[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Guest v. Husted, Slip Opinion No. 2018-Ohio-3161.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 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. 

SLIP OPINION NO. 2018-OHIO-3161

THE STATE EX REL. GUEST v. HUSTED, SECY., ET AL. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Guest v. Husted, Slip Opinion No. 

2018-Ohio-3161.] 

Elections—Mandamus—Writ of mandamus sought to compel secretary of state and 

county board of elections to place candidate’s name on general-election 

ballot as independent candidate for common-pleas-court judge—Secretary 

of state did not abuse his discretion in refusing to place candidate’s name 

on the ballot—Writ denied. 

(No. 2018-0889—Submitted August 2, 2018—Decided August 8, 2018.) 

IN MANDAMUS. 

________________ 

Per Curiam.

{¶ 1} In this expedited election case, relator, Heaven Guest, seeks a writ of 

mandamus to compel respondents, Ohio Secretary of State Jon Husted and the 

Columbiana County Board of Elections, to place her name on the November 6, 2018 
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2

ballot as an independent candidate for judge of the Columbiana County Court of 

Common Pleas. Because Guest has failed to carry her burden to show by clear and 

convincing evidence that Husted abused his discretion, we deny the writ. 

I. Facts

{¶ 2} On May 7, 2018, Guest filed a nominating petition and statement of 

candidacy to run as an independent candidate for common-pleas-court judge in the 

November general election. Before she filed the paperwork to run as an independent 

candidate, Guest was an active member of the Democratic Party. In fact, she was 

appointed to the Columbiana County Democratic Party Central Committee in 

February 2018. She alleges that she resigned from that position and disaffiliated 

herself from the Democratic Party on April 14, 2018. 

{¶ 3} At a regular board-of-elections meeting on May 29, a member of the 

board moved to reject Guest’s nominating petition, arguing that Guest was not 

eligible to run as an independent candidate because she had not disaffiliated from the 

Democratic Party at the time she filed her petition. Guest was not present at the 

meeting. When the motion resulted in a tie vote, the board referred the matter to 

Husted under R.C. 3501.11(X). 

{¶ 4} The board members gave Husted evidence and presented written 

arguments supporting their views. The members opposing Guest’s candidacy argued 

that she attempted to become an independent candidate only after it appeared that the 

incumbent judge in Columbiana County—a Republican whom the Democratic Party 

had not opposed—might not win the primary election. The Republican incumbent 

did, in fact, lose the primary election on May 8, 2018, and the board members 

opposing Guest argued that her candidacy is a coordinated, impermissible effort by 

the Democratic Party to field a candidate in the general election. In support of this 

theory, the board members opposing Guest pointed to the fact that the majority of the 

circulators of Guest’s part-petitions are Democrats—and that one of the circulators 

was Nick Barborak, chairman of the Columbiana County Democratic Party. They 
January Term, 2018 

3

also highlighted that Guest’s nominating committee consists of her husband and four 

Democrats. 

{¶ 5} In the view of the board members opposing Guest’s candidacy, ample 

evidence shows that she claimed disaffiliation from the Democratic Party in bad faith. 

They argued that she remained a member of the county Democratic Party central 

committee at the time of their vote, because the board had no notice of her purported 

resignation, see R.C. 3517.06. They also pointed to Guest’s Facebook page, which 

included numerous photos of her with national and local Democratic figures and 

statements supportive of Democratic candidates, and to her financial contributions to 

the campaigns of Democratic candidates in 2018.1

 

{¶ 6} In response, the board members who voted in favor of Guest’s 

candidacy argued that she meets the requirements to serve as a judge, submitted the 

requisite number of valid signatures with her petition, and demonstrated her 

independence from any political party by voting “as an independent” in the May 2018 

primary election. Included with their submission was a copy of a handwritten letter 

from Guest to Barborak, the county Democratic Party chairman. The entire letter, 

dated April 14, 2018, states: 

Mr. Barborak, 

I am writing to reject/resign my appointment as a PC.[2

] My 

political views are independent. 

