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IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ex rel. ) CASE NO. 13-1533DARRITA L. DAVIS

)Relator , ) Original Action in Mandamus-

) Expedited Election Case-vs. )

)SUMMIT COUNTY BOARD )OF ELECTIONS )

)Respondent. )

MERIT BRIEF OF RELATOR, DARRITA L. DAVIS

WARNER MENDENHALL, 00701.65Law Offices of Warner Mendenhall190 N. Union St., Ste. 201Akron, Ohio 44304(330)535-9160; fax (330)762-9743warnermendenhall^a;h.otmail com

ALYSSA KEENY, 0082715P.O.Box 39631Solon, Ohio 44139(440)477-5484KeenLawLLC(cr_ gmail.comAttorneys.for Relator

John Galonski, 0061792Assistant Prosecuting Attorney53 University AvenueAkron, OR 44308(330) 643-2800.^alonski( c^prosecutor. summitoh.netAttornev. for X espondeait

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TABLE OF CONTENTSPage

INTRODUCTION .. .............................................................:................................... I

STATEMENT OF THE FACTS . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . ...,...............................1

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: The Board abused its discretion in invalidatingDavisNominating petition to run as an independent candidate for Akron CityCouncilWard 10. 3

Proposition of Law No. 2: The Board's action of determining Davis'Nominatin Petition invalid is time-barred by R.C. 3501.39(I3) 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . .............................. ..................8

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . ......................................................9

APPENDIXExhibit 1- Affidavit of Attorney Alyssa M. Allen

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TABLE OF AUTBOIZITIES

CasesMorrison v. Clley, 467 F.3d 503(6" Cir. 2006) ....................... ........... 5

Jolivette v. Husted, 886 F.Supp.2d 820 (S.D. Ohio, 2012) .......................................6

State ex rel. Allen v. YVcrrren C. Bd. of'Elections, 115 Ohio St.3d 186, 2007-Ohio-4752 (2007) ................................................................................................................3

State ex rel. Brown v. S'ujnnzit Cty. Bd, of Elections,46 Ohio St.3d. 166, 167 (1989)............................................... ........... . ........................................................... 3

State ex rel. Coughlirz v. Sumtnit Ct^). Bd. ofElection.s, Slip Opinion No. 2013-(^hio-3 867 ) ................ ... .......... ...................................................... ... ....... .4

State ex rel. ?I%Loss v. Franklin Bd. of Elections, 69 Ohio App.2d 115 (1980) ..........3

State ex rel. O'Donnell v. Cuyahoga Cty. Bd. ofElections, 136 Ohio Ap.3d 584,587 (2000) ..................... .... ......... .................................................... ..... .. .3

State ex rel. Yeager v. Richland Cty. Bd. of Elections, Slip Opinion No. 2013-Ohio-3862 ....... ........ ....... ...................................................................... ......... .477

Statutes

R.C. 3501.39

R.C. 3513.257

5, 7

4

iii

INTRODUCTION

This is an original action in mandamus to compel the Summit County Board

of Elections ("Board") to place Relator Darrita L. Davis' name on the ballot for the

November 5, 2013, general election as an independent candidate for the Ward 1.0

Akron City Council position. Davis is a qualified elector and has fulfilled the

requirements of Chapter 3513 and other requirements under Ohio law to have her

Nominating petition accepted and certified by the Board. Under R.C. 3501.39(A)

the Board must accept Davis' Nominating petition yet it refused to do so. Without

a Writ of Mandamus, Davis' right to run as an independent candidate for Akron

City Council will be denied.

STATEMEN I' OF TI-IE FACTS

As set fol-th in Relator, Darrita L. Davis' Complaint for a Writ of Mandamus

and her affidavit, filed with the Supreme Court of Ohio on Septeinber 27, 2013,

Respondent Summit County Board of Elections is denying Davis' right to be an

independent candidate for the Ward 10 Akron City Council seat on the Noveinber

5, 2013 general election ballot. On July 2, 2013, Davis filed her Nominating

Petition to run as an "independent" candidate in the November 5, 2013 general

election. She timely submitted her petition on the proper form with enough valid

signatures.

1

Davis was never informed of any written protest regarding her Nominating

petition. Nor was Davis provided any information regarding a hearing to

determine the validity of her Nominating petition. Instead, Davis was informed,

via letter, on September 23, 2013, her petition was deemed invalid. (See Ex. 2,

attached to Relator's Coinplaint and incorporated by reference.) The letter gave

no further inforination about any findings by the Board regarding her status as an

"independent" candidate. Davis called the number(s) on the letter and was told she

had enough valid signatures on her Nominating petition, but that she had voted as a

Democrat in March of 2012. (See Affidavit of Darrita L. Davis, attached to Davis'

Complaint and incor-porated by reference.) Attorney Alyssa Allen called Sandy

Balthis on September 25, 2013, and inquired as to the Board's decision. (See

Affidavit of Alyssa Allen, attached and incorporated by reference to Relator's

Merit Brief as Exhibit 1.) Attorney Allen asked if there were any additional

findings beyond the letter Davis received. Id. She was told no, the letter was sent

out so the candidate does not find out about it in the newspaper. Id. Attorney Allen

was also told that Davis had enough valid signatures and that the "policy" of the

Board was to deny the independent status because Davis "had voted as a Democrat

in March 2012." Id. When Attorney Allen asked if the "policy" referenced was

written, Ms. Balthis stated, "yes." Id. Attorney Allen asked where the written

policy was located and Ms. Balthis stated she did not know. Id. No written policy

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has been found that requires the Board to deny the "independent" status of a

candidate because he or she voted 20 months ago in a party primary.

