State ex rel. White v. Franklin Cty. Bd. of Elections (Slip Opinion)

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

ex rel. White v. Franklin Cty. Bd. of Elections, Slip Opinion No. 2020-Ohio-524.]

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. 2020-OHIO-524

THE STATE EX REL. WHITE ET AL. v. FRANKLIN 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. White v. Franklin Cty. Bd. of Elections, Slip

Opinion No. 2020-Ohio-524.]

Elections—Mandamus—Validation of signatures on nominating petition—Writ of

mandamus sought to compel county board of elections to place candidate’s

name on ballot—Writ denied.

(No. 2020-0150—Submitted February 12, 2020—Decided February 14, 2020.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} Relators, Tiffany M. White and Tiffany White 4 the People

(collectively, “White”), seek a writ of mandamus ordering respondents, the

Franklin County Board of Elections and its members (collectively, “the board”), to

place White’s name on the March 17, 2020 primary ballot as a candidate for the

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Democratic Party nomination for the office of state representative for the 25th Ohio

House District. White asserts that the board abused its discretion by failing to

validate three signatures on her nominating petition, leaving her one signature short

of the required 50. Also before us is White’s motion to strike the brief of amicus

curiae Miranda Lange, to which Lange has filed a memorandum in opposition. We

deny the writ and motion to strike.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} On December 18, 2019, White filed with the board her declaration of

candidacy and nominating petition, which contained 89 signatures. She needed a

minimum of 50 valid signatures to qualify for the ballot. R.C. 3513.05. The board

initially determined that only 47 signatures were valid, including the signature of

White, who signed her own petition as an elector and whose signature the board

mistook for that of another person living at White’s address. Among the signatures

that the board rejected as invalid were those of Tiffany Harmon, Mark Smoot,

Virginia Davis, Terry D. Rue, and Ronald Fitzgerald. On secondary review, the

board determined that 50 of the signatures on White’s petition were valid, including

those of Davis and Fitzgerald (and including White’s own signature as an elector,

which the board had continued to mistake for someone else’s signature). The board

did not deem valid the signatures of Harmon, Smoot, and Rue. Because White’s

petition had met the minimum-signature requirement, the board certified her name

to appear on the ballot.

{¶ 3} On January 3, 2020, Oscar L. Woods filed a written protest of the

certification. Woods alleged that the signatures of Davis and Fitzgerald—which

the board had initially deemed invalid but had deemed valid on secondary review—

did not match the signatures on file and were therefore invalid. Woods further

alleged that White’s own signature as an elector could not be counted toward the

total, citing the secretary of state’s 2020 Ohio Candidate Requirement Guide, the

secretary of state’s Election Official Manual, and R.C. 3501.38(E)(1). At the

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January 21 protest hearing, White submitted to the board what she purported were

notarized affidavits from Harmon, Smoot, Davis, Rue, and Fitzgerald stating that

their signatures on White’s petition were genuine. The board denies that the

documents were properly verified affidavits.

{¶ 4} The board denied Woods’s protest as to the signatures of Davis and

Fitzgerald but sustained it as to White’s own signature, leaving her petition with

only 49 valid signatures. It did not address her claims that the signatures of

Harmon, Smoot, and Rue were also valid. On January 23, 2020, the board

communicated to White that it had rescinded her certification and that her name

would not appear on the ballot.

{¶ 5} On January 29, White filed this mandamus action. Her complaint

does not challenge the board’s decision on Woods’s protest but instead asserts that

the board abused its discretion by not deeming valid the signatures of Harmon and

Smoot, which, if valid, would bring White’s signature total to 51. (In her brief, she

argues that the signature of Rue is also valid, bringing the valid-signature total to

52.) White seeks a writ ordering the board to place her name on the ballot.

II. ANALYSIS

A. Mandamus Standard

{¶ 6} White is entitled to a writ of mandamus if she establishes by clear and

convincing evidence that (1) she has a clear legal right to have her name placed on

the ballot, (2) the board has a clear legal duty to place her name on the ballot, and

(3) she lacks an adequate remedy in the ordinary course of the law. State ex rel.

Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998

N.E.2d 1093, ¶ 12. Because of the proximity of the March election, White lacks an

adequate remedy outside this proceeding. See State ex rel. Finkbeiner v. Lucas Cty.

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

{¶ 7} With respect to the remaining elements, we look to whether the board

has “engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard

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of applicable legal provisions.” Whitman v. Hamilton Cty. Bd. of Elections, 97

Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. White does not allege fraud

or corruption, so the question is whether the board abused its discretion or clearly

disregarded applicable law. A board abuses its discretion when it acts in an

unreasonable, arbitrary, or unconscionable fashion. State ex rel. McCann v.

Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14, 2018-Ohio-3342, 118 N.E.3d

224, ¶ 12.

