State ex rel. Ungaro v. Mahoning Cnty. Bd. of Elections, 2022-1061

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM.
Citation2022 Ohio 3318
PartiesThe State ex rel. Ungaro v. Mahoning County Board of Elections
Docket Number2022-1061
Decision Date22 September 2022

2022-Ohio-3318

The State ex rel. Ungaro
v.
Mahoning County Board of Elections

No. 2022-1061

Supreme Court of Ohio

September 22, 2022


Submitted September 16, 2022

In Mandamus.

Winter Trimacco Co., L.P.A., and Courtney J. Trimacco, for relator.

Matthew G. Vansuch; and Brouse McDowell, L.P.A., Hanne-Lore Gambrell, and Irving B. Sugerman, for respondent.

PER CURIAM.

{¶ 1} In this expedited election case, relator, Eric Ungaro, seeks a writ of mandamus ordering respondent, Mahoning County Board of Elections, to place his name on the November 2022 general-election ballot as an independent candidate for the office of state representative. We grant the writ. We deny Ungaro's request for attorney fees and the board's motion to strike certain evidence filed by Ungaro.

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I. BACKGROUND

{¶ 2} On July 25, 2022, Ungaro filed a statement of candidacy and nominating petition to run as an independent candidate for the office of state representative of the 59th Ohio House District. The parties do not dispute that the petition was timely filed and contained a sufficient number of valid signatures for Ungaro's name to be placed on the ballot.

{¶ 3} On August 20, the board received a written protest arguing that the board should "invalidate [Ungaro's] candidacy" because Ungaro was "campaigning as a Democrat as evidenced by his website." The protest asserted that Ungaro's website "clearly shows photos of [Ungaro] using the national and local branding of the Democratic Party on yard signs, tee shirts, etc." The protest included three photos taken from Ungaro's campaign website.

{¶ 4} The board addressed Ungaro's petition and the protest at a meeting on August 22. The board chair, David Betras, first suggested that the board accept the petition subject to the protest and then hold a protest hearing at a later date, noting the importance of taking evidence and creating a record. But he went on to state that because he had personally "seen enough," he was going to vote to reject the petition immediately and that he "just wanted to let everyone know that ahead of time."

{¶ 5} After the board initially reached a tie vote on Ungaro's petition, Betras informed the board that he had done "independent research" that led him to conclude that Ungaro had not made "a good faith attempt to disassociate [him]self" from the Democratic Party. On further deliberation, the board revoted, rejecting the petition by a vote of three to one. Betras stated that his vote was based on his personal review of Ungaro's campaign website. The other board members did not explain the reasons behind their votes or indicate that they had looked at Ungaro's campaign website.

{¶ 6} On August 25, Ungaro filed this action seeking to compel the board to place his name on the ballot. He asserts that his current campaign profile, logo, t-shirts, and other campaign materials do not show any affiliation with the

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Democratic Party and that the three photos referred to in the protest were taken in 2018 when he ran for state representative as the endorsed Democratic candidate. Ungaro concedes that those three photos are on his current campaign website, but he asserts that the decision to include those photos was based on the people depicted therein, including Ungaro's late father, who passed away in 2019.

II. ANALYSIS

A. Mandamus claim

{¶ 7} To prevail on his mandamus claim, Ungaro must prove by clear and convincing evidence a clear legal right to have his name placed on the ballot, a corresponding clear legal duty on the part of the board to place his name on the ballot, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Law v. Trumbull Cty. Bd. of Elections, 157 Ohio St.3d 280, 2019-Ohio-3724, 135 N.E.3d 762, ¶ 12. The board concedes that Ungaro lacks an adequate remedy in the ordinary course of the law given the proximity of the November general election. Therefore, for his claim to succeed, Ungaro must show that the board "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.

{¶ 8} Ungaro argues that the board abused its discretion in rejecting his petition. "A board abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable fashion." Law at ¶ 13.

{¶ 9} R.C. 3501.01(I) defines an "independent candidate" as "any candidate who claims not to be affiliated with a political party, and whose name has been certified" on the ballot "through the filing of a statement of candidacy and nominating petition, as prescribed in section 3513.257 of the Revised Code." R.C. 3501.01(I) and 3513.257 require an independent candidate to make a claim of disaffiliation from a political party in good faith. See State ex rel. Davis v. Summit Cty. Bd. of Elections,

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137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 17 (following Morrison v. Colley, 467 F.3d 503, 509 (6th Cir.2006)).

{¶ 10} Although Ungaro has the burden to prove that the board abused its discretion, he is not required to show that he claimed disaffiliation from the Democratic Party in good faith. Instead, those opposing his candidacy have the burden to establish that Ungaro claimed disaffiliation in bad faith, "for example, by showing a continuing connection to a political party," Law, 157 Ohio St.3d 280, 2019-Ohio-3724, 135 N.E.3d 762, at ¶ 18. See also Davis at ¶ 27, 30; State ex rel. Richards v. Stark Cty. Bd. of Elections, 145 Ohio St.3d 211, 2015-Ohio-3658, 48 N.E.3d 507, ¶ 12; State ex rel. Morris v. Stark Cty. Bd. of Elections, 143 Ohio St.3d 507, 2015-Ohio-3659, 39 N.E.3d 1232, ¶ 19.

{¶ 11} The board has this burden for two reasons. First, the board did not hold a hearing, and "a board cannot elect to forgo an evidentiary hearing and then fault the candidate for not presenting evidence on h[is] own behalf," Davis at ¶ 30. And second, election laws must be liberally construed "in favor of persons seeking to hold public office to avoid restricting the right of electors to choose from all qualified candidates." State ex rel. Lynch v....

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