McMillan v. Ashtabula Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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McMillan, Appellant, v. Ashtabula County Board of Elections et
al., Appellees.
[Cite as McMillan v. Ashtabula Cty. Bd. of Elections
(1993), Ohio St.3d .]
Elections -- Contest of election -- Burden on contestor to
prove case by clear and convincing evidence.
(No. 93-1121 -- Submitted September 22, 1993 -- Decided
December 15, 1993.)
Appeal from the Court of Appeals for Ashtabula County, No.
92-A-1758.
This is an election-contest case which originated in the
Court of Appeals for Ashtabula County. The facts giving rise
to the present appeal are as follows.
For the November 3, 1992 general election, Debra S.
McMillan, contestor-appellant, and Robert S. Wynn,
contestee-appellee, were qualified official write-in candidates
for the office of Judge of the County Court of Ashtabula
County, Eastern Division. William A. Kobelak was the sole
certified candidate for that office whose name was to appear on
the November 3, 1992 general election ballot. However, on
October 22, 1992, this court issued a writ of prohibition and
order directing that the Ashtabula County Board of Elections
("board of elections"), contestee-appellee, "* * * not place
William Kobelak's name as sole nominee for Ashtabula County
Court, Eastern Division Judge, on the general election ballot
for the November 3, 1992 election." See State ex rel. McMillan
v. Ashtabula Cty. Bd. of Elections (1992), 65 Ohio St.3d 1438,
600 N.E.2d 681.1 Consequently, McMillan and Wynn were the only
remaining eligible candidates for the office, both being
official write-in candidates.
Prior to October 22, 1992, before this court issued the
writ of prohibition, the board of elections had already issued
to voters 1,259 absentee ballots with Kobelak's name as a
candidate for county court judge. After our October 22, 1992
order, no absentee ballots issued to voters by the board of
elections contained Kobelak's name as a candidate for office.
McMillan and Wynn were eligible write-in candidates for the
office of county court judge on all absentee ballots issued by

the board of elections before and after October 22, 1992. In
accordance with our October 22, 1992 order, Kobelak's name did
not appear on the official voting device sheets2 delivered by
the board of elections to the precinct polling places for use
in the November 3, 1992 election.
As indicated, on election day, the name of no candidate
for the office of Judge of the County Court of Ashtabula
County, Eastern Division, appeared on the voting device sheets
delivered by the board of elections to the election polling
places. Rather, there was a blank space on the device sheets
beside the title of the office of county court judge and a hole
through which a stylus could be pushed to "punch" individual
ballot cards. However, the only way for a voter to properly
register his or her vote for either eligible candidate in the
race (McMillan or Wynn), was to write the name of the candidate
and the title of the office on a "security envelope" which
accompanied the punch card ballot issued to the voter.
While the polls were open in precincts where voting for
the judgeship position occurred, many of the device sheets in
the voting booths were defaced with pencil and/or ink,
presumably by rogue electors. Specifically, the name of Robert
Wynn and/or Debra McMillan (or some illegible defacement) was
marked on the device sheets in the space next to the title of
the office of county court judge. It appears that poll workers
at several locations took corrective action by removing writing
instruments from the voting booths, or by covering-up or
completely obliterating what had been written on the device
sheets.
When the polls closed, the device sheets were returned to
the board of elections where it was determined that one hundred
fifty of the two hundred fifty-eight device sheets used in the
election were defaced in some manner. Upon inspection, the
board of elections was able to determine that Wynn's name
appeared by itself on at least fifty-five device sheets, that
McMillan's name appeared by itself on at least twenty-four, and
that both Wynn's and McMillan's names appeared on at least
three device sheets. As to the remaining defaced device
sheets, the board of elections could not determine what had
been written.
After the properly executed write-in votes were tallied,
Wynn was declared the winner, receiving 2,292 votes to
McMillan's 918 votes, a margin of victory of 1,374 votes. Of
the 1,259 absentee ballots that had been mailed to electors
prior to October 22, 1992, six hundred eighty-six ballots had
been cast in favor of Kobelak, which votes were disregarded by
the board of elections. In addition, it was determined that
during the election, the voting stylus was inserted next to the
title of the office for county court judge a total of 1,381
times, registering votes for no one.
In December 1992, McMillan filed, in the Court of Appeals
for Ashtabula County, a petition to contest the election.
Following an evidentiary hearing, the court of appeals
overruled the challenge and entered final judgment in favor of
Wynn and the board of elections ("appellees").
The cause is now before this court upon an appeal as of
right.

Debra S. McMillan, pro se.
Gregory J. Brown, Ashtabula County Prosecuting Attorney,
for appellees.

