[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, Slip Opinion No. 2014-Ohio-4022.]




                                            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. 2014-OHIO-4022
               THE STATE EX REL. BROWN ET AL. v. ASHTABULA COUNTY
                                BOARD OF ELECTIONS ET AL.
      [Until this opinion appears in the Ohio Official Reports advance sheets,
       it may be cited as State ex rel. Brown v. Ashtabula Cty. Bd. of Elections,
                            Slip Opinion No. 2014-Ohio-4022.]
Elections—Mandamus—R.C. 3513.04—Writ sought to compel county board of
           elections to place relator’s name on ballot as judicial candidate—Writ
           denied.
(No. 2014-1405—Submitted September 3, 2014—Decided September 16, 2014.)
                                         IN MANDAMUS.
                                   ____________________
           Per Curiam.
           {¶ 1} Relators,       Thomas      Brown,      Clifford      Henry,   and   Michael
Vandervort,1 seek a writ of mandamus compelling respondents, the Ashtabula
County Board of Elections and its director, Duane Feher, to place Brown’s name

1
    Henry and Vandervoort are registered voters in Ashtabula County.
                             SUPREME COURT OF OHIO




on the November 4, 2014 ballot as a judicial candidate for the Ashtabula County
Western Area Court. Because relators have not shown a clear entitlement to this
extraordinary relief, we deny the writ.
                          Facts and Procedural History
       {¶ 2} Brown ran unsuccessfully to become the Democratic nominee for a
seat on the Ashtabula County common pleas court in the Democratic Party
primary election held on May 6, 2014.
       {¶ 3} On July 21, 2014, he filed nominating petitions to be a candidate
for judge on the Ashtabula County Western Area Court in the November 4, 2014
general election. The Ashtabula County Board of Elections, relying solely on
R.C. 3513.04, rejected Brown’s petitions.
       {¶ 4} Relators filed this action seeking a writ of mandamus to compel
the board to certify his candidacy for the Western Area Court, asserting that R.C.
3513.04 is unconstitutional.     We permitted Ohio Attorney General Michael
DeWine to intervene as a respondent to defend the constitutionality of the statute.
                                      Laches
       {¶ 5} The attorney general asserts that relators unreasonably delayed in
seeking relief and that this action is barred by the doctrine of laches. He suggests
that Brown knew or should have known that he intended to challenge the
constitutionality of R.C. 3513.04 on May 6, 2014, when he lost the primary
election, and that relators failed to exercise utmost diligence by not filing suit on
July 24, 2014, when Brown first learned that the board would not certify his
candidacy.
       {¶ 6} “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 party.” State
ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 656
N.E.2d 1277 (1995). Laches may bar relief in an election-related matter if the




                                          2
                               January Term, 2014




person seeking relief fails to act with the “ ‘utmost diligence.’ ” State ex rel.
Monroe v. Mahoning Cty. Bd. of Elections, 137 Ohio St.3d 62, 2013-Ohio-4490,
997 N.E.2d 524, ¶ 30, quoting State ex rel. Fuller v. Medina Cty. Bd. of Elections,
97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7.
       {¶ 7} Relators could not have filed this action on May 6, 2014, when
Brown lost the primary election, because relators had no claim for relief until the
board of elections refused to place Brown’s name on the ballot. State ex rel.
Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 16
(“Linnabary did not have a claim to assert until [the secretary of state] removed
his name from the ballot”). Nor were respondents prejudiced by the failure to file
suit on July 24, 2014, when Brown learned that the board would not certify his
candidacy. Had relators filed suit at that time, this mandamus action would not
have been docketed as an expedited election action, and the case might not have
been decided before the September 20, 2014 deadline for sending absentee ballots
to military and overseas voters, potentially placing the board in a significantly
worse position.
       {¶ 8} We therefore reject the claim that laches bars this action.
                                   Mandamus
       {¶ 9} The requirements for a writ of mandamus are well established: (1)
the relator must demonstrate a clear legal right to relief, (2) the respondent must
have a clear legal duty to perform the requested relief, and (3) there must be no
adequate remedy in the ordinary course of law. State ex rel. Harris v. Rhodes, 54
Ohio St.2d 41, 374 N.E.2d 641 (1978).
       {¶ 10} And as we explained in State ex rel. Pressley v. Indus. Comm., 11
Ohio St.2d 141, 228 N.E.2d 631 (1967),


       “the issuance of a writ of mandamus rests, to a considerable extent
       at least, within the sound discretion of the court to which



                                         3
                              SUPREME COURT OF OHIO




        application for the writ is made. The writ is not demandable as a
        matter of right, or at least is not wholly a matter of right; nor will it
        issue unless the relator has a clear right to the relief sought, and
        makes a clear case for the issuance of the writ. The facts submitted
        and the proof produced must be plain, clear, and convincing before
        a court is justified in using the strong arm of the law by way of
        granting the writ.”


