[Cite as State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69.] 

THE STATE EX REL. WATERS v. SPAETH ET AL. 

[Cite as State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69.] 

Elections—Mandamus—Writ sought to compel respondent to place relator’s 

name on ballot as Republican, notwithstanding his recent Libertarian 

affiliation—Writ denied.

(No. 2011-2152—Submitted January 10, 2012—Decided January 11, 2012.) 

IN MANDAMUS. 

__________________ 

Per Curiam.

{¶ 1} This is an expedited election action for a writ of mandamus to 

compel respondents, the Warren County Board of Elections and its members, to 

place the name of relator, Robert E. Waters, on the ballot as a candidate for the 

Warren County Republican Party Central Committee, Precinct 15, of the city of 

Lebanon, at the March 6, 2012 primary election. Because Waters voted in a 

primary election as a member of a different political party within the preceding 

two calendar years, he is barred from candidacy in the March 6, 2012 Republican 

primary election. Therefore, we deny the writ. 

Facts 

{¶ 2} Waters is a registered voter residing in Lebanon in Warren County. 

In February 2010, he filed a declaration of candidacy and petition to be a 

Libertarian Party candidate for state representative. In May 2010, he voted in the 

Libertarian Party primary election. At the November 2010 election for governor, 

the Libertarian Party candidate failed to obtain 5 percent of the vote. 
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{¶ 3} On December 7, 2011, Waters filed a petition to be a candidate for 

the Warren County Republican Party Central Committee for the 15th Precinct, in 

Lebanon, at the March 6, 2012 Republican primary election. At a December 13, 

2011 meeting of respondent Warren County Board of Elections, both board 

members present voted not to certify Waters’s candidacy. 

{¶ 4} Eight days later, on December 21, Waters filed this expedited 

election action for a writ of mandamus to compel the board and its members to 

certify his candidacy. Respondents filed an answer on December 30, and the 

parties filed briefs and evidence pursuant to the accelerated schedule in 

S.Ct.Prac.R. 10.9. 

{¶ 5} This cause is now before the court for our consideration of the 

merits. 

Analysis 

Mandamus 

{¶ 6} Waters requests a writ of mandamus to compel the board of 

elections to place his name on the March 6, 2012 primary election ballot as a 

candidate for member of the Warren County Republican Party Central 

Committee. To be entitled to the writ, Waters must establish a clear legal right to 

the requested relief, a clear legal duty on the part of the board and its members to 

provide it, and the lack of an adequate remedy in the ordinary course of law. 

State ex rel. Eshleman v. Fornshell, 125 Ohio St.3d 1, 2010-Ohio-1175, 925 

N.E.2d 609, ¶ 20. Because of the proximity of the March 6, 2012 primary 

election, Waters has established that he lacks an adequate remedy in the ordinary 

course of the law. State ex rel. Owens v. Brunner, 125 Ohio St.3d 130, 2010-

Ohio-1374, 926 N.E.2d 617, ¶ 25; see also S.Ct.Prac.R. 10.9. 

{¶ 7} For the remaining requirements, “ ‘[i]n extraordinary actions 

challenging the decisions of the Secretary of State and boards of elections, the 

standard is whether they engaged in fraud, corruption, or abuse of discretion, or 
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3

acted in clear disregard of applicable legal provisions.’ ” State ex rel. Husted v. 

Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9, quoting 

Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 

778 N.E.2d 32, ¶ 11. 

R.C. 3513.191(A) and 3517.01(A)(1) 

{¶ 8} Waters asserts that the board of elections abused its discretion and 

clearly disregarded R.C. 3517.01(A)(1) by denying his candidacy in the 

Republican primary election. 

{¶ 9} R.C. 3513.191(A) prohibits a person’s candidacy at a political 

party’s primary election if the person voted in a different political party’s primary 

election within the two years immediately preceding it: 

 No person shall be a candidate for nomination or election at 

a party primary if the person voted as a member of a different 

political party at any primary election within the current year and 

the immediately preceding two years. 

{¶ 10} The applicable version of R.C. 3517.01(A)(1)1 defines “political 

party” as follows: 

 

A political party within the meaning of Title XXXV of the 

Revised Code is any group of voters that, at the most recent regular 

state election, polled for its candidate for governor in the state or 

 

1. 2011 Am.Sub.H.B. No. 194 amended R.C. 3517.01(A)(1), effective September 30, 2011, but 

that amendment is the subject of a pending referendum petition. See Secretary of State Directive 

No. 2011-30. On December 9, 2011, the secretary of state certified that the petition contained 

sufficient signatures for placement of the referendum on the November 2012 election ballot. 

http:www.sos.state.oh.us/SOS/mediaCenter/2011/2011-12-09.aspx. 
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nominees for presidential electors at least five per cent of the entire 

vote cast for that office or that filed with the secretary of state, 

subsequent to any election in which it received less than five per 

cent of that vote, a petition signed by qualified electors equal in 

number to at least one per cent of the total vote for governor or 

nominees for presidential electors at the most recent election, 

declaring their intention of organizing a political party, the name of 

which shall be stated in the declaration, and of participating in the 

succeeding primary election, held in even-numbered years, that 

occurs more than one hundred twenty days after the date of filing. 

