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IN TIIE SUPREME COURT OF 01110
THE STATE OF OFIIO EX REL.DAVE STEWAI2'T,
Relator,
vs.
CLINTON COUNTY BOARD OFELECTIONS, et al.,
Respondents.
MER
Case No. 2010-0434
Original Action in Mandamus andProhibition
Expedited Election Matter UnderS.Ct. Prac. R. 10.9
T BRIEF OF INTERVENOR-RESPONDENT PATRICK HALEY
Donald J. MeTigue (0022849)Mark A. McGinnis (0076275)J. Corey Colombo (0072398)MCTiGUE & MCGINNIS LLC
550 East Walnut Street
Columbus, Ohio 43215Telephone: (614) 263-7000Facsimile: (614) 263-7078E-mail: [email protected]
[email protected]@e1 ectionlawgroup.com
Counsel for Relator Dave Stewart
Richard W. Moyer (0039655)Andrew McCoy (0082900)Clinton County Prosecutor's Office103 East Main StreetWilmington, Ohio 45177I'elephone: (937) 382-4559Facsimile: (937) 382-6278E-mail: [email protected]
amccoy(a,)clintonctyprosecutor. com
Counselfor Respondents Clinton CountyBoard ofElections and its Menabers
Donald C. Brey (0021965)Elizabeth J. Watters (0054055)Deborali A. Scott (0079253)CHESTER, WiLLCOx & SAxeE, LLP
65 East State Street, Suite 1000Columbus, Ohio 43215-4213
Telephone: (614) 221-4000
Facsimile: (614) 221-4012
E-mail: [email protected]@[email protected]
Counsel for Intervenor-Respondent PalrickHaley
TABLE OF CONTENTS
TABLE OF AUTI-IORI1'1ES .................. ...... ........ ............ ........ ................ ................ ii-iii
INTRODUCTION ... .......................................................................................................1
STATEMENT OF THE FACTS AND TIIE CASE ......................................................2
LAW AND ARGUMENT ..............................................................................................5
1. THE S'I'ANDARD FOR ISSIJING T1IE WRITS . ....................................................5
A. Relator Stewart Is Not Entitled To A Writ Of Mandamus .....................5
B. Relator Stewart Is Not Entitled 1'o A Writ Of Prohibition .....................6
IL RESPONDENT CLINTON COUNTY BOARD OF ELECTIONS PROPERLY
CONCLUDED THAT HALEY'S DECLARATION OF CANDIDACY
SUBSTANTIALLY COMPLIED WITH R.C. 3513.07 ...........................................6
A. R.C. 3513.07 Requires Substantial Compliance, Not Strict Or
Absolute Compliance ............................................................................. 7
B. The On-iission Of The Primary Election Date Did Not MisleadPetition Signers Or Electors ... ................................................................8
C. There Are No Claims Or Evidence Of Fraud Or Deception InRegard To Respondent Ilaley's Declaration Of Candidacy, And
There Is No Legal Basis For Invalidating IIis Declaration ......... ......... I 1
D. IIaley's Declaration Of Candidacy Substantially Complies WithLaw And Provides Sufficient Information To Suppor-t A
Determination Of Validity ...................................................................15
CONCLUSION .............................................................................................................17
CERTIFICATE OF SERVICE ...... ...............................................................................18
TABLE OF AUTHORITIES
CASES:
Billington v. Cotner (1971), 25 Ohio St.2d 140, 267 N.E.2d 410 ................................14
Hill v. Cuyahoga Cty. Bd. ofElections (1981), 68 Ohio St.2d 39 ..........................1 l, 12
In re Marrs' F,state (1952), 158 Ohio St. 95, 107 N.E.2d 148 ..................................... 10
Nunneker v. Murdoclc (1983), 9 Ohio App.3d 73, 458 N.E.2d 431 ................................9
State ex rel. Allen v. Bd. of Flections of Lake Cty. (1959), 170 Ohio St. 19, 161N.E.2d 896 ....................................................................................................................12
State ex rel. Andrews v. Medina Cty. Bd of Blections (1963), 175 Ohio St. 249,193 N.E.2d 390 .............................................................................................................13
State ex rel. Calhoun v. Scioto Cly. Bd. of Election (1988), 36 Ohio St.3d 164, 522N.E.2d 49 ......................................................................................................................13
State ex rel. Chance v, Mahoning Cty. Bd of Elections (1996), 75 Ohio St.3d 42,1996-Ohio-253, 661 N.F,.2d 697 .....................................................................................5
State ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 374 N.E.2d 641 ....................5
State ex rel. Hodges v. Tafl (1992), 64 Ohio St.3d 1, 591 N.E.2d 1186 ........................5
State ex rel. Kroeger v. Leonard (1949), 151 Ohio St. 197, 84 N.E.2d 910........... 14, 15
State ex rel. Lewis v. Flarnilton Cly. Bd of Elections (1995), 74 Ohio St.3d 1201,655 N.F,.2c1 177 ...............................................................................................................1
