/ ^ f;s V IN THE SUPREME COURT OF OI-lIO
Cecil Monroe
R.elator Case No. 2013-1473
V. Original Action. In Prohibition
Mahoning County
Board of Elections
Respondent
iV1ERIT BRIEF OF RELATOR CECII, MONROL-;
Cecil B. Monroe
76 Maranatha Court
Youngstowii, Ohio 44505
Phone No. (330)531.1433
LINETTE M. STRATFORI) (0047223)
GINA I?eGENOVA T3RICKER (0072559)
Mahoning County Prosecutor's Office, Civil
Division
21 West Boardman Street, 5th Floor
YoungstoNvn, OH 44503
(330)740-2330
Attorneys for Respondent D ^^^R K 0 f€:?^^"j }kT . ^ ^ i;4 ;^-^ ,-t^_ ;:> s r, :?-^.*^}i ;E£^'K<'£r <.^^.;^.;sz i s^sE :.^f's I#.t SEF2 6 2013 CLERK OF COURT ^ENEE OOURT OF OHI TABLE OF CONTENTS
STATEMENT OF INTERI;ST......
STATEMENT OF CASF AND FACTS ......
ARGUIVIENT ......
Hzstory of the case ......
Proposition of Law No. I
An independent candidate in the State of Ohio must actually be independent rather than just claim it
STATUTUES
Ohio Revised Code 3513.257 ......
Ohio Revised Code 3501.01(I) ......
OTHER SOURCES
Ohio Secretary of State Advisory Opinion 2007 ...... ST'A'I'E'vIENT OF INTEREST
T'his case arises ftom the attempt of an independent candidate to game the system. It is called cheating. Cheating occurs Nvhen one gains a significant and unfair advantage over others when the others are playing by the rules. Candidates can hide their true intentions behind a veil of deceit, oftentimes, by way of independent candidacies. Political parties, particularly, the Ohio
Democratic Party is a statewide organization whose purpose is to advance the principles of its party throughout the State of Ohio. The advancement of these principles are compromised by candidates who seek to exploit their former party affiliation for their own selfish gain. The Ohio
Democratic Party has a compelling interest in safeguarding these principles. This is precisely what the Ohio legislature set out to accomplish by way of its election laws. ARGUMEN-T
Proposition of Law No. l.
An independent candidate for political office in the State of Ohio must actually be independent,
rather than just claim it.
A. Demaine Kitchen's Independent Candidacy for Mayor of the City of Youngstown
Violates Ohio Revised Code 3513:257
Mr. Cecil B. Monroe is a qualified elector of Mahoning County as prescribed in the Ohio
Revised Code 3501.01(N). The Mahoning County Board of Election (hereinafter "MCBOE") is
the duly appointed board to conduct elections in Mahoning County. As such, the Mahoning
County Board of Elections has jurisdiction and the authority for conducting and holding the election for the office of Mayor.for the City of Youngstown to be held on November 5, 2013.
Also, the Mahoning County Board of Elections is responsible for the review and the acceptance of the nominating petitions for the election for the office of Mayor for the City of Youngstown to be held on November 5, 2013.
On May 6, 2013, Mr. Demaine Kitchen f led his petitions to run as an Independent candidate for the office of Mayor of the City of Youngstown, Ohio. On June 13, 2013, ivlr. Cecil B. Monroe filed a written protest against the independent candidacy of Mr. Demaine Kitchen with the
Mahoning County Board of Elections. On July 18, 2013, the Mahoning County Board of
Elections convened a hearing on the protest regarding Mr. Demaine Kitchen's candidacy. Each side was given the opportunity to present evidence, including live testimony as well as oral
arguments.
During the course of the hearing, there was testimony heard by both Mr. Cecil Monroe ("Mr.
Monroe")and Mr. Demaine Kitchen ("Mr. Kitchezi."). At the conclusion of the hearing and
without recess or deliberation,
the Mahoning Coimty Board of Elections voted to deny the protest of Mr. Kitchen's candidacy
and petitions. A complete transcript of the hearing was first received by Mr. Cecil Monroe more
than two weeks later on or about August 2, 2013.
During the hearing, there were several exhibits introduced demonstrating that Mr. Kitchen's
claim of being an independent candidate was made in bad faith. Those exhibits were Mr.
Kitchen's certificate of registration which included his voting history that showed Mr. Kitchen voted as a Democrat every single time in `vhic.h he voted. The certificate of registration that was presented at the hearing is on file at the Mahoning County Board of Elections. The Youngstown
Vindicator Newspaper advertisements were also presented at the hearing where Mr. Kitcheiz made public statements as a Democrat. At the hearing Mr. Cecil Monroe argued that Mr.
Kitchen's claim of independence was made in bad faith in the following three areas: One, Mr.
Kitchen has well established political relationships that have been maintained and nurtured over the years up to and including the current year.lVCore than one of the Mahoning County Board of
Election Members acknowledged these well established political rela#ionships. See Hearing
Transcript page 15/Lines 3-12. Two, Mr. Kitchen's certificate of registration was discussed at length which includes his voting history. According to Ohio law, Ohioans are freely entitled to change or revoke their party affiliation at any time, in spite of the gaps in, his voting history, each and every time Mr. Kitchen voted, he voted as a Democrat. Third, Mr. Kitchen's political job
history was discussed at length. Most if not all of Mr. Kitchen's political jobs were directly
related to the Democratic party and alignment with prominent Democratic party members dating
back to his first campaign for the City of Youngstown's Second Ward Councilman. See Hearing
Transcript page 31 /Line 3. Mr. Kitchen's current j ob as Top Executive to the Democratic
Mayor. The Sitting Mayor Charles Sammarone is one of the Mahoning County Democratic
Party's most prominent members as well as a member of the Democratic Party as a whole. By
virtue of the job, the Mayor is the Dena.ocratic Party's standard bearer in the City of Youngstown,
Ohio. The office of the Mayor in the City of Youngstown, Ohio is controlled by the Democratic
Party. For the sole purpose of stating an example, please be advised of the following: Just as the
Democratic Party has control of the Office of the President of the United States because the
President himself is a member of the Democratic Party. By virtue ofthe job, the President, in this
case, President Barack Obaana, is the leader of the Democratic Party and the country's top
Democrat.
On Mayor Charles Sammarone's first day on the job, he appointed then Democrat Second Ward
Councilman Demaine Kitchen to be his Top Administrative Assistant. Mayor Charles
Sammarone became Mayor of the City of Youngstown, Ohio by default. Former Democratic
Mayor Jay Williams resigned as Mayor on or about Aut;ust 2011. Because of the Youngstown
City Charter, then Democratic President of Council Charles Sainmarone assunied the job of
Mayor to finish out the term of outgoing Mayor Jay Williams. By Mr. Kitchen accepting the job as the Democratic Mayor Charles Sammarone's top Administrative Assistant, Mr. Demaine
Kitchen accepted all that came with the job. That is, most importantly, serving at the pleasure of the Democratic Mayor of the City of Youngstown, Ohio. The single act of serving at the pleasure of the Democratic Mayor of the City of Youn.gstown, qhio is significant and is central to this
case. Mr. Kitchen affirms his affiliation with the Democratic Party. As the top Administrative
Assistant, Mr. Kitchen, literally, will be the number two man on his job. Mr. Kitchen adopted
those statements. See Hearing Transcript at Page 33/Lines 10-14.
On May 7, 2013, one day after Mr. Demaine Kitchen filed his petitions to run as an independent
candidate for the office of Mayor for the City of Youngstown, Ohio, Mr. Kitchen went back to
his job as 'I'op Executive to the Democratic Mayor, thus, re-affirming his affiliation with the
Democratic Party by serving at the pleasure of the Democratic Mayor of the City of
Youngstown, Ohio.
Here, the record reflects that the Mahoning County Board of Elections disregarded the applicable statue to the letter in denying the protest and certifying Mr. Demaine Kitchen's candidacy. In an
Advisory Opinion issued to guide the state's boards of elections regarding the correct application of R.C.3513.257, Ohio's Secretary of State wrote:
The 1WoNrison case now requires that independent candidates actually be unaffiliated and that when unaffiliation is claimed, it must be claimed in good faith.
In Ohio Secretary of State Advisory Opinion 2007-05, the Secretary of State recognized that with regard to Morrison there are circumstances in which it is clear that a claim of non-affiliation is made in bad faith. First, when an individual votes in a party primary election after filing as an independent. Second, when an individual is on a political party's centrral or executive committee at the time of the filing. Also, in the same Advisory, the Secretary of State vkTote the following: other evidence of party affiliation may be found in factors like past voting history, inforfnation submitted on required election-related filings, political advertisements and participation as a political party officer or member. These factors taken together with other facts tending to
indicate party affiliation, may be grounds to disqualify an independent. The significance of the
Morrison case followed to the letter is central to this case.
Under Ohio law, independent candidates must actually be independent and not affiliated with
any political party. As such, claims of independence must be made in good faith. Ohio Revised
Code 3513,257 defines the State's interest in requiring independent candidates not be affiliated
with a political party: The purpose of establishing a filing deadline for independent candidates
prior to the primary election immediately preceding the general election at which the candidacy
is to be voted on by the voters is to recognize that the state has a substantial and compelling
interest in protecting its electoral process by encouraging political stability, ensuring that the
winner of the election will represent a majority of the community, providing the electorate with
an understandable ballot, and enhancing voter education, thus fostering infortned and educated
expressions of the popular will in a general election. "I'he filing deadline for independent
candidates required in this section prevents splintered parties and unrestrained factionalism,
avoids political fragmentation, and maintains the integrity of the ballot. Tlae deadline, one day
prior to the primary election, is the least drastic or restrictive means of protecting these state
interests. The general assembly finds that the filing deadline for independent candidates in
primary elections required in this section is reasonably related to the states purpose of ensuring
fair and honest elections while leaving uni:mpaired the political, voting, and associational rights
secured by the first and fourteenth amendments to the United States Constitution.
