Summary
In State ex rel. Senn v. Cuyahoga Cty. Bd. of Elections (1977), 51 Ohio St.2d 173, 5 O.O.3d 381, 367 N.E.2d 879, Senn, a candidate for judge, submitted eleven part-petitions with signatures to a clerk at the board of elections for a preliminary check to determine whether Senn had obtained enough valid signatures.
Summary of this case from State ex Rel. v. Bd. of ElectionsOpinion
no. 77-747
Decided September 29, 1977.
Elections — Declarations of candidacy — Filing requirements mandatory — R.C. 3513.05, construed — Board of elections — Review of petitions — Decision final, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellee, Richard A. Senn, in an effort to become a candidate in the primary election for judge of the Parma Municipal Court, prepared and signed his "declaration of candidacy and petition for candidate" form. Appellee had 100 copies made of this signed form. He then circulated these duplicates, hereinafter referred to as "part-petitions," to obtain the necessary signatures of qualified electors required by R.C. 3513.05.
Appellee submitted 11 part-petitions with signatures to a clerk at the board of elections on March 22, 1977, for a preliminary check to determine whether he had obtained enough valid signatures. On March 23, 1977, he was informed that he had sufficient valid signatures. However, presumably for insurance, appellee added another part-petition with additional signatures.
At 10:54 a.m. that same day, March 23, appellee filed these 12 part-petitions with the proper clerk at the board of elections. Appellee paid his filing fee of $50 and upon inquiry of the clerk was told that nothing further was needed.
On March 24, 1977, it was brought to appellee's attention that for some unexplained reason, or due to an omission, his signed master form was not filed on the day before with the 12 part-petitions. Appellee located his master form, which had not been circulated, took it to the board of elections and filed it that day, March 24, at 3:22 p.m., 38 minutes before the filing deadline.
Later that day, after the filing deadline, appellee was advised by the director of the board of elections that the filing of the master form on the day after the filing of the part-petitions constituted a violation of the election laws, and that the matter had to be brought before the board at a hearing.
On March 30, 1977, the hearing was held to determine whether appellee's name should be placed on the ballot. Of the four members of the board, two voted for and two against permitting appellee's name on the ballot. The question was then submitted to the Secretary of State, pursuant to R.C. 3501.11. That section, in part, provides:
"In all cases of a tie vote or a disagreement in the board, if no decision can be arrived at, the clerk shall submit the matter in controversy to the secretary of state, who shall summarily decide the question and his decision shall be final."
The Secretary of State, by letter of April 1, 1977, concluded that appellee's name should not be placed on the ballot.
Appellee then initiated an action in mandamus in the Court of Appeals for Cuyahoga County. On May 26, 1977, the Court of Appeals granted appellee's complaint for writ of mandamus and ordered appellants to certify appellee's nominating petitions and to place his name on the ballot.
Appellants bring the cause before this court as a matter of right.
Speck, Wilbur Senn Co., L.P.A., and Mr. Thomas Blair Wilbur, for appellee.
Mr. John T. Corrigan, prosecuting attorney, Mr. Thomas P. Gill and Mr. David A. Williamson, for appellants.
The general rule in Ohio is that election statutes are mandatory and must be strictly complied with. See, e.g., State, ex rel. Abrams, v. Bachrach (1963), 175 Ohio St. 257, 259.
R.C. 3513.05 provides, in pertinent part:
"The declaration of candidacy and all part-petitions shall be filed at the same time as one instrument."
This provision is substantive and contemplates " one declaration of candidacy which shall be uniform and complete in accordance with statutory mandates." State, ex rel. Ferguson, v. Brown (1962), 173 Ohio St. 317, 319. (Emphasis sic.)
The facts in this case quite clearly indicate that appellee, contrary to R.C. 3513.05, filed his master form subsequent to his part-petitions.
Furthermore, in granting the writ of mandamus, the Court of Appeals merely substituted its opinion for that of the board of elections. R.C. 3501.11 provides in part that:
"Each board of elections shall * * *
"* * *
"(K) Review, examine, and certify the sufficiency and validity of petitions and nomination papers."
The decision of the board on these matters is final and, in the absence of allegations of fraud, corruption, abuse of discretion, or a clear disregard of statutes or applicable legal provisions, is not subject to judicial review. State, ex rel. Flynn, v. Bd. of Elections (1955), 164 Ohio St. 193.
No such specific allegations were here made. Successful mandamus actions serve only to erode the contemplated finality of the decisions of the boards of elections.
For reasons of the foregoing, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, W. BROWN, P. BROWN and SWEENEY, JJ., concur.
CELEBREZZE and LOCHER, JJ., dissent.
Appellee filed a total of 12 part-petitions, containing a photo-copy of his declaration of candidacy and the verified signatures of two hundred and fifteen qualified electors, clearly more than the one hundred and fifty valid signatures required for the office of Municipal Court judge. In addition, appellee filed his uncirculated master petition form, which included the disputed declaration of candidacy, and paid the fifty dollar filing fee.
The part-petitions and the master form were accepted for filing at the offices of the board of elections prior to the statutory deadline. However, one week after that date the board decided that, because appellee, who was the only party candidate, filed his master petition form on the day following the filing of the part-petition, his name would not appear on the November 8, 1977, general election ballot. Appellee thereafter initiated an action in mandamus in the Court of Appeals for Cuyahoga County.
After the Court of Appeals granted appellee's complaint for writ of mandamus the board of elections issued a certificate of nomination to appellee, which instrument stated that appellee was certified to be the "duly nominated * * * party candidate" for the office of Municipal Court judge. Approximately three days after appellee received his certificate of nomination the board of elections apparently decided that, despite its certification, appellee was not the duly nominated party candidate for the office of Municipal Court judge. The board of elections subsequently filed the instant appeal with this court.
The one day delay in the filing of the master petition form was an error made in good faith, induced in part by the assurances of a board of elections employee. Appellee's error did not in any way interfere with the free and honest exercise of the ballot. On the contrary, the board of elections' insistence on a meticulous regard for detail will in this instance cause a previously certified candidate to lose a place on the ballot. Because the candidate completed an otherwise valid filing within the "filing deadline" I fail to see a statutory violation prejudicial to the elective process.
LOCHER, J., concurs in the foregoing dissenting opinion.