State ex rel. Loss v. Bd. of Elections ofLucas Cty. (1972), 29 Ohio St.2d 233, 281N.F,.2d 186 ....................................................................................................................14
State ex rel. MeMillan v. Ashtctbulca Cty. Bd, of Elections, 65 Ohio St.3d 186,1992-Ohio-85, 602 N.E.2d 631 ...............................................................................15, 16
State ex rel. Nolan, 93 Ohio St. 264, 1 12 N.E. 1029 ......................................................6
State ex rel. O'Grady v. Brown (1976), 48 Ohio St.2d 17, 356 N.E.2d 296 ..................6
Slate ex reL Phillips v. Lorain Cty. Bd. of Elections, 93 Ohio St.3d 535, 2001-
Ohio-1627, 757 N.E.2d 319 ......................................................................................7, 11
State ex rel_ Sturgill v. Lorain Cty. Bd of Elections, 164 Ohio App.3d 272, 2005-Ohio-5660, 842 N.E.2d 78 ............................................................................................16
State ex rel. Wilson v. Hisrich (1994), 69 Ohio St.3d 13, 630 N.E.2d 319 .................. 14
Stern v. Bd. of F,lections of ^Cuyahoga Cry. (1968), 14 Ohio St.2d 175, 237 N.E.2d
313 .................... .................... .................. .................................... ........................... 6,8, 13
ii
STATUTES AND OTHER AUTHORITIUS:
R.C. 3513.01 ...................................................................................................................9
R.C. 3513.05(G) ............................................................................................................15
R.C. 3513.07 ...............................................................................1, 2, 6, 7, 11, 13, 14, 15
R.C. 3513.08 ...........................................................................................................1 3, 14
R.C. 3513.09 .................................................................................................................14
R.C. 3513.32 ..................................................................................................................9
Secretary of State Advisory 2009-04 ............................................................................15
iii
INTRODUCT[ON
"[A]ctive participation in the election process is the foundation of democracy. Whether
selecting a candidate for public office or deciding issues of public concern, voting is a basic right
witliout which all other rights become meaningless" State ex rel. Lewis v. Hamilton Cty. Bcl. of
Elections (1995), 74 Ohio St.3d 1201, 1202, 655 N.E.2d 177 (Moyer, C..1., eoncurring). Public
policy also favors free competitive elections, allowing the electorate to choose between
eatididates, and courts should be guided by this principle in determining election law matters.
Stey-n v. Bd of Elections of Cuyahoga Cty. (1968), 14 Ohio St.2d 175, 184, 237 N.F_.2d 313
(courts "must avoid unduly teclinical interpretations that impede the public policy favoring free,
competitive elections."). Accordingly, in light the substantial compliance of Intervenor-
Respondent Patrick Haley's Declaration of Candidacy and Petition with R.C. 3513.07, this Court
should abide by these principles and deny Relator's Petition. If Relator Stewart's Petition for a
Writ of Mandanius and/or Prohibition is granted, then the members of the Clinton County
Republican Party will be denied the choice of who they want to nominate to n.in for the of(ice of
the county commissioner, and Intervenor-Respondent Patrick Haley ("Haley") will be denied the
opportunity to run for public office.
But this case is not only about public policy favoring competitive elections. It is also
about Relator's allegations that Respondent Clinton County Board of Elections engaged in fraud
and corruption, abused its discretion, and disregarded the law wlien it determined that Haley's
Declaration of Candidacy substantially complied with R.C. 3513.07. The record clearly
indicates that the Board of Elections did nonc of these things. Haley's Declaration of Candidacy
(Exhibit 1 to Joint Exhibit A): (1) was on the form prescribed by the Ohio Secretary of State; (2)
nistructed Ilaiey to "check one box and fill in the appropriate date"; (3) checlced one box and
filled in the appropriate date after that box exactly as Haley was instructed to do by the Clinton
County Board of Elections' Deputy Director; (4) clearly stated in its title that Haley's declaration
of candidacy was for a "PARTY PRIMARY ELECTION"; and (5) clearly specified the
commencement date for the term of office for whicli Haley seeks to run - and all other dates,
except for the dates after the michecked box. Further, the undisputed testimony was that every
person who signed Ha1ey's petitions was orally told the primary date. Respondent Clinton
Cotmty Board of Elections acted in accordance with Ohio law when it determined that Haley's
Declaration of Candidacy substantially complied with the requirements set forth in R.C. 3513.07.
