State ex rel. Walker v. LaRose (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Walker v. LaRose, Slip Opinion No. 2021-Ohio-825.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-825THE STATE EX REL. WALKER ET AL. v. LAROSE, SECY., ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Walker v. LaRose, Slip Opinion No.
2021-Ohio-825.]
Elections—Mandamus—Writ of mandamus sought to compel secretary of state,
county board of elections, and city to change ballot language of a local
issue on the May 4, 2021 primary-election ballot or to strike issue from the
ballot entirely—Secretary of state and city not proper respondents for relief
sought—Board of elections did not abuse its discretion or disregard
applicable law in approving ballot language for local issue under R.C.
3505.06—Writ denied.
(No. 2021-0264—Submitted March 12, 2021—Decided March 17, 2021.)
IN MANDAMUS.
__________________
Per Curiam.
SUPREME COURT OF OHIO
{¶ 1} In this expedited election case, relators, Patricia A. Walker and Ralph
E. Jocke, seek a writ of mandamus compelling respondents, Ohio Secretary of State
Frank LaRose, the Medina County Board of Elections (the “board”), and the city
of Medina (the “city”), to change the ballot language of a local issue on the May 4,
2021 primary-election ballot. Alternatively, relators seek a writ of mandamus
ordering respondents to strike the issue from the ballot entirely.
{¶ 2} We deny the writ. Neither the secretary of state nor the city is a proper
respondent for the relief relators seek. And the board did not abuse its discretion
or disregard applicable law in approving the ballot language challenged by relators.
I. Background
{¶ 3} This case arises out of the city’s efforts to move the Medina Municipal
Court to the Medina County courthouse building and citizen opposition to those
efforts.
{¶ 4} The Medina County courthouse consists of an original building
constructed in 1841, several additions constructed starting in 1873, and an
expansion constructed in 1969. In 2019, the city passed an ordinance authorizing
city funds to be used for a joint courthouse project with Medina County. The city
and county had agreed to design, plan, and build a courthouse that would house the
Medina Municipal Court and the Medina County Court of Common Pleas.
{¶ 5} Walker states in her affidavit that she formed the Save Your
Courthouse Committee (the “committee”) in 2019 due to residents’ concerns that
the joint courthouse project would demolish part of the 1841 courthouse structure
and all of the 1969 portion. Relators further contend that many of the city’s
residents have urged the city to expand the Medina Municipal Court at its present
location instead of moving it to the Medina County courthouse.
{¶ 6} After the committee unsuccessfully sought to place a courthouse
initiative on the November 2019 election ballot, see State ex rel. Save Your
Courthouse Commt. v. Medina, 157 Ohio St.3d 423, 2019-Ohio-3737, 137 N.E.3d
2January Term, 2021
1118, relators and the committee successfully placed a nearly identical initiative on
the November 3, 2020 ballot. The initiative submitted to the city’s electors stated:
Without a majority vote of the qualified electors who are
residents of the City of Medina, Ohio, (“the City”), the City shall
not:
1) authorize, appropriate or spend any funds for, or
2) use any city resources to carry out, or facilitate carrying
out, any demolition or construction activity (whether internal or
external) at the Medina County Courthouse or any structure located
on the east side of the Medina Public Square including, but not
limited to, 72 through 99 Public Square, Medina, Ohio.
This restriction shall have the effect of law and shall be
effective for a period of five (5) years.
The initiative (sometimes referred to as “Issue 7”) passed with 62 percent of the
vote.
{¶ 7} Despite the passage of the initiative, the city moved forward with the
courthouse project. On December 30, 2020, the Medina City Council held a special
meeting to consider Ordinance No. 222-20, which proposed for submission to the
city’s electors a request to approve relocation of the municipal court to the 1969
courthouse. The issue approved by the city council stated:
The City of Medina, Ohio, is authorized to appropriate and
expend funds and use city resources to locate the Medina Municipal
Court inside of the Medina County 1969 courthouse located at 93
Public Square so as to preserve the 1969 courthouse as a court
building located on the east side of Medina Public Square.