Id. at 161, quoting 35 Ohio Jurisprudence 2d, Discretion as to Issuance,
Generally, Section 37, at 285.
        {¶ 11} A writ of mandamus is an extraordinary remedy, exercised by this
court with caution and issued only when the right is clear. State ex rel. Taylor v.
Glasser, 50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977); State ex rel. Shafer v.
Ohio Turnpike Comm., 159 Ohio St. 581, 589, 113 N.E.2d 14 (1953).
        {¶ 12} But relators are not only required to prove clear entitlement to
relief, they must also overcome the presumption of constitutionality afforded to
all acts of the General Assembly and demonstrate beyond a reasonable doubt that
R.C. 3513.04 is unconstitutional. State ex rel. Purdy v. Clermont Cty. Bd. of
Elections,, 77 Ohio St.3d 338, 345-346, 673 N.E.2d 1351 (1997); State ex rel.
Watson v. Hamilton Cty. Bd. of Elections, 88 Ohio St.3d 239, 261, 725 N.E.2d
255 (2000) (applying presumption of constitutionality to statute setting forth
qualifications for office of sheriff).
        {¶ 13} The United States Constitution provides that states may prescribe
“[t]he Times, Places and Manner of holding Elections for Senators and
Representatives,” Article I, Section 4, cl. 1, and the Supreme Court has
recognized that states retain the power to regulate their own elections. Burdick v.
Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).




                                           4
                                 January Term, 2014




          {¶ 14} To assess the constitutionality of a state election law, the court
must first “consider the character and magnitude of” the claimant’s alleged injury.
Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547
(1983).     If the regulation severely restricts voting rights, then strict scrutiny
applies and the law must be narrowly tailored to advance a compelling state
interest. Burdick at 434. We have explained that “a law severely burdens voting
rights if it discriminates based on political content instead of neutral factors or if
there are few alternative means of access to the ballot.” Watson, 88 Ohio St.3d at
243, 725 N.E.2d 255. But “not every statutory restriction limiting the field of
candidates need advance a compelling state interest,” id., and if the regulation is
minimally burdensome and nondiscriminatory, then “ ‘the State’s important
regulatory interests are generally sufficient to justify’ the restrictions,” Burdick at
434, quoting Anderson at 788.
          {¶ 15} Notably, we applied these standards to a prior version of R.C.
3513.04 in Purdy and upheld the statute against constitutional challenge. At that
time, paragraph three of the statute stated: “No person who seeks party
nomination for an office or position at a primary election * * * shall be permitted
to become a candidate by nominating petition * * * at the following general
election for any office by nominating petition or by declaration of intent to be a
write-in candidate.” Sub.S.B. No. 261, 146 Ohio Laws, Part VI, 10605, 10608.
We concluded that this statute imposed only a “very limited” and slight burden on
potential candidates, Purdy, 77 Ohio St.3d at 344, 673 N.E.2d 1351, “[did] not
unreasonably interfere with the right of voters to have candidates of their choice
placed on the ballot,” id., and was nondiscriminatory, id. at 343, and we explained
that “Ohio clearly has a legitimate interest in preventing potential conflicts among
party members, an interest in preventing the possibility of voter confusion, and an
interest in preventing candidacies that may conceivably be prompted by short-
range goals,” id. at 346.



                                          5
                            SUPREME COURT OF OHIO




       {¶ 16} Following our decision in Purdy, the General Assembly enacted a
number of amendments to R.C. 3513.04, and the statute now states:


                 No person who seeks party nomination for an office or
       position at a primary election * * * shall be permitted to become a
       candidate by nominating petition * * * at the following general
       election for any office other than the office of member of the state
       board of education, office of member of a city, local, or exempted
       village board of education, office of member of a governing board
       of an educational service center, or office of township trustee.