Relator Stewart is not entitled to a Writ of Mandamus or a Writ of Prohibition, and his Petition
should be denied.
STATEMENT OF THE FACTS AND THE CASE
IIatey does not contest Relator's Statement of Facts (App. Br. at 1-2) except as follows,
ineluding lcey omitted facts:
Omitted Facts
At the March 5, 2010 protest hearing, while Relator did testify about a recent ctecision of
the Warren County Board of Elections regarding the omission of a primary election date, he
admitted that he was not present at the Warren County Board of Elections hearing that resulted in
the disqualification of a candidate. Robert Waters, did not know "what, if any, advice the
candidate [Waters] had received from the Board of Elections of Warren County" or "whcther
there was any testimony at all that the persons who signcd the candidate's petitions in Warren
County were expressly told the primary date." (Tr. 16).
Haley, on the other htmd, testified that he appeared in front of the Clniton County Board
of Elections on January 25, 2010, and was given a Form 2-G by Joy Ames, the Deputy Director_
2
I-le tilled out the sample petition, going step by step, line by linc, to ensure the accuracy of the
petition and Declaration of Candidacy with Deputy Director Ames. (Tr. 19-20). With regard to
the primary election date space, Haley's uncontested testimony was:
`The blanlcs were obvious, the name of the candidate; the addresswere obvious; the zip code; and the County Commissioner was theposition; and as a member of thc Republican Pai-ty. And at thatpoint, it says `Check one box and fill in the appropriate box.' Andjlleputy Director] Jo Ainesl said `Yes, fill in the full term.' Andsbc verbally said `The date is 1-1-11. And leave the rest blank,with the exception of the Republican Party, atid date the petition;and, of course, the signature of the circulator must be signed.'
(Tr. 21) (emphasis added).
Haley filled out his Declaration of Candidacy exactly as he was instructed to do so by
Deputy Director Ames. He completed the Declaration of Candidacy and Petition right in front of
Deputy Director Ames, and ensured that it matched the sample petition so that it was consistent
and correct. ('1r. 21). He also ensured that each Declaration of Candidacy on each part petition
was completed exactly the sanie way as the form filled out in front of and approved by Deputy
Director Ames. (Tr. 28).
Although be told every potential and actual signer that he was seeking to be placed on the
May 4, 2010 primary election ballot, Haley did not put the date of the primary election on the
Declaration of Candidacy and Petition because:
"I felt that I followed the directions of the Deputy Director, whosaid `Leave this blanlc after `or,' that `or' basically separates thisinto two parts.' And she said `Fill it out, put the date, comnlencingof the term,' which I did."
(Tr. 26-27).
That same day, January 25, 2010, Haley toolc the Declaration of Candidacy and Petition
to a Republican Central Cominittee meeting and circulated the part petitions to registered
3
Republicans at the meeting. (Tr. 22). IIaley "told everyone that signed the petition when the
date of the primary would be." (Tr. 22). Ilaley told potential and actual signers that he was
seeking to be placed on the May 4, 2010 prnnary election ballot because his "political
philosophy is that many people who sign[ed] the petition -- not all -are supporters, and [he]
wanted to get my supporters to the poll on the day of the primary election. And so it was very
important to [him] that they would know when the primary election occurred, which was May
4", 2010." (Tr. 23). Haley also mentioned the date of the primary election during his speech at
the Central Committee meeting. Further, the party Chairman mentioned during the meeting the
date of the primary election as well as the candidates who would be on the ballot, including
Haley, for the primary election. (Tr. 23). Some of the signatures on Haley's part petitions were
obtained after everyone at the Republican Ccntral Committee meeting was publicly informed of
the primary election date by Haley, other candidates and the Chairman. (Tr. 23-24).
Ilaley circulated five of the six part petitions, including the Declaration of Candidacy,
that were filed on his behalf with the Board on February 5, 2010. (Tr. 25). These five part-
petitions alone had sufficient signatures. I3aiey never obtained a signature on any part petition
where he did not inforin the elector or actual signer the date of the primary election. (Tr. 24).
The sixth part petition filed on behalf of Haley was circulated by Lee Miller, the former Mayor
of Blanchester. Mr. Miller also told potential and actual signers that IIaley was seeking to be
placed on the May 4, 2010 primary election ballot when he circulated the part petition. (Tr. 25).
At the hcaring, the August 25, 2009 Minutes of the Regular Meeting of the Clinton
County Board of Elections were admitted by Haley. (R. Ex. 1 to Ex. F). These minutes showed
that the Clinton Board had not invalidated part petitions based upon sin-iilar minor omissions, but
had a policy of exercising its discretion to permit voters to choose who should govern them.