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SUPREME COURT OF OHIO
The city council passed Ordinance No. 222-20 at the December 30 special meeting.
The ordinance also provided that the issue would be submitted to city electors at a
special election, appearing on the May 4, 2021 primary-election ballot.
{¶ 8} The city filed Ordinance No. 222-20 with the board on January 26,
2021, requesting placement on the May 4 ballot. The board prepared ballot
language for the proposed ordinance and transmitted the ballot language to the
secretary of state’s office on February 3 for approval under R.C. 3501.05(J). The
secretary’s office approved the ballot language on February 17. The language
reads:
Proposed Ordinance
City of Medina
Ordinance No. 222-20
A majority affirmative vote is necessary for passage.
Shall the City of Medina, Ohio, be authorized to appropriate
and expend funds and use city resources to locate the Medina
Municipal Court inside of the Medina County 1969 courthouse
located at 93 Public Square so as to preserve the 1969 courthouse as
a court building on the east side of Medina Public Square?
O YES
O NO
(Boldface sic.)
{¶ 9} Prior to the secretary of state’s approval of the ballot language,
relators filed a letter with the board on February 12, stating their position that
Ordinance No. 222-20 required more than a majority affirmative vote for passage
at the May 4 election. Relying on the language of the courthouse initiative passed
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January Term, 2021
in November, relators contended that the ordinance required “a majority vote of all
of the people who live in Medina City and who are qualified to vote in the [May 4,
2021] Primary in order to pass.” Relators presented the same argument at a board
meeting on February 16. When the board declined to change the language relating
to the number of votes required for passage of Ordinance No. 222-20, relators filed
a protest with the board on February 19, reiterating their objection to the language
approved for the ballot. In their protest, relators proposed that the following
language be approved:
The City of Medina, Ohio is authorized to appropriate and
expend funds and use City resources to locate the Medina Municipal
Court inside of the Medina County 1969 Courthouse located at 93
Public Square. This partially overrules Issue 7 that was passed on
November 3, 2020. A majority of the qualified electors who are
residents of the City of Medina, Ohio is necessary for passage.
The board sent relators’ protest to the secretary of state but took no other action on
it. The language for Ordinance No. 222-20 on the May 4 election ballot remains
the same as that approved by the board on February 3 and the secretary on February
17.
{¶ 10} Relators filed this action on February 26, seeking a writ of
mandamus to compel respondents to amend the ballot language for Ordinance No.
222-20 as relators requested. Relators argue that (1) the approved ballot language
inaccurately states that only a majority affirmative vote is required for passage and
(2) the ballot language should be amended as they request because the approved
language is unlawfully persuasive and contains no title for the proposed ordinance.
In the alternative, relators request a writ of mandamus directing respondents to
remove Ordinance No. 222-20 from the May 4 ballot because the ballot measure
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did not include a title when it was filed with the board. We set an expedited
schedule for respondents to answer and for the parties to file their evidence and
briefs. ___ Ohio St.3d ___, 2021-Ohio-555, ___ N.E.3d ____. The parties have
submitted their evidence and have fully briefed this matter for our decision.
II. Analysis
{¶ 11} To be entitled to a writ of mandamus, relators must establish by clear
and convincing evidence that (1) they have a clear legal right to the requested relief,
(2) respondents have a clear legal duty to provide it, and (3) relators do not have an
adequate remedy in the ordinary course of law. State ex rel. Linnabary v. Husted,
138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. Because of the
proximity of the May 4 election, relators lack an adequate remedy in the ordinary
course of law. State ex rel. Voters First v. Ohio Ballot Bd., 133 Ohio St.3d 257,
2012-Ohio-4149, 978 N.E.2d 119, ¶ 22.
{¶ 12} For the remaining requirements of a clear legal right and a clear legal
duty, in the absence of any evidence of fraud or corruption, the dispositive issue is
whether respondents abused their discretion or clearly disregarded applicable law
in adopting the ballot language at issue and in allowing the ordinance to be
submitted to the Medina electors. See id. at ¶ 23. Relators do not allege fraud or
corruption in this case.
