State ex rel. Davis v. Summit Cnty. Bd. of Elections

Citation137 Ohio St.3d 222,998 N.E.2d 1093
Decision Date18 October 2013
Docket NumberNo. 2013–1533.,2013–1533.
PartiesThe STATE ex rel. Davis v. SUMMIT COUNTY BOARD OF ELECTIONS.
CourtUnited States State Supreme Court of Ohio

OPINION TEXT STARTS HERE

Law Offices of Warner Mendenhall and Warner Mendenhall, Akron; and Alyssa M. Allen, for relator.

Sheri Bevan Walsh, Summit County Prosecuting Attorney, and John F. Galonski, Assistant Prosecuting Attorney, for respondent.

PER CURIAM.

{¶ 1} Relator, Darrita Davis, filed this expedited elections case seeking a writ of mandamus to compel respondent, the Summit County Board of Elections, to place her name on the November 5, 2013 ballot as an independent candidate for Akron City Council. Because Davis has established her entitlement to extraordinary relief, we grant the writ.

Facts

{¶ 2} Darrita Davis is a qualified elector in Summit County and a resident of Akron, Ward 10. On July 2, 2013, Davis submitted a nominating petition to run as an independent candidate in the November 5, 2013 general election, to represent Ward 10 on the Akron City Council.

{¶ 3} On or around September 23, 2013, the board wrote a letter to Davis stating that her petition “was determined to be invalid.” The letter offered no explanation.

{¶ 4} Davis commenced this original action on September 27, 2013. The parties submitted briefs in accordance with the accelerated briefing schedule for expedited elections cases in S.Ct.Prac.R. 12.08(A)(2).

{¶ 5} This cause is now before the court for consideration of the merits.

AnalysisLaches

{¶ 6} At the outset, we reject the board's attempt to invoke laches. Laches may bar relief in an election-related matter if the person seeking relief fails to act with “requisite diligence.” State ex rel. Voters First v. Ohio Ballot Bd., 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 16, quotingSmith v. Scioto Cty. Bd. of Elections, 123 Ohio St.3d 467, 2009-Ohio-5866, 918 N.E.2d 131, ¶ 11.

{¶ 7} The record does not demonstrate unreasonable delay on the part of Davis. The board notified Davis of its decision to reject her petition by letter dated September 23, 2013. According to her affidavit, Davis did not receive the letter until September 25, 2013. She filed her complaint two days later, on September 27, 2013.

{¶ 8} The board argues that Davis learned of the board's decision a full week before she filed suit. Joseph Masich, director of the Summit County Board of Elections, submitted an affidavit in which he states that he notified Davis of the board's decision by telephone on September 20, 2013. Davis neither admits nor denies that the conversation occurred. However, even assuming that she knew of the board's decision on September 20, we are not persuaded that laches should apply.

{¶ 9} Under the circumstances, the court does not regard the passage of five business days as an unreasonable delay. State ex rel. Coughlin v. Summit Cty. Bd. of Elections, 136 Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 15 (relator acted diligently by filing complaint five business days after receiving hearing transcript).

{¶ 10} Moreover, a party asserting a laches defense must demonstrate that it has been prejudiced by the other party's delay. State ex rel. Voters First v. Ohio Ballot Bd., 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 19. The board alleges injury because absentee voting has already begun as of October 1. But the board would be facing the same predicament even if Davis had filed suit on September 20, 2013, given the amount of time required to brief and decide an expedited elections matter. The timing of Davis's filing has not prejudiced the board. State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d 617, ¶ 21 (laches did not bar suit, because absentee-ballot deadline would have passed no matter how quickly relator filed suit).

{¶ 11} Therefore, laches does not bar our consideration of the merits of this expedited elections case. The court reaffirms its commitment to the principle that “the fundamental tenet of judicial review in Ohio is that courts should decide cases on their merits.” State ex rel. Becker v. Eastlake, 93 Ohio St.3d 502, 505, 756 N.E.2d 1228 (2001).

Mandamus

{¶ 12} For a writ of mandamus to issue, Davis must establish a clear legal right to placement of her name on the November 5, 2013 ballot, a corresponding clear legal duty on the part of the board to place her name on the ballot, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Allen v. Warren Cty. Bd. of Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 8. Davis must prove these requirements by clear and convincing evidence. State ex rel. Orange Twp. Bd. of Trustees v. Delaware Cty. Bd. of Elections, 135 Ohio St.3d 162, 2013-Ohio-36, 985 N.E.2d 441, ¶ 14.

