In the Supreme Court of Ohio

Supreme Court of Ohio Clerk of Court - Filed June 07, 2019 - Case No. 2019-0767

IN THE SUPREME COURT OF OHIO

CASE NO. ______

______

Original Action in Mandamus

Election Matter filed Pursuant to S. Ct. Rule 12.04

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STATE OF OHIO EX REL. ROBERT BENDER, P.O. Box 164 Thurston, Ohio 43157,

Relator,

FRANKLIN COUNTY BOARD OF ELECTIONS, 1700 Morse Road Columbus, Ohio 43229-9513,

Respondent.

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PETITION AND VERIFIED COMPLAINT IN ORIGINAL ACTION FOR WRIT OF MANDAMUS

Mark R. Brown (#81941) 303 East Broad Street Columbus, OH 43215 Tel: (614) 236-6590 Fax: (614) 236-6956 E-mail: [email protected]

Mark G. Kafantaris (#80392) 625 City Park Avenue Columbus, Ohio 43206 Tel: (614) 223-1444 Fax: (614) 300-5123 E-mail: [email protected]

Counsel for Relator

NOW COMES Relator, Robert Bender, pursuant to Article IV, § 2(B)(1)(d) of the Ohio

Constitution and Ohio Supreme Court Practice Rule 12.04 and submits his petition for a Writ of

Mandamus against Respondent, Franklin County Board of Elections.

Parties, Jurisdiction, and Venue

1. Relator is a citizen, resident, and qualified elector of the City of Reynoldsburg, Ohio who resides at 8094 Adams Avenue in Reynoldsburg, Ohio.

2. Relator's mailing address, which was delivered to the Franklin County Board of

Elections, is P.O. Box 164, Thurston, Ohio 43157.

3. Relator was duly certified by the Respondent, Franklin County Board of Elections, on

February 19, 2019 to run as a candidate in the May 7, 2019 Libertarian Party primary for the

Reynoldsburg, Ohio, City Council, Ward 3 seat.

4. Relator was the only candidate certified to contest the May 7, 2019 Libertarian Party primary for the Reynoldsburg, Ohio, City Council, Ward 3 seat.

5. Relator, because of his sole candidacy in the Libertarian Party primary on May 7, 2019, became by operation of law, see O.R.C. § 3513.02, the Libertarian Party candidate for the

Reynoldsburg, Ohio, City Council, Ward 3 election scheduled for November 5, 2019.

6. Respondent Franklin County Board of Elections is the government body under Ohio law with the authority to determine whether candidates for the May 7, 2019 primary elections in

Reynoldsburg, Ohio were legally qualified to appear on the Reynoldsburg election ballots.

7. Jurisdiction is proper in this Court under Article IV, § 2(B)(1)(d) of the Ohio Constitution and Ohio Supreme Court Practice Rule 12.04.

8. Ohio's general election, from which Relator has now been excluded by Respondent, is scheduled for November 5, 2019.

9. Elections officials are required to certify candidates names to ballots for the November 5,

2019 election no later than August 27, 2019.

10. UOCAVA ballots must be printed and made available to overseas voters for the

November 5, 2019 election no later than September 20, 2019.

11. Absentee ballots must be printed and made available to domestic voters for the

November 5, 2019 election no later than October 8, 2019.

12. While the November 5, 2019 election is more than 90 days removed from the filing of this action and Supreme Court Practice Rule 12.08 is not directly applicable, time remains of the essence and this election matter should be properly expedited so that Relator may timely be restored to the ballot before August 27, 2019.

Statement of Facts

13. On or before February 6, 2019, Relator submitted a proper nominating petition supported by a sufficient number of signatures supporting his May 7, 2019 candidacy to be the Libertarian

Party nominee for the Reynoldsburg, Ohio, City Council, Ward 3 seat.

14. On February 19, 2019, 2019, Relator's candidacy was determined to be proper and supported by a sufficient number of signatures and he was accordingly certified to the

Reynoldsburg, Ohio, City Council, Ward 3 Libertarian Party primary ballot by Respondent pursuant to O.R.C. § 3513.05.

15. No other candidate sought to be the Libertarian Party nominee for the Reynoldsburg,

Ohio, City Council, Ward 3 seat.

