State ex rel. Heavey v. Husted (Slip Opinion)

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

ex rel. Heavey v. Husted, Slip Opinion No. 2018-Ohio-1152.]

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-1152

THE STATE EX REL. HEAVEY ET AL. v. HUSTED ET AL.

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

may be cited as State ex rel. Heavey v. Husted, Slip Opinion No.

2018-Ohio-1152.]

Mandamus—Elections—R.C. 3513.05—Joint candidates for governor and

lieutenant governor did not show by clear and convincing evidence a legal

right to have their names placed on the ballot—Writ denied.

(No. 2018-0313—Submitted March 26, 2018—Decided March 29, 2018.)

IN MANDAMUS.

________________

Per Curiam.

{¶ 1} In this expedited election case, relators, Jonathan Heavey and Adam

Hudak, seek a writ of mandamus certifying their names to the May 8, 2018 ballot

as candidates for the Democratic Party’s nominees for governor and lieutenant

governor, respectively. For the reasons set forth below, we deny the writ.

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Background

{¶ 2} On February 7, 2018, Heavey and Hudak delivered their declaration

of candidacy and petition for the Democratic Party nomination for governor and

lieutenant governor to the office of respondent Jon Husted, Ohio secretary of state.

The petition contained 2,185 signatures.

{¶ 3} A petition of joint candidates for the offices of governor and

lieutenant governor must be signed by at least 1,000 qualified electors who are

members of the same political party as the candidates. R.C. 3513.05. The secretary

of state transmitted Heavey and Hudak’s part-petitions to the appropriate county

boards of elections to verify the signatures. The county boards of elections verified

the validity of only 854 signatures. Therefore, when Secretary Husted issued

Directive 2018-06 on February 21, 2018, certifying statewide candidates for the

May 8 ballot, Heavey and Hudak were not on the list.

{¶ 4} Heavey and Hudak commenced the present action on February 28,

2018. In addition to Secretary Husted, the complaint named as respondents the

boards of elections of five counties: Cuyahoga, Franklin, Hamilton, Summit, and

Warren. Heavey and Hudak alleged that Husted and the boards abused their

discretion and disregarded applicable law by rejecting at least 146 valid signatures.

The complaint demanded a writ of mandamus compelling the boards to amend their

certifications of the number of valid signatures and compelling Husted to certify

Heavey and Hudak’s names to the May 8 ballot.

{¶ 5} 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

election cases in S.Ct.Prac.R. 12.08.

Analysis

{¶ 6} To be entitled to a writ of mandamus, a party 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

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January Term, 2018

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 8 election is

imminent, Heavey and Hudak do 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 relator had

no adequate remedy at law because election was imminent at time county elections

board denied 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} However, Heavey and Hudak have failed to show a clear legal right

to the relief they seek: certification to the ballot. Some of the respondent boards

have conceded the validity of some of the disputed signatures. But Heavey and

Hudak fell 146 signatures short of qualifying for the ballot, and they have not

presented clear and convincing evidence that there were at least 146 erroneously-

rejected signatures.

{¶ 8} Their initial brief and supporting evidence identified only 121

signatures that they claim were wrongly invalidated:

 37 signatures rejected as “NRA” (not registered address): 4 in Cuyahoga

County, 25 in Franklin County, 6 in Hamilton County, 1 in Mahoning

County,1 and 1 in Summit County;

 48 signatures rejected as “NR” (not registered): 29 in Cuyahoga County, 18

in Franklin County, and 1 in Montgomery County;2

 14 signatures as “NG” (not genuine): 5 in Cuyahoga County, 1 in Franklin

County, 7 in Hamilton County, and 1 in Summit County;

 13 signatures rejected because they were printed, not written in cursive: 11

in Franklin County and 2 in Montgomery County;

1

The Mahoning County Board of Elections was not named as a respondent.

2

The Montgomery County Board of Elections was not named as a respondent.

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 7 signatures in Franklin County rejected as illegible;

 1 signature in Hamilton County rejected because the signer was not a

member of the same political party as the candidates; and

 1 signature in Warren County rejected based on a typographical error in the

date of signature.

Even if they succeeded in validating all 121 of these signatures, Heavey and Hudak

would have a total of only 975 valid signatures, 25 short of the 1,000 necessary to

qualify for the ballot.

