Summary
In State ex rel. Weaver v. Wiethe (1965), 4 Ohio St.2d 1, 33 O.O.2d 1, 210 N.E.2d 881, Weaver, a candidate for city council, filed a nominating petition consisting of several separate petition papers that contained 562 signatures.
Summary of this case from State ex Rel. v. Bd. of ElectionsOpinion
No. 39809
Decided September 30, 1965.
Elections — Municipal — Nominating petition — All papers to be filed as one instrument — Insufficient signatures — Withdrawal to add additional signature and refile — Supplementing petition by adding additional signatures — Amendments or supplements not permitted.
IN MANDAMUS.
Relator invokes the original jurisdiction of this court by a petition which prays for a writ of mandamus compelling the respondents as members of the Board of Elections of Hamilton County to place his name on the ballot of candidates for the Council of Cincinnati at the municipal election to be held November 2, 1965. Respondents demurred to the petition and the parties have stipulated that a decision on the demurrer will be dispositive of the case.
On August 16, 1965, which was within the 60-day filing period required by the charter of that city, relator filed with respondents a nominating petition consisting of several separate petition papers and containing altogether 562 signatures of purported electors of the city, or 62 more than the required minimum of 500. Three days later, relator was duly notified that only 395 signatures were valid. Thereupon, he sought to withdraw his nominating petition for the purpose of obtaining additional valid signatures on additional petition papers and filing all separate papers as one petition at a later time. Respondents refused this demand.
Subsequently, on August 30th, still within the 60-day deadline, relator presented to respondents additional petition papers containing 199 signatures which would entitle him to be recognized as a candidate provided that (1) 105 of the additional signatures are valid and (2) respondents are required to consider them along with the petition originally filed. After granting relator a hearing on his claims and consulting with counsel, respondents formally rejected relator as a candidate.
Messrs. Goldman, Cole Putnick, and Mr. Gene I. Mesh, for relator.
Mr. Melvin G. Rueger and Mr. Raymond C. Wetherell, for respondent.
The charter of Cincinnati (Section 4, Article IX) requires that "all separate papers comprising a nominating petition shall be assembled and filed * * * as one instrument * * *." (Emphasis supplied.) Confronted with this explicit direction, relator attempted to circumvent it. Learning of the insufficiency of his original petition, he sought to withdraw it so that he might again assemble and file the separate papers thereof, together with other separate papers containing additional signatures sufficient to meet the minimum number required.
Failing this, relator's principal contention now is that by filing a nominating petition at some time before the 60th day prior to the election, a prospective candidate acquires a continuing right to file additional petition papers until the tolling of the filing period and to have the total number of separate papers thus filed considered as "one instrument."
Although seemingly consonant with traditional notions of fair play, that contention is without merit because it ignores not only the plain language of the charter but also the burden of the board of elections in validating signatures and accounting for the priority of nominating petitions for the office in question. Notwithstanding that nine candidates are to be elected and that an elector may vote for as many as nine, Section 2, Article IX of the Charter provides that "if any elector signs petitions for more than one candidate, his signature shall be invalid except as to the petition first filed."
If the board of elections were compelled to recognize continuous filing, what would constitute a "petition first filed?" Would the first or the last separate petition paper control the event? Or, would the first (or the last) separate petition paper containing the 500th valid signature determine the priority of the entire petition? It is readily apparent without detailed analysis that relator's contention would produce serious confusion.
Alternatively, relator urges that the additional petition papers be considered as "amendments or supplements" to the original nominating petition. Not only does this view lead to the same result previously considered, but it cannot prevail against the requirement contained in Section 1, Article IX of the charter that with respect to the election in question "the provisions of the general election laws of the state shall apply * * * except * * * as provision is otherwise made by this charter. * * *" Since the charter is silent upon the subject of additions or supplements to a nominating petition, subparagraph (I) of Section 3501.38 of the Revised Code (effective January 1, 1964) is dispositive of this issue and reads as follows:
"No alterations, corrections, or additions may be made to a petition after it is filed in a public office."
Finally, relator's argument that he had the right to withdraw his original petition must be rejected in the absence of a clear duty specifically enjoined upon respondents either by charter or by statute to permit a withdrawal.
It is not inappropriate to republish here the admonition of the opinion in State, ex rel. Ferguson, v. Brown, Secy. of State, 173 Ohio St. 317, at page 321: "A candidate for nomination for public office * * * should follow the plain statutory directions with respect to the required * * * nominating petition; otherwise, there may be unfavorable and disappointing action taken by election officials." To this may be added the further admonition that if the action taken also seems unfair, the remedy lies in a corrective statutory or charter enactment, not with election officials or the courts who are equally bound to abide the clearly mandated result.
The demurrer is sustained and the writ denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.