The Sixth Circuit Court of Appeals in Morrison v. Colley (6th Cir. 2006). This court took a closer
look into the actual intent of the Ohio Revised Code 3501.01(I) and Ohio Revised Code
3513.257. The district court rejected Mr. Morrison's argument that the statue created confusion as to a person desiring to become an independent candidate can merely claim not to be affiliated
with a political party or whether they must tz-uly be unaffiliated with a political party. The district
court reasoned, a person of ordinary intelligence, when considering Ohio Revised Code
3513.257 [which requires the candidate to claim independence] and Ohio Revised Code
-)3 501.01(I) [which defines an independent candidate as one who claims not to be affiliated with
any political party] in the whole legislative scheme, would understand that an aspiring
independent candidate must actually be independent, rather than merely claim it. A candidate
possessing ordinary intelligence and common sense would readily understand that the claim of
independence must be made in good faith-otherwise there would be no reason for having the
claim requirement, and none of the state interests animating the claim requirement would be
served. So, under the 1Vlorrison case, an independent candidate in the state of Ohio must not only
claim to be affiliated with any political party, he must actually be independent and make the
claim in good faith.
The Seventh District Court of Appeals in Lorenzi v. Mahoning County Board of Elections also agreed with the Morrison case and stated so by saying, the Morrison Court thoroughly examined the requirements of Ohio Revised Code 3513.257 and Ohio Revised Code 3501.41(1) and clearly held that a ptitative independent candidate must not only claim to be independent, but must make the claim in good faith.
The Eleventh District Court of Appeals in Wilkerson v. TrurnzbulI County Board of Elections decided a case that was similar to that of the Lorenzi v. Mahoning County Board of Elections.
The Wilkerson court found the reasoning of°Morrison to be persuasive, and held that, the very act of voting in the primary would be sufficient to establish that the candidate was not truly independent for the purposes of running for public office. The Wilkerson court expressly stated that it would have come to the same conclusion even if Morrison had never been issued.
Wilkerson found no abuse of discretion by the board of elections because it followed the
statutory law, the Advisory of the Secretary of State and the holding of the Sixth Circuit Court of
Appeals in Morrison.
`I'he significance of both of these decisions in Morrison and Wilkerson is paramount. The
candidacy of an independent candidate is invalid as per the law if in fact the candidate makes
affirmations to a particular party. Also, a single act of affiliation to a political party after a
claimant of independence is made by filing independent petitions cancels or invalidates an
independent candidates candidacy.
By Mr. Kitchen's own admission, he admits that he is the number two man on his job. That is,
the Top Executive to the Democratic Mayor of the City of Youngstown, Ohio where he serves at
the pleasure of the Mayor.
Three out of the four MCBOE members agreed with Relator on the issues of party affiliation.
However, sighted, in this case, that the Ohio Secretary of State Advisory Opinion 2007-05 was not clear. The MCBOE demonstrated its clear disregard for following the applicable law to the letter. Mr. Mark Munroe (Chairman/MCBOE) and Attorney Dave Betras (Vice
ChairmanlMCBOE) both provide testimony to Mr. Kitchen's party affiliation. See Hearing
Transcript pg.15 Lines 7-10, Hearing Transcript pg 16 Lines 3-12,24 Hearing Transcript pg
17/Lines 1-7
The notion of vagueness was addressed in Grayned v. City of Rockford and also in Hynes v.
Mayor of Oradell. Also, Village of Hoffman Estates v. Plipside, Hoffman Estates, Inc. also, the
Sixth Circuit, in Kay v. Austin (6t1' Cir. 1980) Also, in Morrison, the court found Morrison's argument that the statue created confusion to be unpersuasive. The court said, "a person of
ordinary intelligence, when considering R.C. 3513.257 and R.C.3501.01(I) would understand
that an aspiring independent candidate must actually be independent, rather than merely claim
it." "A candidate possessing ordinary intelligence and common sense would readily understand
that the claim of independence must be made in good faith-otherwise there would be no reason
for having the claim requirement; and none of the state interests animating the claim requirement
would be served."CO?^v`CLUSION
Mr. Kitchen's attempt to run as an independent candidate for Mayor City of Youngstown is an
attempt not only to gaine the system, but further, an attempt to gaixz a significant and unfair
advantage over the others who are playing by the rules. Mr. Kitchen's current job as Top
Executive to one of the Mahoning County Democratic Party's key public officials reaf.firzns his affiliation and allegiance to party. Also, his actions sends the wrong message to the electorate that finding a way around the system is OK so long as you don't get caught. To allow Mr.
Kitchen's independent candidacy would undernline the entire election process and encourage and support further manipulation of the system. I earnestly pray, this Honorable court, rejects and overturns the MCBOE's decision. Respectfully submitted,
Cecil Monroe, Rela'Jr, Pro se
CERTIFICATE OF SERVICE
This shall certify that a true and accurate copy of the foregoing Relator's Merit Brief was
delivered by personal service by Relator, Cecil Monroe, Pro se, on this 251h day of September,
2013 to:
LINETTE M. STRATFORD (0047223)
GI.NA DeGENOVA BRICKER (0072559)
Mahoning County Prosecutor's Office, Civil
Division
21 West Boardrrlan Street, 5"' Floor
Youngstown, OH 44503
(330) 740-2330
gbrickerninahoningcountyoh :pov
Attorneys for Respondent CERTIFICATE OF REGISTRATION
County Id #: 375732
Name: DEMAINE JA;_^"ARR KITCHEN Residence: 77- STRUTHERS LIBERTY RD City: YOUNGSTOWN OH 44505
Prione : ( ) - SSN: Birthdate: 02/01/78 Birth Place: Maiden Name: Witness:
Race: Sex: Language: Handicap: Nat. Citizen: Party: --- Status: A/ Reg.Date: 10/01/00 Activity: 11/08/11
Precinct: 0009/1 YGN2 B Polling Place: MARTIN LUTHER KING ELEM SCHOOL
Voting Districts: USCong: CD13 Senate: SS33 House : SRSB City . YGN Vill : Town : 3 CoBdEd: School: YGN VocSch: Courts: Ward : Y02 UI Twp: StBdEd: ED08 CrtApl: APL7 SPECL .
Voting History: Vtd Election Type Vtd Election Type Vtd Election Type x 05/07/13 PS x 11/06/12 G X 11/08/11 G X 11/02/10 G X 11/03/09 G D 05/05/09 PS X 11/04/08 G D 03/04/08 P X 11/06/07 G d 05/08/07 PS x 11/07/06 G D 05/02/06 P X 11/08/05 G X 11/02/04 G X 11/04/03 G X 11/05/02 G D 05/07/02 P X 11/07/00 G
This is to certify that the above is a true and accurate copy of records on file with the Board of Elections.
