[Cite as O’Farrell v. Landis, 135 Ohio St.3d 181, 2013-Ohio-93.]




                             O’FARRELL v. LANDIS ET AL.
        [Cite as O’Farrell v. Landis, 135 Ohio St.3d 181, 2013-Ohio-93.]
Election contests—R.C. Chapter 3515—Rules of Civil Procedure inapplicable—
        Procedural motions denied—Election irregularities.
   (No. 2012-2151—Submitted January 15, 2013—Decided January 16, 2013.)
                               ON PROCEDURAL MOTIONS.
                                  __________________
        O’CONNOR, C.J., in Chambers.
        {¶ 1} This cause originated in this court on the filing of an election-
contest petition pursuant to R.C. 3515.08(B) by the contestor, Joshua O’Farrell.
O’Farrell moves to compel production of ballots pursuant to Civ.R. 37, to extend
the deadline by which to submit evidence pursuant to R.C. 3515.16, and for leave
to file a statement to supplement the motion to compel.            For the following
reasons, the motions are denied.
        {¶ 2} This is an election contest regarding the office of state
representative for the 98th House District for the state of Ohio, held in the
November 6, 2012 general election. O’Farrell, a Democrat, and contestee Al
Landis, a Republican, were the candidates.
        {¶ 3} On November 26, 2012, respondent Tuscarawas County Board of
Elections declared that Landis had defeated O’Farrell by a margin of 14 votes.
Because the difference between the number of votes cast for Landis and for
O’Farrell was less than one-half of one percent of the total vote, an automatic
recount was conducted by respondents Tuscarawas and Holmes County Boards of
Elections. R.C. 3515.011. On December 13, 2012, the Tuscarawas County Board
of Elections declared that Landis had defeated O’Farrell by a vote of 23,393 to
23,385, a difference of eight votes.
                             SUPREME COURT OF OHIO




        {¶ 4} On December 24, 2012, O’Farrell filed this case, contesting the
election. On that same day, the chief justice, pursuant to R.C. 3515.08(B), issued
a scheduling order in accordance with S.Ct.Prac.R. 13.2 (now S.Ct.Prac.R. 14.02)
and R.C. Chapter 3515. 133 Ohio St.3d 1510, 2012-Ohio-6099, 979 N.E.2d
1288.
        {¶ 5} In the first count of O’Farrell’s petition, he alleges that during the
recount, the Tuscarawas County Board of Elections tied on its vote on a motion to
have the board members review 14 ballots, one in each of 14 precincts. These
ballots had been successfully scanned but had been flagged by staff or an election
observer to be reviewed. Upon submission of the issue to the secretary of state to
break the tie, the secretary of state instructed the Tuscarawas board to use the
same ballot standard of review that he had instructed it to use on other ballots.
The board reviewed the 14 ballots and “remade”—that is, created a new ballot
reflecting the voter’s intent, to be rescanned and added to the total votes in the
recount—only one of the flagged ballots, thus narrowing the number of ballots at
issue to 13. O’Farrell disagrees with the Tuscarawas board’s actions, asserting
that it should have remade all 14 ballots and that the failure to do so constituted an
election irregularity.
        {¶ 6} O’Farrell moved for an order to hand-count or permit inspection of
the 13 ballots at issue in the first count of the petition, which the chief justice
denied on January 8, 2012. 134 Ohio St.3d 1401, 2013-Ohio-18, 980 N.E.2d
1042.
        {¶ 7} O’Farrell now moves for an order compelling production of the
ballots under Civ.R. 37, to extend the deadline by which to submit evidence, and
for leave to file a motion to supplement the motion to compel. Apparently the
Tuscarawas board allowed O’Farrell’s representative to visually inspect the
ballots at issue in three precincts, but not those in the remaining ten precincts. He
argues that he has a right to inspect these ballots under the Ohio Rules of Civil