(Emphasis added for new material since 1997.)
       {¶ 17} Relators maintain that these amendments cannot survive strict
scrutiny, because these provisions arbitrarily and invidiously discriminate against
Brown and similarly situated individuals and severely burden fundamental rights
to associate and vote by limiting the field of candidates available to voters. And,
they contend, the restrictions imposed by the statute are purposeless; relators
claim that any state interest in regulating partisan elections does not apply to
candidates for nonpartisan office, that Brown’s candidacy was not short-sighted,
and that there is no chance of voter confusion or intraparty conflict in these
circumstances.
       {¶ 18} The attorney general responds that our decision in Purdy provides
the rule of decision in this case, that the rational-basis test should guide our
analysis, and that the legislature could reasonably conclude that “the risks
associated with second-chance/sore-loser candidacies (and the overall effect on
Ohio’s electoral integrity) are lessened within the context of educational and/or
highly localized positions” and that “there was more need to encourage and
incentivize candidacy for such positions.”




                                         6
                                 January Term, 2014




        {¶ 19} It is not clear on this record that the amendments enacted in 1998
are unconstitutional solely because the statute now permits unsuccessful primary
candidates the opportunity to file nominating petitions for some nonpartisan
offices—member of the state board of education, member of a city, local, or
exempted village board of education, member of a governing board of an
educational service center, or township trustee. These amendments increase voter
access and lessen the burdens on candidates who have run in a primary and who
have elected to refile for the above designated offices. See McDonald v. Bd. of
Election Commrs. of Chicago, 394 U.S. 802, 811, 89 S.Ct. 1404, 22 L.Ed.2d 739
(1969) (Illinois statute allowing some but not all inmates to receive absentee
ballots was constitutional, and the fact “[t]hat Illinois has not gone still further, as
perhaps it might, should not render void its remedial legislation”). And the statute
remains nondiscriminatory; although these amendments may treat offices
differently, all candidates are treated equally. Thus, any burden on voting rights
remains, as the court in Purdy put it, “slight” and “very limited,” and the state
interest required to justify it is correspondingly small.
        {¶ 20} There may be legitimate reasons that motivated the General
Assembly to designate certain offices for different treatment, and we lack the
benefit of a sufficiently developed record in this expedited election matter to
definitively state that the legislature lacked any basis for its actions. For example,
in this instance, having lost a primary election for common pleas court judge,
relator Brown seeks the opportunity to run for a different judicial office at the
general election held in the same year, which may be confusing to voters and
provide an advantage over other judicial candidates; but because there are no
primary elections for state board of education, there is no possibility of voter
confusion in that instance. See R.C. 3513.259 (“Nominations of candidates for
the office of member of the state board of education shall be made only by




                                           7
                             SUPREME COURT OF OHIO




nominating petition”).    These are policy considerations that belong with the
General Assembly, not the judiciary.
       {¶ 21} It is not sufficient for relators to cast doubt on the constitutionality
of this statute, nor is it the attorney general’s burden to prove the statute
constitutional; rather, relators must show beyond a reasonable doubt that R.C.
3513.04 is unconstitutional.    This is so, because “[t]he ability to invalidate
legislation is a power to be exercised only with great caution and in the clearest of
cases.” Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-
Ohio-357, 802 N.E.2d 632, ¶ 16.
       {¶ 22} The opinion concurring in judgment misses the point. Relators
seek extraordinary relief in this court and can obtain it only if they demonstrate
clear entitlement to the writ. The standards articulated by the Supreme Court in
Anderson and Burdick that apply in civil litigation challenging the
constitutionality of ballot restrictions inform our analysis, but those cases are not
writ actions and do not involve the unique burdens that control the adjudication of
original actions in this court. Otherwise, this case would present nothing more
than an action seeking a declaratory judgment that the statute is unconstitutional,
and we lack original jurisdiction to grant a declaratory judgment. State ex rel.
Ministerial Day Care Assn. v. Zelman, 100 Ohio St.3d 347, 2003-Ohio-6447, 800
N.E.2d 21, ¶ 22. Rather, the function of mandamus is to compel the performance
of a present existing duty. State ex rel. Willis v. Sheboy, 6 Ohio St.3d 167, 451
N.E.2d 1200 (1983), paragraph two of the syllabus.
       {¶ 23} The opinion concurring in judgment conflates the legal standards
at issue here. Although it purports to apply the principles of the ballot-access
cases in determining that R.C. 3513.04 is unconstitutional, it points to nothing in
the post-1998 amendments to the statute that burdens the right to vote or access to
the ballot. And it presumably agrees that any burden on Brown’s candidacy is
outweighed by the state’s legitimate interests, because it would uphold the ballot