4
ARGUMrNT
1. THE STANDARD FOR ISSIIING THE WRITS
"In extraordinary actions reviewing the deeision of a board of elections, the standard is
whetlier the board engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes
or applicable legal provisions." State ex rel. Chance v. Mahoning Cty. Bd of Elections (1996),
75 Ohio St.3d 42, 1996-Ohio-253, 661 N.E.2d 697. 't'here is no evidenee that the Clinton
County Board of Elections engaged in fraud or corruption, or that it abused its discretion or
disregarded the law. As a result, Relator Stewart has failed to establish the elements necessary
for the issuance of either a writ of mandarnus or of prohibition.
A. Relator Stcwart Is Not Entitled To A Writ Of Mandamus
To issue a writ of niandamus, this Court must find that: (1) Relator Stewart has a clear
legal right to the relief prayed for; (2) the Clinton County Board of Elections is under a clear
legal duty to perfomi the requested act; and (3) Relator Stewart has no plain and adequate
remedy at law. State ex rel. I-Iodges v. Taft (1992), 64 Ohio St.3d 1, 3, 591 N.E.2d 1186, citing
State ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 374 N.E.2d 641. Mandamus cannot be
used to control a public officer's exercise of discretion. Id. at 4. And where "the real object of
the relator is an injunetion[,]" then the petition for mandamus does not state a cause of action and
must be dismissed. Id.
Here, Relator Stewart's Petition for Mandamus tnust be dismissed. Relator Stewart's real
objective in this case is to enjoin the Clinton County Board of Elections from placing Haley's
name on the Republican party primary election ballot. Furthermore, through mandamus, Relator
Stewart seeks to control the Clinton Cormty Board of Elections' exercise of discretion in
determining whether Haley's Declaration of Candidacy substantially complied with R.C.
5
3513.07. These facts, coupled with the fact that the Clinton County Board of' Elections was
under no legal duty to invalidate Ha1ey's Declaration of Candidacy (explained more fully in
Section 11 below), require that Relator Stewart's Petition for Mandainus be dismissed.
B. Relator Stewart Is Not Entitled To A Writ Of Prohibition
"A writ of prohibition is a high prerogative writ to be used with great caution in the
furtherance of jrtistice. ..." State cx rel. Nolan, 93 Ohio St. 264, 112 N.B. 1029, syllabus. '1'o
issue a writ of prohibition, this Court must find that: (1) the Clinton County Board of Elections is
about to exercise judicial or quasi-judicial power; (2) the exercise of such judicial or quasi-
judieial power is not authorized by law; and (3) the refusal to issue the writ of prohibition would
result in injuiy for which there is no other adequate remedy. State ex rel. O'Grady v. Brown
(1976), 48 Ohio St.2d 17, 20, 356 N.E.2d 296. Here, the Clinton County Board of Elections
acted as atlthorized by law when it deterinined that Haley's Declaration ol' Candidacy
substantially complied with R.C. 3513,07. 1'herefore, Relator Stewart is not entitled to a Writ of
Prohibition.
II. RESPONDENT CLINTON COUNTY 130ARD OF ELECTIONS PROPERLY CONCLUM D TIIA'I'
HALEY'S nECLARATiON OF CANDIDACY SUB6TANTIALLY COMPLIED WITH R.C.
3513.07
This Court has determined that absolute compliance with an election statute is not
required and a candidate's declaration and petition should be considered valid: if the governing
statute permits substantial compliance, if the omission of infonnation does not mislead any
petition signer or elector, if there is no claim of fraud or deception, and if there is suff'icient
substantial compliance to permit the board of elections to determine the petition's validity. Stern
v. &d. of Elections of Cuyahoga Cty. (1968), 14 Ohio St.2d 175, 184, 237 N.E.2d 313. That is
because public policy favors free competitive elections, allownig the electorate to choose
6
between candidates. Id. Applying this rule, the Clinton Comity Board of Elections properly
concluded that Haley's Declaration of Candidacy substantially complied with R.C. 3513.07, the
statute governing the form of declaration of candidacy and petitions for primary elections.
Specifically, R.C. 3513.07 expressly pennits substantial compliance with its suggested
form. The omission of information at issue here, the omission of the pritnary election date (May
4, 2010), which is the only primary scheduled between tiow and January 1, 2011 (the term of
office comnrencement date identified on Haley's Declaration of Candidacy), did not mislead any
petition signer or elector. 1'here are no claims or cvidence of fiaud or deception. And tliere was
sufficient substantial compliance with Haley's Declaration of Candidacy and Petition to allow
the Clinton County Board of Elections to determine its validity. Relator Stewart presents no
legal grounds that would entitle hini to a Writ of Mandamus or of Prohibition. Accordingly,
Relator Stewart's Petition for a Writ of Mandamus and/or Prohibition must be denied.
