[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Brubaker v. Lawrence Cty. Bd. of Elections , Slip Opinion No. 2022-Ohio-1087.]

NOTICE This slip opinion is subject to formal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2022-O HIO -1087.]
T HE S TATE EX REL . B RUBAKER v . L AWRENCE C OUNTY B OARD OF E LECTIONS . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as State ex rel. Brubaker v. La wrence Cty. Bd. of Elections , Slip Opinion No. 2022-Ohio-1087.] Elections—Mandamus—R.C. 4301.33( A)—Petitioner seeking placement of a local liquor-sales option on the May 3, 2022 primary-election ballot failed to comply with statutory requirements to include with the liquor-optionpetition an affidavit certifying that the petitioner gave notice to all liquorpermit holders who would be affected by the proposal, if any, and to provide a list of the permit holders to the petition signers at the time of their signing—Writ denied. (No. 2022-0255—Submitted Marc h 29, 2022—Decided March 31, 2022. )
I N M ANDAMUS

.

_________________ Per Curiam. {¶ 1} In this expedited election case, relator, Ray Brubaker, seeks a writ of mandamus compelling respondent , the Lawrence County Board of Elections (“the board”), to place a local liquor option on the May 3, 202 2 primary-election ballot. For the reasons set for th herein, we deny the writ.S UPREME C OURT OF O HIO

2 I. Background A. The requirements for placing a local liquor option on the ballot {¶ 2} R.C. 4301.351(A) authorizes local-option elections to consider the question whether Sunday liquor s ales shall be permitted within a precinct. At least 25 days before the deadline for submitting petition signatures for a local liquor option, the Ohio Department of Commerce, Division of Liquor Con trol (“the division”), must provide the petitioner seeking placement of th e option on the ballot with a list of the names and addresses of liquor-permit holders and liquor-agency stores in the precinct, if any, that would be affected by the b allot proposal. R.C. 4301.33(A). Within five days of re ceiving the list from the di vision, the petitioner must provide notice of the proposal to each liquor-permit holde r and liquor-agency store on the list. Id . The petitioner must attach a copy of the list to each petiti on paper circulated for signatures. Id . The petitioner must also provide a copy of the list to the board of elections when he submits the signed part- petitions to the board.
Id

. {¶ 3} Along with the part-petitions and list of permit holders, the petitioner must provide the board of elections with “an affidav it certifying that the petitioner notified all affected permit holders and liquor agen cy stores, if any, on the list * * * and that, at the time each signer of the petitio n affixed the signer’s signature to the petition, the pe tition paper contained a copy of the list of affected permit holders and liquor store agencies.” Id . The Ohio secretary of state has promulgated Form No. 5-N, whic h is titled “Affidavit of Local O ption Petitioner,”
to serve as that affidavit. See Ohio Secretary of State Form No. 5-N, available at https://www.ohiosos.gov/globalasse ts/elections/forms/5-n.pdf (a ccessed Mar. 30, 2022) [https://perma.cc/JP6F-64NG]. A petitioner who swears to and signs Form No. 5-N attests that proper notic e was given to all affected pe rmit holders. In addition, Form No. 5-N states, “I also certify that each part-p etition contained a copy of the list of affected per mit holders, if any, at the tim e each signer of theJanuary Term, 2022

3 petition affixed his/her signatu re to the petition.” Under R.C . 4301.33(A), the “[f]ailure of the petitioner to s upply the affidavit required b y this section and a complete and accurate list of liquor permit holders and liquor agency stores, if any, invalidates the e ntire petition.”
B. The evidence in the record {¶ 4} This case involves an effort to place on the May 3, 2022 primaryelection ballot a liquor option to allow Sunday liquor sales in the Hanging Rock precinct. The Hanging Rock precinct is located in Lawrence Cou nty, and
“Laidback Bar” is lo cated in the precinct. {¶ 5} Scott A. Pullins is the attorney for Brubaker, who is the gener al manager of Laidback Bar. On December 27, 2021, Pullins filed w ith the board the initial paperwork requesting a liquor-option petition for the H anging Rock precinct. On December 29, the division notified Pullins that there were n o permit holders who would be affected by the liquor-option proposal. {¶ 6} On February 2, 2022, Brubaker f iled with the board part-petitio ns containing approximately 40 signa tures in support of the liquor -sales option.
Brubaker did not file a copy of Form No. 5- N. Instead, he atte mpted to file a copy of the division’s December 29 letter stating that there were no affected permit holders in the precinct. Accordi ng to Brubaker, the board info rmed him “that the letter was not needed and refus ed to accept it as part of [his] filing.” {¶ 7} The board rejected the liquor- option petition because Brubaker did not submit a Form No. 5-N. On February 23, Toni Bradshaw, the deputy director of the board, notified Pullins in an email that the petition wa s “missing parts and incomplete” and that the option would not appear on the May 202 2 ballot. Pullins replied to Bradshaw by email that same day, asking, “[C]an you send me a letter or some kind of explanation? Specifically, what parts were missin g and incomplete?” On February 28, Bradshaw declined Pullins’s request for an expl anation on the ground that providing such informa tion would constitute legal a dvice.S UPREME C OURT OF O HIO

