State ex rel. Owens v. Brunner

[Cite as State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374.]

THE STATE EX REL. OWENS v. BRUNNER, SECY. OF STATE, ET AL.

[Cite as State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374.]

Elections — Mandamus — Writ of mandamus sought to compel the secretary of

state to certify relator as a candidate and to instruct the boards of

elections to place relator’s name on the primary-election ballot — Petition

signatures improperly invalidated by board of elections — Writ of

mandamus granted.

(No. 2010-0481 — Submitted March 29, 2010 — Decided March 31, 2010.)

IN MANDAMUS

__________________

Per Curiam.

{¶ 1} This is an expedited election action for a writ of mandamus to

compel the certification of relator as a candidate for the Constitution Party

nomination for election to the office of Ohio Attorney General at the May 4, 2010

primary election. Because respondents, Secretary of State of Ohio Jennifer

Brunner and the Franklin County Board of Elections, abused their discretion and

clearly disregarded applicable law in rejecting relator’s candidacy, we grant the

requested extraordinary relief in mandamus.

Facts

{¶ 2} On February 18, 2010, relator, Robert Owens, filed a declaration of

candidacy and candidate petition with respondent secretary of state. Owens seeks

to be a candidate for the Constitution Party nomination for Attorney General of

Ohio at the May 4, 2010 primary election. When the petition was filed, Owens

received a statement from the secretary of state’s office stating that he had filed

approximately 980 petition signatures.

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{¶ 3} On February 22, 2010, in accordance with R.C. 3513.05, the

secretary of state transmitted Owens’s part-petitions purporting to contain

signatures of certain counties to the pertinent boards of elections for an

examination of the signatures on the part-petitions. The secretary of state also

issued Directive 2010-28, which provided instructions to the boards of elections

for an examination of the signatures on the part-petitions. The secretary’s

instructions included:

{¶ 4} “Each signature must be individually examined. If a signature is

valid, please place a red check mark at the left margin beside it. After checking

an entire part petition, please write on the right side of the front page of each part

petition both the number of valid signers and the initials of the board employee

who checked the part petition under the number.

{¶ 5} “If a signature is not valid, please indicate the problem with it by

using the following lettered codes or, if no lettered code applies, an explanatory

notation:

{¶ 6} “* * *

{¶ 7} “ILL ‘Illegible’ applies only if both the signature and address are

unreadable, so that it is impossible to check the signature against a voter

registration record.

{¶ 8} “* * *

{¶ 9} “NG ‘Not Genuine.’ The signature on the petition does not appear

to be the genuine signature of the person whose signature it purports to be,

compared to the signature on file with the board of elections as of the date the

board checks the petition.

{¶ 10} “NR ‘Not Registered.’ The signer is not registered to vote. Each

person who signs a part petition must be a qualified elector as of the date the

petition was filed with the Secretary of State’s office.” (Emphasis omitted.)

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{¶ 11} Nineteen of the part-petitions were transmitted to respondent

Franklin County Board of Elections, which examined the 547 signatures

contained in the part-petitions. The board determined that 162 of the submitted

signatures were valid and that the remaining 385 signatures were invalid.

Pursuant to R.C. 3513.05, the board returned the petition papers to the secretary

of state with its certification of its determination of the validity of the signatures.

{¶ 12} On March 5, 2010, the secretary of state issued Directive 2010-42

to the county boards of elections. The directive contained the form of the

primary-election ballots for the major and minor political parties, including the

Constitution Party, but Owens’s name did not appear on the form as a candidate

for the primary election. By letter dated the same day that the directive was

issued, the secretary of state notified Owens that she was not certifying his

candidacy because of a lack of sufficient valid signatures on his petition. The

secretary determined that Owens had submitted 481 signatures, which was 19

signatures less than the 500 valid signatures required for his name to be placed on

the primary-election ballot.

{¶ 13} On that same day, Owens requested and received copies of the

part-petitions he had filed and those filed by Eric Deaton, a candidate for the

Constitution Party nomination for the United States Senate, which the board had

previously examined. On March 6, 2010, Owens attended a special meeting of

the Franklin County Board of Elections and requested that the board conduct a

second review of his part-petitions because “signatures were improperly

invalidated as being illegible.” On March 9, Owens contacted the board’s deputy

director by e-mail to follow up on his request. In his e-mail, Owens claimed that

there were “FAR more than 19 signatures from Franklin County alone that were

invalidated improperly.” The deputy director suggested that Owens contact the

secretary of state’s office and informed him that if the secretary asked the board to

review the part-petitions a second time, the board would do so. The secretary’s

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office then advised the deputy director that if the board determined that it had

made an error in its certification of the number of valid signatures on the

candidate’s petition, the board could amend the certification. The board of

elections, however, refused to recheck Owens’s part-petitions.

