Six candidates can appear on the special Aug. 2 primary election ballot, despite Ohio Secretary of State Frank LaRose disqualifying them, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court granted a writ of mandamus to two candidates each for the Ohio House, Ohio Senate, and Democratic Party State Central Committee. The candidates filed their petitions to run once it became likely a federal court would require the state to use a legislative district map declared unconstitutional by the Supreme Court to conduct an Aug. 2 primary election for General Assembly and state central committee races.

The primary election was scheduled for May 3, but because of continued disputes over the validity of the state district maps, races for the General Assembly and state central committee could not appear on the May 3 ballot. State law requires primary candidates to file their declarations for candidacy 90 days before the election, and for write-in candidates to file 72 days before the election. For the May 3 primary, those deadlines fell in February.

The six candidates did not file petitions in February, but instead submitted petitions in anticipation of an August primary, filing their paperwork more than  90 or 72 days before August 2. LaRose issued a directive in May, stating that while the election date had changed for these races, the filing deadlines had not, and that only candidates who had filed by the February dates could appear on the ballot.

In a per curiam opinion, the Court wrote, “despite the complicated history” leading to the move to an Aug. 2 election, the law clearly sets the filing deadlines at 90 days and 72 days prior to the election. The Court ordered the Franklin, Montgomery, and Licking County boards of elections to accept the candidates’ declarations and petitions and to certify the candidates to the ballot if their petitions meet all the required qualifications.

Chief Justice Maureen O’Connor and Justices Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the opinion.

Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine wrote separate opinions dissenting in part and concurring in part with the majority opinion. The three wrote that LaRose properly rejected the petitions of all the candidates. Justice Fischer joined both Justice Kennedy’s and Justice DeWine’s opinions.

Filing Deadlines Change During Map Challenges
A 2015 voter-approved constitutional amendment changed the way Ohio draws maps for General Assembly seats. A new Ohio Redistricting Commission submitted its first maps for the 2022 elections in September 2021. In actions filed by voting-rights organizations, the Supreme Court invalidated the commission’s first maps in January 2022.

The commission submitted its second maps later in January 2022, as the deadline for candidates to file for the May primary approached. As the Feb. 2 filing deadline neared with no new maps in place, lawmakers enacted H.B. 93, which allowed candidates who filed timely petitions and declarations of candidacy to amend their petitions later when it became clear what districts they resided in under an approved map.

The Supreme Court rejected the Commission’s second map, and the Commission adopted a new plan (“Map 3”) in late February. LaRose instructed the county boards of elections to certify the candidacies of prospective House, Senate, and state-central-committee candidates who had filed declarations by the February deadlines for the May primary, based on Map 3.

The Supreme Court rejected Map 3 in March and ordered the Commission to draft a new district plan. In the meantime, a group of Republican voters challenged the map-drawing process in federal court. A federal three-judge panel ruled that if no agreed-upon legislative map was adopted by May 27, then it would order the state to use Map 3 and conduct the state’s primary election on Aug. 2.

New Filers Seek Office
William DeMora and Elizabeth Thien filed to be candidates for the Ohio Senate. Under Map 2, Thien resided in Senate District 16, and that seat was not up for election in 2022. She did not file a declaration of candidacy in February. But under Map 3, Thien resides in Senate District 25, which does have an election this year, and on May 16, she filed to run as a write-in candidate for Senate District 25.
DeMora filed to run for Senate District 25 on May 4. Under Map 2, DeMora resided in Senate District 15, which already had an incumbent Senator, but Map 3 moved DeMora to District 25.

Anita Somani resided in House District 11, as did House Minority Leader Allison Russo, when Map 2 was in place. Map 3 moved Russo to District 7, leaving District 11 without a declared candidate. On May 4, Somani filed to run for House District 11. On May 23, Leronda  Jackson filed to run as a write-in candidate for House District 39.

Bridgette Tupes and Gary Martin filed as candidates for the state central committee on May 4.

After LaRose directed the boards of elections to reject their filings as late, the six candidates requested a writ of mandamus from the Court to order LaRose to allow their petitions to be considered by the local boards.

After the case was filed, the Court permitted Shafron Hawkins and Mehek Cooke to intervene in the case. Cooke filed to run for House District 11 on June 7. Hawkins had filed to run as a write-in candidate for House District 15 in February, but he withdrew from that race and instead ran for Congress. Hawkins appeared on the May 3 congressional-primary ballot but did not win the nomination. On June 3, Hawkins requested that the Cuyahoga County Board of Elections “reinstate” his candidacy for Ohio House District 15. The board declined.

