Crane v. Perry County Board of Elections

[Cite as Crane v. Perry Cty. Bd. of Elections, 107 Ohio St. 3d 287, 2005-Ohio-6509.]
CRANE, APPELLANT, v. PERRY COUNTY BOARD
OF ELECTIONS ET AL., APPELLEES.
[Cite as Crane v. Perry Cty. Bd. of Elections,
107 Ohio St. 3d 287, 2005-Ohio-6509.]
Election contest — Voting irregularities — Digitized comparison signatures
missing from signature book — Voters permitted to vote without signing
— Signatures compared after election — Failure to prove that
irregularities affected outcome of election.
(No. 2005-0397 ─ Submitted September 20, 2005 ─ Decided
December 28, 2005.)
APPEAL from the Court of Common Pleas of Perry County,
No. 04-CV-00403.
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Per Curiam.
{¶ 1} This is an appeal from a judgment denying an election contest.
{¶ 2} On November 2, 2004, an election was held for the office of
Auditor of Perry County, Ohio. The candidates were the incumbent auditor ─
appellant, William Crane ─ and appellee Larry Householder. On November 22,
2004, appellee Perry County Board of Elections certified that Householder had
defeated Crane by a vote of 7,523 to 7,246, a margin of 277 votes. Upon Crane’s
request, the board of elections conducted a recount. On December 8, 2004, the
board again declared Householder the duly elected auditor by the same margin of
277 votes.
{¶ 3} In December 2004, Crane filed a petition in the Perry County
Court of Common Pleas contesting the election. Crane named the board and
Householder contestees and requested that the election be set aside and declared
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invalid. Crane claimed that a substantial number of persons cast votes illegally,
including voters who did not sign the signature book and persons who were
permitted to vote after signing the signature book although the signature book did
not contain their digitized signatures.
{¶ 4} In January 2005, the common pleas court held a hearing on the
election contest. No party requested a court reporter for the hearing, but an
audiotape was made of the proceeding.
{¶ 5} The parties agree on and the court credited the following
description of the proper voting procedure to be followed on election day. See
R.C. 3505.18. Prospective voters in Perry County give their names to a poll
worker, who writes the names in the poll book. The prospective voter must next
sign his or her name in the signature book. The signature line is to the right of the
person’s digitized signature, which is taken from the board’s official voter-
registration records. A poll worker then verifies that the person’s signature
matches his or her digitized signature. If the signatures match, the poll worker
issues a regular ballot to the voter and notes the ballot-stub number in both the
signature and poll books. Poll workers should not issue a regular ballot to a voter
without having the voter sign the signature book next to the voter’s digitized
signature. If a registered voter is listed in the signature book without a digitized
signature, the poll workers should issue a provisional ballot rather than a regular
ballot.
{¶ 6} At the hearing, Troy Bratz testified on behalf of Crane that he
reviewed the Perry County poll books and signature books for the November 2,
2004 election. According to Bratz, he counted a total of 335 ballots cast without a
digitized signature of the voter available for comparison, i.e., the signature books
contained 335 signatures of persons that had no accompanying digitized
signatures. Bratz further testified that there were a total of 362 missing signatures
of people who showed up to vote on election day. He arrived at the figure by
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subtracting the total of signatures in the signature books from the sum of the
regular voters listed in the poll books. Included in this figure were 204 ballots
with recorded stub numbers issued to voters listed in the poll books who did not
sign a signature book. Bratz noted that if a person did not sign the signature book
and no stub number was written in the book for that person, “you can’t tell if the
person voted or not” by looking at the signature book.
{¶ 7} Regarding the 335 ballots specified by Bratz as the number cast
without a digitized signature available for comparison, Diane Pullman, the clerk
of the board of elections, testified that before the hearing, she verified that all but
60 of the signatures of persons casting these ballots matched the voters’ official
signatures on file with the board. Pullman had not had time to check the
remaining 60 signatures. Crane did not specifically object to Pullman’s
testimony, and he cross-examined her.