A. Mandamus Claims Against the Secretary of State
{¶ 13} In neither their complaint nor their merit brief do relators cite a
statute imposing a duty on the secretary of state to amend ballot language for a local
issue or to strike such an issue from the ballot entirely. Though the secretary
acknowledges that R.C. 3501.05(J) directs him to “give final approval to ballot
language for any local question or issue approved and transmitted by boards of
elections,” he argues that his only role for local issues under R.C. 3501.05(J) is to
review and approve ballot language as to form. See State ex rel. Perry Twp. Bd. of
Trustees v. Husted, 154 Ohio St.3d 174, 2018-Ohio-3830, 112 N.E.3d 889, ¶ 15.
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January Term, 2021
The secretary complied with that duty in this case and relators do not argue that
R.C. 3501.05(J) imposes any further duty upon the secretary to review Ordinance
No. 222-20 for content. Accordingly, relators’ requested relief is not proper against
the secretary. See State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd.
of Elections, 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, ¶ 85.
{¶ 14} Rather than dispute that R.C. 3501.05(J) empowers the secretary of
state to review local ballot issues only for form and not for content, relators in their
reply brief cite R.C. 3505.01 and 3501.11(V) as the sources of the secretary’s duty
to revise the ballot language. We need not address these arguments, as they were
raised for the first time in a reply brief. See State ex rel. Murray v. Scioto Cty. Bd.
of Elections, 127 Ohio St.3d 280, 2010-Ohio-5846, 939 N.E.2d 157, ¶ 58. In any
event, relators do not explain how these statutes support a duty on the part of the
secretary to amend the ballot language in the manner they seek.
B. Mandamus Claims Against the City
{¶ 15} As to the city, relators contend that (1) the city’s submission of
Ordinance No. 222-20 for a special election was legally improper, (2) the city
enacted improper persuasive language in the ordinance, and (3) the city failed to
include a title in the version of the ordinance submitted to the board. Relators’
contention that the city’s submission of Ordinance No. 222-20 for the ballot is
invalid does not, however, inform the issue whether they may obtain a writ of
mandamus ordering the city to perform the acts requested. Relators cite no statute
stating that the city has the power, much less a duty, to amend board-approved
ballot language or to remove an issue from the ballot.
C. Mandamus Claims Against the Board
{¶ 16} Under R.C. 3501.11(V), the board has a duty to “[g]ive approval to
ballot language for any local question or issue.” Further informing the board’s duty
in this regard is R.C. 3505.06(D), which provides:
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SUPREME COURT OF OHIO
The printed matter pertaining to each question or issue on
the ballot shall be enclosed at the top and bottom thereof by a heavy
horizontal line across the width of the ballot. Immediately below
such top line shall be printed a brief title descriptive of the question
or issue below it, such as “Proposed Constitutional Amendment,”
“Proposed Bond Issue,” “Proposed Annexation of Territory,”
“Proposed Increase in Tax Rate,” or such other brief title as will be
descriptive of the question or issue to which it pertains, together with
a brief statement of the percentage of affirmative votes necessary for
passage, such as “A sixty-five per cent affirmative vote is necessary
for passage,” “A majority vote is necessary for passage,” or such
other brief statement as will be descriptive of the percentage of
affirmative votes required.
This court has recognized mandamus as an appropriate remedy to compel a board
of elections to amend ballot language to comply with R.C. 3505.06. Cincinnati for
Pension Reform, 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, at ¶ 20, 68.
1. Percentage of votes necessary for passage
{¶ 17} Relators argue that the board’s approved ballot language for
Ordinance No. 222-20 is invalid because it incorrectly states: “A majority
affirmative vote is necessary for passage.” (Boldface sic.) Relators argue that
this language is inconsistent with the initiative passed by city electors in November
2020, which prohibits the city from authorizing, appropriating, or spending funds
or using city resources to facilitate demolition or construction at the Medina County
Courthouse for a five-year period, without “a majority vote of the qualified electors
who are residents of the City of Medina.” (Emphasis added.)