Douglas, J. In the court of appeals, appellant
(McMillan) set forth seventeen items of alleged irregularity in
the November 3, 1992 election for the county judgeship
position. In her brief before this court, appellant
concentrates on only four areas of alleged irregularity,
arguing that she has satisfied her burden of demonstrating that
enough votes were affected by the claimed irregularities to
change or make uncertain the results of the election. We have
considered appellant's arguments and conclude that appellant
has failed to meet her burden under the standards set forth in
In re Election of November 6, 1990 for the Office of Attorney
General of Ohio (1991), 58 Ohio St.3d 103, 569 N.E.2d 447,
wherein we held, in the syllabus:
"A contestor of an election held in Ohio must prove two
facts by clear and convincing evidence to prevail: (1) that
one or more election irregularities occurred, and (2) that the
irregularity or irregularities affected enough votes to change
or make uncertain the result of the election."
The claims of election irregularity asserted by appellant
involve: (1) the board of elections' issuance of absentee
voting ballots prior to our October 22, 1992 order; (2) the
defacement of official voting device sheets; (3) the lack of
pencils in voting booths; and (4) an alleged violation by
appellee Wynn of the Code of Judicial Conduct. We will address
each of these alleged irregularities seriatim.
I
The first area of alleged irregularity involves the 1,259
absentee ballots issued to voters by the board of elections
prior to October 22, 1992, which listed Kobelak as a candidate
for county court judge. Appellant asserts as an irregularity
"the failure of the Board of Elections to issue absentee
ballots in accordance with * * * [this court's October 22,
1992] order to remove William Kobelak as sole candidate from
the ballot[.]" However, we find, as did the court of appeals,
that the board of elections complied with our October 22, 1992
order. Therefore, the matter raised by appellant does not
constitute an election irregularity.
The absentee ballots at issue were printed and mailed
before this court's October 22, 1992 order directing the board
of elections not to place Kobelak's name on the ballot.
Nothing prior to October 22, 1992 prohibited the board of
elections from printing and mailing these absentee ballots to
ensure that the ballots were received by absentee voters in a
timely fashion. In fact, pursuant to R.C. 3509.01, absentee
voter's ballots must be printed and ready for use thirty-five
days before a general election. As soon as our October 22
order was received by the board of elections, new absentee
ballots were printed with Kobelak's name removed from the
ballot. No absentee ballots mailed to voters after October 22,
1992 listed Kobelak as a candidate for office.
Appellant suggests that between October 22 and November 3,
1992, the board of elections should have issued reprinted
absentee ballots (with Kobelak's name removed) to those

absentee voters who received ballots mailed by the board of
elections before October 22, 1992. In our judgment, the board
of elections had no such obligation. Moreover, had this course
of action been taken by the board of elections, absentee voters
with two ballots could possibly have voted twice in the same
election.
Furthermore, even if we were to find that an election
irregularity occurred, nothing in the record before us suggests
that appellant would have received any additional votes had
Kobelak's name not appeared on the absentee ballots issued
prior to October 22, 1992. In this regard, the six hundred
eighty-six voters who cast a ballot in favor of Kobelak might
have cast their vote for appellant's opponent had Kobelak's
name not appeared on the ballot, or they might not have voted
at all in the race between two write-in candidates. In any
event, the fact remains that appellant was defeated in this
election and that not enough votes were affected by the claimed
irregularity to cast any doubt on the results of the election.
II
The second area of alleged irregularity concerns the
defacements of voting device sheets. The court of appeals
held, and we agree, that the numerous defaced voting device
sheets constituted an election "irregularity." Additionally,
it is obvious that the defacements led to voter confusion since
1,381 attempted votes were registered by stylus beside the
title of the office for county court judge. However, appellant
has failed to demonstrate, by clear and convincing evidence,
how many votes were actually affected by the irregularity, or
how the irregularity might have affected the outcome of the
election.
At the evidentiary hearing in the court of appeals, one
witness, Jackie Kosenko, testified that a defacement confused
her and that, consequently, she did not vote for appellant
although she originally intended to do so. Conversely, other
witnesses testified that they were able to cast a write-in vote
for appellant despite defacements on voting device sheets.
Appellant was also unable to demonstrate that any of the 1,381
attempted votes (by stylus) were intended votes for her, or
that those voters who used the stylus on their ballots in the
manner described did not also execute a valid write-in vote.
Accordingly, we find that appellant has failed to meet her
burden of establishing, by clear and convincing evidence, that
enough votes were affected by the irregularity to change or
make uncertain the results of the election.
III
The third item asserted as an election irregularity is the
lack of pencils in private voting booths. R.C. 3501.29(A)
provides, in part:
"The board of elections shall provide for each precinct a
polling place and provide adequate facilities at each polling
place for conducting the election. * * * Each voting
compartment shall be provided at all times with black lead
pencils, instructions how to vote, and other necessary
conveniences for marking the ballot."
The evidence at the hearing established that poll workers
in at least one precinct were instructed to remove pencils from
private voting compartments in an attempt to stop electors from

marking voting device sheets. Poll workers were further
instructed to ask voters if they needed a pencil. Although the
removal of pencils from voting compartments can technically be
considered an election irregularity, the only evidence in the
record concerning the effect of the irregularity was that
Jackie Kosenko, who intended to vote for appellant, did not
receive a pencil from poll workers. In this regard, we note
that Kosenko did not request a pencil, and that other voters in
other precincts who did request a pencil were provided with
one.
Appellant urges us to infer that more than just one vote
was affected by this irregularity. While such an inference may
be justified, it was appellant's burden to prove by clear and
convincing evidence that this irregularity, alone or in
conjunction with other irregularities, affected enough votes to
change or make uncertain the outcome of the election.
Appellant failed to prove that necessary fact on the record,
and mere inferences not fully supported by the evidence have no
place in election contest cases.
IV
The final matter raised by appellant as an election
"irregularity" is an alleged violation by appellee Wynn of the
Code of Judicial Conduct. However, no evidence was presented
by appellant that even a single vote was affected by the
claimed irregularity and, thus, we reject appellant's arguments
in this regard.
V
Having completed a thorough review of the record before
us, we can find no clear and convincing proof of any election
irregularity or irregularities that can be said to have
affected enough votes to change or make uncertain the results
of the election. Accordingly, we affirm the judgment of the
court of appeals.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Wright, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.

FOOTNOTES:
1 Our reported opinion which was subsequently issued
(announced December 9, 1992) directed the board of elections to
"remove" Kobelak's name from the ballot. See State ex rel.
McMillan v. Ashtabula Cty. Bd. of Elections (1992), 65 Ohio
St.3d 186, 189, 602 N.E.2d 631, 633.
2 Official voting device sheets are those which remain in
the voting booth during the election and into which individual
punch card ballots are placed while voting.