{¶ 8} Following the trial, Crane recalculated the total number of persons
with missing signatures as 343 instead of 362. The difference evidently resulted
from the board’s posttrial provision of missing pages from the signature books.
{¶ 9} In February 2005, the common pleas court entered a judgment
denying Crane’s election contest. The court determined that the 204 ballots with
no corresponding signature and the 60 unverified ballots should be rejected as
irregular. The court concluded that because this 264-ballot total was less than the
277-vote margin of victory for Householder, Crane was not entitled to invalidate
the election.
{¶ 10} This cause is now before us upon Crane’s appeal as of right under
R.C. 3515.15.
Oral Argument
{¶ 11} Appellant requests oral argument. We deny appellant’s request for
the following reasons.
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{¶ 12} First, despite appellant’s citation of R.C. 3515.15, that statute does
not require oral argument in an appeal to this court in an election contest.
{¶ 13} Second, “ ‘S.Ct.Prac.R. IX(2) does not require oral argument in
this appeal, and the parties’ briefs are sufficient to resolve this case.’ ” State ex
rel. Pontillo v. Pub. Emp. Retirement Sys. Bd., 98 Ohio St. 3d 500, 2003-Ohio-
2120, 787 N.E.2d 643, ¶ 20, quoting State ex rel. Stacy v. Batavia Local School
Dist. Bd. of Edn., 97 Ohio St. 3d 269, 2002-Ohio-6322, 779 N.E.2d 216, ¶ 13.
{¶ 14} Third, this case does not raise constitutional questions, issues of
legal or factual complexity, or a conflict between appellate courts. See State ex
rel. WBNS TV, Inc. v. Dues, 101 Ohio St. 3d 406, 2004-Ohio-1497, 805 N.E.2d
1116, ¶ 17-19.
{¶ 15} Fourth, notwithstanding appellant’s claims, the issues raised are
not necessarily of great public interest, as they center around factual disputes. As
mentioned previously, the parties’ briefs are sufficient for us to resolve the issues
raised.
{¶ 16} Based on the foregoing, we deny appellant’s request for oral
argument.
Election Contest: Applicable Standards
{¶ 17} Crane contests the November 2, 2004 election for the office of the
Auditor of Perry County. As we observed in In re Election Contest of
Democratic Primary Election Held May 4, 1999 for Clerk, Youngstown Mun.
Court (2000), 88 Ohio St. 3d 258, 262-263, 725 N.E.2d 271, we are guided by the
foregoing general standards:
{¶ 18} “Initially, ‘courts should be very reluctant to interfere with
elections, except to enforce rights or mandatory or ministerial duties as required
by law.’ State ex rel. Taft v. Franklin Cty. Court of Common Pleas (1998), 81
Ohio St. 3d 480, 481, 692 N.E.2d 560, 562; MacDonald v. Bernard (1982), 1 Ohio
St.3d 85, 86, 1 OBR 122, 123, 438 N.E.2d 410, 411-412.
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{¶ 19} “Additionally, every reasonable presumption should be indulged in
favor of upholding the validity of an election and against ruling it void. Copeland
v. Tracy (1996), 111 Ohio App. 3d 648, 655, 676 N.E.2d 1214, 1218; Beck v.
Cincinnati (1955), 162 Ohio St. 473, 475, 55 Ohio Op. 373, 374, 124 N.E.2d 120, 122.
{¶ 20} “Moreover, an election result will not be disturbed unless the
evidence establishes that the result was contrary to the will of the electorate.
Portis v. Summit Cty. Bd. of Elections (1993), 67 Ohio St. 3d 590, 592, 621 N.E.2d
1202, 1203; Mehling v. Moorehead (1938), 133 Ohio St. 395, 408, 11 Ohio Op. 55,
60, 14 N.E.2d 15, 21.
