arrowSection 5.3 - Recounts and Other Remedies

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Ohio Election Contest Procedure

Purpose of Election Contest

An election contest is the specific statutory remedy for the correction of all errors, mistakes, or frauds that may occur in the process of determining and declaring the true expression of the public will as expressed at the voting booth. 1  An election contest is the vehicle to determine which candidate or issue received the highest number of legal votes 2  or to challenge the ballot language if the assertion is that the language was misleading or improper. 3  In contrast, an election contest is not appropriate to challenge a candidate’s qualifications or eligibility. In that instance, an election protest under Ohio Revised Code chapter 3513.15 should be used. 4 

Election Contest Procedure

It is well settled that the power of courts to intervene in election matters is limited. An election result will not be disturbed unless it is shown to be contrary to the will of the electorate. 5  Consequently, the procedures prescribed for election contests are specific and exclusive. 6  As the Ohio Supreme Court just reiterated in Maschari v. Tone, 7  “the procedures prescribed by statute, to invoke a court’s jurisdiction to hear such an action, must be strictly followed.” These procedures are outlined in chapter 3515.08—.16 of the Ohio Revised Code.

The Forum.—The nomination or election of any person to public office, or party position, or the approval or rejection of any issue submitted to the voters, may be contested by qualified electors of the state or political subdivision. For statewide offices or issues, members of Congress, or judicial offices higher than the Court of Common Pleas, an election contest is heard and determined by the Chief Justice of the Supreme Court. 8  With the exception of judicial offices, contests for all other offices and issues are heard and determined by a judge of the Court of Common Pleas of the county in which the contest arose. Contests for a judicial office within a county are heard by the Court of Appeals of the district in which the county is located. R.C. 3515.08.

The Petition.—An election contest is started by filing a petition that sets forth the grounds for the contest with the clerk of the appropriate court. R.C. 3515.09. The petition must be signed by at least 25 voters who voted at the last election for or against the candidate or issue being contested, or by the defeated candidate. The petition must be filed within 15 days after the results of the election have been “ascertained and announced by the proper authority” or if there is a recount within 10 days after the results have been ascertained and announced. R.C. 3515.09. On October 5, 2004, the Ohio Supreme Court held in Maschari that “ascertained and announced” in this statute refers to certification of election results under R.C. 3513.22. 9  The petition must not only be timely, but must be verified by the oath of at least two petitioners or the defeated candidate. The petition must also be accompanied by a surety bond approved by the clerk of the appropriate court sufficient to cover the costs of the contest. 10  R.C. 3515.09. The failure to comply with the provisions of 3515.09 denies a court jurisdiction over the proceeding. 11 

The Hearing-Scheduling Requirement.—Under R.C. 3515.10, the court in which the petition is filed must schedule a hearing on the contest not less than 15 nor more than 30 days after the filing of the petition. The contestee has 10 days from the time of service to answer the petition; the contestor has five days to reply to the contestee. Adherence to the timing schedule is critical. 12  Compliance with the hearing-scheduling requirement for an election contest is jurisdictional. Where a trial date of an election contest is not set within 30 days after the filing of the petition and no request is made for scheduling the hearing within that period, the court lacks jurisdiction to proceed. 13  Consequently, contestors have an obligation to make some effort to have the hearing commenced or completed within the 30-day period set forth by R.C. 3515.10. For example, the Ohio Supreme Court held in Helms v City of Green that a layperson’s telephone call to the clerk’s office asking why a hearing had not been scheduled was insufficient to avoid dismissal because the contestor never requested that a hearing be scheduled within the 30-day window and acquiesced to a hearing date outside the time requirement. 14 

The Trial.—At trial of an election contest, proceedings are to be as similar to other judicial proceedings as possible. The court—without a jury—hears and determines the matter. R.C. 3515.11. The court has the power to order or permit amendments to the petition and allow adjournments not to exceed 30 days after the original hearing date. R.C. 3515.11. Additionally, the court may summon and compel the attendance of witnesses, including election officers. R.C. 3515.12. The court can also compel the production of ballots, ballot boxes, tally sheets, and other materials. R.C. 3515.12.

At trial, the contestor’s burden of proof is high. Every reasonable presumption should be indulged in favor of upholding the validity of an election. 15  To prevail in an election contest, the contestor must prove by clear and convincing evidence that one or more election irregularities occurred and that the irregularities affected enough votes to change or make uncertain the result of the election. 16  “Clear and convincing evidence” is a degree of proof that provides the trier of fact with a firm belief or conviction as to the facts sought to be established. It is more than a mere preponderance of evidence but not to the extent of such certainty as is required in criminal cases with “beyond a reasonable doubt.” 17 

Election Contests Involving Recounts

Revised Code 3515.13 allows a court to order a recount in an election contest and outlines specific procedures to be followed. 18  If an election contest involves a recount of ballots in any precinct, the court shall immediately order that the ballots be sent to the court and appoint two master commissioners of opposite political parties to supervise making the recount. Both the contestor and contestee may appoint one inspector who is allowed to see all the ballots and tally sheets and witness the recount. If the court finds that the difference in the vote count was the result of fraud, gross negligence, or willfulness on the part of any election officer or other persons, the court will transmit a copy of its decision and the evidence to the prosecuting attorney of the county where the fraud was found with directions to present to the next grand jury. R.C. 3515.13.