16. By operation of Ohio law, see O.R.C. § 3513.02, Relator became the nominee of the

Libertarian Party for the Reynoldsburg, Ohio, City Council, Ward 3 seat.

17. On February 22, 2019 Relator's candidacy was ostensibly protested by a gentleman named John H. Duus, whose address was listed as 7856 Slate Ridge Blvd., Reynoldsburg, Ohio.

18. Mr. Duus's protest stated as grounds for his protest that six of Relator's supporting signatures on his nominating petition were invalid. See Attachment 1.

19. Mr. Duus nowhere in his written protest identified himself as a "qualified elector who is a member of the same political party as" Relator, nor did he assert that he is "eligible to vote at the primary election for" Relator. See O.R.C. § 3513.05 (requiring that protestor be a "qualified elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election for the candidate whose declaration of candidacy the elector objects").

20. On or about March 4, 2019, Respondent caused to be mailed to Relator's physical address a letter stating in relevant part:

A protest against your candidacy for the Reynoldsburg City Council-Ward 3 has been filed with the Franklin County Board of Elections in accordance with R.C. 3513.05. Enclosed, please find a copy of the protest filed by John H. Duus, a qualified elector residing at 7856 Slat [sic] Ridge Blvd, Reynoldsburg, OH 43068. You will be notified once a date is set for hearing the protest.

See Attachment 2.

21. Reynoldsburg, Ohio held its primary on May 7, 2019 and Relator, by operation of Ohio law, that day became the Libertarian Party nominee for the City of Reynoldsburg, Ohio, City

Council, Ward 3 seat.

22. On or about May 9, 2019, two days after the election, Respondent caused to be mailed to

Relator's physical address a notice of a hearing scheduled for May 28, 2019 "to hear the protest" against Relator; that letter stated in relevant part:

A protest against your candidacy for the Reynoldsburg City Council-Ward 3 has been filed with the Franklin County Board of Elections in accordance with R.C. 3513.05. The Board of Elections will meet on Tuesday, May 28 at 2:00 PM to hear the protest. This meeting will be held in the offices of the Board of Elections at 1700 Morse Rd,

Columbus, OH 43229. Enclosed, please find a copy of the protest filed by John H. Duus, a qualified elector residing at 7856 Slate Ridge Blvd, Reynoldsburg, OH 43068.

See Attachment 3.

23. Respondent's "Official Notice of Special Meeting" scheduled for May 28, 2019 stated that it was being held to "certify the results of the May 7, 2019 Primary Election" and "to hear facts and render a decision on the Robert Bender protest matter." See Attachment 4.

24. On May 28, 2019, more than three months after Mr. Duus lodged his protest against

Relator and more than three weeks after the election, Respondent finally convened its hearing "to hear facts and render a decision on the Robert Bender protest matter."

25. Relator, through counsel, delivered to Respondent on May 28, 2019 at approximately

12:00 p.m., two hours before the hearing, a letter objecting to the hearing as being untimely and unauthorized under Ohio law. See Attachment 5.

26. Relator explained in this letter that Boards of Elections under Ohio law, including O.R.C.

§§ 3513.05, 3501.39, and Ohio Supreme Court precedent, have no authority after elections to remove candidates who have been certified to run in those elections.

27. Relator appeared with legal counsel at the May 28, 2019 meeting to challenge the hearing, challenge the protester's qualifications, and defend the signatures that were being protested.

28. Relator, through counsel, objected at the May 28, 2019 hearing to the protest's being filed by a person who neither claimed in his written protest to be a member of the Libertarian Party, failed to appear at the hearing to testify whether he was in fact a member of the Libertarian

Party, and otherwise had no connection whatsoever to the Libertarian Party.

29. Mr. Duus, the protester, is not and never has been a member of the Libertarian Party.

30. Relator demanded at the May 28, 2019 hearing to be afforded an opportunity to question the protester to, inter alia, determine whether he was or is a member of the Libertarian Party.

31. Respondent ignored Relator's demand.

32. After initially beginning to review Relator's signatures for sufficiency, Respondent stopped pursuant to Relator's oral objection as to the timeliness of the hearing.

