In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk, Youngstown Mun. Court - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk, Youngstown
Mun. Court, 88 Ohio St.3d 258, 2000-Ohio-325.]

IN RE ELECTION CONTEST OF DEMOCRATIC PRIMARY ELECTION HELD MAY 4, 1999
FOR NOMINATION TO THE OFFICE OF CLERK, YOUNGSTOWN MUNICIPAL COURT.
[Cite as In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk,
Youngstown Mun. Court (2000), 88 Ohio St.3d 258.]
Elections -- Contest of election -- Failure to remove name from ballot after
candidate withdrew -- Claim that validity of election was affected --
Board of elections did not abuse its broad discretion in not removing
candidate's name from the ballots and did not violate R.C. 3513.30(E),
when -- Court of common pleas' judgment affirmed.
(No. 99-1941 -- Submitted February 8, 2000 -- Decided March 29, 2000.)
APPEAL from the Court of Common Pleas of Mahoning County, No. 99 CV 1389.

The names of the following candidates appeared on the ballot for the May 4,
1999 Democratic Primary for the Clerk of the Youngstown Municipal Court:
appellant, Rick Durkin; appellee, Sarah Brown-Clark; Charles P. Sammarone;
Austin D. Kennedy; and Michelle A. Sexton. On Friday, March 26, 1999, thirty-
nine days before the election, Sammarone delivered a written statement to the
Mahoning County Board of Elections notifying the board of his withdrawal as a
candidate and requesting the removal of his name from the May 4 primary election
ballot. Under R.C. 3509.01, absentee ballots for the May 4 primary election had to
be printed and ready for use on the thirty-fifth day before the primary election, i.e.,
Tuesday, March 30, 1999.

On March 26, when the board's then Deputy Director, Michael Sciortino,
received Sammarone's withdrawal, he conferred with the printer about the
feasibility of removing Sammarone's name from the ballot. The printer informed
Sciortino that as of that date, the absentee ballots for the election had already been
printed and delivered to the board and that the regular ballots had practically all

been printed but had not yet been delivered. The printer further advised Sciortino
that on that late date, the ballots could not be reprinted to remove Sammarone's
name in time for the absentee ballots to be ready for use at the primary election.

Alternative methods of removing Sammarone's name from the ballot were
also impracticable. For example, because Mahoning County uses an optical-scan
ballot-counting system, placing stickers over Sammarone's name on the ballots
was not a viable option because the stickers did not always remain on the ballots
and had a tendency either to jam the ballot-counting machines and stop the
counting process or cause the ballots to bend so they could not be fed through the
machines. Marking over Sammarone's name on the ballots would not have
necessarily completely concealed his name, could have led to an "overvote" when
scanned by the ballot-counting machines, and would have been contrary to normal
board instructions that poll workers never mark the ballots. The board also could
not have used a different printer because there still would not have been enough
time to reprint the ballots, and the board probably would have had to rebid the
printing job. R.C. 3505.13.

Sciortino then conferred with the board's director and some of the board
members, all of whom concurred with his conclusion that the ballots could not be
reprinted with Sammarone's name removed in time for the May 4 primary election.
Instead of removing Sammarone's name from the ballots, the board placed in each
absentee ballot envelope a yellow notice, which informed absentee voters that
Sammarone had withdrawn from the municipal court clerk's race and that votes for
him would not be counted. The board also placed at eye level in each individual
voting booth a eleven-by-fourteen-inch sign, which specified the following in
large, bold print:
"IMPORTANT NOTICE
VOTES WILL NOT BE COUNTED

2

FOR
THE FOLLOWING CANDIDATE WHO
HAS WITHDRAWN FROM THE
MAY 4, 1999
PRIMARY ELECTION
CHARLES P. SAMMARONE,
YOUNGSTOWN CLERK OF
THE MUNICIPAL COURT."

