State ex rel. Ferarra v. Trumbull 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. Ferrara v. Trumbull Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-3156.]
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-3156THE STATE EX REL. FERRARA v. TRUMBULL COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ferrara v. Trumbull Cty. Bd. of Elections, Slip
Opinion No. 2021-Ohio-3156.]
Elections—Mandamus—Writ of mandamus sought to compel board of elections to
certify relator’s name to ballot as candidate for township trustee—Part-
petition rejected in its entirety because relator had indicated an incorrect
number of signatures in his circulator’s statement—Board of elections
ordered to determine number of valid signatures on rejected part-petition
and if appropriate, certify relator’s name to the ballot—Rust v. Lucas Cty.
Bd of Elections overruled—Limited writ granted.
(No. 2021-1050—Submitted September 8, 2021—Decided September 14, 2021.)
IN MANDAMUS.
__________________
DEWINE, J.
SUPREME COURT OF OHIO
{¶ 1} The Trumbull County Board of Elections is attempting to prevent
Mark Ferrara’s name from appearing on the ballot for Brookfield Township trustee.
The board rejected an entire part-petition submitted by Ferrara because the part-
petition contained one signature more than Ferrara had indicated. With the
signatures from that part-petition invalidated, Ferrara fell short of the 25 signatures
he needed. Ferrara seeks a writ of mandamus ordering the board of elections to
certify his name to the ballot. We grant Ferrara a limited writ: we order the board
of elections to determine the number of valid signatures on the part-petition at issue
and, if appropriate, to certify Ferrara’s name to the ballot.
I. BACKGROUND
{¶ 2} To appear on the ballot, Ferrara must amass 25 qualifying signatures
of nomination. See R.C. 3513.253. The signatories must be electors residing in
Brookfield Township who are registered to vote. See R.C. 3501.01(N).
Nominating electors sign part-petitions. Each part-petition contains numbered cells
in which electors provide their signatures and additional information. Below the
signature cells, under the heading “Circulator Statement,” is a blank for the
circulator to indicate the number of signatures on the part-petition.
{¶ 3} Ferrara timely submitted a nominating petition that consisted of two
part-petitions. The first part-petition contained 20 signatures, as he accurately
indicated. The Trumbull County Board of Elections reviewed that petition and
found 16 of those signatures to be valid.
{¶ 4} Ferrara’s trouble arose with his second part-petition. Ferrara
submitted 17 signatures, but on the blank space instructing him to indicate the
number of signatures he wrote “16.” The circulator statement signed by Ferrara
further indicated that he “witnessed the affixing of every signature; that all signers
were to the best of [his] knowledge and belief qualified to sign; and that every
signature is to the best of [his] knowledge and belief the signature of the person
whose signature it purports to be * * *.” Ferrara attests that the indication that the
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part-petition contained 16 rather than 17 signatures was simply an error resulting
from an inadvertent miscount, and no evidence has been submitted to the contrary.
Nevertheless, based on Ferrara’s counting mistake, the board of elections
invalidated the entire part-petition.
{¶ 5} The director of the Trumbull County Board of Elections, Stephanie
Penrose, informed Ferrara that the board unanimously rejected his nominating
petition “due to undercounting of signatures on the circulator’s statement.” Ferrara
promptly requested reconsideration. Citing the Ohio Secretary of State’s Election
Official Manual, the board of elections unanimously declined to reconsider his part-
petition. Penrose explained, “The Election Official Manual is very clear that a part-
petition must be invalidated in the event of undercounting on a circulator
statement.”
{¶ 6} Ferrara filed an original action in this court seeking a writ of
mandamus to compel the board of elections to place his name on the November
election ballot. We set an expedited briefing schedule sua sponte. 164 Ohio St.3d
1414, 2021-Ohio-2897, __N.E.3d __.
II. ANALYSIS
{¶ 7} “A writ of mandamus is an extraordinary remedy.” State ex rel.