{¶ 11} Waters claims that the Libertarian Party is not a political party as 

defined in R.C. 3517.01(A)(1) because at the most recent general election in 

November 2010, the Libertarian candidate for governor failed to obtain five 

percent of the vote. Consequently, he argues, the Libertarian Party does not 

constitute a political party for purposes of R.C. 3513.191(A) so as to bar his 

Republican candidacy. See State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 

2008-Ohio-5041, 896 N.E.2d 979, ¶ 46 (“statutes that relate to the same subject 

matter must be construed in pari materia so as to give full effect to the 

provisions”). 

{¶ 12} Waters’s claim, however, ignores the plain language of the 

applicable statutes. 

{¶ 13} The definition of “political party” in R.C. 3517.01(A)(1) does not 

automatically exclude a group of voters from its definition simply because at the 

most recent regular state election, its gubernatorial candidate or nominees for 

presidential election failed to poll at least 5 percent of the entire vote for that 

office. R.C. 3517.01(A)(1) permits a group of voters who failed to meet the 
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applicable 5 percent threshold to nevertheless qualify as a political party for the 

succeeding primary election ballot if it files with the secretary of state 

a petition signed by qualified electors equal in number to at least 

one per cent of the total vote for governor or nominees for 

presidential electors at the most recent election, declaring their 

intention of organizing a political party, the name of which shall be 

stated in the declaration, and of participating in the succeeding 

primary election, held in even-numbered years, that occurs more 

than one hundred twenty days after the date of filing. 

Waters’s complaint did not allege that the Libertarian Party failed to meet this 

alternate method of qualifying as a political party for purposes of Ohio’s election 

laws, and he failed to submit clear and convincing evidence that this portion of 

the statutory definition of “political party” in R.C. 3517.01(A)(1) was 

inapplicable. See State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio6117, 958 N.E.2d 1235,, paragraph three of the syllabus (“Relators in mandamus 

cases must prove their entitlement to the writ by clear and convincing evidence”). 

{¶ 14} Moreover, R.C. 3513.191(A) applies to both “major” political 

parties and “minor” political parties under the R.C. 3517.01(A)(1) definition of 

“political party.” 

{¶ 15} In addition, state election officials must follow the applicable 

requirements of federal election law, including pertinent federal court orders. See, 

e.g., State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35, 941 

N.E.2d 782, ¶ 37 (“the secretary of state also has a duty to instruct election 

officials on the applicable requirements of federal election law as well as federal 

court orders that are applicable to them”). In Libertarian Party of Ohio v. 

Blackwell, 462 F.3d 579 (6th Cir.2006), the United States Court of Appeals for 
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the Sixth Circuit held that Ohio’s system for minor-party qualification for ballot 

access violated the rights of political parties and voters to exercise their First 

Amendment rights. Id. at 594-595. In 2008, a federal district court ordered, 

pursuant to Blackwell, that the secretary of state place the Libertarian Party of 

Ohio and its candidates on the November 2008 election ballot. Libertarian Party 

of Ohio v. Brunner, 567 F.Supp.2d 1006, 1016 (S.D.Ohio 2008). In 2011, a 

federal district court ordered, pursuant to Blackwell, that the secretary of state 

place the Libertarian Party of Ohio and its candidates on the 2011 and 2012 

election ballots. Libertarian Party of Ohio v. Husted, S.D.Ohio No. 2:11-CV722, 2011 WL 3957259 (Sept. 7, 2011), as modified by the nunc pro tunc order 

dated October 18, 2011. Therefore, notwithstanding R.C. 3517.01(A)(1), federal 

precedent requires the treatment of the Libertarian Party as a “political party” for 

purposes of the election laws. 

{¶ 16} The secretary of state ordered boards of elections to recognize the 

Libertarian Party and certain other minor political parties as political parties 

entitled to ballot access in 2010 and 2012. Secretary of State Directive Nos. 

2009-21 and 2011-38. Based on the applicable law, the secretary of state’s 

construction of the applicable statutory provisions is reasonable and is thus 

entitled to deference. See Rothenberg v. Husted, 129 Ohio St.3d 447, 2011-Ohio4003, 953 N.E.2d 327, ¶ 2. And the board of elections and its members have a 

duty to follow the secretary of state’s directives. R.C. 3501.11(P); see also State 

ex rel. Coble v. Lucas Cty. Bd. of Elections, 130 Ohio St.3d 132, 2011-Ohio-4550, 

956 N.E.2d 282, ¶ 11, fn. 2. 

{¶ 17} Finally, insofar as Waters claims that the Warren County Board of 

Elections treated him differently from how the Franklin County Board of 

Elections treated a comparable candidate, he has not submitted sufficient evidence 

establishing an equal-protection violation, the Warren County Board of Elections 

is not bound by the decisions of another county board of elections, and the issue 
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whether the Franklin County Board of Elections acted properly is not before this 

court. 

{¶ 18} Therefore, the Libertarian Party constituted a political party for 

purposes of applicable election law, and under the plain language of R.C. 

3513.191(A), Waters’s participation in the May 2010 Libertarian primary election 

bars him from being a candidate for central committee member at the March 2012 

Republican primary election. The board of elections and its members neither 

abused their discretion nor clearly disregarded applicable law by deciding not to 

certify Waters’s candidacy. 

Conclusion 

{¶ 19} Because Waters failed to establish his entitlement to the requested 

extraordinary relief in mandamus, we deny the writ. 

Writ denied. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. 

__________________ 

 Robert E. Waters, pro se. 

 David P. Fornshell, Warren County Prosecuting Attorney, and Keith W. 

Anderson, Assistant Prosecuting Attorney, for respondents. 

______________________