In addition, the board instructed poll workers to advise voters of
Sammarone's withdrawal from the primary election and that votes for him would
not be counted, and precinct advisors reiterated these instructions to poll workers
on the May 4 primary election date. Sciortino notified a local newspaper, which
published a story about Sammarone's withdrawal.

Brown-Clark won the May 4 primary election with 4,849 votes, and Durkin
received 4,533 votes. Sammarone received 830 votes, i.e., more than the 316 votes
that separated Brown-Clark from Durkin.

On June 9, 1999, Durkin filed an election contest under R.C. 3515.08 in the
Mahoning County Court of Common Pleas to challenge Brown-Clark's
nomination. In his petition, as subsequently amended, Durkin alleged that the
board's failure to remove Sammarone's name from the May 4 ballot pursuant to
R.C. 3503.30(E) and Ohio Secretary of State Advisory No. 96-02 (entitled
"Removal of Names of Withdrawn Candidates from the Ballot"), and its
concomitant failure to adequately inform voters that Sammarone had withdrawn
and that votes cast for him would not be counted, constituted an election
irregularity and that this irregularity either affected the election outcome or
rendered the result unreliable and uncertain. Durkin further alleged that the
election irregularity was "caused by the officers, agents, or employees of the

3

Mahoning County Board of Elections." Durkin requested that the May 4, 1999
primary election be ruled void and that a special election be ordered. Brown-Clark
and the board filed motions to dismiss. On July 27, after conducting a portion of
the evidentiary hearing on Durkin's election contest, the common pleas court
granted the motions and dismissed the election contest for failure to state a claim
upon which relief can be granted.

On appeal to this court under R.C. 3515.15, we reversed the judgment of the
common pleas court and remanded the cause to that court for further proceedings.
In re Election Contest of Democratic Primary Election Held May 4, 1999 for
Clerk, Youngstown Mun. Court (1999), 87 Ohio St.3d 118, 717 N.E.2d 701. We
held that Durkin's amended petition alleged the elements of an election contest
with sufficient particularity to withstand dismissal under Civ.R. 12(B)(6).

On remand, the common pleas court conducted a trial on Durkin's election
contest. At the trial, Brown-Clark specifically objected to Durkin's attempts to
introduce evidence and argument on unpled election irregularities, e.g., the board's
alleged failure to meet and make decisions regarding the withdrawal. At one point
in the trial, Brown-Clark's attorney stated:

"Your Honor, I'm going to interpose an objection here similar to the one I
made yesterday. Where [Durkin's counsel] is going with these questions, I think
he wants to establish there is an irregularity * * * in the board as opposed to the
board's staff doing or not doing certain things. That is not in the petition. The
petitioner's name was not removed from the ballot. That's the only irregularity.
We stipulate [that] the name wasn't removed from the ballot in terms of stickers or
being blacked out. But he's trying to add, I think, additional irregularities here by
saying that the board didn't vote on certain things."

Further, during the trial, John F. Bender, the Chief Elections Counsel for the
Secretary of State when R.C. 3501.30(E) was enacted and Secretary of State

4

Advisory No. 96-02 was promulgated, testified that the advisory was drafted in
order to give some guidance to boards of elections after our holding in State ex rel.
White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 50, 600 N.E.2d
656, 660, where we held that a statement of withdrawal of candidacy filed after
absentee ballots had been mailed was sufficient to terminate the personal
candidacy of the withdrawn candidate. Bender helped draft a recommendation
regarding the withdrawal of candidates that was subsequently codified by the
General Assembly in R.C. 3513.30(E), and he supervised the drafting of Secretary
of State Advisory No. 96-02.

According to Bender, despite the use of generally mandatory language like
"shall" and "must" in the advisory, the Secretary of State's Office decided to draft
Secretary of State Advisory No. 96-02 as an advisory rather than as a directive
because these matters were intended to be committed to the broad discretion of
boards of elections, and the Secretary of State was unable to predict each and every
situation that might occur concerning a candidate's withdrawal from an election.
Bender opined that if at the time of a candidate's withdrawal, the election was only
thirty-nine days away, ballots could not be reprinted in that period of time, and
stickers were not a viable option because of the problems they caused for the
optical-scan ballot-counting system, removal of the withdrawn candidate's name
was not required by statute or order of the Secretary of State and notification of
electors of the withdrawal under the advisory would be sufficient to comply with
the applicable election laws.