                                          2
                                     January Term, 2013




Procedure. Landis responds that the civil rules do not apply in a special statutory
proceeding, citing Civ.R. 1(C).
        {¶ 8} Because this action is a special statutory procedure, O’Farrell
cannot invoke the Ohio Rules of Civil Procedure to obtain discovery. The Ohio
Rules of Civil Procedure provide that to the extent that they would by their nature
be clearly inapplicable, they do not apply in “special statutory proceedings,”
except where the statute provides for procedure under the rules. Civ.R. 1(C)(7).
R.C. 3515.12 provides that the court in which a contest of election is filed “may
summon and compel the attendance of witnesses, including officers of such
election, and compel the production of all ballot boxes, marking devices, lists,
books, ballots, tally sheets, and other records, papers, documents, and materials
which may be required at the hearing.” The statute contains no reference to the
rules of procedure. Thus, in accordance with Civ.R. 1(C)(7), R.C. 3515.12
governs discovery in an election contest.
        {¶ 9} The statute provides that “[t]he style and form of summons and
subpoenas and the manner of service and the fees of officers and witnesses shall
be the same as are provided in other cases, in so far as the nature of the
proceedings admits.” R.C. 3515.12. While the parties may adhere to the “style
and form” of summons and subpoenas envisioned by the rules of procedure, R.C.
3515.12 governs discovery in an election contest because the “nature of the
proceedings”—that is, the expeditious and special nature of the elections
contest—does not admit the strict application of the rules of procedure. R.C.
3513.12 therefore controls the procedures to be used for discovery in an election
contest.1



1. This is not to hold invalid any discovery conducted to this point by either party under the
apparent aegis of the civil rules. Any evidence so discovered will be admitted as if it had been
conducted under R.C. 3515.12, except as specifically denied by the chief justice here or in future
orders.




                                                3
                             SUPREME COURT OF OHIO




       {¶ 10} To ultimately prevail in this election contest, O’Farrell must
establish by clear and convincing evidence that one or more election irregularities
occurred and that the irregularity or irregularities affected enough votes to change
or make uncertain the result of the primary election. Maschari v. Tone, 103 Ohio
St.3d 411, 2004-Ohio-5342, 816 N.E.2d 579, ¶ 21.               O’Farrell failed to
demonstrate the necessity for a recount or for inspection of the 13 ballots referred
to in the first count of his petition because he failed to allege facts that identify
genuine election irregularities in the first count of his petition. The same logic
that supported the denial of O’Farrell’s motion for a recount or inspection applies
to O’Farrell’s present motion to compel production of the ballots.
       {¶ 11} Specifically, election irregularities must constitute more than a
disagreement with a board of elections in the execution of its proper duties or an
allegation that its members abused a discretion given them by statute. No case
specifically defines an “election irregularity,” but examples from numerous cases
indicate that it must at least involve the potential violation of a constitution,
statute, or rule pertaining to the election in question, or defective language on the
ballot, or some other egregious defect or fraud in the ballot or election procedure.
For example, in Squire v. Geer, 117 Ohio St.3d 506, 2008-Ohio-1432, 885 N.E.2d
213, ¶ 19, an election irregularity was found when a board of elections used a
configuration of voting machines that was not certified by the secretary of state or
the United States Election Assistance Commission as required by law. And in In
re Contest of Election Held on Stark Cty. Issue 6, 132 Ohio St.3d 98, 2012-Ohio-
2091, 969 N.E.2d 1172, the ballot language misstated the actual amount of the
levy by ten times less than the actual amount; in In re Election of November 6,
1990 for Office of Atty. Gen., 58 Ohio St.3d 103, 106–107, 569 N.E.2d 447
(1991), the ballot-rotation schedule was contrary to law. These violations of law
and procedure constituted election irregularities.




                                          4
                                 January Term, 2013




        {¶ 12} In contrast, here O’Farrell asserts that the Tuscarawas board failed
to remake 13 flagged ballots. He does not assert that they failed to examine or
consider the ballots or failed to follow the secretary of state’s directive to use the
same standard of ballot review that had already been employed by the board or
that fraud was committed by the board in its failure to remake the ballots. Rather,
he asserts that the board erred by refusing to remake the ballots. Instead of
identifying the violation of a law or other egregious defect in the election or
recount procedure, O’Farrell wants to substitute his judgment for that of the
board. This does not amount to an election irregularity.
        {¶ 13} Ultimately, the House of Representatives will decide the merits of
O’Farrell’s petition pursuant to R.C. 3515.14. O’Farrell will have the opportunity
to present his arguments for a recount or visual inspection to the House when the
election petition is before that body. But because O’Farrell has not yet identified
a genuine election irregularity in the first count in his petition, a visual inspection
or production of the ballots to support that count is not justified at this time.
                                                                      Motions denied.
                                __________________
        McTigue & McGinnis, L.L.C., Donald McTigue, J. Corey Colombo, and
Mark A. McGinnis, for contestor.
        Taft, Stettinius & Hollister, L.L.P., W. Stuart Dornette, Donald C. Brey,
and Beth A. Bryan, for contestee.
        Ryan Styer, Tuscarawas County Prosecuting Attorney; and Crabbe, Brown
& James, L.L.P., and Andy Douglas, Special Counsel, for respondent Tuscarawas
County Board of Elections.
                             ______________________




                                           5
