# Maschari v. Tone

> Ohio Supreme Court · October 5, 2004 · 103 Ohio St. 3d 411

URL: https://www.frixlaw.com/law-library/cases/6787568

## Case

- **Full name:** Maschari v. Tone
- **Court:** Ohio Supreme Court
- **Decided:** October 5, 2004
- **Citations:** 103 Ohio St. 3d 411; 816 N.E.2d 579
- **Precedential status:** Published
- **Opinion:** Dissent by Donnell
- **Judges:** Connor, Donnell, Moyer, Pfeifer, Resnick, Stratton, Sweeney
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6787568

## Opinion text

O’Donnell, J.,
dissenting.
{¶ 45} I respectfully dissent.
{¶ 46} Here, the majority has reviewed R.C. 3513.19(A)(3) and correctly concluded that it is the duty of a judge of elections to challenge the right of a person to vote whenever that judge doubts the other person’s right to vote. Because that was not done in this election in Erie County, I agree with the majority that the no-challenge policy constituted an election irregularity.
{¶ 47} Nowhere in the statute, however, does it suggest that if a candidate solicited members of an opposite party to vote in a closed primary, the election judge’s duty would be abrogated. Further, I am unpersuaded that because the candidate did solicit Republicans to vote for her in the primary election, she is somehow estopped from complaining about the no-challenge policy. No evidence exists that all Republicans would have been precluded from voting in the closed primary. Some may have been able to pass a challenge of the election judge had there been one. The majority fails to account for this realistic possibility.
{¶ 48} And moreover, the majority’s claim that its holding is in accord with the tendency not to disturb an election result unless the result is shown to be contrary to the will of the electorate is -not borne out by today’s analysis. The election result here became skewed by unchallenged electors voting in a closed primary — how can that result be the will of the electorate? It shows the will of those who should have had no influence over the outcome of the election!
{¶ 49} I would reverse the judgment of the court of appeals and order a remand for further proceedings as outlined in Justice Pfeifer’s dissenting opinion, with which I concur.
Pfeifer, J., concurs in the foregoing dissenting opinion.
Tone, Grubbe, McGory & Vermeeren, and Tygh M. Tone, for appellee Tygh M. Tone.
Julia R. Bates, Special Erie County Prosecuting Attorney, and John A. Borell, Special Assistant Prosecuting Attorney, for appellee Erie County Board of Elections.
Stuart Lippe, urging reversal for amici curiae, Sandusky Branch of the National Association for the Advancement of Colored People and Concerned Voters for Proper Elections.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6787568. Public record. Not legal advice.