by Clerk JENNIFER BRUNNER CDs-3ltT aECRET Alp`G71SOR.YNO. 2007-05 Jurie 4, 2OO7 To: All County Boards of Eiections Re: Independent Candidates and i'art.yAfiiliation It has come to the attention of the Secretary of State's office that the United States Court of Appeals for the Sixth Circuit decided a case in September af 2oo6 that has a direct inipaet upon the function of Ohio's boards of elections and the candidacies of some independent candidates in Ohio. The case is Morrison v. Colley, 467 F.3cl 503 (E,th. Cir, 2oo6) (attached). The ruling in Morrisora changes longstanding practice in Ohio, and this Advisory is intended to inform boards of elections of this change. Longstanding practice in Ohio and the interpretations of R.C. 3513.257 made by former Ohio Secretaries of State required only that the crzndiclQcy of an iiadependent candidate be independent of political party affiliation, but not that the rn.d£uidt.cal himself or herself be entirely unafffliated. The Morrison case now reriuire^.s that independent candidates actually be unaff liated and that when an unaffzliation is claimed, it must be claimed in good faith. Fac-ts an:d HistoLry ofMorrisvn In December 2005 and January 20o6 Charles Morrison circulated petitions seeking election to the Madison County Republican Party Central Comn-iittee and to the Ohio Republican Party State Central Committee. Mr. Morrison subsequently filed his petitions and appeared on the ballot in the May 20o6 Republican primary ballot for these positions. To appear on the ballot in these races Mr. Morrison affirmed his affiliation with the Republican Party under penalty of election falsification. Additionally, Mr. Morrison advertised his candidacy as a Reptiblican in a newspaper advertisem.ent. OrI :tJay 1, 2ao6, the day before the pri.mary, Mr, Morrison filed as an "independent" candidate in the race for the Ohio x,tb U.S. Congressional District. By filing as an independent Mr. Morrison affirmed, under penalty of election falsification, that he had no affiliation with a political party. Mr. Morrison also filed documents w-ith the Federal Election Conirnission, related to his "independent" candidacy, clearly stating his affiliation with the Republican Party. On May 2, 2oo61VVtr. Morrison voted in the Republican primary election in Madison County. By voting in the Republican primary Mr. Morrison again affirrned his affiliation i-vrith the Republican Party under penalty of election falsification. On May 22, 2oo6 three electors protested Mr. Morrison's candidacy for the congressional seat in the 15th District, alleging d2at Mr. Morrison was not independent of politicai party affiliation under Ohio law. The Franklin County Board of Elections (the most populous county) held a protest hearing, and the Board tied 2-2 on the protest. The Board certified the tie vote to this office, and former Assistant Secretary of State Monty Lobb, presumably acting on behalf of then Advisory 2007-05 Independent Candidates and Party Affiliation; R.C. 3513.257 Page 2 of 4 Secretary of State Blaclcwell, broke the tie vote in favor of the protest and against certification of Mr. Morrison's candidacy. Assistant Secretary Lobb based his rationale for not certifying Mr. Morrison's petition on Mr. Morrision's failure to disaffiliate himself from the Republican Party and thereby be truly iridepend.ent of political party affiliation: ['Ilbe relevant law clearly requires a more definitive representation to demonstrate one's status as an independent candidate for elected office in Ohio. R.C. §35o1.o1 (I). Because the Supreme Court permits Ohio to determine and devise its own standard for saying when a member of a major political party has transitioned into the status of being an in.depend.ent, and therefore no longer a€nember of that party, and because R.C. §3501.01 (1) proNrides that standard, the law and the facts show that Mr, Morrison was never tr€t1y zndependerifat any point relevant to this matter. Mr. Morrison filed suit in the U.S. District Court for the Southern District of Ohio seeking prelimitiary and permanent injunctior€s to preclude the Board from invalidating his ca.rtd.idacy and alleging that R.C. 3513.257 was unconstitutional. The district Court upheld Assistant Secretary Lobb's decision, and Mr. Morrison appealed. The Appellate Coiir t's Analysis It is important to note at the outset that the MQrr°ison court did not attempt to set forth specific guidelines for boards of elections to foilotv- when determining the validity and sufficiex€cy of independent candidates' nominating petitions. Ratt-ier, the court simply determined, under the facts of the case, that R.C. 3513.257 was not €.tnconstitutional. However, the po€-tion of the court's opinion relating to Mr. Morrison's claim that the statute was "void for vagueness" does indicate that there are certain threshold requirernents an independent candidate must meet in order to be actually "independent." Further, the opinion indicates that the facts of each case will determin.e whether or not the catididate in question is actually ir€depeztdent and wllether or not a candidate made his or her claim of u.naffiIiatioTa in good fait`h. The.tWorrisort circuit court noted, and extended, the district court's reasoning; a person of ordinary intelligence, when considering O.R.C. § 35.13.257 which requires the cand.idate to claim independence and U:K:.C, § 3501.0Y(I) which defines an 'independent' candidate as one who claims not to be affiliated Nvith any political party in the whole legislative scheme, would understand that an aspiring independent candidate must actually be independent, rather than merely claim it. A candidate possessing ordinary intelligence and common sense would readily understand that the claim of independence rn€ist be made in good faith -- otherwise there would be no reason for having the claim requirement, and none of the state interests animating the claim requirement would be served. 14j.^or7-iscrr€, F.3d at 509 (internal quotations omitted). Advisory 2007-05 Independerit Candidates and Party Aff-iliation; R.C. 351:3.257 1'age 3 of 4 In reaching its conclusion, the circuit court noted that the statutory schenle in Ohio recognizes only voter history as a means to determine party affiliation. However, the court also noted that even if some doubt existed as to Mr. Morrison's affliation after considering that he had voted Republican prior to 2oo6 as well as in the 2oo6 Republican primary election, arid had run in the 2oo6 Republican pri.tnary, all doubt was dispelled by Mr. Morrison's oYti-n FEC filings (for his "independent candidacy"). Those filiaigs indicated his affiliation with the Republican Party, arid the court stated that :`Nloraison cannot complain if his own campaign committee's express statement of his part-y affiliation is considered and used to rule against him.=, Thus, the court concluded that because Mr. Morrison had voted in past Republican primaries, and most importantly, in the Republican primary held the day after he filed as an independent candidate, and because so voting required him to state under penalty of crinlinal prosecution for election falsification that he was affiliated with the Republican party, Mr. Morrison could not claim in good faith that he actually was independent of party affiliation, The court also stated that, "most importantly, under Ohio law, if Morrison was unaffiliated -with any political party or: May r, 2oo6," as indicated by his filing as an independent, "he could not also claim in good faith to be a Republican at the same tirne," as indicated by his voting in the Republican primaiy the riext day, "without risking consequences more seriot7s than exclusion from the ballot" such as criminal prosecution under, among other statutes, R.C. 3599.11(A). The Court coi-icluded that under the facts of the case, ?Vlorrison had not provided grounds to enjoin the Franklin County Board of Elections from excluding himfrorn the ballot because he had, in fact, failed to comply wi-th the requirements of R.C. 3513.257. Conclusion We advise, as indicated by the Morrison cottrt, that R.C. 3513.257 requires th.at: tl an independent candidate actually be unaffiliated, or disaffiliated from any political party; and • the required claim of ttnaffiliation by an independent candidate niust be made in good faith. However, as mentioned above, the Morrison court did not provide clear guidelines for determining when an independent is actually affiliated wi .h a political party, or how to determine whether aai independent candidate has claimed unaffiliatio.n in good faith. Absent direction from the General Assembly or a court, this office is attempting to provide some guidance on this matter to the boards of elections, TI-ius: : If an independent candidate votes in a party primary election after filing as an zndependent, the candidate is not actually unaffiliated, and the candidate's claim of independence was either not made in good faith or is no longer current; and • If an independent candidate was on a political party's central or executive comrzzittee at the tinie he or she filed as arx independent candidate, or becomes such a committee member at any time during his or her independent caaididacy, the candidate is not Advisory 2007RO5 Ind:ependetit Candidates and I'arty Affiliation; R.C. 3513.257 Page 4 of 4 actually uzaaffiIiated, and the candidate's claim of independence was either not made in good faith or is no longer current. Additionally, as indicated by the 1VIot•rison court, indications of party affiliation such as past voting history, information subrnitted on required election-related filings, political advertisements, participation as a poiitical party officer or rxiember, or holding a public office for which the offace holder was nominated through a political party's primary electioxi and elected ori a partisan ticket may serve as eNidence, though not necessarily conclusive eyidence, of party affiliation to support a protest against an iiidi:pendeizt candidate's candidacy. For example, voting hi:stQry, alone, is an insufficient basis on which to disqualify an inclependent candidate because Ohioans are freely entitled to change or revoke their party affiliation at any time. However, voting history, together with other facts tending to indicate party affiliation, may be sufficient grounds to disqualify an independent. Finally, please note that it is well established that boards of elections may accept ^iled petitions at face value. That is, because candidates file their petitions urider penalty of election falsification, a board may accept the declaration of the candidate without further inqt3iry. However, if a board has personal hnolvledge or reason to believe that the declaration znade by a candidate is false, or a protest is filed against an independent candidate, the board may inquire further to determ:ine whether sufficient grounds exist to inN'alid,ate the candidate's petition and disqualify the candidate from running as an independent. If you have additional questions or concerns please feel free to direct them to your assigned Elections Counsel at (614) 466-2585, or by e-mail to any of them. Sincerely, Jennifer Brunner Ohio Secretary of State Record of Proceedings Minutes of the Mahoning County Board of Elections Day: I'hursday Date: July 18, 2013 Time: 8:00 a.m. Page: 5 of 68 Hearing Transcript Pg. 2 1 2 3 INDEX 4 5 HEARING REGARDING CECIL MONROE V. DEMAINE KITCHEN: PAGE 6 6 HEARING REGARDING CECIL MONROE V. JIMMY HUGHES: PAGE 43 Hearing Transcript Pg. 3 1 MR. MUNROE: Welcome to the Mahoning 2 County Board of Elections. It's July 18. It's about five 3 minutes after eight. This is a special regular meeting 4 and a formal hearing, and the director will please call 5 the roll. 6 MS. KALE-PESTA: Mr. Munroe? 