                                         8
                                        January Term, 2014




restrictions if severed from the post-1998 amendments.                       Rather, the opinion
concurring in judgment purports to resolve an equal protection claim by severing
language from the statute, and equal protection claims are subject to rational-basis
review because “there is no fundamental right to run for public office.” State ex
rel. Keefe v. Eyrich, 22 Ohio St.3d 164, 165, 489 N.E.2d 259 (1986). This is the
reason why relators have the burden to do more than simply cast doubt on the
constitutionality of the statute to succeed.
           {¶ 24} For these reasons, relators have not overcome the presumption of
constitutionality,        nor    have     they    demonstrated        that    R.C.     3513.04         is
unconstitutional beyond a reasonable doubt. Hence, they have not shown a clear
entitlement to extraordinary relief.                No writ will issue in such doubtful
circumstances. Accordingly, we deny the requested writ of mandamus.
                                                                                       Writ denied.
           O’DONNELL, KENNEDY, and FRENCH, JJ., concur.
           O’CONNOR, C.J., and LANZINGER, J., concur in judgment only.
           PFEIFER, J., dissents.
           O’NEILL, J., not participating.
                                      ___________________
           O’CONNOR, C.J., concurring in judgment only.
           {¶ 25} I concur in the judgment of the court that relators are not entitled to
a writ of mandamus.2 However, the opinion adopted by a plurality of the court
employs the wrong legal standard to decide the case. I therefore write separately
to clarify the constitutional issues at play in this case.
           {¶ 26} We first considered the constitutionality of R.C. 3513.04 in State
ex rel. Purdy v. Clermont Cty. Bd. of Elections, 77 Ohio St.3d 338, 673 N.E.2d
1351 (1997).           As written at the time, R.C. 3513.04 operated to prevent


2
    I join the portion of the plurality opinion analyzing—and rejecting—the applicability of laches.




                                                   9
                             SUPREME COURT OF OHIO




unsuccessful primary candidates from seeking election to a different office in the
same election cycle, with no exceptions. The relators in Purdy challenged the
statute as violating ballot-access rights protected by the First and Fourteenth
Amendments to the United States Constitution. Id. at 341.
       {¶ 27} To decide the case, we applied the “modified balancing test”
adopted by the United States Supreme Court in Anderson v. Celebrezze, 460 U.S.
780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi, 504
U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Purdy at 342-343. We
held that R.C. 3513.04 was constitutional because it imposed only a “slight”
burden on First and Fourteenth Amendment rights, which was outweighed by
legitimate state interests promoted by the law. Id. at 346.
       {¶ 28} The constitutionality of R.C. 3513.04 is before us again because
the statute was modified in 1998 and subsequent years. The statute previously
allowed no exceptions; the amended law now permits “sore-loser” candidates to
launch second-chance campaigns for some, but not all, nonpartisan offices.


               No person who seeks party nomination for an office or
       position at a primary election * * * shall be permitted to become a
       candidate by nominating petition * * * at the following general
       election for any office other than the office of member of the state
       board of education, office of member of a city, local, or exempted
       village board of education, office of member of a governing board
       of an educational service center, or office of township trustee.


(Emphasis added for new material since 1997.)
       {¶ 29} The addition of a limited pool of exempt offices to R.C. 3513.04
raises two distinct constitutional questions, which the parties’ briefs unfortunately
conflate.   The obvious question is whether the exceptions create an equal-




                                         10
                               January Term, 2014




protection problem, an issue that was not before the Purdy court. But this case
also requires us to revisit the question whether the statute, as amended, continues
to promote state interests sufficient to outweigh the burden on relators’ First and
Fourteenth Amendment ballot-access rights.
             First Amendment rights: Anderson/Burdick balancing
       {¶ 30} Ballot-access restrictions place burdens on two different, but
overlapping, rights enjoyed by electors such as relators Clifford Henry and
Michael Vandervort: “the right of individuals to associate for the advancement of
political beliefs, and the right of qualified voters, regardless of their political
persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30,
89 S.Ct. 5, 21 L.Ed.2d 24 (1968).       These rights are protected against state
encroachment by the First and Fourteenth Amendments. Id. at 30-31. The First
Amendment also protects the parallel rights of candidates, such as relator Thomas
Brown, affected by ballot-access regulations. “[B]allot access cases based on
First Amendment grounds have rarely distinguished between the rights of
candidates and the rights of voters.” Cook v. Gralike, 531 U.S. 510, 531, 121
S.Ct. 1029, 149 L.Ed.2d 44 (2001) (Rehnquist, C.J., concurring in judgment),
citing Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).
       {¶ 31} To assess the constitutionality of a ballot-access law under the First
Amendment, a reviewing court engages in the balancing inquiry described in
Anderson and Burdick. Anderson/Burdick balancing is a “two-step” inquiry. See
Navarro v. Neal, 716 F.3d 425, 430 (7th Cir.2013); Coalition for Free & Open
Elections, Prohibition Party v. McElderry, 48 F.3d 493, 497 (10th Cir.1995).
       {¶ 32} First, the court must “consider the character and magnitude of the
asserted injury to the rights protected by the First and Fourteenth Amendments
that the plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789, 103 S.Ct. 1564,
75 L.Ed.2d 547. Second, the court must weigh the character and magnitude of
that constitutional injury against “ ‘the precise interests put forward by the State