{¶ 14} On March 15, Owens filed this expedited election action for a writ

of mandamus to compel the secretary of state to certify his candidacy for the

Constitution Party nomination for the office of Ohio Attorney General and to

instruct the boards of elections to place his name on the May 4, 2010 primary-

election ballot or, in the alternative, to compel the Franklin County Board of

Elections and other elections boards to recheck his part-petitions in conformity

with Secretary of State Directive 2010-28 and to certify his candidacy.

Respondents filed answers, and the parties submitted evidence and briefs pursuant

to S.Ct.Prac.R. 10.9. Insofar as Owens attempts to submit evidence with his reply

brief, we will not consider it because it was not submitted in accordance with

S.Ct.Prac.R. 10.9.

{¶ 15} This cause is now before the court for our determination of the

merits.

Legal Analysis

Laches

{¶ 16} Respondents both claim that Owens’s mandamus claim is barred

by laches. Relators in election cases are required to act with the utmost diligence.

State ex rel. Chillicothe v. Ross Cty. Bd. of Elections, 123 Ohio St.3d 439, 2009-

Ohio-5523, 917 N.E.2d 263, ¶ 9. “If relators in election cases do not exercise the

utmost diligence, laches may bar an action for extraordinary relief.” State ex rel.

Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882

N.E.2d 435, ¶ 11. “The elements of laches are (1) unreasonable delay or lapse of

time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge,

actual or constructive, of the injury or wrong, and (4) prejudice to the other

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party.” State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d

143, 145, 656 N.E.2d 1277.

{¶ 17} Owens had notice of the secretary’s March 5 decision on that same

day because, as he admits, on that day, he requested work logs and copies of the

part-petitions that he had filed and those filed by Senate candidate Deaton. There

would have been no reason for Owens to request these records if he had been

certified to the primary-election ballot. Owens thus delayed ten days from that

date to file this expedited-election case challenging the secretary’s decision not to

place his name on the primary ballot.

{¶ 18} Respondents are correct that “we have held that a delay as brief as

nine days can preclude our consideration of the merits of an expedited election

case.” (Emphasis sic.) State ex rel. Landis v. Morrow Cty. Bd. of Elections

(2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775. But here, at least some of

Owens’s delay in filing this action was reasonable. Part of the ten-day delay

resulted from Owens’s diligent efforts to obtain records related to the board’s

review of his part-petitions and to request the board to review them again. Cf.

Craig, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 16 (court rejected

laches as a bar to expedited-election case when “[m]uch of the nine-day period [to

file the case] after the board’s denial of the protest here resulted from [relator’s]

diligent efforts to secure legal counsel to review the merits of a possible legal

challenge to the decision”). In fact, the secretary’s office indicated in a March 11

e-mail to a board-of-elections official that the board was authorized to act upon

Owens’s request to again review his part-petitions to determine whether to amend

its prior certification and that “amending is a means of avoiding costly litigation.”

{¶ 19} Moreover, “we generally require a showing of prejudice before we

apply laches to bar a consideration of the merits of an election case.” State ex rel.

Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299, 2007-Ohio-5228, 874

N.E.2d 1205, ¶ 11. “Normally, this prejudice in expedited election cases occurs

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because relators’ delay prejudices respondents by making the case an expedited

election case under S.Ct.Prac.R. [10.9], which restricts respondents’ time to

prepare and defend against relators’ claims, or impairs boards of elections’ ability

to prepare, print, and distribute appropriate ballots because of the expiration of the

time for providing absentee ballots.” State ex rel. Willke v. Taft, 107 Ohio St.3d

1, 2005-Ohio-5303, 836 N.E.2d 536, ¶ 18.

{¶ 20} Owens’s delay in filing this case did not cause it to become an

expedited election case under S.Ct.Prac.R. 10.9, which provides an accelerated

schedule for the submission of a response, evidence, and briefs when an original

action relating to a pending action is filed within 90 days before the election. This

case would still have been an expedited election case governed by S.Ct.Prac.R.

10.9 even if Owens had filed this case on the same March 5 date that the secretary

issued the directive specifying the form for the primary-election ballots, which did

not include Owens’s name. Therefore, respondents’ ability to prepare and defend

against Owens’s mandamus claim has not been impacted by the delay. See State

ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979,

¶ 28.