{¶ 9} To make up the shortfall, they allege that “[t]he evidence to date

reflects that in excess of 100 signatures of properly-registered, qualified electors of

the Democratic party signed [the] petition in printed form while having voter

registration records signed in cursive, and were invalidated on this basis.” In their

reply brief, they identify 32 additional signatures disqualified by the Cuyahoga

County Board of Elections as “NG” (not genuine). As to each of these 32 signatures

disqualified as not genuine, Heavey and Hudak write, “it is reasonable * * * to

conclude that the Boards rejected the signature on the basis of a mismatch between

the appearance of the signature on the petition and the elector’s voter registration

card.” They then argue that boards of elections should not be able to invalidate

signatures based upon a signature mismatch solely because one signature is printed

and the other is written in cursive.

{¶ 10} Heavey and Hudak’s assumption is that the board of elections

invalidated these 32 signatures based on a print/cursive mismatch, but that is

complete speculation. A print/cursive mismatch is not the only reason a petition

signature might appear to be not genuine. Boards of elections are “required to

compare petition signatures with voter registration cards to determine if the

signatures are genuine.” State ex rel. Yiamouyiannis v. Taft, 65 Ohio St.3d 205,

209, 602 N.E.2d 644 (1992). In doing so, they are permitted to consider all manner

of signature discrepancies. For example, in State ex rel. Mann v. Delaware Cty.

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January Term, 2018

Bd. of Elections, we invalidated two signatures by comparing details of the writing

style:

[O]n the petition, the “R” at the start of Ralph Davis’s name was

made in one continuous stroke, whereas the signature on the

mortgage deeds featured a two-stroke “R.” Likewise, we note that

the signatures in the board’s official poll books (six examples of

which appear in the record) all begin with the two-stroke “R.” In

fact, even the affidavit submitted as evidence at the protest hearing

contains the two-stroke “R.” The sole outlier is the petition

signature.

* * * The record contains eight examples of [Starla Rito’s]

signature, signing either as “Starla Rito” or “Starla Cox.” In six of

them, the name “Starla” begins with a printed capital “S” that does

not connect to the next letter: two signatures on voter-registration

cards and four signatures on mortgage papers. The only exceptions

are the petition signature and the affidavit, where the name begins

with a cursive “S.”

143 Ohio St.3d 45, 2015-Ohio-718, 34 N.E.3d 94, ¶ 14-15. The record in this case

does not contain the voter-registration records for the 32 voters Heavey and Hudak

claim were improperly invalidated due to a print/cursive mismatch, meaning they

have not even proven that there was a print/cursive mismatch.

{¶ 11} We find the same evidentiary problem when we examine some of

the 121 signatures originally identified in Heavey and Hudak’s merit brief. For

example, the Cuyahoga County board of elections invalidated the signature of

Mandy Neudecker as not genuine. Heavey and Hudak allege that the board abused

its discretion because the signature on the petition was sufficiently similar to the

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one on file with the board, but a copy of the latter signature is not in the record.

The same is true of at least six other signatures that Heavey and Hudak allege were

erroneously labeled “NG.”3

{¶ 12} Heavey and Hudak have not shown, by clear and convincing

evidence, a legal right to have their names placed on the May 8 ballot. As

previously stated, even if they made the required showing as to all the remaining

signatures, it would be insufficient to qualify them for the ballot. We therefore

deem it unnecessary to address the other issues raised in the briefs of the parties.

{¶ 13} Based on the foregoing, we deny the request for a writ of mandamus.

Writ denied.

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

DEGENARO, JJ., concur.

DEWINE, J., not participating.

_________________

Brunner Quinn, and Patrick M. Quinn, for relators.

Michael DeWine, Attorney General, and Renata Y. Staff and Sarah E.

Pierce, Assistant Attorneys General, for respondent Secretary of State Jon Husted.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and

Brendan R. Doyle, Assistant Prosecuting Attorney, for respondent Cuyahoga

County Board of Elections.

Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Timothy A.

Lecklider, Assistant Prosecuting Attorney, for respondent Franklin County Board

of Elections.

3

Janetta Foster, Stepheny Caldonia, Mark Samaan, Chermaine Thomas, Deborah Lee, and Earlene

Robinson.

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January Term, 2018

Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T.

Stevenson and Cooper D. Bowen, Assistant Prosecuting Attorneys, for respondent

Hamilton County Board of Elections.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Peter W.

Nischt and Rocky Radeff, Assistant Prosecuting Attorneys, for respondent Summit

County Board of Elections.

_________________

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