Despite repeated requests to follow Ohio law and place Davis on the

November 5, 2013, general election ballot, the Board has refused to do so. In its

Answer the Board denies that Davis used the cor-rect form and timely filed her

Nominating petition. (Respondent's Answer, pg. 3, ¶11. ) The Board denies

knowledge of the conversation Davis had with a Board representatives when she

called to inquire about the September 23, 2013, letter. (Resp. Answer, pg. 3,^16.)

LAW AND ARGUMENT

Proposition of Law No. 1: The Board abused its discretion in invalidatin gDavis Nominating petition to run as an independent candidate for Akron CityCouncil Ward 10.

It is well-established that mandamus is appropriate to compel a board of

elections to accept and certify a nominating position satisfying the statutory

requirements for a candidacy. State ex rel. Allen v. Warren Cty. Bd. ofElections,

115 Ohio St.3d 186, 2007-Ohio-4752 (2007) at T,1 19-21; See also, State ex rPl.

I3rown v. Sunimit Cty. Bd. ofElections, 46 Ohio St.3d 166, 167 (1989); State ex r°el.

Moss v. Fi°anklin Bd. of Elections, 69 Ohio App.2d 115 (1980); see also, State ex

rel. O'Donnell v. Cuyahoga Cty. Bd. ofElections, 136 Ohio Ap.3d 584, 587

(2000).

Relator must show by clear and convincing evidence that 1) she has a clear

legal right to ballot placement and foz• her candidacy to be deemed valid for the

November 5, 2013 ballot, 2) that the Board has a corresponding legal duty to place

her name on the ballot and validate lier candidacy, and 3) the lack of an adequate

remedy in the ordinary course of law. Allen v. t Varren Cty. Bd, ofElectionas, at ¶8.

As in the recently decided case ofStczte ex. rel. Yeager v. Richland Cty. Bd. of

E,lections and State ex rel. Coughlin v. Szinnnait Cty. Bd. of Electi.ofzs, Relator does

lacks an adequate remedy at law due to the date of the election. Davis' case is more

urgent as the election is in less than one month.

Davis has a right to have her candidacy deemed valid and the Board has a

duty to declare it valid and keep or place her name on the November 5, 2013

ballot. Davis submitted her nominating petition on July 2, 2013. A copy is

attached to Davis' Complaint. Davis conzplied with R.C. 3513.257. The Board

determined she had presented the minimum number of valid signatures on her

Nominating petition. Inexplicably, on September 23, 2013, 83 days after she filed

her Nominating petition, the Board sent Davis a letter stating her "filing as an

independent candidate for AKRON WARD 10 COUNCIL was determined to be

invalid." (Emphasis in original.) (See Ex. 2 attached to Davis' Complaint.) The

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date of the letter is two days after the September 21, 2013, deadline to finalize the

November 5, 2013, ballots.i

The Board was without authority to invalidate under R.C. 3501.39(A)(2),

because no one has filed a written protest against her candidacy. The Board has

never provided notice of a hearing to Davis. The Board has never specifically

infQrmed Davis of the basis of any protest. The Sept. 23, 2013, letter is the only

informati on the Board has provided to Davis. On September 25, 20 13, Davis

received the letter and called to iziquire how the Board made the determination.

The only explanation she received was that she had "voted as a Democrat in March

2012". There have been no allegations that her status as an independent in July

2013 was made without the good faith requirement described in iWaYrison v.

Cvlley, 467 F.3d 503 (6`" Cir. 2006).

The Ohio Secretaiy of State's Advisory Opinion No. 2007-05, which

interprets and offers further guidance regarding the Mort•ison decision, was not

followed by the Board. Advisory Opinion No. 2007-05 states "if an independent

candidate votes in a party primary after filing as an independent, the candidate is

not actually unaffiliated, and the candidate's claim of independence was either not

made in good faith or is no longer current, and [i]f an

Presuinably, Davis' naine reinains on the ballot, but due to the Board's determination, votes for Davis wwill notcount.

5

independent candidate was on a political party's central or executive committee at

the time he or she filed as an independent candidate, or becomes such a committee

member at any time during his or her independent candidacy, the candidate is not

actually unaffiliated, and the candidate's claim of independence was either not

made in good faith or is no longer current." Davis has not voted in a primary

election since her July 2, 2013 filing. Nor has Davis served on a political party's

central executive committee at the time of her filing, or subsequent to her filing as

an independent.

