[Cite as State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374.]




        THE STATE EX REL. OWENS v. BRUNNER, SECY. OF STATE, ET AL.
[Cite as State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374.]
Elections — Mandamus — Writ of mandamus sought to compel the secretary of
        state to certify relator as a candidate and to instruct the boards of
        elections to place relator’s name on the primary-election ballot — Petition
        signatures improperly invalidated by board of elections — Writ of
        mandamus granted.
   (No. 2010-0481 — Submitted March 29, 2010 — Decided March 31, 2010.)
                                      IN MANDAMUS
                                  __________________
        Per Curiam.
        {¶ 1} This is an expedited election action for a writ of mandamus to
compel the certification of relator as a candidate for the Constitution Party
nomination for election to the office of Ohio Attorney General at the May 4, 2010
primary election.      Because respondents, Secretary of State of Ohio Jennifer
Brunner and the Franklin County Board of Elections, abused their discretion and
clearly disregarded applicable law in rejecting relator’s candidacy, we grant the
requested extraordinary relief in mandamus.
                                           Facts
        {¶ 2} On February 18, 2010, relator, Robert Owens, filed a declaration of
candidacy and candidate petition with respondent secretary of state. Owens seeks
to be a candidate for the Constitution Party nomination for Attorney General of
Ohio at the May 4, 2010 primary election. When the petition was filed, Owens
received a statement from the secretary of state’s office stating that he had filed
approximately 980 petition signatures.
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       {¶ 3} On February 22, 2010, in accordance with R.C. 3513.05, the
secretary of state transmitted Owens’s part-petitions purporting to contain
signatures of certain counties to the pertinent boards of elections for an
examination of the signatures on the part-petitions. The secretary of state also
issued Directive 2010-28, which provided instructions to the boards of elections
for an examination of the signatures on the part-petitions.          The secretary’s
instructions included:
       {¶ 4} “Each signature must be individually examined. If a signature is
valid, please place a red check mark at the left margin beside it. After checking
an entire part petition, please write on the right side of the front page of each part
petition both the number of valid signers and the initials of the board employee
who checked the part petition under the number.
       {¶ 5} “If a signature is not valid, please indicate the problem with it by
using the following lettered codes or, if no lettered code applies, an explanatory
notation:
       {¶ 6} “* * *
       {¶ 7} “ILL ‘Illegible’ applies only if both the signature and address are
unreadable, so that it is impossible to check the signature against a voter
registration record.
       {¶ 8} “* * *
       {¶ 9} “NG ‘Not Genuine.’ The signature on the petition does not appear
to be the genuine signature of the person whose signature it purports to be,
compared to the signature on file with the board of elections as of the date the
board checks the petition.
       {¶ 10} “NR ‘Not Registered.’ The signer is not registered to vote. Each
person who signs a part petition must be a qualified elector as of the date the
petition was filed with the Secretary of State’s office.” (Emphasis omitted.)




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        {¶ 11} Nineteen of the part-petitions were transmitted to respondent
Franklin County Board of Elections, which examined the 547 signatures
contained in the part-petitions. The board determined that 162 of the submitted
signatures were valid and that the remaining 385 signatures were invalid.
Pursuant to R.C. 3513.05, the board returned the petition papers to the secretary
of state with its certification of its determination of the validity of the signatures.
        {¶ 12} On March 5, 2010, the secretary of state issued Directive 2010-42
to the county boards of elections.        The directive contained the form of the
primary-election ballots for the major and minor political parties, including the
Constitution Party, but Owens’s name did not appear on the form as a candidate
for the primary election. By letter dated the same day that the directive was
issued, the secretary of state notified Owens that she was not certifying his
candidacy because of a lack of sufficient valid signatures on his petition. The
secretary determined that Owens had submitted 481 signatures, which was 19
signatures less than the 500 valid signatures required for his name to be placed on
the primary-election ballot.
        {¶ 13} On that same day, Owens requested and received copies of the
part-petitions he had filed and those filed by Eric Deaton, a candidate for the
Constitution Party nomination for the United States Senate, which the board had
previously examined. On March 6, 2010, Owens attended a special meeting of
the Franklin County Board of Elections and requested that the board conduct a
second review of his part-petitions because “signatures were improperly
invalidated as being illegible.” On March 9, Owens contacted the board’s deputy
director by e-mail to follow up on his request. In his e-mail, Owens claimed that
there were “FAR more than 19 signatures from Franklin County alone that were
invalidated improperly.” The deputy director suggested that Owens contact the
secretary of state’s office and informed him that if the secretary asked the board to
review the part-petitions a second time, the board would do so. The secretary’s



