[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Weller v. Tuscarawas Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-4300.]




                                           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. 2019-OHIO-4300
 THE STATE EX REL. WELLER, APPELLANT, v. TUSCARAWAS COUNTY BOARD
                                OF ELECTIONS, APPELLEE.

  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as State ex rel. Weller v. Tuscarawas Cty. Bd. of Elections, Slip
                             Opinion No. 2019-Ohio-4300.]
Elections—Mandamus—Writ of mandamus sought to compel board of elections to
        certify appellant’s name on November 2019 ballot as mayoral candidate for
        village of Sugarcreek—By failing to complete the nominating-petition
        portion of the part-petitions signed by electors, appellant failed to
        substantially comply with R.C. 3513.261 and to strictly comply with R.C.
        3513.251—Court of appeals’ judgment denying writ affirmed.
   (No. 2019-1348—Submitted October 11, 2019—Decided October 18, 2019.)
APPEAL from the Court of Appeals for Tuscarawas County, No. 2019 AP 09 0037,
                                      2019-Ohio-4032.
                                   __________________
                                SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Appellant, Clayton Weller, appeals the Fifth District Court of
Appeals’ judgment denying his request for a writ of mandamus ordering appellee,
the Tuscarawas County Board of Elections, to certify Weller’s name to the
November 2019 ballot as a candidate for mayor of the village of Sugarcreek. We
affirm the Fifth District’s judgment.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       {¶ 2} On June 21, 2019, Weller submitted his petition to the board. The
petition was comprised of four part-petitions, all on Form No. 3-O, which is the
form that the secretary of state has prescribed for candidates running for
nonpartisan municipal offices.       On each part-petition, Weller completed the
statement-of-candidacy portion and the circulator-statement portion, but he left
blank the nominating-petition portion, which precedes the lines on which electors
place their signatures and states:


               We, the undersigned, qualified electors of the State of Ohio,
       whose voting residence is in the county, city, village, or township
       set   opposite    our     names,   hereby   nominate    [NAME      OF
       CANDIDATE] as a candidate for election to the office of [OFFICE]
       in the City or Village of [NAME OF CITY OR VILLAGE] for the:
       [CHECK ONE] * * * full term or * * * unexpired term ending
       [unexpired term ending date], to be voted for at the next general
       election, and certify said person is, in our opinion, well qualified to
       perform the duties of the office or position to which the person
       desires to be elected.


On August 19, the board rejected Weller’s petition because he had not completed
the nominating-petition portions of the Form No. 3-O part-petitions.



                                           2
                                January Term, 2019




        {¶ 3} On September 9, Weller filed a complaint in the Fifth District seeking
a writ of mandamus ordering the board to certify his name to the November ballot.
2019-Ohio-4032, ¶ 1. Weller argued that (1) he had completed the statement-of-
candidacy portions of his part-petitions and that the information omitted from the
nominating-petition portion of Form No. 3-O is merely duplicative of the
information in the statement-of-candidacy portion and (2) there was no strict
requirement that he fill in the blanks in that portion of the Form No. 3-O and
therefore, by completing the statement of candidacy, his petition substantially
complied with R.C. 3513.261. Id. at ¶ 6, 8.
        {¶ 4} On September 30, the Fifth District denied the writ based on its
conclusion that Weller’s petition did not substantially comply with R.C. 3513.261.
Id. at ¶ 14, 16. The court reasoned that Weller’s failure to complete the nominating-
petition portion of Form No. 3-O “does not relate merely to the ‘form’ of the
nominating petition, but goes to its very substance,” id. at ¶ 12, and that Weller’s
omissions essentially “resulted in the signators nominating nobody as a candidate,”
id. at ¶ 10.
        {¶ 5} Weller filed a notice of appeal on October 3. He also filed a motion
to expedite, which we granted. __ Ohio St.3d __, 2019-Ohio-4095, __ N.E.3d __.
                                  II. ANALYSIS
                             A. Mandamus Standard
        {¶ 6} Weller is entitled to a writ of mandamus if he establishes by clear and
convincing evidence that (1) he has a clear legal right to have his name placed on
the ballot, (2) the board has a clear legal duty to place his name on the ballot, and
(3) he lacks an adequate remedy in the ordinary course of the law. State ex rel.
Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998
N.E.2d 1093, ¶ 12. Because of the proximity of the November election, Weller
lacks an adequate remedy in the ordinary course of the law. See State ex rel.




