In re Election Contest of Dec. 14, 1999 Special Election

[This decision has been published in Ohio Official Reports at 91 Ohio St.3d 302.]

IN RE ELECTION CONTEST OF DECEMBER 14, 1999 SPECIAL ELECTION FOR THE

OFFICE OF MAYOR OF THE CITY OF WILLOUGHY HILLS.

[Cite as In re Election Contest of Dec. 14, 1999 Special Election,

2001-Ohio-45.]

Elections—Contest of election—Common pleas court’s denial of election contest

challenging result of city of Willoughby Hills special mayoral election

affirmed.

(No. 00-628—Submitted January 9, 2001—Decided April 11, 2001.)

APPEAL and CROSS-APPEAL from the Court of Common Pleas of Lake County,

No. 00CV000049.

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Per Curiam.

{¶ 1} At the November 2, 1999 general election, appellant and cross-

appellee, Ted Dellas, appellee and cross-appellant, Morton E. O’Ryan, and two

other individuals were candidates for the office of Mayor of the city of Willoughby

Hills, Ohio. Dellas and O’Ryan received the highest number of votes, but neither

received a majority. Therefore, under the Willoughby Hills Charter, a special

mayoral election between Dellas and O’Ryan was held on December 14, 1999.

{¶ 2} Both Dellas and O’Ryan participated in a program of the Lake County

Board of Elections in which, in the weeks before the election, they received lists of

electors who had requested and submitted absentee ballots for the December 14,

1999 special election. This list of absentee voters as well as all pertinent records,

including applications for absentee ballots, was available for inspection at the board

of elections. In addition, the board, in accordance with R.C. 3503.23, made

available for public inspection an official registration list of all electors eligible to

vote in the special election.

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{¶ 3} By applications signed and dated on November 22, 1999, William J.

and Eleanor L. McFarlane requested absentee ballots for the special election

because they would be absent from the county on December 14. They requested

that the absentee ballots be mailed to an address in Texas. The McFarlanes

completed the ballots and sent them back to the board in time for the special

election. The McFarlanes have been registered voters in Lake County since

September 1972 and have voted in all county elections since that date with the sole

exception of the 1973 general election. No one challenged the qualifications of the

McFarlanes to vote in the special election before the results were certified.

{¶ 4} Following the special election, the director of the board of elections,

Janet F. Clair, learned that the McFarlanes had registered to vote in Texas but that

they had never voted in that state. Clair believed that the McFarlanes’ Texas

registration was probably unintentional because they subsequently canceled that

registration. The board had not been aware of the McFarlanes’ Texas registration

before the special election.

{¶ 5} In November 1999, the board also received requests from Mark

Pogany, Amy Penfield, and Jeanette C. Jilek for absentee ballots for the December

14, 1999 special election. The board subsequently received ballots sealed in the

identification envelopes specified in R.C. 3509.04 and signed and dated by Pogany

and Penfield, and purportedly by Jilek. No one raised the issue of the propriety of

these absentee ballots until after the special election. The board compared the

signatures on the absentee-ballot applications with those signatures on the

identification envelopes of the returned absentee ballots and determined that they

matched.

{¶ 6} On December 27, 1999, the board certified the results of the

December 14 special election: 1,179 votes for O’Ryan and 1,173 votes for Dellas.

Before the certification of the election, Director Clair had investigated potential

irregularities that had been brought to her attention and reported her written

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findings to the board. As part of her report, Clair found that in Precinct BB at the

special election, the poll book and signature book reflected that there had been three

hundred eighty voters, but the voting machines indicated that there had been three

hundred seventy-eight votes. Clair also noted that in Precinct CC, the poll book

and the signature book specified three hundred twenty-four votes, but the voting

machines recorded three hundred twenty-seven votes. The poll books did not reveal

any reasons for these discrepancies,1 but the poll workers noted that in Precinct BB,

there were two “fleeing voters,” i.e. voters who signed in to vote but left without

voting.

{¶ 7} Because the winning margin for O’Ryan over Dellas in the special

election was less than one-half of one percent of the total vote, the board conducted

a recount pursuant to R.C. 3515.011 on January 1, 2000. On that same date, the

board certified the same result as the original count: 1,179 votes for O’Ryan and

1,173 for Dellas, i.e., a margin of six votes.