                                        11
                             SUPREME COURT OF OHIO




as justifications for the burden imposed by its rule.’ ” Burdick, 504 U.S. at 434,
112 S.Ct. 2059, 119 L.Ed.2d 245, quoting Anderson at 789.
       {¶ 33} The magnitude of the burden determines the appropriate level of
scrutiny the statute will receive. Purdy, 77 Ohio St.3d at 343, 673 N.E.2d 1351;
Burdick at 434. If an election regulation severely burdens the plaintiff’s rights,
then the statute is subject to strict scrutiny, which is to say the regulation must be
narrowly drawn to advance a state interest of compelling interest. Burdick at 434.
In all other cases, where the ballot-access regulation imposes some burden on
First Amendment rights, however minimal, the court must weigh those burdens
against the interest asserted by the state. “However slight [the] burden [that a
state law imposes] may appear, * * * it must be justified by relevant and
legitimate state interests ‘sufficiently weighty to justify the limitation.’ ”
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191, 128 S.Ct. 1610, 170
L.Ed.2d 574 (2008) (lead opinion), quoting Norman v. Reed, 502 U.S. 279, 288-
289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992); see also Crawford at 211 (Souter, J.,
dissenting).
                 Equal protection: Anderson/Burdick balancing
       {¶ 34} Equal protection applies not just to the initial allocation of the
franchise, but also to the manner of its exercise. Bush v. Gore, 531 U.S. 98, 104,
121 S.Ct. 525, 148 L.Ed.2d 388 (2000). The court made clear in Crawford that
equal-protection election challenges are subject to the same Anderson/Burdick
analysis as are First Amendment ballot-access challenges. See Northeast Ohio
Coalition for the Homeless v. Husted, 696 F.3d 580, 592 (6th Cir.2012).
       {¶ 35} The state argues that rational-basis review should apply because
the classifications at issue are neutral. The state’s position misconstrues the law.
Rational-basis review applies to laws that draw nondiscriminatory classifications
and impose no burden on the right to vote. McDonald v. Bd. of Election Commrs.
of Chicago, 394 U.S. 802, 807-809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). But




                                         12
                                   January Term, 2014




where a plaintiff alleges that the state has burdened voting rights through
disparate treatment, the Anderson/Burdick balancing test is applicable. Obama
for Am. v. Husted, 697 F.3d 423, 429 (6th Cir.2012).
              The plurality erroneously utilizes rational-basis scrutiny
        {¶ 36} Despite paying lip service to the Anderson/Burdick test, the
plurality proceeds to analyze the statute under a conventional “rational basis”
standard that affords “substantial deference” to the legislature. State v. Williams,
88 Ohio St.3d 513, 531, 728 N.E.2d 342 (2000). Consistent with this standard,
the plurality opinion rejects relators’ challenge because the record will not permit
the court “to definitively state that the legislature lacked any basis for its actions.”
Plurality opinion at ¶ 20.3
        {¶ 37} However, rational-basis review is not appropriate in ballot-access
cases. In Crawford, the United States Supreme Court rejected the suggestion that
Burdick allows for any “deferential” standard for a state’s important regulatory
interests. 553 U.S. at 190, 128 S.Ct. 1610, 170 L.Ed.2d 574, fn. 8. Thus,
traditional rational-basis review does not apply to the review of ballot-access
statutes. Price v. New York State Bd. of Elections, 540 F.3d 101, 108-109 (2d
Cir.2008); Am. Civ. Liberties Union of New Mexico v. Santillanes, 546 F.3d 1313,
1321-1322 (10th Cir.2008); Rogers v. Corbett, 468 F.3d 188, 194 (3d Cir.2006);
see also Credico v. New York State Bd. of Elections, E.D.N.Y. No. 10 CV 4555,
2013 WL 3990784 (Aug. 5, 2013), * 20 (“The Court should not apply rational
basis review to a challenged law that burdens First Amendment rights * * *”);
Green Party of Arkansas v. Daniels, 733 F.Supp.2d 1055, 1062 (E.D.Ark.2010)
(review of a ballot-access restriction that imposes minimal burdens “is not the
rational-basis inquiry advocated by the State”); Am. Assn. of People with
Disabilities v. Herrera, 580 F.Supp.2d 1195, 1216 (D.N.M.2008) (“a district

3
 To ask whether the state had “any” basis to justify the statute arguably imposes an even more
permissive standard of review than rational-basis scrutiny.