I sincerely appreciate the thought and look forward to talking 

to you again. 

Heaven Guest 

 

1

 The board members provided evidence of contributions to Democratic candidates made by 

“Heaven R. DiMartino.” Guest does not dispute that she made the contributions. 

2

 The parties do not define “PC,” but it appears to refer to “Precinct Committeeperson.” 
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4

{¶ 7} Husted received the board’s request for a tie-breaking vote on June 1. 

Following the referral to Husted, the board members who had voted to reject Guest’s 

petition informed Husted that they wanted an opportunity for the board to hold a 

special meeting so that it could “address a series of substantive questions relating to 

the veracity and authenticity and truthfulness” of Guest’s claim that she had resigned 

from the county Democratic Party central committee on April 14. Specifically, they 

wanted to investigate the matter under R.C. 3501.11(J) by issuing subpoenas to Guest 

and Barborak. The two members who opposed Guest’s candidacy attempted to call 

a special meeting on June 6, but no quorum was reached because the other members, 

both Democrats, did not attend. 

{¶ 8} On June 8, Husted voted to reject Guest’s petition, finding that she 

“remains affiliated with the Democratic Party.” In reaching his decision, Husted 

focused on Guest’s position on the county Democratic Party central committee, the 

composition of her nominating committee, the support she has received from 

members of the Democratic Party, and her support of Democratic candidates. 

{¶ 9} Guest commenced this action in this court on June 22. 

II. Analysis 

A. Legal standard 

{¶ 10} R.C. 3501.01(I) defines “independent candidate” as “any candidate 

who claims not to be affiliated with a political party, and whose name has been 

certified * * * through the filing of a statement of candidacy and nominating petition, 

as prescribed in section 3513.257 of the Revised Code.” R.C. 3513.257 requires an 

independent candidate to file a statement of candidacy and nominating petition no 

later than 4:00 p.m. the day before the day of the primary election. This court has 

accepted the view of the Sixth Circuit Court of Appeals that R.C. 3501.01(I) and 

3513.257 require an independent candidate to make her claim of disaffiliation from 

a political party in good faith. See State ex rel. Davis v. Summit Cty. Bd. of Elections, 
January Term, 2018 

5

137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 27, following Morrison v. 

Colley, 467 F.3d 503, 509 (6th Cir.2006). 

{¶ 11} To prevail on her mandamus claim, Guest must establish a clear legal 

right to have her name placed on the November ballot, a corresponding clear legal 

duty of Husted to place her name on the ballot, and the lack of an adequate remedy 

in the ordinary course of law. State ex rel. Allen v. Warren Cty. Bd. of Elections, 115 

Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507, ¶ 8. She must prove her case by 

clear and convincing evidence. State ex rel. Orange Twp. Bd. of Trustees v. 

Delaware Cty. Bd. of Elections, 135 Ohio St.3d 162, 2013-Ohio-36, 985 N.E.2d 441, 

¶ 14. 

{¶ 12} Given the proximity of the November election, Guest satisfies the 

third requirement. State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 

2010-Ohio-1845, 928 N.E.2d 410, ¶ 27. To satisfy the first two requirements, Guest 

must show that Husted “engaged in fraud, corruption, or abuse of discretion, or acted 

in clear disregard of applicable legal provisions.” Whitman v. Hamilton Cty. Bd. of 

Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. Because Guest 

makes no allegation of fraud or corruption, she must show that Husted abused his 

discretion or disregarded the law when he rejected her petition. 