{¶ 18} Respondents do not dispute that passage of Ordinance No. 222-20
would authorize the expenditure of city funds and resources for “demolition or
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January Term, 2021
construction activity” at the Medina County courthouse. Therefore, because of the
“majority vote of the qualified electors” language in the voter-approved initiative,
relators contend that passage of Ordinance No. 222-20 requires an affirmative vote
of a majority of all qualified electors of the city, including electors who do not vote
on the issue at the May 4 election.
{¶ 19} The parties do not cite a case in which this court has decided what
the term “majority vote of the qualified electors” means in a context like this one.
But in Rike v. Floyd, 3 Ohio C.D. 359, 378, 6 Ohio C.C. 80 (1891), aff’d without
opinion, 53 Ohio St. 653, 44 N.E. 1136 (1895), an Ohio circuit court of appeals
decided a dispute relating to the meaning of the phrase “two-thirds of the members
of the whole society,” as used in a church’s constitution. Relying on cases
interpreting election laws from other states, the court of appeals held that the phrase
meant “two-thirds of those members who vote.” Id., citing Carroll Cty. Bd. of
Supervisors v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28 L.Ed. 517 (1884), and Walker
v. Oswald, 68 Md. 146, 11 A. 711 (1887).
{¶ 20} Rike is consistent with cases outside of Ohio in which courts have
interpreted language similar to what is at issue here to mean that a majority of votes
actually cast is sufficient for passage of a ballot measure. In Carroll Cty., the
United States Supreme Court interpreted a Mississippi constitutional provision that
required “assent of two-thirds of the qualified voters of [a] county” to approve
issuance of municipal railroad bonds. Id. at 561. Similar to relators here, the
appellants in Carroll Cty. argued that the “qualified voters” referred to in the
Mississippi Constitution meant “those who have been determined by the registrars
to have the requisite qualifications of electors * * * and not merely two-thirds of
such actually voting at an election for that purpose.” Id. Rejecting the argument,
the Supreme Court held:
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SUPREME COURT OF OHIO
The number and qualification of voters at such an election, is
determinable by its result, as canvassed, ascertained and declared by
the officers appointed to that duty, or as subsequently corrected by
a contest or scrutiny in a direct proceeding, authorized and instituted
for that purpose; it cannot be contested in any collateral proceeding,
either by inquiry as to the truth of the return, or by proof of votes
not cast, to be counted as cast against the proposition, unless the law
clearly so requires. * * * The assent of two-thirds of the qualified
voters of the county, at an election lawfully held for that purpose, to
a proposed issue of municipal bonds, intended by that instrument,
meant the vote of two-thirds of the qualified voters present and
voting at such election in its favor, as determined by the official
return of the result. The words “qualified voters” * * * must be
taken to mean not those qualified and entitled to vote, but those
qualified and actually voting. In that connection a voter is one who
votes, not one who, although qualified to vote, does not vote.
(Emphasis added.) Id. at 565. More than 50 years later, the Supreme Court likewise
noted that election laws providing for approval by a specified majority of an
electorate are generally construed to require only the consent of the specified
majority of those participating in the election. Virginian Ry. Co. v. Sys. Fedn. No.
40, 300 U.S. 515, 560, 57 S.Ct. 592, 81 L.Ed. 789 (1937). “Those who do not
participate ‘are presumed to assent to the expressed will of the majority of those
voting.’ ” Id., quoting Cass Cty. v. Johnston, 95 U.S. 360, 369, 24 L.Ed. 416(1877).
{¶ 21} Federal district courts considering the issue have followed suit. In
Euwema v. Todman, 323 F.Supp. 167 (D.V.I.1971), a Virgin Islands law authorized
the legislature to lower the legal voting age to 18 years old “if a majority of the
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January Term, 2021
qualified voters in the Virgin Islands approve in a referendum election held for that
purpose.” Id. at 169. In litigation to determine the results of a referendum on the
issue, the court adopted the view that the majority of “qualified voters” meant the
majority of the qualified voters who actually voted. Id. at 171. “To hold otherwise
would be to permit an indifferent minority to prevent a determination of issues and
thus impede or totally obstruct vital governmental processes and interests.” Id.
