State ex rel. v. Bd. of Elections, 2005-1853.

Citation841 N.E.2d 757,108 Ohio St.3d 129,2005 Ohio 5642
Decision Date25 October 2005
Docket NumberNo. 2005-1853.,2005-1853.
PartiesThe STATE ex rel. CANALES-FLORES v. LUCAS COUNTY BOARD OF ELECTIONS et al.
CourtUnited States State Supreme Court of Ohio

Vassar, Dills, Dawson & Bonfiglio and Keith A. Wilkowski, Toledo, for relator.

Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell, Assistant Prosecuting Attorney, for respondents.

PER CURIAM.

{¶ 1} This is an expedited election case in which a prospective candidate for city council seeks a writ of mandamus to have her name placed on the November 8, 2005 election ballot.

{¶ 2} On September 4, 2005, the person holding the office of Member of Toledo City Council, District Six, resigned to assume his new position as Lucas County Treasurer. Pursuant to Section 15A, Chapter III of the Toledo Charter, an election to fill the vacancy is scheduled for November 8, 2005.

{¶ 3} On September 13, relator, Lisa Canales-Flores, submitted a nominating petition to respondent Lucas County Board of Elections to have her name placed on the November 8 ballot as a candidate to fill the council vacancy.

{¶ 4} On September 19, the board of elections reviewed Canales-Flores's petition and determined that it contained sufficient valid signatures. The petition papers, however, did not contain properly completed circulator affidavits, as required by Section 14, Chapter III of the Toledo Charter. Although Canales-Flores had circulated all of the petition papers, the notary public that she had used had erroneously completed the circulator statements.

{¶ 5} At the September 19 board meeting, Canales-Flores submitted an affidavit attesting that all of the signatures appended to the petition papers were made in her presence and that the signatures were the genuine signatures of the persons they purported to be. The board voted to certify Canales-Flores's nominating petition and place her name on the November 8 ballot for the council seat.

{¶ 6} On September 21, an elector within District Six filed a protest contesting Canales-Flores's candidacy. On September 27, the board of elections held a hearing on the protest. Based upon advice from its attorney and the office of the Secretary of State of Ohio, the board voted to decertify Canales-Flores's candidacy.

{¶ 7} On September 29, Canales-Flores presented to the elections board a new nominating petition to become a candidate for the vacant council seat. The board refused to accept the new petition.

{¶ 8} On September 30, Canales-Flores brought this expedited election action for a writ of mandamus to compel the board of elections to place her name on the November 8 election ballot as a candidate for the office of Member of the Toledo City Council, District Six. Canales-Flores also named the board members and director as additional respondents. Respondents answered the complaint, and the parties filed evidence and briefs pursuant to the accelerated schedule in S.Ct.Prac.R. X(9).

{¶ 9} This cause is now before us for a consideration of the merits.

Mandamus

{¶ 10} Canales-Flores requests a writ of mandamus to compel the board of elections to place her name on the November 8, 2005 election ballot for the office of Member of Toledo City Council, District Six. In order to be entitled to the requested writ, Canales-Flores must establish a clear legal right to have her name placed on the November 8 election ballot, a corresponding clear legal duty on the part of the board of elections to place her name on the ballot, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 29. Given the proximity of the November 8 election, Canales-Flores has established that she lacks an adequate remedy in the ordinary course of law. Id. at ¶ 30.

{¶ 11} For the remaining requirements, "`[i]n 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 law.'" State ex rel. Stevens v. Geauga Cty. Bd. of Elections (2000), 90 Ohio St.3d 223, 226, 736 N.E.2d 882, quoting State ex rel. Valore v. Summit Cty. Bd. of Elections (1999), 87 Ohio St.3d 144, 145, 718 N.E.2d 415. Canales-Flores does not allege fraud or corruption, so the dispositive issue is whether respondents abused their discretion or clearly disregarded applicable law by ruling her initial petition invalid and refusing to accept her second petition.

First Petition

{¶ 12} As Canales-Flores concedes, the nominating petition that she submitted to the board of elections on September 13 was invalid because it did not contain a proper circulator affidavit for each of the petition papers. See Section 14, Chapter III of the Toledo Charter ("Signatures to nominating petitions need not be appended to one paper, but to each separate paper there shall be attached an affidavit of the circulator thereof, stating that each signature thereto was made in his or her presence and is the genuine signature of the person whose name it purports to be").

