective because it contained a notarial seal but not the

signature of the notary. See State ex rel. White v. Franklin Cty. Bd. of Elections, 160 Ohio St.3d 1,

2020-Ohio-524, 153 N.E.3d 1, ¶ 13 (documents containing notarial stamp but not signature of notary

are unsworn statements).

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Ohio-5334, 776 N.E.2d 1050, ¶ 24. Thus, we have held that affidavits containing

language similar to that of Henderson’s do not comply with S.Ct.Prac.R.

12.02(B)(2). See, e.g., Simonetti at ¶ 12 (affidavit “ ‘based upon [affiant’s] personal

knowledge and information’ ” is invalid); State ex rel. Beard v. Hardin, 153 Ohio

St.3d 571, 2018-Ohio-1286, 109 N.E.3d 1174, ¶ 11 (affidavit containing the

language “ ‘statements that I make in this Affidavit are based upon my personal

knowledge or upon information that I believe to be true,’ ” does not comply with

S.Ct.Prac.R. 12.02(B)(2) [emphasis deleted]); State ex rel. Youngstown v.

Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d

1229, ¶ 14 (affidavit attesting to factual allegations being true “ ‘to the best of [the

affiant’s] knowledge, information, and belief’ ” does not comply with S.Ct.Prac.R.

12.02(B)(2) [brackets sic]).

{¶ 15} We have declined to dismiss mandamus petitions for noncompliance

with S.Ct.Prac.R. 12.02(B)(2) when the relator sought leave to cure the defective

personal-knowledge language in an amended affidavit and did, in fact, cure it.

Simonetti at ¶ 13; Beard at ¶ 13; Youngstown at ¶ 14. But in this case, while

Henderson has sought leave to file an amended affidavit, he has not cured the

personal-knowledge defect that is present in the original affidavit. Indeed, he has

submitted an affidavit with the same defective personal-knowledge language, albeit

one that has been properly notarized. Accordingly, Henderson’s proposed amended

affidavit remains noncompliant with S.Ct.Prac.R. 12.02(B)(2). We therefore deny

his motion for leave to amend as futile and dismiss the complaint for

noncompliance with S.Ct.Prac.R. 12.02(B)(2).

{¶ 16} Because Henderson’s complaint is fatally defective, we need not

reach the merits of his mandamus claim.

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January Term, 2024

III. CONCLUSION

{¶ 17} We deny as futile Henderson’s motion for leave to amend his

affidavit and dismiss the complaint for failure to comply with S.Ct.Prac.R.

12.02(B)(2).

Cause dismissed.

KENNEDY, C.J., and FISCHER, DEWINE, STEWART, BRUNNER, and DETERS,

JJ., concur.

DONNELLY, J., concurs in judgment only and would reach the merits of the

case.

_________________

Matthew Henderson, pro se.

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Brian C.

Shrive, Julia B. Carney, and Joseph T. Mooney, Assistant Prosecuting Attorneys,

for respondent.

_________________

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