On October 27, 1999, after the trial had been concluded, the common pleas
court denied Durkin's election contest. The common pleas court reasoned that
Durkin had failed to meet his burden of proving his contest by clear and
convincing evidence:

5

"The members of the Board of Elections either as individuals or jointly took
no action to remove the withdrawn candidate's name from the ballot, nor was the
Secretary of State consulted. Apparently, one or more Board of Election[s]
employees made the decision that time constraints and count-machine limitations
made removal of the name impracticable. This court does not opine on the validity
of such action or non-action.

"The court holds that the mandatory language of R.C. 3513.30(E) is made
less so by the words `...to the extent practicable...'. The provisions of `C' and `D'
of the Secretary of State Advisory 96-2 were followed by the Mahoning [County]
Board of Elections. Voters were warned and notified of the candidate's
withdrawal and that votes for him would not be counted.

"There must be clear and convincing evidence that the election result is
contrary to the will of the electorate. This race was not a two candidate race where
the `illegal,' the `bad,' [or] the `lost' vote was double the differential. The fact that
830 citizens of Mahoning County * * * either intentionally or negligently chose to
waste their vote did not make the contestee's nomination uncertain or invalid."

We subsequently denied Durkin's various motions pending his appeal from
the common pleas court's judgment, including his motions to impound the ballots
for the November 2, 1999 general election and to prohibit certification of the
general election result. See 87 Ohio St.3d 1434, 718 N.E.2d 930, and 87 Ohio
St.3d 1456, 720 N.E.2d 539. Brown-Clark ultimately won the general election for
the office of Clerk of the Youngstown Municipal Court.

This cause is now before the court upon a consideration of the merits of
Durkin's appeal.
__________________

Don L. Hanni and J. Gerald Ingram, for appellant.

Donald J. McTigue, for appellee.

6

Patrick J. Williams; Carr Goodson Warner, A Professional Corporation, M.
Miller Baker, William J. Carter and Richard B. Rogers, urging reversal for amici
curiae, The Voting Integrity Project and Common Cause.
__________________

Per Curiam.
Election Contest: Applicable Standards

Durkin challenges the May 4, 1999 primary election for the office of Clerk
of the Youngstown Municipal Court. In evaluating Durkin's election contest, we
are guided by several, well-established precepts.

Initially, "courts should be very reluctant to interfere with elections, except
to enforce rights or mandatory or ministerial duties as required by law." State ex
rel. Taft v. Franklin Cty. Court of Common Pleas (1998), 81 Ohio St.3d 480, 481,
692 N.E.2d 560, 562; MacDonald v. Bernard (1982), 1 Ohio St.3d 85, 86, 1 OBR
122, 123, 438 N.E.2d 410, 411-412.

Additionally, every reasonable presumption should be indulged in favor of
upholding the validity of an election and against ruling it void. Copeland v. Tracy
(1996), 111 Ohio App.3d 648, 655, 676 N.E.2d 1214, 1218; Beck v. Cincinnati
(1955), 162 Ohio St. 473, 475, 55 O.O. 373, 374, 124 N.E.2d 120, 122.

Moreover, an election result will not be disturbed unless the evidence
establishes that the result was contrary to the will of the electorate. Portis v.
Summit Cty. Bd. of Elections (1993), 67 Ohio St.3d 590, 592, 621 N.E.2d 1202,
1203; Mehling v. Moorehead (1938), 133 Ohio St. 395, 408, 11 O.O. 55, 60, 14
N.E.2d 15, 21.