Brown v. Ashtabula Cty. Bd. of Elections, 142 Ohio St.3d 370, 2014-Ohio-4022, 31
N.E.3d 596, ¶ 11. The writ will issue only if the relator demonstrates a clear legal
right to relief, a clear legal duty on the part of the board to provide it, and the lack
of an adequate remedy in the ordinary course of the law. State ex rel. Waters v.
Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. The parties agree
that, with the November election drawing near, the third requirement is satisfied.
See also id. When analyzing the first two requirements, the inquiry is whether the
board “ ‘engaged in fraud, corruption, or abuse of discretion, or acted in clear
disregard of applicable legal provisions.’ ” Id. at ¶ 7, quoting Whitman v. Hamilton
Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11.
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A. R.C. 3501.38 Does Not Authorize Invalidation of Ferrara’s Part-Petition
{¶ 8} The board of elections cites R.C. 3501.38(E)(1) and the guidance it
received from the secretary of state interpreting that provision as the basis for its
decision to toss out Ferrara’s entire part-petition due to his undercount. R.C.
3501.38(E)(1) provides:
On each petition paper, the circulator shall indicate the
number of signatures contained on it, and shall sign a statement
made under penalty of election falsification that the circulator
witnessed the affixing of every signature, that all signers were to the
best of the circulator’s knowledge and belief qualified to sign, and
that every signature is to the best of the circulator’s knowledge and
belief the signature of the person whose signature it purports to be
or of an attorney in fact acting pursuant to section 3501.382 of the
Revised Code.
We have said that the requirements of R.C. 3501.38(E)(1) “are mandatory and
require strict compliance,” State ex rel. Commt. for Referendum of Lorain
Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections, 96 Ohio St.3d 308, 2002-
Ohio-4194, 774 N.E.2d 239, ¶ 49. And “a board of elections shall accept any
petition” that complies with the election laws. R.C. 3501.39(A).
{¶ 9} The question is whether an entire part-petition should be invalidated
when a circulator “indicate[s]” the number of signatures but makes a minor,
inadvertent mistake in recording the count of signatures on the ballot. We hold that
it should not be.
{¶ 10} As an initial matter, there is nothing in the statutory text that requires
a part-petition to be invalidated for such a mistake. R.C. 3501.38(E)(1) requires
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the circulator to “indicate” the number of signatures, but it does not state that a
petition should be invalidated if the indication is incorrect.
{¶ 11} Moreover, R.C. 3501.38 excludes a circulator’s “indicat[ion]” of the
number of signatures from its oath requirement. The statute requires a circulator to
attest under penalty of election falsification that he witnessed every signature and
that to the best of the circulator’s knowledge, every signatory was qualified to sign
and who the person purports to be. R.C. 3501.38(E)(1). Ferrara met these
requirements by attesting that he had witnessed “the affixing of every signature”
and that to the best of his knowledge and belief, “all signers” were qualified to sign
and “every signature” was the signature of the person it purports to be. (Emphasis
added.)
{¶ 12} In contrast, the statute contains no oath requirement for the number
of signatures. The circulator is simply told to indicate the number of signatures.
R.C. 3501.38(E)(1). Thus, there is nothing in the statute that mandates that
Ferrara’s part-petition be invalidated.
{¶ 13} The board of elections seeks to overcome the lack of statutory
support for its position by relying on our prior decision in Rust v. Lucas Cty. Bd of
Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, and on the
principle that the judiciary should defer to the secretary of state’s interpretation of
the statute.
{¶ 14} In Rust, we dealt with facts that were similar to those before us today.
There, the board of elections rejected entire part-petitions that, like Ferrara’s,
contained more signatures than the circulator had indicated. Id. at ¶ 3. Rust
provided an explanation for the undercount, saying that he had not included in his
count signatures that he knew to be provided by unqualified people. Id. at ¶ 14.
Nonetheless, the court found that the board had not abused its discretion in rejecting
the entire part-petitions. It reached this conclusion by deferring to guidance
provided by the secretary of state “instruct[ing] boards of elections that R.C.
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3501.38 requires 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.
