[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Coover v. Husted, Slip Opinion No. 2016-Ohio-5794.]




                                           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. 2016-OHIO-5794
                THE STATE EX REL. COOVER 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. Coover v. Husted, Slip Opinion No.
                                     2016-Ohio-5794.]
Elections—Mandamus—County-charter petitions—Secretary of state and boards
        of elections did not violate relators’ constitutional rights by examining
        proposed county charters to determine whether they satisfied threshold
        requirements of Article X, Section 3 of Ohio Constitution for inclusion on
        ballot—Secretary and boards did not abuse discretion in determining that
        proposed charters did not satisfy threshold requirements of Article X,
        Section 3—Writ denied.
(No. 2016-1247—Submitted September 7, 2016—Decided September 13, 2016.)
                                       IN MANDAMUS.
                                    _________________
                                SUPREME COURT OF OHIO




        Per Curiam.
        {¶ 1} This is an expedited election case in which relators seek a writ of
mandamus requiring respondents, Secretary of State Jon Husted and the boards of
elections of Athens, Meigs, and Portage Counties (“the boards of elections”),1 to
place proposed charters for those counties on the ballot at the November 8, 2016
general election. We hold that relators are not entitled to the writ.
                             Factual and procedural history
        {¶ 2} Relators are members of the committees that filed petitions under
Article X, Section 3 of the Ohio Constitution and R.C. 307.94 proposing the
adoption of county charters in Athens, Meigs, and Portage Counties.2
        {¶ 3} Each of the boards of elections reviewed the petition filed in its county
to determine its validity and whether it contained sufficient signatures. Though
determining that the petitions contained sufficient signatures, the boards
unanimously rejected the petitions as invalid. Relators filed a timely protest of each
of these decisions pursuant to R.C. 307.95(B). On August 15, 2016, Secretary
Husted issued a single decision denying all three protests and instructing the boards
not to place the proposed charters on the ballot.
        {¶ 4} On August 19, 2016, relators initiated this action as an expedited
election matter pursuant to S.Ct.Prac.R. 12.08. They seek a writ of mandamus
requiring Secretary Husted and the boards of elections to place the proposed
charters on the ballot.



1
  The Athens County Board of Elections includes Helen Walker, Kate McGuckin, Ken Ryan, and
Aundrea Carpenter-Colvin. The Meigs County Board of Elections includes Charles E. Williams,
David W. Fox, Rita Slavin, and James V. Stewart. The Portage County Board of Elections includes
Craig M. Stephens, Patricia Nelson, Andrew Manning, and Doria Daniels.
2
  Virginia L. Coover, John Howell, Richard McGinn, Michael H. Rowe, and Sally Jo Wiley are
members of the committee that filed the Athens County petition. Dennis J. Sargent, Kathy Lynn
Sargent, Gregory D. Howard, and Marsha Nagy Whitton are members of the committee that filed
the Meigs County petition. Kathleen M. Schumann, Gwen B. Fischer, Bradford Brotje, JoEllen
Armstrong, and Sandra Engle are members of the committee that filed the Portage County petition.




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                                January Term, 2016




                               Summary of the issues
       {¶ 5} The Athens County Board of Elections rejected the Athens County
committee’s petition because it failed to alter the form of government, failed to vest
powers from the municipalities and townships with the county, and relied on the
Revised Code to determine the qualifications and salaries of elected officials. The
Meigs County and Portage County boards of elections rejected the petitions filed
in their counties because they failed to provide for a county executive under R.C.
302.02.
       {¶ 6} In denying relators’ protests, Secretary Husted reasoned that the
petitions were invalid because the proposed charters failed to provide for the
performance of all duties imposed on county officers. He also indicated that while
the petitions could be interpreted as attempting to establish an alternative form of
government under R.C. Chapter 302, the proposed charters failed to provide for
either an elective or appointive county executive. He now argues that the petitions
are invalid because the proposed charters do not include the information required
under Article X, Section 3 of the Ohio Constitution to constitute a valid county
charter.
       {¶ 7} Relators contend that the secretary of state’s and the boards of
elections’ pre-election examination of the content of the proposed charters violated
their constitutional rights; alternatively, they argue that the secretary of state and
the boards of elections abused their discretion in conducting the pre-election
review. They contend that the proposed charters do include a form of government
and do provide for the exercise of all necessary powers and duties.
                                    Legal analysis
                   Pre-election review of the proposed charters
       {¶ 8} Article X, Section 3 of the Ohio Constitution requires a county charter
to set forth certain information.




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       Every such charter shall provide the form of government of the
       county and shall determine which of its officers shall be elected and
       the manner of their election. It shall provide for the exercise of all
       powers vested in, and the performance of all duties imposed upon
       counties and county officers by law.


