#### The State ex rel. Manos et al., *v.*Delaware County Board of Elections.

[Cite as *State ex rel. Maws v. Delaware Cty. Bd. of Elections*(1998), 83 Ohio St.3d 562.]

(No. 98-2022

Submitted October 20, 1998

Decided October 21, 1998.)

*563
      *Manos, Martin, Pergram & Browning, Stephen D. Martin*and *James M. Dietz,*for relators.

*W. Duncan Whitney,*Delaware County Prosecuting Attorney, and *Gregory D. Brunton,*Assistant Prosecuting Attorney, for respondent.

*Per Curiam.*

Relators assert that they are entitled to a writ of prohibition to prevent the November 3 referendum election on Ordinance Nos. 98-34 and 98-35. Their contention, however, lacks merit because relators’ claim is barred by laches.

“Extreme diligence and promptness are required in election-related matters.” *In re Contested Election of November 2, 1993*(1995), 72 Ohio St.3d 411, 413, 650 N.E.2d 859, 862. Relators did not submit their objections to the referendum petition with the required diligence and promptness here. They waited twenty-eight days after the petitions were transmitted by the city clerk and filed with the board to file their written protest with the board, although they knew the basis of most of their objections to the petitions even before they were filed with the board on August 6. In fact, relators advised the city clerk of some of these objections in July. By the time that relators did file their written protest with the board, the board had already submitted proposed ballot language to the Secretary of State.

Relators do not suggest any excuse for not submitting their protest to the board at an earlier date. Any subsequent delay by the board does not excuse relators’ delay in the protest submission and election process. *State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections*(1997), 80 Ohio St.3d 182, 187, 685 N.E.2d 507, 511.

In fact, instead of immediately filing a protest with the board of elections following the transmittal of the referendum petitions to the board on August 6, relators first filed an expedited election case in this court seeking a writ of mandamus to compel the city clerk to reject the signatures on the referendum petitions. See *State ex rel. Manos v. Speese*(1998), 83 Ohio St.3d 1423, 699*564N.E.2d 96. By doing so, relators ignored the fact that they had an adequate legal remedy in the form of a written protest to the board, which has authority under R.C. 3501.11(K) and 3501.39 to determine the sufficiency and validity of municipal initiative and referendum petitions. See *State ex rel. Shumate v. Portage Cty. Bd. of Elections*(1992), 64 Ohio St.3d 12, 14-15, 591 N.E.2d 1194, 1196-1197; see, also, *State ex rel. Sinay v. Sodders*(1997), 80 Ohio St.3d 224, 231, 685 N.E.2d 754, 760. Ultimately, after relators apparently realized that they had failed to comply with the schedule for evidence and briefing set forth in S.Ct.Prac.R. X(9), they attempted to voluntarily dismiss their mandamus case on August 31 and thereafter filed the protest they could have filed four weeks earlier.

Relators’ delay was prejudicial because by the time they had submitted then-protest, the date for certifying the ballot form was only a day away, and at the time they filed this action for extraordinary relief,, the date for the board to print and make absentee ballots ready for use by electors had passed. *State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections*(1997), 80 Ohio St.3d 302, 308-309, 686 N.E.2d 238, 243-244; R.C. 3505.01; R.C. 3509.01.

Based on the foregoing, we deny the writ. While the board does not raise the issue of laches, relators have the burden of establishing that they acted with the requisite diligence in extraordinary writ cases involving elections. Cf. *State ex rel. Spencer v. E. Liverpool Planning Comm.*(1997), 80 Ohio St.3d 297, 299, 685 N.E.2d 1251,1253, where we emphasized that *“[i]n nonelection cases,*laches is an affirmative defense which must be raised or else it is waived.” (Emphasis added.) As in an analogous election case that we recently decided, relators failed to meet that burden here. See *State ex rel. Ascani v. Stark Cty. Bd. of Elections*(1998), 83 Ohio St.3d 490, 700 N.E.2d 1234.

*Writ denied.*

Moyer, C.J., Douglas, Resnick, Cook and Lundberg Stratton, JJ., concur.

F,E. Sweeney, J., dissents.

Pfeifer, J., dissents separately.

Pfeifer, J.,

dissenting. As I recently stated in my concurrence in *State ex rel. Ascani v. Stark Cty. Bd. of Elections*(1998), 83 Ohio St.3d 490, 495, 700 N.E.2d 1234, 1237, this court should adopt a less rigid standard regarding the application of laches in election cases where the relator is seeking to have an issue removed from the ballot. I would decide this case on its merits.