[Cite as State ex rel. Davis v. Summit Cty. Bd. of Elections, 137 Ohio St.3d 222, 2013-Ohio-
4616.]




    THE STATE EX REL. DAVIS v. SUMMIT COUNTY BOARD OF ELECTIONS.
            [Cite as State ex rel. Davis v. Summit Cty. Bd. of Elections,
                        137 Ohio St.3d 222, 2013-Ohio-4616.]
Elections—Independent candidates—Good-faith declaration of disaffiliation from
        party.
  (No. 2013-1533—Submitted October 14, 2013—Decided October 18, 2013.)
                                     IN MANDAMUS.
                                ____________________
        Per Curiam.
        {¶ 1} Relator, Darrita Davis, filed this expedited elections case seeking a
writ of mandamus to compel respondent, the Summit County Board of Elections,
to place her name on the November 5, 2013 ballot as an independent candidate for
Akron City Council.          Because Davis has established her entitlement to
extraordinary relief, we grant the writ.
Facts
        {¶ 2} Darrita Davis is a qualified elector in Summit County and a
resident of Akron, Ward 10. On July 2, 2013, Davis submitted a nominating
petition to run as an independent candidate in the November 5, 2013 general
election, to represent Ward 10 on the Akron City Council.
        {¶ 3} On or around September 23, 2013, the board wrote a letter to Davis
stating that her petition “was determined to be invalid.” The letter offered no
explanation.
        {¶ 4} Davis commenced this original action on September 27, 2013. The
parties submitted briefs in accordance with the accelerated briefing schedule for
expedited elections cases in S.Ct.Prac.R. 12.08(A)(2).
        {¶ 5} This cause is now before the court for consideration of the merits.
                             SUPREME COURT OF OHIO




Analysis
Laches
         {¶ 6} At the outset, we reject the board’s attempt to invoke laches.
Laches may bar relief in an election-related matter if the person seeking relief
fails to act with “requisite diligence.” State ex rel. Voters First v. Ohio Ballot Bd.,
133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 16, quoting Smith v.
Scioto Cty. Bd. of Elections, 123 Ohio St.3d 467, 2009-Ohio-5866, 918 N.E.2d
131, ¶ 11.
         {¶ 7} The record does not demonstrate unreasonable delay on the part of
Davis. The board notified Davis of its decision to reject her petition by letter
dated September 23, 2013. According to her affidavit, Davis did not receive the
letter until September 25, 2013. She filed her complaint two days later, on
September 27, 2013.
         {¶ 8} The board argues that Davis learned of the board’s decision a full
week before she filed suit. Joseph Masich, director of the Summit County Board
of Elections, submitted an affidavit in which he states that he notified Davis of the
board’s decision by telephone on September 20, 2013. Davis neither admits nor
denies that the conversation occurred. However, even assuming that she knew of
the board’s decision on September 20, we are not persuaded that laches should
apply.
         {¶ 9} Under the circumstances, the court does not regard the passage of
five business days as an unreasonable delay. State ex rel. Coughlin v. Summit
Cty. Bd. of Elections, ___ Ohio St.3d __, 2013-Ohio-3867, ___ N.E.2d __, ¶ 15
(relator acted diligently by filing complaint five business days after receiving
hearing transcript).
         {¶ 10} Moreover, a party asserting a laches defense must demonstrate that
it has been prejudiced by the other party’s delay. State ex rel. Voters First v. Ohio
Ballot Bd., 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 19. The




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board alleges injury because absentee voting has already begun as of October 1.
But the board would be facing the same predicament even if Davis had filed suit
on September 20, 2013, given the amount of time required to brief and decide an
expedited elections matter. The timing of Davis’s filing has not prejudiced the
board. State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-Ohio-1374, 926
N.E.2d 617, ¶ 21 (laches did not bar suit, because absentee-ballot deadline would
have passed no matter how quickly relator filed suit).
       {¶ 11} Therefore, laches does not bar our consideration of the merits of
this expedited elections case. The court reaffirms its commitment to the principle
that “the fundamental tenet of judicial review in Ohio is that courts should decide
cases on their merits.” State ex rel. Becker v. Eastlake, 93 Ohio St.3d 502, 505,
756 N.E.2d 1228 (2001).
Mandamus
       {¶ 12} For a writ of mandamus to issue, Davis must establish a clear legal
right to placement of her name on the November 5, 2013 ballot, a corresponding
clear legal duty on the part of the board to place her name on the ballot, and the
lack of an adequate remedy in the ordinary course of law. State ex rel. Allen v.
Warren Cty. Bd. of Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d
507, ¶ 8. Davis must prove these requirements by clear and convincing evidence.
State ex rel. Orange Twp. Bd. of Trustees v. Delaware Cty. Bd. of Elections, 135
Ohio St.3d 162, 2013-Ohio-36, 985 N.E.2d 441, ¶ 14.
       {¶ 13} Because of the proximity of the November 5 election, Davis lacks
an adequate remedy in the ordinary course of the law. State ex rel. Ohio Liberty
Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 27.
       {¶ 14} As for the remaining requirements, in extraordinary actions
challenging the decision of a board of elections, the standard is whether the board
“ ‘engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard
of applicable legal provisions.’ ” State ex rel. Husted v. Brunner, 123 Ohio St.3d