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office then advised the deputy director that if the board determined that it had
made an error in its certification of the number of valid signatures on the
candidate’s petition, the board could amend the certification.       The board of
elections, however, refused to recheck Owens’s part-petitions.
          {¶ 14} On March 15, Owens filed this expedited election action for a writ
of mandamus to compel the secretary of state to certify his candidacy for the
Constitution Party nomination for the office of Ohio Attorney General and to
instruct the boards of elections to place his name on the May 4, 2010 primary-
election ballot or, in the alternative, to compel the Franklin County Board of
Elections and other elections boards to recheck his part-petitions in conformity
with Secretary of State Directive 2010-28 and to certify his candidacy.
Respondents filed answers, and the parties submitted evidence and briefs pursuant
to S.Ct.Prac.R. 10.9. Insofar as Owens attempts to submit evidence with his reply
brief, we will not consider it because it was not submitted in accordance with
S.Ct.Prac.R. 10.9.
          {¶ 15} This cause is now before the court for our determination of the
merits.
                                   Legal Analysis
                                       Laches
          {¶ 16} Respondents both claim that Owens’s mandamus claim is barred
by laches. Relators in election cases are required to act with the utmost diligence.
State ex rel. Chillicothe v. Ross Cty. Bd. of Elections, 123 Ohio St.3d 439, 2009-
Ohio-5523, 917 N.E.2d 263, ¶ 9. “If relators in election cases do not exercise the
utmost diligence, laches may bar an action for extraordinary relief.” State ex rel.
Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882
N.E.2d 435, ¶ 11. “The elements of laches are (1) unreasonable delay or lapse of
time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge,
actual or constructive, of the injury or wrong, and (4) prejudice to the other




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party.” State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d
143, 145, 656 N.E.2d 1277.
       {¶ 17} Owens had notice of the secretary’s March 5 decision on that same
day because, as he admits, on that day, he requested work logs and copies of the
part-petitions that he had filed and those filed by Senate candidate Deaton. There
would have been no reason for Owens to request these records if he had been
certified to the primary-election ballot. Owens thus delayed ten days from that
date to file this expedited-election case challenging the secretary’s decision not to
place his name on the primary ballot.
       {¶ 18} Respondents are correct that “we have held that a delay as brief as
nine days can preclude our consideration of the merits of an expedited election
case.” (Emphasis sic.) State ex rel. Landis v. Morrow Cty. Bd. of Elections
(2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775. But here, at least some of
Owens’s delay in filing this action was reasonable. Part of the ten-day delay
resulted from Owens’s diligent efforts to obtain records related to the board’s
review of his part-petitions and to request the board to review them again. Cf.
Craig, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 16 (court rejected
laches as a bar to expedited-election case when “[m]uch of the nine-day period [to
file the case] after the board’s denial of the protest here resulted from [relator’s]
diligent efforts to secure legal counsel to review the merits of a possible legal
challenge to the decision”). In fact, the secretary’s office indicated in a March 11
e-mail to a board-of-elections official that the board was authorized to act upon
Owens’s request to again review his part-petitions to determine whether to amend
its prior certification and that “amending is a means of avoiding costly litigation.”
       {¶ 19} Moreover, “we generally require a showing of prejudice before we
apply laches to bar a consideration of the merits of an election case.” State ex rel.
Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299, 2007-Ohio-5228, 874
N.E.2d 1205, ¶ 11. “Normally, this prejudice in expedited election cases occurs



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because relators’ delay prejudices respondents by making the case an expedited
election case under S.Ct.Prac.R. [10.9], which restricts respondents’ time to
prepare and defend against relators’ claims, or impairs boards of elections’ ability
to prepare, print, and distribute appropriate ballots because of the expiration of the
time for providing absentee ballots.” State ex rel. Willke v. Taft, 107 Ohio St.3d
1, 2005-Ohio-5303, 836 N.E.2d 536, ¶ 18.
        {¶ 20} Owens’s delay in filing this case did not cause it to become an
expedited election case under S.Ct.Prac.R. 10.9, which provides an accelerated
schedule for the submission of a response, evidence, and briefs when an original
action relating to a pending action is filed within 90 days before the election. This
case would still have been an expedited election case governed by S.Ct.Prac.R.
10.9 even if Owens had filed this case on the same March 5 date that the secretary
issued the directive specifying the form for the primary-election ballots, which did
not include Owens’s name. Therefore, respondents’ ability to prepare and defend
against Owens’s mandamus claim has not been impacted by the delay. See State
ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979,
¶ 28.
        {¶ 21} Although the absentee-ballot deadline will have passed by the time
our decision in this case is announced, that date would likely have passed even if
Owens had filed this case within a week of the date the secretary issued her
decision that his name would not be on the primary-election ballot. See Brinda,
115 Ohio St.3d 299, 2007-Ohio-5228, 874 N.E.2d 1205, ¶ 13. “This is thus a
case in which the statutory time limits would have expired even ‘under the best of
circumstances.’ ”    State ex rel. Choices for South-Western City Schools v.
Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 28, quoting State
ex rel. Squire v. Taft (1994), 69 Ohio St.3d 365, 369, 632 N.E.2d 883.
        {¶ 22} Finally, there is no evidence that Owens’s delay in filing this case
was intentionally engineered to obtain a strategic advantage. Cf. State ex rel. The