7 MR. MUNROE: Here. 8 MS. KALE-PESTA: Miss Winbush? 9 MS. WINBUSH: Here. 10 MS. KALE-PESTA: Mr. Wasko? 11 MR. WASKO: Here. 12 MS. KALE-PESTA: Mr. Betras? 13 MR. BETRAS: Present. 14 MR. MUNROE: Just a couple of orders of 15 routine business, first of all to consider the approval of 16 the meeting minutes fr•om the meetings on May 23 and May 17 28. They were mailedto everybody in advance. What is 18 the pleasure of the board? 19 MR. WASKO: So move. 20 MS. WINBUSH: I second. 21 MR. MUNROE: There's a nxove. There's a 22 motion and a second to approve the minutes that were 23 presented. Director call the roll. Record of Proceedings Minutes of the 1Vlahoning County Board of Elections D ay: `Chursday Date: Juty 1$, 2Q13 Time: 8:00 a.m. Page: 6 of 68 24 MS. KALE-PESTA: Mr. Munroe? Hearing Transcript Pg. 4 1 MR. MUNROE: Yes. 2 MS. ISALE-PESTA: Miss Winbush? 3 MS. WINBUSH: Yes. 4 MS. KALE-PESTA: Mr. Wasko? 5 IvfR. WASKO: Yes. 6 MS, KALE-PESTA: Mr. Betras? 7 MR. BETRAS: Yes. 8 MR. MUNROE; Next we need to consider 9 the payment of the regular and routiiie bills and accounts 10 for the board for the months of May and June 2013. We've 11 also had those presented to us in advance. What is the 12 board's pleasure? 13 MR. WASKO: So nxove. 14 MR. MUNROE: Is that a motion to approve 15 the payment of those bills, Mr. Wasko? 16 MR. WASKO: Yes, it is, Mr. Chairman. 17 MS. WINBUSH: Second. 18 MR. MU;VROE: There is a motion and a 19 second that the office expenses be paid for May and June 20 2013 as presented. Director, call the roll. 21 MS. KALE-PESTA: Mr. Munroe? 22 MR.Iv1UNROE: Yes. 23 MS. KALE-PESTA: Miss Winbush? 24 MS. WINBUSH: Yes. Hearing T'ranscript Pg. 5 i MS. KALE-PESTA: Mr. Wasko? 2 MR. WASKO: Yes, 3 MS. KALE-PESTA: Mr. Betras? 4 MR. BET'RAS: Yes. Recard of Proceedings Minutes of the Mahoning Coexnty Board of Elections Day: Thursday Date: Jui18, 2013 'I'ime: 8:00 a.m. I'age: 7 of 68 5 MR. MUNROE: Next we're going to hold a 6 lxearing: As we're aware, a protest was filed by Mx. Cecil 7 Monroe objecting to the candidacy, the independent filing 8 of both Mr. DeMaine Kitchen and Mr. Jimmy Hughes to run as 9 independent candidates in the City of Youngstown. That 10 protest was timely filed, and we've set today as the date 11 to consider the protest: 12 This is going to be a fairly infornial process. I'd 13 like to give both -- both sides the opportunity to make a 14 brief opening -- some brief opening remarks if you care 15 to. And then, Mr. Monroe, it will be your opportunity to 16 come to the board and explain to us why you think Mr. 17 Kitchen's candidacy should be nullified or rejected. 18 You're welcome to call witnesses if you like. You can 19 present whatever evidence you think is appropriate. 20 And board members, if there are any questions during 21 the proceeding, please feel free to jump in. And then at 22 the conclusiota of the process, tFie board can either -- we 23 can eitlier -- there can be a motion today to consider 24 whether to accept or reject the protest, or we have the Hearing TranscriptPg. 6 I option to take it under advisement if we think that 2 additional time might be needed to reach a conclusion. 3 But with that, Mr. Monroe, if you would come for ward, 4 please, we wan€to swear you in, first of all -- 5 MR. MONROE: Absohdtely. 6 MR. ML'NR:OE: -- since you're going to be 7 offering testimony. If you'd raise your right hand. 8 WHEREUPON, 9 CECIL MONROE, 10 was duly sworn or affirmed. Record of Proceedings Minutes of the Mahoning County Board of Elections Dav: Thursday Date:7uly 18, 2013 Time: 8:00 a.m. Page: 8 of 68 I 1 MR. MUNROE: T'hank you so much. Please, 12 this is your opportunity, Mr. Monroe, to explain to the 13 board why you thi;tk there's some -- some defect or 14 deficiency with Mr. Kitchen's filing. 15 MR. MONROE: Sure. I'll just make a 16 brief statement. Good morning. And my statement is I 17 believe and I will show that Mr. Kitchen is a longstanding 18 Democrat with well-established political affiliation that 19 has been maintained and nurtured; also that Mr. Kitchen 20 intentionally aligned hiniself with prominent members of 21 the Democratic party down through the years, beginning -- 22 dating back to his first campaign as Second Ward City 23 Council, up to and iiacluding his current position that he 24 still maintains as of this date. Thank you. Hearing Transcript Pg. 7 1 MR. MUNROE: Mr. Kitchen, would you like 2 to make any brief opening remarks? 3 MR. KITCHEN: No, we can -- you need to 4 swear me in too, or no? 5 MR. MUNROE: Absolutely. 6 WHEREUPON, 7 DEMAM KIT'CHEN, 8 was duly sworn or affirmed. 9 MR. MUNROE: Thank you so much, Mr. 10 Kitchen. I 1 MR. KITCHEN: You know, my opening 12 remarks, again, thank you for the invitation to come and 13 defend my position. I too, also have proof that iny 14 position to file as an independent candidate is valid 15 according to Ohio Revised Code. The current position that 16 1 have is a nonpartisan appointed position. I'm not an Record of Proceedings Minutes of the Mahoning County Board of Elections I)a_ Thursday Date: July 18, 2013 Time: 8:00 a.m. Page: 9 of 68 17 elected official currently. So I'll let Mr. Monroe state 18 his case. 19 MR. MUNROE: Mr. Monroe, go ahead. If 20 you have any specific evidence, facts you'd like us to 21 consider, please go ahead. 22 MR. MONROE: Sure. 23 MR. MUNROE: Do you have any witnesses 24 you'd like to call, by the way? Hearing Transcript Pg. 8 1 MR; MONROE: I didn't ask, nor was I 2 advised that that was possible, so at this time I would 3 say no. 4 MR. MUNROE: Okay, And one other 5 question. Are you represented by counsel? 6 MR. MONROE: I am not. 7 MR. MU.NROE: It's not a requirement; 8 it's just a curiosity. 9 MR. MONROE: I understand. Thank you. 10 MR. MU'NROE: Thank you so much. Please, 11 go ahead. 12 MR. MONROE: So let me begin. As I just 13 stated in my opening, that it is my intention here to show 14 that Mr. Kitchen is not only a longstanding Democrat but 15 has well-established affiliation and that has 16 intentionally aligned himself with prominent members of 17 the Democratic party. 18 Before I actually get to those facts, I'd like to 19 take an opportunity to read from the Advisory, 20 MR. MUNROE: Would that be 2007 -- 21 MR. MONROE: That would be this one. 22 1 just want to make sure that's the one you have. Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday.W __ Date: Tu1y 18, 2013 Time: 8:00 a.m. Page: 10 of 68 23 MS. KALE-PESTA: Yes, that's the one we 24 have, That's the most recent. Hearing Transcript Pg. 9 1 MR. MONROE: Okay, most recent. The 2 Ohio Secretary of State -- in this opinion the secretary 3 of state wrote three circumstances, three circumstances in 4 which it is clear that a claim of nonaffiliation is in bad 5 faith. And I'd like to read directly. That's on Page 3 6 of4. 7 "Absent direction from the general assembly or a 8 court, this office is attempting to provide some guidance 9 on these matters of the boards of elections. Thus: 10 If an independent candidate votes in a party primary I 1 election after filing as an independent, the candidate is 12 not actually unaffiliated, and the candidate's claim of 13 independence was eitlzer not made in good faith or is no 14 longer current." 15 Number two, "If an independent candidate was on a 16 political party's central or executive contrnittee at the 17 time he or she filed as an independent candidate, or 18 becomes such a cotnm.ittee member at any time during his or 19 her independent candidacy, the candidate is not actually 20 unaffiliated, and the candidate's claim of independence 21 was either made in goocl faith orls no longer current." 22 Not made -- I'm sorry, correction "-- was either not made 23 in good faith or is no longer current," 24 And then, "Additionally --" it's in here. Hearing Transcript Pg. 10 1"Additionally, as indicated by the Morrison court, 2.indications of party affiliation such as past voting 3 history, information submitted on required election- R.ecord of Proceedings Minutes of the Mahoning County Board of Elections Dav: Thursday __ __ Date: July 18, 2013 Time: 8`00 a.ni. _Page: 11 of 68 4 related filings, political advertisements, participation 5 as a political party officer or member, or holding a 6 public office for which the office holder was nominated 7 through a political party's primary election and elected 8 on a partisan ticket may serve as evidence, though not 9 necessarily conclusive evidence, of party affiliation, to 10 support a protest against an independent candidate's 11 candidacy. For example, voting lustory, alone, is an 12 insufficient basis on which to disqualify an independent 13 candidate because Ohioans are freely entitled to change or 14 revoke their party affiliation at any time. However, 15 voting history, together with other facts tending to 16 indicate party affiliation, may be sufficient grounds to ] 7 disqualify an independent." 