In sum, "[t]he message of the established law of Ohio is clear: our citizens
must be confident that their vote, cast for a candidate or an issue, will not be
disturbed except under extreme circumstances that clearly affect the integrity of
the election." (Emphasis added.) In re Election of November 6, 1990 for the

7

Office of Atty. Gen. of Ohio (1991), 58 Ohio St.3d 103, 105, 569 N.E.2d 447, 450;
State ex rel. Billis v. Summers (1992), 76 Ohio App.3d 848, 850, 603 N.E.2d 410,
411.

More specifically, in order to prevail in his contest of the May 4, 1999
primary election, Durkin had to prove by clear and convincing evidence that one or
more election irregularities occurred and that the irregularity or irregularities
affected enough votes to change or make uncertain the result of the primary
election. In re Election Contest of Democratic Primary Held May 4, 1999, 87
Ohio St.3d at 119, 717 N.E.2d at 702, citing In re Election of Nov. 6, 1990, 58
Ohio St.3d 103, 569 N.E.2d 447, at syllabus. "Clear and convincing evidence" is "
`[t]hat measure or degree of proof which is more than a mere "preponderance of
evidence," but not to the extent of such certainty as is required "beyond a
reasonable doubt" in criminal cases, and which will provide in the mind of the trier
of facts a firm belief or conviction as to the facts sought to be established.' "
Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St.3d 121, 122, 568 N.E.2d
1222, 1223, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120
N.E.2d 118, paragraph three of the syllabus.

With the foregoing standards in mind, we next consider Durkin's claimed
election irregularities.
Unpled Irregularities

On appeal, Durkin contends that an election irregularity occurred when the
board failed to meet and act by majority vote on Sammarone's withdrawal, instead
permitting its employees, e.g., then Deputy Director Sciortino, to make decisions
regarding the withdrawal. Durkin further claims that the board's failure to consult
the Secretary of State concerning Sammarone's withdrawal constituted a separate
election irregularity. In his amended election-contest petition, however, Durkin
never alleged these election irregularities. Instead, Durkin alleged that the board's

8

failure to remove Sammarone's name from the May 4 ballot pursuant to R.C.
3501.30(E) and Secretary of State Advisory No. 96-02 and the board's additional
failure to adequately notify voters of the withdrawal were the sole election
irregularities.1

Insofar as Durkin's amended petition did not set forth the election
irregularities that he now claims on appeal, it did not comport with the
requirements of R.C. 3515.09, which requires election-contest petitions to "set
forth the grounds for such [election] contest." The procedures prescribed for
election contests are specific and exclusive, and must be strictly construed. In re
Contested Election of November 2, 1993 (1995), 72 Ohio St.3d 411, 414, 650
N.E.2d 859, 862.

Durkin nevertheless relies on R.C. 3515.11 to assert that "it is judicially
feasible to conform the pleadings to evidence" of additional election irregularities
elicited during trial. R.C. 3515.11 provides that "[t]he proceedings at the trial of
the contest of an election shall be similar to those in judicial proceedings, in so far
as practicable, and shall be under the control and direction of the court * * * with
power to order or permit amendments to the petition or proceedings as to form or
substance." Civ.R. 15(B), which is generally applicable to civil judicial
proceedings, governs amendments of pleadings to conform to the evidence tried by
the parties, and provides:

"When issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment. Failure to amend as
provided herein does not affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the issues made by the

9

pleadings, the court may allow the pleadings to be amended and shall do so freely
when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the admission of such evidence would
prejudice him in maintaining his action or defense upon the merits. * * *"
(Emphasis added.)