{¶ 21} “In sum, ‘[t]he message of the established law of Ohio is clear:
our citizens must be confident that their vote, cast for a candidate or an issue, will
not be disturbed except under extreme circumstances that clearly affect the
integrity of the election.’ (Emphasis added.) In re Election of Nov. 6, 1990 for
the Office of Atty. Gen. of Ohio (1991), 58 Ohio St. 3d 103, 105, 569 N.E.2d 447,
450; State ex rel. Billis v. Summers (1992), 76 Ohio App. 3d 848, 850, 603 N.E.2d
410, 411.”
{¶ 22} In order to prevail in his election contest, Crane “had to establish
by clear and convincing evidence that one or more election irregularities occurred
and that the irregularity or irregularities affected enough votes to change or make
uncertain the result of the * * * election.” Maschari v. Tone, 103 Ohio St. 3d 411,
2004-Ohio-5342, 816 N.E.2d 579, ¶ 21; see, also, Moss v. Bush, 104 Ohio St. 3d
1443, 2004-Ohio-7119, 819 N.E.2d 1125 (Moyer, C.J., in chambers) (“Clear and
convincing evidence is required to invalidate a contested election”). “Clear and
convincing evidence” is “ ‘that measure or degree of proof which is more than a
mere “preponderance of evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will provide in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’ ” Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St. 3d 121,
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122, 568 N.E.2d 1222, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 53
Ohio Op. 361, 120 N.E.2d 118, paragraph three of the syllabus.
Irregularities
{¶ 23} Crane claims two irregularities: (1) the lack of digitized signatures
in the Perry County signature books and (2) voters who did not sign their names
in any signature book. Digitized signatures or original registration forms and
electors’ signatures are required by R.C. 3505.18, which mandates the following
voting procedure:
{¶ 24} “When an elector appears in a polling place to vote he shall
announce his full name and address to the precinct election officials. He shall
then write his name and address at the proper place in the poll lists or signature
pollbooks provided therefor * * *.
{¶ 25} “The elector’s signature in the poll lists or signature pollbooks
shall then be compared with his signature on his registration form or a digitized
signature list * * * and if, in the opinion of a majority of the precinct election
officials, the signatures are the signatures of the same person, the clerks shall
enter the date of the election on the registration form * * *. If the right of the
elector to vote is not then challenged, or, if being challenged, he establishes his
right to vote, he shall be allowed to proceed into the voting machine. If voting
machines are not being used in that precinct, the judge in charge of ballots shall
then detach the next ballots to be issued to the elector from Stub B attached to
each ballot, leaving Stub A attached to each ballot, hand the ballots to the elector,
and call his name and the stub number on each of the ballots. The clerk shall
enter the stub numbers opposite the signature of the elector in the pollbook. The
elector shall then retire to one of the voting compartments to mark his ballots. No
mark shall be made on any ballot which would in any way enable any person to
identify the person who voted the ballot.”
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{¶ 26} “Election laws are mandatory and require strict compliance.”
Moss v. Bush, 104 Ohio St. 3d 1429, 2004-Ohio-6794, 819 N.E.2d 711
(O’Connor, J., in chambers); State ex rel. Steele v. Morrissey, 103 Ohio St. 3d 355,
2004-Ohio-4960, 815 N.E.2d 1107, ¶ 33.
{¶ 27} Therefore, as the trial court correctly concluded, Crane established
by clear and convincing evidence that the lack of digitized signatures in some of
the signature books and the failure to have some of the prospective voters sign
their names in these books constituted election irregularities.
Effect of Irregularities: Contestee’s Submission of
Evidence on Lack of Digitized Signatures
{¶ 28} Crane asserts that once he established that an irregularity occurred
because the signature books lacked 335 digitized signatures during the November
2, 2004 election and that this total exceeded Householder’s margin of victory, the
trial court was required to set aside the election. Crane contends that the trial
court erred in crediting the testimony of the board’s clerk. The clerk testified that
she verified all but 60 of the signatures for which there was no digitized signature
in the signature book by comparing them to signatures on file with the board.