18 And that is where I am going to go. Now, you don't 19 have to -- I'm sure you know, but it's worth stating, you 20 don't have to meet all three to be disqualified, just one, 21 just one, just one of those, and that is what I'm going to 22 talk about today. 23 And, you know, at the onset I talked about Mr. 24 Kitchen was a longstanding Democrat, and I think it`s Hearing Transcript Pg. 11 1 worth saying that I have proof that there is others who 2 believe that Mr. Kitchen is a Democrat. Now, a Democrat 3 indicates party affiliation to rne. I believe that. I'm a 4 Democrat, or if I'm a Republican, that means I am 5 affiliated to a particular party. And that is the 6 Youngstowii Vindicator. The Youngstown Vindicator, that's 7 not a small, insignificant thing. 8 MR. BETRAS: Yeah, it is. 9 MR. MONROE: No. No, it's not. And let Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time: 8:00 a.m. 12 of 68 10 me tell yoa why. I know you said that because Mr. David 1 I Skolnick's back there. But let me tell you why. 12 Thousands of people read the Youngstown Vindicator every 13 day. And they went, not just once, but twice, on the 14 record, print, to state that Mr. Kitchen is a longtime 15 Democrat. They believe that. 16 Now, it's reasonable to believe that the Youngstown 17 Vindicator researches their work before they print in the 18 paper. It's reasonable to believe that they wouldn't 19 print a lie. Decade after decade they've been printing 20 the truth. 21 MR. MUNROE: I object. 22 MR. MONROE: And let me just, you know, 23 before I get to the actual -- those ballots, you know, 24 when I say that, that carries a lot of weight, because it I-learing Transcript Pg. 12 1 does, It carries a lot ofweight. I just want to direct 2 your attention, there was ati article in the July 12 3 edition of the Vindicator that talked about a July 4 4 parade. Now, it was all in jest, it was fun, but it sent 5 very silent messages that there are people not only in the 6 public, but prominent government agencies, public 7 officials, who respect the work that they do every day, 8 okay. 9 Let me just take a nloment here and say there's Fiscal 10 Officer Laura Wolfe, who had a special bag of candy sent 11 to the Vindicator, okay. That was a nice gesture, okay. 12 Trustee Jim Davis also mentioned here. These are 13 prominent. These are public officials. 14 MR. MLINROE: Mr. Monroe, if we could 15 focus on Mr. Kitchen. Record of Proceedings Minutes of the Mahoning County Board of Elections _Dg_Tl^.ursday Date: July 18, 2013 Time: 8:00 a.m. I'age: 13 of 68 16 MR. MONROE: No, I'm showing the 17 relevance, okay. Because if the Vindicator said it, 18 that's not a sinall thing. It shows that they have weight 19 and that the Vindicator carries a lot of weight. I'm able 20 to present the way I would like; is that correct? 21 MR. WASKO: I have a question. Your 22 point is comparing that to Mr. Kitchen's current 23 position -- 24 MR. MONROE: No. Hearing Transcript Pg. 13 1 MR. WASKO: -- in the city? 2 MR. MONROE: No, I'm not. 3 MR. WASKO: Okay. 4 MR. MONROE: I'm getting to that. 5 MR. WASKO: Okay. 6 MR. MONROE: I wanted to show the 7 relevance and the significance of the Youngstown 8 Vindicator, what they print. Because on the same note, on 9 the ballot side it says -- and I'zn going to read the third 10 paragraph. "Monroe filed a protest trying to get retired 1 l Police Chief Jimmy Hughes and DeMaine Kitchen, the 12 Youngstown -- the naayor's chief of staff/secretary off the 13 ballot as independents." It's the next seven words I want 14 you to pay attention to. It says, "There's no doubt the 15 two are Democrats." 16 'That may be small to you, but to the thousands of 17 people who woke up Friday, July 12, and read the paper 18 believe that. It's reasonable to believe they believe 19 that. They didn't look at it and say, oh, he's telling 20 another lie. Because if that was the case, then when it 21 talks about all these fiscal officers and these public Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time: 8:00 a.m, Page: 14 of 68 22 oficials -- 23 MR. MUNROE: Mr. Monroe, the biirden is 24 going to be on you this morning -- Hearing Transcript Pg. 14 1 MR. MONROI;: I understand. 2 MR.IVIUNROF': -- to provide ns with what 3 I would put as clear and convincing evidence that Mr, 4 Kitchen has not tnade his decision to re.ua as an independent 5 in good faith. Simply referring to the Vindicator, I'm 6 not sure that that's the best way to go, to tell you the 7 truth. S MR. MONROE: Well -- well, that's 9 according to you. But it says here, "However --" this is 10 back to the Advisory. 1 i MR. MIJNROE: Yeab, sure. 12 MR, MONROE: "However, voting history, 13 together with other facts tending to indicate party 14 affiliation, may be sufficient grounds to disqualify an 15 independent." 16 MR MUNROE: Very good. Okay, Anything 17 else besides the Vindicator article? 18 MR. MONROE: Well, I'm getting there. 19 So if that wasn't enough, Priday,. May 3, in the 20 Vindicator -- you probably don't want to see this one 21 either, but it's in here. "While Kitchen is a longtime 22 Democrat, he chose to nm as an independent." This isn't 23 small things. This shows, this indicates party 24 affiliation. Hearing Transcript Pg. 15 1 Now, let me go on and talk about Mr. Kitchen's well- 2 established party affiliation and how that has been Record of Proceedings Minutes of the Mahoning County Board of Elections Day: 'fhursday _ Uate: July 18, 2013 'Tii7ne: 8:00 a.m. Page: 15 of 68 3 maintained and nurtured dov,7i through the years, from his 4 first campaign for City Coun.cil all the way up to his 5 current position. In Mr. Kitclien's first canipaign for 6 Second Ward -- 7 MR. MUNROE: Let me just interrupt for 8 just a minute. I think we can all agree that Mr. Kitchen 9 clearly was a long-term Democrat. I thin.k we can 10 stipulate that. He's got a long history of having -- the 11 question is, can he change his party affiliation? What 12 has happened since he's declared his independence to 13 suggest that that declaration was made not in good faith? 14 MR. MONROE: So may I ask a question? 15 MR. MUNROE: Sure. 16 MR. MONROE: Am I able to present, or 17 are you getting bored with my presentation? Because I'm 18 trying to get there. 19 MR. MUNROE: Go ahead. 20 MR. lv%ONROE: Okay. You know, this isn't 21 stuff that I made up. 'This is all stuff here. Now, in 22 Mr. Kitchen's first campaign for Second Ward City Council, 23 former Second Ward Councilman, the late I-lerman Pete 24 Starks, played a sigrilficant role in his carnpaign. I'm Hearing Transcript Pg. 16 1 talking about well-established ties that he has maintained 2 and nurtured over the course of many years up until now. 3 MR. BETRAS: Mr. Monroe and Chairman 4 Munroe, I think it's safe for us to say, and I think the 5 records are well established, that DeMaine Kitchen in 6 prior elections ran in Democratic primaries and won as a 7 Democrat. You don't have to establish that. 'That's part 8 of, you know, generally accepted knowledge of this board. R.ecord of Proceedings IVtinutes of the Mahoning County Board of Elections D^ a^ T hursday Date: July 18, 201^3 Tinie: 8:00 a.m, Pa^e; 16o f 68 _ 9 And for a long time, he was the Second Ward City 10 Councilperson on the Democratic side. I mean, I'm not 11 trying to shortchange your case, but I'm just saying you 12 don't have to establish that. We all know that. 13 MR. MONROE: Okay, 14 MR.IVIUNROE: Really, the question is 15 what can you show us to establish that Mr. DeMaine's 16 filing as ati independent was not made in good faith? I 17 mean, this is still America. People do have the privilege 18 of changing party affiliations if they choose to. Ronald 19 Reagan, for example, Mr. McCabe, 20 MS. VJINBUSH: Don Hanni: 21 MS. K.ALE-PESTA: Jennifer Harrison. 22 MR. BETRAS: Mark. Hanni, 23 MR. MCCABE: Three different tinies. 24 MR. M(JNROE: I mean, we're trying to get Hearing Transcript Pg. 17 1 to the heart of this. We accept the fact that Mr. Kitchen 2 has a long history of having served in the Democratic 3 party. We understand that. There's no -- I don't think 4 there's any question about that. I don't tI>i:nk we liave 5 any issue with that, We understand that. The question is 6 what has happened since he's Eiled as an independent that 7 would suggest -- A MR, MONROE: Well, let's take a look at 9 his voting history. So are you ruling that out as well? 10 Because the opinion says ttiat this can be considered, but 1 I are you ruling that out? 12 MR. BETRAS: No, no, what I think -- and 13 not to speak for Mr. Munroe, but what I think we're saying 14 is that in America, Mr. Kitchen or any American can change Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time: 8:00 a.m. Pa e^: 17 of 68 15 their nund., 16 MR.1vIONROE. Sure. 17 MR. BETRAS: Okay. And I understand 18 what the Advisory says, but at what point does party 19 affiliation end and you either want to change party 20 affiliations or you want to become Icnown as an 21 independent? I tnean, it is well established, I will tell 22 you this, Mr. Monroe, that Mr. Kitchen served on our 23 executive conunittee for the I7emocratic party for a long 24 period of time as I've been the chairman. He ran and Hearing "I'ranscript Pg. 18 1 voted with the Democrats. He attended. Democratic 2 functions. I]xear what you're saying. You don't have to 3 establish to me what he was a longstanding Democrat. 4'That's established and it's well known, okay. 5 The question becomes -- and what I would like to hear 6 if you have any testimony on -- is there anything 7 currently that would suggest to you that he has continued 8 that, or do you think his run as an independent is 9 disingenuous, at best, okay, and he's just doing that to 10 take advantage of the laws? See what we want focused I 1 testimony on or evidence o#? I know what the -- 12 MR. MONROE: Well, based on what you 13 said, then his candidacy should have been disqualified. 14 It should have never been certified, according to the 15 Advisory. But you didn't do th.at. 16 MS. KALE-PESTA: Well, Mr. Kitchen did 17 witlidraw from the executive committee when he became the 18 mayor's secretary. So he did not serve on the executive 19 conunittee after Second Ward Council. 