IN THESUPREME COURT OF OHIO
STATE OF OHIO, ex rel.ZACHARY SCOTT,
ApPeilant,
v5.
CASE NO: 2014-0504
qt^'04
. ^
FRANKLIN COUNTY BOARD . APPEAL AS OF RIGHT FROMOF ELECTIONS, . THE TENTH I)ISTRIC'I' COURT
OF APPEALSAppellee.
MERIT BRIEF OF APPEL[JF,EFRANKLIN COUNTY BOAi2l) OF ELECTIONS
Jennifer L. Brunner (0024440)Patrick M. Quinn (0081692)Peter A. Contreras (0087530)13RtJNNER QUINN35 N. Fourth Street, Suite 200Columbus, Ohio 43215Telephone: (614) 241-5550Facsimile: (614) 241-5551email: 'alb^^brunnerlaw.cotn:
pi?aq!a?brunnerlaw. campac@,brLmnerlaw.com
Counsel ior Appellant,Zachary Scott
Mark W. Fowler (0080955)Speeial Prosecutor to theFranklin County Prosecuting AttorneyDELAWARE COUNTYPROSECUTiNG ATTORNEY'S OFFICE140 North Sandusky Street, 3d FloorDelaware, Ohio 43015Telephone: (740) 833-2690Facsimile: (740) 833-2689email: infoN v ler! c%cv.delaware.oh. us
Couzlsel for Appellee,Franklin County Board of plections
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TABLE OF CONTENTS
TABLE OF CONTENTS . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .. . . i
TABLE OF AUTHORITIES...... ... ......... ..... .. .... . ......................... .................................................. iii
iNTRODUCTION . ....... ...... . .................................................... . ......................................1
STATEMENT OF THE CASE, AND THE FACTS ........ ...... ... ...................................................5
ARGUMEN'T . . . ... . . . . .. . .. . . .. . . . . . ... . . . . . . . . . . . . .. .. . .. . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . , . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . .. . . 9
Appellee's Prouosition of Law No. 1 ... . .. ... ..... . . .. . .. ........ . . .. .. . . . . ... . . ... .... . . . ..... . . .9
ffhen a relator brings an elections related original action in an appellate district cocsrtinstead of directly to the SupNeme Court of Ohio, the relator has not exercised propeYdiligence or acted expeditiously when the relatoi- lcrter brings an appeal of 'that originalaction to the ,Supretne Court of Ohio afler the election has begun, and there*e theappeal is barred by laches and is moot.
A. Laches ...... ........ ................................................................... 9
B. Mootness ..................................... ........ . ....... ........ . ........................................ ....13
Appellee's Proposition of Law No. 2 ... ... . .. ... ... .... . ... .... . .. ... ..... . .. .. . . . . . . . . .. ..... 15
A board o,f'elections does not abuse its discretion, nor does it uctcontrary to law, tivhenitinvalidates a signature on a nominating petition when that signature is proven to not bethe "legal mark" qf'the person who signed it.
A. The Signature Found On Line 7 Of Appellant's Petition Is Not Tara Patel's "Legal Mark"As Found On 1ler Voter Registration And I'herefore The I3OE Properly Applied OhioLaw In Finding The Signature Not Genuine And Invalid .............................................16
B. A Legal Right Was Not Created Merely Because Appellant Offered Testimony ShowingThat The Writing On Line 7 Came From Patel's Hand.......................................... 21
C. Appellant's Arguments Claiming T'hat "1'he Legal Mark Law Creates A RebuttablePresumption Are Irrelevant Because There Is No Evidence In 'I'he Record That WouldRebut Such I'resumption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
D. The "Bacon" And "MQnnin" Matters Are Not Instructive In This Case As They AreBased On I)ifferent Facts And Do Not Support Appellant's Arguments..................... 25
i
E. A Decision For Appellant Could Have A Detrimental Effect On Ohio Election Law.
CONCLUSION .. .....................................:...................................................... ........................28
CERTIFICATE OF SERVICE ... ......... .......... ... ... ............................................... . .... 29
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'TABLE OF AU'THORITIES
Cases
Rust v. Lucas Cty. Bd ofElections,108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766........ .......................,.. .............................14
State ex rel. Asccini v. Star•k Cty. Bd of F,lections,83 Ohio St.3d 490, 700 N.E.2d 1234 (1998) .............................................................. ................... 11
State ex rel: Becker v. Eastlake,93 Ohio St.3d 502, 505, 756 N.E.2d 1228 (2001) ...................... ...............,...........................12, 13
State ex rel Bona v, Orange,85 Ohio St.3d 18, 21, 706 N.E.2d 771 (1999) ...............:........ .......,............12. 13
State ex rel. Brinda v. Lorain Cty. Bd, qf Elections,115 Ohio St.3d 299, 2007-Ohio-5228, 874 N.F.2d 1205 .... ....... ......... .......................................10
State ex rel. Chillicothe v. Ross Cty. .13d oj'Elections,123 Ohio St.3d 439, 2009-Ohio-5323, 917 N.E.2d 263 .................................................................. 8
State ex rel. Coughlin v. Sumfnil Ctv. Bd.of Elections,136 Ohio St. 3d 371, 2013-Ohio-3867, 995 N.E.2d 1194........... ........, .......................................12
State ex rel. Craig v. Scioto Cty. Bd of Elections,117 Ohio St. 3d 158, 2008-Ohio-706, 882 JV E.2d 435 . .............................................. ......... .......... 8
State ex rel. Dispatch Printing Co. v. Louden,91 Ohio St.3d 61, 741 N.E.2d 517 (2001) ....................................................................................13
State ex rel. Essig v. Blackwell,103 Ohio St.3d 481, 2004-Ohio-5586, 817 N.E.2d 5............. ............... ......... ...........................14
State ex rel. Fuller v. Medina Cty. Bd. of Elections,97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37 .........................................................>............11
State ex rel. Grounds v. IZocking Cty. Bd of Elections,117 Ohio St.3d 116, 2008-Ohio-566, 881 N.E.2d 1252 .............: .................................................14
State ex rel. Greene v. Moj2tgotnery Cty. Bd of Elections,121 Ohio St. 3d 631, 2009-Ohio-1716, 907 N.E.2d 300 ...............................................................14
iii
State ex rel. Manos v. Delativare Cty. Bcl ofElections,83 Ohio St.3d 562, 701 N.E.2d 371 (1998). ......... .........................,............................................11
State ex rel. 1'Uewell v. Tuscarawas Cty, Bd. qfElections,93 Ohio St.3d 592, 757 N,E.2d 1135 (2001) .............................. ..................................................11
State ex rel. O-wens v. Brunner,125 Ohio St. 3d 130, 133, 2010-Ohio-1374. 926Y E.2d 617, 621 ................ ,.....,.........,........8, 10
State ex rel. Rogers v. Taft,64 Ohio St. 3d 193, 196, 594 N.E.2d 576, 579 (1992) . . ............. .................... .............................16
