[Cite as State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69.]




                    THE STATE EX REL. WATERS v. SPAETH ET AL.
   [Cite as State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69.]
Elections—Mandamus—Writ sought to compel respondent to place relator’s
        name on ballot as Republican, notwithstanding his recent Libertarian
        affiliation—Writ denied.
   (No. 2011-2152—Submitted January 10, 2012—Decided January 11, 2012.)
                                      IN MANDAMUS.
                                  __________________
        Per Curiam.
        {¶ 1} This is an expedited election action for a writ of mandamus to
compel respondents, the Warren County Board of Elections and its members, to
place the name of relator, Robert E. Waters, on the ballot as a candidate for the
Warren County Republican Party Central Committee, Precinct 15, of the city of
Lebanon, at the March 6, 2012 primary election. Because Waters voted in a
primary election as a member of a different political party within the preceding
two calendar years, he is barred from candidacy in the March 6, 2012 Republican
primary election. Therefore, we deny the writ.
                                            Facts
        {¶ 2} Waters is a registered voter residing in Lebanon in Warren County.
In February 2010, he filed a declaration of candidacy and petition to be a
Libertarian Party candidate for state representative. In May 2010, he voted in the
Libertarian Party primary election. At the November 2010 election for governor,
the Libertarian Party candidate failed to obtain 5 percent of the vote.
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          {¶ 3} On December 7, 2011, Waters filed a petition to be a candidate for
the Warren County Republican Party Central Committee for the 15th Precinct, in
Lebanon, at the March 6, 2012 Republican primary election. At a December 13,
2011 meeting of respondent Warren County Board of Elections, both board
members present voted not to certify Waters’s candidacy.
          {¶ 4} Eight days later, on December 21, Waters filed this expedited
election action for a writ of mandamus to compel the board and its members to
certify his candidacy. Respondents filed an answer on December 30, and the
parties filed briefs and evidence pursuant to the accelerated schedule in
S.Ct.Prac.R. 10.9.
          {¶ 5} This cause is now before the court for our consideration of the
merits.
                                      Analysis
                                     Mandamus
          {¶ 6} Waters requests a writ of mandamus to compel the board of
elections to place his name on the March 6, 2012 primary election ballot as a
candidate for member of the Warren County Republican Party Central
Committee. To be entitled to the writ, Waters must establish a clear legal right to
the requested relief, a clear legal duty on the part of the board and its members to
provide it, and the lack of an adequate remedy in the ordinary course of law.
State ex rel. Eshleman v. Fornshell, 125 Ohio St.3d 1, 2010-Ohio-1175, 925
N.E.2d 609, ¶ 20. Because of the proximity of the March 6, 2012 primary
election, Waters has established that he lacks an adequate remedy in the ordinary
course of the law. State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-
Ohio-1374, 926 N.E.2d 617, ¶ 25; see also S.Ct.Prac.R. 10.9.
          {¶ 7} For the remaining requirements, “ ‘[i]n extraordinary actions
challenging the decisions of the Secretary of State and boards of elections, the
standard is whether they engaged in fraud, corruption, or abuse of discretion, or



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acted in clear disregard of applicable legal provisions.’ ” State ex rel. Husted v.
Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9, quoting
Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923,
778 N.E.2d 32, ¶ 11.
                          R.C. 3513.191(A) and 3517.01(A)(1)
        {¶ 8} Waters asserts that the board of elections abused its discretion and
clearly disregarded R.C. 3517.01(A)(1) by denying his candidacy in the
Republican primary election.
        {¶ 9} R.C. 3513.191(A) prohibits a person’s candidacy at a political
party’s primary election if the person voted in a different political party’s primary
election within the two years immediately preceding it:


                 No person shall be a candidate for nomination or election at
        a party primary if the person voted as a member of a different
        political party at any primary election within the current year and
        the immediately preceding two years.


        {¶ 10} The applicable version of R.C. 3517.01(A)(1)1 defines “political
party” as follows:


                 A political party within the meaning of Title XXXV of the
        Revised Code is any group of voters that, at the most recent regular
        state election, polled for its candidate for governor in the state or


1. 2011 Am.Sub.H.B. No. 194 amended R.C. 3517.01(A)(1), effective September 30, 2011, but
that amendment is the subject of a pending referendum petition. See Secretary of State Directive
No. 2011-30. On December 9, 2011, the secretary of state certified that the petition contained
sufficient signatures for placement of the referendum on the November 2012 election ballot.
http:www.sos.state.oh.us/SOS/mediaCenter/2011/2011-12-09.aspx.




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       nominees for presidential electors at least five per cent of the entire
       vote cast for that office or that filed with the secretary of state,
       subsequent to any election in which it received less than five per
       cent of that vote, a petition signed by qualified electors equal in
       number to at least one per cent of the total vote for governor or
       nominees for presidential electors at the most recent election,
       declaring their intention of organizing a political party, the name of
       which shall be stated in the declaration, and of participating in the
       succeeding primary election, held in even-numbered years, that
       occurs more than one hundred twenty days after the date of filing.


