The opinion
[This opinion has been published in Ohio Official Reports at 80 Ohio St.3d 341.]
THE STATE EX REL. LYNCH v. CUYAHOGA COUNTY BOARD OF ELECTIONS
ET AL.
[Cite as State ex rel. Lynch v. Cuyahoga Cty. Bd. of Elections, 1997-Ohio-339.]
Mandamus to compel Cuyahoga County Board of Elections to reject the filing of a
second write-in candidate for Mayor of Westlake on the November 4, 1997
general election ballot—Writ denied, when.
(No. 97-2102—Submitted October 30, 1997—Decided November 3, 1997.)
IN MANDAMUS.
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{¶ 1} Respondent Cuyahoga County Board of Elections (“board”) certified
incumbent Mayor Dennis M. Clough as the only nominated candidate for Mayor of
the city of Westlake on the November 4, 1997 general election ballot. On August
11, 1997, Pat MacNeal filed a declaration of intent to be a write-in candidate for
mayor, and on September 15, 1997, intervening respondent Carol A. Corpus filed
a declaration of intent to be a write-in mayoral candidate. The board first certified
MacNeal and subsequently certified Corpus as write-in candidates for mayor.
{¶ 2} Forty-two days before the election, on September 23, 1997, relator,
Westlake Law Director David M. Lynch, advised the board by letter that, in his
opinion, the Westlake Charter prohibited more than two candidates in the
November 4 mayoral election and requested that the board “take whatever
corrective action [that] may be necessary to [e]nsure compliance with the Westlake
Charter.” On September 30, the board considered Lynch’s request and permitted
Lynch, Mayor Clough, and Corpus to state their contentions. Lynch argued that
under the Westlake Charter, the board should prevent Corpus’s write-in candidacy
because only the first write-in candidate should have been certified. The board
adopted its counsel’s recommendation and dismissed Lynch’s protest as untimely,
SUPREME COURT OF OHIO
allowing Corpus to remain a write-in candidate for mayor at the November 4
election.
{¶ 3} On October 10, Lynch filed this action for a writ of mandamus to
compel the board and its members “to reject the filing by the second write-in
candidate, Carol A. Corpus, and instruct its polling officials to count only those
write-in votes for [the first write-in candidate,] Pat MacNeal.” We granted
Corpus’s motion to intervene as a respondent, and the parties filed evidence and
briefs.
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Cassidy, Reiman & Harbarger and David R. Harbarger, for relator.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Michael
P. Butler and Patrick J. Murphy, Assistant Prosecuting Attorneys, for respondents
Cuyahoga County Board of Elections and its members.
John D. Ryan, for intervening respondent, Carol A. Corpus.
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Per Curiam.
{¶ 4} Lynch essentially asserts in his various propositions of law that the
board of elections abused its discretion and acted in clear disregard of the Westlake
Charter by refusing his request to prevent Corpus’s write-in candidacy for mayor.
In extraordinary actions challenging the decision of a board of elections, the
applicable standard is whether the board engaged in fraud, corruption, abuse of
discretion, or clear disregard of statutes or pertinent legal provisions. State ex rel.
Kelly v. Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413, 414, 639 N.E.2d
78, 79.
{¶ 5} The board, however, did not, as Lynch claims, abuse its discretion or
disregard the Westlake Charter by rejecting Lynch’s objection to Corpus’s
candidacy. First, as the board determined, Lynch’s protest was not timely filed.
Under R.C. 3513.041, “[p]rotests against the candidacy of any person filing a
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declaration of intent to be a write-in candidate may be filed by any qualified elector
who is eligible to vote in the election at which the candidacy is to be considered”
and the “protest * * * shall be filed not later than four p.m. of the forty-fifth day
before the day of the election.” See, also, R.C. 3501.39(A) (“The * * * board of
elections shall accept any petition described in section 3501.38 of the Revised Code
unless one of the following occurs: [1] A written protest against the petition or
candidacy, naming specific objections, is filed, a hearing is held, and a
determination is made by the election officials with whom the protest is filed that
the petition is invalid, in accordance with any section of the Revised Code
providing a protest procedure.”). Lynch’s protest was filed less than forty-five days
before the November 4 election.
