In an expedited election case announced today, the Supreme Court of Ohio ordered the Summit County Board of Elections to include Darrita Davis on the November 5 ballot as an independent candidate for Akron City Council.

The court, in a 4-3 decision, granted Davis’s writ, finding that the board of elections abused its discretion when it disqualified her petition to run as an independent.

The elections board argued that Davis is not an independent because she failed to disaffiliate sufficiently from the Democratic Party. The court today said that the board based its conclusion on only one piece of information – her vote in the Democratic primary for president in March 2012.

“A candidate’s prior voting history, standing alone, cannot be a sufficient basis for disqualifying an independent candidate,” the court wrote. “Disaffiliation by definition presumes a history of support for or membership in a political party. If a candidate’s prior voting record, standing alone, could trump a declaration of disaffiliation, then disaffiliation would never be possible.”

The court also said the board erroneously applied a two-year statutory look-back provision for petition signatures to the separate analysis of disaffiliation under R.C. 3513.257: “The practical effect of the board’s rule is the creation of a de facto ‘sit out’ requirement, whereby candidates who disaffiliate from a political party have to wait at least two years before they may seek office as independents. Nothing in R.C. 3513.257 requires such a result.”

The court found that two donations Davis made to Democratic candidates at different events held little weight, primarily because the donations were made before she declared her candidacy for city council in July 2013. While evidence undermining disaffiliation after a candidate files is not required for a successful challenge to a candidate’s petition, “where the challenge is based solely on prepetition evidence, the evidence needs to be that much more substantial to warrant excluding an otherwise qualified candidate,” the court stated.

“In addition, the board abused its discretion because it fundamentally misconstrued the relevant inquiry,” the court found. “Based on her past voting record, the board informs the court, ‘the Board determined that Relator did not make a good faith attempt to disaffiliate from the Democratic Party.’ But the requirement … is that a candidate must declare her lack of affiliation in good faith, not that she take affirmative action to disaffiliate in order to prove her good faith. In other words, the declaration of disaffiliation can, in some circumstances, be sufficient affirmative action.”

The per curiam (not authored by a specific justice) opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Sharon L. Kennedy, and William M. O’Neill. Justice Terrence O’Donnell dissented in a written opinion. Justice Judith Ann Lanzinger also dissented, but wrote separately. Justice Judith L. French dissented without opinion.

In his dissent, Justice O’Donnell wrote: “In view of Davis’s voting history and her financial contributions to Democratic candidates in April 2013 and June 2013, the board did not abuse its discretion in concluding that Davis had not in good faith disaffiliated herself from the Democratic Party when she filed her nominating petition to run as an independent candidate.”

In her separate dissent, Justice Lanzinger wrote: “The county boards of elections are given little guidance when asked to determine whether an independent candidate has made a good-faith declaration of disaffiliation. … Because I believe that the Summit County Board of Elections did not act unreasonably under the circumstances, I would deny the writ.”

The complete opinion is available on the court’s website.

2013-1533. State ex rel. Davis v. Summit County Board of Elections, Slip Opinion No. 2013-Ohio-4616.

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