                                             13
                             SUPREME COURT OF OHIO




court, to be faithful to the Supreme Court’s language and standard in Anderson v.
Celebrezze, must be careful not to transform the Anderson test into a de facto
form of strict scrutiny or rational basis test, but must carefully and faithfully apply
the two stages that the Anderson test requires”).
       {¶ 38} The more serious legal error in the plurality opinion lies in its
misallocation of the burden of proof. Traditional rational-basis review imposes
no burden upon the state to prove that the legislation is justified. Williams, 88
Ohio St.3d at 531, 728 N.E.2d 342. Rather, the burden falls upon the party
challenging the legislation “ ‘to negative every conceivable basis which might
support it.’ ”   State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767
N.E.2d 251, ¶ 27, quoting Madison v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 84
L.Ed. 590 (1940). The plurality opinion reflects this standard. Plurality opinion
at ¶ 21 (“It is not sufficient for relators to cast doubt on the constitutionality of
this statute, nor is it the Attorney General’s burden to prove the statute
constitutional; rather, relators must show beyond a reasonable doubt that R.C.
3513.04 is unconstitutional” [emphasis added]).
       {¶ 39} This is simply an incorrect statement of law. Anderson instructs
courts to weigh “the precise interests put forward by the State as justifications for
the burden imposed by its rule.” (Emphasis added.) Anderson, 460 U.S. at 789,
103 S.Ct. 1564, 75 L.Ed.2d 547. “The State need not provide empirical evidence
justifying its interest; however, the State cannot rely on hollow or contrived
arguments as justifications.” Trudell v. State, 193 Vt. 515, 2013 VT 18, 71 A.3d
1235, at ¶ 21; Price v. New York State Bd. of Elections, 540 F.3d at 110. Thus,
the state plainly has a burden to proffer justifications for the law, along with an
explanation of how the law satisfies that state interest.
       {¶ 40} The plurality’s attempt to distinguish this case based on the
specific relief sought—mandamus—ignores 20 years of jurisprudence from this
court. In Purdy, we discussed the fact that the relief sought was closer in nature




                                          14
                                  January Term, 2014




to declaratory judgment and prospective injunction, because in order to establish
his “clear right to relief,” the relator first needed a declaration that the statute was
unconstitutional. Purdy, 77 Ohio St.3d at 341-342, 673 N.E.2d 1351. However,
we held that it was permissible in limited circumstances, especially in elections
matters, to seek mandamus instead of declaratory judgment. Id. at 341 (“certain
election matters may present extraordinary circumstances. In this regard,
declaratory judgment might not provide an adequate remedy in the ordinary
course of law”).
        {¶ 41} The plurality opinion cites absolutely no authority for its
proposition that because this case arises in mandamus, relators must satisfy a
greater burden to secure ballot access. And in fact, there is no such authority.
Relators established that the statute burdened their constitutional rights and that
the state could present no justification for that burden. Based on Crawford,
Burdick, Anderson, and our own decisions, by prevailing on these points, relators
established a clear legal right to relief.
        {¶ 42} At the heart of the plurality opinion lies a great mystery: what
greater showing could relators muster to overcome the plurality’s agnosticism?
        {¶ 43} Of greater concern is the plurality’s complete lack of
comprehension of what constitutes a ballot-access law. The plurality opinion
clings to the fiction that it is only the pre-1998 statute that deals with ballot
access, whereas “nothing in the post-1998 amendments to the statute * * *
burden[s] the right to vote or access to the ballot,” as if the two functioned
independently.
        {¶ 44} This argument is a celebration of form over substance.
Apparently, if the statute were drafted to say that “no one is subject to the sore-
loser restriction except county court candidates,” the plurality would recognize
the change as a ballot-access restriction. But because the law is written inversely,




