State ex rel. Dunn v. Delaware Cty. Bd. of Elections

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Dunn v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2026-Ohio-1084.]

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. 2026-OHIO-1084

THE STATE EX REL. DUNN v. DELAWARE COUNTY BOARD OF ELECTIONS ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Dunn v. Delaware Cty. Bd. of Elections, Slip

Opinion No. 2026-Ohio-1084.]

Elections—Mandamus—Writ sought to compel board of elections to hold hearing

in accordance with R.C. 3501.39 and 3503.24—Rule of necessity requires

board members to hear elector’s protest and challenge against candidate

despite board members’ concerns that their participation in matter could

convey a perception of bias—Writ granted.

(No. 2026-0270—Submitted March 24, 2026—Decided March 27, 2026.)

IN MANDAMUS.

__________________

The per curiam opinion below was joined by KENNEDY, C.J., and DEWINE,

BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ. FISCHER, J., dissented.

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} This is an expedited election action filed by relator, Velva Dunn,

against respondents, the Delaware County Board of Elections and three of its four

members—Edward D. Helvey, Peg L. Watkins, and Steven R. Cuckler. Dunn seeks

a writ of mandamus ordering those three board members to hold a hearing on her

protest and challenge concerning Melanie Ann Leneghan. Leneghan is the lone

board member in this case who Dunn has not sued. We grant the writ.

I. BACKGROUND

{¶ 2} By law, a county board of elections shall have four members. R.C.

3501.06(A). This election challenge, however, has been brought against only three

of the board’s four members because the fourth board member, Leneghan, is the

subject of the protest and challenge.

{¶ 3} In December 2025, Leneghan, a Republican, filed a petition with the

board seeking to become a candidate for election to the Ohio Republican Party State

Central Committee at the primary election scheduled for May 5, 2026. In February

2026, Dunn, who is a resident of and a qualified elector in Delaware County, filed

with the board a protest against Leneghan’s candidacy and a challenge to

Leneghan’s voter registration. Dunn’s position is that Leneghan resides in South

Carolina, and therefore, Leneghan filed a candidacy petition with a false statement

of residency and improperly registered to vote at an address located in Delaware

County.

{¶ 4} The board scheduled a hearing on the matter for March 5, 2026. On

March 2, however, board member Helvey, a Democrat, stated in a letter to the

board’s other members and the board’s director and deputy director that he was

recusing himself from deciding Dunn’s protest and challenge. As the ground for

his recusal, Helvey cited Section 4 of the Ohio Secretary of State’s ethics policy for

members and employees of boards of elections, which provides that “[m]embers

. . . of the boards of elections should avoid actions and associations that create an

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January Term, 2026

appearance of impropriety, that undermine public confidence in Ohio elections

officials, or that interfere with the performance of duties by Ohio elections

officials.”1 With that policy in mind, Helvey stated that were he to vote to deny

Dunn’s protest and challenge against Leneghan, his vote could be construed as

support for a fellow board member “regardless of the evidence and testimony

provided.” On the other hand, were he to vote to sustain the protest and challenge

against Leneghan, his vote could be seen as an act of “petty, partisan politics against

a member of the opposing party.”

{¶ 5} Two days after Helvey submitted his recusal letter, board member

Watkins, also a Democrat, sent her own letter to the board’s other members and its

director and deputy director, stating that she too was recusing herself from Dunn’s

protest and challenge. Echoing Helvey’s concerns, Watkins stated that it was

important for the board, in its deliberations, to avoid bias and the appearance of

bias. In her view, any board decision on Dunn’s protest and challenge against

Leneghan could be viewed as unfair.

{¶ 6} The board convened the hearing as scheduled. As the hearing began,

Leneghan initially stated that she would be “abstaining from the vote” on Dunn’s

protest and challenge. Counsel for the board insisted that it was necessary for

Leneghan to go a step further and “completely recuse.” On this recommendation,

Leneghan stated that she was “completely recus[ing].” Helvey reaffirmed his

recusal, stating that he stood by his March 2 letter. And Watkins reaffirmed her

recusal as well, reiterating her view that it was important for the board to convey a

1. The ethics policy is an attachment to the secretary of state’s Directive 2020-26 (“Appointments

to the Board of Elections in Each County for Full Terms Commencing March 1, 2021; Board’s 2021

Reorganization and Accompanying Documents”). Directive 2020-26 and the attached ethics policy

can both be found on the secretary’s website. Ohio Secretary of State, Directives,

https://www.ohiosos.gov/elections/elections-administration/directives#other-directives (accessed

Mar. 27, 2026).

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perception of impartiality. For his part, board member Cuckler, a Republican,

stated that he did not intend to recuse.

{¶ 7} In view of the recusals by Helvey, Watkins, and Leneghan, counsel

for the board opined that the board lacked a quorum and could not go forward with

the hearing. Counsel for Dunn agreed with this assessment. Without a quorum,

the board did not proceed with the hearing.