Accord Alaska Native Assn. of Oregon v. Morton, 417 F.Supp. 459, 467-468
(D.D.C.1974) (interpreting “a majority of all eligible Natives” as used in a federal
statute to mean a majority of those who voted on the issue).
{¶ 22} Courts of our sister states have decided the issue in the same manner.
For example, in Munce v. O’Hara, 340 Pa. 209, 16 A.2d 532 (1940), a statutory
provision allowed any county, city, borough, or township to discontinue the use of
voting machines if a proposition was approved “by a majority vote of its qualified
electors cast at any general election.” Id. at 210. The Pennsylvania Supreme Court
rejected the argument that the statute required a majority vote of all qualified
electors. “[T]he practical working of the elective system necessarily requires that
those who abstain from voting be considered as acquiescing in the result declared
by a majority of those who exercise the suffrage.” Id.; see also Wilcox v. Bd. of
Commrs. of Sinking Fund of Detroit, 262 Mich. 699, 705, 247 N.W. 923 (1933) (“it
is contrary to our system of government to count electors on a question who are not
sufficiently interested to vote”). Accordingly, the court in Munce adhered to the
rule that “where a statute provides for a vote of ‘a majority of the voters,’ ‘a
majority of the legal voters,’ ‘a majority of the qualified voters,’ etc., all that is
required is a majority of those actually voting, unless a contrary legislative intention
and purpose is very clearly expressed.” Munce at 211; see also Chapel v. Allen,
334 Mich. 176, 180-181, 54 N.W.2d 209 (1952); Cashman v. Entwistle, 213 Mass.
153, 155-156, 100 N.E. 58 (1912).
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{¶ 23} Relators do not offer an argument to discredit or distinguish the
foregoing line of case law, much less cite any contrary authority. Relators rely on
R.C. 3519.21, which states that all issues submitted to the electors are approved by
an affirmative vote of a majority of votes cast “[e]xcept as otherwise provided by
law,” and argue that the November 2020 initiative is a law that provides that more
than a simple majority of votes cast is required for passage of Ordinance No. 222-
20. But under the weight of authority discussed above, language stating “a majority
vote of the qualified electors” is not enough to depart from the general rule that a
simple majority of votes cast is all that is required for passage of a ballot issue. For
relators’ argument to hold sway, there must be a “very clearly expressed” legislative
intention that a greater number of affirmative votes is required. Munce at 211.
{¶ 24} In their reply brief, relators argue for the first time that the different
statutory definitions of “qualified elector” and “voter” in R.C. 3501.01 support their
position. R.C. 3501.01(N) defines “qualified elector” as “a person having the
qualifications provided by law to be entitled to vote” while R.C. 3501.01(O) defines
“voter” as “an elector who votes at an election.” Relators argue that this difference
is significant in determining the meaning of “a majority vote of the qualified
electors,” as used in the November 2020 initiative. However, as we noted
previously, we need not consider an argument raised for the first time in a reply
brief. Murray, 127 Ohio St.3d 280, 2010-Ohio-5846, 939 N.E.2d 157, at ¶ 58.
{¶ 25} Under these circumstances, the board’s decision to adhere to the
general rule requiring a majority affirmative vote to be sufficient for passage was
not an abuse of discretion or in clear disregard of applicable law.
2. Relators’ proposed amendments to the ballot language
{¶ 26} Relators also argue that the board abused its discretion and
disregarded applicable law by allowing ballot language that was inappropriately
persuasive and misleading. Informing the inquiry on this issue is R.C. 3505.06(E),
which provides:
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January Term, 2021
The questions and issues ballot need not contain the full text
of the proposal to be voted upon. A condensed text that will
properly describe the question, issue, or an amendment proposed by
other than the general assembly shall be used as prepared and
certified by the secretary of state for state-wide questions or issues
or by the board [of elections] for local questions or issues. If other
than a full text is used, the full text of the proposed question, issue,
or amendment together with the percentage of affirmative votes
necessary for passage as required by law shall be posted in each
polling place in some spot that is easily accessible to the voters.