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                                January Term, 2010




Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 113, 712
N.E.2d 696 (expedited election claim barred by laches because of relators’ delay
and acts of gamesmanship).
       {¶ 23} Therefore, laches does not bar our consideration of the merits of
this expedited election case, and a consideration of the merits of Owens’s
mandamus claim is warranted. This is consistent with “the fundamental tenet of
judicial review in Ohio,” which “is that courts should decide cases on their
merits.” State ex rel. Becker v. Eastlake (2001), 93 Ohio St.3d 502, 505, 756
N.E.2d 1228.
                                     Mandamus
       {¶ 24} Owens primarily requests a writ of mandamus to compel the
secretary of state to certify him as a candidate for the Constitution Party’s
nomination for election to the office of Ohio Attorney General and to instruct the
county boards of election to place his name on the May 4, 2010 Constitution Party
primary-election ballot.
       {¶ 25} To be entitled to the requested extraordinary relief, Owens must
establish a clear legal right to the requested relief, a corresponding clear legal duty
on the part of the secretary of state to provide it, and the lack of an adequate
remedy in the ordinary course of the law.         State ex rel. LetOhioVote.org v.
Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 13. Because
of the proximity of the May 4 primary election, Owens has established that he
lacks an adequate remedy in the ordinary course of the law. State ex rel. Greene
v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907
N.E.2d 300, ¶ 10.
       {¶ 26} For the remaining requirements, “ ‘[i]n extraordinary actions
challenging the decisions of the Secretary of State and boards of elections, the
standard is whether they engaged in fraud, corruption, or abuse of discretion, or
acted in clear disregard of applicable legal provisions.’ ” State ex rel. Husted v.



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Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9, quoting
Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923,
778 N.E.2d 32, ¶ 11.
       {¶ 27} The secretary of state contends that under R.C. 3513.05, the
secretary is not subject to mandamus for an alleged error committed by a board of
elections in determining the validity of part-petition signatures sent to the board
by the secretary. While the secretary is correct that R.C. 3513.05 vests authority
in the boards of elections to determine the validity of signatures contained on
part-petitions of persons seeking to be candidates at a primary election, it is
ultimately the secretary of state who must, for statewide candidates, “certify to
each board in the state the forms of the official ballot to be used at the primary
election, together with the names of the candidates to be printed on the ballots
whose nomination or election is to be determined by electors throughout the entire
state and who filed valid declarations of candidacy and petitions.” R.C. 3513.05.
       {¶ 28} An aggrieved prospective candidate like Owens, who is
challenging the ultimate decision not to submit his name as a candidate on the
primary-election ballot, properly names the secretary of state as a respondent even
if he is challenging an election board’s verification decision, because the secretary
is the official who relies on the board’s determination and is ultimately
responsible to place the names of all legally viable candidates on the primary-
election ballots. A contrary holding would lead to the absurd result that a person
who is legally entitled to be a candidate because the person submitted sufficient
valid signatures to be placed on the primary-election ballot would be unable to
compel the official responsible for placing the names of primary-election
candidates on the ballot – the secretary of state – to do so. We will not construe
R.C. 3513.05 in this absurd manner to disenfranchise voters by limiting their
choice of candidates that election law dictates under these circumstances. We do
agree, however, that insofar as Owens requested in the alternative in his complaint




