The State ex rel. Bender
Franklin County Board of Elections.
Submitted July 9, 2019
R. Brown and Mark G. Kafantaris, for relator.
J. O'Brien, Franklin County Prosecuting Attorney, and
Timothy A. Lecklider and Nick A. Soulas Jr., Assistant
Prosecuting Attorneys, for respondent.
1} Relator, Robert Bender, seeks a writ of mandamus
ordering respondent, the Franklin County Board of Elections,
to reinstate his certification to the November 2019 ballot as
the Libertarian Party candidate for Reynoldsburg City
Council, Ward 3. After initially certifying Bender to the
ballot, the board sustained a protest challenging the
validity of some of the signatures on Bender's petition.
Because no evidence established that the protestor had
standing to bring the protest and because it was too late for
the board to remove Bender from the ballot sua sponte, we
grant a writ of mandamus ordering the board to reinstate
Bender as a candidate for the November 2019 general election.
FACTUAL AND PROCEDURAL BACKGROUND
2} On February 6, 2019, Bender submitted his
declaration of candidacy to be the Libertarian Party nominee
for Reynoldsburg City Council, Ward 3. Bender's petition
contained 22 signatures. The minimum number of valid
signatures necessary for Bender to qualify for the ballot was
13. Jeffrey Mackey, the manager of petitions and campaign
finance for the board, examined the signatures and determined
that 13 of them were valid and that the petition therefore
met the signature requirement. Because no other candidate
sought the Libertarian nomination for the Ward 3 council
seat, no primary election for that seat was necessary.
See R.C. 3513.02. Accordingly, on February 19, the
board certified Bender to the November 5, 2019
3} On February 22, the board received a timely
written protest from John H. Duus, who challenged the
validity of six of the previously validated signatures on
Bender's petition. On March 4, the board sent Bender a
letter notifying him of Duus's protest and informing
Bender that he would be notified again once a date for
hearing the protest had been set. On May 9, two days after
the primary election, the board notified Bender that it would
hear Duus's protest at a meeting scheduled for May 28. On
May 28, the board received a letter from Bender's
attorney objecting to the hearing as untimely under R.C.
3501.39(B) and 3513.05.
4} At the May 28 meeting, neither Duus nor any
representative for Duus appeared. Bender's attorney
addressed the board, arguing that it should dismiss the
protest for lack of standing because Duus had presented no
evidence that he was a member of the Libertarian Party.
Bender's attorney also argued that the board had no
authority to remove Bender from the ballot after the primary
election. In light of the legal issues raised by Bender's
attorney, the board continued the hearing to June 3.
5} At its June 3 meeting, the board heard from
Mackey and the board's attorney, who opined that neither
the concern pertaining to standing nor the concern pertaining
to timeliness prohibited the board from considering the
merits of the protest. The board also heard from Bender's
attorney, who noted the continued absence of Duus or any
representative for Duus and presented rebuttal arguments on
the issues of standing and timeliness. The board then
considered the protest and examined the six signatures
questioned in the protest letter, comparing them to the
electors' signatures on file. Despite Mackey's
statement at the May 28 hearing that all 13 validated
signatures were "within the bounds of what we generally
look for," at the subsequent June 3 hearing, the board
determined that three of the challenged signatures did not
match the signatures on file. Because this left Bender three
signatures short of the required 13, the board sustained the
protest and removed Bender from the November ballot.
6} Bender filed this mandamus action on June 7,
seeking a writ of mandamus ordering the board to again
certify him as the Libertarian Party nominee for Reynoldsburg
City Council, Ward 3 for the November 5, 2019 general
election. We granted Bender's motion to expedite, 156
Ohio St.3d 1412, 2019-Ohio-2413, 124 N.E.3d 838, and the case
has now been fully briefed.