Relators waited sixteen days after the city council's September 4, 2001 decision to file this action. State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, 245, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775, 777 (" `[W]e have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case' "). The facts in this case are virtually indistinguishable from those in State ex rel. Valore v. Summit Cty. Bd. of Elections (1999), 87 Ohio St.3d 144, 718 N.E.2d 415, where we denied a writ of mandamus to compel a board of elections to certify a person's candidacy on an election ballot because his claim was barred by laches.
He waited twenty days after the petitions were filed on August 21 to file his September 10 protest, and he then waited another fourteen days following the board's September 27 decision to file this action for extraordinary relief. See State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, 245, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775, 777 ("`we have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case'"). Newell claims that any delay was justified because the board continued the September 13 protest hearing to September 27 and that his attempts to have the protest hearing rescheduled during the week of September 17 failed because the board members did not want to miss the county fair. But any minimal delay caused by the board's alleged actions does not excuse Newell's delay in filing his protest and in instituting this action for expedited extraordinary relief. Demaline, 90 Ohio St.3d at 527, 740 N.E.2d at 246; State ex rel. Manos v. Delaware Cty. Bd. of Elections (1998), 83 Ohio St.3d 562, 563, 701 N.E.2d 371, 372.
Christman v. Christman (1960), 171 Ohio St. 152, 154, 12 O.O.2d 172, 168 N.E.2d 153; see, also, Commt. for the Referendum of Ordinance No. 3543-00, 90 Ohio St.3d at 216, 736 N.E.2d 873, citing Christman in precluding the application of laches in an election case. {¶ 36} The committee mistakenly relies on our decision in State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 740 N.E.2d 242, to support its contention that the "clean hands" doctrine does not apply to election cases involving writs of mandamus. In Demaline, 90 Ohio St.3d at 527, 740 N.E.2d 242, we merely held that "[t]he `clean hands' doctrine is inapplicable here"; we did not hold that this doctrine is never applicable in election cases.
They waited to file this action 19 days after September 6, 2002, which was the last date under Section 4, Article X of the Ohio Constitution for the county council to place the issue on the November 5, 2002 election ballot. See State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775 (" 'we have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case'" [emphasis in Landis]). {¶ 15} The facts here are similar to those in State ex rel. Carberry v. Ashtabula (2001), 93 Ohio St.3d 522, 524, 757 N.E.2d 307, and State ex rel. Valore v. Summit Cty. Bd. of Elections (1999), 87 Ohio St.3d 144, 718 N.E.2d 415.
Any person entering the polling place would have known that taxpayers were voting at a separate table, and the moderator's return and the tally sheet which indicated this were filed with the town clerk on the night of the referendum. She told her attorney about the alleged voting improprieties at the meeting that she had with him on September 16. Thus, there is no justification for the defendant's delay in seeking legal counsel to advise her as late as September and certainly no justification for her counterclaim to have been filed as late as December 24. See Save Our Schools of Bladen County v. Bladen County Board of Education, 140 N.C. App. 233, 237, 535 S.E.2d 906 (2000) (in determining laches, ample evidence that plaintiff was aware of controversy and waited six months to contest bond referendum); State ex rel. Demaline v. Cuyahoga County Board of Elections, 90 Ohio St. 3d 523, 526, 740 N.E.2d 242 (2000) (challengers to ballot language "knew or should have known" of language but failed to raise issue timely). The town has established its claim of prejudice.
She told her attorney about the alleged voting improprieties at the meeting that she had with him on September 16th. Thus there is no justification for the defendant's delay in seeking legal counsel to advise her as late as September and certainly no justification for her counterclaim to have been filed as late as December 24th. See Save Our Schools v. Bladen County Board of Education, 535 S.E.2d 906, 909 (N.C.App. 2000) (in determining laches, ample evidence that plaintiff was aware of controversy and waited six months to contest bond referendum); State ex Rel. Demaline v. Cuyahoga County Board of Elections, 740 N.E.2d 242 (Ohio St.3d 2000) (challengers to ballot language "knew or should have known" of language but failed to raise issue timely). The town has established its claim of prejudice.
Although the board's decision denying their protest was received by them on January 31, relators waited another 19 days to name the board of elections as a respondent in this action for extraordinary relief. See State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775 ("`[W]e have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case'"). {¶ 15} "Our consistent requirement that expedited election cases be filed with the required promptness is not simply a technical nicety."
Instead, they delayed at least 31 days before raising their claim concerning unprocessed voter-registration applications and about four months before challenging the constitutionality of statutory requirements for petition circulators. See State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775 ("`[W]e have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case'"). (Emphasis added.)
(Emphasis sic.) State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775. Relators' aggregate 102-day delay is considerably lengthier than nine days. {¶ 15} Relators lack any justifiable excuse for this delay.
When a party fails to exercise diligence in seeking extraordinary relief in an electionrelated matter, laches may bar the claim. State ex. rel. Demaline v. Cuyahoga County Bd. of Elections, 90 Ohio St.3d 523, 526, 740 N.E.2d 242 (2000). The party challenging the election bears the burden of demonstrating that "they acted with the requisite diligence."