State ex rel. Byrd v. Board of Elections of Summit County

• Decision Date: 18 March 1981
• Citation: 417 N.E.2d 1375,19 O.O.3d 230,65 Ohio St.2d 40
• Parties: , 19 O.O.3d 230 The STATE ex rel. BYRD, Appellant, v. BOARD OF ELECTIONS OF SUMMIT COUNTY et al., Appellees.
• Court: Ohio Supreme Court

Page 40

65 Ohio St.2d 40

417 N.E.2d 1375, 19 O.O.3d 230

The STATE ex rel. BYRD, Appellant, v. BOARD OF ELECTIONS OF SUMMIT COUNTY et al., Appellees.

Supreme Court of Ohio.

March 18, 1981.

Syllabus by the Court

1. Mandamus and quo warranto will not lie to compel the withdrawal of a certificate of election issued following an election, and cannot be substituted in lieu of a request for a recount pursuant to R.C. 3515.02, or a contest of election pursuant to R.C. 3515.09. These sections provide the exclusive remedy for a recounting of the votes, or a correction of all errors, frauds, and mistakes which may occur at an election. (State, ex. rel. Daoust, v. Smith, 52 Ohio St.2d 199, 371 N.E.2d 536, approved and followed.)

2. There is no constitutional violation where the General Assembly has provided exclusive remedies with specific limitations for the recount of votes in R.C. 3515.02 or the contest of elections in R.C. 3515.09 which are applicable to all candidates for elective office.

This is an appeal by Clint L. Byrd, appellant herein, from the denial of his complaint in quo warranto and mandamus by the Court of Appeals.

The facts, in essence, giving rise to this appeal, are as follows:

In the general election conducted on November 6, 1979, Byrd and William C. Wetzel were candidates, together with six others, for the Norton City School District Board of Education two members to be elected. The election results showed, in part, that Jean L. Behr received 1,671 votes, Wetzel received 1,397 votes and Byrd received 1,259 votes. Since only two candidates were to be elected, the board of elections declared Behr and Wetzel the winners, and, on November 20, 1979, issued certificates of election.

On December 19, 1979, Byrd went to the board of elections to file his financial report and while there decided to review the computer print-out of the election results. Byrd became concerned about the accuracy of the print-out results in that he had only received eight votes in his own precinct, which he felt was incorrect. Upon contacting the deputy director of the board of elections, the ballots in Byrd's home precinct were examined and it was determined that there had indeed been an error in tallying the votes, occasioned by an improper code number being key-punched into the board of elections computer.

Upon an informal hand count of the votes in the precinct in question, the vote totals were as follows: Behr, 1,604, Byrd, 1,411, and Wetzel, 1,371.

Byrd thereafter brought a complaint in the Court of Appeals seeking, upon the basis of the total votes as determined by the hand count, a writ of mandamus to compel the board of elections to withdraw the certificate of election issued to Wetzel and issue such certificate to Byrd, and further, by an action in quo warranto, challenging Wetzel's right to hold office. The court denied the complaint.

The cause is now before this court upon an appeal as of right.

Roderick, Myers & Linton and Harry A. Tipping, Akron, for appellant.

Stephan M. Gabalac, Pros. Atty., William E. Schultz, Akron, for appellee Board of Elections.

David L. Headley, Barberton, for appellee Wetzel.

HOLMES, Justice.

The judgment of the Court of Appeals must, upon the basis of the statutory law as previously interpreted by this court, be affirmed.

There are two basic remedies available to a candidate who claims error on the part of the board of elections in tabulating votes. The candidate may request a recount pursuant to the provisions of R.C. 3515.01 to 3515.071, inclusive, or he may contest the election pursuant to R.C. 3515.08 to 3515.16, inclusive.

If a recount is sought, the application, per R.C. 3515.02, must be filed within five days after the day upon which the board of elections declares the results. If a contest of election is desired, it must, pursuant to R.C. 3515.09, be commenced by the defeated candidate filing a contest petition with the county clerk of courts within 15 days after the results have been ascertained and announced by the proper authority.