State ex r•el. Todd v. Rlger,2007-Ohio-6053, 116 Ohio St. 3d 207, 877 N.E.2d 673 . ...............................................................13
State ex rel. White v. Kilbane Koch,96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508..... ...... .................................................,....13
State ex rel. Willke v. Taft, 107 Ohio St.3d 1. 2005-Ohio-5303, 836 N.E.2d 536 . ... .. .............10
State ex rel. Voters First v. Ohio Ballot Bd.,133 Ohio St. 3d 257, 2012-Ohio-4149, 258, 978 N.E.2d 119, 121 . .............................................. 12
State ex rel. Yiamouyiannis v. Taft, 65 Ohio St.3d 205, 209, 602 N.E.2d 644 ( 1992) . ................. 16
Constitutional Provisions
Ohio Constitution, Art. IV, § 2. .. ... . ................................................... .............. $
Statutes
R.C. 2731.02 .......................... ..... ... ... ...........................,........................... . .... 8
R. C. 3501,011 .... ..... .. ..... .. . . . ....... .... ... .. ....... . .... .. ... .... .... . . . .. .. .. . .. ..... .. .... . . . ..... . .. .. .. .. . .. .. .. . .1,2
R.C. 3501.11 ........................................... ......... . .. . .......................................................16
R.C. 3509.01 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
It.. C. 3509.02 . ..... ..................................................... . .... ... ....................................... 7, 8, 11
R.C. 3509.08 .............................................................................................................. . ........ ......11
iv
Rules
S.Ct.Prac.R.12.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 8,9
INTRODUCTION
This case is about one signature on a candidate nominating petition and whether that
signature can be counted as valid under Ohio election law. The law at issue here; R.C. 3501.011
(the "Legal Mark Law"), reqtiires an elector to sign a nominating petition with her "legal mark."
A legal mark, according to the statute, is the signature "used in the person's regular business and
legal affairs." R.C. 3501.011(C). For elections purposes, including the signing of nominating
petitions, the statute specifies that the legal mark of an elector is "the mark of the elector as it
appears on the elector's voter registration record." In this case, a legal mark was not used.
Appellant alleges that the disputed signature on line 7 of his nominating petition belongs
to Tara Patel ("Patel"). Even if it is to be believed that the signature came from Patel's hand, the
evidence in this case shows that Patel's legal mark is completely different from the signature that
appears on Appellant's nominating petition. Patel herself admitted that she did not sign the
petitiott with her usual signature, which is printed, and Patel's own affidavit clearly shows that
she signs legal documents with the printed signature.
State law, case law, and directives from the Ohio Secretary of Statenaake clear that a
board of elections must compare the signature on a nominating petition with the signature on the
elector's voter registration card to determine if the signature is the elector's genuine legal mark.
If the signature on the nominating petition does not match the elector's legal znark on file with
the board of elections in any discernable way, it must be considered invalid.
In this case, the Appellee Franklin County Board of Elections ("BOE") invalidated the
disputed signature because it does not even remotely match the signature it has on file for the
Tara Patel at the listed address. Based on the vast difference in the two signatures, the BOE
followed Ohio law and invalidated the petition signature, resulting in a rejection of Relator's
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nominating petition for a lack of sufficient signatures. The lower court found that the BOE had
acted pursuant to law when it did so.
The BOE allowed Appellant an opportunity at a hearing to dispute its decision to deny
his candidacy. By the end of the hearing, one thing was clear: the signature on the nominating
petition is not Patel's legal mark as that term is defined in R.C. 3501.011. Patel had deliberately
not used her legal mark because Appellant's own circulator instructed her not to use it. Based on
this evidence, the BOE maintained its decision to invalidate the signature and deny the petition.
Now Appellant is asking this Court to overturn the lower court's decision, but that request should
be denied for several reasons.
First, and most importantly. Appellant is too late. The election began on April l. in
Franklin County. As of the date of the filing of this brief, ten days have passed since the election
began. Thousands of ballots have been mailed and thousands of votes have been cast. By the
time the Court rules, at least fourteen days of the election will have passed, likely more.
Appellant could have brought his case to this Court directly as an original action instead of
starting in the court of appeals. While it was not legally improper to file first in the lower court,
considering the extreinely narrow timeline of elections cases and the early start of in-person
absentee voting, Appellant constructively foreclosed his ability to appeal to this Court. Appellant
took a calculated risk to start in the lower court and now must live with the result. To change the
ballot mid-way through the election would be extremely prejudicial to the BOE, not to mention
those electors who have already cast their ballots. By not filing his original action with the
ultimate arbiter when he had the opportunity to do so, the Appellant did not act with the requisite
diligence and promptness to bring it now, mid-way through the election. 'I'he Court should
dismiss the appeal because it is barred by laches and is moot.
2
Second, as the lower court found, Appellant is unable to show that the BOE has a clear
legal duty to certify his noininating petition and place his name on the ballot. To the contrary, the
BOE has a clear legal duty under the law to deny Appellant's petition based on a lack of
sufficient signatures. Despite Appellant's efforts to muddy the issue of how the statute is applied,
the Legal Mark Law is clear and unambiguous: an elector must use her legal mark when signing
a nominating petition. This is important because boards of elections must protect the integrity of
the voting process by verifying signatures, and they have precious little time to review all of the
signatures that are submitted each election cycle. To allow electors to place any type of mark on
elections document so long as they can later prove it came from their hand, which is essentially
the result the Appellant advocates, would render an already difficult task impossible.