A. R C 3513.07 Reguires Substantial Conrpliance, Not Strict Or Absolute
Compliancc
"Substantial compliance" with an election law "is acceptable only when an election
statute expressly permits it." State ex rel. Phillips v. Lorain Cty. 13d of Elections, 93 Ohio St.3d
535, 539, 2001-Ohio-1627, 757 N.E.2d 319. Here, R.C. 3513.07 expressly permits substantial
compliance, as follows:
"The form of declaration of candidacy and petition of a persondesiring to be a cattdidate for a party nomination or a candidate forelection to an office or position to be voted for at a primaryelection shall be substantiatly as follows. ..."
R.C. 3513.07 (emphasis added).
This Court has detei-mined that "substantial compliance" does not require "absolute
compliance." Indeed, this Court has acknowledged that "[a]bsolute compliance with every
7
teclmicafity should not be required in order to constitute substantial cotnpliance, unless such
complete and absolute conformance to each technical requirement of the printed fortn serves a
public interest aud a public purpose." Stern, supra, 14 Ohio St.2d at 180. Here, no special public
ittterest or public purpose is served by including the date of the primary election on the
declaration and petition. See Sections II(B) and (C) below. It is a technical requirement that
does not change the substance of Haley's Declaration of Candidacy. Tlierefore, Relator
Stewart's request for a Writ should be denied.
B. The Omission Of The Primary Election Date Did Not Mislead PetitionSiLners Or Electors
Haley's Declaration of Candidacy expressly placed its signers on notice that it pertained
to the primary election. The Declai-ation states: "PARTY PRIMARY LLBCTION" in bold,
capital type font at the top of the page, as well as just below in a smaller, non-bold type font. It
also sets forth the commencensent date of the terni of office for which Haley seeks to run: "I -1-
11." Haley, who circulated his Declaration of Candidacy and five of his six part petitions, "told
everyone that signed the petition when the date of the primary would be." (Tr. 22). "I'hc
circulator of IIaley's sixth part petition, Lee Miller, also advised potential and actual signers that
Ilaley was seeking to be placed on the May 4, 2010 primary election ballot. (Tr. 25).
Moreover, at the January 25, 2010 Republican Central Committee mceting where I3aley
ciretdated five of his part petitions, the chairman of the meeting amiounced the date for the
primary election and the fact that Haley was seeking to be placed on the May 4, 2010 primaiy
election ballot, Haley himself announced the date for the primary election and his candidacy to
be on the May 4, 2010 primary election ballot, and each of the other candidates that spoke at the
meeting mentioned the date of the primary election. (Tr. 23). Sonic of the signatures on Flaley's
part petitions were obtained after everyone at the Republican Central Committee meeting was
8
publicly inforined of the primary election date by IIaley, other candidates and the Chairman.
(7 r. 23-24).
Additionally, the date for the primary election is set forth specifically in statute and
cannot be changed. As indicated on the Declaration of Candidacy, I3aley seeks to be placed on
the ballot as a candidate for a full term of office, as opposed to an unexpired term. 'fhe primary
election date for a fiall terrn of office is established in law and does not change; it is the first
Tuesday in May (or in March in presidential election years). R.C. 3513.01. The date is a
mechanical matter. Because "substantial compliance" refers "not to technical, mathematical, or
administrative matters but to those features of the controvelted issue and of the ... procedure
that are essential for a prospective signer to make an informed decision[,]" the omission of the
primary election date is not fatal to the Declaration of Candidacy's validity. Nunneker o.
Murdock (1983), 9 Ohio App.3d 73, 76, 458 N.E.2d 431. Also, because "[tlhe date of the next
election is provided by Ohio law, not by choice of the circulators. ... a potential signer
inquisitive about wlien the vote will be tal<en can resolve the question by reference to Ohio law
Id.
Unlike the statutorily established date for a primary election for a full term of office, the
date of a prirnary election for an unexpired term of otfice is not established in law to occur at a
regular interval or specific date. The primary election for an unexpired ter•m could occur at any
time, depending upon the circmnstances related to filling the vacancy. See R.C. 3513.32 ("When
a special election is found necessary to fill a vacancy, the date of the prirnary election shall be
fixed at the sanie tinic and in the sarne nianner as that of the election, by the authority calling
such special election. The primary election shall be held at least fifteen days prior to the time
fixed for suclr special election.") This is important to keep in uiind considering the placement,
9
on the Declaration form, oP the phrase "at the primary election to be held on the day of
,_" directly following "or r] unexpired term ending ___, "
Because of the placenient of the check boxes on the form and the use of the word "or" before the
second check box, the phrase "at the primaiq election to be held on the day of
> " is clirectly connecteci to wliether a person is seeking candidacy for an-..-
unexpired term of office.