{¶ 21} Although the absentee-ballot deadline will have passed by the time

our decision in this case is announced, that date would likely have passed even if

Owens had filed this case within a week of the date the secretary issued her

decision that his name would not be on the primary-election ballot. See Brinda,

115 Ohio St.3d 299, 2007-Ohio-5228, 874 N.E.2d 1205, ¶ 13. “This is thus a

case in which the statutory time limits would have expired even ‘under the best of

circumstances.’ ” State ex rel. Choices for South-Western City Schools v.

Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 28, quoting State

ex rel. Squire v. Taft (1994), 69 Ohio St.3d 365, 369, 632 N.E.2d 883.

{¶ 22} Finally, there is no evidence that Owens’s delay in filing this case

was intentionally engineered to obtain a strategic advantage. Cf. State ex rel. The

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Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 113, 712

N.E.2d 696 (expedited election claim barred by laches because of relators’ delay

and acts of gamesmanship).

{¶ 23} Therefore, laches does not bar our consideration of the merits of

this expedited election case, and a consideration of the merits of Owens’s

mandamus claim is warranted. This is consistent with “the fundamental tenet of

judicial review in Ohio,” which “is that courts should decide cases on their

merits.” State ex rel. Becker v. Eastlake (2001), 93 Ohio St.3d 502, 505, 756

N.E.2d 1228.

Mandamus

{¶ 24} Owens primarily requests a writ of mandamus to compel the

secretary of state to certify him as a candidate for the Constitution Party’s

nomination for election to the office of Ohio Attorney General and to instruct the

county boards of election to place his name on the May 4, 2010 Constitution Party

primary-election ballot.

{¶ 25} To be entitled to the requested extraordinary relief, Owens must

establish a clear legal right to the requested relief, a corresponding clear legal duty

on the part of the secretary of state to provide it, and the lack of an adequate

remedy in the ordinary course of the law. State ex rel. LetOhioVote.org v.

Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 13. Because

of the proximity of the May 4 primary election, Owens has established that he

lacks an adequate remedy in the ordinary course of the law. State ex rel. Greene

v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907

N.E.2d 300, ¶ 10.

{¶ 26} For the remaining requirements, “ ‘[i]n extraordinary actions

challenging the decisions of the Secretary of State and boards of elections, the

standard is whether they engaged in fraud, corruption, or abuse of discretion, or

acted in clear disregard of applicable legal provisions.’ ” State ex rel. Husted v.

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Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9, quoting

Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923,

778 N.E.2d 32, ¶ 11.

{¶ 27} The secretary of state contends that under R.C. 3513.05, the

secretary is not subject to mandamus for an alleged error committed by a board of

elections in determining the validity of part-petition signatures sent to the board

by the secretary. While the secretary is correct that R.C. 3513.05 vests authority

in the boards of elections to determine the validity of signatures contained on

part-petitions of persons seeking to be candidates at a primary election, it is

ultimately the secretary of state who must, for statewide candidates, “certify to

each board in the state the forms of the official ballot to be used at the primary

election, together with the names of the candidates to be printed on the ballots

whose nomination or election is to be determined by electors throughout the entire

state and who filed valid declarations of candidacy and petitions.” R.C. 3513.05.

{¶ 28} An aggrieved prospective candidate like Owens, who is

challenging the ultimate decision not to submit his name as a candidate on the

primary-election ballot, properly names the secretary of state as a respondent even

if he is challenging an election board’s verification decision, because the secretary

is the official who relies on the board’s determination and is ultimately

responsible to place the names of all legally viable candidates on the primary-

election ballots. A contrary holding would lead to the absurd result that a person

who is legally entitled to be a candidate because the person submitted sufficient

valid signatures to be placed on the primary-election ballot would be unable to

compel the official responsible for placing the names of primary-election

candidates on the ballot – the secretary of state – to do so. We will not construe

R.C. 3513.05 in this absurd manner to disenfranchise voters by limiting their

choice of candidates that election law dictates under these circumstances. We do

agree, however, that insofar as Owens requested in the alternative in his complaint

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that the Franklin County Board of Elections and other boards of elections recheck

the part-petitions in conformity with Secretary of State Directive 2010-28, no

statute or other law imposes this duty on the boards, and Owens is consequently

not entitled to that relief.