Finally, Appellant goes to great lengths in arguing that the BOE and the lower court erred
by treating the requirements of the Legal Mark Law as irrebuttable presumptions, but this
argument misses one important point. Assuming arguendo that the Legal Mark Law does create a
rebuttable presumption, Appellant never produced any evidence that would rebut that
presumption. Rather, Appellant's evidence confimied the alleged presumption. If the
presumption is that the sig.nature is not Patel's legal mark, to rebut that presumption Appellant
would have had to show that it is her legal mark. For illstance, perhaps by showing that her legal
mark has changed due to a medical issue and that the signature on the petition is how she now
signs her business and legal documents, "1'hat did not happen here. Patel signed the petition in a
way she never signed any document before. She signed it as she was instructed to sign it by
Appellant's circulator. The signature on Appellant's nominating petition is clearly not Patel's
legal mark. Appellant wants the Court to make the leap that the presumption is rebutted merely
by showing that it was from Patel's hand, no matter what the signature looks like, This argument
^
does not demonstrate how the [,egal Mark Law creates a rebuttable presumption, instead it
renders the law completely null because si2ch a result would mean it doesn't matter what the
writing on the paper looks like. The Court should not reach that result.
Therefore, the Court should dismiss the appeal because it is barred by laches and is znoot.
In the alternative, the Court should affirm the lower cou.rt's decision,
4
STATEMENT OF THE CASE AND THE FACTS
The BOE agrees with some portions of Appellant's Statement of the Case and Facts. For
the sake of brevity, only those portions where there is disagreement, or where important facts
were not mentioned, will be discussed herein.
'Fhe BOE agrees that the Appellant filed a Notice of Appearance of Counsel and a Notice
of Filing of Affidavits of Manasi Chatterji and Tara Patel prior to the BOE's February 18, 2014,
meeting, but notes that these documents were filed at 2:58 p,m. R.6, Complaint Exhibits B and
C; Complaint Exhibit D, p.8, lines 12-17. The meeting began at 3:00 p.m. R.6, Complaint
Exhibit D, p.1.
Appellant has included an article from the Columbtis Dispatch as an exhibit to his
Complaint. See R.6, Complaint Exhibit G. 'rhe article relates to a protest of the candidacy of
Kevin Bacon that the BOE never considered because the protest was filed imtimely. R.6,
Complaint Exhibit G. Appellant's brief contains quotes from the article attributable to BOE
Director William Anthony and his opinion that the signature "doesn't look like what we have on
file," but another quote froni the article was not included. The BOE Deputy Director Dana
Walch is quoted as saying "1 think the signature is close enough to construe that it is Kevin
Bacon's signature." R.6. Complaint Exhibit G. No BOF Board member is quoted in the article.
Appellant discusses and quotes extensively from the March 6, 2014, BOE hearing on the
Chad Monnin ("Monnin") protest. The protest was filed by a third-party who was represented by
counsel Don Brey. Mr. Brey described the crux of the protest this way:
MR. BREY: The signatures of the seven individuals on the petitions of Mr.
Monnin do not appear to match the signatures on file with the 13oard of Elections
5
as is required by both Ohio law and the directives of the Secretary of State.
Complaint Exhibit I, p.7, lines 19-23.
In response, counsel for Mr. Monnin stated in-part:
MR. KAFANTARIS: This Board has already determined with its competent staff
that these signatures are authentic. We shouldn't second guess what this Board
has done. That is the very nature of this Board. That's what this Board does every
year, to oversee the electorial (sic) process and to make sure that signatures are
valid. Complaint Exhibit 1, p.10, lines 2-7.
After the attorneys for the parties framed the issue this way, the BOF members asked
questions of the Director and Deputy Director related to how the staff determines that signatures
on petitions are valid. Complaint Exhibit I, pp.14-18. An important part of that discussion that
was not included in Relator's Brief includes a quote from BOE Director Anthony:
DIRL;C'fOR ANTHONY: And we take staff through a training before we let them
do it, and we also have -- petitions are looked at by another set of eyes as well. So
if I'm the one doing this, then there would be another set of eyes that takes a look
at it. ComplaintExhibit I, p.17, lines 13-18.
The BOE in Monnin found that there were multiple similar signatures and points of
congruence for six of the seven protested signatures. Complaint Exhibit 1, pp.18-30. Chairman
Preisse stated "[W]e have got a couple of iterations of the same signatures, I think, and then we
also have the petition." Complaint Exhibit I, p.18, lines 19-21. In analyzing the seven signatures
before the BOE, six of the signatures were found to have multiple similarities or "points of
congruence" to the signature on file with the BOE. Complaint Exhibit I, pp.18-30.
6
Finally, Appellant alleges as fact that the signature on line 7 of Appellant's nominating
petition is similar enough to Tara Patel's signature on her registration card that it should have
been validated by the BOE as of right. Relator's Brief, p.27. Appellant further alleges that the
BOE did not review Ms. Patel's signature in the same way that it reviewed the signatures in the
Monnin case. Id.
The BOE disagrees with these assertions. In Appellant's case, the BOE had three
signatures to review, all allegedly made by Tara Patel. Two of those signatures, on the voter
registration card and on the affidavit prepared for this case, were printed in the same handwriting
and clearly identify Tara Pa.tel. Complaint Exhibits C and F. "I'he other signature is on the
nominating petition. Complaint Exhibit A. T'hat signature is written in cursive and does not
clearly identify Tara Patel. As the BOE and its trained staff correctly determined, there are no
similarities or points of congruence between the signatures on the nominatinl; petition and that
found in the other two documents.
Finally, the BOE asserted the affirmative deferise of laches in its Answer to Appellant's
Complaint in the court below. R.26, ^122.
7
ARGUMENT
Appellee's Pronosition of Law No. l
Wlien a relator brings an elections related original action in an appellate district courtinstead of directly to the Supreme Court of Ohio, the relator has not exercised properdiligence or acted expeditiously when the relator later brings an appeal of'that originalaction to the Supreme Court of Ohio after the election has begun, and therefore theappeal is barred by laches and is moot:
A. Laches
Individuals bringing elections related original actions are required to act with the utmost
diligence. State ex rel. Cliillicothe v. Ross C. Bd of 'Elections, 123 Ohio St<3d 439, 2009-Ohio-
5523, 917 N.E.2d 263, ¶ 9. "If relators in election cases do not exercise the utmost diligence,
laches may bar an action for extraordinary relief." State ex rel. Craig v. Scioto Cty. Bd of
Elections, 117 Ohio St.3d 158, 2()08-Ohio-706; 8821Vr.E.2d 435, 11 11. "The elements of laches
are (l.) unreasonable delay or lapse of time in asserting a rigllt, (2) absence of an excuse for the
delay, (3) knowledge, actual or constructive, of the injuzy or wrong, and (4) prejudice to the
other party." State ex rel. Owens v. Brunner, 125 Ohio St. 3d 130, 133, 2010-Ohio-1374, 926
N.E.2d 617, 621.
