OH Supreme Court Holds Ohio Board of Elections had Authority to Reject Petitions for Referendum and Ballot Initiative

The City Council of Powell, Ohio approved an ordinance for a development plan for property in a business district, and the citizens filed petitions to place on ballot for next election a referendum to block the ordinance from taking effect and an initiative for an ordinance to repeal approved ordinance. Ebersole, the owner of the property subject of the proposed development, filed a protest. The County Board of Elections voted to accept the protest to petitions, so that none of proposed measures were certified for ballot. The citizens petitioned for writ of mandamus to compel Board of Elections to place the referendum and initiative on ballot.

The Court held that to be entitled to a writ of mandamus, relators must establish that (1) they have a clear legal right to have their ballot measures presented to the voters, (2) respondents have a corresponding legal duty to submit the ballot measures to the electors of Powell on November 4, 2014, and (3) relators possess no adequate remedy in the ordinary course of the law. Here, it was clear that the relators possessed no adequate remedy in the ordinary course of the law because the election was very close in time to the complaint. Despite this, relators’ argument that the Powell City Charter did not vest the board of elections with authority to review the substance of a ballot submission failed because R.C. 3501.39(A)(2) states that a board of elections must accept a petition unless a written protest is filed, the board conducts a hearing, and the election officials determine that “the petition violates any requirement established by law.” Even though the relators argued that the Powell charter made no mention of this, the court held that where the charter was silent concerning referendum and initiative procedures, state law would govern.

Accordingly, the court found that the board was within its statutory authority to conduct the protest hearing. The writ was therefore dismissed.

State ex. rel. Ebersole v Delaware County Board of Elections, 20 N.E. 3d 678 (OH 9/19/2014)

The opinion can be accessed at: http://www.sconet.state.oh.us/rod/docs/pdf/0/2014/2014-ohio-4077.pdf