B. Husted’s decision 

{¶ 13} Husted’s conclusion that Guest’s claim of disaffiliation from the 

Democratic Party was not made in good faith was based on four basic findings: (1) 

that Guest still was a member of the county Democratic Party central committee at 

the time she submitted her petition, (2) that her nominating committee consisted of 

her husband and four Democrats, (3) that her candidacy received support from 

members of the Democratic Party, and (4) that she recently has supported Democratic 

candidates. Husted addressed each of these findings separately, but he viewed them 

together in the context of the Republican incumbent judge’s primary-election loss 

and the Democratic Party’s failure to field a candidate for the judicial seat. He 
SUPREME COURT OF OHIO

6

concluded that Ohio law does not permit the Democratic Party “a second bite at the 

apple” after having failed to field its own candidate in the Democratic primary. We 

agree that this broader context was relevant to Husted’s inquiry. 

{¶ 14} Guest has not shown by clear and convincing evidence that Husted 

abused his discretion in finding that she claimed disaffiliation from the Democratic 

Party in bad faith. We address Husted’s findings in turn. 

1. Membership on the county central committee 

{¶ 15} In his decision, Husted concluded that “Guest remains affiliated with 

the Democratic Party.” He reached that conclusion based on a letter from Barborak 

to the board stating that Guest is a member of the county Democratic Party central 

committee. That letter is dated February 27 and was received by the board on March 

30. In their briefs, Husted and the board contend that Guest’s name was on the central 

committee’s active roster when she claimed to be disaffiliated from the Democratic 

Party on May 7. 

{¶ 16} Ordinarily, there are few affirmative steps an Ohio elector can take to 

disaffiliate from a political party. “Party affiliation in Ohio is purely a matter of selfidentification, and that self-identification is subject to change.” State ex rel. Stevens 

v. Fairfield Cty. Bd. of Elections, 152 Ohio St.3d 584, 2018-Ohio-1151, 99 N.E.3d 

376, ¶ 20. In State ex rel. Coughlin v. Summit Cty. Bd. of Elections, we explained: 

A voter cannot register as an independent, except in the 

negative sense of not voting in partisan primaries or signing partisan 

nominating petitions. The Revised Code contains no provision for 

declaring party affiliation when one registers to vote, State ex rel. 

Young v. Gasser, 21 Ohio St.2d 253, 255, 257 N.E.2d 389 (1970), and 

the registration forms do not contain a space for that information. 

Rather, party affiliation or membership is “that which [the voter] 

desires it to be from time to time.” Id. at 257. Essentially, being 
January Term, 2018 

7

“registered” as a Republican or Democrat means nothing more than 

voting in that party’s primary, because the local boards of elections 

keep records of that information. 

136 Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 28, fn. 2. Thus, 

disaffiliation from a political party largely involves an elector’s inaction. 

{¶ 17} But here, Guest had been appointed to the county Democratic Party 

central committee. Clearly, resigning from that position was an affirmative step she 

could—and needed to—take to disaffiliate from the Democratic Party. 

{¶ 18} In reaching his decision, Husted acknowledged the handwritten letter 

by which Guest attempted to resign from her position on the county central 

committee, but he nevertheless found that she remained on the committee. As an 

initial matter, we reject Husted’s suggestion that Guest’s resignation was not 

effective simply because the board had not received notice of the change under R.C. 

3517.06. That statute requires the secretary of a county central committee to file with 

the county board of elections a list of the names and addresses of the committee’s 

members and to promptly report any changes in the membership. Thus, the secretary 

of the county Democratic Party central committee—not Guest—was responsible for 

notifying the board of Guest’s resignation. Guest cannot be faulted for not taking 

steps that were not under her control. See State ex rel. Morris v. Stark Cty. Bd. of 

Elections, 143 Ohio St.3d 507, 2015-Ohio-3659, 39 N.E.3d 1232, ¶ 35-36. 