{¶ 29} Therefore, to be entitled to the primary requested extraordinary

relief, Owens must establish that the secretary of state abused her discretion and

clearly disregarded applicable law by failing to certify his name as a candidate on

the May 4 primary-election ballot. The secretary relied on the certification by the

boards of elections of the number of valid signatures to conclude that Owens’s

petition contained 481 valid signatures, which is 19 signatures short of the 500

valid signatures needed for the placement of his name on the primary-election

ballot. See R.C. 3513.05 (For primary elections, “[i]f the declaration of

candidacy declares a candidacy which is to be submitted to electors throughout

the entire state, the petition * * * shall be signed by at least one thousand qualified

electors * * * and the declaration of candidacy and petition shall be filed with the

secretary of state * * *. If the declaration of candidacy declares a candidacy for

party nomination or for election as a candidate of an intermediate or minor party,

the minimum number of signatures on such petition is one-half the minimum

number provided in this section”).

{¶ 30} In this mandamus action, Owens challenges the Franklin County

Board of Elections’ rejection of 41 signatures. Of these 41 signatures, 22 were

rejected as illegible, 17 were rejected because the persons were not registered, one

was rejected as not genuine, and one was rejected as a printed signature. If

Owens is able to establish that at least 19 of these signatures were improperly

rejected, he would be entitled to the writ to compel the secretary of state to place

his name on the primary-election ballot.

{¶ 31} Owens argues that because the board of elections found the “exact

same” signatures to be valid for Deaton’s part-petitions, the Constitution Party

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candidate for United States Senate, he has established his entitlement to the writ.

Not so. The signatures and accompanying written addresses on Owens’s part-

petitions are not exactly the same as the signatures and addresses on Deaton’s

part-petitions. And even if the signatures and addresses were identical, the board

could have erred by validating the signatures on Deaton’s part-petitions instead of

by invalidating the signatures on Owens’s part-petitions.

{¶ 32} Nevertheless, Owens also argues that for his part-petitions,

“signatures found to be illegible were in fact legible,” and “voters found not to be

registered were in fact registered as evidenced by their certified voter registration

records attached to the evidence filed in this case.” Owens has submitted

evidence that includes the part-petitions containing the specified signatures and

the board’s certified voter-registration records to support his claims.

{¶ 33} The parties agree that the board of elections, in assessing the

validity of the signatures on Owens’s part-petitions, should have followed the

secretary’s instructions as incorporated in Secretary of State Directive 2010-28.

See R.C. 3501.11(P) (requiring boards of elections to “[p]erform other duties as

prescribed by law or the rules, directives, or advisories of the secretary of state”);

see also Colvin, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 57

(court will defer to secretary of state’s reasonable interpretation of election law).

None of the parties contests the legal propriety of these instructions, and in the

limited context of the case before us, we will not decide an issue that has not been

raised by the parties.

{¶ 34} For illegible signatures, the secretary of state instructed the boards

of election that a “signature is illegible only if both the signature and address are

unreadable, such that it is impossible for board personnel to check the signature

against a voter registration record.” (Emphasis sic.) Our review of the evidence

establishes that at least 8 of the 22 signatures rejected for illegibility were

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sufficiently legible even if the signatures were not readable, because the addresses

were readable and the signatures matched the board’s records.

{¶ 35} Furthermore, our review of the evidence submitted shows that at

least 11 of the 17 signatures rejected as being from unregistered voters were

improperly rejected, because the board’s records show that the persons are

registered to vote and that their petition signatures match their signatures on file.

{¶ 36} Although the board of elections submitted evidence that its

manager of elections operations reviewed the pertinent signatures on March 23,

2010, and determined that at most “only four” of the signatures “could arguably

be found to be valid,” the court’s review of the actual part-petitions and certified

registration records contradicts this statement and establishes otherwise.

{¶ 37} Owens has established that the board of elections erred in rejecting

at least the 19 signatures that he needed to meet the 500-signature requirement of

R.C. 3513.05 to have his name placed on the May 4 primary-election ballot. We

appreciate the difficulties that elections officials have in reviewing a high volume

of signatures and part-petitions in the often abbreviated time period required by

the election laws, and we accord due deference to these officials’ determinations

when they are reasonably supported. But when a prospective candidate

establishes that the board erred in rejecting valid signatures and those signatures

justify the candidate’s placement on the ballot, we must grant a writ ordering the

secretary to place the candidate’s name on the ballot. Accordingly, the board

abused its discretion and clearly disregarded applicable law in failing to certify

the validity of the signatures. The secretary of state has a clear legal duty to place

Owens’s name on the primary-election ballot.