{¶ 27} Relators complain that the phrase “so as to preserve the 1969
courthouse as a court building” is misleading because the 1969 portion of the
courthouse is not in jeopardy of being used for any other purpose. Relators further
contend that the phrase is designed to appeal to preservationist voters and is
therefore unlawfully persuasive language. Relators also argue that the board should
be compelled to add the “informational language” they have proposed.
{¶ 28} R.C. 3505.06(E) does not provide a basis for the mandamus relief
relators seek. The statute allows the board to place a summary of an issue—a
“condensed text”—on the ballot in lieu of the issue’s full text. When a board of
elections prepares a condensed text, it must not adopt language that is “in the nature
of a persuasive argument in favor of or against the issue.” Beck v. Cincinnati, 162
Ohio St. 473, 474-475, 124 N.E.2d 120 (1955); see also State ex rel. Kilby v.
Summit Cty. Bd. of Elections, 133 Ohio St.3d 184, 2012-Ohio-4310, 977 N.E.2d
590, ¶ 19. In this case, however, the board has not drafted a summary of Ordinance
No. 222-20 for the ballot in lieu of the full text. And relators have cited no case
standing for the proposition that the board must amend allegedly persuasive and
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misleading language when the full text of an issue is placed on the ballot. The
board therefore did not abuse its discretion or disregard applicable law in approving
the ballot language.
3. Title of the proposed ordinance
{¶ 29} Likewise unpersuasive is relators’ claim that the approved ballot
language for Ordinance No. 222-20 lacks a valid title. R.C. 3505.06(D) requires
only a “brief title descriptive of the question or issue below it” and provides
examples that would suffice, “such as ‘Proposed Constitutional Amendment,’
‘Proposed Bond Issue,’ ‘Proposed Annexation of Territory,’ [or] ‘Proposed
Increase in Tax Rate.’ ” The language approved by the board in this case contains
the title, “Proposed Ordinance City of Medina Ordinance No. 222-20.”
(Boldface sic.) By the statute’s plain terms, nothing more is required for the title
to comply with R.C. 3505.06(D).
{¶ 30} Relators rely on State ex rel. Esch v. Lake Cty. Bd. of Elections, 61
Ohio St.3d 595, 575 N.E.2d 835 (1991), for the proposition that the city’s version
of Ordinance No. 222-20 submitted to the board was invalid because it did not
include a title. Esch, however, is inapposite. That case involved an initiative
petition that was circulated without a title for the proposed ordinance, as required
by R.C. 731.31. Id. at 597. R.C. 731.31 applies to initiative petitions circulated for
signatures; it does not apply to the ballot measure submitted by the city in this case.
III. Conclusion
{¶ 31} Relators have failed to show that the secretary of state and the city
are proper respondents for the relief they seek. And they have further failed to show
that the board abused its discretion or disregarded applicable law in approving the
ballot language for Ordinance No. 222-20. We therefore deny the writ.
Writ denied.
O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
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January Term, 2021
KENNEDY, J., not participating.
_________________
Walker & Jocke Co., L.P.A., Patricia A. Walker, and Ralph E. Jocke, for
relators.
Dave Yost, Attorney General, and Heather L. Buchanan and Caitlyn
Nestleroth Johnson, Assistant Attorneys General, for respondent Secretary of State
Frank LaRose.
Baker, Dublikar, Beck, Wiley & Mathews, Tonya J. Rogers, James F.
Mathews, and Gregory A. Beck; and Gregory A. Huber, Medina Law Director, for
respondent city of Medina.
S. Forrest Thompson, Medina County Prosecuting Attorney, and Michael
K. Lyons and Samuel A. Sheffield, Assistant Prosecuting Attorneys, for respondent
Medina County Board of Elections.
_________________
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