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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.
       {¶ 15} There is no allegation of fraud or corruption.           In her first
proposition of law, Davis asserts that the board abused its discretion when it
disqualified her petition to run as an independent. The board maintains that Davis
is not an independent, because she has failed to disaffiliate sufficiently from the
Democratic Party.
       {¶ 16} The Ohio Revised Code defines an “independent” broadly: any
candidate who “claims not to be affiliated with a political party” and who meets
specific filing requirements qualifies as an independent candidate.            R.C.
3501.01(I). “A voter cannot register as an independent, except in the negative
sense of not voting in partisan primaries or signing partisan nominating petitions.”
State ex rel. Coughlin v. Summit Cty. Bd. of Elections, ___ Ohio St.3d __, 2013-
Ohio-3867, ___ N.E.2d ___, ¶ 28, fn. 2.
       {¶ 17} In Morrison v. Colley, 467 F.3d 503 (6th Cir.2006), the Sixth
Circuit Court of Appeals held that R.C. 3513.257 requires the independent
candidate to make a declaration of disaffiliation in good faith. The Ohio secretary
of state adopted the Morrison holding in an advisory letter to the local boards of
elections.
       {¶ 18} In this case, the board concluded that Davis had not disaffiliated in
good faith based on a single piece of information, namely the fact that Davis
voted in a partisan primary in March 2012.


               Mr. Arshinkoff: But she voted in the September—she voted
       in the May Primary or whenever it was.
               Mr. Galonski: March 2012.
               Mr. Arshinkoff: March 2012 Primary.
               Mr. Galonski: Right.




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                                   January Term, 2013




                 Mr. Arshinkoff: She’s a Democrat.
                 Ms. Zurz: She voted in the Presidential Primary.
                 Mr. Arshinkoff: That’s the ultimate arbitrator [sic]. That’s
        the granddaddy of them all when you’re voting for President.


This was an abuse of discretion.
        {¶ 19} A candidate’s prior voting history, standing alone, cannot be a
sufficient basis for disqualifying an independent candidate. See State ex rel.
Monroe v. Mahoning Cty. Bd. of Elections, ___ Ohio St.3d __, 2013-Ohio-4490,
___ N.E.2d __, ¶ 24 (Oct. 10, 2013); State ex rel. Wilkerson v. Trumbull Cty. Bd.
of Elections, 11th Dist. Trumbull No. 2007-T-0081, 2007-Ohio-4762, ¶ 18.
Disaffiliation by definition presumes a history of support for or membership in a
political party. If a candidate’s prior voting record, standing alone, could trump a
declaration of disaffiliation, then disaffiliation would never be possible.
Therefore, the board does not strengthen its argument by claiming that Davis also
voted a Democratic ballot in the 2010, 2008, and 2006 primary elections.1
        {¶ 20} The board overemphasized Davis’s 2012 primary participation
because it made an error of law. R.C. 3513.05 (paragraph 3) requires candidates
seeking nomination or election to certain offices to obtain petition signatures from
members of the same political party. “For purposes of signing or circulating a
petition of candidacy for party nomination or election, an elector is considered to
be a member of a political party if the elector voted in that party’s primary
election within the preceding two calendar years, or if the elector did not vote in
any other party’s primary election within the preceding two calendar years.” R.C.
3513.05 (paragraph 7).



1. The evidence shows that she voted in a Democratic primary in two of those years, but not in
2010.




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       {¶ 21} The board erroneously applied this two-year look-back provision
for petition signatures to the separate analysis of disaffiliation under R.C.
3513.257. According to the board, “[b]ecause there is no law that specifies how a
person disaffiliates from a political party for the purposes of running as [an
independent] candidate, the Board made a reasonable comparison to Ohio’s law
on how a person disaffiliates from a political party for purposes of signing a
petition.”
       {¶ 22} The General Assembly expressly wrote a two-year look-back
requirement for petition signatures into R.C. 3513.05.        Had the legislature
intended the same rule to apply to claims of disaffiliation, it would have been a
simple matter to draft R.C. 3513.257 accordingly, but the legislature did not do
so.
       {¶ 23} The practical effect of the board’s rule is the creation of a de facto
“sit out” requirement, whereby candidates who disaffiliate from a political party
have to wait at least two years before they may seek office as independents.
Nothing in R.C. 3513.257 requires such a result. Furthermore, adopting such a
rule would conflict with this court’s precept that courts should liberally construe
election laws in favor of persons seeking to hold office so as to avoid restricting
the right of electors to choose among qualified candidates. State ex rel. Lynch v.
Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 341, 343, 686 N.E.2d 498 (1997).
       {¶ 24} Apart from Davis’s limited voting history, the board has presented
only two pieces of evidence to suggest that her claim of disaffiliation was a sham
or not made in good faith. On April 13, 2013, Davis attended an event in support
of a Democratic candidate for city council and donated $25. And on June 15,
2013, Davis attended an event for another Democratic candidate and donated $20.
The board points to these donations as evidence of Davis’s continuing connection
to the Democratic Party.




