The State Ex Rel. Stevens v. Fairfield County Board of Elections.

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

ex rel. Stevens v. Fairfield Cty. Bd. of Elections, Slip Opinion No. 2018-Ohio-1151.]

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. 2018-OHIO-1151

THE STATE EX REL. STEVENS v. FAIRFIELD COUNTY BOARD OF ELECTIONS.

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

may be cited as State ex rel. Stevens v. Fairfield Cty. Bd. of Elections, Slip

Opinion No. 2018-Ohio-1151.]

Mandamus—Elections—R.C. 3513.05 and 3517.03—County board of elections

abused its discretion in refusing to certify relator’s name for placement on

the May 2018 primary-election ballot—Writ granted.

(No. 2018-0360—Submitted March 22, 2018—Decided March 29, 2018.)

IN MANDAMUS.

________________

Per Curiam.

{¶ 1} In this expedited election case, relator, Jason Stevens, seeks a writ of

mandamus to compel respondent, the Fairfield County Board of Elections, to issue

a certificate of nomination to certify Stevens’s name for placement on the May 8,

2018 primary-election ballot as a candidate for election to the Ohio Democratic

Party State Central Committee. For the reasons set forth below, we grant the writ.

SUPREME COURT OF OHIO

Background

{¶ 2} Stevens filed a petition to appear on the May 8 primary ballot as a

candidate for the Ohio Democratic Party State Central Committee, as Member for

the 20th Senate District. On February 15, 2018, the board voted three to zero, with

one abstention, to deny Stevens access to the ballot because, according to the

meeting minutes, “his voting history did not show he was a member of the

Democratic Party.”

{¶ 3} The board sent Stevens a letter, which was dated February 22 but was

not received by Stevens until February 26, informing him of its decision. The letter

explained the board’s decision by stating:

[Y]ou are not affiliated with a political party. Because of your

unaffiliated status you are unable to run as a candidate for the

partisan position of State Central Committee Member.

{¶ 4} On February 27, Stevens asked the board to reconsider its decision.

The board indicated that it would consider the request at its March 5 meeting. On

that date, Stevens’s counsel presented two affidavits to the board, one by Stevens

and the other by N. Zachary West, general counsel of the Ohio Democratic Party,

and, according to the minutes from that meeting, “explained why [Stevens and

West] felt that Mr. Stevens was a Democratic Party member.” The board adjourned

without taking any action on the request for reconsideration.

{¶ 5} On March 8, 2018, Stevens filed this complaint for a writ of

mandamus against the board of elections. Because this case was filed within 90

days of the May 8 election, the parties submitted briefs in accordance with the

accelerated schedule for expedited elections cases in Sup.Ct.Prac.R. 12.08.

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Analysis

A. Standard of review

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

and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear

legal duty on the part of the respondent to provide it, and (3) the lack of an adequate

remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio

St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. Given that the May 2018 election

is imminent, Stevens does not have an adequate remedy in the ordinary course of

the law. See State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124 Ohio St.3d

584, 2010-Ohio-1176, 925 N.E.2d 601, ¶ 17 (holding that the relator had no

adequate remedy at law because the election was imminent at the time the county

elections board denied the relator’s protest); State ex rel. Finkbeiner v. Lucas Cty.

Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18

(same).

{¶ 7} When reviewing the decision of a county board of elections, the

standard is whether the board engaged in fraud or corruption, abused its discretion,

or acted in clear disregard of applicable legal provisions. State ex rel. Holwadel v.

Hamilton Cty. Bd. of Elections, 144 Ohio St.3d 579, 2015-Ohio-5306, 45 N.E.3d

994, ¶ 29.

B. Laches

{¶ 8} We first address the board’s contention that this suit is barred by the

doctrine of laches. Laches may bar relief in an election-related matter if the person

seeking relief fails to act with the “ ‘utmost diligence.’ ” State ex rel. Monroe v.

Mahoning Cty. Bd. of Elections, 137 Ohio St.3d 62, 2013-Ohio-4490, 997 N.E.2d

524, ¶ 30, quoting State ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio

St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7. A laches defense “rarely prevails

in election cases.” State ex rel. Duclos v. Hamilton Cty. Bd. of Elections, 145 Ohio

St.3d 254, 2016-Ohio-367, 48 N.E.3d 543, ¶ 8.

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{¶ 9} The board contends that Stevens failed to act with the requisite

diligence because he received notice of the board’s decision on February 26 (by his

own admission) but did not file suit until March 8, ten days later. In the interim, he

sought reconsideration from the board. The board asserts: “As there is no statutory

requirement for the [board] to hear [Stevens’s] request for reconsideration,

[Stevens] acted with unreasonable delay by filing this Complaint eleven [sic, ten]

days after being notified by the [board] of its denial of his petition.”