{¶ 19} But we do not conclude that Husted abused his discretion in viewing 

Guest’s letter with suspicion. He first questioned its origin and veracity, noting that 

a “copy of a document is never the best evidence when there are questions about the 

original’s authenticity.” Continuing, he explained that it “would have been useful to 

receive direct testimony from Ms. Guest on these issues.” The record shows that 

members of the board attempted to conduct a hearing at which these issues could 

have been addressed, but no hearing was held after the board’s Democratic members 
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8

failed to attend. Although there is no direct evidence that Guest prevented the hearing 

from occurring, Husted was not required to ignore the role of the Democratic 

members in preventing it from occurring or to view their nonattendance in isolation 

from the larger context in which the Democratic Party had failed to field a 

candidate. Therefore, he did not abuse his discretion in questioning the letter’s 

authenticity. 

{¶ 20} Husted also found the content of the letter to be insufficient, 

concluding that its language is “ambiguous at best.” The letter’s two operative 

sentences state that Guest was “writing to reject/resign [her] appointment as a PC” 

and that her “political views are independent.” She concluded by stating that she 

“look[ed] forward to talking to [Barborak] again.” Husted noted that Guest did not 

“declare that she wishe[d] to disaffiliate from the Democratic Party” and that “it is 

possible to have ‘independent’ political views and still be a member of a political 

party.” 

{¶ 21} Resigning from her position on the county Democratic Party central 

committee was one of the few affirmative steps Guest could take to validate her 

disaffiliation. If that was her goal, she did not do it well. She did not explain the 

import of her holding independent views (i.e., that she did not wish to remain a 

Democrat), or unequivocally state that she meant to leave the party. Indeed, she 

ended her letter with a statement of hope to be in further communication with the 

county Democratic Party chairman. The letter contains neither the formality nor the 

clarity one would expect from someone looking to disaffiliate from a political party. 

Thus, we cannot conclude that Husted abused his discretion in questioning the letter’s 

effectiveness. 

2. Composition of Guest’s nominating committee 

{¶ 22} After addressing Guest’s resignation letter, Husted found that “[e]ven 

assuming that Ms. Guest effectively resigned on April 14, 2018, it is perhaps most 

disingenuous to the claim of disaffiliation that her petitions, which are dated after the 
January Term, 2018 

9

date of her purported resignation, list as members of her nominating committee the 

names of her husband and four Democrats.” Husted expressed concern that a 

majority of Guest’s nominating committee would have authority to name a 

replacement candidate if Guest were to withdraw as a candidate. See R.C. 

3513.31(F). He concluded that “good faith disaffiliation had not taken place, given 

that she selected a super-majority of Democrats to represent her.” 

{¶ 23} No statute prevents members of a political party from constituting a 

majority (or supermajority) of an independent candidate’s nominating committee 

after the candidate has disaffiliated from that party. See R.C. 3501.01(I), 3513.257, 

and 3513.261. Nor will we impose any such rule here. But we do acknowledge, as 

Husted did, that the inclusion of four Democrats on Guest’s nominating committee 

is relevant to the determination whether her claim of disaffiliation from the political 

party was made in good faith. Thus, Husted did not abuse his discretion in 

considering that evidence. 

3. Support from members of the Democratic Party 

{¶ 24} Husted also relied on the fact that Guest accepted campaign support 

from members of the Democratic Party. Evidence shows that Democrats, including 

the county party chairman, circulated a majority of the part-petitions for Guest’s 

candidacy. According to the board, of the 11 electors who circulated part-petitions 

for Guest’s candidacy, 7 (counting Guest) are Democrats and they collected nearly 

78 percent of the signatures. Husted also referenced a news article reporting that the 

county party chairman introduced Guest at the Columbiana County courthouse and 

accompanied her at an event in Columbiana County on May 10. 

{¶ 25} Husted’s concern that a majority of the individuals who circulated 

part-petitions for Guest’s candidacy were Democrats is similar to his concern about 

the composition of her nominating committee: Although there is no rule forbidding 

their circulating the part-petitions, the fact that they did is relevant because it shows 

significant support of her candidacy by local Democrats, including Democratic Party 
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10 

leadership. The same can be said of Barborak’s support of Guest’s candidacy, as 

reported in the above-mentioned news article. Accordingly, Guest has not shown 

that Husted abused his discretion in assigning weight to this evidence. 

