In two expedited elections cases, the Ohio Supreme Court ordered the boards of elections in Summit County and in Richland County to place candidates on the November 2013 general election ballot.

In two expedited elections cases, the Ohio Supreme Court ordered the boards of elections in Summit County and in Richland County to place candidates on the November 2013 general election ballot.

In two separate expedited elections-related cases, the Ohio Supreme Court ruled today that two candidates for public office should be placed on their respective ballots for the November general election.

The court’s rulings in both cases granted writs of mandamus ordering two boards of elections to place the candidates on the ballot. The Summit County case involved a  candidate for Stow Municipal Court clerk of courts. The Richland County case involved a candidate for Mansfield City Council’s 5th Ward. Both unanimous rulings found the boards of elections “disregarded  clearly established law” by refusing to place the candidates on the general election ballots.

In State ex rel. Coughlin v. Summit Cty. Bd. of Elections, Kevin J. Coughlin was denied a position on the November ballot in the Stow Municipal Court clerk of court race after an elector, Donald Nelsch, filed a protest against his nominating position.

“The protest letter challenged Coughlin’s ability to run as either a nonpartisan or independent candidate by setting out Coughlin’s long history of association with the Republican Party,” the court’s opinion said. “The letter alleged that Coughlin had taken no steps to disaffiliate from the Republican Party before submitting his nominating petition.”

During a July protest hearing, Coughlin argued that he was running as a nonpartisan candidate, not an independent candidate, and pointed out that the requirement of disaffiliation applies only to independent candidates. The Summit County Board of Elections, however, voted unanimously to sustain the protest and deny Coughlin’s petition.

In its opinion today, the court agreed with Coughlin, saying that the two terms – nonpartisan and independent – are not synonymous.

Citing R.C. 3505.04, the court said the “names of nonpartisan candidates for election to certain offices, including judicial office, shall be printed on a portion of the ballot designated as the ‘nonpartisan ballot.’ Political-party designations are not permitted on the nonpartisan ballot. A nonpartisan’ candidate is simply any candidate whose name is required by (statute) to be listed on the nonpartisan ballot.

“The Revised Code 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 office-type ballot at a general or special election through the filing of a state of candidacy and nominating petition as prescribed in section 3513.257 of the Revised Code.’ If an affiliated candidate wishes to run as an independent, the candidate must disaffiliate in good faith from his or her political party.”

Therefore, the court said, “Unlike independent candidates, candidates for nonpartisan office are not required to disaffiliate from political parties.”

The court also addressed the board of elections’ allegations that Coughlin did not act diligently because he did not file suit until August 8, 2013. Citing the board of elections’ own evidence, however, the court noted that Coughlin acted diligently in making a timely public-records request and filing his subsequent complaint in a timely manner as well. “Although the board characterizes Coughlin’s actions as a three-week delay, most of that delay is attributable to the board,” the court said.

“The Summit County Board of Elections disregarded clearly established law when it concluded that Coughlin had to disaffiliate or else seek nomination through a partisan primary and that therefore his nominating petition was untimely. For this reason, Coughlin has a clear legal right to have his name on the ballot ... ”

In the second elections case – State ex rel. Yeager v. Richland Cty. Bd. of Elections – Carl H. Yeager Jr. was denied a place on the November general election ballot as a candidate for the Mansfield City Council’s 5th Ward. In January 2013, Yeager declared his intent to seek the Republican Party nomination in the race and submitted a sufficient number of valid signatures. As the only person to file a declaration of candidacy to run in the primary, the Richland County Board of Elections certified Yeager’s candidacy for the general-election ballot without a primary, as R.C. 3513.02 provides.

However, in April 2013, the board determined Yeager was not a qualified elector in the 5th Ward and did not reside at 462 Lily Street, the address listed on his voter-registration form. Subsequently, the board officially voted to remove Yeager’s name from the general election ballot in July, on the grounds he did not live at the Lily Street address. On August 14, 2013, the candidate began an expedited election action for a writ of mandamus to compel the board to place his name on the ballot.

In the court’s written opinion released today, the justices found: “The board argued that Yeager knew as of April 2, 2013, that the board would not place his name on the November ballot and therefore his delay of over four months was unreasonable and prejudicial. We disagree.”

