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State ex rel. Bender v. Franklin County Board of Elections

Supreme Court of Ohio

July 15, 2019

The State ex rel. Bender
v.
Franklin County Board of Elections.

          Submitted July 9, 2019

          In Mandamus.

          Mark R. Brown and Mark G. Kafantaris, for relator.

          Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Timothy A. Lecklider and Nick A. Soulas Jr., Assistant Prosecuting Attorneys, for respondent.

          PER CURIAM.

         {¶ 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.

         I. 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 general-election ballot.

         {¶ 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.

         II. ANALYSIS

         A. ...


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