The State Ex Rel. Curtis v. Summit County Board of Elections , 144 Ohio St. 3d 405 ( 2015 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Curtis v. Summit Cty. Bd. of Elections, Slip Opinion No. 2015-Ohio-3787.]
NOTICE
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to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-3787
THE STATE EX REL. CURTIS v. SUMMIT COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Curtis v. Summit Cty. Bd. of Elections,
Slip Opinion No. 2015-Ohio-3787.]
Elections—Mandamus—R.C. 3501.38(E)(1)—Petition circulators must indicate
number of signatures on petitions they circulate—Action to compel board
of elections to count valid signatures on a part-petition it found invalid—
Board of elections abused its discretion in finding that signature at issue
was not crossed out—Writ granted.
(No. 2015-1426—Submitted September 15, 2015—Decided September 18, 2015.)
IN MANDAMUS.
________________
Per Curiam.
{¶ 1} Relator, Mark H. Curtis, seeks a writ of mandamus to compel
respondent, the Summit County Board of Elections, to count the valid signatures
on a part-petition it invalidated. We grant the writ.
SUPREME COURT OF OHIO
Background
{¶ 2} On June 26, 2015, Curtis filed a nominating petition and statement
of candidacy to become a member of the school board of the Twinsburg City
School District. The filing consisted of six part-petitions. At issue in this case is
the validity of “Petition 1.”
{¶ 3} The board of elections declared Petition 1 invalid. The board
determined that there were 21 signatures on that part-petition and invalidated it in
its entirety, because the circulator wrote that it contained 20 signatures from
qualified electors. The valid signatures on the remaining five part-petitions are
insufficient to qualify Curtis for the ballot. After hearing arguments from Curtis
at a meeting on August 28, 2015, the board declined to reconsider its decision.
{¶ 4} Line 7 of Petition 1 contains two signatures and two addresses.
Curtis and his attorney told the board that the top signature on line 7 was that of
Curtis’s neighbor, Earl Shaffer. As Shaffer was signing, Curtis asked if he was a
registered voter. Shaffer said that he did not think so and stopped filling out his
address on the form. Curtis stated at the hearing that he witnessed Shaffer draw a
line through his name so as to strike it from the petition. Shaffer submitted an
affidavit that supported Curtis’s account, attesting that he had struck through his
own signature. The next petition signer then signed on the same line, below
Shaffer’s name. When he submitted the part-petition, Curtis attested that there
were 20 signatures on it, which was, to the best of his knowledge, the correct
number of qualified signatures.
{¶ 5} At the meeting in which the board denied reconsideration, two board
members stated that upon examining Petition 1, they did not see any line-out of
Shaffer’s name at all. A third board member stated that he could not tell one way
or the other whether there was a cross-out.
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January Term, 2015
Legal Analysis
{¶ 6} The question in this case is whether the board abused its discretion
by striking the part-petition in its entirety.
{¶ 7} Curtis urges us to follow State ex rel. Schwarz v. Hamilton Cty. Bd.
of Elections, 173 Ohio St. 321, 181 N.E.2d 888 (1962). In Schwarz, the board of
elections disqualified a part-petition because the circulator’s statement indicated
one less signature than the petition contained. The circulator explained the reason
for the discrepancy at a hearing before the board of elections. Given the
undisputed facts, this court reversed the judgment of the court of appeals denying
a writ of mandamus and faulted the board for making a determination that was
“too technical, unreasonable, and arbitrary.” Id at 323.
{¶ 8} We find the dispute here to be virtually factually identical to the
dispute in Schwarz, with no indication of fraud or material misrepresentation by
the circulator of the petition. As in Schwarz, the relator in this case provided an
explanation of the reason the number of signatures attested to in the circulator’s
statement was less than the number of signatures appearing on the part-petition,
specifically identifying the non-qualifying signature. Here, relator went further,
providing an affidavit from the unregistered voter whose signature is at issue, who
stated that he had struck through his signature on the petition, matching the
relator’s testimony. This evidence made it clear that Shaffer’s signature had been
crossed out, which made relator’s circulator statement accurate. We thus find that
that “the determination made by the board against the validity of the petition was
too technical, unreasonable and arbitrary—in short, an abuse of discretion—and
that upon the facts which respondent had in its possession it was under the clear
legal duty to approve and accept the petition.” Id.
{¶ 9} This court’s decision in Rust v. Lucas Cty. Bd. of Elections, 108
Ohio St. 3d 139, 2005-Ohio-5795, 841 N.E.2d 766, is inapposite. In Rust, this
court recognized that R.C. 3501.38(E)(1) requires circulators to indicate the
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SUPREME COURT OF OHIO
number of signatures on the part-petitions they circulate and reasoned that the
purpose of this requirement is to protect against signatures being added to the
petition after the circulator signs the statement. Id. at ¶ 9-11. This court held in
Rust that the board of elections did not abuse its discretion by following the
secretary of state’s interpretation of the statute that if the number indicated by the
circulator is less than the actual number of signatures, the entire part-petition must
be invalidated. Id. at ¶ 12-13.
{¶ 10} In Rust, the circulator’s statement specified a number of signatures
that was less than the actual number of signatures because the circulator was
aware that at least one of the signatures came from an unqualified person. Id. at
¶ 14. The circulator claimed that he did not want to violate the R.C.
3501.38(E)(1) requirement that “all signers were to the best of the circulator’s
knowledge and belief qualified to sign” by attesting to a number of qualified
signers that he knew was inaccurate. Id. In that circumstance, this court held that
the remedy lies in R.C. 3501.38(G), which permits a circulator to strike such a
person’s name from the part-petition. Id. In Rust, the circulator made no claim
that any of the invalid signatures had been crossed out. Here, relator presented
undisputed evidence that Shaffer had crossed out his own signature.
{¶ 11} Based on the foregoing, we grant the writ of mandamus. Given the
short amount of time remaining to finalize ballots, the court will entertain no
motions for reconsideration, clarification, or other relief in this case.
Writ granted.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
O’NEILL, JJ., concur.
FRENCH, J., dissents.
_________________
David T. Andrews, for relator.
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January Term, 2015
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Colleen
Sims, Assistant Prosecuting Attorney, for respondent.
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