Should William Pace be on the ballot?: Oversight causes controversy
It is written plainly in the City of Dayton Charter Article II Section 7 (F):
“Any person whose name has been submitted for candidacy by any such petition shall file his acceptance of such candidacy with the election authorities not later than 55 days before the day of the primary election or special election, and in the absence of such acceptance the name of the candidate shall not appear on the ballot or voting machines.”
Every petition circulated by candidates for office in the city of Dayton contains space for the names of a five person nominating committee, forty signature spaces for electors, a notary clause for the circulator and a signature line for the candidate to comply with the above provision of the Charter.
William Pace submitted 39 petitions with 951 signatures from electors to the Montgomery County Board of Elections. Of those, 653 signatures were determined by the board to be valid, exceeding the required 500 signatures, thus qualifying Pace for the ballot. Pace submitted his petitions in a timely fashion 60 days prior to the election. Pace signed several of the petitions as circulator. Pace failed, however, to sign any of the petitions accepting the candidacy.
There is no controversy in these facts alone. Pace’s failure to sign the petitions seems to disqualify him. But the petitions were filed 60 days prior to the election on March 8 and Pace had until 55 days before the election to sign the acceptance of candidacy. What happened over those five days is what has now resulted in a legal action before Ohio’s Second District Court of Appeals where Attorney C. Ralph Wilcoxson has asked for a “mandamus” – a court order requiring the Board of Elections to certify Pace as a candidate.
Confusion of facts and law are the stuff of lawsuits. On the factual side, Pace argued that a Board of Elections employee contacted him prior to the 55 day deadline to tell him his petitions had sufficient signature. Another contacted him a day later to ask him how he wanted his name to appear on the ballot. No mention was made of his failure to sign the acceptance.
On that fateful 55th day prior to the election, March 13, the Board of Elections met to officially certify qualifying petitions. Instead of their usual morning meeting, they moved the meeting to 4 p.m., after their offices were officially closed. Only then was it revealed Pace had failed to sign the acceptance.
Pace was made aware of this defect when a reporter called him for comment. He immediately went to the Board of Elections office, which was closed. He then faxed in an acceptance, which the board acknowledged was received around 7:30 p.m. on the evening of March 13.
The board requested an opinion from the city’s law department. John Danish, Dayton’s law director, reported back, “Our charter requires a candidate to file an acceptance of the candidacy, and the word ‘filing,’ I believe under court cases, means physical delivery to a government office and that a facsimile does not qualify.” The board has accepted that opinion as law.
As to why the board failed to notify Pace of the deficiency in earlier calls, the board cited a 2011 directive from the Secretary of State’s office banning them from pre-checking petitions for petitioners who seek review of their petitions’ validity and sufficiency. The board also noted that the candidate is solely responsible for ensuring that his or her own petition satisfies the requirements of law.
Wicoxson argues to the Court of Appeals that the law favors Pace. He opens with this statement: “The right of political parties or candidates to a place on the ballot bears directly on the right of citizens to vote. If parties or candidates are kept off the ballot, their adherents are compelled to vote for representatives other than those of their choice. The denial of a place on the ballot thus constitutes a deprivation of the franchise.”
In papers filed with the court, Wilcoxson noted that voting is a “fundamental political right, because it is preservative of all rights and that our laws bend toward expansion and protection of the right to vote.” Citing other courts, Wilcoxson argued that, “Absolute compliance with every technicality should not be required in order to constitute substantial compliance, unless such complete and absolute conformance to each technical requirement of the printed form serves a public interest and a public purpose.”
As of the writing of this article, I cannot guess what the court’s decision will look like, but I hope all errors are decided in favor of the voters and that they get William Pace as a choice for the May 7 primary ballot.
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.