Blankenship v. Blackwell, ___ Ohio St.3d ___ (OH 10/22/2004), Case No. 2004-1652.

• Decision Date: 22 October 2004
• Docket Number: Case No. 2004-1652.
• Citation: ___ Ohio St.3d ___,2004 Ohio 5596
• Parties: Blankenship et al., v. Blackwell, Secy. of State, et al.
• Court: Ohio Supreme Court

Page 1

___ Ohio St.3d ___

2004 Ohio 5596

Blankenship et al., v. Blackwell, Secy. of State, et al.

Case No. 2004-1652.

In the Supreme Court of Ohio.

Submitted October 19, 2004.

Decided October 22, 2004.

In Mandamus.

Cassidy & Associates and Michael P. Cassidy; Mark R. Brown, for relators.

Jim Petro, Attorney General, Richard N. Coglianese and Damian W. Sikora, Assistant Attorneys General, for respondent.

Law Offices of Donald J. McTigue and Donald J. McTigue; Kirkland & Ellis and Andrew B. Clubok, for intervening respondents.

PER CURIAM.

{¶1} At issue in this case is relators' entitlement to a writ of mandamus to compel the Secretary of State of Ohio to order boards of elections to update their voter registration records and conduct a second review of the validity of a nominating petition seeking the placement of Ralph Nader and Miguel Camejo as independent candidates for President and Vice-President of the United States on the November 2, 2004 general election ballot in Ohio. For the following reasons, we deny the writ based on laches and relators' failure to comply with R.C. 2731.04.

{¶2} Relators, Herman Blankenship, Kim Blankenship, Julie Coyle, Logan Martinez, and Larry Snider, are Ohio residents who are members of a committee representing Ralph Nader and Miguel Camejo. On August 18, 2004, relators submitted to respondent, Ohio Secretary of State J. Kenneth Blackwell, a joint statement of candidacy and nominating petition requesting that Nader and Jan D. Pierce be independent candidates for President and Vice-President of the United States at Ohio's November 2, 2004 general election. Later on August 18, relators submitted to the Secretary of State Pierce's withdrawal as the vicepresidential nominee, the committee's appointment of Camejo to fill the vacancy, and Camejo's acceptance of the appointment.

{¶3} The petition consisted of part-petitions exhibiting 14,473 signatures. In order to have their names placed on the Ohio ballot, Nader and Camejo were required to have their nominating petitions "signed by no less than five thousand qualified electors." R.C. 3513.257(A).

{¶4} Pursuant to R.C. 3513.263, the Secretary of State transmitted relators' petition papers to the appropriate county boards of elections to examine and determine the sufficiency of the signatures and the validity of the petition papers. The Secretary of State instructed the boards of elections to report their findings by September 3. The boards of elections determined that 6,464 signatures on the part-petitions were valid. It is uncontradicted that the boards of elections reviewed all of the 14,473 petition signatures except those signatures on part-petitions that were completely invalidated by circulator misconduct. See, e.g., R.C. 3501.38(F) ("If a circulator knowingly permits an unqualified person to sign a petition paper or permits a person to write a name other than the person's own on a petition paper, that petition is invalid * * *").

{¶5} On August 30, 2004, Ohio electors Benson A. Wolman, Jerilyn L. Wolman, Zachery E. Manifold, Julia E. Manifold, Bassel Korker, Rebecca S. Mosher, Barry C. Keenan, Gerald L. Robinson, Scott Austin, Mary C. Woods, Johnathon Brunner, Max Kravitz, and Daniel T. Kobil, filed a written protest against the petition challenging the validity of many of the remaining 6,464 signatures ruled valid by the boards of elections. On August 31, 2004, the Secretary of State notified relators that a protest had been filed.

{¶6} On September 8, 2004, the Secretary of State concluded that based on decisions of the boards of elections, 6,464 signatures on relators' nominating petition were valid, a number exceeding the R.C. 3513.257(A) requirement of 5,000 valid signatures. On September 21, the Secretary of State preliminarily certified the petition and placed Nader and Camejo as candidates on the nominated list for the United States presidential election, subject to results from a hearing on the protest against the petition.

{¶7} Earlier, in August 2004, the Nader campaign had contracted with a private company to gather petition signatures in Ohio. When the campaign advised the company that it required a guaranteed signature-validity rate of 70 percent, the company informed the campaign that this rate would not necessarily be possible because of the high volume of recently submitted voter registration applications that Ohio boards of elections still needed to process.

