Could Dayton have a legal problem with its petitions and process?

If there is one thing I’ve learned about the petition process over the years- it’s all in the interpretation of the rules, as decided by the Board of Elections and the Secretary of State.

However, the Dayton City Charter makes its own provisions for the process, written in 1913 and amended multiple times. But, when you get right down to it- today’s process may have several fatal flaws and if challenged in court, would fail miserably.

The reason for the system to remain the same- because it guarantees limited access to the ballot and makes it impossible for the people to petition for change. That’s right- impossible. With that in mind- the whole process becomes illegal. At least, this is the beginnings of my court argument.

Once again, I believe we need to look to the First Amendment for inspiration- specifically, the last part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

If we look historically, over the last 20 years, we’ve had only one primary for Dayton City Commission- the last one that I remember was my first race- where Reverend Augman was added back to the pool after Dean Lovelace dropped out of the general to run in the Special Election- 18 years ago.

We’ve seen many candidates fail the signature standard- but never an incumbent. Again- limiting access to the ballot to a standard that is unattainable. Sure- one independent has managed to get on and win (Gary Leitzell) but, no other seat has changed hands without going to an endorsed candidate.

May I also add- the standard for the first two sets of petitions I and Mike Turner turned in 18 years ago- was NOT the same standard applied today- since I didn’t use voter lists- and did not turn in more than 550 signatures but was accepted.

First- we must look at the ballot language- here is what the state requires- and its standard is used by most communities- and only requires 50 signatures:

ORC – 3513.261 Nominating petition form and fee.

NOMINATING PETITION

We, the undersigned, qualified electors of the state of Ohio, whose voting residence is in the County, City, Village, Ward, Township or Precinct set opposite our names, hereby nominate ……………….. as a candidate for election to the office of ……………………… in the ………………………. (State, District, County, City, Village, Township, or School District) for the …………….. (Full term or unexpired term ending ……………….) to be voted for at the general election next hereafter to be held, and certify that this person is, in our opinion, well qualified to perform the duties of the office or position to which the person desires to be elected.

Signature Street Address or R.F.D. (Must use address on file with the board of elections) City, Village or Township Ward Precinct County Date of Signing

………………………, declares under penalty of election falsification that such person is a qualified elector of the state of Ohio and resides at the address appearing below such person’s signature hereto; that such person is the circulator of the foregoing petition paper containing ……………. signatures; that such person witnessed the affixing of every signature; that all signers were to the best of such person’s knowledge and belief qualified to sign; and that every signature is to the best of such person’s knowledge and belief the signature of the person whose signature it purports to be or of an attorney in fact acting pursuant to section 3501.382 of the Revised Code.

(Signature of circulator)

(Address of circulator’s permanent residence in this state)

(If petition is for a statewide candidate, the name and address of person employing circulator to circulate petition, if any)

WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE.”

via Lawriter – ORC – 3513.261 Nominating petition form and fee..

Note- no need for a Notary- no confusing language about when the election or primary is- the required language of “SIGNATURE”- not what the city petition says “NAME” and nothing about Ward or Precinct. Also- note the statement putting the elector who is signing on notice that his or her action of signing binds him or her by law to support- so that there is a legal contract in the action.

The Charter language differs substantially:

Form of Petition Paper
We, the undersigned, hereby present _________ whose residence is _________, Dayton, Ohio, as a candidate for nomination to the office of _________ to be voted upon at the _________ election, to be held on the ________ day of _________, 19________, and we individually certify that we have signed no other Mayor’s petition and no petition for Commissioner greater in number than the number of Commissioners to be chosen at the next _________ municipal election. We name as the nominating committee the five registered electors of the City of Dayton whose names and addresses appear below who shall have authority, as provided by the Charter to the City of Dayton, to nominate a candidate to replace the person named herein in the event that such person dies or withdraws his candidacy.
Name __________
Street & Number __________
__________ residing at __________
__________ residing at __________
__________ residing at __________
__________ residing at __________
__________ residing at __________
Montgomery County,
State of Ohio, ss:
_________, being duly sworn, deposes and says that he is the circulator of the foregoing petition paper containing ________ signatures, and that the signatures appended thereto were made in his presence and are the signatures of the persons whose names they purport to be.
(Signed) __________
Subscribed and sworn to before me this ________ day of _________, 19________
__________ Notary Public
This petition, if found insufficient, shall be returned to_________ at No. ________ _________ Street, Dayton

Notice the omission of language like this-

to be voted for at the general election next hereafter to be held, and certify that this person is, in our opinion, well qualified to perform the duties of the office or position to which the person desires to be elected.

Also note the missing of:

“WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE.”

Note the missing of “Signature Street Address or R.F.D. (Must use address on file with the board of elections) City, Village or Township Ward Precinct County Date of Signing”

The throwing out of signatures based on legibility is done by a partisan organization- by an organization that is not specified in the charter- and has exercised extreme measures on all petitions for the last 16 years without proscribed legal authority.

And- how can candidates get on the ballot with different dates on the same form- some have a primary date and a general election date- some put the general election date two times. It would seem, in a petition the language must be clear, and not up for interpretation.

If Ward and Precinct are not required- it should say so- or say- for board use only.

But- where things get even more interesting, especially to candidates like myself who use the voter registration lists to get signatures- is the lists themselves and their role in the ability for independent candidates to either bring an issue on the ballot through the petition process, or to recall the incumbents- the charter has a requirement:

Sec. 21. [Submission of Proposed Ordinances by Petition.] Any proposed ordinance may be submitted to the Commission by petition signed by at least ten percent of the total number of registered voters in the municipality.

However to undo a resolution- as passed by the commission- the near impossible is asked:

Sec. 29. [Ordinances–Effective Date.] No ordinance passed by the Commission, unless it be an emergency measure, shall go into effect until 30 days after its final passage by the Commission. If, at any time, within said 30 days, a petition signed by 25 percent of the total number of registered voters in the municipality be filed with the Clerk of the Commission requesting that any such ordinance be repealed or submitted to a vote of the electors, it shall not become operative until the steps indicated herein have been taken.

It is the same for the recall process:

Such petition for the recall of any or all of the Mayor and the Commissioners or the City Manager shall be signed by at least 25 percent of the total number of registered voters in the municipality.
(Amendment adopted by voters 11-5-68)

The current voter rolls have over 100,000 voters in a city of around 150,000. By that standard, 25,000+ valid signatures would be required to get a candidate recalled- or 10,000 + to enact a charter change by the public. It is my argument, that since we’ve had less than 40,000 voters turn out in any election for the last 18 years, and the rejection rate of signatures on most petitions for the city has been over 15%, the process of petitioning government- using the standards that have been levied by the Board of Election over the last 18 years- it is impossible to petition government.

You would need at least 30,000 signatures- almost, every voter in Dayton, to remove a commissioner.

Therefore, the standard used to evaluate signatures is illegal, and that the standard of 50, as prescribed by Ohio Revised Code should be legally accepted in this case. Remember- only three commissioners once elected have the ability to put issues and charter changes on the ballot- and they have done so twice in the last 10 years- without addressing this glaring issue that guarantees their election and stops them from facing recall.

Unless the Board of Elections can offer true and actual lists of registered voters, the standard is null and void and should not be upheld by the courts. And, their authority in these matters is questionable, since the only mention in the charter of anyone with authority to manage petitions is the clerk of the commission- which could be argued, since they work at the pleasure of the Commission- is effectively, the commission ruling over their opposition:

Sec. 30. [Same–Outcome of Electorate Vote.] The Clerk of the Commission shall deliver the petition to the Commission, which shall proceed to reconsider the ordinance. If, upon such reconsideration, the ordinance be not entirely repealed, the Commission shall provide for submitting it to a vote of the electors, and in so doing the Commission shall be governed by the provisions of §§ 25, 26 and 27 hereof, respecting the time of submission and of manner of voting on ordinances proposed to the Commission by petition. If, when submitted to a vote of the electors, any such ordinance be not approved by a majority of those voting thereon, it shall be deemed repealed.

If the standards to qualify to be on the ballot are applied to the right to petition for removal- we have created rules that effectively eliminate the right to petition the Government for a redress of grievances which is guaranteed to us under the First Amendment.

It’s time for these kangaroo courts, run by the political parties and people in power- to open up the doors to the houses of the people. We can’t have a democracy, when rules from another century are allowed to be used as tools to effectively silence all opposition.

Are there any lawyers among my readers who might add constitutional support to the argument about having the ability to petition government? Can anyone help me refine the logic on this?

A document written in 1913 is a pathetic way to manage elections in 2011, especially if we’re making it up as we go along.

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