State ex rel. Guest v. Husted
| Decision Date | 08 August 2018 |
| Docket Number | No. 2018-0889,2018-0889 |
| Citation | 109 N.E.3d 1229,2018 Ohio 3161,153 Ohio St.3d 630 |
| Parties | The STATE EX REL. GUEST v. HUSTED, Secy., et al. |
| Court | Ohio Supreme Court |
Warner Mendenhall Akron, and Logan Trombley, for relator.
Michael DeWine, Attorney General, and Renata Y. Staff and Halli Brownfield Watson, Assistant Attorneys General, for respondent Ohio Secretary of State Jon Husted.
Fishel, Downey, Albrecht & Riepenhoff, L.L.P., Daniel T. Downey, Melanie J. Williamson, and Angelica M. Jarmusz, Columbus, for respondent Columbiana County Board of Elections.
{¶ 1} In this expedited election case, relator, Heaven Guest, seeks a writ of mandamus to compel respondents, Ohio Secretary of State Jon Husted and the Columbiana County Board of Elections, to place her name on the November 6, 2018 ballot as an independent candidate for judge of the Columbiana County Court of Common Pleas. Because Guest has failed to carry her burden to show by clear and convincing evidence that Husted abused his discretion, we deny the writ.
{¶ 2} On May 7, 2018, Guest filed a nominating petition and statement of candidacy to run as an independent candidate for common-pleas-court judge in the November general election. Before she filed the paperwork to run as an independent candidate, Guest was an active member of the Democratic Party. In fact, she was appointed to the Columbiana County Democratic Party Central Committee in February 2018. She alleges that she resigned from that position and disaffiliated herself from the Democratic Party on April 14, 2018.
{¶ 3} At a regular board-of-elections meeting on May 29, a member of the board moved to reject Guest's nominating petition, arguing that Guest was not eligible to run as an independent candidate because she had not disaffiliated from the Democratic Party at the time she filed her petition. Guest was not present at the meeting. When the motion resulted in a tie vote, the board referred the matter to Husted under R.C. 3501.11(X).
{¶ 4} The board members gave Husted evidence and presented written arguments supporting their views. The members opposing Guest's candidacy argued that she attempted to become an independent candidate only after it appeared that the incumbent judge in Columbiana County—a Republican whom the Democratic Party had not opposed—might not win the primary election. The Republican incumbent did, in fact, lose the primary election on May 8, 2018, and the board members opposing Guest argued that her candidacy is a coordinated, impermissible effort by the Democratic Party to field a candidate in the general election. In support of this theory, the board members opposing Guest pointed to the fact that the majority of the circulators of Guest's part-petitions are Democrats—and that one of the circulators was Nick Barborak, chairman of the Columbiana County Democratic Party. They also highlighted that Guest's nominating committee consists of her husband and four Democrats.
{¶ 5} In the view of the board members opposing Guest's candidacy, ample evidence shows that she claimed disaffiliation from the Democratic Party in bad faith. They argued that she remained a member of the county Democratic Party central committee at the time of their vote, because the board had no notice of her purported resignation, see R.C. 3517.06. They also pointed to Guest's Facebook page, which included numerous photos of her with national and local Democratic figures and statements supportive of Democratic candidates, and to her financial contributions to the campaigns of Democratic candidates in 2018.1
{¶ 6} In response, the board members who voted in favor of Guest's candidacy argued that she meets the requirements to serve as a judge, submitted the requisite number of valid signatures with her petition, and demonstrated her independence from any political party by voting "as an independent" in the May 2018 primary election. Included with their submission was a copy of a handwritten letter from Guest to Barborak, the county Democratic Party chairman. The entire letter, dated April 14, 2018, states:
{¶ 7} Husted received the board's request for a tie-breaking vote on June 1. Following the referral to Husted, the board members who had voted to reject Guest's petition informed Husted that they wanted an opportunity for the board to hold a special meeting so that it could "address a series of substantive questions relating to the veracity and authenticity and truthfulness" of Guest's claim that she had resigned from the county Democratic Party central committee on April 14. Specifically, they wanted to investigate the matter under R.C. 3501.11(J) by issuing subpoenas to Guest and Barborak. The two members who opposed Guest's candidacy attempted to call a special meeting on June 6, but no quorum was reached because the other members, both Democrats, did not attend.