{¶ 6} Second, notwithstanding Lynch’s argument to the contrary, the board
lacked authority to sua sponte invalidate Corpus’s candidacy under R.C.
3501.39(A)(3)1 because the fiftieth day prior to the November 4 election had
already passed by the time of Lynch’s protest as well as the date of the board’s
hearing on the protest. R.C. 3501.39(B) (“A board of elections shall not invalidate
any declaration of candidacy or nominating petition under division [A][3] of this
section after the fiftieth day prior to the election at which the candidate seeks
nomination to office, if the candidate filed a declaration of candidacy, or election
to office, if the candidate filed a nominating petition.”); State ex rel. Harbarger v.
Cuyahoga Cty. Bd. of Elections (1996), 75 Ohio St.3d 44, 46, 661 N.E.2d 699, 701.
{¶ 7} Third, assuming that, as Lynch claims, his September 23 letter was
not a protest, his mandamus claim is also barred by failing to file a protest, which
constitutes an adequate legal remedy. State ex rel. Shumate v. Portage Cty. Bd. of
Elections (1992), 64 Ohio St.3d 12, 14-15, 591 N.E.2d 1194, 1196-1197.
1. R.C. 3501.39(A)(3) provides that a board of elections shall refuse to accept a petition if “[t]he
candidate’s candidacy or the petition violates the requirements of this chapter, Chapter 3513. of the
Revised Code, or any other requirements established by law.”
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{¶ 8} Fourth, the Westlake Charter does not prohibit Corpus’s write-in
candidacy. Section 7, Article VII of the Westlake Charter provides that “[w]rite-in
votes for municipal candidates in general elections shall be permitted only if a duly
nominated candidate cannot participate due to death or other disqualifications, or if
each candidate does not have an opponent.” Mayor Clough does not have a duly
nominated opponent on the November 4 ballot. Therefore, the Westlake Charter
permitted “[w]rite-in votes for municipal candidates” (emphasis added). If the
Westlake Charter had intended to restrict write-in votes to one additional candidate,
it would have done so by specifying that in Section 7, Article VII. The Westlake
Charter does not expressly so provide. Cf. State ex rel. Busch v. Brown (1985), 20
Ohio St.3d 19, 20 OBR 136, 485 N.E.2d 247. This conclusion comports with the
precept that courts must liberally construe election laws in favor of persons seeking
to hold public office to avoid restricting the right of electors to choose from all
qualified candidates. State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections
(1996), 75 Ohio St.3d 275, 278, 662 N.E.2d 17, 19-20.
{¶ 9} Finally, as Corpus contends, Lynch’s complaint does not state a cause
of action for mandamus. Generally, if the allegations in a complaint indicate that
the real object sought is injunction, the complaint does not state a cause of action
for mandamus and must be dismissed for lack of jurisdiction. See State ex rel.
Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 341, 673 N.E.2d
1351, 1354. Since the essence of Lynch’s mandamus action is injunctive, i.e., to
prevent Corpus’s candidacy and to enjoin the board from counting any write-in
votes for Corpus, Lynch is not entitled to the requested extraordinary relief in
mandamus. State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections (1995), 72
Ohio St.3d 69, 70-71, 647 N.E.2d 769, 771.
{¶ 10} Accordingly, based on the foregoing, we deny the writ.
Writ denied.
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MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.
RESNICK and COOK, JJ., concur separately.
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ALICE ROBIE RESNICK, J., concurring separately.
{¶ 11} I agree that the writ of mandamus should be denied. Specifically, I
join the first three reasons listed by the majority for denying the writ: (1) that
relator’s protest was untimely, (2) that the board lacked authority to sua sponte
invalidate Corpus’s candidacy under R.C. 3501.39(A)(3), and (3) that if the
September 23 letter was not a protest, then the mandamus claim is barred. Given
those procedural deficiencies in relator’s protest, which are sufficient in and of
themselves to support denial of the writ, I find it unnecessary to consider the
specifics of Westlake’s Charter. Accordingly, I do not join in the majority’s
discussion of the fourth reason for denying the writ.
COOK, J., concurs in the foregoing concurring opinion.
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