The form used by IIaley, which was prescribed by the Ohio Secretary of State and
distributed by the Clinton County Board of Elections, provides the candidate witli a clioice: to
check the box for the "full tei7n commencing _ " or to check the box for the "unexpired
term ending , at the primary election to be held on the day of ." See In
re Marrs' Estate (1952), 158 Ohio St. 95, 107 N.E.2d 148 ("In its usual sense and meaning the
word, `or,' connotes the alternative - one or the other of two designated things."). Haley filled
out his Declaration of Candidacy exactly as lie was instructed to do so by Clinton County Board
of Elections Deputy Director Ames. (Tr. 21). IIe completed the Declaration of Candidacy and
Petition right in front of Deputy Director Aines, and ensured that it matched the sample petition
so that it was consistent and correct, Id. He also ensured that each Declaration of Candidacy on
each part petition was completed exactly the same way as the form filled out in front of and
approved by Deputy Director Aines. (T r. 28).
Respondent Haley does not seek election to an unexpired term of office, but to a full terin
of office for which the primary election date is set forth specifically in statute. Therefore,
Respondent Haley was not required to specify on his Declaration and Petition the May 4, 2010
primary election date. Furthermore, it is clear that none of the signers were misled by the
omission of the primary date because the uncontested evidence in the record is that each signer
10
was advised of the date when he/she signed the part petitions. Even if the wrong date had been
included, the signers would not have been misled. See State ex rel. Phillips v. Lorain Cty. Bd. of
Elections, supra, 93 Ohio St.3d 535 (listing incorrect term ending date for rmexpired term,
although running for full term, does not invalidate petition) and Hill v. Cuyahoga Cty. Bd qf
Elections (1981), 68 Ohio St.2d 39 (misstating primary election date did not invalidate petition).
Relator Stewart's argument that false information is not misleading, while otnitted information is
inisleading produces an absurd result.
Haley's oinission in identifying the specific date for the primary election did not mislead
petition signers or electors, and the Clinton County Board of Elections did not abuse its
discretion in determining that Haley's Declaration of Candidacy substantially complied with
R.C. 3513.07. Haley followed the directions of Clinton County Board of Elections officials in
completing his Declaration of Candidacy, and personally ensured that all of the individuals who
signed the part petitions he circulated were informed of the primary election date. Relator
Stewart's Petition for a Writ of Mandainus and/or Prohibition should be denied.
C. There Are No Claims Or Evidence Of Fraud Or Deception In RejZard 'ToRespondent Haley's Declaration Of Candidacy And There Is No Leizal BasisFor Invalidating His Declaration
Relator Stewart makes no allegations whatsoever of fraud or deception resulting from the
omission of the primary election date on IIaley's Declaration of Candidacy. There is absolutely
no evidence of fraud or deception. Indeed, Relator Stewart mal<es no a1leQations whatsoever of
petition signers and electors being confused, misled or having a misperception or
misunderstanding based upon the omission of the primary election date on IIaley's Declaration
of Candidacy.
11
Relator Stewart's reliance on Hill v. Cuyahoga Cty. Bd of F,lections is also misplaced
because Relator Stewart cites only to dicta, not the Court's t-uling. Ultimately, the Hill Coai-t
ruled that listing an erroneous date for a primary election did not result in invalidating that part-
petition. The date provided on the petition was sufficient to inform the signers of which electioari
or office was in issue. Hill, supra, 68 Ohio St.2d at 41. If an erroneous primary election date is
not misleading or fatal to a declaration of candidacy, then certainly the omission of a primary
election date cannot be misleading or fatal, especially in light of the fact that Haley's Declaration
of Candidacy clearly sets forth the election and office in issue: the primary election for the full
term of office of county commissioner commencing January 1, 2011. Moreover, thc dicta in Hill
points to a failure of identifying any datc, which is not the case here. Haley identified the
specific connnencement date for the term of oflice he seeks - January 1, 2011. Because I-Ialey's
Declaration of Candidacy clearly identified the term commencement date and stated that it was
for the primary election, electors were on sufficient notice that Haley sought to be placed on the
ballot for the primary election this year. Indeed, the May 4, 2010 primary election is the only
primary election scheduled this year.
Similarly, Relator Stewart's reliance on a statement made in State ex rel. Allen n. Bd. of
Elections of Lake C. (1959), 170 Ohio St. 19, 161 N.E.2d 896, is no more availing because it
must vie-,ved within the context of the Allen case. The omission in Allen was that of the
eirculator's affidavit attesting to the fact that the signatures were written in the circulator's
presence and were of the persons wliose signatures they purported to be - an issue that is
certainly not present here. Clearly, a requirement of a circulator's affidavit is aitned at
etiminating fraudulently signed petitions. As a result, "substantial compliance would not warrant
complete omission of the jurat of the circulator. Such jurat is a vital and material part of the
12
nominating petition paper." id. at 20 (emphasis added). The Allen Court, however, made no
comment, statement, dicta or otherwise, as to an omission of an election date that is specifically
established in law, as in the instant case. Thus, the Allen decision does not support a finding that
Haley's Declaration of Candidacy is invalid.