                                          3
                                SUPREME COURT OF OHIO




Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657,
912 N.E.2d 573, ¶ 18.
        {¶ 7} With respect to the remaining elements, courts look to whether the
board has “engaged in fraud, corruption, or abuse of discretion, or acted in clear
disregard of applicable legal provisions.”            Whitman v. Hamilton Cty. Bd. of
Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. Weller does
not allege fraud or corruption, so the question is whether the board abused its
discretion or clearly disregarded applicable law. A board abuses its discretion when
it acts in an “unreasonable, arbitrary, or unconscionable fashion.” State ex rel.
McCann v. Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14, 2018-Ohio-3342,
118 N.E.3d 224, ¶ 12.
                                 B. Nominating Petitions
        {¶ 8} “[T]he general rule is that unless there is language allowing
substantial compliance, election statutes are mandatory and must be strictly
complied with.” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-
5327, 915 N.E.2d 1215, ¶ 15.
        {¶ 9} R.C. 3513.251 states, “Nomination of nonpartisan candidates for
election as officers of a municipal corporation having a population of two thousand
or more, as ascertained by the next preceding federal census, shall be made only by
nominating petition.”       (Emphasis added.)1         R.C. 3513.251 does not contain
language permitting substantial compliance. It therefore imposes a mandatory,
strict requirement that Weller’s nomination as a candidate for election as mayor of
Sugarcreek be made by nominating petition.




1. Sugarcreek’s population was recorded as 2,220 in the 2010 census, see United States Census
Bureau,     American    FactFinder,   available    at    https://factfinder.census.gov/faces/nav
/jsf/pages/community_facts.xhtml.




                                               4
                                     January Term, 2019




         {¶ 10} R.C. 3513.261 provides that nominating petitions “shall be
substantially in the form prescribed in this section.” (Emphasis added.) Thus, the
statute “requires only substantial compliance with the prescribed ‘form’ of the
nominating petition, but [it] contains no language regarding substantial compliance
as to other matters.” State ex rel. Simonetti v. Summit Cty. Bd. of Elections, 151
Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, ¶ 26.
         {¶ 11} Weller was therefore required to strictly comply with the
requirement that his nomination to office be achieved by nominating petition and
to substantially comply with the statutory form of the nominating petition. The
parties appear to have overlooked R.C. 3513.251; they have briefed only the
question whether Weller substantially complied with R.C. 3513.261. We agree
with the Fifth District that Weller’s submission of part-petitions on which he did
not complete the nominating-petition portions of Form No. 3-O constituted a failure
to substantially comply with R.C. 3513.261. Under the facts of this case, in which
Weller utilized the form prescribed by the secretary under R.C. 3513.261, his
failure to substantially comply with R.C. 3513.261 means that he has also failed to
strictly comply with R.C. 3513.251.
         {¶ 12} In State ex rel. Allen v. Lake Cty. Bd. of Elections, 170 Ohio St. 19,
161 N.E.2d 896 (1959), the relator had submitted four part-petitions with invalid
circulator’s affidavits.2      Id. at 20.      The relator argued that “since the only
requirement for a circulator’s affidavit appears in the statutory form and * * * the
statute requires only that a nominating petition form shall be substantially the same
as the statutory form, the circulator’s oath is not an essential part of the petition
paper.” (Emphasis sic.) Id. This court rejected that argument, stating, “Substantial
compliance does not contemplate complete omission.” Id. The court further
explained:

2. At the time, what is now the circulator’s statement was required to be a circulator’s affidavit.
Allen at 19, citing the version of R.C. 3513.261 then in effect.




                                                5
                             SUPREME COURT OF OHIO




       The statutory form, like any suggested statutory form, need not be
       followed absolutely as to its wording. The statute [prescribing the
       form] itself provides for only substantial compliance. However, as
       we have said, substantial compliance would not warrant complete
       omission of the jurat of the circulator. Such jurat is a vital and
       material part of the nominating petition paper, and its inclusion is a
       condition precedent to the acceptance and validation of a
       candidate’s nominating petition paper by a board of elections.