{¶ 15} Despite our holding in Rust, we have not always required a part-
petition to be invalidated when the circulator has made a mistake in indicating the
number of signatures. For example, in State ex rel. Schwarz v. Hamilton Cty. Bd.
of Elections, 173 Ohio St. 321, 181 N.E.2d 888 (1962), we held that a writ of
mandamus should issue ordering a candidate to be placed on the ballot after the
board of elections rejected one of the candidate’s part-petitions because it contained
one more signature than had been indicated. We deemed the board of elections’
decision to reject the petition “too technical, unreasonable and arbitrary.” Id. at
323; see also Ohio Mfrs.’ Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio
St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, ¶ 19 (“In cases in which the
circulator’s statement slightly undercounts the signatures, this court has ordered the
entire part-petition counted, so long as there is no indication of fraud or material
misrepresentation” [emphasis in original]).
{¶ 16} Similarly, in State ex rel. Citizens for Responsible Taxation v. Scioto
Cty. Bd. of Elections, 65 Ohio St.3d 167, 602 N.E.2d 615 (1992), we held that the
board of elections erred in rejecting part-petitions on which the circulator had
indicated one more signature than the part-petition actually contained. In doing so,
we noted that our prior caselaw “implies that arithmetic error will be tolerated, but
only if the error does not promote fraud.” Id. at 172. We also looked to guidance
from the secretary of state instructing boards of elections “to reject an entire part-
petition only where the circulator states a number ‘less than the total number of
uncrossed out signatures’ (emphasis sic) and to, in effect, overlook discrepancies
in the number of signatures ‘in all other instances.’ ” Id.
{¶ 17} The guidance provided by the secretary of state is as confusing, and
inconsistent, as our caselaw. The secretary instructs boards of elections to treat
undercounts differently than overcounts. According to the secretary of state, if the
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circulator undercounts the number of signatures, “then the board must reject the
entire part-petition.” Ohio Secretary of State, Election Official Manual, Chapter
11, Section 1.03, p. 11-6 to 11-7. For authority in support of that directive, the
manual cites our decision in Rust. Id. at p. 11-7, n. 16. In the case of an overcount,
by contrast, “the board must review the validity of each signature as usual” as long
as “ ‘there is no indication of fraud or material misrepresentation.’ ” Id. at p. 11-7,
quoting State ex rel. Curtis v. Summit Cty. Bd. of Elections, 144 Ohio St.3d 405,
2015-Ohio-3787, 44 N.E.3d 261, ¶ 8. It is only when the overcount appears
“ ‘systemic’ ” that the secretary of state guides the board to invalidate the entire
part-petition. Id., quoting Ohio Mfrs.’ Assn. at ¶ 44.
{¶ 18} The different treatment of undercounts and overcounts by the
secretary of state, and sometimes by this court, is befuddling. There is absolutely
no support in the statute for drawing such a distinction. If R.C. 3501.38(E)(1) truly
required that an entire part-petition be invalidated as the result of an incorrect
“indicat[ion],” it would make no difference whether the mistake is in indicating too
many or too few signatures. It is telling that while the dissenting opinion attempts
to defend this distinction, it offers no statutory basis for treating overcounts
differently than undercounts.
{¶ 19} Peeling the onion reveals a very tenuous (and circular) basis for the
rejection of Ferrara’s part-petition. The board of elections cited guidance from the
secretary of state to support its decision to invalidate Ferrara’s part-petition. The
secretary of state cited our decision in Rust as the justification for the guidance it
issued. And in Rust, we deferred to the secretary of state’s guidance in finding that
the board of elections properly rejected a part-petition with an incorrect signature
count.
{¶ 20} All of this raises the question whether deference to the secretary of
state is appropriate in this instance. We hold that it is not. And because our decision
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in Rust was premised on deference to the secretary of state’s interpretation and has
created unnecessary confusion in this area of the law, we overrule Rust.