Stace ex rel. Andrews v. Medina Cty. Bd of Elections (1963), 175 Ohio St. 249, 193
N.E.2d 390, involved an issue similar to Allen. The signature and seal of the notary was missing.
There was no evidence ot' a date, name of the notary, identification of "notary public," or of the
notary's conmiission expiration date. Stern, supra, 14 Ohio St.2d at 180 (distinguishing tlre facts
of Andrews in light of lhe facts at issue in Stern).
Despite Allen and Andr•ews, this Court has found that an omission of a notary's
handwritten signature and imprinted seal was not fatal to a petition. Id. at paragraph two of the
syllabus. There was sufficient information on the petition from the notary's stamp for the board
to determine the petition's substantial compliance with law. Id. In reaching this decision, this
Couit considered the undisputed fact that "there was no fraud, deception or illegality in
connection with the execution of the affidavit or any part of the declaration of candidacy or
petition." Id. at 179. Here, there is no evidence or even allegation of fraud, deception, or
illegality in comiection with IIaley's Declaration of Candidacy.
None of the cases upon which Relator Stewart relies support a finding that Haley's
Declaration of Candidacy is invalid or that the Cln-iton County Board of Elections abused its
discretion or acted contrary to law. For example, State ex Yel. Calhoun v. Scioto Cly. I3d of
Election (1988), 36 Ohio St.3d 164, 522 N.E.2d 49, involved R.C. 3513.08, not R.C. 3513.07.
R.C. 3513.08 pertains to judicial terms of office, which otien commence on differing days of the
same month and year. Thus, in order for an elector to laiow which judicial seat a candidate
13
seeks, it is necessary to know the speciiic term comnieneement date of that judicial seat. State ex
rel. Ilanna v. Milburn (1959), 170 Ohio St. 9, 14, 161 N.E.2d 891 (explaining that R.C. 3513.08
contains a strict declaration-of-candidacy requirement for judicial candidates to specify a
commencement of term date because of staggered dates make such information necessary for an
accurate dcscription of the office.) Moreover, R.C. 3513.08 does not expressly permit
substantial compliance, as does R.C. 3513.07.
A special election was at issue Billington v. Cotner (1971), 25 Ohio St.2d 140, 267
N.E.2d 410, and the date of the special election was not expressly set forth in law, as is the
primary election date for the office of county commissioner. 'I'he legislature failed to include in
its resolution the date the special election was to be held; thus, no one could determine when that
special election would oceLIT. Again, the primary election date at issue here is expressly
established in R.C. 3513.01.
R.C. 3513.09 was at issue in State ex rel. Wilson v. Ilisrich (1994), 69 Ohio St.3d 13, 630
N.E.2d 319. That statute sets forth a specific requirement and does not expressly permit
substantial compliance, as does R.C. 3513.07. Moreover, R.C. 3513.09 serves a specific public
purpose of (1) providing notice to signers of who is running for office; and (2) preventing the
creation of petitions that could be used for another candidacy not intended by the petition
signers. Here, Haley's Declaration of Candidacy and Petition left no blanks unfilled and could
not have been used for another's candidaey or another election.
Although R.C. 3513.07 was at issue in State ex rel. Loss v. Bd of Elections of Lucas Cty.
(1972), 29 Ohio St.2d 233, 281 N.E.2d 186, the type of information omitted was that of the
circulator's statement about the nuinber of signatures collected. This Court determined that the
circulator's jurat certifying the number of signatures gathered served the public purpose of'
14
protecting against signatures being actded later. Id. at 234. Haley's Declaration of Candidaoy
and Petition left no blanks unfllled that could have allowed the form to be altered later.
Finally, State ex rel. Kroeger v. Leonard (1949), 151 Ohio St. 197, 84 N.E.2d 910, the
omission at issue was the political party of the circulator. The Court based its decision upon its
belief that the General Assembly found this requirement to be especially important, given the
fact that a circulator's party membership was not required to be identified on an independent
candidate's petition. Id. at 199. It is questionable that such an omissiari would be considered
fatal to a petition today since circulators are no longer required to be electors. Secretary of State
Advisory 2009-04.
None of the cases relied upon by Relator Stewart suggest that the omission of the primary
election date, a date firmly established by statute, results in the invalidity of a Declaration of
Candidacy. Each case involves special circumstances not at issue_here. Accordingly, Relator
Stewart's request for a Writ must be denied.