Conclusion

{¶ 38} Based on the foregoing, Owens has established his entitlement to

the requested extraordinary relief. We grant a writ of mandamus to compel the

secretary of state to certify Owens’s name as a candidate for the Constitution

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Party nomination for the office of Ohio Attorney General and to instruct the

boards of election to place Owens’s name on the May 4, 2010 primary-election

ballot.1

{¶ 39} We observe that in the case before us, Owens seeks to have his

petitions certified in connection with his candidacy for Ohio Attorney General in

the May 4, 2010 Constitution Party primary election. This case demonstrates that

the election timeline promulgated by the General Assembly does not allow

sufficient time for review and certification of nominating petitions by election

officials or for consideration of legal challenges by this court. We note that this is

a matter of importance for the General Assembly to address.

Writ granted.

MOYER, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and

CUPP, JJ., concur.

LUNDBERG STRATTON, J., dissents.

__________________

LUNDBERG STRATTON, J., dissenting.

{¶ 40} I respectfully dissent from the majority’s decision to grant the writ

of mandamus. I believe that it is too late for us to issue a mandamus in this case.

This court should hold that the beginning of the voting process terminates our

ability to rule further on election challenges.

{¶ 41} Although the issues were briefed before balloting started, we have

not had sufficient time to review the issues. Indeed, most of the ballots were

probably printed by the time the briefs were filed in this case. “A State

indisputably has a compelling interest in preserving the integrity of its election

process.” Eu v. San Francisco Cty. Democratic Cent. Commt. (1989), 489 U.S.

214, 231, 109 S.Ct. 1013, 103 L.Ed.2d 271. Moreover, “[c]onfidence in the

1. We deny Owens’s request for attorney fees.

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integrity of our electoral processes is essential to the functioning of our

participatory democracy.” Purcell v. Gonzalez (2006), 549 U.S.1, 4, 127 S.Ct. 5,

166 L.Ed.2d 1.

{¶ 42} “Court orders affecting elections, especially conflicting orders, can

themselves result in voter confusion and consequent incentive to remain away

from the polls. As an election draws closer, that risk will increase.” Id. at 4-5.

Clearly then, when an election has already started, a decision such as the

majority’s will unmistakably cause confusion and disillusionment. See also

Westermann v. Nelson (1972), 409 U.S. 1236, 1236-1237, 93 S.Ct. 252, 34

L.Ed.2d 207 (W.O. Douglas, Circuit Justice), denying an injunction to add a

candidate’s name to the Arizona ballot:

{¶ 43} “The complaint may have merit. But the time element is now short

and the ponderous Arizona election machinery is already under way, printing the

ballots. Absentee ballots have indeed already been sent out and some have been

returned. The costs of reprinting all the ballots will be substantial and it may well

be that no decision on the merits can be reached by the Court of Appeals in time

to reprint the ballots excluding petitioners, should they lose on the merits.

{¶ 44} “* * *

{¶ 45} “On the basis of [the] papers [submitted by the parties] I have

concluded that in fairness to the parties I must deny the injunction, not because

the cause lacks merit but because orderly election processes would likely be

disrupted by so late an action.”

{¶ 46} Absentee ballots have now been mailed, and voting has

commenced. While I believe this ballot involves only one unopposed candidate

and may not disrupt the process too much in the number of ballots requested, a

ballot in a contested race that would need to be changed after being mailed (and

possibly already marked and returned) could wreak serious havoc on our system

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of orderly elections. This case will now be precedent should such a scenario

arise.

{¶ 47} I strongly urge the General Assembly to examine this issue and

impose deadlines or restrictions on future ballot challenges. To allow challenges

to continue after ballots have already been printed and mailed is a costly and

disruptive result that must be fixed. The majority believes that the current law

requires today’s result despite the consequences. I dissent and would hold that the

beginning of the voting process terminates this court’s jurisdiction to alter the

orderly voting process.

__________________

Robert M. Owens, pro se.

Richard Cordray, Attorney General, and Aaron D. Epstein, Richard N.

Coglianese, Damian W. Sikora, and Michael J. Schuler, Assistant Attorneys

General, for respondent Secretary of State Jennifer Brunner.

Ron O’Brien, Franklin County Prosecuting Attorney, Nick A. Soulas Jr.,

First Assistant Prosecuting Attorney, and Anthony E. Palmer Jr., Assistant

Prosecuting Attorney, for respondent Franklin County Board of Elections.

______________________

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