4. Guest’s support of Democratic candidates 

{¶ 26} Husted also found that Guest’s cash donation to a Democratic 

candidate within days of her purported disaffiliation showed that her claim of 

disaffiliation from the Democratic Party was made in bad faith. In the same vein, 

Husted and the board argue in their briefs that the contents of Guest’s Facebook page 

demonstrate her continued affiliation with the Democratic Party. 

{¶ 27} When he made his decision, Husted had evidence that Guest had 

contributed to the campaigns of Democratic candidates this year on January 25 ($35), 

March 1 ($50), and April 9 ($100)—all before she claimed to be disaffiliated from 

the Democratic Party when she filed her petition on May 7.3

 In Davis, we recognized 

that financial contributions to a partisan candidate’s campaign may be relevant to the 

question whether an independent candidate disaffiliated from a political party in good 

faith. 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, at ¶ 24-25. But we 

gave “little weight” to Davis’s donations because “there is no necessary correlation 

between donations and political affiliation” and Davis made the donations before she 

filed her declaration of candidacy. Id. at ¶ 25. The same considerations cause us to 

accord little weight to Guest’s donations. But our conclusion does not undermine 

Husted’s decision, because he only briefly mentioned Guest’s financial contributions 

to a Democratic candidate and nothing suggests that he afforded the evidence 

significant weight. 

 

3

 The board has presented us with new evidence that Guest contributed $25 to the campaign of a 

candidate for state representative on June 2. Because evidence of that contribution was not 

presented to the board or to Husted, we do not consider it in determining whether Husted abused his 

discretion. 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, ¶ 11 (explaining that evidence that was not presented to a board 

of elections is not relevant to whether the board abused its discretion or clearly disregarded 

applicable law). 
January Term, 2018 

11 

{¶ 28} As for Guest’s Facebook page, Husted and the board try to analogize 

this case to Jolivette v. Husted, 694 F.3d 760 (6th Cir.2012), a case in which the 

putative independent candidate’s Facebook page contained posts that undermined his 

disaffiliation claim, id. at 767-768. Jolivette is distinguishable because Jolivette’s 

Facebook posts included explicit statements about his own membership in 

Republican organizations and his campaign website indicated that support for his 

candidacy was a “Vote for Strong Republican Leadership,” id. The evidence from 

Guest’s Facebook page was posted April 9, 2018, or earlier, and many of the posts 

were made in 2016. Unlike Jolivette, there is no evidence that Guest made 

representations related to her party affiliation on Facebook, either before or after she 

claimed to have disaffiliated from the Democratic Party. 

III. Conclusion

{¶ 29} After reviewing the findings upon which Husted based his decision, 

analyzing those findings in context and as a whole, and affording them the 

appropriate weight, we find that Guest has not shown by clear and convincing 

evidence that Husted abused his discretion by refusing to place her name on the 

ballot, and we deny the writ accordingly. 

Writ denied. 

O’CONNOR, C.J., and FRENCH, FISCHER, and DEWINE, JJ., concur. 

O’DONNELL, J., concurs in judgment only. 

KENNEDY and DEGENARO, JJ., not participating. 

_________________ 

Warner Mendenhall and Logan Trombley, for relator. 

Mike DeWine, Attorney General, and Renata Y. Staff and Halli Brownfield 

Watson, Assistant Attorneys General, for respondent Ohio Secretary of State Jon 

Husted. 
SUPREME COURT OF OHIO

12 

Fishel, Downey, Albrecht & Riepenhoff, L.L.P., Daniel T. Downey, 

Melanie J. Williamson, and Angelica M. Jarmusz, for respondent Columbiana 

County Board of Elections. 

_________________