B. Elector Authenticity

{¶ 8} White argues that the board abused its discretion when it rescinded

her certification to the ballot after sustaining Woods’s challenge to her own

signature because the “sworn” statements that White obtained from Harmon,

Smoot, and Rue established that their signatures are genuine. She argues that if

those signatures are deemed to be valid, her petition contains 52 valid signatures—

two more than the minimum number required. On this basis, she asserts a clear

legal right to have her name recertified to the ballot and a clear legal duty on the

part of the board to do so under R.C. 3513.05.

{¶ 9} The board responds that the documents White obtained are unsworn

statements, not sworn affidavits, and that the purported signatures of Harmon,

Smoot, and Rue on those statements have not been verified through comparison

with those electors’ voter-registration forms. The board argues that the unsworn

statements are therefore insufficient to confirm that Harmon, Smoot, and Rue

actually signed the statements and, ultimately, are insufficient to show that they

signed White’s petition. The board therefore denies that White has a clear legal

right to ballot access and denies that it has a clear legal duty to certify her name to

the ballot. We conclude that the board is correct.

{¶ 10} A board of elections has a duty to “[r]eview, examine, and certify

the sufficiency and validity of petitions and nomination papers.” R.C. 3501.11(K).

“As part of that duty, boards must compare petition signatures with voter-

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registration cards to determine if the signatures are genuine.” State ex rel. Scott v.

Franklin Cty. Bd. of Elections, 139 Ohio St.3d 171, 2014-Ohio-1685, 10 N.E.3d

697, ¶ 17. In this case, the board compared the petition signatures with the voter-

registration signatures and determined that the petition signatures purporting to be

those of Harmon, Smoot, and Rue were not genuine.

{¶ 11} When a petition signature does not match the one on the signer’s

voter-registration form but the board determines that the signature is nonetheless

genuine, the board abuses its discretion if it invalidates the signature for not

matching the one on file. Georgetown v. Brown Cty. Bd. of Elections, ___ Ohio

St.3d ___, 2019-Ohio-3915, ___ N.E.3d ___, ¶ 23-25, citing State ex rel. Crowl v.

Delaware Cty. Bd. of Elections, 144 Ohio St.3d 346, 2015-Ohio-4097, 43 N.E.3d

406, ¶ 11, and Scott at ¶ 19. “Although the caselaw speaks in terms of establishing

whether a signature is genuine, * * * the duty of the boards of elections is to

establish the authenticity of the elector, not the signature.” (Emphasis sic.) Id. at

¶ 24.

{¶ 12} The facts in Scott, Crowl, and Georgetown involved print/cursive

mismatches, i.e., situations in which an elector signed the petition in print but the

signature on file was in cursive, or vice versa. See Georgetown at ¶ 22-24. In each

of those cases, there had been evidence sufficient to establish that the electors in

question had actually signed the petition. Id. at ¶ 14, 23-25. In Scott, there had

been uncontroverted, sworn hearing testimony from the petition circulator and the

elector that the elector had signed the petition. Scott at ¶ 7; see also State ex rel.

Scott v. Franklin Cty. Bd. of Elections, 10th Dist. Franklin No. 14AP-197, 2014-

Ohio-1395, 10 N.E.3d 776, ¶ 6 (testimony was given under oath). And in Crowl,

the relator had submitted sworn affidavits from the electors attesting that the

signatures that had been rejected as “not genuine” were in fact genuine. Crowl at

¶ 4.

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{¶ 13} By contrast, in this case, the board is correct that the documents at

issue are not sworn affidavits and are instead unsworn statements. “An affidavit

must appear, on its face, to have been taken before the proper officer and in

compliance with all legal requisites. A paper purporting to be an affidavit, but not

to have been sworn to before an officer, is not an affidavit.” In re Disqualification

of Pokorny, 74 Ohio St.3d 1238, 657 N.E.2d 1345 (1992) (purported affidavit

omitting jurat of notary public or other official authorized to administer oath or

affirmation was not an affidavit); see also R.C. 2319.02 (“An affidavit is a written

declaration under oath”). The documents at issue here bear the notary public’s

stamp, but not her signature, and they contain no jurat of the notary public nor any

other indication that the declarants had sworn to their statements or that they made

their statements under oath. See R.C. 147.04; R.C. 147.542.

{¶ 14} White argues in response that it does not matter if the statements

were unsworn because in Georgetown, unsworn statements were used to establish

the validity of petition signatures that did not match the voter-registration signatures

on file. However, this argument overlooks the fact that in Georgetown, the record

also contained the relevant electors’ voter-registration forms, and the board had

voluntarily compared the signatures on the unsworn statements with the signatures

on the voter-registration forms and determined that those signatures were

consistent, thereby verifying the authenticity of the electors. Georgetown, ___

Ohio St.3d ___, 2019-Ohio-3915, ___ N.E.3d ___, at ¶ 14.