{¶ 10} To the contrary, we have more than once observed that any delay in

filing an expedited election case that is attributable to efforts to seek reconsideration

from the board of elections, and thereby obviate the need for litigation, is not

unreasonable. In State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio

St.3d 299, 2007-Ohio-5228, 874 N.E.2d 1205, the board of elections asserted a

laches defense based on the passage of 21 days between the day the board rejected

the nominating petition and the day Brinda filed her mandamus action. We excused

the first 9 days of that period, finding that those days “might be reasonably

attributable to Brinda’s attempts to persuade the board to reconsider its decision

and her attempts to secure legal counsel,” and analyzed the laches defense with

regard to the remaining 12 days. Id. at ¶ 10; see also State ex rel. Owens v. Brunner,

125 Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d 617, ¶ 18 (holding that “at least

some of Owens’s delay in filing [his mandamus] action was reasonable” because

“[p]art 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”).

{¶ 11} The board has submitted evidence intended to prove that certifying

Stevens’s name to the ballot at this late date will “impose great costs and delays on

the seven counties that comprise the Ohio 20th Senate District if those counties are

forced to reprint ballots so close to the May 8th primary.” However, any financial

cost to the county boards is irrelevant if Stevens acted with reasonable diligence.

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January Term, 2018

{¶ 12} We hold that Stevens’s suit is not barred by laches.

C. The eligibility requirements for a central-committee member

{¶ 13} Under the Revised Code, to be a member of a party’s controlling

committee, a person (1) must be “a resident and qualified elector of the district,

ward, or precinct that the member is elected to represent,” R.C. 3517.02, and (2)

must be a member of the party, R.C. 3517.03. The Revised Code does not explicitly

define the phrase “member of the party” in the context of central-committee

membership. However, with respect to candidacy petitions, the Revised Code

provides:

For purposes of signing or circulating a petition of candidacy

for party nomination or election, an elector is considered to be a

member of a political party if the elector voted in that party’s

primary election within the preceding two calendar years, or if the

elector did not vote in any other party’s primary election within the

preceding two calendar years.

R.C. 3513.05, paragraph 7.

{¶ 14} The affidavit Stevens submitted to the board attested that he

“previously voted in multiple Democratic Party primary elections in Muskingum

County, though [he] did not vote in a primary election in 2016 or 2017.”1 In fact,

according to the director of the board, “the State of Ohio Voter Query System”

indicates that Stevens “ha[s] not voted in a partisan Primary since 2008.” Based on

these facts, Stevens contends that he qualifies as a member of the Democratic Party

under R.C. 3513.05, and thus under R.C. 3517.03, because he satisfies one of the

1

In 2017, there was no partisan primary election in Stevens’s precinct.

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two terms in R.C. 3513.05: he “did not vote in any other party’s primary election

within the preceding two calendar years.”

{¶ 15} The board agrees that R.C. 3513.05 sets out the correct standard for

determining party membership under R.C. 3517.03, but rejects Stevens’s argument

that the two clauses in the statute should be read disjunctively. Despite the use of

the word “or” in the statute, the board maintains that the intent of the statute is that

an elector satisfy both prongs in order to claim party membership.

{¶ 16} The Revised Code does provide for the possibility of substituting the

word “and” in a statute for the word “or”:

As used in the Revised Code, unless the context otherwise

requires:

***

(F) “And” may be read “or,” and “or” may be read “and” if

the sense requires it.

R.C. 1.02. The rule in R.C. 1.02(F) “operates to avoid inadvertent consequences

when logic demands.” State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877

N.E.2d 677, ¶ 16. The board contends that the “or” in R.C. 3513.05 should be read

as “and” and that because Stevens has not voted in a Democratic Party primary

election within the last two calendar years, he does not satisfy the first prong under

R.C. 3513.05 and, thus, he is not a member of the party.

{¶ 17} When construing the language of a statute, we begin by determining

the intent of the General Assembly. State ex rel. Repeal the Lorain Cty. Permissive

Sales Tax Commt. v. Lorain Cty. Bd. of Elections, 151 Ohio St.3d 247, 2017-Ohio-

7648, 87 N.E.3d 1234, ¶ 14. The intent of the General Assembly “is primarily

determined from the language of the statute itself.” Stewart v. Trumbull Cty. Bd.

of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). When the statute is

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January Term, 2018

unambiguous, the court must apply it as written. State ex rel. Ohio Presbyterian

Retirement Servs., Inc. v. Indus. Comm., 151 Ohio St.3d 92, 2017-Ohio-7577, 86

N.E.3d 294, ¶ 19. The language of R.C. 3513.05 is not ambiguous: an elector is a

member of a particular political party if he or she voted in that party’s primary

election within the preceding two calendar years or if he or she did not vote in any

other party’s primary election within the preceding two calendar years.

{¶ 18} Moreover, to be consistent with this court’s prior application of R.C.

