Portis v. Summit Cty. Bd. of Elections
| Decision Date | 25 October 1993 |
| Docket Number | No. 93-1933,93-1933 |
| Citation | 67 Ohio St.3d 590,621 N.E.2d 1202 |
| Parties | PORTIS, Appellee, v. SUMMIT COUNTY BOARD OF ELECTIONS, Appellee; Tarle, Appellant. |
| Court | Ohio Supreme Court |
Appellant Ernie J. Tarle received more votes than the three other Democratic candidates who ran in the September 7, 1993 primary for the Fifth Ward seat on the Akron City Council. Appellee David Portis, who received the second most votes, challenged Tarle's nomination by filing an election contest against appellee Summit County Board of Elections ("board") in the Summit County Court of Common Pleas. The common pleas court found Tarle ineligible to seek the city council office because he had not resided in the Fifth Ward for one year prior to the November 2, 1993 general election, as required by the Akron City Charter. The court further pronounced Portis the Democratic nominee.
Tarle was not named as a party to the action or served with Portis's complaint. However, he was permitted to enter an appearance, file an answer, testify and present witnesses in a hearing held September 20, 1993, and the common pleas court declared him a "real party in interest" in its last judgment entry. Acting now as appellant, Tarle asks for reversal of the judgment below and his return to the ballot as the Democratic nominee.
A. William Zavarello Co., L.P.A., A. William Zavarello and Mark W. Ruf, Akron, for appellee Portis.
Lynn C. Slaby, Summit County Pros. Atty., and Donna C. Carr, Asst. Pros. Atty., for appellee Board of elections.
Blakemore, Meeker, Varian, Looney & Bowler Co., L.P.A., and Donald S. Varian, Jr., Akron, for appellant.
This action was filed under the aegis of R.C. 3515.08 through 3515.16, but it lacks the substantive characteristics of an election contest. " 'An election contest, under the statute, is to ascertain and decide which candidate received the highest number of legal votes.' " State ex rel. Kirk v. Wheatley (1938), 133 Ohio St. 164, 167, 10 O.O. 236, 238, 12 N.E.2d 491, 493, quoting Heffner v. State ex rel. Johnson (1936), 131 Ohio St. 13, 15, 5 O.O. 254, 255, 1 N.E.2d 146, 147. To prevail, the contestor must prove "(1) that one or more election irregularities occurred, and (2) that the irregularity or irregularities affected enough votes to change or make uncertain the result of the election." In re Election of November 6, 1990 for the Office of Attorney General of Ohio (1991), 58 Ohio St.3d 103, 569 N.E.2d 447, syllabus. Election contests are "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. Byrd v. Summit Cty. Bd. of Elections (1981), 65 Ohio St.2d 40, 19 O.O.3d 230, 417 N.E.2d 1375, paragraph one of the syllabus. Evidence in election contests may include testimony from voters in the election or election officials about casting and tabulating votes. R.C. 3515.12; In re Election of Swanton Twp. (1982), 2 Ohio St.3d 37, 2 OBR 581, 442 N.E.2d 758. The evidence must show that the election result was contrary to the will of the electorate, or the result will not be disturbed. In re Election of November 6, 1990, supra, 58 Ohio St.3d at 105, 569 N.E.2d at 450; Mehling v. Moorehead (1938), 133 Ohio St. 395, 408, 11 O.O. 55, 60, 14 N.E.2d 15, 21.
Portis submitted records and testimony from the board of elections placing Tarle's voting residence outside the Fifth Ward since the November 1992 general election. However, this evidence goes to Tarle's qualifications, not the manner in which the primary election was conducted or the validity of votes cast for him. Evidence of nonresidency says nothing about whether the election accurately ascertained the will of the electorate. Indeed, Portis acknowledges that Tarle received the highest number of votes.
The vehicle for challenging a candidate's qualifications, particularly allegations of nonresidency, is a protest. See, e.g., State ex rel. Brown v. Summit Cty. Bd. of Elections (1989), 46 Ohio St.3d 166, 545 N.E.2d 1256; State ex rel. Nichols v. Vinton Cty. Bd. of Elections (1985), 20 Ohio St.3d 1, 20 OBR 75, 484 N.E.2d 690; and State ex rel. Spangler v. Cuyahoga Cty. Bd. of Elections (1983), 7 Ohio St.3d 20, 7 OBR 487, 455 N.E.2d 1009. In fact, Portis attempted to file a protest pursuant to R.C. 3513.05, but did not file it timely...
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