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                                January Term, 2013




        {¶ 25} We concede the relevance of this evidence, but deem it entitled to
little weight for two reasons. First, there is no necessary correlation between
donations and political affiliation. Second, and more importantly, these donations
occurred before Davis filed her declaration of candidacy on July 2, 2013, so
again, they shed little light on the sincerity of her declaration as of the date it was
made.
        {¶ 26} When courts have refused to allow an independent onto the ballot,
they have identified at least some postpetition evidence to undermine the
disaffiliation claim. E.g., Jolivette v. Husted, 694 F.3d 760, 767 (6th Cir.2012)
(candidate held himself out as a Republican in campaign filings and on Facebook
after filing to run as an independent); Morrison v. Colley, 467 F.3d 503, 510
(candidate voted in a partisan primary after he filed his nominating petition as an
independent); State ex rel. Lorenzi v. Mahoning Cty. Bd. of Elections, 7th Dist.
Mahoning No. 07 MA 127, 2007-Ohio-5879, ¶ 27 (same); State ex rel. Wilkerson
v. Trumbull Cty. Bd. of Elections, 11th Dist. Trumbull No. 2007-T-0081, 2007-
Ohio-4762, ¶ 24 (same).
        {¶ 27} This court has never held that a successful Morrison challenge
requires postpetition evidence, and we do not so declare today. But where the
challenge is based solely on prepetition evidence, the evidence needs to be that
much more substantial to warrant excluding an otherwise qualified candidate.
The board abused its discretion because it lacked sufficient evidence that Davis’s
declaration was a sham or made in bad faith. State ex rel. Livingston v. Miami
Cty. Bd. of Elections, 196 Ohio App.3d 263, 2011-Ohio-6126, 963 N.E.2d 187,
¶ 35 (2d Dist.).
        {¶ 28} In addition, the board abused its discretion because it
fundamentally misconstrued the relevant inquiry.         Based on her past voting
record, the board informs the court, “the Board determined that Relator did not
make a good faith attempt to disaffiliate from the Democratic Party.” But the




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requirement imposed by R.C. 3513.257 and Morrison v. Colley is that a candidate
must declare her lack of affiliation in good faith, not that she take affirmative
action to disaffiliate in order to prove her good faith.         In other words, the
declaration of disaffiliation can, in some circumstances, be sufficient affirmative
action.
          {¶ 29} As noted above, one cannot register with the secretary of state’s
office as an independent. So for a candidate such as Davis, who according to the
record has never held an elective partisan office or a governance position within a
political party, what possible action could she take, other than signing her
declaration of candidacy under oath, to meet the board’s demand that she “make a
good faith attempt to disaffiliate from the Democratic Party”?
          {¶ 30} The board’s insistence that she offer concrete examples of how she
has disaffiliated is particularly troubling because the board did not conduct an
evidentiary hearing or afford Davis any opportunity to be heard. To be clear,
when a board disqualifies a petition on its own initiative under R.C.
3501.39(A)(3), the board is not required to give the candidate notice or a hearing.
But a board cannot elect to forgo an evidentiary hearing and then fault the
candidate for not presenting evidence on her own behalf.
          {¶ 31} We find that Davis’s first proposition of law is well taken.
          {¶ 32} In her second proposition of law, Davis argues that the board was
time-barred from disqualifying her petitions. We reject this proposition.
          {¶ 33} A board’s authority under R.C. 3501.39(A)(3) to invalidate a
candidate petition on its own initiative is subject to a time limitation in R.C.
3501.39(B). State ex rel. Yeager v. Richland Cty. Bd. of Elections, ___ Ohio
St.3d __, 2013-Ohio-3862, 995 N.E.2d 228, ¶ 20 (Sept. 9, 2013). If a candidate
files a nominating petition to run in the general election, the board cannot
invalidate the petition after the 60th day before the election. In this case, the