According to the board of elections’ minutes of its April 2 meeting, the board members only took an official vote to declare that Yeager was not determined to be a qualified elector, based upon his voter-registration address. At the meeting, the board voted to refer Yeager’s candidacy to the county prosecutor to determine how to proceed. “Clearly, the board left the question of Yeager’s candidacy for another day,” the court said.

“The board did not vote to remove Yeager from the ballot until July 9, 2013,” the court opinion said, “Yeager should not be penalized for the board’s three month delay in taking formal action.”

In presenting his argument to the court, Yeager said “… the board of election was without authority to invalidate his petition under R.C. 3501.39(A)(2) because no one filed a written protest against his candidacy, a necessary prerequisite to invoking that provision … Nor could the board act sua sponte to  invalidate his petition under R.C. 3501.39(A)(3), he contends, because any such action was time-barred.”

The court’s opinion cites R.C. 3501.39(B), which imposes a time limit upon the board’s ability to invalidate petitions. The statute reads: “[A] board of elections shall not invalidate any declaration of candidacy or nominating petition under division (A)(3) of this section after the sixtieth 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.”

The board of elections’ argument, however, contends that “[B]ecause there was no election regarding nomination to the office in question, the only other election from which the sixty day period can be calculated is the date of the general election.”

The Supreme Court disagreed and called the board’s argument “inconsistent with the plain language of the statute.” It said, “R.C. 3501.39(B) clearly states that if a candidate files a declaration of candidacy, a board of elections shall not invalidate a declaration of candidacy or nominating petition under section (A)(3) after the 60th day “prior to the election at which the candidate seeks nomination.”  (Emphasis added.)  The election at which Yeager sought nomination was the May 7, 2013 primary, not the November 5, 2013 general election.  The statute contains no language allowing the board to fix a new deadline in the event the primary is not required. Based upon this statute, the court found the board’s removal of Yeager’s name from the ballot to be “untimely.”

Addressing Yeager’s argument that no elector protested his candidacy in a written manner, the court made four points.

1. Citing the protest provision of R.C. 3501.39(A)(2), “Protests against a person who files a declaration of candidacy for party nomination must be in writing, must be filed by a qualified elector of the same political party who is eligible to vote in that primary election and must be filed no later than the 74th day before the day of the primary election…The board has presented no evidence that an elector filed a protest meeting these requirements…”
2. The board suggests that its April 2 hearing transcript constituted a written protest. The court said, “...(The) transcript satisfies none of the statutory requirements for a protest. First, the transcript was not prepared 74 days before the May 7 primary, so if it was a written protest, it was untimely. Second, the transcript was created by the board, which is not a qualified elector.”
3. Citing a 1999 court ruling, State ex rel. Ryant Comm. V. Lorain Cty. Bd. of Elections, the court said a protest must specifically inform the candidate of the basis for the protest. The court wrote, however, “The transcript does not satisfy that notice requirements because the only issue the board discussed was Yeager’s residency as it related to his eligibility to vote. The board offered no comment about the prospect of removing him from the ballot, other than to seek an opinion from the county prosecutor.”
4. According to the Revised Code, when a board of elections receives a protest, it is required to “promptly fix the time for hearing” the protest and notify the candidate of the protest and the time set for hearing (R.C. 3513.05). Between April 2 and the board’s vote on July 9, the court said, the board did not schedule a hearing, nor did it allow Yeager an opportunity to be heard. The board said, though, that Yeager had an opportunity to address the residency allegation at the April 2 hearing, but he chose to stay silent. “But requiring a candidate to respond to allegations before serving formal written notice of the allegations does not comport with the Revised Code or with the basic notions of due process.”

Finally, the court did not rule on Yeager’s qualifications for the office he seeks. “…This court expresses no opinion as to whether Yeager is a qualified elector in the 5th Ward. In the event that Yeager wins the election and is in fact statutorily unqualified to assume the office, then a remedy will lie in quo warranto to remove him from office.”

2013-1264. State ex rel. Coughlin v. Summit Cty. Bd. of Elections. Slip Opinion No. 2013-Ohio-3867.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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