Id. (Emphasis added.)
       {¶ 13} In State ex rel. Wilson v. Hisrich, 69 Ohio St.3d 13, 630 N.E.2d 319
(1994), the relator had filed one part-petition that contained a declaration of
candidacy and had attached to it three additional part-petitions that did not contain
declarations of candidacy. Id. at 15. This court held that this violated R.C.
3513.09’s strict requirement that the signed declaration of candidacy “shall be
copied on each other separate petition paper.” Wilson at 15-16. The relator argued
that R.C. 3513.07, which prescribed the applicable petition form, required only
substantial compliance and that he had met that requirement in light of affidavits
from all of the signers of his petition averring that they were shown the declaration
of candidacy when they signed the part-petitions. Id. at 16. This court disagreed,
explaining, “R.C. 3513.07 may be satisfied by substantial compliance with the form
of a declaration of candidacy and petition, but the omission of the entire declaration
from three petition papers would hardly qualify as substantial compliance.” Id.
       {¶ 14} Weller points out that he completed the statement-of-candidacy
portions of his part-petitions and that all of the information that he would have
added to the nominating-petition portion of Form No. 3-O was included in his
statement of candidacy on the same form. However, it is apparent from the



                                          6
                                 January Term, 2019




language and structure of R.C. 3513.261 and the form of the “nominating petition
and statement of candidacy” set forth therein that the nominating petition and the
statement of candidacy are different components of a part-petition that serve
different purposes. (Emphasis added.) In the statement of candidacy, the candidate
declares to the petition signers his intention to seek a particular office and attests to
his qualifications. Id. (“I [name of candidate] * * * hereby declare that I desire to
be a candidate for election to the office of [name of office] * * * ”). In the
nominating petition, the petition signers declare to the board of elections their
desire to nominate the candidate to the office that he seeks. Id. (“We, the
undersigned * * * hereby nominate [name of candidate] as a candidate for election
to the office of [name of office] * * *”).
        {¶ 15} Because the statement-of-candidacy portion of the form contains no
language actually nominating the candidate to office, we conclude that the
nominating-petition portion of the form is a “vital and material part of the
nominating petition paper,” Allen, 170 Ohio St. at 20, 161 N.E.2d 896, and that
Weller’s submission of Form No. 3-O part-petitions that omitted his name and the
office he sought from the nominating-petition portion of the forms did not amount
to substantial compliance with R.C. 3513.261. Our conclusion is bolstered by R.C.
3513.251’s mandate that a nominating petition is the only vehicle through which
Weller could achieve nomination to office, although this court reached its
conclusion in Allen even in the absence of such a strict requirement.
        {¶ 16} Under the facts of this case, in which Weller utilized Form No. 3-O,
his failure to substantially comply with R.C. 3513.261 means that he also failed to
strictly comply with R.C. 3513.251’s mandate that he be nominated to office via
nominating petition; Weller cannot be nominated to office solely by Form No. 3-
O’s statement of candidacy.
        {¶ 17} Weller argues that no one who signed his petition was misled or
confused about who the form was nominating as a candidate for mayor, because he




                                             7
                             SUPREME COURT OF OHIO




is a two-term incumbent mayor, he is well known in Sugarcreek, he was the sole
circulator of his own part-petitions, and the information missing from the
nominating petition was present in the statement of candidacy. However, this
argument is similar to the argument this court rejected in Wilson—that the petition
signers all saw the missing declaration of candidacy—and in Wilson there were
affidavits from the petition signers, not just from the candidate. 69 Ohio St.3d at
16, 630 N.E.2d 319.      Regardless, Weller did not comply with the statutory
requirements, so this argument is irrelevant.
       {¶ 18} The cases Weller cites in support of his argument are distinguishable
because in each case, there was no requirement that the information that was
omitted from or incorrectly stated on the part-petition be included. See State ex rel.
Phillips v. Lorain Cty. Bd. of Elections, 62 Ohio St.3d 214, 217, 581 N.E.2d 513
(1991); State ex rel. Phillips v. Lorain Cty. Bd. of Elections, 93 Ohio St.3d 535,
540, 757 N.E.2d 319 (2001); State ex rel. Stewart v. Clinton Cty. Bd. of Elections,
124 Ohio St.3d 584, 2010-Ohio-1176, 925 N.E.2d 601, ¶ 38. Here, by contrast,
R.C. 3513.251 mandates that Weller be nominated by nominating petition.
                               III. CONCLUSION
       {¶ 19} For the foregoing reasons, we affirm the judgment of the Fifth
District denying the writ.
                                                                 Judgment affirmed.
       FISCHER, DEWINE, and STEWART, JJ., concur.
       O’CONNOR, C.J., concurs, with an opinion joined by STEWART, J.
       KENNEDY, J., dissents, with an opinion.
       FRENCH and DONNELLY, JJ., dissent.
                               _________________
       O’CONNOR, C.J., concurring.
       {¶ 20} I join the majority opinion. I write separately in response to the basic
contention of the dissenting opinion that we should “let the people vote,” dissenting