D. Haley's Declaration Of Candidacy Substantially Complies With Law And
Provides Sufficient Information To Support A Dctermination Of Validit_y
The form used by IIaley for his Declaration of Candidacy and Petition was prescribed by
the Ohio Secretary of State and distributed by the Clinton County Board of Elections. 'fhe
General Assembly authorized the Secretary of State to prescribe this form. R.C. 3501.05(G). tn
prescribing the form, the Secretary determined that certain items listed in R.C. 3513.07 were
unnecessary: (a) the ward or precinct need not be on the signature line; (b) the candidate need
not request to have his or her name printed on the ballot; and (c) the candidate need not declare
that he or she is qualified in the precinct of the candidate's voting residence. The Secretary of
State properly determined that the form substantially coinplied with the statute, R.C. 3513.07,
without including these itetns. The Secretary of State prepared a form that, reasonably
15
interpreted by the Clinton County Board of Elections and Haley, only requires dates to be filled
in with respect to one of the two boxes checked.
IIaley had a right to re1y upon the reasonable interpretation of the Secretary of State's
fonn by the Clinton County Board oi' Elections, and Respondent the Clinton County Board oC
Elections had the right to consider the advice it had given in deciding how to exercise its
discretion regarding a statute that expressly permitted substantial compliance. None of the cases
cited by Relator Stewart suggest otherwise. Both State ex rel. MctYlillan v. Ashtabula Cty. Bd of
Flection.r, 65 Ohio St.3d 186, 1992-Ohio-85, 602 N.E.2d 631 and State ex rel. Sturgill v. Lorain
Cry. Bd of Elections, 164 Ohio App.3d 272, 2005-Ohio-5660, 842 N.E.2d 78, pertain to the
minimum requii-ed number of signatures that a candidate must submit in order to be placed on
the ballot, not to the omission of information such as the primary election date. Information,
such as the minimrnn number of signatures necessary for a petition, is a strict requirement. The
statutes setting forth requirements as to the minimum number of signatures do not permit
substantial compliance as does R.C. 3513.07. Therefore, a board oP elections cannot exercise
discretion and validate a petition falling short of the mininnun required number of signatures.
On the other hand, R.C. 3513.07 does uot set forth strict requirements and expressly permits
substantial (not strict) compliance. Thus, the Clinton County Board of Elections had discretion
to determine if Haley's Declaration of Candidacy and Petition substantially complied with R.C.
3513.07, which it did. Mc1Lltllan and Sturgill are inapplicable here, and Haley had the right to
rely upon the Secretary of State's and Clinton County Board of Elections' interpretation of R.C.
3513.07.
The information set forth on Haley's Declaration of Candidacy and Petition provided
substantial information to assist the Clinton County Board of Eleetions in determining that
16
signatures were gathered lawfully, that petition signers and electors were not misled, and thal. no
fraud or deception occurred. The Declaration of Candidacy and Petition have all the indicia of
reliability and trustworthiness. It is clear from the face of the Declaration of Candidacy and
Petition that all of the information identified in R.C. 3513.07 was, in fact, included on the form,
except for the information not strictly required for the form to substantially conlply with the law.
Therefore, Relator Stewart's request for a Writ should be denied.
CONCLUSION
For the foregoing reasons, Intervenor-Respondent Haley respectfully requests that this
Court deny Relator Stewart's petition for a Writ of Mandamus and/or Prohibition.
cifully submitted,
E-mail: [email protected]@[email protected]
Atlorneys. foY Intervenor-Respondent Palrick llaley
Elizabeth S. Watters (0054055)Deborah A. Scott (0079253)CaLsrr[t, WILLCOX & Sax13r., LLP65 East State Street, Suite 1000Colutnbus, Ohio 43215-4213Telephone: (614) 221-4000Facsimile: (614) 221-4012
onald C. Brey (0021965)
17
CERTIFICATE OF SERVICE
A true and acaurate copy of this Merit Brief of lntervenor-Respondent Patrick Haley was
served upon the following, via electronic mail, on this 18"' day of March, 2010:
Donald J. McTigue, Esq.(lincligiie@eleclioiilawgroztl-).com
Mark A. McGinnis, Esq.mmcginnis a,)electionlativgroup. com
J. Corey Colombo, Esq.ccolombo@electionlawgroup. com
Coru7sel for Relator Stewart
ND: 4843-3I40-6853, v. 2
Richard W. Moyer, Esq.rmoyer@clintonctyprosecutor, com
Andrew McCoy, Esq.amccoy@clintonc[yprosect.ttor, com
Counsel for Respondent Clinton CountyBoard of Elections and its Members
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