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board acted on September 20, 2013, 46 days before the November 5, 2013
election. Based on these facts, Davis argues that the board exceeded its authority.
        {¶ 34} However, the time limit in R.C. 3501.39(B) is expressly subject to
its own exception: “If a petition is filed for the nomination or election of a
candidate in a charter municipal corporation with a filing deadline that occurs
after the ninetieth day before the day of the election, a board of elections may
invalidate the petition within fifteen days after the date of that filing deadline.”
R.C. 3501.39(C)(1).
        {¶ 35} In Akron, the filing deadline for independent candidates was
September 9, 2013. The board invalidated Davis’s petition 11 days after the filing
deadline, well within the 15-day window permitted under R.C. 3501.39(C). We
therefore reject proposition of law No. 2.
Conclusion
        {¶ 36} Based on the foregoing, we find that the board abused its discretion
when it refused to place Davis’s name on the ballot, and we grant the requested
writ.
                                                                      Writ granted.
        O’CONNOR, C.J., and PFEIFER, KENNEDY, and O’NEILL, JJ., concur.
        O’DONNELL and LANZINGER, JJ., dissent.
        FRENCH, J., dissents without opinion.
                             ____________________
        O’DONNELL, J., dissenting.
        {¶ 37} Respectfully, I dissent.
        {¶ 38} R.C. 3513.257 governs nominating petitions for independent
candidates, but it does not contain a bright line test for determining whether a
candidate is disaffiliated from a party. The standard is whether a candidate has
disaffiliated from a party in good faith, Morrison v. Colley, 467 F.3d 503 (6th
Cir.2006), and the Ohio secretary of state adopted Morrison in Advisory No.




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2007-05. State ex rel. Monroe v. Mahoning Cty. Bd. of Elections, __ Ohio St.3d
__, 2013-Ohio-4490, __ N.E.2d __, ¶ 22 (Oct. 10, 2013).           Notably, in that
advisory, the secretary of state advised local boards of election that while “voting
history, alone, is an insufficient basis on which to disqualify an independent
candidate * * *, voting history, together with other facts tending to indicate party
affiliation, may be sufficient grounds to disqualify an independent [candidate].”
(Emphasis sic.)
       {¶ 39} Whether a candidate has disaffiliated from a party in good faith
thus requires a fact-based determination. Factors that have been considered by
this court in making this determination are whether a candidate has voted in a
partisan primary, held elective office as a party member, or held a position on a
party’s central committee at any time after filing a declaration of independent
candidacy. State ex rel. Monroe at ¶ 24.
       {¶ 40} Pursuant to R.C. 3501.39(A)(3), a board of elections “shall accept
any petition described in section 3501.38 of the Revised Code unless one of the
following occurs: * * * The candidate’s candidacy or the petition violates the
requirements of this chapter, Chapter 3513. of the Revised Code, or any other
requirements established by law.”
       {¶ 41} Here, the evidence submitted to the court shows that relator,
Darrita Davis, voted as a Democrat in the March 2012 primary election, as well as
in the March 2008 primary election and the May 2006 primary election.
Additionally, the evidence shows that in April 2013, she financially contributed to
the campaign committee of Tara Samples, a Democrat, and in June 2013 she
financially contributed to the campaign committee of Lucille Humphrey, also a
Democrat. It is undisputed that in July 2013 she filed her petition to run as an
independent candidate for a position on the Akron City Council.
       {¶ 42} In view of Davis’s voting history and her financial contributions to
Democratic candidates in April 2013 and June 2013, the board did not abuse its




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discretion in concluding that Davis had not in good faith disaffiliated herself from
the Democratic Party when she filed her nominating petition to run as an
independent candidate.
                             ____________________
       LANZINGER, J., dissenting.
       {¶ 43} The county boards of elections are given little guidance when
asked to determine whether an independent candidate has made a good-faith
declaration of disaffiliation. In order to vacate the decision of a board of elections
and grant a writ of mandamus, a relator must establish that the board’s decision
resulted from fraud, corruption, abuse of discretion, or clear disregard of
applicable law. Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216,
2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. The term “abuse of discretion” in this
context connotes an unreasonable, arbitrary, or unconscionable decision. State ex
rel. Stine v. Brown Cty. Bd. of Elections, 101 Ohio St.3d 252, 2004-Ohio-771, 804
N.E.2d 415, ¶ 12, citing State ex rel. Stevens v. Geauga Cty. Bd. of Elections, 90
Ohio St.3d 223, 226, 736 N.E.2d 882 (2000). Because I believe that the Summit
County Board of Elections did not act unreasonably under the circumstances, I
would deny the writ.
                             ____________________
       Law Offices of Warner Mendenhall and Warner Mendenhall; and Alyssa
M. Allen, for relator.
       Sheri Bevan Walsh, Summit County Prosecuting Attorney, and John F.
Galonski, Assistant Prosecuting Attorney, for respondent.
                          _________________________




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