33. Rather than rule on Relator's objections to the protester's qualifications and the timeliness of the hearing, Respondent sua sponte decided to continue the hearing until 3 PM on June 3,

2019, a date one month removed from the May 7, 2019 primary.

34. On June 3, 2019 Relator, supporting witnesses, and Relator's attorney again appeared at

Respondent's hearing to challenge the protester's standing, object to the timeliness of the hearing, and support the veracity and sufficiency of the supporting signatures that Relator had tendered.

35. On June 3, 2019, Respondent rejected Relator's objection to the timeliness of the hearing and ruled that it had authority to remove him from the May 7, 2019 primary ballot even though the election was concluded one month prior.

36. On June 3, 2019, Respondent ruled that Mr. Duus, the protester, had standing to challenge Relator even though he had never been a member of the Libertarian Party, did not claim to be a member of the Libertarian Party, and once again did not appear at the hearing to testify in support of qualifications to file a protest.

37. On June 3, 2019, Respondent rejected Relator's repeated claims that he was entitled to examine the protester and to otherwise present evidence without ever inquiring as to the nature of Relator's evidence and proposed questioning of the protester.

38. Respondent ruled at the June 3, 2019 hearing that as a matter of law Relator had no right to challenge the witnesses against him and as a matter of law and had no right to present evidence supporting his constitutional right to run for office.

39. On June 3, 2019, based on its having removed Relator from the may 7, 2019 primary ballot, Respondent also removed Relator from the upcoming November 5, 2019 general election ballot.

Ohio Law

40. Section 3513.05 of the Ohio Revised Code, under which Respondent acted, states in part:

Protests against the candidacy of any person filing a declaration of candidacy for party nomination or for election to an office or position, as provided in this section, may be filed by any qualified elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election for the candidate whose declaration of candidacy the elector objects to, or by the controlling committee of that political party. The protest shall be in writing, and shall be filed not later than four p.m. of the seventy- fourth day before the day of the primary election. The protest shall be filed with the election officials with whom the declaration of candidacy and petition was filed. Upon the filing of the protest, the election officials with whom it is filed shall promptly fix the time for hearing it, and shall forthwith mail notice of the filing of the protest and the time fixed for hearing to the person whose candidacy is so protested. They shall also forthwith mail notice of the time fixed for such hearing to the person who filed the protest. At the time fixed, such election officials shall hear the protest and determine the validity or invalidity of the declaration of candidacy and petition. If they find that such candidate is not an elector of the state, district, county, or political subdivision in which the candidate seeks a party nomination or election to an office or position, or has not fully complied with this chapter, the candidate's declaration of candidacy and petition shall be determined to be invalid and shall be rejected; otherwise, it shall be determined to be valid. That determination shall be final.

41. As made plain by its terms, § 3513.05 first requires that a protester be a "qualified elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election for the candidate whose declaration of candidacy the elector objects."

42. Next, protests must be filed no later than "seventy-four[] day[s] before the day of the primary election."

43. Third, "the election officials with whom it is filed shall promptly fix the time for hearing it, and shall forthwith mail notice of the filing of the protest and the time fixed for hearing to the person whose candidacy is so protested."

Timeliness Under Section 3513.05

44. Section 3513.05's plain terms state that not only must a protest be filed well in advance of the primary election, the hearing on that protest must be "promptly" fixed and noticed.

45. Section 3513.05 makes clear that protests must not only be filed well before primary elections, they must also be noticed, heard and decided well before the primary election.

46. A long line of precedent interpreting § 3513.05 and prior law makes this clear: "the

Supreme Court of Ohio has repeatedly ruled that protests and other matters relating to candidacies become moot after the election has been held. State ex rel. Patrick v. Cuyahoga Cty.

Bd. of Elections (1962), 174 Ohio St. 12, 21 O.O.2d 36, 185 N.E.2d 433; State ex rel. Keller v.

Loney (1959), 169 Ohio St. 394, 8 O.O.2d 420, 159 N.E.2d 896; Maranze v. Montgomery Cty.

Bd. of Elections (1958), 167 Ohio St. 323, 4 O.O.2d 401, 148 N.E.2d 229. See, also, State ex rel.

Whetsel v. Murphy (1930), 122 Ohio St. 620, 621, 174 N.E. 252, 253." State ex rel. Klein v.