                                          8
                                January Term, 2019




opinion at ¶ 25, and the suggestion that the majority’s decision undermines the right
to vote. I too am a proponent of the right to vote. However, this appeal does not
involve one’s right to vote. Rather, the central issue in this case is the right of a
candidate to appear on the ballot.
       {¶ 21} The dissenting opinion contends that “ ‘any restrictions on the [right
to vote] strike at the heart of representative government.’ ” Id. at ¶ 42, quoting
Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
However, that view creates a tension between our right to vote and the rule of law.
The rule of law plainly requires that appellant Clayton Weller’s nomination be
made only by a nominating petition, R.C. 3513.251, and that the nominating
petition be substantially in compliance with the form prescribed in R.C. 3513.261.
       {¶ 22} The dissenting opinion seemingly conflates the requirement of
substantial compliance as to the form of the nominating petition, which is all that
R.C. 3513.261 addresses, with strict compliance as to its substance and contents.
This distinction is one the court unanimously recognized in State ex rel. Simonetti
v. Summit Cty. Bd. of Elections, 151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d
728, when addressing the relator’s contention that public policy favors “ ‘free
competitive elections’ over ‘absolute compliance with each technical requirement
in the petition form.’ ” Id. at ¶ 25, quoting the relator’s brief. We held,


       Here, R.C. 3513.261 provides that a nominating petition “shall be
       substantially in the form prescribed in this section.” Thus, the
       statute requires only substantial compliance with the prescribed
       “form” of the nominating petition, but the statute contains no
       language regarding substantial compliance as to other matters.


Id. at ¶ 26. As Weller’s nominating petition pictured in the dissenting opinion
clearly illustrates, there was simply no compliance whatsoever because the contents




                                          9
                             SUPREME COURT OF OHIO




of the nominating petition that precedes the electors’ signatures is entirely blank.
Simply because the secretary of state chose to combine the statement of candidacy
and the nominating petition into one form does not repudiate the statute’s
requirement of strict compliance as to content. It is our duty to follow the election
laws of this state regardless of whether they lead us to the result we desire.
       {¶ 23} “As we have consistently held, ‘ “[c]ounty boards of elections are of
statutory creation, and the members thereof in the performance of their duties must
comply with applicable statutory requirements.” ’ ” State ex rel. Husted v. Brunner,
123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 11, quoting Whitman v.
Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d
32, ¶ 12, quoting State ex rel. Babcock v. Perkins, 165 Ohio St. 185, 187, 134
N.E.2d 839 (1956). So too must we.
       {¶ 24} To hold county boards of election to a standard other than what the
General Assembly has prescribed does not promote the public policy favoring free,
competitive, and fair elections but, rather, opens the door to allowing county boards
and the judiciary to ignore the rule of law and play to subjective evaluation or
political whims. I therefore concur in the court’s judgment affirming the Fifth
District Court of Appeals’ judgment denying the writ.
       STEWART, J., concurs in the foregoing opinion.
                                _________________
       KENNEDY, J., dissenting.
       {¶ 25} Because I would let the people vote, I dissent and would reverse the
judgment of the Fifth District Court of Appeals and grant the writ.
       {¶ 26} R.C. 3513.261 requires nominating petitions to be in substantial
compliance with the form set out in the statute, and for more than 50 years, we have
recognized that the determination whether a petition substantially complies with
the form depends on whether a petition signer would be misled by an error or
omission in the petition, whether there was fraud or deception perpetrated, and