1.02(F), the “or” in R.C. 3513.05 must be read literally:

“[A]n examination of the authorities shows that under certain

conditions the word ‘or’ in a legislative enactment can be construed

to read ‘and,’ and that the word ‘and’ can likewise be construed to

read ‘or.’ The word ‘and’ or ‘or’ will not be given its literal meaning

where such meaning would do violence to the evident intent and

purpose of the lawmakers and the other meaning would give effect

to such intent. Contrariwise, the words should not be treated as

interchangeable when their accurate and literal meaning does not

render the sense dubious, and the fact that the terms of the legislative

enactment when given their literal meaning may prove onerous in

some instances is not sufficient to warrant a court in arbitrarily

changing plain and unambiguous language employed by the

legislative body in the enactment.”

In re Adoption of McDermitt, 63 Ohio St.2d 301, 304, 408 N.E.2d 680 (1980),

quoting In re Estate of Marrs, 158 Ohio St. 95, 99, 107 N.E.2d 148 (1952).

{¶ 19} The board, in attempting to invoke R.C. 1.02(F) to change “or” to

“and” in R.C. 3513.05, does not explain why using the literal meaning of “or”

“ ‘would do violence to the evident intent and purpose of the lawmakers and the

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other meaning would give effect to such intent,’ ” McDermitt at 304, quoting Marrs

at 99. Instead, the board offers a hypothetical scenario that might result from

reading the statute literally:

Elector votes in the primary of Party A in 2016. Elector then votes

in the primary of Party B in 2017. Yet, Elector could still claim to

be a member of Party A, because she voted in Party A’s primary

election within the preceding two calendar years (i.e., 2016).

Indeed, the elector could also claim to be a member of Party B for

the same reason. This scenario is only prevented by reading the

requirements of party membership in the conjunctive * * *.

But this is not the “absurd” result the board believes it to be.

{¶ 20} Party affiliation in Ohio is purely a matter of self-identification, and

that self-identification is subject to change.

[P]arty affiliation or membership is “that which [the voter] desires

it to be from time to time.” * * * Essentially, being “registered” as

a Republican or Democrat means nothing more than voting in that

party’s primary, because the local boards of elections keep records

of that information.

(Brackets sic.) State ex rel. Coughlin v. Summit Cty. Bd. of Elections, 136 Ohio

St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 28, fn. 2, quoting State ex rel.

Young v. Gasser, 21 Ohio St.2d 253, 257, 257 N.E.2d 389 (1970). Indeed, with

respect to incumbents holding offices for which candidates are nominated in

partisan primary elections, the General Assembly expressly preserves their right to

change parties while in office; that is, the incumbents can seek reelection under the

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January Term, 2018

banner of one party notwithstanding the fact that they cast primary-election ballots

for the opposing party in a primary election within the preceding two calendar

years. See R.C. 3513.19(A)(3)(a) and 3513.191(C)(1).

{¶ 21} The board suggests that the secretary of state has adopted a

conjunctive reading of R.C. 3513.05. In Ohio Secretary of State Directive 2017-

12, Secretary Jon Husted instructed county election officials:

For purposes of re-calculating a voter’s party affiliation in

the county voter registration system, each board of elections must

program its county voter registration system to reflect party

affiliation using the examples that follow:

* * *

 Voted R in 2016 primary

Voted D or R in 2015 partisan primary

Elector’s affiliation is R

(Italics sic.) Ohio Secretary of State, Ohio Election Official Manual, (Aug. 8,

2017), page 3-73, https://www.sos.state.oh.us/globalassets/elections/directives

/2017/dir2017-12_eom_ch_03.pdf (accessed Mar. 26, 2018). According to the

board, “[t]he only way the Secretary’s example could hold true is by interpreting

the two clauses of the definition of party membership as requirements.” But the

board is plainly incorrect: if the secretary had adopted the board’s view that an

elector had to satisfy both prongs of R.C. 3513.05 in order to claim party

membership, then the correct answer to the secretary’s hypothetical scenario would

be that this voter has no party affiliation and cannot cast a partisan ballot in 2017.

{¶ 22} Based on the plain language of R.C. 3513.05, we hold that Stevens

satisfied the statutory requirements to stand for election to the Ohio Democratic

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Party State Central Committee. The board abused its discretion and acted in clear

disregard of applicable legal provisions when it disallowed his candidacy.

{¶ 23} Based on the foregoing, we grant the requested writ of mandamus.

Writ granted.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,

and DEGENARO, JJ., concur.

_________________

McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo,

Derek S. Clinger, and Ben F.C. Wallace, for relator.

R. Kyle Witt, Fairfield County Prosecuting Attorney, and Joshua S.

Horacek and Amy Brown Thompson, Assistant Prosecuting Attorneys, for

respondent.

_________________

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