We need not consider the merits of these additional claims. Durkin never
sought to amend his petition to include these claims, Brown-Clark did not
expressly or impliedly consent to trial of these claims, and the trial court never
considered whether these claims constituted election irregularities. See State ex
rel. Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385, 391, 715 N.E.2d
179, 184; State ex rel. BSW Dev. Group v. Dayton (1998), 83 Ohio St.3d 338, 344,
699 N.E.2d 1271, 1276-1277. And despite Durkin's claims to the contrary, at the
time he filed his amended petition he could have obtained the meeting minutes of
the board that he eventually introduced as evidence at trial, which would have
disclosed his claimed irregularities. Nor would any purported lack of access to
supporting evidence until trial have precluded him from requesting the trial court
to amend his petition to include these claims. In fact, when Brown-Clark objected
to Durkin's attempts to litigate these unpled issues, Durkin failed to request leave
from the trial court to amend his petition to include these additional claimed
irregularities. Therefore, the common pleas court did not err by failing to
determine these unpled claims.
Failure to Remove Withdrawn Candidate's Name from Ballot

Durkin's remaining claim, which he properly raised in his amended election-
contest petition, is that the board's failure to remove Sammarone's name from the
ballot constituted an election irregularity because it contravened R.C. 3513.30(E)
and Secretary of State Advisory NO. 96-02.
10

After Sammarone withdrew from the primary election in accordance with
R.C. 3513.30(B) and (D),2 the board's duty was that set forth in R.C. 3513.30(E),
which provides:

"When a person withdraws under division (B) or (D) of this section, the
board of elections shall remove the name of the withdrawn candidate from the
ballots to the extent practicable in the time remaining before the election and
according to the directions of the secretary of state. If the name is not removed
from all ballots before the day of the election, the votes for the withdrawn
candidate are void and shall not be counted." (Emphasis added.)

When construing a statute, our paramount concern is the legislative intent in
enacting the statute. Yonkings v. Wilkinson (1999), 86 Ohio St.3d 225, 227, 714
N.E.2d 394, 396. In determining the legislative intent, we first review the statutory
language and the purpose to be accomplished. Rice v. CertainTeed Corp. (1999),
84 Ohio St.3d 417, 419, 704 N.E.2d 1217, 1218.

Under the plain language of the statute, R.C. 3513.30(E) expressly limits the
board's duty to remove the name of a withdrawn candidate from ballots "to the
extent practicable in the time remaining before the election." Whether it is
practicable to remove a withdrawn candidate's name from ballots in the time
remaining before the election is an issue vested within the discretion of boards of
elections. See State ex rel. Ohio Assn. of Pub. School Emp. v. Girard Civ. Serv.
Comm. (1976), 45 Ohio St.2d 295, 297, 74 O.O.2d 463, 464-465, 345 N.E.2d 58,
60, where we held that comparable language in R.C. 124.31 requiring promotions
in the classified service to be based upon merit, "to be ascertained as far as
practicable by promotional examinations," vested the question of whether
promotional examinations were practicable initially in the civil service
commission.
11

This interpretation furthers the purpose of R.C. 3513.30(E), which the then
Secretary of State's Chief Elections Counsel, who helped draft the provision,
testified was to confer broad discretion on boards of elections to handle ballot-
removal issues in candidate-withdrawal cases.

The evidence establishes that the board did not abuse its discretion under
R.C. 3513.30(E) by determining that it was not practicable to remove
Sammarone's name from the ballots. The term "abuse of discretion" connotes an
unreasonable, arbitrary, or unconscionable decision. State ex rel. Duncan v.
Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d 1254, 1256.
At the time that Sammarone withdrew from the primary election, there was
insufficient time to reprint the ballots to remove his name. In addition, because
Mahoning County uses optical-scan ballot-counting machines, neither placing
stickers on nor marking over his name on the ballots was feasible. Given these
circumstances, the board's decision was neither unreasonable, arbitrary, nor
unconscionable.

