CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 4/24/2023 1

Correcting a Defective Candidacy Petition 

Varner v. Husted 

(Algenon L. Marbley, S.D. Ohio 2:11-cv-748) 

A candidate filed a federal complaint claiming that her candidacy 

petition was wrongfully rejected because she had withdrawn a defective petition. Similar cases were pending before Ohio’s supreme 

court, so the district judge set alternate dates for a preliminaryinjunction hearing, depending upon how promptly the state court 

ruled. As it turned out, the state court’s ruling was favorable to the 

federal plaintiff, who ultimately won her election. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

matters for state courts. 

A federal complaint filed in the Southern District of Ohio on August 17, 

2011, sought an order placing on the November ballot a candidate for fiscal 

officer of Noble Township in Defiance County, alleging that her denial of a 

place on the ballot was an improper response to her effort to correct a filing 

error.1 With her complaint, she filed a motion for a temporary restraining 

order.2 The court assigned the case to Judge Algenon L. Marbley, who set an 

in-person conference for August 22.3

Pending before Ohio’s supreme court at the time were two mandamus 

petitions seeking relief similar to the relief sought in the federal action; the 

mandamus petitions concerned offices in Lucas County, the county that includes Toledo. Ohio’s secretary of state had decided that candidates who 

withdrew their petitions could not refile.4

 In comity and out of respect for the 

supreme court’s proceedings, Judge Marbley made inquiries to the supreme 

court as to scheduling information.5 He wanted to balance deference to the 

state court with a prompt resolution of the action before him.6

On August 22, Judge Marbley decided that he would hold a preliminaryinjunction hearing on September 6 if the mandamus actions had been decided by then, but he would hold the hearing on September 13 otherwise.7

Ohio’s supreme court granted the mandamus petitions on September 9: 

Ohio law permitted the timely withdrawal of a defective candidacy petition 

and the filing of a valid new one.8

1. Complaint, Varner v. Husted, No. 2:11-cv-748 (S.D. Ohio Aug. 17, 2011), D.E. 3. 

2. Temporary-Restraining-Order Motion, id. (Aug. 17, 2011), D.E. 4. 

3. Order, id. (Aug. 17, 2011), D.E. 5. 

Tim Reagan interviewed Judge Marbley for this report by telephone on July 11, 2012. 

4. See Tyrel Linkhorn, 2 Candidates Who Refiled Forbidden from Ballot, Toledo Blade, 

July 23, 2011. 

5. Interview with Hon. Algenon L. Marbley, July 11, 2012. 

6. Id. 

7. Order, Varner, No. 2:11-cv-748 (S.D. Ohio Aug. 22, 2011), D.E. 6. 

8. State ex rel. Coble v. Lucas Cty. Bd. of Elections, 130 Ohio St. 3d 132, 956 N.E.2d 282 

(2011); State ex rel. Mahoney v. Lucas Cty. Bd. of Elections, 130 Ohio St. 3d 29, 955 N.E.2d 

935 (2011); see Nolan Rosenkrans, Court Rules Candidates to Stay on Ballot, Toledo Blade, 
Correcting a Defective Candidacy Petition 

2 Federal Judicial Center 4/24/2023 

On notice that Defiance County’s board of elections was to consider the 

federal plaintiff’s candidacy petition on September 13, Judge Marbley indefinitely postponed his injunction hearing.9

 Judge Marbley granted a voluntary 

dismissal on September 15.10

The federal plaintiff won her election.11

Sept. 9, 2011. 

9. Order, Varner, No. 2:11-cv-748 (S.D. Ohio Sept. 13, 2011), D.E. 14. 

10. Order, id. (Sept. 15, 2011), D.E. 16. 

11. Election Summary Report, www.defiance-county.com/boardofelections/pdf/G11%20 

ELECTION%20SUMMARY%20REPORT.pdf, archived at web.archive.org/web/2016032220 

2100/www.defiance-county.com/boardofelections/pdf/G11%20ELECTION%20SUMMARY 

%20REPORT.pdf (election results); Online Access to Defiance County Government, www. 

defiance-county.com/townships/noble.html, archived at web.archive.org/web/201209011734 

05/www.defiance-county.com/townships/noble.html (township officer roster, referring to 

the fiscal officer as clerk).