The Board has abused its discretion in determining Davis' status as an

independent candidate is invalid. The Board has made no findings regarding

Davis' independent status. The Board, through its representatives, has issued a

letter stating Davis' candidacy has been determined to be invalid due to her voting

in the March 20 ]. 2 Democratic Primary. Yet, Advisory Opinion No. 2007-05

states "voting history, alone, is an insufficient basis on which to disqualify an

independent candidate because Ohioans are freely entitled to change or revoke

their party affiliation at any time." tJnlike the candidate in Jolivette i% Husted,

Davis has no prior history of running as a party candidate. 886 F.Supp.2d 820

(S.D. Ohio, 2012) (Candidate Greg Jolivette was precluded from running as an

independent because of his conduct. The Court found there was sufficient

evidence to find Jolivette was claiming independent status as a political maneuver

6

to get his name on the ballot when his candidacy as a Republican for the same

office was doomed.) Davis also has no history of being involved in a party's

central or executive committee.

Proposition of Law No. 2: The Board's action of determining Davis'Nominating Petition invalid is time-barred by R.C. 3501.39(B).

R.C. 3501.39 (B) states that "a board of elections shall not invalidate any

declaration of candidacy or nominating petition under division (A)(3) of this

section after the sixthieth day prior to the election at which the candidate seeks

nomination to office, if the candidate filed a declaration of candidacy, or election

to office, if the candidate filed a nominating petition." The Board invalidated

Davis' nominating petition only 43 days before the general election. As in Yeager,

the Board's action must be deemed time-bar-red as the statute's plain language

states a board shall not invalidate a nominating petition after the sixtieth day prior

to the election. Yeager at T22. This Coui-t found that R.C. 3501.39(B) "contains

no language allowing the board to fix a new deadline in the event the primary is

not required."

If however, Respondent relies on the (C)(1) provision of 3501.39, the Board

has failed to provide Davis notice within the 15 day deadline, and should be held

time-barred. R.C. 3501.39(C)(1) states that a "charter municipal corporation with

a filing deadline that occurs after the ninetieth day before the day of election,

...may invalidate the petition within fifteen date after the date of that filing

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deadline." Davis filed her nominating petition on July 2, 2013. The Board mailed

her a letter notifying her of the determination her petition was invalid on or after

September 23, 2013. The Board's delay was unreasonable and unduly prejudicial

to Davis. Its action of invalidating her candidacy should be time-barred.

CONCLUSION

Respondent has a clear, legal duty to place Davis name on the November 5,

2013 general election ballot and to determine her independent candidate status

valid. Respondent's determination that Davis' independent candidacy for Ward 10

Akron City Council. is invalid is an abuse of discretion and should be time-barred.

Due to the proximity to the election, Davis has no adequate remedy under the usual

course of the law. Therefore, Davis is entitled to the request of a writ of

mandamus.

Respectfully su mitted,

MNIENALL,OOOl65Law Offices of Warner Mendenhall190 N. Union St., Ste. 201Akron, OH 44304(330) 535-9160; fax (330) 762-9743wariiermend enh a ll (&6 m ai l. c o m

Caunsel, for Relator

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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was served by regular U.S. Mail and email on 10-7-2013,upon:

John F. GalonskiDeputy Chief Assistant Prosecuting Attorney53 University AvenueAkron, OH 44308330.643.8379galonskiu,prosecutor. sumnlitoh.netCounsel for^ Respondent

n,RNER MENDENHALL, 0070165

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APPENDIX

AFFIDAVIT OF ATTORNEY ALYSSA M. ALLEN

STATE OF OHIO )

) SS:COUNTY OF SUMMIT

I, Alyssa M. Allen, having been duly sworn and cautioned according to law,

deposes and says that:

1. I am over the age of eighteen years and I have personal knowledge of the

facts set forth in this Affidavit.

2. On September 25, 2013, at 3.45 p.m., I called 330-643-5430 to inquire

about Darrita L. Davis' nom.inating petition.

3. I spoke with Sandy Balthis on September 25, 2013, for 9 minutes and 37

seconds.

4. Ms. I3althis explained that Darrita L, Davis did have enough valid

signatures on her nominating petitions.

5. I asked Ms. Balthis if there was any further explanation for the Summit

County Board of Elections making the detei-mination to invalidate Ms.

Davis' candidacy.

6. Ms. Balthis explained that the letter sent to Davis was sent to infoi-m her

of the Board's decision so that she did not find out about it through the

newspaper.

EXHIBIT°

7. Ms. Balthis stated that there were no additional findings beyond the letter

Davis received explain the Board's determination.

8. Ms. Balthis stated that it was "policy" to invalidate and that Ms. Davis

had "voted as a Democrat in March 2012."

9. I asked if the policy Ms. Balthis referred to was in writing.

14. Although Ms. Balthis stated yes, she could not direct me to such a written

policy i f one exists.

FURTHER AFFIANT SAYETH NAUGHT.

Alyssa M. Allen

STATE OF OHIO )SUMMIT COUNTY ) SS:

Before me, a Notary Public in and for said County and State, personally appeared theabove named Alyssa M. Allen, who acknowledged that she signed the foregoingaffidavit, and that the facts contained therein are true as she verily believes.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official3.

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