       {¶ 9} We have previously determined that it is within the secretary of state’s
discretion to determine whether a proposed county charter is invalid on the ground
that it does not set forth the form of government, “which is the sine qua non of a
valid charter initiative.” State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-
Ohio-3749, 43 N.E.3d 419, ¶ 24. Similarly, the county boards of elections have the
authority “to review, examine, and certify ‘the sufficiency and validity of
petitions.’ ” Id. at ¶ 11, quoting R.C. 3501.11(K).
       {¶ 10} Relators, however, claim that permitting any pre-election review of
the content of their proposed charters violates their First Amendment rights and ask
us to overturn Walker “to the extent that it authorizes pre-election review of the
substance of the Charters at issue.”
       {¶ 11} Walker, however, does not stand for the proposition that the
secretary of state or a board of elections may conduct a substantive review of the
content of a proposed charter; instead, Walker recognizes the authority of election
officials to determine whether a charter initiative meets the threshold requirements
for inclusion on the ballot. Here, as in Walker, the boards of elections and the
secretary of state invalidated the petitions on the grounds that the proposed charters
failed to set forth the information required under Article X, Section 3 of the Ohio
Constitution.   Their determinations were consistent with our prior decisions
authorizing election officials to determine whether a proposal exceeds the scope of
the authority under which it is placed on the ballot. See, e.g., State ex rel. Choices
for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840




                                          4
                                  January Term, 2016




N.E.2d 582 (determining that the board of elections did not abuse its discretion by
refusing to place an attempted levy repeal on the ballot under a statutory provision
authorizing ballot measures for levy reductions).
          {¶ 12} Relators further contend that the secretary of state and the boards of
elections violated another fundamental right—an asserted right to local self-
government—by imposing requirements on a county charter petition. However,
we are reluctant to consider the broader application of Article X, Section 3 in the
context of this expedited mandamus case, which seeks to place specific proposals
on the ballot. Relators have failed to persuasively demonstrate why we should
recognize a new fundamental right in the current proceeding.
          {¶ 13} Moreover, there is no indication that the boards of elections or the
secretary of state attempted to thwart the principles of local self-government. They
did not deny relators the right to establish a charter form of county government;
instead, they merely examined the charter initiatives to determine whether they met
the threshold requirements for inclusion on the ballot.
          {¶ 14} Pursuant to Walker, the secretary of state and the boards of elections
did not violate relators’ constitutional rights by examining the proposed county
charters to determine whether they included the information required under Article
X, Section 3 to constitute a valid charter initiative.
                   Validity of the petitions under Article X, Section 3
          {¶ 15} In support of his decision denying relators’ protests, Secretary
Husted argues that the proposed charters were deficient for failing to provide for
the exercise of “all powers” vested in, and for failing to provide for the performance
of “all duties” imposed upon, counties and county officers. The boards of elections
of Athens and Portage Counties similarly contend that the proposed charters failed
to adequately provide for the exercise of these powers and the performance of these
duties.




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          {¶ 16} The proposed charters include broad language ostensibly fulfilling
this requirement. Other than the name of the specified county, the language in all
three proposals is identical. The relevant charter language states:


                 The County * * * is responsible within its boundaries for the
          exercise of all powers vested in, and the performance of all duties
          imposed upon, counties and County officers by general law * * *.
          ***
                 When not prescribed by the Charter or by amendment to this
          Charter, by local law enacted by the County Commissioners, or by
          local law enacted by the people, such powers shall be exercised in
          the manner prescribed by the Constitution of Ohio or by general law.


          {¶ 17} Secretary Husted and the boards of elections reasonably determined
that this language is insufficient to provide for the exercise of all powers vested in,
and the performance of all duties imposed upon, counties and county officers. As
in Walker, the powers and duties are not individually delineated, forcing one to
“look to sources outside the proposed charters to determine the form of government
they purport to establish, and therefore they do not satisfy the legal prerequisites.”
Walker, 144 Ohio St.3d 419, 2015-Ohio-3749, 43 N.E.3d 419, at ¶ 23.
          {¶ 18} Accordingly, we conclude that the secretary of state and boards of
elections did not abuse their discretion in determining that the proposed county
charters fail to satisfy the requirements under Article X, Section 3 of the Ohio
Constitution for a valid charter initiative.
                                                                         Writ denied.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and FRENCH, JJ.,
concur.
          KENNEDY, J., concurs in judgment only.