Cuyahoga County Board of Elections, 102 Ohio App.3d 124, 130, 656 N.E.2d 1031 (8th DCA

1995).

47. "The primary election having been closed and the result declared," the Eighth District

Court of Appeals has stated, "the court will not order the choice of the people at the primary election to be disregarded.” State ex rel. Klein v. Cuyahoga County Board of Elections, 102

Ohio App.3d 124, 130, 656 N.E.2d 1031 (8th DCA 1995).

48. Ohio's Attorney General agrees: "There is no statutory provision authorizing the board of elections to remove the name of a successful primary election candidate from the general

8 election ballot or otherwise invalidate his candidacy." 2000 Ohio Atty. Gen. Ops., No. 2000-

033, at 2-206 (emphasis added).

49. Ohio's Attorney General has further explained that "[a]ny determination by a board of elections as to the validity of a person's candidacy must be made well before the primary election." Id. (emphasis added).

50. The Ohio Supreme Court agreed with the Ohio Attorney General's opinion in Whitman v.

Hamilton County Board of Elections, 97 Ohio St. 3d 216, 219, 778 N.E.2d 32, 35 (2002), where it ruled that whether a candidate's certification is challenged by protest or on an elections board's own motion, the challenge cannot be heard "after the primary election:"

Moreover, the board lacked authority under R.C. 3501.39(A)(3) to invalidate sua sponte Nelson's petition and candidacy at the time that Whitman filed his protest. Under R.C. 3501.39(B), “[a] board of elections shall not invalidate any declaration of candidacy * * * under division (A)(3) of this section after the fiftieth day prior to the election at which the candidate seeks nomination to office, if the candidate filed a declaration of candidacy * * *.” The board thus lacked authority to consider the merits of Whitman's challenge either sua sponte or on the protest after the primary election.

(Emphasis added).

51. The Court in Whitman, 97 Ohio St. 3d at 219, 778 N.E.2d at 35, referred to the Ohio

Attorney General's opinion to support its conclusion:

the Attorney General's opinion actually concluded, consistent with the Secretary of State's decision to dismiss the protest, that “[a]fter the primary election, a county board of elections has no authority to remove from the general election ballot the name of a candidate, who was elected at the primary election as a political party's nominee for office * * *.” Paragraph one of the syllabus. In other words, “[a]ny determination by a board of elections as to the validity of a person's candidacy must be made well before the primary election.” Id. at 2–206.

(Emphasis added).

52. Ohio law makes clear that § 3513.05's promptness requirement not only bars postponing hearings on candidates' qualifications until after primary elections, it bars waiting until after

9 primary elections to decide challenges to candidates' qualifications. See State ex rel. Yeager v.

Richland County Board of Elections, 136 Ohio St. 3d 327, 331, 995 N.E.2d 228, 232-33 (2013).

53. In State ex rel. Yeager v. Richland County Board of Elections, 136 Ohio St. 3d 327, 331,

995 N.E.2d 228, 232-33 (2013), the Ohio Supreme Court ruled that a three month delay between the time an elections board concluded a candidate was not properly qualified and its formal hearing disqualifying him from the ballot was impermissible under § 3513.05:

when the board of elections receives a protest, it is required to “promptly fix the time for hearing” the protest and notify the candidate of the protest and the time set for hearing. R.C. 3513.05, 13th paragraph. Between April 2, 2013, and the board's vote on July 9, 2013, the board did not schedule a hearing on the matter, nor did it afford Yeager an opportunity to be heard.

Id.

54. State ex rel. Yeager v. Richland County Board of Elections, 136 Ohio St. 3d 327, 331,

995 N.E.2d 228, 232-33 (2013), establishes that temporal restrictions also apply to sua sponte decisions by elections officials to disqualify candidates, both before and after primary elections:

R.C. 3501.39(B) imposes a time limit upon the board's ability to invalidate petitions.

[A] board of elections shall not invalidate any declaration of candidacy or nominating petition under division (A)(3) of this section after the sixtieth day prior to the election at which the candidate seeks nomination to office, if the candidate filed a declaration of candidacy, or election to office, if the candidate filed a nominating petition.

