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

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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

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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.

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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

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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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