{¶ 8} On January 10, 2000, Dellas filed an election contest under R.C.

3515.08 in the Lake County Court of Common Pleas to challenge O’Ryan’s

election as mayor. In his petition, Dellas claimed that certain irregularities had

occurred, including the different recorded vote totals for the poll and signature

books and machines in Precincts BB and CC. Dellas requested that the court

pronounce judgment on which candidate had been elected or if it could not

pronounce judgment for either candidate, that the court declare the result uncertain

and void the election.

{¶ 9} At trial, Dellas introduced evidence from a document and handwriting

expert that Pogany’s and Penfield’s applications for absentee ballots had been

signed by persons other than Pogany and Penfield. The expert further testified,

1. R.C. 3501.26(E) provides that “[i]f the number of voted ballots exceeds the number of voters

whose names appear upon the poll books, the presiding judge shall enter on the poll books an

explanation of such discrepancy, and such explanation, if agreed to, shall be subscribed to by all of

the judges.” See, also, R.C. 3505.26(E).

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however, that the identification envelopes for the completed absentee ballots of

Pogany and Penfield contained their genuine signatures. Neither Pogany nor

Penfield testified.

{¶ 10} Jeanette Jilek and her husband, Edward, testified that Edward signed

Jeanette’s name on her absentee ballot at her request because she was too ill to sign

it. Jeanette voted for O’Ryan.

{¶ 11} Director Clair specified that Dellas could have objected to these

absentee ballots as well as the McFarlanes’ absentee ballots before the election but

failed to do so.

{¶ 12} In March 2000, the common pleas court found that the three votes of

Pogany, Penfield, and Jilek were invalid and reduced the number of votes certified

for O’Ryan to 1,176, which was still three more than the 1,173 votes for Dellas.

The court held that O’Ryan had been elected Mayor of Willoughby Hills. In so

holding, the court rejected Dellas’s claims that the McFarlanes were ineligible to

vote because of their Texas registration and that vote disparities in Precincts BB

and CC constituted election irregularities.

{¶ 13} This cause is now before the court upon Dellas’s appeal and

O’Ryan’s cross-appeal under R.C. 3515.15 from the judgment of the court of

common pleas.

{¶ 14} In his appeal, Dellas requests that we reverse the judgment of the

court of common pleas and declare the results of the December 14, 1999 special

mayoral election uncertain and consequently void. In his cross-appeal, O’Ryan

asserts that the trial court erred in deducting two votes from O’Ryan’s total based

on Pogany’s and Penfield’s absentee votes, but that the court correctly ruled that

Dellas had failed to prove that the claimed election irregularities affected enough

votes to change or make uncertain the election results.

{¶ 15} In evaluating these claims, we are guided by several well-established

principles, none more important than that “ ‘our citizens must be confident that

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their vote, cast for a candidate or an issue, will not be disturbed except under

extreme circumstances that clearly affect the integrity of the election.’ ” (Emphasis

added.) In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk,

Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 263, 725 N.E.2d 271, 275,

quoting In re Election of Nov. 6, 1990 for the Office of Atty. Gen. of Ohio (1991),

58 Ohio St.3d 103, 105, 569 N.E.2d 447, 450.

{¶ 16} To give full effect to this vote, we will refrain from disturbing an

election result unless the evidence establishes that the result was contrary to the will

of the electorate, and we must indulge every presumption in favor of upholding the

validity of an election and against ruling it void. Portis v. Summit Cty. Bd. of

Elections (1993), 67 Ohio St.3d 590, 592, 621 N.E.2d 1202, 1203; Beck v.

Cincinnati (1955), 162 Ohio St. 473, 475, 55 O.O. 373, 374, 124 N.E.2d 120, 122.

{¶ 17} Moreover, under the applicable standard, in order to prevail in his

contest of the December 14, 1999 special mayoral election, Dellas had to prove by

clear and convincing evidence that one or more election irregularities occurred and

that the irregularity or irregularities affected enough votes to change or make

uncertain the result of the special election. In re Election Contest of Democratic

Primary, 88 Ohio St.3d at 263, 725 N.E.2d at 275-276, citing In re Election of Nov.

