^ -. IN THE SUPREME COURT OF 01110 STATE ex rel. STEVEN LINNAI3ARY Case No. 14-359 Relator, vs. JON HUSTED Respondent. Original Action in Mandamus Expedited Election Case Under S.Ct.Prac.R. 12.08 RELATOR'S MOTION FOR RECONSIDERATION Mark G. Kafantaris (#80392 625 City Park Avenue Columbus, Ohio 43206 Tel: (614 223-1444 Fax: (614 300-5123 E-mail: mark!cr^kafantaris.com Mark R. Brown (#81941 303 East Broad Street Coluznbus, OFT 43215 Tel: (614 236-6590 Fax: (614 236-6956 E-mail: mbrownnqlaw.capita1.edu Counsel for Relator Michael DeWine Attorney General of Ohio Eric E. Murphy (#83284 State Solicitor - Counsel of Record Stephen P. Carney (#63460 Deputy Solicitor Kristopher J. Armstrong (#77799 Assistant Attorney General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 Tel: (614 466-8980 Fax: (614 466-5087 E-mail: eric.nlurh'a.ohioattorneygeneral o_v Counselfor Respondent APR 13 "3 20114 CLERK OF PO^^^T SUPREME COUR r OF O^^^
RELATOR'S MOTION FOR RECONSIDERATION Relator, Steven Linnabary, moves the Court for reconsideration of its decision of April 3, 2014 denying him a writ of mandamus pursuant to S.Ct.Prac.R, 12.08(B. Relator specifically requests that the Court reconsider the issue of Mr. Akers' standing. The Court found that it need not resolve this thorny question insofar as R.C. 3501.39(A allows Respondent to accept petitions unless "(3 the candidate's candidacy or the petition violates the requirements of this chapter, Chapter 3513 or the Revised Code, or any other requirements establislied by law." State ex r el. Linnabcziy v. Husted, Slip Opinion No. 2014-Ohio-1417, ',118, 19. But Respondent had already fulfilled this obligation when he certified Relator's candidacy as the Libertarian candidate for the Office of Attorney General of Ohio. It was only in the context of a protest that Respondent reconsidered his earlier decision and removed Relator from the ballot on the grounds raised exclusively by Mr. Akers. This is because Respondent does not enforce the employment disclosure unless a protest is filed. Relator's Exhibit G at -9. This is so, remarkably, even when Respondent knows that R.C. 3501.38(E(1 has been clearly violated or is incomplete. Icl. It is no wonder Respondent has never had occasion to invalid part-petitions on this basis until this very protest. And this is consistent with the directives of Respondent's predecessors who specifically instructed boards of election not to invalided part-petitions because the employment disclosure was incomplete. See Ohio Secretary of State Directive 2006-58 (Instructions for Examining State Issue Petition Papers (Aug. 21, 2006, at page 3 of 5 ("Do not invalidate a. part-petition if the employer infornnation statemertt... is blank or incomplete, does not match or correspond with the information provided by 2
the circulator in the compensatioii statement, or is otherwise improperly filled out."; Directive 2007-14 (Sept. 10, 2007 (Instructions for Exarnining State Issue Petition Papers, at page 3 of 5 (same. i1^tr. Damschroder explained that Respondent has "taken a different approach as it relates to communicating instructions to the boards of elections." Relator's Exhibit G at 14. Instead of issuing different directives for the review of each petition that's filed, as was done byrespondent's predecessors (see e.g. Directives 2006-58 and 2007-14 only one directive is issued that goverrzs all of the petitions. Id. Mr. Damschroder could not recall the number of that directive but nonetheless testified that the instructions contained in Directives 2006-58 and 2007-14 were, in spirit, the same as in the omnibus directive he was referring to. Id. at 15. Thus, while Respondent's earlier directives may not have been in force, it's clear from Mr. Damschroder's testimony that the policy remained not to invalidate part-petitions that contained blank or incomplete employment disclosures. The only time R.C. 3501.38(E(1 has ever been enforced against a candidate, Mr. Damschroder acknowledged, is now with Gregory Felsoci's protest against Charlie Earl and Mr. Akers' protest against Relator. Consequently, identical candidates who use the same circulator, Mr. Damschroder admitted, will see disparate applications of R.C. 3501.38(E(1. Id. at 12. One wheis protested, like Relator, is removed from the ballot; the other who is not is allowed to compete in the election. Id.. Respondent's litigation-position before this Court, that it can and must enforce violations of R.C. 3501.38(F_,(1 even in the absence of a protestor with proper standing pursuant to R.C. 3501.39(A(3, also directly contradicts Mr. Damschroder's testimony that "the duty of the Secretary is to aggregate the results of the valid and 3