{¶ 21} The secretary of state has authority to issue to boards of elections
“rules, directives, or advisories.” See R.C. 3501.11(P). But only the judiciary has
ultimate authority to interpret the law. See Marbury v. Madison, 5 U.S. 137, 177,
2 L.Ed. 60 (1803); State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 169, 114 N.E.
55 (1916) (“The construction of the laws and Constitution is for the courts”). We
must “jealously guard[]” that division of power. N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 60, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982)
(plurality). There is authority that supports the principle that when a statute is truly
ambiguous in that there are two equally persuasive and competing interpretations
of the law, it is permissible for a court to consider an administrative construction of
the statute. See R.C. 1.49(F); Cleveland Clinic Found. v. Cleveland Bd. of Zoning
Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 29. But
whatever weight one assigns to that principle, it applies only when a statute is truly
ambiguous. Id. There is nothing ambiguous about R.C. 3501.38(E)(1).
{¶ 22} We do not share the dissenting opinion’s concern that following the
plain terms of R.C. 3501.38(E)(1) in this case will “open[] the door to permit others
without such evidence—and with perhaps less pure motives” than Ferrara—to
exploit the petition process. Dissenting opinion at ¶ 40. R.C. 3501.38(F) explicitly
provides that if a circulator knowingly allows an unqualified person to sign or forge
another’s name, “that petition paper is invalid.” And nothing in today’s decision
disturbs the litany of caselaw providing that evidence of fraud triggers full
invalidation of a part-petition. See, e.g., Ohio Mfrs.’ Assn., 147 Ohio St.3d 42,
2016-Ohio-3038, 59 N.E.3d 1274, at ¶ 19-20.
{¶ 23} The plain terms of R.C. 3501.38(E)(1) provide no basis for the
rejection of an entire part-petition based on a minor mistake in indicating the
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number of signatures it contains. The Trumbull County Board of Elections erred
in rejecting Ferrara’s entire part-petition.
B. The Writ Is Limited in Scope
{¶ 24} Ferrara’s requested relief is an order to the board of elections to
certify his name to the ballot. The board’s director stated, in an email to Ferrara,
“It appears you would have had 32 valid signatures [and thus enough signatures to
qualify for the ballot] had this part-petition been allowed.” (Emphasis added.)
However, while the board admits that its director wrote these words to Ferrara, the
board now denies that it has actually verified the signatures on the disputed part-
petition.
{¶ 25} Because the record does not conclusively demonstrate that the board
of elections has verified the signatures on Ferrara’s second part-petition, it would
be premature for us to grant Ferrara’s requested writ certifying him to the ballot.
Thus, we order the Trumbull County Board of Elections to consider the 17
signatures Ferrara submitted in his second part-petition. If that review reveals that
Ferrara has submitted a sufficient number of valid signatures, the board must certify
his name to the ballot.
III. CONCLUSION
{¶ 26} We grant a writ of mandamus ordering the board to determine the
number of valid signatures on Ferrara’s second part-petition and, if appropriate, to
certify his name to the ballot.
Limited writ granted.
O’CONNOR, C.J., and KENNEDY, FISCHER, DONNELLY, and STEWART, JJ.,
concur.
BRUNNER, J., dissents, with an opinion.
________________
BRUNNER, J., dissenting.
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{¶ 27} I respectfully dissent from the majority opinion because at no time
did relator, Mark Ferrara, state that he actually witnessed all 17 signatures on the
part-petition in question. Nor has he provided to the board or this court an after-
the-fact affidavit confirming that he did. Ferrara attested in the circulator’s
statement on the disputed part-petition to having witnessed only 16 signatures. In
the affidavit he submitted with his brief, he stated: “The second part petitions [sic]
contained a total of 17 signatures, however, I inadvertently, attested that there was
a total of 16 total signatures. This was a result of inadvertently miscounting the
total number of signatures. I did not intend to mislead the Board of Elections.” In
other words, the circulator’s statement of the part-petition in question indicates that
Ferrara witnessed only 16 of the 17 signatures appearing on the part-petition. His
affidavit filed with his complaint does not vouch for the additional signature
appearing on the petition by affirmatively stating that he witnessed all 17. He states
only that he wrote in the wrong number. Because of this simple, critical deficiency,
Ferrara is not entitled to a writ of mandamus.
[M]andamus is an extraordinary remedy that is to be exercised with
great caution and issued only when the right and duty is absolutely
clear. Mandamus will not issue in doubtful cases. State ex rel.
Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex
rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d
14 (1953); State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio
App.3d 43, 621 N.E.2d 850 (1993); State ex rel. Dayton-Oakwood
Press v. Dissinger, 32 Ohio Law Abs. 308, 1940 Ohio App. LEXIS
1173 (1940). The Supreme Court of Ohio has also established that
the facts submitted in support of the complaint for mandamus and
the proof produced must be plain, clear, and convincing before a
court is justified in using the “strong arm of the law” and granting a
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writ of mandamus. State ex rel. Pressley v. Indus. Comm. of Ohio,
11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967).
State ex rel. S.P. v. Cleveland, 8th Dist. Cuyahoga No. 105795, 2018-Ohio-2063,
¶ 8.
{¶ 28} With Ferrara attesting to only 16 signatures, the board of elections is
unable to determine which of the 17 signatures appearing on the part-petition was
not witnessed. Thus, not only has Ferrara not shown that he is entitled to relief, but
also the board does not have a duty to provide the relief requested and so has not
erred in rejecting Ferrara’s part-petition.
{¶ 29} And rather than focusing on the question of whether deference
should be given to the secretary of state’s interpretation of a statute, the legal
analysis of which seems to have swirled to the point of making less clear the line
between the executive and judicial branches, we simply should be reviewing the
facts before us in this original action in mandamus and deciding whether the relator
has complied with the law—that is, whether he is entitled to the relief he seeks.
Ferrara must establish “a clear legal right to the requested relief, a clear legal duty
on the part of the board to provide it, and the lack of an adequate remedy in the
ordinary course of the law [and he must] * * * make this showing by clear and
convincing evidence.” State ex rel. Tarrier v. Public Emps. Retirement Bd., 164
Ohio St.3d 137, 2021-Ohio-649, 172 N.E.3d 129, ¶ 15. Ferrara has not provided
evidence to the board of elections or this court that he has complied with the law.
Specifically, at no point has he stated that he witnessed all 17 signatures on the part-
petition in question or that all 17 signatures are signatures of persons who to his
knowledge and belief are qualified to sign the petition as electors or that all 17
signatures are signatures of the persons whose signatures they purport to be. See
R.C. 3501.38(E)(1).
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{¶ 30} It would behoove this court to revisit the words of our concise
decision in State ex rel. Reese v. Tuscarawas Cty. Bd. of Elections, which in total
states:
The relator has failed to comply with statutory requirements as to
his petition for candidate. The action of the board of elections in
rejecting the petition was not an abuse of discretion or contrary to
law. The writ of mandamus is denied.
6 Ohio St.2d 66, 67, 215 N.E.2d 698 (1966).
The Requirements of R.C. 3501.38
{¶ 31} R.C. 3501.38 requires:
All declarations of candidacy, nominating petitions, or other
petitions presented to or filed with the secretary of state or a board
of elections or with any other public office for the purpose of
becoming a candidate for any nomination or office or for the holding
of an election on any issue shall, in addition to meeting the other
specific requirements prescribed in the sections of the Revised Code
relating to them, be governed by the following rules:
(Emphasis added.) When a candidate desires to run for office, he or she must
qualify as a candidate by filing a petition with the appropriate elections office.
Depending on the office sought, there are other statutory requirements that must be
met, but universally, petitions not governed by local municipal charter are subject
to the requirements of R.C. 3501.38. Of particular importance in Ferrara’s case is
the circulator’s-statement requirement contained in R.C. 3501.38, which provides:
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(E)(1) On each petition paper, the circulator shall indicate
the number of signatures contained on it, and shall sign a statement
made under penalty of election falsification that the circulator
witnessed the affixing of every signature, that all signers were to the
best of the circulator’s knowledge and belief qualified to sign, and
that every signature is to the best of the circulator’s knowledge and
belief the signature of the person whose signature it purports to be
or of an attorney in fact acting pursuant to section 3501.382 of the
Revised Code. * * *
***
(F) Except as otherwise provided in section 3501.382 of the Revised
Code, if a circulator knowingly permits an unqualified person to
sign a petition paper or permits a person to write a name other than
the person’s own on a petition paper, that petition paper is invalid;
otherwise, the signature of a person not qualified to sign shall be
rejected but shall not invalidate the other valid signatures on the
paper.