Crane essentially claims that a contestee in an election contest is precluded from
submitting evidence to rebut a contestor’s claim that an irregularity or
irregularities affected enough votes to change or make uncertain the result of the
election.
{¶ 29} Crane’s contention lacks merit. Contestees in election contests
have the right to present evidence in rebuttal. For example, in McMillan v.
Ashtabula Cty. Bd. of Elections (1993), 68 Ohio St. 3d 31, 35, 623 N.E.2d 43, we
noted that although defacements of voting-device sheets constituted an election
irregularity, the contestor failed to demonstrate, by clear and convincing evidence,
how many votes were actually affected by the irregularity or how the irregularity
might have affected the outcome of the election because, in part, “witnesses
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testified that they were able to cast a write-in vote for [the contestor] despite
defacements on voting device sheets.”
{¶ 30} Similarly, in Election of Nov. 6, 1990 for the Office of Atty. Gen. of
Ohio, 58 Ohio St. 3d at 110-113, 569 N.E.2d 447, we credited testimony presented
by the contestees to determine that the contestor did not establish by clear and
convincing evidence that an election irregularity, namely improper ballot rotation,
changed or made uncertain the results of the election.
{¶ 31} Moreover, the election-contest statutes envision the opportunity to
submit testimony. See R.C. 3515.12 (“The court with which a petition to contest
an election is filed may summon and compel the attendance of witnesses * * *. *
* * The court may require any election officer to answer any questions pertinent
to the issue relating to the conduct of the election or the counting of the ballots
and the making of the returns. Any witness who voted at the election may be
required to answer touching his qualification as a voter and for whom he voted”);
In re Election on the Issue of Zoning the Southeasterly Section of Swanton Twp.
(1982), 2 Ohio St. 3d 37, 39, 2 OBR 581, 442 N.E.2d 758, fn. 1 (“There is no
question that contestors-appellants had the ability to call as witnesses any voter
ineligible to vote on the zoning issue who might have done so [under R.C.
3515.12]”).
{¶ 32} Furthermore, although Crane contends that the trial court erred in
permitting the clerk’s testimony because it was defective, he never specifically
objected to her testimony at trial and did not move to strike it. Crane thereby
waived any objection to the testimony on appeal. Evid.R. 103(A)(1); State ex rel.
Chuvalas v. Tompkins (1998), 83 Ohio St. 3d 171, 173, 699 N.E.2d 58
(“[Appellant] waived any objection to these affidavits by not moving to strike
them or otherwise specifying their alleged impropriety”). Crane’s claims that he
did object are based upon a January 2005 filing of written objections and his oral
objection at trial during testimony of one of Householder’s witnesses. But
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Crane’s written objection was specifically directed to Householder’s calling
witnesses “to attest as to whether they voted on November 2, 2004 in Perry
County,” and his trial objection also related to Householder’s calling witnesses to
testify about whether they had voted in the election. He did not specifically
object to the testimony of the clerk, who was the board’s witness. And as
discussed previously, the court was justified in allowing the board to submit
rebuttal evidence in the election contest.
{¶ 33} Therefore, the trial court properly credited the board’s clerk’s
testimony that she had verified all but 60 signatures of the 335 voters for whom
no digitized signature was contained in the signature books on election day.
Effect of Irregularities: Missing Signatures
{¶ 34} Crane further contends that the trial court erred in invalidating only
204 votes of persons who did not sign any signature book instead of invalidating
an additional 139 votes – a total of 343 – of other persons who did not sign the
signature book. The trial court determined that Crane had failed to establish by
clear and convincing evidence that the irregularity affected more than 204 votes:
{¶ 35} “[I]n question * * * are the ballots given out to voters who did not
sign and thus are unproven. These number 343 by contestor’s count and 204 by
his opponent’s. The testimony of the expert tended to favor the latter number
because absentee, spoiled ballots and others may have been included in the 343.
Since it is contestor’s burden to show by clear and convincing evidence proof of
his claimed number and since he has not done so, the court accepts 204 as the
number of votes cast without first signing in on the signature book.”