55. State ex rel. Yeager v. Richland County Board of Elections, 136 Ohio St. 3d 327, 331,

995 N.E.2d 228, 232-33 (2013), further holds the temporal requirements placed on boards of elections by O.R.C. §§ 3513.05 and 3501.39 apply regardless of whether a primary is actually contested: "The statute contains no language allowing the board to fix a new deadline in the event the primary is not required."

56. Combined, these precedents make plain that whether it ostensibly acts in response to a protest or on its own sua sponte motion, a board of elections cannot invalidate a candidacy after the primary election.

Standing Under § 3513.05

57. State ex rel. Yeager v. Richland County Board of Elections, 136 Ohio St. 3d 327, 331,

995 N.E.2d 228, 232-33 (2013), states that "[p]rotests against a person who files a declaration of candidacy for party nomination must be in writing, must be filed by a qualified elector of the same political party who is eligible to vote in that primary election …." (Emphasis added).

58. The burden rests on the elections board to satisfy these requirements, and when it fails to do so its action is rendered improper under § 3513.05. State ex rel. Yeager v. Richland County

Board of Elections, 136 Ohio St. 3d 327, 331, 995 N.E.2d 228, 232-33 (2013) ("The board has presented no evidence that an elector filed a protest meeting these requirements against Yeager's candidacy.").

59. No court in Ohio has ruled that § 3513.05 allows electors who do not participate in primaries to automatically enjoy standing to challenge candidates in political primaries of their choosing.

60. In State ex rel. Linnabary v. Husted, 138 Ohio St. 3d 535, 8 N.E.3d 940 (2014), the Court did not accept the Secretary's argument that unaffiliated voters -- those who had not voted in any party's primary in the previous two elections -- could automatically protest a candidate in any party primary.

61. In State ex rel. Davis v. Summit County Board of Elections, 137 Ohio St.3d 222, 998

N.E.2d 1093 (2013), the Ohio Supreme Court observed that whether a voter remains a member of a political party is a fact-based decision. See also id. at 229, 998 N.E.2d at 1099 (O'Donnell,

J., dissenting) ("Whether a candidate has disaffiliated from a party in good faith thus requires a fact-based determination.").

62. In State ex rel. Stevens v. Fairfield County Board of Elections, 152 Ohio St. 3d 584, 589,

99 N.E. 376, 382 (2018), the Court stated: "Party affiliation in Ohio is purely a matter of self- identification, and that self-identification is subject to change."

63. Under Ohio law, because a protester's party membership "is purely a matter of self- identification," one cannot automatically conclude as Respondent did here that a voter who has not voted in a party primary within the last two years is necessarily a member of any political party for purposes of the protest provision found in O.R.C. § 3513.05.

64. Under Ohio law, whether Mr. Duus was qualified to file the protest against Relator "is purely a matter of [his] self-identification."

65. Mr. Duus nowhere in his written protest identified himself as a member of the Libertarian

Party; no records of any sort identify him as a member of the Libertarian Party; and he did not appear to testify as to his membership in any political party.

Due Process of Law

66. Section 3513.05 itself "does not mandate specific procedures or formalities that a board of elections must follow in hearing a protest." State ex rel. Emhoff v. Medina County Board of

Elections, 153 Ohio St.3d 313, 323, 106 N.E.3d 21, 32 (2018).

67. According to Ohio's Secretary of State, however, "[b]oth the protestor and the protested candidate, or their respective legal counsel, will have the opportunity to address the board or

Secretary of State’s hearing officer at the hearing." Office of the Ohio Secretary of State, 2019

Ohio Requirement Candidate Guide 31.

68. Due process, moreover, requires fundamentally fair procedures whenever a life, liberty or property interest is at stake.

69. Ballot access in Ohio is a protected liberty interest. See Schmitt v. Husted, 363 F.

Supp.3d 842, 848 (S.D. Ohio 2019) (holding that liberty interest in ballot access exists in Ohio).

70. "The fundamental requisite of due process of law is the opportunity to be heard."

Grannis v. Ordean, 234 U.S. 385, 394 (1914).

71. This fundamental requisite includes the right to challenge evidence and to present evidence when fundamental fairness so requires. See Goldberg v. Kelly, 397 U.S. 254, 268

(1970) ("a recipient is not permitted [under state law] to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures.").