invalid signatures." Id. at 9. Pressed by Judge Watson about how Respondent could enforce a law in the context of protest that he did not enforce on his own, Mr. Damshroder reiterated: "... the duty of the secretary in statewide candidates and on statewide issue petitions is to aggregate the information from the boards of elections. We don't conduct any review, pro forma or otherwise, of the individual partpetition.s." Id. at 47. But Judge Watson was still perplexed and asked "so it's at the whim of somebody brining a protest to determine whether or not Ohio election law is enforced? Id. at 47-48. Mr. Damshroder's response is even more telling: "I would say that it's up to a protestor to decide whether or not the protestor believes there would be enough invalid signatures to overturn the secretary's aggregation results froin the boards of elections." AZ Respondent's chief elections officer could not have been clearer: Respondent merely aggregates part-petitions and does not enforce the employment statute unless a protestor decides to bring the protest. To the extent R.C. 3501.39(A(3 allows Respondent to enforce the employment disclosure and invalidate the part-petitions on this basis alone, it appears that Respondent has delegated entirely this duty to protestors. The result is that a protest is the sine qua non of R.C. 3501.38(E(1'senforcement.. The procedural posture of this case, together with the fact that no other candidate has ever been disqualified on this basis until now, confirnis as much. Respondent's position, as adopted by the Court, that he could have enforced the employment statute himself after his earlier certificatioti of Relator's candidacy upon learning of the purported illegality alleged by Mr. Akers, regardless of standing, renders the party affiliation language in paragraph 13 of R.C. 3513.05 meaningless. If anyone can alert Respondent to a deficiency that he himself overlooked, it makes 4
little sense for the legislature to have required that a "member of the same political party" bring the protest. After all, R.C. 3501.39 and R.C. 3513.05 have never allowed a protestor to challenge something that could not have been independently enforced by Respondent. They merely allow a protestor to allege deficiencies that are squarely the province of Respondent. At best, Respondent could have enforced R.C. 3501.38(E(1 himself but chose not to do so when he certified Relator's candidacy. Mr. Damshroder's testimony establishes that Respondent will only do so when faced with a protest, and this is the case even wlien Respondent knows that the employment disclosure has not been complied with. Relator's Exhibit G at 8-9. Relator will not rehash the ultimate issue of wl ether Mr. Akers has standing to protest his candidacy insofar as it has already been fully briefed by the parties. He incorporates his argument oty this point from his merit brief as if fully rewritten hereizi. 1V1-IEREFGRE, Relator prays that the Court reconsider its decision and issue a writ of mandamus compelling Respondent to restore him to the May 6, 2014 primary. 5 Respectfully submitted, A^ Mark G. Kafantaris (#8032 625 City Park Avenue Columbus, Ohio 43206 'Tel: (614 223-1444 Fax: (614 300-5123 E-mail: mark^c^kafantaris.com Mark R. Brown (#81941 303 East Broad Street Columbus, (J:H 43215 Tel: (614 236-6590 Fax: (614 236-6956 E-mail: mbrownlajaw.cavital.edu Coun.sel for Relator
CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing will be served by electronic mail on the date of filing to Eric iviurphy, Counsel for Respondent, at eric.mujphv@ohioattorneyg^ eergov; and John Zeiger, Counsel for Amicus Curie Gregory Felsoci, at zeiger(a-litohio.com, pursuant to S.Ct.Prac.tt.. 12.08(C. Mark G. Kafantaris ---- 6