{¶ 36} Crane challenges the trial court’s finding, but he did not request a
court reporter at trial, and his posttrial transcription of the trial from the court’s
audiotape of the proceedings is replete with the notation “word or words
inaudible.” In fact, during Bratz’s testimony and the related court exchanges,
there are well over 200 of these “inaudible” notations in the transcript.
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{¶ 37} “When portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court has nothing to
pass upon and thus, as to those assigned errors, the court has no choice but to
presume the validity of the lower court’s proceedings, and affirm.” Knapp v.
Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199, 15 O.O.3d 218, 400
N.E.2d 384; see, also, Painter and Dennis, Ohio Appellate Practice (2005),
Section 4:9 (“If the appellant fails to ensure that the transcript includes all
relevant evidence pertaining to the issues raised on appeal, the appellate court will
assume that the evidence (omitted from the transcript) supported the trial court’s
factual findings”).
{¶ 38} Although these authorities are generally premised on App.R. 9,
which is not directly applicable in election-contest appeals to this court, see
App.R. 1(A),1 we apply them by analogy here, where the trial court had inherent
authority to settle the record. In fact, in Crane’s notice regarding release of
audiotapes of the election-contest proceeding, he expressly stated that the trial
court had advised him that “due to the placement of the microphones in the
courtroom, portions of the tape recordings are of poor quality which may hamper
transcription” but that Crane “will seek assistance from [the trial] Court if
necessary.” Evidently, Crane did not seek such assistance. Nor did Crane seek to
supplement the record pursuant to S.Ct.Prac.R. V(6).
{¶ 39} Under these circumstances, we presume that the trial court’s
conclusion that Crane had not established the invalidity of an additional 139 votes
was supported by the evidence submitted at trial. Knapp.
{¶ 40} Moreover, the portion of Bratz’s testimony that was transcribed
included his statement that if a prospective voter did not sign the book and there is
no ballot stub number written in the books, “you can’t tell if the person voted or
1. App.R. 1(A) provides, “These rules govern procedure in appeals to courts of appeals from trial
courts of record in Ohio.” (Emphasis added.)
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not” by looking at the signature book. Thus, Crane’s claim of an additional 139
invalid votes lacks merit because there is no clear and convincing evidence that
those persons ever voted. These 139 possible votes are distinguishable from the
204 votes of persons not signing the book but for whom a ballot stub number was
issued. See McMillan, 68 Ohio St. 3d at 35, 623 N.E.2d 43 (“[contestor] has failed
to demonstrate, by clear and convincing evidence, how many votes were actually
affected by the irregularity”).
Conclusion
{¶ 41} Based on the foregoing, the trial court correctly concluded that
Crane failed to establish by the required clear-and-convincing standard that the
irregularities affected enough votes to make uncertain or change the result of the
November 2, 2004 election for Perry County Auditor. Crane has not established
“extreme circumstances that clearly affect the integrity of the election.” In re
Election of Nov. 6, 1990 for the Office of Atty. Gen. of Ohio, 58 Ohio St. 3d at 105,
569 N.E.2d 447. The declared result has not been proven to be contrary to the
will of the electorate. Portis v. Summit Cty. Bd. of Elections (1993), 67 Ohio
St.3d 590, 592, 621 N.E.2d 1202. Accordingly, we affirm the judgment of the
trial court.
Judgment affirmed.
LUNDBERG STRATTON, O’CONNOR, O’DONNELL and LANZINGER, JJ.,
concur.
PFEIFER, J., concurs in judgment only.
MOYER, C.J., and RESNICK, J., not participating.
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The Brunner Firm Co., L.P.A., Rick L. Brunner, Michael S. Kolman, and
Rebecca L. Egelhoff, for appellant.
Chester, Willcox & Saxbe, L.L.P., and Donald C. Brey, for appellee Perry
County Board of Elections.
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Thompson Hine, L.L.P., William C. Wilkinson, and Craig A. Calcaterra,
for appellee Larry Householder.
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