20 MR. BETRAS: I will tell you he did not Record of Proceedings Mintrtes of the Mahoning County Board of Elections Das: Thursday Date; July 18, 2013 I ime: 8;00 a.m. Page: 18 of 68 21 only call me but sent me an e-mail saying please remove my 22 name from the executive committee of the Detnocratic party, 23 which I did, and he's not been on the party's executive 24 conunittee. Look -- llearing Transcript Pg. 19 1 MR. MONROE: So what you're doing, 2 then -- 3 MR.I3ETRAS: I feel for you. 4 MR. MONROE: No, you don't have to feel 5 for me. 6 lvtR. BETRAS: No, no, no, what I'm saying 7 is I understand what you're saying. I'm not too happy 8 about it either, to be quite honest with you. If you're a 9 Democrat, then run in the Democratic primary or don't run. 10 MR. MONROE: What you're doing is you're I 1 totally ignoring the third circumstance. 12 MR. BETRAS: No, no, I'm following what 13 I think the law is. The law says that he's allowed to 14 change. 15 MR. MONROE: And I'm trying to prove to 16 you -- 17 MR. BETRAS: That he hasn't. 18 MR. MONROE: -- that according to the 19 third circumstance, his candidacy should not have been 20 certified. And you're saying -- if I'm understanding you 21 correctly, you're saying we're not concerned about this 22 third ciretunstance, what has he done currently. And the 23 third circumstance says voting history, together with 24 other facts tending to indicate party affiliatioarr. And I-Iearing Transcript Pg. 20 1 that is what I'm doing, and you're saying that it's Record of Proceedings Minutes of the Mahoning County Board of Elections Day: i'hursday Date: July 18, 2013 Time: 8:00 a.m. Page: 19 of 68 2 irrelevant. 3 MR. MUNROE: Let me junip in and just try 4 to clarify something. Clearly voting history and past 5 party practices can be a factor, but it's just a factor. 6 But the point is -- 7 MR. MONROE: But right there -- and I'm 8 not trying to 9 IVIR. MLJNIROE: But that alone would not be 10 sufficient. 11 MR. MONROE: But too -- I mean, maybe 12 we're not reading the same thing here, because voting 13 history and what I just shared with you is grounds for 14 disqualification. But you're overlooking that. 15 MR. BETRAS: Well, Mr. Monroe, the 16 Advisory does not provide us with any guidance as to how 17 much real estate must be underneath someone's feet. In 18 otlier words, it doesn't say that -- how long does that 19 follow Mr. Kitchen around? In other words, is six months 20 enough time to pass, is one month enough tiine, is three 21 years enough time? 22 MR. MONROE: I understand what you're 23 saying, 24 MR. BET'RAS: So it doesn`t say that to Hearing Transcript Pg. 21 1 us. 2 MR. MONROE: But it says tending to 3 indicate party affiliation. 4 MR. MUNROE: 'I'.hat is certainly one 5 factor, but there are other factors we look at also. For 6 example, I did ask our staff to check did Mr. Kitchen vote 7 in the Democrat primary as a Democrat. Record of Proceedings Minutes of the Mahoning County Board of Elections l^ay: Thursday Date: 3uly 18, 2013 Time: 8:00 a,m, Page: 20 of 68 8 MR. MONROE: That's in circumstance 9 number one. 10 MR. MUNROE: And he did not. 11 MR. MONROE: It does not quali#y. He 12 didn't meet circumstance number one. 13 MR, MUNROE: Did Mr. Kitchen vote in the 14 DePnocrat primary? 15 MS. KALE-PESTA: No. He voted an issues 16 only ballot absentee, 17 MS. W1NBUSII: My question is, in the 18 parade that you mentioned -- 19 MR. MONROE: Yes. 20 MS. WINBUSH: -- did Mr. Kitchen walk 21 with the Democrats in the parade, in this past parade on 22 July 4? 23 MR. MONROE: I don't know. 24 MS. WINBUSH: So it was not mentioned. Hearing Transcript Pg. 22 1 I'm aski.ng because you brought it up through the article. 2 MR. MONROE: I brought it up to show the 3 rclevance of the article. 4 MS. WINBUSH: So my question is, do you 5 have evidence that since he actually has filed as an 6 independent here at the Board of Elections, did he 7 actualiy assimilate -- do you have anything that shows he 8 gave a check to the Democratic party? 9 MR. MONROE: But I don't have to prove 10 that. I don't have to prove that. I don't have to prove 11 that -- if he gave money to the Democratic party. 12 MS. WINBUSH: What I'm trying to 13 establish for my own personal -- Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time: 8:00 a.m. Page: 21 of 68 14 MR. MONROE: Sure, I understand. 15 MS. WINBUSH: -- is the way that I have 16 researched this and read the law and understand it is that 17 a person has the ability to become what they choose, as 18 they choose, when they should, no matter what their past 19 practices are. But when they declare as an independent, 20 do they have ties to any other political party? Do you 21 have any evidence showing me clearly that whether he lias 22 put a sign out, dropped a piece of literature, walked in a 23 parade with the Democratic party? Has he done anything to 24 your knowledge that would tell you that this has been Hearing Transcript Pg. 23 1 something that is not in good faith, not prior to what he 2 voted? 3 MR. MONROE: Well -- 4 MS. WINBUSH: Because nry issue is I 5 can°t go -- I can't go to his history. I can only go to 6 his present and his future and his intention, no matter 7 what I think he's doing. Unless lie°s done something 8 between the last time that he voted, which was in May, 9 between then and now, if you have anything that will show 10 me that he's still in alignment with the Democrat party, 11. outside of him having some friends. 12 MR. MONROE: Can I ask you a question? 13 MS. WII^TBUSH: Sure. 14 MR. MONROE: Because you said you can't 15 go on his past. But, see, wliat I'm trying to show you is 16 that in this Advisory it clearly says that voting history 17 can be used. 18 MR. MU'NROE: Yes, that is one of the 19 factors. Record of Proceedings Minutes of the Mahoning County Board of Elections Day__rhursday Date; July 18, 2013 'I'ime: 8:00 a.m. Page: 22 of 68 20 MR. MONROE: So to say you can`t use 21 it -- 22 MR. MUNROE: No, we can use it. That is 23 one of -- 24 MR. MONROE: -- it goes against the Hearing Transcript Pg. 24 1 Advisory. 2 MR. MUNROE: That is one of the factors 3 we will consider, absolutely. 4 M. MONROE: I understand that, but I'm 5 trying to address -- 6 MR. MUNROE: But that alone is not 7 sufficient. 8 MR. MONROE: Absolutely. But when you 9 put it together with other facts, and I've been trying -- 10 MR, BETRAS: Well, that's the essence of l i his argument. That's his argument, is that-- and if I 12 can speak for him -- is that Mr. Kitchen is a longstanding 13 Democrat. Regardless of his declaration in May otherwise, 14 his history would seerti to indicate that he's a Democrat. 15 And so if it walks like a duck and it quacks like a duck, 16 it's a duck, and that's what his argument is. I mean, and 17 you could throw us -- anZ I misstating what your argument 18 is? 19 MR. MONROE: Well, you know, and that's 20 what I was trying to prove when I was talking about his 21 well-established party affiliation even with his current 22 position, Now, I know he wasn't voted in that, but he -- 23 you know, Mayor Charles Sammarone is City of Youngstown's 24 top Democrat, as the mayor, ,And he hand picked Mr. Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time: 8:00 a,m. Page: 23 of 68 Hearing Transcript Pg. 25 1 Kitchen to be his right-hand man. Mayor Chuck Samniarone 2 said he'll be an extension of me. Now, a Democrat 3 can't -- I mean, a Republicati can't be that. So his 4 current position. 5 MR. MUNROE: Iv1r, Monroe, anything else 6 you'd like to give us? 7 MR. MONROE: You know, seems like 8 everyone's on Mr. Kitchen's side. 9 MR. BETRAS: No, I wouldn't make that 10 assumption, Mr, Monroe. 11 MR. MONROE: Well, you know what, it's 12 hard not to, Mr. Betras. 13 MR. .13ETRAS: No, no, I-- listen, I'tn 14 very empathetic to your view. 15 MR. MONROE: Because I'm saying that 16 when I look at this Advisoiy -- and I read this. Advisory 17 back and forth probably 60 times, 100 times, And I know 18 what the first circumstance says, and I know what the 19 second circumstance says. But there is no weight given to 20 the fhird circumstance by this board. And that's a 21 problem, because you're turning a blind ear to what the 22 secretary of state says. 23 MR. MUNROE: I disagree. That is 24 certainly one of the factors we -- k-learing Transcript Pg. 26 1 MR. MONROE: Well, you certainly can. 2 MR. MUNROE: That is one of the factors 3 that this board will consider. The point that I was 4 trying to make is that, by itself, may not be enough. We 5 have to see clear and convincing evidence that Mr. Record of Proceedings Minutes of the Mahoning County Board of Elections Day: `i'hursday Date: July 18, 2013 Time48:00 a.m. Page: 24 of 68 6 Kitchen's decision. to run as an independent was not made 7 in good faith. The fact that he did not vote in the 8 Democrat primary, the fact that he resigned froin the 9 Democrat party executive committee, those are factors in 10 his favor. i l MR. MONROE: And could I -- that is 12 circunistance nuniber one and number two. He did not meet 13 those. Fantastic. But when you get to the issue of the 14 third circumstance, which you're not -- clearly you're not 15 giving any weight to -- you may say you are, but you're 16 not. And you said you have to have clear evidence, and 17 the opinion says tending to indicate party affiliation. 18 Now, maybe -- you know, and I don't have to be an attorney 19 to read this. 20 MS. WINBIJSH: Mr. Monroe. 21 MR. MONROE: Yes, ma'am. 22 MS. WINBUSH: Do you know when -- maybe 23 I should ask Mr. Kitchen -- when he resigned from the 24 executive committee from the Democratic party? How long If earing Transcript Pg. 27 1 ago has it been? 2 MR. MONROE: I don't know, but the more 3 important question may be when did he resign from his 4 current position as top assistant to the City of 5 Youngstown's top Democrat. 6 MS. KALE-PESTA: I handled the records 7 for the Dexnocratic party and the Board of Elections, 8 because everything has to be filed with the board. Iie 9 actually resigned when he was appointed by the mayor, and 10 he resigned as Second Ward Council. That's basically when 1 I he resigned. Was it two years ago? Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 'I'inic: 8:00 a.m. Page: 25 of 68 12 MR. KITCHEN: August of 2011 or whenever 13 it was. 14 MS. KALE-PESTA: Yeah, it was when lae 15 resigned his position as Second Ward Council. Most office 16 holders serve on the executive committee. 17 MR. MONROE: Can I proceed, or you have 18 tnore questions? 19 MR. MUNROE: Go ahead. 