State ex rel. Crowl v. Delaware Cty. Bd. of Elections (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Crowl v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2015-Ohio-4097.]
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SLIP OPINION NO. 2015-OHIO-4097THE STATE EX REL. CROWL v. DELAWARE COUNTY BOARD OF ELECTIONS.
Elections—Mandamus—Nominating petition—Action to compel board of elections
to place relator's name on the ballot—Writ granted.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Crowl v. Delaware Cty. Bd. of Elections, Slip
Opinion No. 2015-Ohio-4097.]
(No. 2015-1505—Submitted September 30, 2015—Decided October 2, 2015.)
IN MANDAMUS.
________________
Per Curiam.
{¶ 1} Relator, Douglas Crowl, seeks a writ of mandamus compelling
respondent, the Delaware County Board of Elections, to place his name on the
November 3, 2015 general-election ballot as a candidate for Porter Township
trustee. We grant the writ.
SUPREME COURT OF OHIO
Background
{¶ 2} Crowl gathered signatures on a nominating petition to run for the
position of Porter Township trustee in the November 2015 general election. He
timely filed the petition, which contained 28 signatures, with the board of elections.
{¶ 3} The board’s staff marked eight signatures as not genuine. The board
then determined that Crowl’s petition did not have enough valid signatures to
qualify for the ballot.
{¶ 4} Crowl objected. On September 2, 2015, the board held a hearing, at
which Crowl presented affidavits from each of the eight signatories, attesting that
the signatures marked “not genuine” were in fact genuine.
{¶ 5} The board voted three to one to deny the protest.
Legal analysis
{¶ 6} R.C. 3501.011(C) provides that an elector’s “legal mark,” for
purposes of signing election documents, “shall be considered to be the mark of that
elector as it appears on the elector’s voter registration record.” In the exercise of
its duties under R.C. 3501.11(K), the board determined that the eight petition
signatures were invalid because they did not match the signatures on those voters’
registration forms.
{¶ 7} The board argues that R.C. 3501.011(C) makes a nonmatching
signature per se invalid. The board contends that it has no discretion to accept a
nonmatching signature on a nominating petition, even if the signatories come
forward to authenticate their signatures.
{¶ 8} In State ex rel. Scott v. Franklin Cty. Bd. of Elections, 139 Ohio St.3d
171, 2014-Ohio-1685, 10 N.E.3d 697, ¶ 19, we confronted a similar issue, and, in
accordance with the evidence presented as to the authenticity of the questioned
signature, directed the board to count it as valid.
{¶ 9} The “Nominating Petition and Statement of Candidacy for Township
Office” used by Crowl, which was prescribed by the secretary of state, Form No.
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January Term, 2015
3-R (06-10), provides a space for the elector's “signature.” Eight voters did
precisely what the form instructed them to do: they provided a signature. The form
did not ask the electors to provide his or her “legal mark,” nor did it alert them that
a mismatch could invalidate their signatures.
{¶ 10} Boards of elections have a statutory duty to certify the validity of
petitions. R.C. 3501.11(K). This court has long held that these county boards must
confirm that signatures are genuine. State ex rel. Yiamouyiannis v. Taft, 65 Ohio
St.3d 205, 209, 602 N.E.2d 644 (1992). The design of Form No. 3-R strongly
suggests that the secretary’s interpretation of R.C. 3501.1 l(K)—to which we
accord great deference—obliges the boards to confirm the authenticity of
signatures, but it does not impose on them the responsibility to enforce R.C.
3501.011 by policing petition signatures for nonconforming legal marks. See Scott
at ¶ 27 (Kennedy, J., concurring in judgment only).
{¶ 11} In this case, the board of elections admitted that the eight signatures
in question were genuine. Because the board admitted that the signatures were
genuine, it abused its discretion when it denied Crowl a place on the ballot.
Writ granted.
PFEIFER, O’DONNELL, and O’NEILL, JJ., concur.
O’CONNOR, C.J., and FRENCH, J., concur in judgment only.
LANZINGER, J., dissents.
_________________________
O’CONNOR, C.J., concurring.
{¶ 12} I concur in the judgment to grant a writ of mandamus on the
authority of Scott v. Franklin Cty. Bd. of Elections, 139 Ohio St.3d 171, 2014-Ohio-
1685, 10 N.E.3d 697. I write separately to highlight concerns that the two cases
raise.
{¶ 13} R.C. 3513.263 creates a statutory mechanism through which an
elector may challenge the sufficiency of signatures on or the validity of a
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SUPREME COURT OF OHIO
candidate’s petition. However, the Revised Code does not appear to contain a
comparable provision for a candidate to challenge the disqualification of the
petition; certainly the parties have not pointed us to any provision. Nevertheless,
boards of elections have permitted candidates to appear at board meetings to present
evidence and argument in opposition to disqualifications. Our decision in Scott was
an effort to make those appearances meaningful: if undisputed evidence shows a
nonmatching signature to be genuine, then the board must count the signature even
if it does not match the elector’s legal mark on the voter-registration record.
{¶ 14} Ultimately, however, this is a problem in need of a statutory remedy
by the General Assembly. Boards of elections need guidance on when to invalidate
mismatched signatures and what evidence will suffice to validate a signature that
does not match the signatory’s legal mark. This clarification can come only from
the General Assembly.
{¶ 15} The General Assembly should also consider whether voters should
be required to update their legal mark on their voter-registration records or whether
voters should be allowed to sign the voter-registration record both in cursive and
by printing.
{¶ 16} But until these clarifications by the General Assembly occur, the
solution mapped out in Scott remains the governing law, and I therefore concur in
the judgment.
FRENCH, J., concurs in the foregoing opinion.
_________________________
LANZINGER, J., dissenting.
{¶ 17} Because respondent, the Delaware County Board of Elections, could
not have abused its discretion when it was merely following a statutory mandate, I
respectfully dissent. I would deny the writ, and I would overrule State ex rel. Scott
v. Franklin Cty. Bd. of Elections, 139 Ohio St.3d 171, 2014-Ohio-1685, 10 N.E.3d
697, on which relator, Douglas Crowl, relies.
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January Term, 2015
{¶ 18} Ohio’s election laws require strict compliance. State ex rel. Commt.
for the Referendum of Lorain Ordinance No. 77-01, 96 Ohio St.3d 308, 2002-Ohio-
4194, 774 N.E.2d 239, ¶ 49. An elector is required to sign a petition using his or
her “legal mark,” which is defined as “the mark of that elector as it appears on the
elector’s voter registration record.” R.C. 3501.011(A) and (C). A board of
elections’ duty is to verify the authenticity of an elector’s legal mark on a petition
by ensuring that it matches the legal mark on the elector’s voter-registration card.
R.C. 3501.11(K); State ex rel. Yiamouyiannis v. Taft, 65 Ohio St.3d 205, 209, 602
N.E.2d 644 (1992). The statute does not require the board to hold an evidentiary
hearing, nor does it provide any discretion to accept a signature that does not match
an elector’s legal mark as defined by R.C. 3501.011(A). To the extent that Scott
holds otherwise, the decision should be overruled.
{¶ 19} The Delaware County Board of Elections did not abuse its discretion
in complying with R.C. 3501.011 and 3501.11 when it rejected petition signatures
that did not match the voters’ legal marks. See State ex rel. Greene v. Montgomery
Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 20,
23. I respectfully dissent and would deny the writ.
_________________________
Douglas P. Crowl, pro se.
Carol Hamilton O’Brien, Delaware County Prosecuting Attorney, and
Christopher D. Betts and Andrew J. King, Assistant Prosecuting Attorneys, for
respondent.
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