(G) The circulator of a petition may, before filing it in a
public office, strike from it any signature the circulator does not
wish to present as a part of the petition.
(Emphasis added.) The majority acknowledges the requirement in R.C.
3501.38(E)(1) that the circulator “indicate the number of signatures contained on”
the part-petition but disregards the fact that the indicated number is part of the
circulator’s statement, which is made under penalty of election falsification. R.C.
3501.38(E)(1). The circulator’s statement on the part-petition in question appears
below:
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The indication of 16, and not 17, signatures witnessed, believed to be qualified, and
believed to be those of the persons whose they purport to be leaves the board of
elections in a quandary—which of the 17 signatures did not pass muster?
{¶ 32} It is significant that R.C. 3501.38(G) permits the circulator of the
petition, before filing it, to strike from it any signature the circulator does not wish
to present as part of the petition. Ferrara did not do this. Thus, when the board of
elections noticed that there were 17 signatures, none of which had been stricken,
while Ferrara had attested to only 16, the board was left to guess which of the 17
signatures was not subject to his attestation in his circulator’s statement.
{¶ 33} No board of elections has the discretion or the authority to not follow
the law. R.C. 3501.11 (boards of elections “shall perform all the duties imposed by
law”). Because the circulator’s statement addresses only 16 of the 17 signatures on
the part-petition in question, R.C. 3501.38(F) applies and requires that the entire
part-petition be invalidated. See R.C. 3501.38(F) (“if a circulator knowingly
permits an unqualified person to sign a petition paper * * * that petition paper is
invalid”). “ ‘The word “knowingly,” as used in the statute, is used in its ordinary
and common meaning that one is aware of existing facts.’ ” State ex rel. Oster v.
Lorain Cty. Bd. of Elections, 93 Ohio St.3d 480, 487, 756 N.E.2d 649 (2001),
quoting State ex rel. Carson v. Jones, 24 Ohio St.2d 70, 72, 263 N.E.2d 567 (1970),
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and citing State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of
Elections, 65 Ohio St.3d 167, 174, 602 N.E.2d 615 (1992). The fact of Ferrara’s
signature, made under penalty of election falsification, a felony of the fifth degree,
R.C. 3501.38(J), cannot lead us to any other conclusion than that his signing of the
circulator’s statement was done with knowledge of the existing facts that he was
attesting to only 16 of the 17 signatures filed.
{¶ 34} In Prince v. Franklin Cty. Bd. of Elections, 10th Dist. Franklin No.
98AP-495, 1998 Ohio App. LEXIS 6290, *14-15 (Dec. 24, 1998), the Tenth
District Court of Appeals found no mens rea requirement under R.C. 3501.38(E).
The court relied on Morford v. Pyle, 53 S.D. 356, 220 N.W. 907 (1928), which
construed a similar statute requiring that a circulator attest that he observed every
person sign.
“When a person circulates a referendum petition, it is his
duty to see * * * every person who signs it. Unless he does * * *
see them all sign, he cannot honestly say that * * * each of them
signed it personally * * *; and when a person, not knowing these
facts, makes the affidavit above set out, such affidavit is false, and
must be knowingly false, and all the names on such petition must be
rejected.”
(Ellipses added in Prince.) Prince at *14-15, quoting Morford at 910. Here, the
board of elections, following the instruction of the secretary of state, properly
followed R.C. 3501.38(E)(1) and (F) and rejected Ferrara’s part-petition.
{¶ 35} Boards of elections are required to “[r]eview, examine, and certify
the sufficiency and validity of petitions and nomination papers,” R.C.
3501.11(K)(1), and “perform all the duties imposed by law,” R.C. 3501.11. Boards
of elections must “accept any petition described in section 3501.38 of the Revised
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Code unless * * * [t]he candidate’s * * * petition violates the requirements of [R.C.
Chapter 3501] * * * or any other requirements established by law.” R.C.
