State ex rel. Lynch v. Cuyahoga Cty. Bd. of Elections

• Decision Date: 03 November 1997
• Docket Number: No. 97-2102,97-2102
• Parties: The STATE ex rel. LYNCH v. CUYAHOGA COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 341

80 Ohio St.3d 341

686 N.E.2d 498

The STATE ex rel. LYNCH v. CUYAHOGA COUNTY BOARD OF ELECTIONS et al.

No. 97-2102.

Supreme Court of Ohio.

Submitted Oct. 30, 1997.

Decided Nov. 3, 1997.

Cassidy, Reiman & Harbarger and David R. Harbarger, Parma Heights, for relator.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Michael P. Butler and Patrick J. Murphy, Assistant Prosecuting Attorneys, Cleveland, for respondents Cuyahoga County Board of Elections and its members.

John D. Ryan, Strongsville, for intervening respondent, Carol A. Corpus.

PER CURIAM.

Lynch essentially asserts in his various propositions of law that the board of elections abused its discretion and acted in clear disregard of the Westlake Charter by refusing his request to prevent Corpus's write-in candidacy for mayor. In extraordinary actions challenging the decision of a board of elections, the applicable standard is whether the board engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or pertinent legal provisions. State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413, 414, 639 N.E.2d 78, 79.

The board, however, did not, as Lynch claims, abuse its discretion or disregard the Westlake Charter by rejecting Lynch's objection to Corpus's candidacy. First, as the board determined, Lynch's protest was not timely filed. Under R.C. 3513.041, "[p]rotests against the candidacy of any person filing a declaration of intent to be a write-in candidate may be filed by any qualified elector who is eligible to vote in the election at which the candidacy is to be considered" and the "protest * * * shall be filed not later than four p.m. of the forty-fifth day before the day of the election." See, also, R.C. 3501.39(A) ("The * * * board of elections shall accept any petition described in section 3501.38 of the Revised Code unless one of the following occurs: A written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition is invalid, in accordance with any section of the Revised Code providing a protest procedure."). Lynch's protest was filed less than forty-five days before the November 4 election.

Second, notwithstanding Lynch's argument to the contrary, the board lacked authority to sua sponte invalidate Corpus's candidacy under R.C. 3501.39(A)(3) ¹ because the fiftieth day prior to the November 4 election had already passed by the time of Lynch's protest as well as the date of the board's hearing on the protest. R.C. 3501.39(B) ("A board of elections shall not invalidate any declaration of candidacy or nominating petition under division [A] of this section after the fiftieth day prior to the election at which the candidate seeks nomination to office, if the candidate filed a declaration of candidacy, or election to office, if the candidate filed a nominating petition."); State ex rel. Harbarger v. Cuyahoga Cty. Bd. of Elections (1996), 75 Ohio St.3d 44, 46, 661 N.E.2d 699, 701.

Third, assuming that, as Lynch claims, his September 23 letter was not a protest, his mandamus claim is also barred by failing to file a protest, which constitutes an adequate legal remedy. State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 14-15, 591 N.E.2d 1194, 1196-1197.

Fourth, the Westlake Charter does not prohibit Corpus's write-in candidacy. Section 7, Article VII of the Westlake Charter provides that "[w]rite-in votes for municipal candidates in general elections shall be permitted only if a duly nominated candidate cannot participate due to death or other disqualifications, or if each candidate does not have an opponent." Mayor Clough does not have a duly nominated opponent on the November 4 ballot. Therefore, the Westlake Charter permitted "[w]rite-in votes for municipal candidates " (emphasis added). If the Westlake Charter had intended to restrict write-in votes to one additional candidate, it would have done so by specifying that in Section 7, Article VII. The Westlake Charter does not expressly so provide. Cf. State ex rel....