{¶8} On or about September 20, 2004, relators requested records from the Butler, Franklin, Greene, Hamilton, Lorain, Lucas, and Montgomery County Boards of Elections to identify (1) the number of unprocessed voter registration applications on various dates, including when the boards transmitted the petition papers back to the Secretary of State, and (2) the number of part-petitions determined to be invalid for a reason related to circulator conduct and the number of signatures contained thereon that were not reviewed for validation.

{¶9} Regarding the voter-registration application backlog at the time of transmittal of the petition papers back to the Secretary of State, the boards of elections provided the following responses: (1) Butler County — no backlog; (2) Franklin County — no backlog; (3) Greene County — did not keep count; (4) Hamilton County — 10,000 applications; (5) Lorain County — 1,600 applications; (6) Lucas County — 12,000 applications; and (7) Montgomery County — more than 2,500 applications.

{¶10} For part-petitions invalidated because of circulator-related defects, the boards of elections provided the following responses: (1) Butler County — 60 part-petitions containing 701 signatures; (2) Franklin County — 2 part-petitions containing 29 signatures, but 16 of those signatures were validated; (3) Greene County — 3 part-petitions containing 3 signatures; (4) Hamilton County — 153 part-petitions containing 935 signatures; (5) Lorain County — 2 part-petitions containing 26 signatures; (6) Lucas County — 5 part-petitions containing 76 signatures; and (7) Montgomery County — 38 part-petitions containing 688 signatures, of which 75 signatures were reviewed for validation.

{¶11} From September 21 to September 24, 2004, a hearing officer for the Secretary of State conducted a hearing on the protest against relators' nominating petition. The hearing officer permitted both the protestors and relators to introduce evidence and present argument. There is no allegation or evidence that relators argued that the boards of elections had erroneously invalidated some petition signatures because of a backlog of unprocessed voter registration applications.

{¶12} On September 28, 2004, the hearing officer issued a detailed memorandum recommending that 2,756 of the 6,464 petition signatures previously validated by the boards of elections and Secretary of State be deemed invalid for various reasons, including circulator misconduct. On that same date, the Secretary of State adopted his hearing officer's recommendation. Because relators' petition contained 3,708 valid signatures, a number smaller than the required minimum of 5,000, the Secretary of State ordered the boards of elections on September 28 to remove the Nader/Camejo candidacy from the presidential ballot "or to otherwise notify voters that a vote cast for the Nader/Camejo candidacy will not be counted." September 28 was also the date when county boards of elections were to have absentee ballots printed and ready for use. R.C. 3509.01 {¶13} Six days later, on October 4, 2004, relators filed this expedited election case. Their complaint is a mixture of allegations and requests for relief. Nevertheless, it appears that relators request a writ of mandamus to compel the Secretary of State to order Ohio's 88 county boards of elections to (1) update their voter registration records, (2) re-review the part-petitions based on the updated records, (3) validate previously invalidated signatures on the part-petitions that were improperly invalidated because of outdated records, and (4) review unreviewed signatures on totally invalidated part-petitions where updated records show that the circulators are duly registered voters. In addition, relators seek a writ of mandamus to compel the Secretary of State to count as valid those signatures on part-petitions that were invalidated because of the circulatorresidency requirement of R.C. 3503.06. Finally, relators request a writ of mandamus to compel the Secretary of State to certify as valid Nader's candidacy for President of the United States upon a finding, following the boards' review of updated records, that at least 1,292 signatures previously invalidated are in fact valid.

{¶14} Relators allege in their complaint that their focus is the 8,009 signatures invalidated by the boards of elections before they returned the partpetitions to the Secretary of State, rather than the additional 2,756 signatures invalidated by the Secretary of State following the protest hearing. In their complaint, relators also claimed that the residency requirement in R.C. 3503.06 and 3501.38 for circulators of nominating petitions violated petition signers' free speech rights under the First and Fourteenth Amendments to the United States Constitution. More specifically, relators' complaint challenges the R.C. 3503.06 requirement that petition circulators be residents of the state of Ohio.

{¶15} On October 5, 2004, the protesters filed a motion to intervene, an answer, and a motion for judgment on the pleadings. On October 6, the court granted the protesters' motion to intervene. 10/6/04 Case Announcements, 2004-Ohio-5373. On October 8, 2004, the Secretary of State moved to dismiss. On October 15, relators filed a memorandum in response to the protesters' motion for judgment on the pleadings and the Secretary of State's motion to dismiss. Relators also moved to allow Capital University Law Professor Mark R. Brown to appear pro hac vice for them. The parties...