In this case, all four laches elements have been met. First, the Appellant unreasonably
delayed in asserting his right to bring this action before this Court. Appellant could have filed his
§ 2(B)(1)(b),R.C. 2731.02, Instead, heoriginal action in this Court. See OH Const, Art. IV,
strategically chose to assert that riglit in the lower court. 'rhis Court allows relators expedited
original actions in elections cases under S.Ct.Prac.R. 12.08, just like he availed himself of in the
lower court. By not asserting that right from the beginning, Appellant has unreasonably delayed.
8
Appellant has no excuse for the delay in bringing his case to this Court, thus meeting the
second element of laches. Other than perhaps liking his chances better in the Tenth District,
Appellant has no other excuse for not bringing this action directly to the ultimate arbiter in a
timely manner and when it could have made a difference. l:n his Motion To Expedite Proceedings
filed with this Court on April 1, Appellant argued he brought the original action in the lower
court for "judicial efficiency" and "to encourage the filing of original actions before the appellate
district courts rather than all such cases being filed before this Court." Appellant's 1Vlotion to
Expedite, p.2. However, judicial efficiency is not served when two different courts must expend
time and resources to consider a case when it was possible to have only one do so. Efficiency is
especially important in elections cases. A final decision is necessary to preserve the integrity of
both the ballot and the election. This need is recognized in the Ohio Constitution in that this
Cottri: is bestowed with original jurisdiction to hear actions in Mandamus and in S.Ct.Prac.R.
12.08 providing rules for expedited elections cases.
1'here is no support for Appellant's argument that election cases should be encouraged to
be brought in the appellate district courts. To the contrary, the law recognizes the time-sensitive
nature of elections cases and perrnits original actions to be brought directly to the ultimate
decision-maker. In performing its statutory duty to hear elections related original actions, this
Court has prescribed rules for the treatment of these cases, including expedited consideration.
This demonstrates that this Court is required, willing, and prepared to accept elections related
original actions. There is no indication from the General Assembly, the Supreme Court of Ohio,
or any other court that there is a preference that these actions be brought in the appellate district
courts instead of directly to the Supreme Court of Ohio. Therefore, Appellant has no excuse for
the delay.
9
The third element, knowledge of the injury or wrong, is clearly met here as that is why
Appellant filed his original action to begin with.
Finally, the fourth element is met and is the most telling factor. This element requires a
showing of prejudice to the other party, and this Court requires a showing of prejudice before
applying laches in an election case. State ex Nel. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio
St.3d 299, 2007-Ohio-5228, 8741ti.E.2d 1205, !; 11. Bringing this appeal after the election has
started and seeking to change the ballot mid-way through the election is extremely prejudicial to
the BOE. T'he BOE has already had to endure one expedited appeal with restricted time to
prepare and defend against Appellant's claims, and now must do so again.
More importantly, though, this appeal could signifacantly impair the BOE's "ability to
prepare, print, and distribute appropriate ballots because of the expiration of the time for
providing absentee ballots." State ex rel. Owens v. Brunner, 2010-Ohio-1374, 125 Ohio St. 3d
130, 134, 2010-Ohio-1374, 926 N.E.2d 617, 621, quoting ^tate ex rel. YTjillke v. Taft, 107 Ohio
St.3d 1, 2005-Ohio-5303, 8361VT.E.2d 536, ¶ 18.
In this case, the election has begun. Voting in Franklin County started on April 1. See
http:,//vote.franklincountyohio.gov;assets/elections/2014/2014-Electiori-Schedule_ pdf. County-
wide as of April 9, the BOE has issued a total of 9,157 ballots, and 2,385 have been returned in
the mail or voted in-person. By the time the Court issues its decision that number will have riserl
significantly. Not all of the ballots are paper ballots, either. Early in-person absentee voting in
Franklin County is done on electronic voting machines. To reconfigure the soflware on the
machines will add cost and delay, and the machine may not be capable of retaining the already-
cast ballots if the ballot changes. To re-mail new ballots will result in significant costs to
taxpayers, not to mention confusion for those electors -who have already voted. To change the
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ballot in the middle of the election would create an enormous burden on the BOE and prejudice
electors who have already voted. This could have been avoided. Appellant had his choice of
forums. By filing in the Tenth District, Appellant v`Tas foregoing all the benefits of filing an
original action in the Supreme Court of Ohio, including the ability to have the highest court
decide the case before the election started. That opportunity has now passed.
This Court has repeatedly applied laches, especially in elections cases that seek to change
the ballot after elections have begun. See, e.g., State ex yel. Manos v. Delaware Cty. Bd vf
Elections, 83 Ohio St.3d 562, 701 N.E.2d 371 (1998) (finding prejudice where by the time
relators filed their original action, the date to print and make absentee ballots ready for use by
electors had already passed); State ex rel. Newell v. Tuscarawas Cty. Bd of Elections, 93 Ohio
St.3d 592, 757 N.E.2d 1135 (2001) (relator waited 20 days after a petition was filed to protest the
petition and another 14 days after the protest was denied to file an action for extraordinary relief,
which was after the absentee-ballot deadline); State ex rel. Fuller v. Medina Cty. Bd of
Elections, 97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.f:.2d 37 (relators waited two rnonths from
the date the petition was submitted to the board of township trustees to file a protest and an
additional 17 days after denial of protest to seek a writ of prohibition, after the deadline to have
absentee ballots printed and. ready for use); State ex t•el. Ascani v. Stark Cty. Bd of Elections, 83
Ohio St.3d 490, 494, 700 N.E.2d 1234 (1998) ("[B]y the time the expedited briefing schedule
was completed, the date for providing absentee ballots had passed.")
Here, just as in all of the above-cited cases, the date for providing absentee ballots
pursuant to R.C. 3509.01 has passed. To vote absentee when those cases were decided, however,
required meeting certain qualifications. See former R.C. 3509.02(A), 3509.08(A) and (B)(1).
Since the passage of Sub. H.B. 234 in 2005, any elector may vote in-person absentee without
11
qualification. Today many more electors are voting early than when those cases were decided. So
this case provides even stronger support to dismiss based on laches because the prejudice to the
boards of elections and electors is greater today with so many more early voters.
In this appeal, the Court need not be concerned with one of the oft-cited reasons for
denying a laches defense - the fundamental tenet of judicial review in Ohio "that courts should
decide cases on their merits.' " Voters First, 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d
119, 21, quoting State ex rel. Becker v. Eastlake, 93 Ohio St.3d 502, 505, 756 N.^.2d 1228
(2001). Appellant has already had his case decided on the merits in the court of his choosing. IIe
simply does not like the result, and that is not a valid reason to find that laches does not apply.