Supreme Court Examines Election Law
The original relators — DeMora, Thien, Somani, Jackson, Tupes, and Martin — argued that under state law, they met the requirements to appear as candidates for an August primary. The intervening relators — Hawkins and Cooke — maintained the federal court’s shifting of the primary date created an unfair process and sought to have the filing deadlines extended, or in the alternative, to have the election moved to September.

The Court’s opinion noted that R.C. 3513.05, which sets the 90-day deadline, and R.C. 3513.041, which sets the 72-day deadline, tie the deadlines for filing declarations of candidacy to the actual day when voting occurs.
To receive a writ from the Court, the candidates had to prove by clear and convincing evidence that they have a clear legal right to be on the ballot and that LaRose and the boards have a clear legal duty to provide it.

LaRose argued the candidate declarations are void because when they were filed in May, there was no primary election scheduled for Aug. 2. He maintained Aug. 2 was not the primary date until May 28, when the federal court’s order imposing that date became effective. The Court stated that LaRose cited “no authority—statutory or judicial—for the proposition that a declaration of candidacy is void if it is filed before the primary date is officially set.”

LaRose also argued he had limited authority under H.B. 93 to alter the candidate filing deadlines. The Court ruled H.B. 93 is inapplicable because the original relators are not asking LaRose to order a new deadline for filing declarations. Their theory was that the deadlines exist by statute and that LaRose interfered with those statutory deadlines when he directed the boards not to accept the petitions.

The Court declined to grant the intervenors’ requests for relief. The opinion noted that those candidates were asking LaRose to alter the deadlines, which he did not have a clear legal duty to do.

Concurring and Dissenting Opinion Finds Deadline Not Moved
In her concurring and dissenting opinion, Justice Kennedy stated that lawmakers set May 3 as the primary election date. The inability for candidates to stand for election to General Assembly seats “was a direct result of the chaos the majority created by its overreach in the General Assembly–redistricting process,” she wrote.  Consequently, she wrote, candidates who had complied with the requirements to be on the May 3 ballot were left in Limbo when the Secretary of state severed them from the ballot.

Justice Kennedy stated the federal court intervened and preserved the ability of people who met the prescribed requirements for candidacy in the May 3 primary to stand for election. She noted that H.B. 93 authorized candidates who had filed by the February 2022 deadlines to change the district in which they would seek election if they found themselves–after redistricting–living in a district different from the one in which they had declared their candidacy. Because the six Democrats and two Republicans did not meet ballot requirements for the May 3 primary and did not ask for the federal court to change the deadlines, their filings were too late, she reasoned.

“The saving grace of the federal court rightly belongs only to those candidates who put themselves in a position to earn it,” she concluded.

No Clear Legal Right to Be on Ballot, Second Concurring and Dissenting Opinion Maintained
Justice Fischer, in his concurring and dissenting opinion, repeatedly referenced Lewis Carroll’s “Alice’s Adventures in Wonderland” to characterize the “madness” of the redistricting process and the repeated submission of maps by the commission and rejection of them by the Court majority. He inferred the filing deadlines were a victim of an unclear process.

“The answer to the question whether there are new filing dates is not too much unlike an answer to a Mad Hatter riddle— ‘I haven’t the slightest idea,’” he wrote.

Justice Fischer said the relators had to prove LaRose had a clear legal duty to place them on the ballot. Because the process is unclear, LaRose did not abuse his discretion or violate a clear legal duty when he determined the law did not allow for the candidates to file their petitions after the February deadlines, he concluded.

Deadline Set by Lawmakers, Third Concurring and Dissenting Opinion Asserted
Justice DeWine dissented from the Court’s order adding new candidates to the ballot. Justice DeWine explained that the deadline for filing candidate petitions was set by the General Assembly, and that neither LaRose nor the Court has the authority to alter the dates.

Justice DeWine noted that the legislature had sought to deal with the uncertainty caused by the redistricting process by adopting H.B. 93, which allowed candidates to file and appear on the ballot even if district lines subsequently changed as long as they filed by the statutory deadline, but the parties in this case failed to take advantage of that opportunity. 

Justice DeWine also questioned the fairness of the majority “allowing one group of candidates who missed the statutory deadlines to participate in the August 2 primary election but not the other.”
He criticized the majority’s indifference to the disruption that its order could have on the election process. The majority’s intervention, Justice DeWine explained, violated the “common-sense principle that judges—novices in election administration—should not meddle in elections at the last minute.” 

He concluded by noting that through its previous decisions the Court had “foisted a costly and confusing special election on the voters.” “Today,” he continued, “the court compounds the problems it has created by arbitrarily granting relief to a select group of prospective candidates who failed to comply with the deadlines established by the General Assembly.  What a mess.”

2022-0661. State ex rel. DeMora v. LaRose, Slip Opinion No. 2022-Ohio-2173.

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