72. Categorically and absolutely refusing a candidate's request to present evidence and demand to challenge evidence, as Respondent did here, violates fundamental fairness and due process of law.

First Claim for Relief: Respondent's Belated Post-Primary Notice, Hearing and Decision Violated §§ 3513.05 and 3513.02.

73. Relator incorporates herein the foregoing paragraphs.

74. Respondent's May 9, 2019 notice of the hearing to "hear facts and render a decision on the Robert Bender Protest matter" was not mailed for more than two months after the protest had been filed on February 22, 2019 and not until after the May 7, 2019 primary had already taken place.

75. Respondent's initial May 28, 2019 hearing to "hear facts and render a decision on the

Robert Bender Protest matter" was not scheduled for more than three months after the protest

13 had been filed on February 22, 2019 and not until after the May 7, 2019 primary had already taken place.

76. Respondent's June 3, 2019 decision to remove Relator from the May 7, 2019 primary ballot and thereby also remove him from the November 5, 2019 general election ballot did not occur for more than three months after the protest had been filed on February 22, 2019 and not until after the May 7, 2019 primary had already taken place.

77. Respondent's notice, hearing dates, and decision date were all issued after the May 7,

2019 primary had taken place and after Relator had been certified under O.R.C. § 3513.02 as the nominee of the Libertarian Party and after the May 7, 2019 primary had already taken place.

78. Respondent's belated notice, hearing dates and decision date separately and collectively violated O.R.C. § 3513.05's requirement that protests be promptly resolved before, and not after, primaries (whether contested or not).

79. Respondent's belated removal of Relator from the May 7, 2019 primary ballot and its belated revocation of his certification as the Libertarian Party nominee for the City of

Reynoldsburg, Ohio, City Council, Ward 3, violates O.R.C. § 3513.02.

80. Respondent has a clear legal duty pursuant to R.C. § 3513.05 to promptly notice, schedule and decide matters surrounding protests before primary elections, and a clear legal duty pursuant to O.R.C. § 3513.02 to certify Relator as the Libertarian Party nominee for City of

Reynoldsburg, Ohio, City Council, Ward 3 seat at the time of the general election.

81. Relator has a clear legal right under O.R.C. § 3513.02 and O.R.C. § 3513.05 to have

Respondent certify his candidacy as the Libertarian Party nominee for the City of Reynoldsburg,

Ohio, City Council, Ward 3 seat at the time of the general election.

82. Relator has no plain or adequate remedy at law in the absence of the issuance of a writ of mandamus.

Second Claim for Relief: Respondent's Categorical and Automatic Conclusion That Protester had Standing As a Matter of Law Violated § 3513.05.

83. Relator incorporates herein the foregoing paragraphs.

84. Section 3513.05 requires that a protester be a "qualified elector of the same political party" as the protested candidate.

85. The burden of establishing that a protester satisfies this requirement is placed on

Respondent.

86. "Party affiliation in Ohio is purely a matter of self-identification, and that self- identification is subject to change."

87. No evidence was introduced at the hearing demonstrating that the ostensible protester of

Relator self-identified as a member of the Libertarian Party.

88. No records were introduced at the hearing demonstrating that Relator was ever or now is a member of the Libertarian Party, let alone that he identifies himself as a member of the

Libertarian Party.

89. No evidence was introduced at the hearing tending to establish that the ostensible protester of Relator is even the person he claimed to be in his written protest.

90. There being no evidence that the protester who challenged Relator was or is a member of the Libertarian Party, the protest was improper under O.R.C. § 3513.05.

91. In the absence of proper standing, the protester had no legal right to protest Relator and

Respondent had no legal right to entertain the protest.

92. Respondent has a clear legal duty pursuant to O.R.C. § 3513.05 to dismiss protests filed by those who do not have standing under O.R.C. § 3513.05.

93. In the absence of a proper protest, Relator has a clear legal right under O.R.C. § 3513.02 and O.R.C. § 3513.05 to have Respondent certify his candidacy as the Libertarian Party nominee for the City of Reynoldsburg, Ohio, City Council, Ward 3 seat at the general election.