In his brief, Appellant claims that the BOE cannot claim a laches defense because the
BOE delayed consideration of Appellant's matter and therefore has unclean hands. Appellant's
Brief, FN. 1. This argument is incorrect. The doctrine of unclean hands requires a showing that
the party seeking relief engaged in reprehensible conduct with respect to the subject matter of the
action. State ex rel. Coughlin v. Stimmit (.713). Bd of'Elections, 136 Ohio St. 3d 371, 373, 2013-
Ohio-3867, 995 N.E.2d 1194, 1197. There is no evidence that the BOE engaged in reprehensible
conduct in this matter. Further, as discussed above, the unreasonable delay in this case rests
solely on the Appellant for not bringing this matter directly to this Court in time for it to make a
difference.
In sum, all of the elements of laches has been met here. The Court should therefore
dismiss this appeal.
B. Mootness
As a general rule, election cases are moot where the relief sought is to have a name or
issue placed on the ballot and the election was held before the case could be decided. State ex rel.
12
Bona v. Orange, 85 Ohio St.3d 18, 21, 706 N.E.2d 771 (1999). Although Election Day (May 6
for this year's primary election) has not yet passed, the election has been underway for ten days
and thousands of votes have already been cast. In-person absentee voting allows all electors to
vote early without qualification. R.C. 3509.02. As a result, elections begin far sooner than they
have in the past. In the past, Election Day was the important focal point for courts in determining
mootness because there were far fewer absentee ballots cast. With in-person absentee voting, the
number of ballots cast before Election Day is far more numerous. Because this appeal is brought
after the election has begun, and so many ballots have been and will continue to be cast, this case
is now znoot.
This is also not a case in which the merit issues raised are capable of repetition yet evade
review. This exception to the moot-issue doctrine applies "when the challenged action is too
short in duration to be fully litigated before its cessation or expiration, and there is a reasonable
expectation that the same complaining party will be subject to the same action again." .State ex
r°el. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E2d 508, ¶ 13, quoting
State ex r°el. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61, 64, 741 N.E.2d 517 (2001).
Because election cases may be brought directly to the Supreme Court and are afforded expedited
treatment, they are often fully litigated before the pertinent election. State ex rel. T'odd v. .F'elgei-,
2007-Ohio-6053, 116 Ohio St. 3d 207, 209, 877 N.E.2d 673, 676. Appellant's case demonstrates
this - it was expedited in the lower court and a decision was issued before early in-person voting
started on April 1.
Based on this argument, the appeal should be dismissed as moot. Moreover, because this
conclusion renders moot the other propositions raised by appellants, the Court need not address
them. See State ex r•el. Becker v. Eastlake, 93 Ohio St.3d 502, 507, 756 N.E.2d 1228 (2001)
13
(wl7ere the holding in an expedited election case rendered moot the city°s remaining defenses).
Further, the Court has consistently held that it does not issue advisory opinions, including in
election cases. State ex rel, Essig v. Blczckwell, 103 Ohio St.3d 481, 2004-Ohio-5586, 817 N.E.2d
5, ^j 34, Therefore, the appeal should be dismissed as moot.
Appellee's Proposition of Law No. 2
A board of elections does not abuse its discretion, nor does it act contrary to law, when itinvalidates a signature on a nominating petition ivhen that signature is proven to not bethe "legal mar^k" of the person ivho signed it.
Appellant brought this case as a mandamus action. To be entitled to the requested writ of
mandamus, Appellant must establish a clear legal right to certification of his candidacy and
placement of his name on the election ballot, a corresponding clear legal duty on the part of the
BOE to do so, and the lack of an adequate remedy in the ordinary course of law. State ex f-el.
Grounds v. Hocking Civ. Bd of Elections, 117 Ohio St.3d 116, 2008-Ohio-566, 881 N.E.2d
1252, ' j 10. All three elements must be met for the Appellant to be entitled to the requested relief.
Id. Appellant fails to show a clear legal right or duty here, and the lower court agreed.
To establish that there is a requisite legal right and legal duty, Appellant "must prove that
the board of elections engaged in fraud, corruption, abuse of discretion, or clear disregard of
statutes or other pertinent law." Rust v. Iuca,s Cty, I3d of'Elections, 108 Ohio St.3d 139, 2005-
Ohio-5795, 841 N.E.2d 766, 4,1 8. There is no fraud or corruption in this case; so the only
pertinent issue is whether the BOE abused its discretion or clearly disregarded applicable law by
determining that Appellant's nominating petition did not contain the required number of valid
signatures because the signature on line 7 was determined not genuine and invalid. State ex f el.
Greene v. ^Uontgomery C.'ty. 13d ofElections, 121 Ohio St. 3d 631, 2009-Ohio-1716, 907 N.E.2d
300, T, 11.
14
The BOE properly acted within its discretion and pursuant to law when it determined that
the signature on line 7 of Appellant's nominating petition was not genuine. That finding left his
nominating petition with only four valid signatures on a petition requiring five valid signatures.
The BOE again acted pursuant to law by denying the Appellant certification to the ballot based
on an insufficient number of signatures.
The BOE allowed Appellant a hearing to dispute its decision to deny his candidaey. At
the hearing, the BOE accepted evidence and heard testimony. At the conclusion of the hearing,
the Board denied the appeal. Based on the facts and evidence, the BOE did not act unreasonably
or arbitrarily in deciding the Appellant had not produced evidence sufficient to demonstrate a
legal duty to place his name on the ballot. Rather, the hearing and the evidence confirmed the
BOE's initial finding that the signature on line 7 was not Tara Patel's genuine legal mark. The
BOE properly exercised its discretion in making these findings and treated Appellant no
differently than any other candidate.
A. The Signature Found On Line 7 Of Appellant's Petition IsNt Tara Patel's "LegalMark" As Found On Her Voter Registration And Therefore The BOE ProperlyApplied Ohio Law In Finding The Signature Not Genuine And Invalid.
Appellant claims in his Propositions of Law Nos, I and 2 that the BOE misapplied Ohio
law when it found the signature on line 7 of Relator's nominating petition to be "not genuine." It
is Appellant who misapplies the law.