{¶ 13} Because of the proximity of the November 5 election, Davis lacks an adequate remedy in the ordinary course of the law. State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 27.

{¶ 14} As for the remaining requirements, in extraordinary actions challenging the decision of a board of elections, the standard is whether the board ‘engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions.’ State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9, quoting Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11.

{¶ 15} There is no allegation of fraud or corruption. In her first proposition of law, Davis asserts that the board abused its discretion when it disqualified her petition to run as an independent. The board maintains that Davis is not an independent, because she has failed to disaffiliate sufficiently from the Democratic Party.

{¶ 16} The Ohio Revised Code defines an “independent” broadly: any candidate who “claims not to be affiliated with a political party and who meets specific filing requirements qualifies as an independent candidate. R.C. 3501.01(I). “A voter cannot register as an independent, except in the negative sense of not voting in partisan primaries or signing partisan nominating petitions.” State ex rel. Coughlin v. Summit Cty. Bd. of Elections, 136 Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 28, fn. 2.

{¶ 17} In Morrison v. Colley, 467 F.3d 503 (6th Cir.2006), the Sixth Circuit Court of Appeals held that R.C. 3513.257 requires the independent candidate to make a declaration of disaffiliation in good faith. The Ohio secretary of state adopted the Morrison holding in an advisory letter to the local boards of elections.

{¶ 18} In this case, the board concluded that Davis had not disaffiliated in good faith based on a single piece of information, namely the fact that Davis voted in a partisan primary in March 2012.

Mr. Arshinkoff: But she voted in the September—she voted in the May Primary or whenever it was.

Mr. Galonski: March 2012.

Mr. Arshinkoff: March 2012 Primary.

Mr. Galonski: Right.

Mr. Arshinkoff: She's a Democrat.

Ms. Zurz: She voted in the Presidential Primary.

Mr. Arshinkoff: That's the ultimate arbitrator [sic]. That's the granddaddy of them all when you're voting for President.

This was an abuse of discretion.

{¶ 19} A candidate's prior voting history, standing alone, cannot be a sufficient basis for disqualifying an independent candidate. See State ex rel. Monroe v. Mahoning Cty. Bd. of Elections, 137 Ohio St.3d 62, 2013-Ohio-4490, 997 N.E.2d 524, ¶ 24; State ex rel. Wilkerson v. Trumbull Cty. Bd. of Elections, 11th Dist. Trumbull No. 2007–T–0081, 2007-Ohio-4762, 2007 WL 2696769, ¶ 18. Disaffiliation by definition presumes a history of support for or membership in a political party. If a candidate's prior voting record, standing alone, could trump a declaration of disaffiliation, then disaffiliation would never be possible. Therefore, the board does not strengthen its argument by claiming that Davis also voted a Democratic ballot in the 2010, 2008, and 2006 primary elections.1

{¶ 20} The board overemphasized Davis's 2012 primary participation because it made an error of law. R.C. 3513.05 (paragraph 3) requires candidates seeking nomination or election to certain offices to obtain petition signatures from members of the same political party. “For purposes of signing or circulating a petition of candidacy for party nomination or election, an elector is considered to be a member of a political party if the elector voted in that party's primary election within the preceding two calendar years, or if the elector did not vote in any other party's primary election within the preceding two calendar years.” R.C. 3513.05 (paragraph 7).

{¶ 21} The board erroneously applied this two-year look-back provision for petition signatures to the separate analysis of disaffiliation under R.C. 3513.257. According to the board, [b]ecause there is no law that specifies how a person disaffiliates from a political party for the purposes of running as [an independent] candidate, the Board made a reasonable comparison to Ohio's law on how a person disaffiliates from a political party for purposes of signing a petition.”

{¶ 22} The General Assembly expressly wrote a two-year look-back requirement for petition signatures into R.C. 3513.05. Had the legislature intended the same rule to apply to claims of disaffiliation, it would have been a simple matter to draft R.C. 3513.257 accordingly, but the legislature did not do so.

{¶ 23} The practical effect of the board's rule is the creation of a de facto “sit out” requirement, whereby candidates who disaffiliate from a political party have to wait at least two years before they may seek office as independents. Nothing in R.C. 3513.257 requires such a result. Furthermore, adopting such a rule would conflict with this court's precept that courts should liberally construe election laws in favor of persons seeking to hold office so as to avoid restricting the right of electors...

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