20 MR. BETRAS; I just want the record 21 clear. I've made no prejudgment, nor do I thinlc any of my 22 fellow board members, on 'what the status of the evidence 23 is, okay. But we're reading these advisories, and I hear 24 your argument, and I understand it. I have not made a Hear'ing Transcript Pg. 28 I determination yet, because I'd like to hear what Mr. 2 Kitchen has to say, because there might be some in 3 particular questions I have for Mr. K.itcheti. 4 MR. MONROE: Very well. Thank you. 5 Now, let me just move on to -- and you know what, let me 6 just say that, you know, certainly Mr. Kitchen had no -- 7 he wasn't elected: He was appointed, okay. I get that. 8 But there is no record of when Mr. -- when Mayor 9 Sammarone, okay, when Mayor Sainmarone, Charles -- I'm 10 sorry, when Mayor Charles Sammarone asked Mr. Kitchen to 11 resign to take on his new post, there's no record that Mr. 12 Kitchen refused. He accepted. 13 So it wasn't as if he was forced into the position. 14 He did it of his own free will, knowing, I believe it's 15 reasonable to believe, knowing that the job -- the mayor's 16 job was comin.g up in about a year too. He continued in 17 thatjob. And let me just say that. Is that not clear to Record of Proceedings Minutes of the Mahoning County Board of Elections I)ay: `I'hztrsday Date; 7uly 18, 2013 Time: 8:00 a.m. Page: 26 of 68 18 you, Miss Winbush? You look - your brow is -- 19 MS. WINBUSH: Go ahead. I want to hear 20 the rest. 21 MR. MONROE: Okay. Our words are 22 powerful, okay. They give you a bird's-eye view of what's 23 in the depths of the heart of a person, allows you to see 24 their true intentions, our words are. And moments after Hearing Transcript Pg. 29 1 Mr. Kitchen turned in his noininating petitions and -- 2 which there is a statement of candidacy where you have to 3 sign tuider penalty of election falsification that he was 4 an independent, Moments after that he addressed the 5 media. 6 Now, he could have said anything there. He could 7 have pushed it back on the conunents made by the Vindicator 8 about him being a longtiine Democrat. He didn't do it. He 9 remained silent. But let me tell you what he did say. 10 'This is dated Friday, May 3, Youngstown Vindicator. He 11 said, "It was --" and I quote, "It was more strategic to 12 run as an independent." 13 Now;.just give me one second here, "It was more 14 strategic to run as an independent." I think that is 15 attempting to gain a significant and an unfair advantage 16 over other candidates. More strategic. It was more 17 strategic to run. Now, you may not appreciate that 18 because you kind of looked like you didn't really want to 19 hear it, Mr. Munroe. But our words are powerful. By his 20 own admission, he said those words. No one forced him. 21 "It was more strategic to run as an independent." 22 Strategic. Trying, attempting to gain an unfair 23 advantage, okay. Record of Proceedings Minutes of the Mahoning County Board of Elections Day; Thursday ^ _ Date; July 18, 2013_ Time: 8:00 a.m. Page: 27 of 68 24 Now, let me tell you what else he said. He wasn't Hearing '1'ranscript Pg. 30 1 done talking. He said, and I quote, "I didn't want to 2 saturate the primary." Well, you know, he could say 3 whatever he wants. Tell me about what he did recently. 41'ell me about if he gave any money. It's not about that. 5 It's his own words. "It was more strategic to run as an 6 independent," and, "I didn't want to saturate the 7 primary," 8 Can a Republican say that? Republican can't say that 9 about a Democratic primary. Someone who is claiming 10 independence can't say that. But you know who can sayl l that? A member of the Democratic party can say, "I didn't 12 want to saturate the primary." 13 This was moments after, I migh.t add, he handed in his 14 nominating petitions where he signed his statement of 15 candidacy where he had to sign under penalty of election 16 falsification. His own words. Now, you ask me what did 17 he do recently? I'll tell you what lie did moments after 18 that, what I just told you, 19 Now, you take that, along with his voting history, 20 which I might add he might not have voted in the primary, 21 but every single time Mr. Kitchen voted, he voted as a 22 Democrat. There may have been gaps, but let me tell you, 23 the next time he voted, he reaffirmcd his affiliation and 24 his allegiance to party by voting as a Democrat, Hearing Transcript Pg. 31 1 Now, I think that's a violation. You take them 2 together, facts, you take those together, it indicates 3 party affiliation. I tlj.ink it's clear. I thinlc I've 4 presented enough evidence. Because accordiiag to Mr. Record of Proceedings Minutes of the Mahoning County Board of Elections _Day: ''Thursday Date: July 18, 2013 Time: 8:00 a.m. Page: 28 of 68 5 Munroe, he said I had to be clear, but according to the 6 Advisory, on Page 4 of 4, it says, "-- voting history, 7 together with other facts tending to indicate party 8 affiliation, may be sufficient grounds to disqualify an 9 independent." 10 MR. MUNRt)E: That's true, they tnay be. 11 I agree. Mr. Kitchen, anything you'd like to say? 12 MR. KITCHEN: Yeah. T'here's a lot I can 13 say. A lot has been said. Two things. When I got my 14 copy of Mr. Monroe's protest, there were two reasons 15 given, It says Mr. DeMaine Kitchen is actually a Democrat 16 who is committing election fi•aud, and Mr. Kitchen -- 17 DeMaine Kitchen does iiot have an independent political 18 party affiliation under Ohio law. 19 So all of the statements he's read and the things he 20 read from the Advisory actually point to my defense, as 21 far as I'm concerned, the things he's laid out. You have 22 rny voter record from this past election in which I voted 23 an issues only ballot. It's already been stated that I 24 have resigned over two years ago. The current position Hearing Transcript Pg. 32 1 that I hold I've held -- every -- he made the statement 2 that the job -- no one forced me into tixe job. Actually, 3 every position I've accepted is because, you know, it was 4 my own free will. And I've actually been managed by 5 Republicans, Democrats, and I would imagine some 6 independents along my career path. So accepting ajob is 7 not a partisan issue. It's an issue of providing and 8 taking care of my family, so that's a nonissue, as far as 9 I'm concerned. 10 But the question isn't what Mr. Monroe thinks or what Reeord of Proceedings iN'linutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time: 8:00 a.m. Page: 29 of 68 11 1 said shortly after filing my petition. The question is, 12 did I violate the law: I believe, as demonstrated by his 13 argument, the answer is clearly no, there was no violation 14 of the law, 'fhe dates he gave, the tiinelines he gave 15 clearly indicate that I filed timely petitions. I met the 16 deadlines. 17 And, you know, again, the heart of the matter is, 18 once again, that P•ilr. Cecil Monroe has sought an office in 19 which he was either eliminated or defeated, and here we 20 stand, you know, unfortunately defending allegations that 21 have no merit whatsoever. And so, you know, you have my 22 voter record. You have, you Icnow, the section from the 23 Ohio Revised Code that applies to independent candidates, 24 3513.257. You Irnow, the qualifications to run for mayor Hearing "1'ranscript Pg. 3 3 1 of the City of Youngstown, live in the city limits, 18 or 2 older, you have the right to run even as an independent. 3 Your past service does not serve to deny your 4 constitutional right to run as an independent candidate or 5 even, as mentioned, choose to run in the future opposite 6 party in the fiiture. 7 So I took a lot of notes. There was a whole lot that 8 could be said, a lot of points that were made that I was 9 going to make. And, you know, again, the two challenges, 10 the reason why I thought I was here was to prove -- or to 11 hear his case that I committed some type of fraud, which 12 doesn°t seem to be the case, and that I'm not independent 13 under the Ohio law, whiich also doesn't appear to be the 14 case, 15 So thank you for your consideration. I do have a 16 funeral to attend, and so I have no further comments. Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time' 8:00 a.m, - Page: 30 of 68 17 MR. MUNROE: Okay. I'll ask a question 18 or two, I suppose. Clearly you've got a lorig history of 19 having been a Democrat -- 20 MR. KITCHEN: Right. 21 MR. MUNROE: -- Mr. Kitchen. When you 22 made the decision to file as an independent under Ohio 23 law, the definition of an independent candidate is one 24 who is not affiliated with a political party. Hearing Transcript Pg. 34 1 MR. KITCHEN: Right. 2 MR. MIJNROE: Can you just explain to 3 this board, why did you make that decision? You're 4 essentially -- you're abandoning a long history of service 5 with a particular political party. 6 MR. KITCHEN: Yes. 7 MR. MUNROE: Now you're saying that you 8 are no longer affiliated with that party. Can you talk 9 about that? 10 MR. KITCHEN: Yeah, I can speak to that. 11 And to be honest with you, I believe our community is 12 going more in that direction as a whole. The people have 13 spoken. `I`his isn't the first election where an 14 independent has sought office. This definitely wouldn't 15 be tlie first time an independent won office, I mean, prior 16 to former Mayor Jay Williams, even dating back to former 17 Councilman Herman Hill, when he ran as an independent and 18 was successful. 19 So I believe more and more of the voters are 20 frustrated with a-- I won't say freistxated necessarily 21 with the two-party system, but particularly in this area, 22 1 believe people are fnzstrated witli the black eyes, the Ttecord of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time: 8:00 a,m. Page: 31 of 68 23 constant accusations and things that are constantly 24 popping up in the always truthful Vindicator. And so -- I-Iearing Transcript Pg. 3 5 1 but I believe the voters are appreciative of someone who 2 is truly independently tiunking, independent minded. 3 I admit I have friends in tl-ie Democratic: party. I 4 have friends in the Republican party. I don't know that 1 5 have friends in the Green party, but I talk to people, 6 and -- but the fact that I'm running as an independent is 7 a reflection of my ideology and not so much, you know 8 you know, there are things I would agree with with the 9 Democratic party. There are things I would agree with, 10 I'm sure, with the Republican party. But my decision to 1 l run as an independent was truly becausc I feel that I-am 12 an independent as it relates to my world view. 13 MR. MUNROE: Thank you. Anything else, 14 Mr. Monroe? 