A legal mark is defined as one of two possible things: 1) a "person's written, cursive-style
legal mark written in that person's own hand" or 2) "for persons who do not use a cursive-style
legal mark during the course of their regular business and legal affairs, "sign" or "signature"
means that person's other legal mark that the person uses during the course of that person`s
15
regular business and legal affairs that is written in the person's own hand." R.C. 3501.011(A) and
(B). These two sections are mutually exclusive, in other words, an elector may have only one
legal mark. It may be in cursive or it may be printed, but an elector may not use more than one
legal mark.
The Legal Mark Law further reads that whenever a person is required to sign or affix a
signature to a nominating petition, the legal mark of the person shall be considered to be the
mark of that elector as it appears on the elector's voter registration record. R.C. 3501.011(A) and
(C). Based on this requirement, I'ara Patel's legal mark is the signature found on her voter
registration record, That signature, found in Appellant's Complaint at Exhibit F, is a printed
signature.
When the BOE receives a nominating petition, specific duties are triggered under the law.
Pursuant to R.C. 3501.11(K), the BOE is required to verify petitions submitted by candidates.
This is done by checking the signature on the petition against the signature on the registration
forms on file at the board of elections. State ex rel. Yiwnouyiannis v. Taft, 65 Ohio St.3d 205,
209, 602 N.E.2d 644 (1992); ;.9fate ex Nel. Rogers v. Taft, 64 Ohio St. 3d 193, 196; 594 N.E.2d
576, 579 (1992). That is what the BOE did when it received Appellant's nominating petition.
The trained professional staff at the BOE compared the signatures to those on the voter
registration cards for the electors at their given address. When the BOE staff checked line 7, it
found a signature completely differer ►t from that found on Pate1's voter registration card. The
BOE staff could not verify that the signature was genuine, and marked it appropriately. The BOE
concurred with the findings of the staff at its February 18, 2014, meeting.
Because the BOE performed its duty under the law and the evidence supports its finding,
the Court should review the BOE's decision with deference. The Court has opined "we
16
appreciate the difficulties that elections officials have in reviewing a high volume of signatures
and part-petitions in the often abbreviated time period required by the election laws, and we
accord due deference to these officials' determinations when they are reasonably supported.
State ex rel. Owens v. Brunner, 2010-Ohio-1374, 125 Ohio St. 3d 130, 926 N.E.2d 617, ^37. The
BOE's determination in this case is reasonably supported.
Appellant cannot reasonably claim that the signature found on line 7 of his nominating
petition is the legal mark of Tara Patel. Appellant's own evidence defies that argument. The
affidavit submitted as Exhibit C to Appellant's Complaint (R.6) contains the legal mark of Tara
Patel. Clearly that is how Patel signs her name "in the course of [her] regular business and legal
affairs." R.C. 3501.011(B). The signature on Patel's affidavit is completely different from the
one on the nominating petition. The affidavit signature is, however, very similar to the signature
on thc, registration card. Appellant's Complaint Exhibits B and F, R.6, The affidavit was signed
on February 18, 2014, so Appellant cannot argue that Patel's signature has soniehow changed in
the ten years since she signed her voter registration.
Even if it is believed that the disputed signature came from Patel's hand, the transcript of
the March 4, 2014, hearing demonstrates that the signature is not Patel's legal mark. Counsel for
Appellant explained that the circulator had "been instructed that wlien people sign the petition,
they have to sign it in cursive." Com.plaint Exhibit D, p.17, lines 14-15, R.6. As a result, counsel
further explained, the circulator "instructed Tara Patel to sign in cursive." Id. at lines 19-20. The
circulator testified that she instructed Patel to "sign it like the others," referring to the cursive
signatures found on lines 4 and 5 of the nominating petition, Complaint Exhibit D, p. 22, lines 3,
10-14, R.6. This evidence proves that even if Patel did sign the petition, she did not sign it with
her legal mark, but rather she signed it the way Appellant's circulator instructed her to. The
17
lower court agreed, finding "[t]he testimony at the March 4, 2014 hearing established that Patel
uses her printed name as her legal mark" and "[t]herefore, she did not use her legal mark when
she signed relator's petition." R.32, p,7.
Appellant argues that the BOE applied R.C. 3501.011(13) and (C) to the exclusion of R.C.
3501.011(A)and R.C. 3501.38(B) Nvhen it invalidated the dzsputedsignature. Appellant further
argues that the BOE applies a blanket application of R.C. 3501.011(B) and (C). Appellant's
Brief, p.16-17. These arguments are erroneous. The BOE does not require that a signature be
printed, nor does it require that a signature be in cursive. Pursuant to R.C. 3501.011(C) and case
law, the BO:E; only requires that a signature on a nominating petition match the voter registration
signature it has on file. State ex rel. Greene v. Uontgotnery Cty. Bd, of l;:lections; 121 Ohio St. 3d
631, 2009-Ohio-1716, 907 N.E.2d 300. In this case, the disputed signature was not invalidated
because it was in cursive as opposed to print, as Appellant seems to argue. The signature was
invalidated because it did not match the voter registration signature in any discernable way.
Relator wants this Court to believe that theBOE invalidated the signature only because it was
made in cursive handwriting. That is incorrect because as the evidence itself shows, nothing
about the two signatures is similar.
In support of his argument, Appellant cites to the Van 4uken case decided in the Tenth
District. Appellant's Brief, p.20, Stczte ex rel, Van Auken v. Blackwell, 2004-Ohio-5355, 2004
Vtjl, 2804784 (10t ►' Dist. 2004). The TIan Auken case does not support Appellant's arguments. In
that case, the board of elections invalidated all signatures that were not in cursive writing,
signatures that contained a diminutive of the voter's legal name, or signatures that omitted or
added a middle initial. Id. at ¶18. The court held that pursuant to Ohio law if the signature on the
voter registration card is printed, then the signature on the nominating petition may be printed.
18
Id. atI(19. Further, the court held that if a petition signature contains a"minor variation" from the
one on the voter registration card it is still acceptable. Id. An example of such a minor variation
is writing "Rick" for "Richard." Id. In this case, the BOE did not apply a blanket invalidation
like the board in Van Auken. I-Iere, the BOE invalidated the signature because it is completely
dissimilar to the one on the voter registration card. Also, the signature does not contain a "minor
variation" on the name Tara Patel. In fact, it does not appear to read Tara Patel at all.