3501.39(A). To grant a writ of mandamus ordering the board of elections to accept
or even review Ferrara’s part-petition in the absence of any evidence that he did, in
fact, comply with R.C. 3501.38(E)(1) is not appropriate when the board does not
have a clear legal duty to accept or review the part-petition. Ferrara has failed to
clearly and convincingly demonstrate any right to relief. And there is no basis to
find from these facts that the board of elections “ ‘acted fraudulently or corruptly,
abused its discretion, or clearly disregarded applicable law.’ ” State ex rel. Miller
v. Hamilton Cty. Bd. of Elections, __Ohio St.3d __, 2021-Ohio-831, __N.E.3d__,
¶ 28, quoting State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63,
2006-Ohio-1292, 846 N.E.2d 8, ¶ 23. The writ of mandamus should be denied.
Deference to Secretary of State’s Interpretations of Election Laws
{¶ 36} In reaching its decision in this case, the majority unnecessarily
entangles itself with whether this court should give deference to the secretary of
state’s interpretation of the law. R.C. 3501.05 requires the secretary of state to
“[i]ssue instructions * * * to members of the boards as to the proper methods of
conducting elections” and “[p]repare rules and instructions for the conduct of
elections.” R.C. 3501.05(B), (C). R.C. 3501.11 requires boards of elections to
“[m]ake and issue rules and instructions, not inconsistent with law or the rules,
directives, or advisories issued by the secretary of state” and “[p]erform other duties
as prescribed by law or the rules, directives, or advisories of the secretary of state.”
R.C. 3501.11(E), (P). See also State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55,
59, 2012-Ohio-69, 960 N.E.2d 452, ¶ 16.
{¶ 37} We should not fault the board of elections for following the secretary
of state’s election-official manual. That is its duty. It would appear that the
secretary’s manual provides an interpretation of R.C. 3501.38(E)(1) and (F)
without supplying the rationale or explanation for its methods of implementation.
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January Term, 2021
Perhaps the secretary’s policy and resulting instruction requiring differing
outcomes depending on whether there are more or fewer signatures indicated in the
circulator’s statement than actual uncrossed-out signatures (see R.C. 3501.38(G))
on a part-petition appears illogical and less than ideal. The policy could be taken
as observing the sentiment in our caselaw that “ ‘mere technical irregularities’
within an election petition will not serve to deny the electorate the opportunity to
make a choice between candidates.” State ex rel. Schmelzer v. Cuyahoga Cty. Bd.
of Elections, 2 Ohio St.3d 1, 2, 440 N.E.2d 801 (1982). But even in Schmelzer, we
recognized that the failure “to comply with the unequivocal statutory requirements
governing [a] petition for candidacy and ‘the action of the board of elections in
rejecting the petition was not an abuse of discretion or contrary to law” and that a
writ of mandamus was properly denied. Schmelzer at 4. This would explain the
secretary’s policy that in the case of a larger number in the circulator’s statement
than the number of signatures on the part-petition, there exists the assurance that
all the petition signatures are attested to according to R.C. 3501.38(E). In such
case, unlike Ferrara’s case, the board of elections is not left guessing which
signature does not meet the requirements of 3501.38(E).
This difference in treatment at least makes intuitive sense: if a
circulator states that he or she witnessed 20 signatures and there are
22 signatures on the part-petition, that means that there are two that
he or she did not witness. How can the reviewing board of elections
be expected to tell which signatures the circulator didn’t witness?
On the other hand, if there are 22 signatures and the circulator states
that he or she witnessed 28, the circulator has attested to having
witnessed at least 22.
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SUPREME COURT OF OHIO
Ohio Mfrs.’ Assn., 149 Ohio St.3d 250, 2016-Ohio-5377, 74 N.E.3d 399, at ¶ 68
(Pfeifer, J., dissenting).