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to say who may run a second-chance campaign instead of who may not, it ceases
to be a ballot-access limitation, even though it achieves exactly the same result.
       {¶ 45} Moreover, the plurality’s determination to divorce this case from
its election-law roots, so as to employ a conventional “rational-basis” analysis,
ignores the fact that Crawford occupies the field when it comes to elections laws.
“To evaluate a law respecting the right to vote—whether it governs voter
qualifications, candidate selection, or the voting process—we use the approach set
out in Burdick * * *.” Crawford, 553 U.S. at 204, 128 S.Ct. 1610, 170 L.Ed.2d
574 (Scalia, J., concurring). To pretend that this case is something other than an
elections case governed by Anderson/Burdick is to deny the obvious.
                                  Legal analysis
       {¶ 46} The state has made no effort to satisfy its burden to put forward
justifications for the burdens imposed by amended R.C. 3513.04. Instead, the
state offers mere speculation. “[T]he legislature could rationally have decided
that the risks associated with second-chance/sore-loser candidacies (and the
overall effect on Ohio’s electoral integrity) are lessened within the context of
educational and/or highly localized positions.”
       {¶ 47} The notion that boards of education are somehow immune from
intraparty conflict is unsupported by evidence, experience, or common sense. To
the contrary, boards of education, like every other elected office, are susceptible
to the same partisan and political maneuvering that the “sore-loser” statute is
designed to prevent. And “highly localized position” is an apt description of the
judicial seat for the western division of Ashtabula County.
       {¶ 48} Alternatively, the attorney general offers an argument in defense of
the statute that is even more speculative and unconvincing: “the legislature could
also reasonably think that there was more need to encourage and incentivize
candidacy for such positions.” A hypothetical desire to “incentivize” people to
serve on school boards should not outweigh Brown’s First Amendment rights, at




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least not in the absence of any evidence that R.C. 3513.04 was causing an actual
shortage of candidates for these positions.
       {¶ 49} The undeniable fact is that the decision to exempt some, but not
all, nonpartisan offices from the “sore-loser” statute was arbitrary. There appears
to be no articulable reason why these offices were selected or why others were
omitted. And when it comes to election laws, it is precisely this sort of arbitrary
regulation that the Equal Protection Clause of the United States Constitution
forbids.
       {¶ 50} In addition, the statute, as amended, no longer justifies the burden
on relators’ First Amendment rights. The plurality suggests that the amendments
have lessened the burden, insofar as more offices are now available to second-
chance candidates. But as applied to Brown, as a candidate for this particular
judicial office, the burden remains the same.
       {¶ 51} Moreover, even if the “slight” burden has now become “slighter,”
it must still be outweighed by some legitimate state interest that the law furthers.
The interests that were deemed adequate in Purdy—avoiding confusion caused by
second-chance candidates—no longer has force when second-chance candidates
are able to run for some, though not all, offices in the general election.
       {¶ 52} The plurality speculates that confusion could result from a second-
chance candidate such as Brown seeking a judicial office in the primary and then
a different judicial office in the general election. The plurality notes that the same
risk of confusion does not exist for second-chance candidates for state board of
education, because nomination for that position is by petition only, not by
primary. R.C. 3513.259.
       {¶ 53} The flaw in this argument is that primaries are possible, though not
automatic, for all the other positions listed in the exception portion of R.C.
3513.04. Trustee offices can be subject to primary election if a majority of the
electors petitions for a primary. R.C. 3513.253. And a board of education of a



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city, local, or exempted village school district or governing board of an exempted
educational service may establish a nonpartisan primary by resolution.          R.C.
3513.256(A). So the same possibility of confusion exists with second-chance
candidates running for one board of education in a primary and a different board
of education in the general election.
       {¶ 54} Even though the burden on relators’ constitutional rights is slight,
the state has not presented any interest to justify the distinction drawn by the
amended statute. I would therefore hold that the language added to R.C. 3513.04
renders the statute unconstitutional.
                                        Remedy
       {¶ 55} Having determined that R.C. 3513.04 is unconstitutional, I address
the question of remedy.
       {¶ 56} The dissent agrees that amended R.C. 3513.04 is unconstitutional
and would therefore grant the writ and place Brown’s name on the general
election ballot. But there is no explanation for how this result has been reached.
Rewriting the statute to include county courts on the list of excepted offices
would be an exercise of power that this court does not possess. So the only
alternative is that the dissent must consider R.C. 3513.04 unconstitutional in its
entirety, but the dissent has not established that such a broad remedy is necessary.
       {¶ 57} R.C. 1.50 provides that statutory provisions are presumptively
severable. The test of severability is “ ‘whether the remaining parts of the article,
standing alone and without reference to the unconstitutional sections, can be
effective and operable.’ ” State ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d
115, 121, 543 N.E.2d 1169 (1989), quoting State ex rel. King v. Rhodes, 11 Ohio
St.2d 95, 101, 228 N.E.2d 653 (1967). The remainder of R.C. 3513.04 is plainly
capable of standing alone without the arbitrary list of exemptions that have
created the constitutional problem.




