By RON OSBURN rosburn@bryantimes.com | Aug 5, 2019
The Williams County Board of Elections has declined a request by the Williams County Alliance to forward a letter to the Ohio Secretary of State’s Office protesting the board’s decision to reject the Alliance’s proposed county charter initiative.
In an Aug. 1 letter to the Alliance’s Toledo-based attorney, Terry Lodge, Elections Director A.J. Nowaczyk cited Ohio Revised Code Section 307.94, and a 2017 secretary of state’s directive, in denying the request.
Nowaczyk noted that the Williams County Common Pleas Court on July 17 had rejected the Alliance’s appeal of the elections board’s original decision July 8 rejecting the proposed charter.
The elections board ruled July 8 that though the Alliance had submitted enough valid signatures of registered voters to qualify for the November ballot, based on the county prosecutor’s opinion, language in the proposed charter issue exceeded the scope of the powers afforded to local governments by the state.
Nowaczyk’s Aug. 1 letter states that according to the secretary of state and ORC 307.94, the Alliance could appeal the election board’s July 8 decision either to the secretary of state, or the court, but could not do both.
“The secretary’s reasoning was clear: The plain language of R.C. 307.94 provides petitioners with two ‘mutually exclusive’ avenues for contesting a board’s determination, and the petitioners must choose one — they do not get ‘a second bite at the apple.’
“The protest was improperly filed, and the board cannot accept it,” Nowaczyk’s letter said.
Nowaczyk said he responded based on advice from County Prosecutor Katie Zartman, who in turn told The Bryan Times she offered the advice to Nowaczyk after conferring with the attorneys from McTigue & Colombo LLC, the Columbus-based law firm which was brought in to assist Zartman and successfully argued the county’s case July 17.
In turn, Lodge on July 2 also cited Ohio Revised Code in repeating the request to Nowaczyk, noting that ORC Section 307.95 (C) “requires that on receiving a protest, the elections board must then ‘deliver or mail by certified mail one copy of each protest filed with it to the secretary of state.’
“The statute further requires the (secretary of state), within 10 days after receipt of the protests, ‘to determine the sufficiency or insufficiency of the signatures and the validity or invalidity of the petition.’ There is no option in the statute for a (board of elections) to refuse to accept the filing of a protest,” Lodge’s letter said.
“In our view, the secretary of state is the sole entity that may deny, dismiss or otherwise refuse to process our protest, not the board of elections,” Lodge added.
HOUSE BILL 463
Monday, Nowaczyk answered Lodge’s Aug. 2 letter with a response reaffirming the county election board’s decision not to forward Lodge’s protest letter to the secretary of state.
“Given your clients’ prior choice to have the Williams County Board of Elections file such an action in the Williams County Court of Common Pleas — an action that resulted in the court determining that the petition is invalid — the law bars your clients from filing a protest,” Nowaczyk said Monday.
But Sherry Fleming of the Alliance said the group is pursuing the protest to the Secretary of State’s Office even after the Williams County Common Pleas Court decision because in a 2016 case involving an unsuccessful attempt by residents in Medina County to bring a charter to a vote, the Ohio Supreme Court faulted the Medina group for not pursuing both a court case and a protest with the Secretary of State.
“So, we feel like we have to cover all the bases because of the Supreme Court ruling in that case,” Fleming said.
Zartman suggested that the Alliance can still file an appeal with the Sixth District Court of Appeals. But Fleming said Monday her group has “not even discussed that option yet.”
Fleming said the Alliance is considering a different goal — overturning House Bill 463 at the Ohio Supreme Court. HB 463, approved in January 2017, addressed foreclosure laws, but the legislature added to it two decision-making powers that appear unrelated to foreclosure law. However, they also appear important because they form the basis of the county elections board’s July 8 decision.
For one, HB 463 empowers boards of elections and the secretary of state to decide whether efforts to place an initiative on the ballot have followed the required procedures for earning a spot on the ballot; and two, it empowers boards of elections and the secretary of state to decide whether the potential ballot measure would assert for a local jurisdiction a power the state reserves for itself.
Fleming said the Alliance feels those provisions of HB 463 are an unconstitutional legislative power grab. She said if boards of elections and/or the secretary of state can bar any measure from the ballot, it circumvents the home rule provision afforded under the Ohio Constitution that is the basis for the charter petition.
“We want to get to the Ohio Supreme Court and (overturn) HB 463. We have to stop that if we have any hope of protecting our rights and getting any initiatives on the ballot in the state of Ohio,” Fleming said.