4 II. Procedural history {¶ 8} On March 11, 2022, Brubaker filed with this court a complaint f or a writ of mandamus against the board. He attached five exhibits to the complaint, including his own affidavit. We ordered the board to answer th e complaint, and the board complied by filing an answe r accompanied by two affidavit s. The attachments to the complaint and answer are the only evidence s ubmitted by the parties. III. Legal analysis A. Standard of review {¶ 9} To be entitled to a writ of mandamus, Brubaker must establish b y clear and convincing evidence that (1) he has a clear legal rig ht to the requested relief, (2) the board has a clear legal duty to provide it, and (3) he does not have an adequate remedy in the ordinary course of the law. See State ex rel. Linnabary v.
Husted , 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. As t o the third element, Brubaker lacks an adequate remedy in the ordinary cour se of the law due to the proximity of the May 3, 2022 primary election, which is less than 40 days

away. See State ex rel. West v. LaRose , 161 Ohio St.3d 192, 2020-Ohio-4380, 161 N.E.3d 631, ¶ 15. {¶ 10} The first two elements require us to determine whether the boar d engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable law. See State ex rel. Tam O’Shanter Co. v. Stark Cty. Bd. of Elections , 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 16. Bruba ker has not alleged that the board engaged in fraud or corruption. An abus e of discretion “connotes an unreasonable, arbitrary, or unconscionable attitud e.” State ex rel. Grady v. State Emp. Relations Bd. , 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997). B. The board did not abuse its discretion or act contrary to law {¶ 11} The essential facts of this case are not in dispute. And R.C. 4301.33(A) requires a petitioner seeking placement of a local l iquor option on theJanuary Term, 2022

5 ballot to include with the liquor-option petition an affidavit certifying that he gave notice to all permit holders who would be affected by the measu re, if any, and to provide a list of those permit holders to the petition signers at the time of their signing. Brubaker did not compl y with this requirement. {¶ 12} In his merit brief, Brubaker suggests that his noncompliance sh ould be excused for two reasons. Again, when he filed the petition, Brubaker attempted to give the board a copy of the letter from the division statin g that there were no affected permit holders. In his first proposition of law, he a rgues that the board abused its discretion by not accepting the letter in lieu of an affidavit. This contention overlooks the fact tha t R.C. 4301.33(A) required Bru baker to provide both the letter from the division (the list) and an affidavit. The list provided by the division cannot be an alternative to the required affidavit bec ause the list is a separately required document. {¶ 13} Although he does not explicitly u se the term “substantial compliance,” Brubaker essentially argues that his efforts amoun ted to substantial compliance with the statute’s requirements. But “it is well-se ttled that ‘election laws are mandatory and require s trict compliance and that subst antial compliance is acceptable only when an elec tion provision expressly states that it is

. ’ ” State ex
rel. Maras v. LaRose , ___ Ohio St.3d ___, 2022-Ohio-866, ___ N.E.3d ___, ¶ 23, quoting State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections , 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239, ¶ 49. And R.C. 4301.33(A) provides th at a petitioner “shall” p rovide the specified
affidavit to the board of electi ons. In an election statute, t he word “shall” is construed as mandatory unless th ere is “ ‘ “a clear and unequiv ocal legislative intent” ’ ” that a different construction applies. State ex rel. Ohio Democratic Party
v. Blackwell , 111 Ohio St.3d 246, 2006-Ohio-5202, 855 N.E.2d 1188, ¶ 15 (plurality opinion), quoting Ohio Civ. Rights Comm. v. Countrywide Home Loans,
Inc. , 99 Ohio St.3d 522, 2003-Ohio-4358, 794 N.E.2d 56, ¶ 4, quotin g Dorrian v.S UPREME C OURT OF O HIO

6 Scioto Conservancy Dist. , 27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus. R.C. 4301.33( A) does not contain language suggesting that something less than strict compliance will suffice. Compare State ex rel. Weller v. Tuscarawas Cty. Bd. of Elections , 158 Ohio St.3d 266, 2019-Ohio-4300, 141 N.E.3d 157, ¶ 10, quoting R.C. 3513.261 (statutory language sta ting that nominating petitions “shall be substantially in the form prescribed” permitted substantial compliance with the pr escribed form [emphasis added in Weller ]). {¶ 14} R.C. 4301.33(A) requires strict c ompliance: a petitioner must provide an affidavit attesting that he notified all affected pe rmit holders about the proposal and informed each petition signer about the affected p ermit holders. In an attempt to save himself from that requirement, Brubaker argues in his second proposition of law that he could not legally comply with the re quirement because there were no affected permit holders to notify. He suggests t hat completing the affidavit under those circumst ances would constitute election f alsification. {¶ 15} But Brubaker could have complie d with the affidavit requirement in R.C. 4301.33(A), despite the lack o f affected permit holders. The statute requires a petitioner to submit to the board of elections an affidavit a ttesting that he “notified all affected permit holders and liquor agency stores, if any , on the list * * * and that, at the time each signer of the petition affixed the signer’s si gnature to the petition, the petition paper cont ained a copy of the list of affected per mit holders and liquor store agencies.” (Emphasis a dded.) Thus, the plain language o f the statute contemplates circumstances in which there are no affected permi t holders. In that situation, the petitioner must atte st that he did not notify an y affected permit holders because there were none. And he m ust attest that he showed the list of the affected permit holders to the potentia l petition signers, which, under the circumstances presented here, means showing them the letter from the division stating that there were no affected permit holders. Brubaker could have complied with this requirement, but he did not.January Term, 2022

7 {¶ 16} For the foregoing reasons, we de ny Brubaker’s request for a wri t of mandamus.
Writ denied.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D ONNELLY , S TEWART , and
B RUNNER , JJ., concur.
D E W INE , J., concurs in judgment only.

_________________ Pullins Law Firm, L.L.C., and Sco tt A. Pullins, for relator. Brigham M. Anderson, Lawrence County Prosecuting Attorney, for respondent.

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