                                          18
                               January Term, 2014




        {¶ 58} I would therefore strike the language added in the 1998
amendment and return to the statute that existed at the time that this court decided
Purdy, 77 Ohio St.3d 338, 673 N.E.2d 1351. And once this is done, the pyrrhic
nature of Brown’s victory becomes apparent. R.C. 3513.04 would still bar Brown
from the November ballot; even though his constitutional argument is
meritorious, he would nevertheless not be entitled to a writ of mandamus.
        {¶ 59} For these reasons, I concur in the judgment reached by the
plurality.
        LANZINGER, J., concurs in the foregoing opinion.
                             ____________________
        PFEIFER, J., dissenting.
        {¶ 60} There is no legitimate reason to allow respondent Ashtabula
County Board of Elections to refuse to place relator Thomas Brown’s name on the
November 4, 2014 ballot. In State ex rel. Purdy v. Clermont Cty. Bd. of Elections,
77 Ohio St.3d 338, 347, 673 N.E.2d 1351 (1997) (Moyer, C.J., dissenting), Chief
Justice Moyer stated that “application of the [sore-loser] statute burdened Purdy’s
and Tighe’s constitutional rights by prohibiting their candidacies.” The same is
true of Brown.
        {¶ 61} Brown’s constitutional right to ballot access, when he is an
otherwise eligible candidate, is being infringed by the application of R.C.
3513.04. There is no great principle behind the statute and it ought not be entitled
to a presumption of constitutionality. See Wisconsin v. Pelican Ins. Co., 127 U.S.
265, 297, 8 S.Ct. 1370, 32 L.Ed. 239 (1888), overruled on other grounds,
Milwaukee Cty. v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220
(1935); Ohio Grocers Assn. v. Levin, 123 Ohio St.3d 303, 2009-Ohio-4872, 916
N.E.2d 446, ¶ 70-81 (Pfeifer, J., dissenting). When a statute infringes on a
fundamental constitutional right, we ought not acquiesce because of an




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unwarranted presumption of constitutionality. Indeed, the presumption should go
the other way; the statute should be presumed unconstitutional.
         {¶ 62} Election laws that limit ballot access for prospective candidates are
subject to review depending on the level of the limitation. Purdy, 77 Ohio St.3d
at 343, 673 N.E.2d 1351. If we assume, as the plurality opinion does, that R.C.
3513.04 is a reasonable, nondiscriminatory restriction, then it can be justified by
an important regulatory interest. Id., citing Anderson v. Celebrezze, 460 U.S. 780,
788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). As support for the interests that
justify R.C. 3513.04, the attorney general cites the following statement from
Purdy:    “Ohio clearly has a legitimate interest in prevent potential conflicts
among party members, an interest in preventing the possibility of voter confusion,
and an interest in preventing candidacies that may conceivably be prompted by
short-range goals.” Id. at 346.
         {¶ 63} The importance of these interests is a chimera.             Preventing
potential conflicts among party members may be a legitimate interest, but how
preventing an eligible candidate from appearing on the ballot for a nonpartisan
office advances that interest is obscure and unexplained.             Minimizing the
possibility of voter confusion may also be a legitimate interest, but not enough to
prevent an eligible candidate from running for office. Moreover, only the most
well-informed voters are likely to realize that a candidate for one of the offices in
this case had been a candidate for the other office earlier in the year and, because
they are well-informed, they are unlikely to be confused. The claim that Ohio has
an interest in preventing candidacies that may conceivably be prompted by short-
term goals is absurd, and that interest is clearly unmanageable. For one thing,
politics is increasingly an endeavor devoted to short-term goals; for another, who
is to judge whether a goal is short term?         In short, none of the arguments
suggested by the attorney general advance important regulatory interests—and
they are insufficient to justify burdening the constitutional right to ballot access.




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                                January Term, 2014




        {¶ 64} There is no legitimate reason to prevent Brown’s name from
appearing on the ballot in a nonpartisan election. I would grant the writ of
mandamus. If the only way to do that is to overrule Purdy, then I would do that.
I dissent.
                             ____________________
        Louis E. Grube, for relators.
        Nicholas A. Iarocci, Ashtabula County Prosecuting Attorney, and Shelley
M. Pratt, Assistant Prosecuting Attorney, for respondents.
        Michael DeWine, Attorney General, and Zachary P. Keller, Assistant
Attorney General, for intervening respondent.
        Taft, Stettinius and Hollister, L.L.P., and Donald C. Brey, urging denial of
the writ for amicus curiae, David Schroeder.
                          _________________________




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