{¶ 38} Rather than battle with the secretary about the efficacy of his election
manual or whose interpretation controls or even declare that there is no longer
deference to the secretary of state’s interpretation of election laws, except in the
case of their ambiguity, it is more genuine and advisable to follow what we have
stated in earlier decisions, that is, that “[b]ased on the applicable law, the secretary
of state’s construction of the applicable statutory provisions is reasonable and is
thus entitled to deference. See Rothenberg v. Husted, 129 Ohio St.3d 447, 2011-
Ohio-4003, 953 N.E.2d 327, ¶ 2.” State ex rel. Waters v. Spaeth, 131 Ohio St.3d
55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 16. Besides, it is the secretary’s duty to
follow our caselaw in “[c]ompel[ling] the observance by election officers in the
several counties of the requirements of the election laws,” R.C. 3501.05(M).
{¶ 39} With this in mind, when we determine from the facts whether a
relator clearly and convincingly has a clear legal right to the requested relief and
whether the board has a clear legal duty to provide it in the absence of an adequate
remedy in the ordinary course of the law, Tarrier, 164 Ohio St.3d 137, 2021-Ohio-
649, 172 N.E.3d 129, at ¶ 15, we provide sound legal guidance to the secretary and
future litigants. Then, deference, if any, to a reasonable interpretation by the
secretary occurs after we have first examined the facts through the lens of the law
as any trial court would in an original action. The secretary’s interpretation may be
evidence or even persuasive authority, but we must do our job in original actions to
determine and apply the law to the facts of each case as we view it. This also frees
us from the invasive and ever-moving judgment of what is “too technical,
unreasonable and arbitrary,” State ex rel. Schwarz v. Hamilton Cty. Bd. of Elections,
173 Ohio St. 321, 323, 181 N.E.2d 888 (1962), thereby diminishing legal
uncertainty in the law.
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January Term, 2021
{¶ 40} Had Ferrara supplied in his affidavit to this court an attestation that
he actually witnessed all 17 signatures, he would be closer to being entitled to the
writ. But to grant the writ without this evidence promotes fraud. See State ex rel.
Citizens for Responsible Taxation, 65 Ohio St.3d at 172, 602 N.E.2d 615 (our
caselaw implies that “arithmetic error will be tolerated, but only if the error does
not promote fraud”). Even in light of Ohio Mfrs.’ Assn., 147 Ohio St.3d 42, 2016-
Ohio-3038, 5 N.E.3d 1274, at ¶ 19 (“In cases in which the circulator’s statement
slightly undercounts the signatures, this court has ordered the entire part-petition
counted, so long as there is no indication of fraud or material misrepresentation”
[emphasis sic]), granting the writ without clear and convincing evidence opens the
door to permit others without such evidence—and with perhaps less pure motives
than the majority appears to ascribe to Ferrara—to have access to the ballot in the
absence of strict compliance, even though it is well settled “ ‘that election statutes
are mandatory and must be strictly complied with,’ ” Schmelzer, 2 Ohio St.3d at 2,
440 N.E.2d 801, quoting State ex rel. Senn v. Bd. of Elections 51 Ohio St.2d 173,
174, 367 N.E.2d 879 (1977), citing State ex rel. Abrams v. Bachrach, 175 Ohio St.
257, 259, 193 N.E.2d 517 (1963).
{¶ 41} Ferrara is not entitled to the relief he seeks, because nowhere in the
evidence did Ferrara actually comply with R.C. 3501.38(E)(1). Thus, this court
should not order the board of elections to either review the part-petition further or
place Ferrara’s name on the ballot. Then we would not as a consequence be
requiring the board of elections to abuse its discretion by finding that even lacking
evidence that he complied with R.C. 3501.38(E)(1), Ferrara is entitled to ballot
access.
{¶ 42} I would deny Ferrara the writ of mandamus requested, because he
has not complied with R.C. 3501.38(E)(1) and thus has not demonstrated that he is
entitled to the writ. Accordingly, I respectfully dissent.
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SUPREME COURT OF OHIO
Baker, Dublikar, Beck, Wiley & Mathews, Tonya J. Rogers, and James F.
Mathews, for relator.
Dennis Watkins, Trumbull County Prosecuting Attorney, and Ryan J.
Sanders, Assistant Prosecuting Attorney, for respondent.
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