94. Relator has no plain or adequate remedy at law in the absence of the issuance of a writ of mandamus.

Third Claim for Relief: Respondent's Refusal to Allow Relator to Present or Challenge Evidence Violated Due Process.

95. Relator incorporates herein the foregoing paragraphs.

96. Respondent's refusal to allow Relator to present evidence in support of Relator's case and

Respondent's refusal to allow Relator to question the evidence relied upon by Respondent was fundamentally unfair under the circumstances of this case.

97. A key question in this case was whether the protester was or is a member of the

Libertarian Party.

98. Whether the protester was or is a member of the Libertarian Party under Ohio law is a fact-bound question that centers on the protester's self-identification.

99. The protester's absence from both the May 28, 2019 and June 3, 2019 hearing, coupled with Respondent's conclusive presumption that the protester was a member of the Libertarian

Party, made it impossible for Relator to address this key factual question in the case.

100. Respondent repeatedly refused at the May 28, 2019 and June 3, 2019 hearings to call the protester or allow the Relator to call the protester as a witness to question his party membership.

101. Respondent's refusal to allow Relator to present any evidence at all prevented Relator from presenting evidence tending to show that the protester is not a member of the Libertarian

Party.

102. Respondent's refusal to allow Relator to present evidence prevented Relator from inquiring whether the ostensible protester was even who he claimed to be.

103. Respondent's refusal to allow Relator to present evidence prevented Relator from introducing evidence tending to show that the signatures supporting Relator's nominating petition were correct and accurate.

104. Respondent's prohibitions denied to Relator his fundamental right to be heard in violation of Due Process under both the Ohio Constitution and the United States Constitution's Fourteenth

Amendment.

105. Respondent has a clear legal duty pursuant to Due Process to conduct fundamentally fair hearings that comply with O.R.C. § 3513.05.

106. Relator has a clear legal right under O.R.C. § 3513.05 to a fundamentally fair hearing that is consistent with Due Process and complies with O.R.C. § 3513.05.

107. Because Respondent's action rendered Relator's hearing fundamentally unfair in violation of Due Process and O.R.C. s 3513.05, Respondent's disqualification of Relator's candidacy is void and Respondent has a clear duty to restore Relator to both the primary ballot and the general election ballot.

108. Relator has no plain or adequate remedy at law in the absence of the issuance of a writ of mandamus.

PRAYER FOR RELIEF

WHEREFORE, Relator respectfully prays that the Court issue a Writ of Mandamus ordering Respondent to again Certify Relator’s candidacy as the Libertarian Party nominee for the office of City of Reynoldsburg, Ohio, City Council, Ward 3 seat at the November 5, 2019

17 general election; assess the costs of this action against Respondent; award Relator attorney's fees and expenses; and award such other relief that it deems just and proper.

Respectfully submitted,

/s Mark R. Brown

Mark R. Brown (#81941) 303 East Broad Street Columbus, OH 43215 Tel: (614) 236-6590 Fax: (614) 236-6956 E-mail: [email protected]

Mark G. Kafantaris (#80392) 625 City Park Avenue Columbus, Ohio 43206 Tel: (614) 223-1444 Fax: (614) 300-5123 E-mail: [email protected]

Counsel for Relator

ATTACHMENT 1

ATTACHMENT 2 1700 Morse Road Columbus, Ohio 43229

http://Vote.FranklinCountyOhio.gov

BOARD OF ELECTIONS (614) 525-3100 (614) 525-3489 FAX

BOARD MEMBERS: Douglas J. Preisse, Chairman  Bradley K. Sinnott, Esq.  Kimberly E. Marinello  Michael E. Sexton

Edward J. Leonard, DIRECTOR David R. Payne, DEPUTY DIRECTOR

March 4, 2019 Robert Bender II 8094 Adams Ave Reynoldsburg, OH 43068

Mr. Bender,

A protest against your candidacy for the Reynoldsburg City Council-Ward 3 has been filed with the Franklin County Board of Elections in accordance with R.C. 3513.05.

Enclosed, please find a copy of the protest filed by John H. Duus, a qualified elector residing at 7856 Slat Ridge Blvd, Reynoldsburg, OH 43068. You will be notified once a date is set for hearing the protest.

In the meantime, please contact me at 614-525-3893 if you have any questions.