                                          10
                                January Term, 2019




whether there was sufficient compliance for the board of elections to determine that
the petition is valid. See Stern v. Cuyahoga Cty. Bd. of Elections, 14 Ohio St.2d
175, 184, 237 N.E.2d 313 (1968); State ex rel. Stewart v. Clinton Cty. Bd. of
Elections, 124 Ohio St.3d 584, 2010-Ohio-1176, 925 N.E.2d 601, ¶ 28.
        {¶ 27} Applying this standard here, appellant Clayton Weller’s petition to
be a candidate for mayor of the village of Sugarcreek on the November ballot
sufficiently conformed with R.C. 3513.261.         He complied with the express
requirements of the statute by completing and signing the candidate’s statement of
candidacy and the circulator’s statement, and a sufficient number of qualified
electors signed the petition and provided their voting-residence address and date of
signing. And although he failed to fill in the blanks of the nomination section of
the petition with the same information that appears in his candidate’s statement,
neither the statute nor the form itself expressly instructed him to do so. And Weller
substantially complied with the form set out in R.C. 3513.261. A review of the
petition reveals that no elector would be misled in nominating a candidate when the
candidacy statement is included at the top of the form. Moreover, there is no claim
of fraud or deception, and there is no doubt that the electors who signed the petition
intended to nominate Weller as a candidate for mayor of Sugarcreek and were
qualified to do so. I therefore would reverse the judgment of the court of appeals
and grant a writ of mandamus compelling the Tuscarawas County Board of
Elections to place Weller on the November ballot for mayor of the village of
Sugarcreek.
                          Facts and Procedural History
        {¶ 28} Weller submitted four part-petitions to the board of elections in order
to be placed on the ballot for mayor of Sugarcreek. On each part-petition, Weller
completed the statement of candidacy, but no one filled in the nomination section
of the petition:




                                         11
SUPREME COURT OF OHIO




         12
                                January Term, 2019




       {¶ 29} Although no one filled in the blanks in the nomination section,
electors nonetheless signed and dated the petition and provided their addresses. The
petition had sufficient valid signatures and no protest was filed—in fact, no other
candidate has submitted a valid petition—but the board of elections nonetheless
rejected the petition because no one had filled in the blanks in the nomination
section on any of the part-petition forms.
       {¶ 30} The Fifth District Court of Appeals denied Weller’s request for a
writ of mandamus ordering the board to certify his name to the November ballot.
2019-Ohio-4032, ¶ 16. The court of appeals explained that the failure to complete
the nomination section of the petition form “does not relate merely to the ‘form’ of
the nominating petition, but goes to its very substance,” because this part of the
petition “identifies the person who is being nominated by the signators and the
office being sought by the candidate.” Id. at ¶ 12. The court concluded that
Weller’s failure to fill in the blanks of the nomination section essentially “resulted
in the signators nominating nobody as a candidate.” Id. at ¶ 10.
                                 Law and Analysis
       {¶ 31} The General Assembly has imposed specific requirements for a
nominating petition in addition to providing a sample form.           R.C. 3513.261
expressly requires each nominating petition to “contain a statement of candidacy
* * * signed by the candidate” that includes “a declaration made under penalty of
election falsification that the candidate desires to be a candidate for the office
named in it, and that the candidate is an elector qualified to vote for the office the
candidate seeks.” Similarly, R.C. 3501.38(C) requires each signer of a petition to
place the date of signing and the place of the signer’s voting residence on the
petition, while R.C. 3501.38(E)(1) requires the petition circulator to indicate the
number of signatures contained on the petition and to sign a statement that the
circulator witnessed every signature and that to the best of the circulator’s




                                         13
                              SUPREME COURT OF OHIO




knowledge and belief, all signers were qualified to sign and all signatures are
genuine.
        {¶ 32} These are substantive requirements.         The candidate’s signed
statement of candidacy is required to confirm that the candidate is willing to accept
the nomination and serve in the elective office while also verifying that he or she is
qualified to do so. The addresses of the signers and the date of signing are needed
to confirm that each signer is eligible to nominate the candidate.          And the
circulator’s statement is needed to protect against forged signatures. And this is
why the Form No. 3-O promulgated by the secretary of state states in bold type that
“[t]he candidate must fill in, sign and date this statement of candidacy before the
signatures of electors are affixed” and that the circulator statement “[m]ust be
completed and signed by the circulator.”
        {¶ 33} In one case on which the majority relies, State ex rel. Wilson v.
Hisrich, 69 Ohio St.3d 13, 630 N.E.2d 319 (1994), we refused to order a board of
elections to place a candidate’s name on the ballot. The board had rejected his
petition because it omitted the candidate’s declaration of candidacy on three part-
petitions, a flaw that involved such an express, substantive requirement that it
affected the validity of the petition.
        {¶ 34} In contrast, this court has held that a petition’s failure to contain
material included in the sample petition form but not expressly required by the
statute does not necessarily invalidate a petition. For example, the sample form
provided by R.C. 3513.261 (and the Form No. 3-O promulgated by the secretary of
state) include space for the appointment of a committee to represent the candidate.
In State ex rel. Phillips v. Lorain Cty. Bd. of Elections, however, we explained that
even though the petition form included these blanks for the candidate to fill out,
“R.C. 3513.261 does not expressly require the appointment of a committee.” 62
Ohio St.3d 214, 216, 581 N.E.2d 513 (1991). Because the statute had been
amended, “the express requirement to name a committee was gone, and only the



                                         14
                                       January Term, 2019




reference to the form of the petition remained.” Id. Therefore, appointment of a
committee was not mandatory and leaving those blanks empty did not invalidate
the petition. Id. at 217.
        {¶ 35} Similarly, neither the relevant statutes nor the form itself provides
any specific instruction that the candidate, the signers, or the circulator must fill out
the blanks in the nomination section of the petition. Rather, R.C. 3513.261 states
only that


        [t]he form of the nominating petition * * * shall be substantially as
        follows:
                 ***
                 We, the undersigned, qualified electors of the state of Ohio,
        whose voting residence is in the County, City, Village, Ward,
        Township or Precinct set opposite our names, hereby nominate
        .................... as a candidate for election to the office of
        ........................... in the ............................ (State, District, County,
        City, Village, Township, or School District) for the ................. (Full
        term or unexpired term ending ...................) to be voted for at the
        general election next hereafter to be held, and certify that this person
        is, in our opinion, well qualified to perform the duties of the office
        or position to which the person desires to be elected.


        {¶ 36} The majority holds that another statute, R.C. 3513.251, not R.C.
3513.261, makes filling in the blanks in the nomination section subject to strict
compliance. But that statute simply explains when a candidate for municipal office
must be nominated by petition and when a municipality may use a primary election
to nominate candidates. It says nothing about what specific language the candidate
must use in circulating a nominating petition, nor does indicate whether filling in




                                                   15
                             SUPREME COURT OF OHIO




the blanks of the nominating petition are subject to strict or substantial compliance.
Moreover, the majority’s conclusion that strict compliance applies is inconsistent
with the plain language of R.C. 3513.261, which “expressly permits substantial
compliance with the form of the nominating petition.” (Emphasis sic.) State ex
rel. Phillips v. Lorain Cty. Bd. of Elections, 93 Ohio St.3d 535, 539, 757 N.E.2d
319 (2001). And filling in the form exactly as specified in the sample form is a
formal requirement, not a substantive one. Even the instructions given to county
boards by the secretary of state recognize that “[t]he question of whether the board
may certify a prospective candidate’s petition when the ‘Nominating Petition’
portion of the form is incomplete is a substantial compliance decision for the board
of elections to make in consultation with its legal counsel, the county prosecuting
attorney.” Secretary of State Directive 2019-17, Section 1.02, Ohio Election
Official Manual, at 11-4.
       {¶ 37} Importantly, we have explained that strict compliance is appropriate
when “ ‘such complete and absolute conformance to each technical requirement of
the printed form serves a public interest and a public purpose.’ ” Stewart, 124 Ohio
St.3d 584, 2010-Ohio-1176, 925 N.E.2d 601, at ¶ 28, quoting Stern, 14 Ohio St.2d
at 180, 237 N.E.2d 313. As we observed in Stewart:


               “The public policy which favors free competitive elections,
       in which the electorate has the opportunity to make a choice between
       candidates, outweighs the arguments for absolute compliance with
       each technical requirement in the petition form, where the statute
       requires only substantial compliance, where, in fact, the only
       omission cannot possibly mislead any petition signer or elector,
       where there is no claim of fraud or deception, and where there is
       sufficient substantial compliance to permit the board of elections,
       based upon prima facie evidence appearing on the face of the jurat



                                         16
                                January Term, 2019




       which is part of the petition paper, to determine the petition to be
       valid.”


Id., quoting Stern at 184. Our decision in State ex rel. Allen v. Lake Cty. Bd. of
Elections, 170 Ohio St. 19, 161 N.E.2d 896 (1959), on which the majority relies—
and which upheld the rejection of a petition because the circulator’s jurat included
only in the statutory form was invalid—predates our adoption of this substantial-
compliance standard.
       {¶ 38} A nominating petition with an incomplete nomination section can
constitute substantial compliance, because the signer’s intent to nominate the
candidate for the office and term indicated in the candidate’s statement of
candidacy is unambiguously manifested by the fact that the signer has affixed his
or her signature to the nominating petition—there is no conceivable reason that an
elector would sign a nominating petition if the elector did not genuinely intend to
nominate the candidate. See State ex rel. Myles v. Brunner, 120 Ohio St.3d 328,
2008-Ohio-5097, 899 N.E.2d 120, ¶ 23 (“the ‘only reason to complete the form was
to obtain an absentee ballot for the November 4, 2008 election,’ and signing it
necessarily indicated that the applicant represented, ‘I am a qualified elector and
would like to receive an Absentee Ballot for the November 4, 2008 General
Election,’ regardless of whether the box next to the statement was marked”).
       {¶ 39} Further, any concerns that a petition signer or elector could be misled
by the failure to fill in the blanks in the nomination section of the petition are
dispelled when that information is wholly duplicative of information prominently
included in the candidate’s statement. See Stewart at ¶ 38 (noting that a signer
would not be misled by the omission of the primary-election date on a declaration
of candidacy). Nor does it invite fraud or deception, because a mismatch between
the candidate’s statement and the nomination section of the petition would attract a
board’s scrutiny and presumably result in the invalidation of the petition.




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        {¶ 40} In the last analysis, Weller met the express requirements of R.C.
3513.261: his nominating petition includes the signed candidate’s statement, the
signed circulator’s statement, and sufficient signatures of electors with their voting-
residence address and the date of signing. The nominating petition language
appears only in the statute’s sample form, and substantial compliance is therefore
permissible. When there is no possibility that any elector could have been misled
by the nominating petition he or she signed, when there is no claim of fraud or
deception, and when there is no doubt that the signers of the petition intended to
nominate Weller to be a candidate for mayor of Sugarcreek, substantial compliance
has been established and the public interest would be served by allowing the
petition.
                                     Conclusion
        {¶ 41} Weller, the incumbent mayor of the village of Sugarcreek, circulated
his own petition. A sufficient number of qualified electors signed that petition. No
protest was brought against his candidacy. But now, the board’s action removing
the incumbent from the ballot based on the inadvertent failure to fill in all the blanks
of the prescribed form means that the people of the village will be deprived of their
right to vote for an individual who may be their candidate of choice for that office.
See R.C. 3505.
        {¶ 42} Rather than elevate form over substance and ignore reality, we
should “ ‘avoid unduly technical interpretations that impede the public policy
favoring free, competitive elections.’ ” Myles, 120 Ohio St.3d 328, 2008-Ohio-
5097, 899 N.E.2d 120, at ¶ 22, quoting State ex rel. Ruehlmann v. Luken, 65 Ohio
St.3d 1, 3, 598 N.E.2d 1149 (1992). After all, “[t]he right to vote freely for the
candidate of one’s choice is of the essence of a democratic society, and any
restrictions on that right strike at the heart of representative government.” Reynolds
v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). “Other rights,




                                          18
                               January Term, 2019




even the most basic, are illusory if the right to vote is undermined.” Wesberry v.
Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
       {¶ 43} For these reasons, I would reverse the judgment of the court of
appeals and grant the requested writ.
                              _________________
       Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Tonya
J. Rogers, for appellant.
       Ryan D. Styer, Tuscarawas County Prosecuting Attorney, and Robert R.
Stephenson II, Assistant Prosecuting Attorney, for appellee.
                              _________________




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