{¶ 8} The merits of her protest and challenge having gone undecided, Dunn

then filed this original action against the board and Helvey, Watkins, and Cuckler—

but not Leneghan—seeking a writ of mandamus ordering Helvey, Watkins, and

Cuckler to hold a hearing on the protest and challenge. We denied Leneghan’s

motion to intervene as a respondent, 2026-Ohio-895, and the parties have filed

briefs and evidence according to the schedule prescribed by this court’s rule for

deciding expedited election cases, S.Ct.Prac.R. 12.08, as modified by our March 10

order, 2026-Ohio-800. Leneghan has submitted an amicus curiae brief in support

of respondents.

II. ANALYSIS

{¶ 9} To be entitled to a writ of mandamus, Dunn must establish by clear

and convincing evidence that (1) she has a clear legal right to the requested relief,

(2) the respondents have a clear legal duty to provide it, and (3) she lacks an

adequate remedy in the ordinary course of the law. See State ex rel. Lambert v.

Medina Cty. Bd. of Elections, 2023-Ohio-3351, ¶ 12. As to the third element, Dunn

has shown that she lacks an adequate remedy in the ordinary course of the law due

to the proximity of the upcoming May primary election. See id.

{¶ 10} In claiming entitlement to the writ, Dunn advances two main

arguments. Each argument is considered in turn.

A. Statutory hearing requirements

{¶ 11} Dunn begins by pointing to the hearing requirements in R.C. 3501.39

(for protests) and R.C. 3503.24 (for challenges), claiming that as the person who

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January Term, 2026

filed the protest and challenge against Leneghan, she has a clear legal right to

receive a hearing under these statutes. Dunn maintains that were the board to hold

a hearing on her protest and challenge, it would enable the board to carry out its

duty to “[i]nvestigate irregularities, nonperformance of duties, or violations of Title

XXXV of the Revised Code by election officers and other persons,” R.C.

3501.11(J), “[r]eview, examine, and certify the sufficiency and validity of

petitions,” R.C. 3501.11(K)(1), and “[i]nvestigate and determine the residence

qualifications of electors,” R.C. 3501.11(Q).

{¶ 12} Relevant to Dunn’s protest against Leneghan’s candidacy, R.C.

3501.39(A)(2) provides that “a board of elections shall accept any petition [for

candidacy] described in section 3501.38 of the Revised Code unless . . . [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 violates any requirement established by law.”

When a protest is filed, the statute requires a board of elections to conduct a quasi-

judicial hearing on the protest. State ex rel. Miller v. Hamilton Cty. Bd. of Elections,

2021-Ohio-831, ¶ 25. As for Dunn’s challenge to Leneghan’s voter registration,

R.C. 3503.24(A) authorizes “any qualified elector” to “challenge . . . the right to

vote of any registered elector . . . .” When a board cannot determine whether to

grant or deny a challenge based on its records, the board shall hold a hearing. R.C.

3503.24(B). This court has held that a hearing conducted under R.C. 3503.24

“constitutes a quasi-judicial proceeding.” State ex rel. Tremmel v. Erie Cty. Bd. of

Elections, 2009-Ohio-5773, ¶ 16.

{¶ 13} There is no dispute here that but for the three recusals that deprived

the board of a quorum, R.C. 3501.39 and 3503.24 compelled the board to move

forward with a hearing on Dunn’s protest against Leneghan’s candidacy and

challenge to Leneghan’s voter registration. Indeed, it would be hard for the board

to argue otherwise, for it scheduled and convened such a hearing.

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SUPREME COURT OF OHIO

{¶ 14} The question that remains to be decided is whether Dunn can compel

Helvey and Watkins to sit alongside Cuckler in hearing her protest and challenge.

We hold that she can.

B. Recusals and the rule of necessity

{¶ 15} Dunn’s second main argument asserts that regardless of the propriety

of their recusals, the “rule of necessity” mandates that Helvey and Watkins have a

duty to sit alongside Cuckler in hearing Dunn’s protest and challenge. In support,

Dunn says that no public body except for the board may hear her protest and

challenge. If the rule is not applied, then Dunn points to the possibility that her

protest and challenge will never be heard, thereby placing Leneghan above the law.

For their part, respondents agree that the board constitutes the proper forum for

deciding Dunn’s protest and challenge. But respondents maintain that R.C.

3501.07 provides a means for Dunn’s protest and challenge to be heard,

notwithstanding the recusals. We address these contentions out of order.

{¶ 16} To begin, we note that respondents provide no analysis of R.C.

3501.07, which alone suffices to reject their contention that the statute applies. See

Rover Pipeline, L.L.C. v. Harris, 2025-Ohio-2806, ¶ 62. In any event, we have

little difficulty in concluding that the statute has nothing to do with this case.2 R.C.

3501.07 pertains to a “vacancy [that] occurs in the board.” And it generally

authorizes a “qualified elector” to fill the vacancy by way of an appointment

process involving the secretary of state. Id. This case, however, does not involve

a vacancy on the board. It involves recusals by board members. The statute does

2. Leneghan’s amicus curiae brief suggests that the secretary of state could decide the matter under

R.C. 3501.11(X), which provides that “[i]n all cases of a disagreement in the board, if no decision

can be arrived at, the director or chairperson shall submit the matter in controversy, not later than

fourteen days after the . . . disagreement, to the secretary of state, who shall summarily decide the

question, and the secretary of state’s decision shall be final.” However, because R.C. 3501.11(X)

has not been placed at issue by the parties, we need not consider it. See State ex rel. Grendell v.