       {¶ 11} Waters claims that the Libertarian Party is not a political party as
defined in R.C. 3517.01(A)(1) because at the most recent general election in
November 2010, the Libertarian candidate for governor failed to obtain five
percent of the vote. Consequently, he argues, the Libertarian Party does not
constitute a political party for purposes of R.C. 3513.191(A) so as to bar his
Republican candidacy. See State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110,
2008-Ohio-5041, 896 N.E.2d 979, ¶ 46 (“statutes that relate to the same subject
matter must be construed in pari materia so as to give full effect to the
provisions”).
       {¶ 12} Waters’s claim, however, ignores the plain language of the
applicable statutes.
       {¶ 13} The definition of “political party” in R.C. 3517.01(A)(1) does not
automatically exclude a group of voters from its definition simply because at the
most recent regular state election, its gubernatorial candidate or nominees for
presidential election failed to poll at least 5 percent of the entire vote for that
office. R.C. 3517.01(A)(1) permits a group of voters who failed to meet the




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applicable 5 percent threshold to nevertheless qualify as a political party for the
succeeding primary election ballot if it files with the secretary of state


        a petition signed by qualified electors equal in number to at least
        one per cent of the total vote for governor or nominees for
        presidential electors at the most recent election, declaring their
        intention of organizing a political party, the name of which shall be
        stated in the declaration, and of participating in the succeeding
        primary election, held in even-numbered years, that occurs more
        than one hundred twenty days after the date of filing.


Waters’s complaint did not allege that the Libertarian Party failed to meet this
alternate method of qualifying as a political party for purposes of Ohio’s election
laws, and he failed to submit clear and convincing evidence that this portion of
the statutory definition of “political party” in R.C. 3517.01(A)(1) was
inapplicable. See State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-
6117, 958 N.E.2d 1235,, paragraph three of the syllabus (“Relators in mandamus
cases must prove their entitlement to the writ by clear and convincing evidence”).
        {¶ 14} Moreover, R.C. 3513.191(A) applies to both “major” political
parties and “minor” political parties under the R.C. 3517.01(A)(1) definition of
“political party.”
        {¶ 15} In addition, state election officials must follow the applicable
requirements of federal election law, including pertinent federal court orders. See,
e.g., State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35, 941
N.E.2d 782, ¶ 37 (“the secretary of state also has a duty to instruct election
officials on the applicable requirements of federal election law as well as federal
court orders that are applicable to them”).        In Libertarian Party of Ohio v.
Blackwell, 462 F.3d 579 (6th Cir.2006), the United States Court of Appeals for



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the Sixth Circuit held that Ohio’s system for minor-party qualification for ballot
access violated the rights of political parties and voters to exercise their First
Amendment rights. Id. at 594-595. In 2008, a federal district court ordered,
pursuant to Blackwell, that the secretary of state place the Libertarian Party of
Ohio and its candidates on the November 2008 election ballot. Libertarian Party
of Ohio v. Brunner, 567 F.Supp.2d 1006, 1016 (S.D.Ohio 2008). In 2011, a
federal district court ordered, pursuant to Blackwell, that the secretary of state
place the Libertarian Party of Ohio and its candidates on the 2011 and 2012
election ballots. Libertarian Party of Ohio v. Husted, S.D.Ohio No. 2:11-CV-
722, 2011 WL 3957259 (Sept. 7, 2011), as modified by the nunc pro tunc order
dated October 18, 2011. Therefore, notwithstanding R.C. 3517.01(A)(1), federal
precedent requires the treatment of the Libertarian Party as a “political party” for
purposes of the election laws.
       {¶ 16} The secretary of state ordered boards of elections to recognize the
Libertarian Party and certain other minor political parties as political parties
entitled to ballot access in 2010 and 2012. Secretary of State Directive Nos.
2009-21 and 2011-38. Based on the applicable law, the secretary of state’s
construction of the applicable statutory provisions is reasonable and is thus
entitled to deference. See Rothenberg v. Husted, 129 Ohio St.3d 447, 2011-Ohio-
4003, 953 N.E.2d 327, ¶ 2. And the board of elections and its members have a
duty to follow the secretary of state’s directives. R.C. 3501.11(P); see also State
ex rel. Coble v. Lucas Cty. Bd. of Elections, 130 Ohio St.3d 132, 2011-Ohio-4550,
956 N.E.2d 282, ¶ 11, fn. 2.
       {¶ 17} Finally, insofar as Waters claims that the Warren County Board of
Elections treated him differently from how the Franklin County Board of
Elections treated a comparable candidate, he has not submitted sufficient evidence
establishing an equal-protection violation, the Warren County Board of Elections
is not bound by the decisions of another county board of elections, and the issue



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whether the Franklin County Board of Elections acted properly is not before this
court.
         {¶ 18} Therefore, the Libertarian Party constituted a political party for
purposes of applicable election law, and under the plain language of R.C.
3513.191(A), Waters’s participation in the May 2010 Libertarian primary election
bars him from being a candidate for central committee member at the March 2012
Republican primary election. The board of elections and its members neither
abused their discretion nor clearly disregarded applicable law by deciding not to
certify Waters’s candidacy.
                                     Conclusion
         {¶ 19} Because Waters failed to establish his entitlement to the requested
extraordinary relief in mandamus, we deny the writ.
                                                                      Writ denied.
         O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                               __________________
         Robert E. Waters, pro se.
         David P. Fornshell, Warren County Prosecuting Attorney, and Keith W.
Anderson, Assistant Prosecuting Attorney, for respondents.
                              ______________________




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