Sincerely,

Jeff Mackey, Manager Petitions & Campaign Finance

ATTACHMENT 3 1700 Morse Road Columbus, Ohio 43229

http://Vote.FranklinCountyOhio.gov

BOARD OF ELECTIONS (614) 525-3100 (614) 525-3489 FAX

BOARD MEMBERS: Douglas J. Preisse, Chairman  Bradley K. Sinnott, Esq.  Kimberly E. Marinello  Michael E. Sexton

Edward J. Leonard, DIRECTOR David R. Payne, DEPUTY DIRECTOR

May 9, 2019 Robert Bender II 8094 Adams Ave Reynoldsburg, OH 43068

Mr. Bender,

Enclosed, please find a copy of the protest filed by John H. Duus, a qualified elector residing at 7856 Slate Ridge Blvd, Reynoldsburg, OH 43068.

Please contact me at 614-525-3893 if you have any questions.

Sincerely,

Jeff Mackey, Manager Petitions & Campaign Finance

ATTACHMENT 4

ATTACHMENT 5 Page 1 of 3

303 East Broad Street Columbus, OH 43215

May 28, 2019

Franklin County Board of Elections 1700 Morse Road Columbus, OH 43229 E-mail: [email protected]

Dear Board of Elections:

The Board's Official Notice states that it is prepared at this meeting to "hear facts and render a decision on the Robert Bender Protest matter." That Protest was filed on February 22, 2019 and by its terms sought to prevent Robert Bender from participating as a candidate in the May 7, 2019 primary. The May 7, 2019 primary has passed and the Board's present action violates "clearly established law," according to the Ohio Supreme Court.

This Board has no jurisdiction nor authority at this late date to entertain this Protest. Section 3513.05 of the Ohio Revised Code states that "[u]pon the filing of the protest, the election officials with whom it is filed shall promptly fix the time for hearing it, and shall forthwith mail notice of the filing of the protest and the time fixed for hearing to the person whose candidacy is so protested." The Board in this matter did not "promptly" fix the time for hearing the Protest.

Further, and more importantly, in State ex rel. Yeager v. Richland County Board of Elections, 136 Ohio St. 3d 327, 330, 995 N.E.2d 228, 232-33 (2013), where a local elections board sought to consider a Primary protest after the primary election, the Ohio Supreme Court ruled that "clearly established law" prohibited the elections board from doing so:

R.C. 3501.39(B) imposes a time limit upon the board's ability to invalidate petitions.

[A] board of elections shall not invalidate any declaration of candidacy or nominating petition under division (A)(3) of this section after the sixtieth Page 2 of 3

day prior to the election at which the candidate seeks nomination to office, if the candidate filed a declaration of candidacy, or election to office, if the candidate filed a nominating petition.

The 60th day before the May 7, 2013 primary was March 8, 2013. After March 8, 2013, R.C. 3501.39(B) deprived the board of elections of authority to invalidate Yeager's petition under R.C. 3501.39(A)(3). Whitman v. Hamilton Cty. Bd. of Elections,97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 19.

The local elections board argued in that case that § 3501.39 did not apply because the candidate at issue was not challenged in the primary. The Court disagreed:

The board's argument is inconsistent with the plain language of the statute. R.C. 3501.39(B) clearly states that if a candidate files a declaration of candidacy, a board of elections shall not invalidate a declaration of candidacy or nominating petition under section (A)(3) after the 60th day “prior to the election at which the candidate seeks nomination.” (Emphasis added.) The election at which Yeager sought nomination was the May 7, 2013 primary, not the November 5, 2013 general election. The statute contains no language allowing the board to fix a new deadline in the event the primary is not required.

136 Ohio St.3d at 330-31, 995 N.E.2d 228, 232-33.

In Yeager, the Board attempted to act on its own motion, without a protest having been filed. That did not matter to the Ohio Supreme Court, which ruled even acting on its own the Board's action violated clearly established law. It relied on Whitman v. Hamilton County Board of Elections, 97 Ohio St. 3d 216, 219, 778 N.E.2d 32, 35 (2002), where the Ohio Supreme Court stated that whether following a protest or on its own motion, the time limitations in § 3501.39 apply: