State ex rel. Ferrara v. Trumbull Cnty. Bd. of Elections

• Citation: 166 Ohio St.3d 64,182 N.E.3d 1142
• Decision Date: 14 September 2021
• Docket Number: 2021-1050
• Parties: The STATE EX REL. FERRARA v. TRUMBULL COUNTY BOARD OF ELECTIONS.
• Court: United States State Supreme Court of Ohio

166 Ohio St.3d 64

182 N.E.3d 1142

The STATE EX REL. FERRARA

v.TRUMBULL COUNTY BOARD OF ELECTIONS.

No. 2021-1050

Supreme Court of Ohio.

Submitted September 8, 2021

Decided September 14, 2021.

Baker, Dublikar, Beck, Wiley & Mathews, Tonya J. Rogers, and James F. Mathews, North Canton, for relator.

Dennis Watkins, Trumbull County Prosecuting Attorney, and Ryan J. Sanders, Assistant Prosecuting Attorney, for respondent.

DeWine, J. {¶ 1} The Trumbull County Board of Elections is attempting to prevent Mark Ferrara's name from appearing on the ballot for Brookfield Township trustee. The board rejected an entire part-petition submitted by Ferrara because the part-petition contained one signature more than Ferrara had indicated. With the signatures from that part-petition invalidated, Ferrara fell short of the 25 signatures he needed. Ferrara seeks a writ of mandamus ordering the board of elections to certify his name to the ballot. We grant Ferrara a limited writ: we order the board of elections to determine the number of valid signatures on the part-petition at issue and, if appropriate, to certify Ferrara's name to the ballot.

I. BACKGROUND

{¶ 2} To appear on the ballot, Ferrara must amass 25 qualifying signatures of nomination. See R.C. 3513.253. The signatories must be electors residing in Brookfield Township who are registered to vote. See R.C. 3501.01(N). Nominating electors sign part-petitions. Each part-petition contains numbered cells in which electors provide their signatures and additional information. Below the signature cells, under the heading "Circulator Statement," is a blank for the circulator to indicate the number of signatures on the part-petition.

{¶ 3} Ferrara timely submitted a nominating petition that consisted of two part-petitions. The first part-petition contained 20 signatures, as he accurately indicated. The Trumbull County Board of Elections reviewed that petition and found 16 of those signatures to be valid.

{¶ 4} Ferrara's trouble arose with his second part-petition. Ferrara submitted 17 signatures, but on the blank space instructing him to indicate the number of signatures he wrote "16." The circulator statement signed by Ferrara further indicated that he "witnessed the affixing of every signature; that all signers were to the best of [his] knowledge and belief qualified to sign; and that every signature is to the best of [his] knowledge and belief the signature of the person whose signature it purports to be * * *." Ferrara attests that the indication that the part-petition contained 16 rather than 17 signatures was simply an error resulting from an inadvertent miscount, and no evidence has been submitted to the contrary. Nevertheless, based on Ferrara's counting mistake, the board of elections invalidated the entire part-petition.

{¶ 5} The director of the Trumbull County Board of Elections, Stephanie Penrose, informed Ferrara that the board unanimously rejected his nominating petition "due to undercounting of signatures on the circulator's statement." Ferrara promptly requested reconsideration. Citing the Ohio Secretary of State's Election Official Manual, the board of elections unanimously declined to reconsider his part-petition. Penrose explained, "The Election Official Manual is very clear that a part-petition must be invalidated in the event of undercounting on a circulator statement."

{¶ 6} Ferrara filed an original action in this court seeking a writ of mandamus to compel the board of elections to place his name on the November election ballot. We set an expedited briefing schedule sua sponte. 164 Ohio St.3d 1414, 2021-Ohio-2897, 172 N.E.3d 1034.

II. ANALYSIS

{¶ 7} "A writ of mandamus is an extraordinary remedy." State ex rel. Brown v. Ashtabula Cty. Bd. of Elections , 142 Ohio St.3d 370, 2014-Ohio-4022, 31 N.E.3d 596, ¶ 11. The writ will issue only if the relator demonstrates a clear legal right to relief, a clear legal duty on the part of the board to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. The parties agree that, with the November election drawing near, the third requirement is satisfied. See also id. When analyzing the first two requirements, the inquiry is whether the board " ‘engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions.’ " Id. at ¶ 7, quoting Whitman v. Hamilton Cty. Bd. of Elections , 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11.

