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Supreme Court Affirms Local Ruling Voiding Election Result in 2011 Stark County Tax Levy

Ballot Language Understating Levy’s Impact on  Property Taxes Ruled Fatal Error

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2012-0184 and 2012-0214.  In re Contest of Election Held on Stark Cty. Issue 6, Slip Opinion No. 2012-Ohio-2091.
Stark C.P. No. 2011CV03947.  Judgment affirmed.
O'Connor, C.J., and Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer, J., concurs in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2091.pdf

(May 16, 2012) The Supreme Court of Ohio today affirmed a decision of the Stark County Court of Common Pleas  that set aside the results of a 2011 election in which Lake Township voters approved a property tax levy to fund expansion of the Uniontown Police District.

In a 7-0 per curiam decision, the court found that the ballot language describing Stark County Issue 6 significantly understated the impact of the levy on property owners, and the trial court acted correctly in setting aside the election result because the inaccurate ballot language constituted a “substantial defect that materially misled voters about the levy.”

Pursuant to a resolution adopted  by the Lake Township Board of Trustees, township voters in the November 8, 2011 election were asked to vote for or against adoption of the proposed tax levy “at a rate not exceeding four and one-half (4.50) mills for each one dollar of valuation, which amounts to forty-five cents ($0.45) for each one thousand dollars of valuation ...”  The issue was approved by 490 votes, with 5,577 votes in favor and 5,087 votes against.

On December 9, 2012 more than 300 of those who had voted in the November election (the contestors) filed a petition in the Stark County Common Pleas Court contesting the Issue 6 election result and requesting that the election be set aside and the issue be deemed rejected. They based that action on the fact that the 45 cents per $1,000 valuation figure stated in the ballot language was inaccurate, because adoption of a 4.5 mill levy would actually result in a tax assessment on property owners of $4.50 for each $1,000 of property valuation, an amount ten times higher than stated in the ballot language. The Stark County Board of Elections, Lake Township Board of Trustees and Citizens for Lake Township Police (the contestees) filed an answer urging the court to uphold the election results notwithstanding the ballot language error.

The court conducted a hearing at which the parties stipulated that the ballot language was inaccurate and that the same erroneous language had also appeared in the township trustees’ resolution placing Issue 6 on the ballot and in two legal notices describing the ballot issue that were published in the Hartville News. After reviewing witness testimony and  affidavits from 21 voters who indicated that they had voted “yes” on the issue based on the ballot language, but would have voted “no” if the true impact of the levy on their property taxes had been disclosed, and opposing testimony from the contestees, the court entered a judgment granting the election contest and setting aside the election result approving Issue 6.

The contestees exercised their right under Supreme Court Practice Rule 2.1(C)(2) and R.C. 3515.15 to appeal the trial court’s ruling directly to the Supreme Court.

In today’s unanimous decision, the court affirmed the trial court’s holding that the contestors’ election contest petition was not barred by the affirmative defenses of laches (unreasonable delay in asserting a legal challenge) or estoppel (failure to assert their challenge before the ballot issue was submitted  to the voters).

With regard to the contestors’ claim that the inaccurate ballot language constituted an error sufficient to require voiding the election result, the court wrote: “To prevail in their election contest, contestors ‘had to establish by clear and convincing evidence that one or more election irregularities occurred and that the irregularity or irregularities affected enough votes to change or make uncertain the result of the ... election.’  ... (T)he parties stipulated ... the election ballot’s failure to comply with R.C. 505.481(B) by understating the correct tax amount for the police district levy by ten times less than the actual amount constituted an election irregularity.”

“For the second part of the test, the trial court determined that the contestors were not required to bring into court 246 voters who voted for Issue 6 to testify that they would have voted no if the ballot language stating the tax in dollars and cents per $1,000 of valuation had been correct.  Contestees are correct that ordinarily, evidence that 21 voters would have voted differently in the absence of any election irregularity would not be clear and convincing evidence that the irregularity affected enough votes to either change the outcome or make it uncertain when the margin by which the issue was approved is 490 votes. But in tax-levy and bond cases, we have presumed the invalidity of the election more readily in the context of a postelection proceeding.” 

“The degree of the error here was substantial. The defective language on the ballot, notice, and authorizing resolution understated the actual tax to be levied by Issue 6 by ten times less than the actual tax.  In calculating the error, there is no evidence that the township or the election officials were faced with any problems estimating the amount of the levy. Finally, the issue was passed by approximately 52.3 percent of the vote—hardly an overwhelming majority. ... A misstatement that property owners would pay ten times less than the actual taxes they would pay constituted a substantial defect that materially misled voters about the levy. The contestors’ witnesses testified that they were, in fact, misled.”          

“Therefore, the contestors have satisfied their heavy burden of establishing by the requisite clear and convincing evidence that the election irregularity affected enough votes to make the election result on Issue 6 uncertain.”

The court’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.  Justice Paul E. Pfeifer concurred in judgment only.

Contacts
John D. Ferrero Jr., 330.451.7935, for the Lake Township Board of Trustees.

Eric J. Stecz, 330.499.6000, for the election contestors.