[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Heavey v. Husted, Slip Opinion No. 2018-Ohio-1152.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2018-OHIO-1152
                THE STATE EX REL. HEAVEY ET AL. v. HUSTED ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as State ex rel. Heavey v. Husted, Slip Opinion No.
                                     2018-Ohio-1152.]
Mandamus—Elections—R.C. 3513.05—Joint candidates for governor and
        lieutenant governor did not show by clear and convincing evidence a legal
        right to have their names placed on the ballot—Writ denied.
    (No. 2018-0313—Submitted March 26, 2018—Decided March 29, 2018.)
                                       IN MANDAMUS.
                                    ________________
        Per Curiam.
        {¶ 1} In this expedited election case, relators, Jonathan Heavey and Adam
Hudak, seek a writ of mandamus certifying their names to the May 8, 2018 ballot
as candidates for the Democratic Party’s nominees for governor and lieutenant
governor, respectively. For the reasons set forth below, we deny the writ.
                             SUPREME COURT OF OHIO




                                    Background
       {¶ 2} On February 7, 2018, Heavey and Hudak delivered their declaration
of candidacy and petition for the Democratic Party nomination for governor and
lieutenant governor to the office of respondent Jon Husted, Ohio secretary of state.
The petition contained 2,185 signatures.
       {¶ 3} A petition of joint candidates for the offices of governor and
lieutenant governor must be signed by at least 1,000 qualified electors who are
members of the same political party as the candidates. R.C. 3513.05. The secretary
of state transmitted Heavey and Hudak’s part-petitions to the appropriate county
boards of elections to verify the signatures. The county boards of elections verified
the validity of only 854 signatures. Therefore, when Secretary Husted issued
Directive 2018-06 on February 21, 2018, certifying statewide candidates for the
May 8 ballot, Heavey and Hudak were not on the list.
       {¶ 4} Heavey and Hudak commenced the present action on February 28,
2018. In addition to Secretary Husted, the complaint named as respondents the
boards of elections of five counties: Cuyahoga, Franklin, Hamilton, Summit, and
Warren. Heavey and Hudak alleged that Husted and the boards abused their
discretion and disregarded applicable law by rejecting at least 146 valid signatures.
The complaint demanded a writ of mandamus compelling the boards to amend their
certifications of the number of valid signatures and compelling Husted to certify
Heavey and Hudak’s names to the May 8 ballot.
       {¶ 5} Because this case was filed within 90 days of the May 8 election, the
parties submitted briefs in accordance with the accelerated schedule for expedited
election cases in S.Ct.Prac.R. 12.08.
                                        Analysis
       {¶ 6} To be entitled to a writ of mandamus, a party must establish, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate




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remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio
St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. Given that the May 8 election is
imminent, Heavey and Hudak do not have an adequate remedy in the ordinary
course of the law. See State ex rel. Stewart v. Clinton Cty. Bd. of Elections, 124
Ohio St.3d 584, 2010-Ohio-1176, 925 N.E.2d 601, ¶ 17 (holding that relator had
no adequate remedy at law because election was imminent at time county elections
board denied relator’s protest); State ex rel. Finkbeiner v. Lucas Cty. Bd. of
Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18 (same).
          {¶ 7} However, Heavey and Hudak have failed to show a clear legal right
to the relief they seek: certification to the ballot. Some of the respondent boards
have conceded the validity of some of the disputed signatures. But Heavey and
Hudak fell 146 signatures short of qualifying for the ballot, and they have not
presented clear and convincing evidence that there were at least 146 erroneously-
rejected signatures.
          {¶ 8} Their initial brief and supporting evidence identified only 121
signatures that they claim were wrongly invalidated:
         37 signatures rejected as “NRA” (not registered address): 4 in Cuyahoga
          County, 25 in Franklin County, 6 in Hamilton County, 1 in Mahoning
          County,1 and 1 in Summit County;
         48 signatures rejected as “NR” (not registered): 29 in Cuyahoga County, 18
          in Franklin County, and 1 in Montgomery County;2
         14 signatures as “NG” (not genuine): 5 in Cuyahoga County, 1 in Franklin
          County, 7 in Hamilton County, and 1 in Summit County;
         13 signatures rejected because they were printed, not written in cursive: 11
          in Franklin County and 2 in Montgomery County;


1
    The Mahoning County Board of Elections was not named as a respondent.
2
    The Montgomery County Board of Elections was not named as a respondent.