{¶ 15} White points to no authority imposing on the board a clear legal duty

to make the comparison between the signatures on the unsworn statements and

those on the voter-registration forms that the board in Georgetown undertook

voluntarily. Moreover, she does not seek the relief that would inure if such a duty

existed, i.e., a writ ordering the board to compare the signatures on the unsworn

statements with the signatures on the voter-registration forms. Rather, the relief

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White seeks in this action is a writ ordering the board to certify her name directly

to the ballot.

{¶ 16} The record before us contains neither sworn testimony that Harmon,

Smoot, and Rue signed the petition nor voter-registration forms against which the

signatures on the unsworn statements can be compared to establish the authenticity

of those electors. We conclude that White has failed to establish by clear and

convincing evidence that the three disputed petition signatures are genuine or that

the board abused its discretion in rejecting them. See State ex rel. Heavey v. Husted,

152 Ohio St.3d 579, 2018-Ohio-1152, 99 N.E.3d 372, ¶ 7, 10-11 (because the

record did not contain the voter-registration records, relators could not prove the

reason that the signatures were rejected). And therefore, she has not established a

clear legal right to have her name placed on the ballot. Id. (because relators failed

to present clear and convincing evidence of erroneously rejected signatures, they

failed to show a clear legal right to be certified to the ballot).

C. Printed Signature

{¶ 17} White asserts that the board rejected Harmon’s signature solely

because it was printed, not written in cursive. She makes this claim on the basis of

a petition-review report produced by the board that indicates “PS – Printed

Signature” next to Harmon’s name. Electors’ signatures do not have to be written

in cursive—they may be printed. R.C. 3501.011. Therefore, a blanket

disqualification of printed signatures would be an abuse of discretion. Georgetown,

___ Ohio St.3d ___, 2019-Ohio-3915, ___ N.E.3d ___, at ¶ 20-21. Accord State ex

rel. Auken v. Blackwell, 10th Dist. Franklin No. 04AP-952, 2004-Ohio-5355, ¶ 19.

Because White is one signature short of the minimum, if Harmon’s signature were

to be deemed valid, White would be entitled to relief.

{¶ 18} However, the board asserts—and its manager of petitions and

campaign finance, Jeffrey O. Mackey, attested in a sworn affidavit—that Harmon’s

petition signature had been invalidated because it did not match the signature on

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Harmon’s voter-registration form. White attacks Mackey’s affidavit as not

establishing that it had been made on personal knowledge. But Mackey’s affidavit

states his position as manager of petitions and avers that the statements it contains

are made from his personal knowledge. This was sufficient to demonstrate

Mackey’s personal knowledge of the reasons that the petition signatures had been

rejected.

{¶ 19} In any event, as in Heavey, Harmon’s voter-registration form is not

in evidence. White has therefore failed to establish by clear and convincing

evidence that the board rejected Harmon’s signature under a mistaken belief that

printed signatures are invalid per se and not because there was a print/cursive

mismatch between the petition signature and the signature on Harmon’s voter-

registration form. See Heavey, 152 Ohio St.3d 579, 2018-Ohio-1152, 99 N.E.3d

372, at ¶ 10. As explained above, in the absence of evidence establishing the

elector’s authenticity, evidence that is lacking here, a board does not abuse its

discretion by rejecting a petition signature that is inconsistent with the signature on

the elector’s voter-registration card. White has therefore not established that the

signature was improperly invalidated and thus that she has a clear legal right to

have her name appear on the ballot. See id. at ¶ 7.

D. Motion to Strike

{¶ 20} White has moved to strike the merit brief of amicus curiae Miranda

Lange, arguing that amici may not file merit briefs in original actions without leave

of court. White is incorrect: “[A]n amicus curiae may file a merit brief in an

original action without leave of court.” State ex rel. Duke Energy Ohio, Inc. v.

Hamilton Cty. Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450, 930

N.E.2d 299, ¶ 11; see also S.Ct.Prac.R. 12.07(A) and 16.06(A). White further

argues that the amicus brief “raises false issues, causes confusion, and serves no

purpose.” However, she does not cite any authority for striking the brief on those

grounds. And her motion includes substantive rebuttals to the points in the amicus

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brief that she disputes, thus diminishing any possible confusion. We deny the

motion to strike.

III. CONCLUSION

{¶ 21} Based on the foregoing, we deny the writ and motion to strike.

Writ denied.

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

STEWART, JJ., concur.

DONNELLY, J., dissents and would grant the writ.

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Fitrakis & Gadell-Newton, L.L.C., Robert J. Fitrakis, and Constance A.

Gadell-Newton, for relators.

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

Lecklider and Nick A. Soulas Jr., Assistant Prosecuting Attorneys, for respondents.

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

Derek S. Clinger, and Ben F.C. Wallace, urging denial of the writ for amicus curiae,

Miranda Lange.

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