6, 1990, 58 Ohio St.3d 103, 569 N.E.2d 447, at syllabus.

{¶ 18} With these standards providing the applicable framework, we next

consider the parties’ claims. O’Ryan defeated Dellas by six votes in the certified

vote by the board, but the trial court determined that O’Ryan’s margin of victory

should be reduced to three because the board should have rejected the absentee

votes of Pogany, Penfield, and Jilek. O’Ryan now concedes that Jilek’s vote was

unlawfully cast and constituted an election irregularity.

O’Ryan’s Cross-Appeal: Absentee Ballots of Pogany and Penfield

{¶ 19} O’Ryan claims that the trial court erred in reducing his vote total by

the two votes that Pogany and Penfield cast by absentee ballot. The trial court relied

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on the testimony of Dellas’s handwriting expert to conclude that Pogany and

Penfield were not eligible to vote by absentee ballot because their written

applications for absentee ballots were not signed by them. R.C. 3509.03 requires

that written applications for absentee ballots “shall be signed by the applicant.”

{¶ 20} Dellas claims that because of R.C. 3515.12, he properly challenged

the Pogany and Penfield absentee ballots in his election contest. But the portion of

R.C. 3515.12 that Dellas cites merely provides that “[a]ny witness who voted at the

election may be required to answer touching his qualification as a voter and for

whom he voted.” In contrast to the evidence introduced regarding his objection to

Jilek’s absentee ballot, Dellas did not introduce the testimony of either Pogany or

Penfield concerning their absentee-ballot applications, nor did he introduce any

evidence of their unavailability to testify. Cf. In re Election of Swanton Twp.

(1982), 2 Ohio St.3d 37, 39, 2 OBR 581, 583, 442 N.E.2d 758, 760 (“It is indeed

noteworthy that while contestors-appellants named seven individuals in their

answers to interrogatories who allegedly were permitted to vote on the zoning case

though ineligible, these individuals were not called as witnesses”).

{¶ 21} More important, although “all provisions of election laws are

mandatory in the sense that they impose the duty of obedience upon those who

come within their purview, * * * irregularities, which were not caused by fraud and

which have not interfered with a full and fair expression of the voters’ choice,

should not effect a disfranchisement of the voters.” Mehling v. Moorehead (1938),

133 Ohio St. 395, 406, 11 O.O. 55, 59, 14 N.E.2d 15, 20; State ex rel. Foreman v.

Brown (1967), 10 Ohio St.2d 139, 151, 39 O.O.2d 149, 156, 226 N.E.2d 116, 124.

{¶ 22} Dellas did not introduce clear and convincing evidence of fraud in

Pogany’s and Penfield’s alleged failure to comply with the application-signature

requirement of R.C. 3509.03. Moreover, the uncontroverted evidence is that

Pogany and Penfield are qualified electors who fully complied with the absentee-

ballot requirements of R.C. 3509.04, i.e., they declared under penalty of election

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falsification that they would be absent from Lake County on the date of the election

and they signed the identification envelopes containing their ballots. Even Dellas’s

handwriting expert testified that Pogany and Penfield had signed the voter-

statement of the identification envelopes. There is no evidence that some unknown,

unqualified persons improperly cast their absentee ballots.

{¶ 23} Therefore, based on Mehling and Foreman, we hold that the court

erred in finding that Pogany’s and Penfield’s absentee ballots should be rejected

and used to reduce O’Ryan’s margin of victory from five votes (after deducting

Jilek’s vote) to three votes. In the absence of a preelection challenge or clear and

convincing evidence of fraud, the claimed violation of R.C. 3509.03 is insufficient

to disenfranchise Pogany and Penfield. We must give full and fair expression to

their right to vote.

Dellas Appeal: Absentee Ballots of the McFarlanes

{¶ 24} Dellas contends that the two absentee votes of the McFarlanes

should have been rejected because they were ineligible to vote. Dellas claims that

R.C. 3503.21 and 3503.33 prohibited the McFarlanes from voting in Ohio when

they were also registered in Texas.