Appellant includes R.C. 3501.38(B) in support of his argument. This statute states in
relevant part "Each signer may also print the signer's name, so as to clearly identify the signer's
signature." Appellant includes this statute to show support for his contention that an elector may
sign a nominating petition in either print or cursive regardless of what the voter registration looks
like. Appellant's Brief, p.16. This argument is incorrect, however, as the pertinent language in
R.C. 3501.38(B) uses the permissive "may" to indicate that a signer has the option of clarifying a
name on a petition with print, while R.C. 3501.011 requires an elector to sign with a legal mark
consistent with what is found on her voter registration. These two statutes do not conflict and are
easily read together. If an elector has a hard-to-read legal mark, she may print her name next to
the legal signature to clearly identify herself and ease the BOE's task of identifying the elector.
The signature still must match that found on her voter registration.
Secretary of State Directive 2014-02 contains instructions to boards of election on how to
review signatures on nominating petitions. Everything in this directive is consistent with the
Legal Mark Law and the BOE followed its instructions precisely. T'he directive requires boards
to find a signature as "not genuine" when it does ziot match the signature on file with the board
of elections. That is what happened here. In his Proposition of Law No. 5, Appellant wants the
Court to ignore the part requiring a match to the signature on the voter registration and instead
19
focuses on the word "genuine." Appellant gives a dictionary definition of the word genuine.
Appellant's Brief, p.39. Appellant argues that if the writing on the paper comes from the
person's hand, then it is a genuine signature. This argument ignores the part of the directive that
defrnes "not genuine," especially the parC that reads "compared to the signature on file with the
board of elections as of the date the board checks the petition. Secretary of State Directive 2014-
02.
The General Assembly, Ohio courts, and the Secretary of State have made clear that a
signature on a nominating petition must be compared to the signature on a voter registration card.
If there is no discernable similarities between the two signatures, a board of elections must
invalidate it. To interpret the law as Appellant suggests would mean that an elector could sign a
petition in any way. A smiley face would work, so would a peace sign. Under AppeIlant'sview,
the only important criteria is if the writing came from the elector's own hand, as that is what
renders a signature genuine. This leads to an absurd result and would render the Legal IVlark Law
r1ull. There would be no way for a board of elections to verify the authenticity of any elector's
signature or to discover fraud.
The BOE acted pursuant to law and did not abuse its discretion when it found the
disputed signature was not Patel's legal mark and therefore invalidated it.
B. A Legal Right Was Not Created Here Merely Because Appellant Offered TestimonyShowing That The Writing On Line 7 Came From Patel's Hand.
As discussed above, the BOE acted pursuant to Ohio law when it invalidated the signature on
line 7 of Appellant's nominating petition, and consequently Appellant's candidate petition, at the
February 18, 2014, hearing. Despite no legal obligation to do so, the BOE offered Appellant an
opportunity to dispute its decision at a hearing. State ex rel. Van Aukera r^. 13lacktvell, supra. at ¶5
(finding that no Ohio statutory provision "provides a means by which a candidate whose
20
petitions have been disallowed can protest that decision"); quoting Miller v. Lorain Cty. Bd of
Elections, 141 F.3d 252, 259 (6th Dist. 1998). Appellant availed himself of that opportunity and
requested a hearing. On March 4, 2014, a hearing was held and documents and testimony were
presented to the BOE. Now Appellant argues that a legal right has been created because of that
testimony. Appellant is incorrect.
Testimony was given by Tara Patel and the circulator of the nominating petition, Manasi
Chatterji. The testimony and record evidence clearly prove that "['ara Patel did not use her legal
mark when signing the petition, Of the three documents in the record allegedly signed by Patel,
only two signatures match and neither is the signature on the nominating petition, There is no
other document in the record with a signature similar to the disputed signature on line 7 of the
nominating petition. This makes sense because the testixnony detailed that Patel signed the
document at the direction of Manasi Chatterji, Appellant's circulator. Chatterji instructed Patel to
sign "like the others." Patel complied by writing what is found on line 7 of the petition.
No document or testimony was presented to show that Patel's signature has changed over
time. In fact, the signature Patel made on her affidavit on February 18, 2014, looks substantially
similar to the signature on her voter registration card from 2004.
Despite the fact that the documentary evidence presented supports and strengthens the
BOE's decision to invalidate the signature under tlae Legal Mark Law, Appellant insists that the
live testimony given by the two witnesses is enough on its own to compel the BOE to validate
the signature and certify Appellant's candidacy. To do so, however, would be contrary to law.
For support of this argument, Appellant relies on the Pucel case. Strzteex r-el. Pucel v.
Green, 101 Ohio App. 531, 133 N.E.2d 170; crff d, 59 U.O. 237, 134 N.E.2d 154 (1956). That
reliance is misplaced because there are two important points that distinguish Pztcel from this
21
case. First, the Legal Mark Law did not exist at the time that case was decided. R.C. 3501.011
was enacted in 2003. So the Court did not have to determine the ramifications of the statute on
the signatures in Pucel. Second, the signatures were proven to be the actual signatures of John
and Mary Antoni that they used in their everyday business and legal affairs. The board of
elections in that case was presented with many samples of the disputed signatures, including on a
deed, a mortgage, a note, and an escrow agreement. Id. at 533. In that case, the court properly
found that the signatures on the petition were similar to the ones used regularly by the Antoni's.
[-Iere, there is no such evidence. 'fhe BOE had no other document with Patel's signature as it
appears on the nominating petition. Besides the nominating petition, the other d.ocun7ents in the
record with Patel's signature look nothing like the signature on the nominating petition.
The Court should disregard Appellant's argument that the BOE abused its discretion
when it refused to validate Patel's signature based on the evidence from the March.4 hearing.
Based on the evidence presented, the BOE's decision to invalidate Patel's signature was
consistent with Ohio law.
C. Appellant's Arguments Claiming That The Legal Mark Law Creates A RebuttablePresumption Are Irrelevant Because There Is No Evidence In The Record ThatWould Rebut Such Presumption.
Appellant's Propositions of Law Nos. 3, 4, 5 and 6 all argue that the Legal Mark Law
creates a rebuttable presumption and that the BOE and the lower court erred by treating the law
as an irrebuttable presumption. This alleged treatment, Appellant argues, is contrary to law and
violates his constitutional riglits to due process and equal protection. These arguments should be
disregarded because they are 1) waived and. 2) irrelevant.
Appellant never averred his constitttitional claims in his Complaint. When an appellant
appeals a denial of a writ mandamus, the waiver theory will apply when the Appellant produces
22
newly-proffered claims. State ex rel. Gibson v. Intius. Comn?'n of Ohio, 39 Ohio St. 3d 319, 320,
530 N.E.2d 916, 917 (1988) (refusing to consider a newly proffered frec-speech argument in an
appeal from a denial of a writ of mandamus). The same finding should be made here.
