Opinion
Nos. 80-603 and 80-604
Decided September 18, 1980.
Elections — Nominating petitions — Refusal of Secretary of State to accept for filing — Erroneous, when.
IN MANDAMUS.
On March 19, 1980, one day prior to the last day for filing, relator, Rick Nagin, submitted nominating petitions to the office of respondent, Anthony J. Celebrezze, Jr., Secretary of State, in accordance with R.C. 3513.257. Relator submitted two sets of petition papers, and one cause of action has arisen from each filing.
R.C. 3513.257 provides, in pertinent part:
"Each person desiring to become an independent candidate for an office for which candidates may be nominated at a primary election, except persons desiring to become independent joint candidates for the offices of governor and lieutenant governor, shall file no later than four p.m. of the seventy-fifth day before the first Tuesday after the first Monday in June immediately preceding the general election at which such candidacy is to be voted for by the voters, a statement of candidacy and nominating petition as provided in section 3513.261 of the Revised Code."
In case No. 80-603, the petition contained signatures of more than 5,000 qualified electors of the state of Ohio nominating relator as a candidate for United States Senator, at the November 4, 1980, general election.
In case No. 80-604, the nominating petition contained the signatures of more than 5,000 qualified electors of the state of Ohio nominating Gus Hall and Angela Davis as candidates for President and Vice President of the United States, at the November 4, 1980, general election. This petition also contained a list of presidential electors.
Relator, in case No. 80-604, is a duly constituted elector for candidates Hall and Davis.
Prior to circulating the petition for his Senate candidacy, relator signed a statement of candidacy on one petition paper, which was then copied on each of the other petition papers, as permitted by R.C. 3513.261. Similarly, Hall and Davis signed statements of their candidacies on one petition paper, which were copied on each of the other petition papers.
R.C. 3513.261 provides, in part:
"A nominating petition may consist of one or more separate petition papers, each of which shall be substantially in the form prescribed in this section. If the petition consists of more than one separate petition paper, the statement of candidacy of the candidate or joint candidates named need be signed by the candidate or joint candidates on only one of such separate petition papers, but the statement of candidacy so signed shall be copied on each other separate petition paper before the signatures of electors are placed thereon."
Respondent accepted relator's petitions and filing fees on March 19, 1980. That evening, respondent's office informed relator that the original signed statements of candidacies had not been filed at the same time as the petition papers and that relator would have to submit the originals with another filing fee on the following day. Prior to the filing deadline on March 20, relator offered to submit the original signed statements of candidacies to respondent, but respondent refused to accept them. Respondent also refused relator's request that the petitions be returned to him so that relator could refile the original signed statements of candidacies with the petitions and another filing fee.
Relator filed these actions in mandamus in this court requesting a writ to compel respondent to accept for filing the nominating petitions of Nagin, Hall and Davis. Respondent has made a motion in each case to dismiss the complaint for failure to state a claim upon which relief may be granted. Civ. R. 12(B)(6).
Mr. Eugene S. Bayer, Mr. Roy M. Kaufman and Mr. Nelson G. Karl, for relator.
Mr. William J. Brown, attorney general, and Mr. Thomas V. Martin, for respondent.
The general rule in Ohio is that election statutes are mandatory and must be strictly complied with. See, e.g., State, ex rel. Senn, v. Bd. of Elections (1977), 51 Ohio St.2d 173, 174; State, ex rel. Abrams, v. Bachrach (1963), 175 Ohio St. 257, 259. Relying on this construction, respondent refused relator's filings because the original statements of candidacies were not filed simultaneously with the nominating petitions.
Although strict compliance with the election laws is a necessity, this should not be construed to require more than the statutes themselves mandate. In State, ex rel. Leslie, v. Duffy (1955), 164 Ohio St. 178, 183-184, this court stated that "it is essential, of course, to protect the purity of elections, the cornerstone of free institutions. However,***courts should be careful not to read requirements into election laws which are not specifically there.
"***[W]here a proposed candidate strictly follows all the requirements stated in the statute governing the candidacy, he is not required to do things required by another statute concerned with a different class of candidates."
R.C. 3513.257 requires that prospective independent joint candidates for Governor and Lieutenant Governor shall file a statement of candidacy and a nominating petition "as one instrument." That statute does not require the filing "as one instrument" of petitions for an independent candidacy for President, Vice-President or Senator. Cf. R.C. 3513.05; State, ex rel. Senn, v. Bd. of Elections, supra. Respondent erred in requiring more of relator than the statute mandates.
Respondent's reliance on State, ex rel. Hawkins, v. Board of Elections (1971), 28 Ohio St.2d 4, is factually misplaced. The relator in Hawkins never timely filed the original statement of candidacy. Hawkins held that the timely filing of the original statement of candidacy is required by R.C. 3513.261. Relator in the instant actions complied with that requirement.
Respondent argues that "R.C. 3501.38 (I) prohibits any changes in or additions to the petition after it has been filed." We find that section to be inapplicable under the facts of these cases.
For the foregoing reasons, respondent's motions to dismiss are overruled and the writs of mandamus are allowed.
Writs Allowed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER and DOWD, JJ., concur.
HOLMES, J., not participating.