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that the Franklin County Board of Elections and other boards of elections recheck
the part-petitions in conformity with Secretary of State Directive 2010-28, no
statute or other law imposes this duty on the boards, and Owens is consequently
not entitled to that relief.
          {¶ 29} Therefore, to be entitled to the primary requested extraordinary
relief, Owens must establish that the secretary of state abused her discretion and
clearly disregarded applicable law by failing to certify his name as a candidate on
the May 4 primary-election ballot. The secretary relied on the certification by the
boards of elections of the number of valid signatures to conclude that Owens’s
petition contained 481 valid signatures, which is 19 signatures short of the 500
valid signatures needed for the placement of his name on the primary-election
ballot.    See R.C. 3513.05 (For primary elections, “[i]f the declaration of
candidacy declares a candidacy which is to be submitted to electors throughout
the entire state, the petition * * * shall be signed by at least one thousand qualified
electors * * * and the declaration of candidacy and petition shall be filed with the
secretary of state * * *. If the declaration of candidacy declares a candidacy for
party nomination or for election as a candidate of an intermediate or minor party,
the minimum number of signatures on such petition is one-half the minimum
number provided in this section”).
          {¶ 30} In this mandamus action, Owens challenges the Franklin County
Board of Elections’ rejection of 41 signatures. Of these 41 signatures, 22 were
rejected as illegible, 17 were rejected because the persons were not registered, one
was rejected as not genuine, and one was rejected as a printed signature. If
Owens is able to establish that at least 19 of these signatures were improperly
rejected, he would be entitled to the writ to compel the secretary of state to place
his name on the primary-election ballot.
          {¶ 31} Owens argues that because the board of elections found the “exact
same” signatures to be valid for Deaton’s part-petitions, the Constitution Party



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candidate for United States Senate, he has established his entitlement to the writ.
Not so. The signatures and accompanying written addresses on Owens’s part-
petitions are not exactly the same as the signatures and addresses on Deaton’s
part-petitions. And even if the signatures and addresses were identical, the board
could have erred by validating the signatures on Deaton’s part-petitions instead of
by invalidating the signatures on Owens’s part-petitions.
       {¶ 32} Nevertheless, Owens also argues that for his part-petitions,
“signatures found to be illegible were in fact legible,” and “voters found not to be
registered were in fact registered as evidenced by their certified voter registration
records attached to the evidence filed in this case.”         Owens has submitted
evidence that includes the part-petitions containing the specified signatures and
the board’s certified voter-registration records to support his claims.
       {¶ 33} The parties agree that the board of elections, in assessing the
validity of the signatures on Owens’s part-petitions, should have followed the
secretary’s instructions as incorporated in Secretary of State Directive 2010-28.
See R.C. 3501.11(P) (requiring boards of elections to “[p]erform other duties as
prescribed by law or the rules, directives, or advisories of the secretary of state”);
see also Colvin, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 57
(court will defer to secretary of state’s reasonable interpretation of election law).
None of the parties contests the legal propriety of these instructions, and in the
limited context of the case before us, we will not decide an issue that has not been
raised by the parties.
       {¶ 34} For illegible signatures, the secretary of state instructed the boards
of election that a “signature is illegible only if both the signature and address are
unreadable, such that it is impossible for board personnel to check the signature
against a voter registration record.” (Emphasis sic.) Our review of the evidence
establishes that at least 8 of the 22 signatures rejected for illegibility were




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sufficiently legible even if the signatures were not readable, because the addresses
were readable and the signatures matched the board’s records.
       {¶ 35} Furthermore, our review of the evidence submitted shows that at
least 11 of the 17 signatures rejected as being from unregistered voters were
improperly rejected, because the board’s records show that the persons are
registered to vote and that their petition signatures match their signatures on file.
       {¶ 36} Although the board of elections submitted evidence that its
manager of elections operations reviewed the pertinent signatures on March 23,
2010, and determined that at most “only four” of the signatures “could arguably
be found to be valid,” the court’s review of the actual part-petitions and certified
registration records contradicts this statement and establishes otherwise.
       {¶ 37} Owens has established that the board of elections erred in rejecting
at least the 19 signatures that he needed to meet the 500-signature requirement of
R.C. 3513.05 to have his name placed on the May 4 primary-election ballot. We
appreciate the difficulties that elections officials have in reviewing a high volume
of signatures and part-petitions in the often abbreviated time period required by
the election laws, and we accord due deference to these officials’ determinations
when they are reasonably supported.            But when a prospective candidate
establishes that the board erred in rejecting valid signatures and those signatures
justify the candidate’s placement on the ballot, we must grant a writ ordering the
secretary to place the candidate’s name on the ballot. Accordingly, the board
abused its discretion and clearly disregarded applicable law in failing to certify
the validity of the signatures. The secretary of state has a clear legal duty to place
Owens’s name on the primary-election ballot.
                                     Conclusion
       {¶ 38} Based on the foregoing, Owens has established his entitlement to
the requested extraordinary relief. We grant a writ of mandamus to compel the
secretary of state to certify Owens’s name as a candidate for the Constitution