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       7 signatures in Franklin County rejected as illegible;
       1 signature in Hamilton County rejected because the signer was not a
        member of the same political party as the candidates; and
       1 signature in Warren County rejected based on a typographical error in the
        date of signature.
Even if they succeeded in validating all 121 of these signatures, Heavey and Hudak
would have a total of only 975 valid signatures, 25 short of the 1,000 necessary to
qualify for the ballot.
        {¶ 9} To make up the shortfall, they allege that “[t]he evidence to date
reflects that in excess of 100 signatures of properly-registered, qualified electors of
the Democratic party signed [the] petition in printed form while having voter
registration records signed in cursive, and were invalidated on this basis.” In their
reply brief, they identify 32 additional signatures disqualified by the Cuyahoga
County Board of Elections as “NG” (not genuine). As to each of these 32 signatures
disqualified as not genuine, Heavey and Hudak write, “it is reasonable * * * to
conclude that the Boards rejected the signature on the basis of a mismatch between
the appearance of the signature on the petition and the elector’s voter registration
card.” They then argue that boards of elections should not be able to invalidate
signatures based upon a signature mismatch solely because one signature is printed
and the other is written in cursive.
        {¶ 10} Heavey and Hudak’s assumption is that the board of elections
invalidated these 32 signatures based on a print/cursive mismatch, but that is
complete speculation. A print/cursive mismatch is not the only reason a petition
signature might appear to be not genuine. Boards of elections are “required to
compare petition signatures with voter registration cards to determine if the
signatures are genuine.” State ex rel. Yiamouyiannis v. Taft, 65 Ohio St.3d 205,
209, 602 N.E.2d 644 (1992). In doing so, they are permitted to consider all manner
of signature discrepancies. For example, in State ex rel. Mann v. Delaware Cty.




                                          4
                                 January Term, 2018




Bd. of Elections, we invalidated two signatures by comparing details of the writing
style:


         [O]n the petition, the “R” at the start of Ralph Davis’s name was
         made in one continuous stroke, whereas the signature on the
         mortgage deeds featured a two-stroke “R.” Likewise, we note that
         the signatures in the board’s official poll books (six examples of
         which appear in the record) all begin with the two-stroke “R.” In
         fact, even the affidavit submitted as evidence at the protest hearing
         contains the two-stroke “R.”      The sole outlier is the petition
         signature.
                * * * The record contains eight examples of [Starla Rito’s]
         signature, signing either as “Starla Rito” or “Starla Cox.” In six of
         them, the name “Starla” begins with a printed capital “S” that does
         not connect to the next letter: two signatures on voter-registration
         cards and four signatures on mortgage papers. The only exceptions
         are the petition signature and the affidavit, where the name begins
         with a cursive “S.”


143 Ohio St.3d 45, 2015-Ohio-718, 34 N.E.3d 94, ¶ 14-15. The record in this case
does not contain the voter-registration records for the 32 voters Heavey and Hudak
claim were improperly invalidated due to a print/cursive mismatch, meaning they
have not even proven that there was a print/cursive mismatch.
         {¶ 11} We find the same evidentiary problem when we examine some of
the 121 signatures originally identified in Heavey and Hudak’s merit brief. For
example, the Cuyahoga County board of elections invalidated the signature of
Mandy Neudecker as not genuine. Heavey and Hudak allege that the board abused
its discretion because the signature on the petition was sufficiently similar to the




                                          5
                               SUPREME COURT OF OHIO




one on file with the board, but a copy of the latter signature is not in the record.
The same is true of at least six other signatures that Heavey and Hudak allege were
erroneously labeled “NG.”3
        {¶ 12} Heavey and Hudak have not shown, by clear and convincing
evidence, a legal right to have their names placed on the May 8 ballot. As
previously stated, even if they made the required showing as to all the remaining
signatures, it would be insufficient to qualify them for the ballot. We therefore
deem it unnecessary to address the other issues raised in the briefs of the parties.
        {¶ 13} Based on the foregoing, we deny the request for a writ of mandamus.
                                                                             Writ denied.
        O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEGENARO, JJ., concur.
        DEWINE, J., not participating.
                                 _________________
        Brunner Quinn, and Patrick M. Quinn, for relators.
        Michael DeWine, Attorney General, and Renata Y. Staff and Sarah E.
Pierce, Assistant Attorneys General, for respondent Secretary of State Jon Husted.
        Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Brendan R. Doyle, Assistant Prosecuting Attorney, for respondent Cuyahoga
County Board of Elections.
        Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Timothy A.
Lecklider, Assistant Prosecuting Attorney, for respondent Franklin County Board
of Elections.




3
 Janetta Foster, Stepheny Caldonia, Mark Samaan, Chermaine Thomas, Deborah Lee, and Earlene
Robinson.




                                            6
                             January Term, 2018




       Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T.
Stevenson and Cooper D. Bowen, Assistant Prosecuting Attorneys, for respondent
Hamilton County Board of Elections.
       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Peter W.
Nischt and Rocky Radeff, Assistant Prosecuting Attorneys, for respondent Summit
County Board of Elections.
                             _________________




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