Secretary of State Advisory No. 96-02 does not require a contrary result.
The advisory states that "[i]f a certified candidate withdraws in writing prior to
thirty-five (35) days before a primary or general election * * *, a board of elections
must reprint all ballots without the name of the withdrawn candidate, or otherwise
remove the name of the withdrawn candidate from existing ballots by use of
stickers or another method adopted by the board." But the opinion was drafted as
an advisory rather than as a directive. In addition, as specified by the official under
whose direction the advisory was issued, despite the use of language normally
considered mandatory, the advisory merely provided guidance and was not
mandatory. Finally, a contrary conclusion would nullify the "to the extent
practicable" clause in R.C. 3513.30(E). See State ex rel. Sinay v. Sodders (1997),
80 Ohio St.3d 224, 232, 685 N.E.2d 754, 760 (" `We must construe statutes to
12

avoid unreasonable or absurd results.' "); In re Election of Member of Rock Hill
Bd. of Edn. (1996), 76 Ohio St.3d 601, 609-610, 669 N.E.2d 1116, 1123 (board of
elections could not rely on Secretary of State advisory that erroneously interpreted
election statute).

Moreover, after the board determined that it was impracticable to remove
Sammarone's name from the ballots given the proximity of the election, it
diligently proceeded to notify electors that Sammarone had withdrawn as a
candidate and that votes for him would not be counted. Notices were placed in
each absentee-ballot envelope and individual voting booth, a local newspaper
reported the withdrawal, and poll workers were instructed to verbally inform voters
of the withdrawal.

Based on the foregoing, the board did not abuse its broad discretion in not
removing Sammarone's name from the ballots, and it did not violate R.C.
3513.30(E). Durkin failed to establish by the requisite clear and convincing
evidence that one or more election irregularities occurred. Therefore, we need not
determine the second prong of the election-contest test, i.e., whether the claimed
irregularity or irregularities affected enough votes to change or make uncertain the
result of the primary election.

We note, however, that to the extent Durkin and amici curiae claim
entitlement to a new election, that relief is not available in an election contest. Hitt
v. Tressler (1983), 7 Ohio St.3d 11, 12, 7 OBR 404, 405, 455 N.E.2d 667, 667-
668, quoting Hitt v. Tressler (1983), 4 Ohio St.3d 174, 178, 4 OBR 453, 457, 447
N.E.2d 1299, 1304, fn. 10 ("[A] court is without jurisdiction to order an election in
[an election-contest] case in the absence of legislative authority.").
Conclusion
Because
Durkin
did not establish any election irregularity by the board's
actions on the Sammarone withdrawal, the common pleas court properly denied
13

the writ. This is not a case in which "extreme circumstances" manifestly affected
the "integrity of the election." In re Election of November 6, 1990, 58 Ohio St.3d
at 105, 569 N.E.2d at 450. Instead, the board acted diligently and properly
exercised its statutory discretion by keeping Sammarone's name on the ballot and
notifying the electors of his withdrawal. Accordingly, we affirm the judgment of
the court of common pleas.3
Judgment affirmed.

Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Cook AND Lundberg Stratton,
JJ., CONCUR.

DOUGLAS, J., not participating.
FOOTNOTES:

1.
Durkin does not claim on appeal that the board committed an election
irregularity by not adequately notifying voters of Sammarone's withdrawal.

2.
R.C. 3513.30 provides:

"(B) Any person filing a declaration of candidacy may withdraw as such
candidate at any time prior to the primary election, or, if the primary election is a
presidential primary election, at any time prior to the fiftieth day before the
presidential primary election. The withdrawal shall be effected and the statement
of withdrawal shall be filed in accordance with the procedures prescribed in
division (D) of this section for the withdrawal of persons nominated in a primary
election or by nominating petition.

" * * *

"(D) * * * Such withdrawal may be effected by the filing of a written
statement by such candidate announcing the candidate's withdrawal and requesting
that the candidate's name not be printed on the ballots. * * * If such candidate's
declaration of candidacy * * * was filed with a board of elections, the candidate's
statement shall be addressed to, and filed with such board."
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3.
Given this disposition, we also need not consider the merits of Brown-
Clark's alternate assertion that Durkin's claims are barred by estoppel, a ground
not relied upon by the trial court in denying the contest. See In re Contested
Election of Nov. 2, 1993, 72 Ohio St.3d at 414, 650 N.E.2d at 862.
15