{¶ 8} On June 8, Husted voted to reject Guest's petition, finding that she "remains affiliated with the Democratic Party." In reaching his decision, Husted focused on Guest's position on the county Democratic Party central committee, the composition of her nominating committee, the support she has received from members of the Democratic Party, and her support of Democratic candidates.
{¶ 9} Guest commenced this action in this court on June 22.
{¶ 10} R.C. 3501.01(I) defines "independent candidate" as "any candidate who claims not to be affiliated with a political party, and whose name has been certified * * * through the filing of a statement of candidacy and nominating petition, as prescribed in section 3513.257 of the Revised Code." R.C. 3513.257 requires an independent candidate to file a statement of candidacy and nominating petition no later than 4:00 p.m. the day before the day of the primary election. This court has accepted the view of the Sixth Circuit Court of Appeals that R.C. 3501.01(I) and 3513.257 require an independent candidate to make her claim of disaffiliation from a political party in good faith. See State ex rel. Davis v. Summit Cty. Bd. of Elections , 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 27, following Morrison v. Colley , 467 F.3d 503, 509 (6th Cir.2006).
{¶ 11} To prevail on her mandamus claim, Guest must establish a clear legal right to have her name placed on the November ballot, a corresponding clear legal duty of Husted 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. She must prove her case 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.
{¶ 12} Given the proximity of the November election, Guest satisfies the third requirement. State ex rel. Ohio Liberty Council v. Brunner , 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 27. To satisfy the first two requirements, Guest must show that Husted "engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions." Whitman v. Hamilton Cty. Bd. of Elections , 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. Because Guest makes no allegation of fraud or corruption, she must show that Husted abused his discretion or disregarded the law when he rejected her petition.
{¶ 13} Husted's conclusion that Guest's claim of disaffiliation from the Democratic Party was not made in good faith was based on four basic findings: (1) that Guest still was a member of the county Democratic Party central committee at the time she submitted her petition, (2) that her nominating committee consisted of her husband and four Democrats, (3) that her candidacy received support from members of the Democratic Party, and (4) that she recently has supported Democratic candidates. Husted addressed each of these findings separately, but he viewed them together in the context of the Republican incumbent judge's primary-election loss and the Democratic Party's failure to field a candidate for the judicial seat. He concluded that Ohio law does not permit the Democratic Party "a second bite at the apple" after having failed to field its own candidate in the Democratic primary. We agree that this broader context was relevant to Husted's inquiry.
{¶ 14} Guest has not shown by clear and convincing evidence that Husted abused his discretion in finding that she claimed disaffiliation from the Democratic Party in bad faith. We address Husted's findings in turn.
{¶ 15} In his decision, Husted concluded that "Guest remains affiliated with the Democratic Party." He reached that conclusion based on a letter from Barborak to the board stating that Guest is a member of the county Democratic Party central committee. That letter is dated February 27 and was received by the board on March 30. In their briefs, Husted and the board contend that Guest's name was on the central committee's active roster when she claimed to be disaffiliated from the Democratic Party on May 7.
{¶ 16} Ordinarily, there are few affirmative steps an Ohio elector can take to disaffiliate from a political party. "Party affiliation in Ohio is purely a matter of self-identification, and that self-identification is subject to change."
State ex rel. Stevens v. Fairfield Cty. Bd. of Elections , 152 Ohio St.3d 584, 2018-Ohio-1151, 99 N.E.3d 376, ¶ 20. In State ex rel. Coughlin v. Summit Cty. Bd. of Elections , we explained:
A voter cannot register as an independent, except in the negative sense of not voting in partisan primaries or signing partisan nominating petitions. The Revised Code contains no...
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State ex rel. Law v. Trumbull Cnty. Bd. of Elections
...Id .{¶ 16} While "disaffiliation from a political party largely involves an elector's inaction " (emphasis sic), State ex rel. Guest v. Husted , 153 Ohio St.3d 630, 2018-Ohio-3161, 109 N.E.3d 1229, ¶ 16, there may be affirmative steps—such as resigning from a party's central committee—that ......