A. R.C. 3501.38 Does Not Authorize Invalidation of Ferrara's Part-Petition

{¶ 8} The board of elections cites R.C. 3501.38(E)(1) and the guidance it received from the secretary of state interpreting that provision as the basis for its decision to toss out Ferrara's entire part-petition due to his undercount. R.C. 3501.38(E)(1) provides:

On each petition paper, the circulator shall indicate the number of signatures contained on it, and shall sign a statement made under penalty of election falsification that the circulator witnessed the affixing of every signature, that all signers were to the best of the circulator's knowledge and belief qualified to sign, and that every signature is to the best of the circulator's knowledge and belief the signature of the person whose signature it purports to be or of an attorney in fact acting pursuant to section 3501.382 of the Revised Code.

We have said that the requirements of R.C. 3501.38(E)(1) "are mandatory and require strict compliance," State ex rel. Commt. for Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections , 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239, ¶ 49. And "a board of elections shall accept any petition" that complies with the election laws. R.C. 3501.39(A).

{¶ 9} The question is whether an entire part-petition should be invalidated when a circulator "indicate[s]" the number of signatures but makes a minor, inadvertent mistake in recording the count of signatures on the ballot. We hold that it should not be.

{¶ 10} As an initial matter, there is nothing in the statutory text that requires a part-petition to be invalidated for such a mistake. R.C. 3501.38(E)(1) requires the circulator to "indicate" the number of signatures, but it does not state that a petition should be invalidated if the indication is incorrect.

{¶ 11} Moreover, R.C. 3501.38 excludes a circulator's "indicat[ion]" of the number of signatures from its oath requirement. The statute requires a circulator to attest under penalty of election falsification that he witnessed every signature and that to the best of the circulator's knowledge, every signatory was qualified to sign and who the person purported to be. R.C. 3501.38(E)(1). Ferrara met these requirements by attesting that he had witnessed "the affixing of every signature" and that to the best of his knowledge and belief, "all signers" were qualified to sign and "every signature" was the signature of the person it purports to be. (Emphasis added.)

{¶ 12} In contrast, the statute contains no oath requirement for the number of signatures. The circulator is simply told to indicate the number of signatures.

R.C. 3501.38(E)(1). Thus, there is nothing in the statute that mandates that Ferrara's part-petition be invalidated.

{¶ 13} The board of elections seeks to overcome the lack of statutory support for its position by relying on our prior decision in Rust v. Lucas Cty. Bd. of Elections , 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, and on the principle that the judiciary should defer to the secretary of state's interpretation of the statute.

{¶ 14} In Rust , we dealt with facts that were similar to those before us today. There, the board of elections rejected entire part-petitions that, like Ferrara's, contained more signatures than the circulator had indicated. Id. at ¶ 3. Rust provided an explanation for the undercount, saying that he had not included in his count signatures that he knew to be provided by unqualified people. Id. at ¶ 14. Nonetheless, the court found that the board had not abused its discretion in rejecting the entire part-petitions. It reached this conclusion by deferring to guidance provided by the secretary of state "instruct[ing] boards of elections that R.C. 3501.38 requires that if the number indicated by the circulator is less than the actual number of signatures, the entire part-petition must be invalidated." Id. at ¶ 12.

{¶ 15} Despite our holding in Rust, we have not always required a part-petition to be invalidated when the circulator has made a mistake in indicating the number of signatures. For example, in State ex rel. Schwarz v. Hamilton Cty. Bd. of Elections , 173 Ohio St. 321, 181 N.E.2d 888 (1962), we held that a writ of mandamus should issue ordering a candidate to be placed on the ballot after the board of elections rejected one of the candidate's part-petitions because it contained one more signature than had been indicated. We deemed the board of elections’ decision to reject the petition "too technical, unreasonable and arbitrary." Id. at 323, 181 N.E.2d 888 ; see also Ohio Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act , 147 Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, ¶ 19 ("In cases in which the circulator's statement slightly undercounts the signatures, this court has ordered the entire part-petition counted, so long as there is no indication of fraud or material misrepresentation" [emphasis in original]).

{¶ 16} Similarly, in State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections , 65 Ohio St.3d 167, 602 N.E.2d 615 (1992), we held that the board of elections erred in rejecting part-petitions on which the circulator had indicated one more signature than the part-petition actually contained. In doing so, we noted that our prior caselaw "implies that arithmetic error will be tolerated, but only if the error does not promote fraud." Id. at 172, 602 N.E.2d 615. We also...