{¶ 25} Neither R.C. 3503.21 nor 3503.33 required the board to reject the

McFarlanes’ ballots. Under R.C. 3503.21(B), “[t]he registration of any elector

identified as having changed his voting residence to a location outside his current

county of registration shall not be canceled unless the registrant is sent a

confirmation notice on a form prescribed by the secretary of state and the registrant

fails to respond to the confirmation notice or otherwise update his registration and

fails to vote in any election during the period of two federal elections subsequent

to the mailing of the confirmation notice.” The McFarlanes’ Lake County, Ohio

registration was never canceled. R.C. 3503.33 involves electors applying for voter

registration in an Ohio county when they had already registered in another state or

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another county. The McFarlanes, however, were registered to vote in Lake County,

Ohio, when they registered in Texas.

{¶ 26} Moreover, there is no evidence of fraud by the McFarlanes.

Mehling, 133 Ohio St. at 406, 11 O.O. at 59, 14 N.E.2d at 20; Foreman, 10 Ohio

St.2d at 151, 39 O.O.2d at 156, 226 N.E.2d at 124. Instead, the evidence establishes

that they have a lengthy history of voting in Lake County, Ohio, and that their

registration in Texas was inadvertent. In fact, they never voted in Texas and

subsequently canceled their Texas registration.

{¶ 27} Therefore, the trial court properly held that the board did not have to

reject the McFarlanes’ absentee ballots.

The Dellas Appeal: Vote Disparities in Precincts BB and CC

{¶ 28} Dellas contends that the differences between the vote totals for the

poll and signature books and the voting machines in Precincts BB and CC are

election irregularities that render the election result uncertain. In Precinct BB, the

poll and signature books recorded two more voters than the voting machines. In

Precinct CC, the poll and signature books recorded three fewer voters than the

voting machines. Dellas asserts that although one of the two “missing” machine

votes in Precinct BB could be attributed to a voter who signed in and left without

voting, the rest of the votes (one in Precinct BB and three in Precinct CC) remained

unexplained.2 These claimed irregularities could not have been raised before the

election.

{¶ 29} We have held that differences between vote totals in poll books and

voting machines constitute clear and convincing evidence of election irregularities

in an election contest. In re Election of Nov. 6, 1990, 58 Ohio St.3d at 120, 569

N.E.2d at 462.

2. Although the poll and signature books for Precinct FF also recorded one more vote than the

voting machines for that precinct, Dellas does not assert on appeal that this is an irregularity. This

vote was accounted for by evidence that one person had signed in and entered a voting machine but

failed to cast a vote on the machine.

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{¶ 30} Therefore, the trial court erred by concluding that these vote

discrepancies were not irregularities.

{¶ 31} Nevertheless, even if these four votes were deducted from the

corrected victory margin of five votes, i.e., the original six-vote margin minus

Jilek’s vote, it is still insufficient to change or make uncertain the election result.

In other words, O’Ryan would still have been elected mayor.

Conclusion

{¶ 32} Although Dellas established the presence of irregularities in the

December 14, 1999 special mayoral election, the common pleas court properly

denied the contest. This is not a case in which “extreme circumstances” manifestly

affected the “integrity of the election.” In re Election Contest of Democratic

Primary, 88 Ohio St.3d at 267, 725 N.E.2d at 279. “Our holding is in accordance

with the tendency of this court to insist * * * that after an election, unless it is

shown that the result was contrary to the will of the electorate, it will not be

disturbed.” Mehling, 133 Ohio St. at 408, 11 O.O. at 60, 14 N.E.2d at 21. We have

“long adhered to the position that, ‘[t]he survival of our system of government

requires that proper respect be given to the will of the people as expressed at the

ballot box.’ ” Swanton Twp., 2 Ohio St.3d at 38, 2 OBR at 582, 442 N.E.2d at 759,

quoting MacDonald v. Bernard (1982), 1 Ohio St.3d 85, 86, 1 OBR 122, 123, 438

N.E.2d 410, 412. Dellas did not establish that the result of the special election was

contrary to the will of the electorate. In fact, proper respect for the will of the

people in general and for absentee voters such as the McFarlanes, Pogany, and

Penfield in particular requires a finding upholding the election result. Therefore,

we affirm the judgment of the court of common pleas denying the election contest.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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Donald J. McTigue, for appellant and cross-appellee.

Michael E. Murman, for appellee and cross-appellant.

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