Appellant, whose nominating petition bore signatures of about
15% of those in the congressional district who had voted in the
last gubenatorial election (although the Ohio statute then required
7% of the voter on the nominating petition for all independent
candidates for Congress), sought, as his sole relief, a writ of
mandamus to compel the Board of Elections to place his name on the
ballot as an independent candidate for Congress in the November,
1968 election.
Held: In view of the limited nature of the relief
requested, the case is now moot.
Vacated and remanded.
PER CURIAM.
The appellant sought to run in the November, 1968, election as
an independent candidate for the United States House of
Representatives from the Twenty-first Congressional District of
Ohio. His nominating petition bore the signatures of 899 voters in
the congressional district, a little over 15% of those in the
district who had voted in the gubernatorial contest at the last
election. The Board of Elections ruled that the appellant's
petition was insufficient to put his name on the November ballot
because it did not contain the signatures of 7% of the
Page 396 U. S. 42
qualified voters, as Ohio law then required. [
Footnote 1] The appellant petitioned the
Court of Common Pleas for a writ of mandamus, challenging the 7%
requirement as
"unreasonably high and excessive, . . . disproportionate when
compared to the 100 signatures required for party candidates,
[
Footnote 2]. . . arbitrary and
capricious, . . . [and] an invidious discrimination without any
relationship to constitutionally justified ends. . . ."
He urged as the proper standard for determining the sufficiency
of his nominating petition the 1% requirement that had prevailed
for over 60 years until the enactment of the 7% rule in 1952. He
prayed for an immediate order restraining the Board of Elections
from printing the election ballots; also for a writ of mandamus
commanding the Board "to certify the sufficiency of relator's
nominating petition" and directing the appellees
"to do all things necessary to place relator's name upon the
ballot as an independent candidate for United States House of
Representatives from the Ohio Twenty-First Congressional District
in the November 5, 1968, general election. . . ."
His suit did not purport to be a class action, and he sought no
declaratory relief.
On August 22, 1968, the Court of Common Pleas denied the writ of
mandamus. On October 1, the Court of
Page 396 U. S. 43
Appeals for the Eighth Judicial District affirmed that judgment,
and, on October 23, the Supreme Court of Ohio dismissed the appeal
for want of a substantial constitutional question. The appellant
then appealed to this Court pursuant to 28 U.S.C. § 1257, and we
noted probable jurisdiction, 393 U.S. 1078. While the appeal was
pending here, Ohio amended the controlling statute, effective
October 30, 1969, reducing the signature requirement from 7% to
4%.
We do not think the recent statutory amendment has rendered this
case moot . For the appellant has consistently urged the
unconstitutionality of any percentage requirement in excess of the
1% that Ohio imposed prior to 1952, and he obtained the signatures
of only about 1% of the voters in his district. He thus could not
have won a place on the ballot even under the statute as currently
written.
Cf. Hall v. Beals, post, p.
396 U. S. 45.
Rather, in view of the limited nature of the relief sought, we
think the case is moot because the congressional election is over.
The appellant did not allege that he intended to run for office in
any future election. He did not attempt to maintain a class action
on behalf of himself and other putative independent candidates,
present or future. He did not sue for himself and others similarly
situated as independent voters, as he might have under Ohio law.
Ohio Rev.Code Ann. § 2307.21 (1953). He did not seek a declaratory
judgment, although that avenue too was open to him. Ohio Rev.Code
Ann. §§ 2721.01-2721.15 (1953).
Instead, he sought only a writ of mandamus to compel the
appellees to place his name on the ballot as a candidate for a
particular office in a particular election on November 5, 1968. In
Ohio, mandamus is an extraordinary remedy, available to a
petitioner only on a showing of clear legal right.
State ex
rel. Gerspacher v. Coffinberry, 157 Ohio St. 32, 104 N.E.2d 1;
State ex rel.
Page 396 U. S. 44
Stanley v. Cook, 146 Ohio St. 348, 66 N.E.2d 207. The
writ does not lie to review the determination by a Board of
Elections that a candidate is ineligible to assume the office he
seeks or that his petition is invalid, in the absence of
allegations of fraud, corruption, abuse of discretion, or a clear
disregard of statutes or applicable legal principles.
State ex
rel. Flynn v. Board of Elections, 164 Ohio St.193, 129 N.E.2d
623;
cf. State ex rel. Hanna v. Milburn, 170 Ohio St. 9,
11, 161 N.E.2d 891, 893. In the instant suit, the Court of Common
Pleas ruled that the appellant
"must not only establish that the act which he seeks to compel
respondents to perform is one that they are constitutionally bound
to perform by virtue of their offices, but also that he, the
relator, has a clear right to have the duty enforced."
The court, without passing on the merits of the legal issues
raised by the parties, found that the appellant had not established
a clear legal right to the writ on the basis of all the
evidence.
It is now impossible to grant the appellant the limited,
extraordinary relief he sought in the Ohio courts. Accordingly, the
judgment of the Supreme Court of Ohio must be vacated without costs
in this Court, and the cause remanded for such proceedings as that
court may deem appropriate.
It is so ordered.
[
Footnote 1]
Ohio Rev.Code Ann. § 3513.257 (Supp. 1968) provided in pertinent
part:
"The nominating petition of an independent candidate for the
office of . . . district representative to congress, shall be
signed by not less than seven percent of the number of electors who
voted for governor at he next preceding regular state election for
the office of governor in the district."
[
Footnote 2]
Under Ohio law, a candidate for the nomination of a political
party to the office of United States Representative must, in order
to enter the party primary, obtain from the party membership within
the congressional district the signatures of either 100 voters or
5% of those who voted in the last gubernatorial election, whichever
is less. Ohio Rev.Code Ann. § 3513.05 (Supp. 1968).