                                           6
                                January Term, 2016




        O’NEILL, J., dissents, with an opinion.
                               _________________
        O’NEILL, J., dissenting.
        {¶ 19} Respectfully, I must dissent.
        {¶ 20} R.C. Chapter 302 regulates adoption of an “alternative form of
county government.” For at least two reasons, the provisions in Chapter 302 are
separate and distinct from the review of the validity of a charter petition submitted
under Article X, Section 3 of the Ohio Constitution.
        {¶ 21} First, Article X, Section 3 makes no mention of “alternative form[s]
of county government.” Article X, Section 3 authorizes the people of a county to
“frame and adopt or amend a charter.” That section does not empower the General
Assembly to further limit the form of county government that may be enacted by
the people. Article X, Section 3 states generally that a “charter shall provide the
form of government of the county and shall determine which of its officers shall be
elected and the manner of their election.” The proposed charters at issue here
accomplish this by reference to some but not all of the provisions of the Revised
Code.
        {¶ 22} And why not? The majority would prefer that relators reinvent the
wheel of government in one document. I disagree.
        {¶ 23} Second, Article X, Section 1 is the only portion of the Ohio
Constitution that does mention “alternative forms of county government.” On a
plain reading, that section requires the General Assembly to create counties and
authorizes the General Assembly to offer “alternative forms of county government”
that may be submitted to and adopted by the electors of the various counties. The
adjectival use of “alternative” suggests a circumstance in which several options are
made available and one option may be chosen. To the extent that R.C. Chapter 302
provides several frameworks for a county government that may be adopted by a




                                          7
                                 SUPREME COURT OF OHIO




majority of the electors of a county, the law comports with Article X, Section 1 of
the Ohio Constitution. There is no conflict here.
        {¶ 24} To the extent that the secretary of state asks this court to apply the
provisions of the Revised Code to limit the form of government that the people may
adopt for themselves through Article X, Section 3, that interpretation exceeds the
constitutional authority of the General Assembly and the secretary of state by
invading the broad power reserved to the people. The secretary of state does not
have the power to veto charter petitions on behalf of the oil and gas industry simply
because the citizens did not pick exclusively from the two forms of county
government delineated in R.C. 302.02.3 This is a usurpation of power from the
people that we should not indulge.
        {¶ 25} Although not required by Article X, Section 3, the General
Assembly provided statutory ballot access for citizens who wish to propose a new
county charter. See R.C. 307.94 and 307.95. Given the reticence that the various
boards of elections and secretary of state have shown toward the people and their
attempts to self-govern, I refer all interested Ohioans to Article X, Section 4, which
provides for an alternative form of ballot access:


                 The legislative authority of any county, upon petition of ten
        per cent of the electors of the county, shall forthwith, by resolution,
        submit to the electors of the county, in the manner provided in this
        section for the submission of the question whether a charter
        commission shall be chosen, the question of the adoption of a charter
        in the form attached to such petition.




3
  R.C. 302.02 names two alternative forms, the “elective executive plan” and the “appointive
executive plan.” R.C. 302.02 refers to the applicable statutory provisions that define each plan.




                                               8
                                January Term, 2016




        {¶ 26} The citizens of all 88 counties have the right to choose their form of
county government. The majority limits the right of the citizens of Athens, Meigs,
and Portage Counties to choose a charter.
        {¶ 27} To be clear, I dissent.
                                _________________
        James Kinsman and Terry J. Lodge, for relators.
        Michael DeWine, Attorney General, and Nicole M. Koppitch and Brodi J.
Conover, Assistant Attorneys General, for respondent Secretary of State Jon
Husted.
        Keller J. Blackburn, Athens County Prosecuting Attorney, and Zachary L.
Saunders, Assistant Prosecuting Attorney, for respondents Athens County Board of
Elections and its members.
        Victor V. Vigluicci, Portage County Prosecuting Attorney, and Denise L.
Smith and Charmine Ballard, Assistant Prosecuting Attorneys, for respondents
Portage County Board of Elections and its members.
        Chad A. Endsley, Leah F. Curtis, and Amy M. Milam, urging denial of the
writ for amici curiae Ohio Farm Bureau Federation, Athens-Meigs Farm Bureau,
and Portage County Farm Bureau.
        Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield Hughes, and Kathleen
M. Trafford, urging denial of the writ for amici curiae Ohio Chamber of Commerce,
Affiliated Construction Trades Ohio Foundation, and the American Petroleum
Institute.
        McTigue & Colombo, L.L.C., and Donald J. McTigue, urging denial of the
writ for amici curiae Affiliated Construction Trades Ohio Foundation and the
American Petroleum Institute.
        Vorys, Sater, Seymour & Pease, L.L.P., Lisa Babish Forbes, Aaron M.
Williams, and Natalia Cabrera, urging denial of the writ for amicus curiae Ohio Oil
and Gas Association.




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