The Propositions of Law are also irrelevant and inappropriately argued because there is
no evidence in the record that could possibly rebut the presumption that Patel did not use her
legal mark on Appellant's nominating petition. Appellant again wants the Court to believe that
the only important factor under the Legal Mark Law is whether the marking came from the
elector's own hand, and to ignore the rest of the statute requiring the signature to match the voter
registration on file with the board of elections. The only way Appellant can rebut the Legal Mark
Law is by showing that the signature oi1 the petition is Patel's legal mark. A showing that the
mark came from her hand is not enough to rebut the presumption, it must be shown that the
signature is her legal mark.
Appellant had an opportunity to do so at the March 4 hearing, but failed to produce
evidence to rebut the presumption. Again, the evidence from the hearing shows just the opposite
- that Patel used a mark on the petition that she has never used before. There is no evidence that
her signature has changed over the years, no evidence that she sometimes uses the disputed
signature on business or legal documents, nothing that could be considered rebuttal evidence.
An example of an individual who could come before the BOE and rebut the invalidation
of a signature under the Legal Mark Law is a stroke victim whose signature has changed due to
debilitating side-effects. If the individual had suffered the stroke shortly before the signing of the
election document and did not have time to update her signature with the BOE, she could present
evidence to the BOE that her legal mark has now changed due to her condition. This is the type
of evidence that would rebut the BOE's finding. There is no such evidence here.
23
D. The "Bacon" And "Monnin" Matters Are Not Instructive In This Case As They AreBased On Different Facts And Do Not Support Appellant's Argunaents.
Appellant argues that this Court should examine what occurred in two other BOE
matters, the Kevin Bacon ("Bacon") and Chad Monnin ("Monnin") matters. Appellant contends
that what happened in these two matters is instructive to this case. Appellant also argues that he
was treated to a different standard than was applied in those matters. These contentions are
erroneous.
In Bacon, a protest was filed against the BOE's decision to certify Kevin Bacon's
candidacy for the Ohio Senate. The protest was filed untimely and therefore rejected. The BOE
did not hold a hearing on the Bacon protest. The only evidence in the record relating to the
Bacon matter is a Columbus Dispatch article. R.6, Complaint Exhibits G and H. As a matter of
law, such evidence should not be considered by the Court as it is replete with hearsay and is
completely unreliable as evidence.
Additionally, the article is not instructive to this case. The article contains alleged quotes
from the BOE Director to the effect that Bacon's signature on his candidate petition does not
look like the one on his voter registration card and should have been flagged for closer scrutiny.
'I'he Deputy Director is quoted as saying just the opposite: that the signature is close enough to
the one on the registration card. The article does not discuss BOE policy or the BOE's rationale
for approving Bacon's candidacy. It is impossible to argue from this scant and unreliable
evidence that Appellant was somehow treated differently than Bacon and that such treatment
amounts to an abuse of discretion by the BOE.
24
The Monnin matter is also not instructive here. In Monnin, the BOE staff reviewed the
signatures twice and validated the disputed petition signatures as genuine. The BOE accepted the
staff recommendation and approved Moiunin's candidacy. An outside third-party protester argued
that the signatures differed from what is found on the voter registration. "I'.he Board held a
hearing on the protest on March 6, 2014. At the hearing, counsel for Monnin argued that the
BOE should deny the protest because the BOE and its staff, based on experience, are in the best
position to determine the validity of signatures and that decision should not be disturbed.
These arguments are what prompted the BOE to discuss how the staff reviews signatures
and what the staff looks for when doing so. The resulting testimony revealed that signatures are
reviewed at least twice before being invalidated. It further revealed that all staff members are
trained before being allowed to review signatures. Finally, it revealed that based on the logical
fact that not every signature is exactly the same, the BOE looks for similarities in signatures such
as handwriting patterns, letter formation, and any other points of congruence.
Based on the testimony of the BOE Directors at the Monnin hearing, Appellants's
petition was reviewed by two different staff members. Further, the staff members where trained
to recognize when signatures contain discernable similarities and reviewed Appellant's petition
looking for those siniilarities. There is no evidence indicating that Appellant's petition was
treated differently than Monnin's. The fact that the BOE did not engage in a discussion about
signature review protocol at Appellant's hearing is only because that issue was not raised in his
hearing like it was in Monnin. It does not mean the BOE treated his petition differently.
Therefore, this Court should disregard Appellant's arguments.
25
E. A Decision For Appellant Could Have A Detrimental Effect On Ohio Election Law.
A decision for the Appellant in this case could produce far-reaching detrimental effects
on Ohio election law. It would allow anyone to sign a nominating petition in any way that they
please. If the signature is invalidated as being not genuine, which the BOE would be required to
do under Ohio law, an individual could simply sign an affidavit or testify that the signature is
hers and the BC)E would be required to accept that testimony.
Even if the majority of such cases were from legitimate electors who signed with their
own hand, the burden on the boards of elections to hold hearings and investigate fraud would be
great. In an election cycle with thousands of signatures to verify and a short time frame to
accomplish the task, there is precious little time for boards to attempt verification of non-
matching signatures. Ohio law already prevents this sort of anything-goes signature policy by
requiring that signatures on nominating petitions and other elections documents must match the
signature on the elector's voter registration on file with the local board of elections,
26
CONCLUSION
The Court should dismiss this appeal because it is barred by laches and is moot. In the
alternative, the Court should affirm the lower court's judgment,
Respectfully submitted,
OZAJJ f)
Mark W. Fowler (0080955)Special Prosecutor to theFranklin County Prosecuting AttorneyDELAWARE COUNTY PROSECUTIN(sATTORNEY' S OFI^ ICE.140 North Sandt7sky Street, 3`d FloorDelaware, Ohio 43015Telephone: (740) 833-2690Facsimile: (740) 833-2689e-mail: mfowler,co.delaware.oh:us
COUNSEI, FOR RESPONDENT
27
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing iVerit Brief afAppellee has
been served on the following listed individual(s) at the following addresses on this 10r'' day of
April 2014 via e-mail at the following e-mail addresses:
Jezunifer L. Brunner (jlbr,brunnerlaw.com)Patrick M. Quinn (pmcf(it`;brunnerlaw.com)Peter A. Contreras (pacra)brunnerlaw.corn)Brunner Quinn35 N. Fourth Street, Suite 200Colunlbus, Ohio 43215
1kJ•.NAAk&14Assistant Prosecuting Attc^rney °^l°
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