Walder, 2022-Ohio-204, ¶ 31, fn. 1 (declining to decide an issue raised by amici curiae in view of

“the general rule that an amicus curiae may not raise an issue not raised by the parties”).

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January Term, 2026

not define the word “vacancy,” but that term ordinarily means “[t]he quality, state,

or condition of being unoccupied, [especially] in reference to an office . . . .”

Black’s Law Dictionary (12th Ed. 2024). In contrast, a “recusal” is ordinarily

meant to describe “[r]emoval of oneself as judge or policy-maker in a particular

matter, [especially] because of a conflict of interest.” Id. The facts of this case

plainly establish that Helvey, Leneghan, and Watkins effected a recusal, for they

all removed themselves from a particular matter—namely, Dunn’s protest and

challenge. Tellingly, respondents do not argue that there is currently an unoccupied

seat on the board that needs to be filled.

{¶ 17} Turning to Dunn’s argument, the United States Supreme Court has

described the “Rule of Necessity” as originating from the early common law and

having “been consistently applied in this country in both state and federal courts.”

United States v. Will, 449 U.S. 200, 213-214 (1980). “‘The true rule unquestionably

is that wherever it becomes necessary for a judge to sit even where he has an

interest—where no provision is made for calling another in, or where no one else

can take his place—it is his duty to hear and decide, however disagreeable it may

be.’” Id. at 214, quoting Philadelphia v. Fox, 64 Pa. 169, 185 (1870).

{¶ 18} It is undisputed that we have never applied the rule of necessity in a

case like this,3 but Dunn cites instances in which the rule has been recognized by

courts in other states involving challenges to the decision-making procedures of, as

here, multimember, nonjudicial bodies. See Johnson v. Case, 243 W.Va. 382, 393-

394 (2020) (“the rule of necessity required the participation of [certain] council

members . . . to provide a quorum to judge the election contest”); Finnegan v.

3. Opinions issued in affidavit-of-disqualification proceedings by this court’s chief justice and a

former chief justice have recognized that the rule of necessity may be applied in a proper case

involving a member of the judiciary. See In re Disqualification of Beathard, 2024-Ohio-3335, ¶ 40;

In re Disqualification of Swenski, 2020-Ohio-4615, ¶ 10; In re Disqualification of Reinbold, 2017-

Ohio-9427, ¶ 4; see also Jud.Cond.R. 2.11, Comment 3 (“The rule of necessity may override the

rule of disqualification.”).

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Schrader, 91 Cal.App.4th 572, 581 (1st Dist. 2001) (observing that the rule “allows

public officials to take actions they would otherwise be disqualified from taking by

operation of conflict of interest rules if their disqualification would make it

impossible for the public agency to fulfill one of its vital public duties”); Siteman

v. Allentown, 695 A.2d 888, 891 (Pa.Commw. 1997) (“Because the three City

Council members who did not recuse themselves did not constitute a quorum, we

can invoke the Rule of Necessity to permit those members who had recused

themselves to hear this case.”).

{¶ 19} We agree with Dunn that it is proper to apply the rule of necessity in

this case. Presently, the board lacks a quorum, which makes it impossible for the

board to decide Dunn’s protest and challenge. See State ex rel. Saxon v. Kienzle, 4

Ohio St.2d 47, 48 (1965) (“In the absence of a statute to the contrary, any action by

a board requires that a quorum participate therein”). To ensure that Dunn’s protest

and challenge will be heard as required by R.C. 3501.39 and 3503.24, Helvey and

Watkins must sit alongside Cuckler in hearing the matter.

{¶ 20} We appreciate the position of Helvey and Watkins that their

participation in hearing Dunn’s protest and challenge could be understood by some

as conveying a perception of bias against or in favor of their fellow board member.

Preserving the integrity of Ohio’s electoral processes and Ohioans’ confidence in

government “are interests of the highest importance.” First Natl. Bank of Boston

v. Bellotti, 435 U.S. 765, 788-789 (1978). But however “‘disagreeable’ ” it may be

for Helvey and Watkins to participate in the hearing, it remains their “‘duty’ ” to

do so, Will, 449 U.S. at 214, quoting Fox, 64 Pa. at 185. Helvey’s and Watkins’s

legitimate concerns cannot override the hearing requirements of R.C. 3501.39 and

3503.24.

III. CONCLUSION

{¶ 21} We grant the writ of mandamus. Helvey, Watkins, and Cuckler shall

proceed forthwith to hear Dunn’s protest and challenge against Leneghan.

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January Term, 2026

Writ granted.

__________________

The Law Firm of Curt C. Hartman and Curt C. Hartman, for relator.

FBT Gibbons, L.L.P., Frank J. Reed Jr., and Anthony R. Severyn, for

respondents.

Taft, Stettinius & Hollister, L.L.P., W. Stuart Dornette, and Annie M.

McClellan, in support of respondents for amicus curiae, Melanie Ann Leneghan.

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