Summit County - Ohio Secretary of State

JENNIFER BRUNNEROHIO SECRETARY OF STATE180 East Broad Street, 15'" floorColumbus, Ohio 43215-3726 USATel.: 1-614-466-2655Fax: 1-614-644-0649www.sos.state.oh.usOctober 5, 2007Bryan C. Williams, DirectorSummit County Board of Elections470 Grant St.Akron, Ohio 44311-1157Re: Tie Votes on Candidate for City of Barberton Law DirectorDear Director Williams:On October 4, 2007 I received a package sent by your office providing information andarguments on a tie vote by the members of the Summit County Board of Elections ("the Board").My analysis and decision are below.INTRODUCTIONThe tie vote raises the question whether or not Edna J. Boyle is affiliated with a political partyand how such status affects whether she may run for office as an independent candidate.FACTSOn September 10, 2007, Edna J. Boyle timely filed a nominating petition to seek election to theoffice of Cityof Barberton Law Director at the November 2007 general election.On September 25, 2007, Dan Whitaker timely filed a protest against the candidacy of Ms. Boyle,asserting that she is affiliated with the Republican party, and so, cannot run as an independentcandidate under Morrison v. Colley, 467 F.3d 503 (6th Cir. 2006), and Ohio Secretary of StateAdvisory 2007-05.MOTIONSAt a meeting of the Board on September 25, 2007, Member Arshinkoff moved to "approve" thepetition in question. Member Morrison seconded the motion. Members Arshinkoff andMorrison voted in favor of the motion. Chairman Jones and Member Gorbach voted against themotion.

Summit Board of ElectionTie Votes on for of Barberton LawARGUMENTSMembers Arshinkoff and Morrison argue that the Ms. Boylehas done everything that she can dounder the law to disaffiliate herself from the Republican party with which she was formerlyaffiliated, and so, passes the legal test for independence under Morrison and Advisory 2007-05.Chairman Jones and Member Gorbach argue that Ms. Boyle is affiliated with the RepublicanParty and cannot run as independent candidate under Morrison and Advisory 2007-05.DISCUSSIONThis tie vote is properly before me pursuant to R.C. § 3501.11(X) and Appendix G of the ElectionOfficial Manual for Ohio County Boards of Elections.The municipal charter for the City of Barberton, Ohio provides that the general laws of Ohioprevail with regard to nominations for office.R.C. 3501.39 provides:If a petition is filed for the nomination or election of a candidate ina charter municipal corporation with a filing deadline that occursafter the seventy-fifth day before the day of the election, a board ofelections may invalidate the petition within fifteen days after thedate of that filing deadline. R.C.3501.39(C)(1).The general election at which Ms. Boyle seeks election will occur on November 6, 2007. Theseventy-fifth day prior to that election was August 23, 2007. The filing deadline for Ms. Boyle'snominating petition was September 10, 2007, the day before the primary election in Barberton,and well after the seventy-fifth day before the election. The protest was filed, and the Board tiedon the protest on September 25, 2007, the fifteenth day after the filing deadline.Under R.C. 3513.01, Morrison, and Advisory 2007-05, an independent candidate must declarethat she is not affiliated with any political party and must make that claim in good faith. InAdvisory 2007-05, I stated that if an independent candidate is on a central or executivecommittee of a political party when she files her nominating petition or becomes a member ofsuch committee during her candidacy, or if she votes in a party primary the day after she filesher nominating petition, those actions are prima facie evidence that the claim of no affiliation isnot in good faith. Absent either of those two clear indicia of party affiliation, a board must takeinto consideration all evidence presented or available that tends to indicate affiliation or noaffiliation, and decide whether or not the candidate in question is actually not affiliated with apolitical party such that she may be an independent candidate.Here, there is no prima facie evidence of party affiliation as is set forth in Advisory 2007-05.After reviewing the transcript of the Board meeting at which this tie vote occurred, it is clear thatthe Board did not vote to hold a separate hearing on this matter as it did in the Cuyahoga FallsMunicipal Court Clerk tie vote also decided today. Such a hearing would have provided Ms.Boyle an opportunity to be heard and offer additional evidence in support of her non-affiliationwith the Republican Party. The Board has requested that I break this tie vote on the ultimateissue of the validity of Ms. Boyle's candidacy rather than on whether or not to further hear thematter. Under other circumstances where the election cycle of the primary and general

Summit Coustv Beard ofElectionPage 3 of3Tie Vote on Candidate for ofBarberton Law Director~-----......;,.;.------elections permitted for more time between the two elections, I would be inclined to refrain frombreaking the tie vote and advising the Board to hold such a hearing. However, in light of theimpending November 6, 2007 election and the fact that the Board is faced with preparingabsentee ballots that were required by law to be mailed beginning on October 2, 2007, I will notorder further hearing on the matter and determine the matter on the evidence presented to meby the Board.The evidence shows that Ms. Boyle voted a Republican ballot in May 2006, September 2005,March 2004, September 2004, May 2002, September 2001, March 2000, September 1999, andMay 1998. The evidence does not indicate whether or not Ms. Boyle voted a party ballot inSeptember 2007, and voting history, alone, is not sufficient to determine party affiliation underAdvisory 2007-05.The evidence also shows that Ms. Boyle donated to both the state and Summit CountyRepublican parties in both 2006 and 2007.Chairman Jones and Member Gorbach indicate that Ms. Boyle was a Republican candidate fornomination in the race for Judge of the 9 th District Court of Appeals in 2006. For that racealone, Ms. Boyleaccepted $40,000 from the Summit County Republican Party.All four Board members agree that Ms. Boyle was the Republican Director of the Board severalyears ago, and that former Republican Governor Bob Taft appointed her to a judgeship.In the face of such evidence tending to indicate that Ms. Boyle is affiliated with the RepublicanParty, I find no contradictory evidence of any affirmative act to indicate disaffiliation other thanfiling a nominating petition as an independent candidate.Because the evidence provided overwhelmingly indicates that Ms. Boyle is actually affiliatedwith the Republican Party I cannot vote to certify her nominating petition to be an independentcandidate under Morrison and Advisory 2007-05.DECISIONFor the reasons stated above, I vote with Chairman Jones and Member Gorbach, AGAINST themotion to certify the nominating petition of Edna J. Boyle.Sincerely,g .. .;4Jennifer Brunnert£.-¥._