Here, the appellant, Byrd, did not avail himself of either remedy, but chose to seek relief by way of the unusual remedies of quo warranto and mandamus, collaterally attacking the election results as previously certified.

In State, ex rel. Shriver, v. Hayes (1947), 148 Ohio St. 681, 76 N.E.2d 869, this court pronounced the basic, and still prevailing, law that an election contest is the specific remedy provided by statute for the correction of all errors, frauds, and mistakes which may occur in an election. The specific pertinent law of such case is found in paragraphs one and two of the syllabus, as follows:

"1. A certificate of election is conclusive as to the result of an election until set aside or vacated in some manner authorized by law, and is not subject to collateral attack; and, although not conclusive when directly attacked, such certificate is prima facie evidence of the matters therein certified.

"2. An election contest is the specific remedy provided by statute for the corrections of all errors, frauds and mistakes which may occur in an election."

This court, in Shriver v. Hayes, at page 687, 76 N.E.2d 869, further pointed out that:

" * * * (Q )uo warranto will not lie to review and set aside the determination in an election contest * * * (nor) to set aside an election which has become final for the reason that no contest has been instituted."

More recently, this court addressed issues involving the same sections of law under consideration here. In State, ex rel. Daoust, v. Smith (1977), 52 Ohio St.2d 199, 371 N.E.2d 536, this court, in a per curiam opinion, stated, at pages 200-201, that:

"A certificate of election is conclusive as to the result of an election until set aside or vacated in some manner authorized by law, and is not subject to collateral attack. State, ex rel. Shriver, v. Hayes (1947), 148 Ohio St. 681, 76 N.E.2d 869.

"Respondent's raising election irregularities in this action constitutes an improper collateral attack.

"An election contest is the specific remedy provided by R.C. 3515.08 et seq. for the correction of all errors, frauds and mistakes which may occur at an election. Hayes, supra. This remedy is specific and exclusive. State, ex rel. Commrs. of the Sinking Fund, v. Brown (1957), 167 Ohio St. 71, 75, 146 N.E.2d 287.

"Respondent's position is not as awkward as he alleges. R.C. 3515.09 provides that an election contest action must be filed 'within fifteen days after the results * * * have been ascertained and announced by the proper authority.'

"The public interest in having election contests speedily determined requires promptitude. Jenkins v. Hughes (1952), 157 Ohio St. 186, 190, 105 N.E.2d 58. Compliance with the statutory limitation is a jurisdictional requirement, and a failure to file within that period sets up a bar to an election contest. See McCall v. Bd. of Education (1959), 169 Ohio St. 50, 157 N.E.2d 351; Jenkins v. Hughes, supra."

The purpose of the specific time limitation within election statutes is to provide promptness and certainty in our elections in a reasonable manner. This generally results in serving the best interests of the public, and permits those in charge of carrying out our election laws to proceed with their ongoing duties.

The well-accepted requisites to obtain the special writ of mandamus have been set forth by this court in a number of cases, e.g., in State, ex. rel. National City Bank, v. Bd. of Education (1977), 52 Ohio St.2d 81, at page 84, 369 N.E.2d 1200, as follows:

"In order to be entitled to a writ of mandamus, relators must show (1) that they have a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that realtors have no plain and adequate remedy in the ordinary course of the law. See State, ex rel. Long, v. Bettman (1970), 24 Ohio St.2d 16, 17, 262 N.E.2d 859; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631."

Here, the appellant argued to the Court of Appeals, and to this court, that the board of elections had a mandatory duty, pursuant to R.C. 3505.32, to correct the records of the election and place him in office by virtue of the hand recount. R.C. 3505.32 provides, in pertinent part, that:

"Not later than the fifth day after the general or special election, the board of elections shall begin to canvass the election returns from the...