Election Contest “in the supreme court”?

Despite the simplicity of R.C. 3515.08, it is unclear from recent reported cases whether election contests of statewide offices or members of Congress are heard by the Chief Justice alone or by the entire Ohio Supreme Court. For example, in Modarelli v. Carney, 19  losing congressional candidates filed an election contest petition with the Chief Justice under R.C. 3515.08, who later dismissed the petition for lack of jurisdiction for failure to file the required surety bond. Contestors appealed to the full Supreme Court. The full court then dismissed the appeal on the grounds that there was no statutory authorization to review the rulings of the Chief Justice in an election contest. 20 

The history of In re Election of November 6, 1990 for the Office of Attorney General of Ohio, however, is murkier. According to Chief Justice Moyer, the cause originated “in this court” with the filing of an election contest petition. 21  The Chief Justice appears to have made several pretrial rulings alone. 22  The Chief Justice wrote the reported opinion on the merits concluding that the contestor had not met the burden of proof. However, he was joined by five other justices, with one justice not participating. 23  In a later dispute over the return of the surety bond, the Chief Justice again wrote for the court, three justices joined, one did not participate, and two joined in a separate opinion concurring in part and dissenting in part. 24  It appears from the history of this case that the Chief Justice may have decided pretrial motions unilaterally, but that the full court decided the contest at trial and post-trial motions.

Revised Code 3515.16, entitled “Testimony in supreme court,” further clouds the issue. It provides that in an election contest “in the supreme court,” all testimony shall be in the form of depositions. R.C. 3515.16. The contestor has 20 days from the petition filing to take and file his testimony unless “further time is allowed by the court or judge hearing the contest.” The contestee has 20 days from the expiration of the contestor’s time. 25  Revised Code 3515.16 further provides that: “[t]he court may render such judgments and make such orders as the law and facts warrant, including judgment of ouster and induction, and the judgment of the supreme court shall be decisive of the contest.” R.C. 3515.16. This section of the Revised Code appears to contemplate actions originating in the Supreme Court with multiple references to the “supreme court,” “filing the petition,” and “court or judge hearing the contest,” despite R.C. 3515.08 providing only for certain contests to be heard by the Chief Justice, not the Supreme Court.

Judgment and Appeal

Upon completion of the trial of an election contest, the court pronounces judgment as to which candidate was nominated or elected or whether an issue was approved or rejected by the voters. In the case of a contest involving a member of the general assembly, however, a transcript of all testimony and evidence is filed with the clerk or executive secretary of the branch of the legislative body to which the contestee was declared elected, which shall determine the election and qualifications of its own members. R.C. 3515.14.

Following judgment in an election contest, the person against whom judgment is rendered may appeal on questions of law within 20 days to the Supreme Court. Such appeals do not supercede the execution of the judgment of the court. However, these appeals take precedence over all other causes and should be set for hearing at the earliest convenient date. R.C. 3515.15. The laws and rules of the court governing appeals apply in a contested election case. If the judgment of the lower court is affirmed, the Supreme Court shall order the judgment of the lower court to be enforced, if the party against whom the judgment is rendered is in possession of the office. R.C. 3515.15. Interestingly, the Ohio Supreme Court holds that R.C. 3515.15 does not authorize review of the rulings of the Chief Justice of the Supreme Court in an election contest held pursuant to R.C. 3515.08. 26 

Presidential Election Contest

There is no specific Ohio statute addressing a contest in a presidential election. 27  Presumably, the generally applicable election contest procedure described above would apply. The Ohio statutory scheme, however, makes no reference to the federal statutes governing presidential election contests. This could prove problematic. Under the “safe harbor” provision of 3 U.S.C. § 5, Ohio must reach a final determination of election controversies within 35 days of the presidential election. 28  A quick review of Ohio’s election contest procedure illustrates the problem. A contestor must file the petition within 15 days of the election results being certified (assuming no automatic or requested recount). R.C. 3515.09. Presumably, a contest concerning presidential electors involves a “statewide office” requiring the petition to be filed with the Chief Justice. See R.C. 3515.08. The court must then set the hearing within the 15-to-30-day window of R.C. 3515.10. Even without considering the time delay from election day to certification of results, meeting the35-day safe harbor provision is doubtful. Add to this mix the uncertainty of the 40-day deposition period of R.C. 3515.16 if the contest is “in the supreme court.” Further consider the effect of an appeal—if possible—and the 20-day appellate filing window. Following the Ohio statutory scheme makes compliance with 3 U.S.C. § 5 unlikely. 29 

[Posted: October 12, 2004]

Notes

1. State ex rel. Byrd v. Summit Cty. Bd. of Elections, 417 N.E.2d 1375, 1377 (Ohio 1981).

2. See Portis v. Summit Cty. Bd. of Elections, 621 N.E.2d 1202, 1203 (Ohio 1993) (election contest proper to determine legal vote totals).