15 MR. MONROE: May I speak to coninients 16 made by Mr. K.itchen? 17 MR. ML NROE: Go ahead. 18 MR. MONROE: You know, this isn't about 19 me. Inasmuch as Mr. Kitchen tnay want to think this is 20 about me, this is not about me. This is about prove the 21 law. And it's not about independent thinking. We all are 22 independent thinkers. But it's about affiliation. It's 23 about well-established party affiliations, not just so 24 long ago and they're no more, but these well-established Hearing Transcript Pg. 36 I party affiliations that occurred date way back, still 2 remain today, and are alive. 3 And, you know, his current position, you have to look Record of Proceedings Minutes of the iVlahoning County Board of Elections Day: Thursday. Date: 3uly 18, 2013 Time: 8:00 a.m. Page: 32 of 68 4 at that. It's not as if he's on the lower level of the 5 administration. He's the number-two guy and was hand 6 picked by the top Democrat in the City of Youngstown. 7 That wasn't by chance. And all of these positions you 8 talk about was about his family. And I'm not taking that 9 away from him, but they were intentional, they were IQ pointed. Alignment. Alignment. 1 t And, you know, the two -- looking at my protest, I 12 said Mr. Kitchen is actually a Democrat who is committing 13 election fraud. I believe I meant that. I believe I 14 showed that he's a Democrat. It's been established. Even 15 the board said we all know he's a Democrat. That's 16 established. 17 Ife's not -- in the second point, he's not independent 18 of political party, I believe I have established that, 19 not -- again, not so long ago, but today, alive and well. 20 And to minimize the comments that he made to the media l 2:1 think is an attempt to sidestep true meaning and powerful 22 statements. Our words are powerful, again. And I think 23 we saw the true intention of Mr. Kitchen. He's not going 24 to abandon these affiliations. He's not going to abandon Hearing Transcript Pg. 3 7 1 that. It's an attempt to gain an unfair advantage, and 2 that is against -- that's a violation. You can't do that. 3 Iv'iR, ]VIIJNROE: Any otlier questions from 4 the board? Okay. In that case -- I'm sorry. 5 MR. KITCI-IEN: I was going to say, if 6 there are no other questions from the board, when can I 7 expect to hear something? 8 MR. MIJNTROE; Well, if you've got no 9 further comments yourself, I mean -- Record of Proceedings Minutes of the Mahoning County Board of Elections Da: Thursday Date: July 18, 2013 Time: 8:00 a.m. Page: 33 of 68 10 MR. KITCHEN: Well, the last statement 11 I'11 just simply make is he said I'm the number-two man. 12 I'm the number-two man on tny job, I'm not the number-two 13 man in the Democratic party. That's the last statement 14 I'li make. 15 MR. MUNROE: Okay. Thank you. This 16 board has got a cottple of options. If somebody is so 17 inclined, there can be a ►notion now. We can take this 18 matter under advisement. There's a second hearing also. 19 You've got to leave at what time, Dave? 20 MR. BETRAS: I'm good. 21 MR. MUNROE: You're good? Okay. We can 22 hear the second. -- we can proceed to the second hearing, +x,. 23 make our decisions following the conclusion of that, or we 24 could take the matter under advisenaent. Does the board Hearing Transcript Pg. 38 1 have a preference? 2 MS. WINBUSH: Doesn't matter. 3 MR. MUNROE: I would suggest what we 4 might do, then, is maybe just hold off until we hear 5 the -- get through the second hearing, and then we can 6 make a decision as to -- we can vote at that time or take 7 the matter under advisement. 8 MR. BETRAS: Well, I would be against 9 taking it under advisement. I think both Mr. Monroe and 10 Mr. Kitchen and Mr. Hughes have a right to a quick 1I decision. 12 MR. MUNROE: Sure. 13 MR. BETRAS: I mean, unless they're 14 going to submit some kind of post-hearing brief or, you 15 know, something else, I mean, we've had everything we Record of Proceedings Minutes of the Mahoning County Board of Elections _1>ay:_Thursday^ Date: Jul 18, 2013 Time: 8:00 a.m. Page: 34 of 68 16 could. The question now is do we want to vote on Mr. 17 Kitchen's now, or do we want to wait until after Mr. 18 Hughes's? I don't have a problem waiting, but I'd like to 19 get them voted on today. 20 MR. WASKO: I'ni prepared to make a 21 motion now. 22 MR. MUNRO.F: That's your privilege, Mr. 23 Wasko. 24 MR. WASKO: And I think that based on my Hearing Transcript Pg. 39 1 history on the board, based on the law, based on what 2 discretion we may or may not have, I would like to make a 3 motion, and I think the appropriate motion would be to 4 deny the protest. 5 MR. MUNROE: Yes. 6 MR. WASKO: Atid I'd like to niake that 7 motion. 8 MR.IVTUNRt3E: There's a motion. Is there 9 a second'? 10 MS. WINBUSH: Second. i l MR. MUNROk : t7nder discussion'? 12 MR. BET RAS: I'd like to say something. 13 As the chairman of the Democratic party and a board 14 member, I sort of have dual roles. And the secretary of 15 state has requested that when I sit on the board,l'm not 16 a Democrat, but I'm a board men-iber trying to follow the 17 law, and I'm sworn to uphold the law. But I am sensitive 18 to Mr. Monroe's arguments. If you're going to be a 19 Democrat, then nn1 in the primary and convince the voters. 20 This idea that we're going to sit out and try to run as an 21 independent, get tactical advantage, does not sit well RR,ecord of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 Time: 8:00 a.m. Page: 35 of 68 22 with me, and I don't appreciate it. 23 I think that the voters are smart and that you need 24 to convince voters that you have the best message and that Hearing Transcript Pg. 40 1 party affiliation matters. And for people out there in 2 the hinterland to somehow think that party affiliation is 3 bad, parties have been around since the dawn of democracy. 4 Parties have always, whether it be a Republican party, a 5 Democrat party, a Green party, even the Conununist party, 6 parties have always carried the dogma of the core beliefs 7 of that particular party. So I am very sensitive to what 8 Mr. Monroe has said. I don't like it. 9 But I'm worried about the status of the record, in 10 that the decisions from the secretary of state doesn't 11 provide us guidance as to how much real estate must pass. 12 And I was very akin and appreciated very much member -- 13 board member Winbush's question when she said from May 14 until now, what evidence do you have that he's realigned 15 himself or that he's not disassociated himself with the 16 party? And I didn't hear anything other than a quote in 17 the paper that he said he wanted to make a tactical 18 decision not to floocl the primary. 19 I'm sensitive to that, Mr. Monroe. I agree with you. 20 1 think it's -- but the status of the law is the status of 21 the law. And so I don't know if there's much we can do 22 about it, and that's just what I wanted to say about it. 23 MS. WINBUSH: In actuality, I have to 24 agree with Mr. Betras, even from the Republican side. I Hearing Transcript Pg. 41 1 think the law should be changed, and it should be clear. 2 Indepetidents should be able to run as independents. But Record of Proceedings Minutes of the Mahoning County Board of Elections DaE.-Thursday I^ate: Ju^ 18, 2013 Time: 8;00 a.m. Page: 36 of 68 3 from where we sit and the decisions that we have to make, 4 I can't go by anything prior to, for the most part, of the 5 filing deadline. 6 And it's kind of sad, because we've seen it happeti 7 before, and we understand it, and we are sympathetic to 8 wliat you're saying. T'rust me when we say that because 9 those of us who are Republican, we want people to choose 10 tvhat they're going to do. But I have to stay with -- I 11 can't believe I'm saying this. I have to agree with Mr. 12 Betras riglit now, what it comes to, the law does not give 13 us the guidance to how far back we have to go. And that 14 is an issue, and it needs to be addressed from the 15 legislature in the -- I'm sorry, for the ORP. What's it 16 called? 17 MR. BETRAS: Ohio Revised Code. 18 MS. WINf3USH: ORC. I knew it was an 19 acronym. 20 MR. MUNROE: Fortunately, the law does 21 provide some guidance. The court cases suggest that there 22 has to be clear and convincing evidence to force Mr. 23 DeMaine off the ballot. The law also suggests, court 24 cases suggest that the laws and the rules need to be Hearing Transcript Pg. 42 1 liberally construed to allow access to the ballot. We 2 also recognize that this is still a free country, and 3 people have the right to make a change, to change their 4 mind and to change their party affiliation. S But believe me, we are certainly sensitive to the 6 fact that we -- you know, the situation that we used to 7 have prior to 2007, there were no rules, and people 8 willy-nilly filed as independents strictly to gain Record of Proceedings Minutes of the Mahoning County Board of Elections Day: Thursday Date: July 18, 2013 . Time: 8:00 aan. Page: 37 of 68 9 tactical advantage. Today at least there's some guidance, 10 that we have to look at the totality of the circumsta.nces. 11 And in Mr. Kitchen's favor, the fact that he's 12 resigned from the Democrat party's executive committee, 13 the fact that he's not voted in a Democrat primary since 14 making the decision to be an independent, those factors 15 weigh in his favor. And in my own mind, his past history 16 does not -- cannot overconze what has occui-red since he's 17 made that decision. And those are my comments. 18 Anything else? 'There's been a motion and a second 19 that the protest be denied. The director will call the 20 roll. 21 MS. KALE-PESTA: Mr. Munroe? 22 MR. MUNROE: Yes. 23 MS. KALE-PESTA: Miss Winbush? 24 MS. WINBUSH: Yes. Hearing Transcript Pg. 43 1 MS. KALE-PESTA: Mr. Wasko? 2 MR. WASKO: Yes. 3 MS. KALE-PESTA: Mr. Betras? 4 MR. BETRAS: No. 5 MR. MUNROE: We're going to move on to 6 our second hearing now. Would you invite Mr. Hughes to 7 join us? 8 MR. KITCHEN: Thank you all. 9 MR. MUNROE: We'll take a ten-minute 10 break. 11 (A recess was taken) 12 MR. MUNROE: We are back in session. 13 It's ten after nine. And we are going to hold the second 14 hearing of the morn.ing. Joining us is candidate Jimmy