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Party nomination for the office of Ohio Attorney General and to instruct the
boards of election to place Owens’s name on the May 4, 2010 primary-election
ballot.1
           {¶ 39} We observe that in the case before us, Owens seeks to have his
petitions certified in connection with his candidacy for Ohio Attorney General in
the May 4, 2010 Constitution Party primary election. This case demonstrates that
the election timeline promulgated by the General Assembly does not allow
sufficient time for review and certification of nominating petitions by election
officials or for consideration of legal challenges by this court. We note that this is
a matter of importance for the General Assembly to address.
                                                                         Writ granted.
           MOYER, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
           LUNDBERG STRATTON, J., dissents.
                                  __________________
           LUNDBERG STRATTON, J., dissenting.
           {¶ 40} I respectfully dissent from the majority’s decision to grant the writ
of mandamus. I believe that it is too late for us to issue a mandamus in this case.
This court should hold that the beginning of the voting process terminates our
ability to rule further on election challenges.
           {¶ 41} Although the issues were briefed before balloting started, we have
not had sufficient time to review the issues. Indeed, most of the ballots were
probably printed by the time the briefs were filed in this case.             “A State
indisputably has a compelling interest in preserving the integrity of its election
process.” Eu v. San Francisco Cty. Democratic Cent. Commt. (1989), 489 U.S.
214, 231, 109 S.Ct. 1013, 103 L.Ed.2d 271. Moreover, “[c]onfidence in the


1. We deny Owens’s request for attorney fees.




                                                12
                                   January Term, 2010




integrity of our electoral processes is essential to the functioning of our
participatory democracy.” Purcell v. Gonzalez (2006), 549 U.S.1, 4, 127 S.Ct. 5,
166 L.Ed.2d 1.
       {¶ 42} “Court orders affecting elections, especially conflicting orders, can
themselves result in voter confusion and consequent incentive to remain away
from the polls. As an election draws closer, that risk will increase.” Id. at 4-5.
Clearly then, when an election has already started, a decision such as the
majority’s will unmistakably cause confusion and disillusionment.           See also
Westermann v. Nelson (1972), 409 U.S. 1236, 1236-1237, 93 S.Ct. 252, 34
L.Ed.2d 207 (W.O. Douglas, Circuit Justice), denying an injunction to add a
candidate’s name to the Arizona ballot:
       {¶ 43} “The complaint may have merit. But the time element is now short
and the ponderous Arizona election machinery is already under way, printing the
ballots. Absentee ballots have indeed already been sent out and some have been
returned. The costs of reprinting all the ballots will be substantial and it may well
be that no decision on the merits can be reached by the Court of Appeals in time
to reprint the ballots excluding petitioners, should they lose on the merits.
       {¶ 44} “* * *
       {¶ 45} “On the basis of [the] papers [submitted by the parties] I have
concluded that in fairness to the parties I must deny the injunction, not because
the cause lacks merit but because orderly election processes would likely be
disrupted by so late an action.”
       {¶ 46} Absentee ballots have now been mailed, and voting has
commenced. While I believe this ballot involves only one unopposed candidate
and may not disrupt the process too much in the number of ballots requested, a
ballot in a contested race that would need to be changed after being mailed (and
possibly already marked and returned) could wreak serious havoc on our system




                                           13
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of orderly elections. This case will now be precedent should such a scenario
arise.
         {¶ 47} I strongly urge the General Assembly to examine this issue and
impose deadlines or restrictions on future ballot challenges. To allow challenges
to continue after ballots have already been printed and mailed is a costly and
disruptive result that must be fixed. The majority believes that the current law
requires today’s result despite the consequences. I dissent and would hold that the
beginning of the voting process terminates this court’s jurisdiction to alter the
orderly voting process.
                              __________________
         Robert M. Owens, pro se.
         Richard Cordray, Attorney General, and Aaron D. Epstein, Richard N.
Coglianese, Damian W. Sikora, and Michael J. Schuler, Assistant Attorneys
General, for respondent Secretary of State Jennifer Brunner.
         Ron O’Brien, Franklin County Prosecuting Attorney, Nick A. Soulas Jr.,
First Assistant Prosecuting Attorney, and Anthony E. Palmer Jr., Assistant
Prosecuting Attorney, for respondent Franklin County Board of Elections.
                           ______________________




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