3. In re Contested Election of November 2, 1993, 650 N.E.2d 859, 862 (Ohio 1995) (election contest proper to challenge misleading and confusing ballot language).

4. See R.C. 3513.15; see also State ex rel. Kirk v. Wheatley, 12 N.E.2d 491, 493-94 (Ohio 1938) (remedy of quo warranto not election contest was proper to challenge newly-elected county engineer’s qualifications to hold office).

5. In re the Election on the Issue of Zoning the Southeasterly Section of Swanton Twp., 442 N.E.2d 758, 759 (Ohio 1982).

6. In re Election Contest of Democratic Primary Election Held May 4, 1999, 725 N.E.2d 271, 276 (Ohio 2000).

7. 2004 WL ____, 2004-Ohio-5342, at ¶ 10 (Oct. 5, 2004).

8. The Chief Justice of the Supreme Court can assign another justice for this purpose. If the contest involves the office of chief justice, a justice designated by the governor hears the contest. R.C. 3515.08.

9. See Maschari, 2004-Ohio-5342, at ¶ 14. Under R.C. 3513.22, an election result is neither certain nor official until the board of elections completes its canvass of election returns within the date set by the Secretary of State and the board of elections declares the results and certifies abstracts of those results. Id. at ¶ 13.

10. There is little authority on the amount of the required bond. In one election contest involving the Office of Attorney General, a $10,000 bond was posted. This bond proved to be insufficient and the contestor was ultimately ordered to pay an additional $3,355 to the contestee. See In re Election of November 6, 1990 for the Office of Attorney General of Ohio, 62 Ohio St.3d 1420, 1420 (Ohio 1991).

11. See Maschari, 2004-Ohio-5342, at ¶ 10.

12. The court can postpone the hearing for good cause shown by either party by affidavit or adjourn the hearing to a date not more than thirty days thereafter. R.C. 3515.10.

13. Helms v. City of Green, 809 N.E.2d 1141, 1143 (Ohio 2004).

14. See id.

15. Copeland v. Tracy, 676 N.E.2d 1214, 1218 (Ohio 1995).

16. In re Election Contest of Democratic Primary Election Held May 4, 1999, 725 N.E.2d 271, 275 (Ohio 2000).

17. Id.

18. See In re Issue 27 Election of Nov. 4, 1997, 693 N.E.2d 1190, 1192 (Ohio Ct. C.P. Licking Cty. 1998) (ordering a subsequent recount in an election contest under R.C. 3515.13).

19. 381 N.E.2d 1128 (Ohio 1978).

20. See id. at 1129.

21. See In re Election of November 6, 1990 for the Office of Attorney General of Ohio, 565 N.E.2d 824, 824 (Ohio 1991).

22. See id. (ordering preservation of ballots, pollbooks, and counter settings); 567 N.E.2d 243, 243 (Ohio 1991) (limiting scope of preservation order); 567 N.E.2d 243, 244 (Ohio 1991) (denying discovery motions); 567 N.E.2d 984, 984 (Ohio 1991) (overruling partial motion to dismiss).

23. See In re Election of November 6, 1990 for the Office of Attorney General of Ohio, 569 N.E.2d 447, 463 (Ohio 1991).

24. See In re Election of November 6, 1990 for the Office of Attorney General of Ohio, 577 N.E.2d 343, 346-47 (Ohio 1991).

25. This statutory provision seems at odds with the strict timetable set for the election contest hearing. Revised Code 3515.10 requires the court to set an election contest for hearing within thirty days of the filing of the petition. Revised Code 3515.16, however, envisions a forty-day deposition period—already exceeding the hearing-scheduling requirement.

26. Modarelli v. Carney, 381 N.E.2d 1128, 1129 (Ohio 1978).

27. However, as late as 1914, Ohio apparently provided for a commission to hear contests involving presidential electors. See Link v. Karb, 104 N.E. 632, 638 (Ohio 1914) (“For instance, the contest of an election of an elector of the President of the United States shall be heard before a commission consisting of the Governor and four judges of the circuit courts, to be appointed by the Governor; the judgment of this commission is final.”).

28. See Bush v. Gore, 531 U.S. 98, 117 (2000) (concluding whatever process a State adopts to protect due process rights of voters necessarily terminates on the date set by 3 U.S.C. § 5 for concluding the State’s final determination of election controversies).

29. Other commentators concur that compliance with the federal safe harbor provision is unlikely using Ohio’s statutory provisions. See Hugh M. Lee, Does Bush v. Gore’s Promise of Due Process in Federal Presidential Elections Create a Right Without a Remedy?, 13 STAN. L. & POL’Y REV. 53, 71-72 & n.106 (2002) (concluding that the mandatory provisions of an election contest under Ohio R.C. 3515.08—.10 would take more than thirty-five days).