{¶ 13} Canales-Flores contends, however, that when she submitted her affidavit at the September 19 board meeting, this submission cured any defect in the petition. In her affidavit, Canales-Flores specified that she had circulated the petition papers and that all of the petition signatures were made in her presence and were genuine signatures of the persons they purport to be.

{¶ 14} Canales-Flores claims that based on State ex rel. Miles v. McSweeney, 96 Ohio St.3d 352, 2002-Ohio-4455, 775 N.E.2d 468, her correction of the petition was permissible. In Miles, we granted a writ of mandamus to compel a city clerk to submit a referendum petition to the city council at its next regular meeting. We held that the petitioner did not violate R.C. 3501.38(I), which prohibits "alterations, corrections, or additions" to a petition after it is filed, by withdrawing a defective petition, attaching required circulator affidavits, and refiling the amended petition. Id. at ¶ 24, 775 N.E.2d 468. See, also, State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio St.3d 229, 736 N.E.2d 886, syllabus ("Neither R.C. 3501.38(I) nor (K) prohibits the withdrawal of previously filed petitions and the submission of either new petitions or the resubmission of combined but unaltered petitions before the filing deadline").

{¶ 15} For the following reasons, Canales-Flores's reliance on Miles is misplaced.

{¶ 16} First, after Rose and Miles, the General Assembly enacted Am.Sub.H.B. No. 455, 149 Ohio Laws, Part V, 9083, 9090, which precluded the withdrawal of petitions such as those that had been permitted in those cases. See R.C. 3501.38(I)(2) ("No petition may be withdrawn after it is filed in a public office").

{¶ 17} Second, Canales-Flores never withdrew her petition. Instead, she attempted to file an affidavit that would be appended to the petition. Even if R.C. 3501.38(I)(2) did not exist or was inapplicable to her petition, Canales-Flores would not have been entitled to the application of the Miles and Rose holdings. See State ex rel. Commt. for the Charter Amendment Petition — The Millikin Woods Preservation Assn. v. Hamilton (2001), 93 Ohio St.3d 508, 510, 757 N.E.2d 294 ("the committee did not withdraw its initial petition and attempt to resubmit it with additional part-petitions as one instrument here. Therefore, Rose is inapposite and R.C. 3501.38(I) and (K) prohibited the committee from filing additions to the first petition and submitting different parts of the petition at different times").

{¶ 18} Third, Canales-Flores's submission of a new affidavit violated R.C. 3501.38(K) ("All separate petition papers shall be filed at the same time, as one instrument") and Section 14, Chapter III of the Toledo Charter ("to each separate paper there shall be attached an affidavit of the circulator" and "[a]ll separate papers comprising a nominating petition shall be assembled and filed with the election authorities as one instrument * * *"). The affidavit was not filed "at the same time, as one instrument" with the petition filed on September 13, and the affidavit was not attached to each separate petition paper.

{¶ 19} Therefore, the board of elections neither abused its discretion nor clearly disregarded applicable law by ruling Canales-Flores's initial petition invalid and voting to decertify her name from the November 8 election ballot.

Second Petition

{¶ 20} Canales-Flores next asserts that the board of elections abused its discretion and clearly disregarded applicable law by refusing to accept her timely submission of a new nominating petition on September 29.

{¶ 21} The board's refusal was based on R.C. 3513.261 and 3513.05. R.C. 3513.261 prohibits a board of elections from accepting a nominating petition of a person seeking to be a candidate for a municipal office if that person has already filed a nominating petition to be a candidate for a municipal office at the same election:

{¶ 22} "The secretary of state or a board of elections shall not accept for filing a nominating petition of a person seeking to become a candidate if that person, for the same election, has already filed a declaration of candidacy, a declaration of intent to be a write-in candidate, or a nominating petition, or has become a candidate through party nomination at a primary election or by the filling of a vacancy under section 3513.30 or 3513.31 of the Revised Code for any state or county office, if the nominating petition is for a state or county office, or for any municipal or township office, for member of a city, local, or exempted village board of education, or for member of a governing board of an educational service center, if the nominating petition is for a municipal or township office, or for member of a city, local, or exempted...

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