Friday, June 12, 2015


Next Wednesday, June 17, 2015 could be an interesting scene at the Stark County Board of Elections (BOE).

Normally, BOE post-filing-petitions certification sessions are pretty cut and dried.

Either a candidate obtained the minimum required signatures and the petitions were properly filled out and attested to or they weren't.

If they were, then the candidate goes on the ballot.

If they were not, then the candidate is denied ballot access as in case of Canton Board of Education candidate Eric Resnick in the 2011 election year cycle.

Of course, there is an opportunity to challenge in court a BOE candidacy non-certification finding as North Canton councilman Mark Cerreta successfully did in the 2013 election.

But mostly candidates or others do not challenge BOE certifications.

Accordingly, next Wednesday should be uneventful, unless, of course, Conley shows up and presses BOE Democratic members Ferruccio, Jr. and Sherer, II not to participate in any decision for reasons cited later on in this blog.

For 2015, there is already one challenge to the candidacy and a second expected.

However, the challenge (called a protest) is not on the routine basic matters of enough petition signatures or compliance with legal formalities of the petitions themselves.

Rather, in the case of Stark County Commissioner Thomas Bernabei (a well known, long time Democrat) and his quest to get on the November ballot as an "independent" challenge to incumbent Democrat Canton mayor William J. Healy, II; the question centers on his meeting residency requirements and whether or not he is making the switch from Democrat to "independent" in good faith.

Commissioners Creighton & Bernabei
(Creighton top Stark GOP supporter)

Ditto for former Massillon mayor Frank Cicchinelli.  He like Bernabei is a well known, lifelong Democrat who is attempting to unseat incumbent Democratic mayor Kathy Catazaro-Perry who defeated him in the Democratic primary election of 2011 after he had been mayor for 24 years.

While having no residency problem, he is also susceptible to a good faith challenge on his switch over to "independent."

In his case, a formal protest likely will not be lodged until the BOE does its perfunctory thing and certifies him on the formalities next Wednesday.

In both cases, the Democratic members of the Stark BOE are likely to find justification for not certifying "former" Democrats Bernabei and Cicchinelli.

As for the Republicans, how they will vote on protests is unclear.

In Bernabei's case, the SCPR thinks the Republican BOE members are likely to vote to certify even in the face of a protest in view of the fact that the Stark GOP has not fielded a candidate for mayor and it is well known that Democrat Healy is loathed by Stark County Republican officialdom.

Moreover, the tie-breaker; namely, Ohio Secretary of State Jon Husted, and his demonstrated "pro-ballot-access" (reference: the George T. Maier case), is likely to break a tie in favor of Bernabei.

Which determination, if it is in the offing, is likely to be challenged in the Ohio Supreme Court.

To sum up Bernabei's situation, he is likely to do well on the political front (as explained above) but not on the legal issues except that the Ohio Supreme Court is likely to uphold a BOE determination (as in Maier) as long as Husted cites a plausible rationale for have decided to certify.

Husted coming up with a plausible legal rationale could be problematic in the face of of Stark Dems/Ohio Dems' attorney Lee Plakas' excellent protest brief applying the Bernabei facts to Ohio's statutory scheme as interpreted by Ohio case law.

Moreover, there are legal (constitutional) arguments of "freedom of political association" (the "independent" candidacy question) and "freedom of movement" (the "residency" question) that favor Bernabei.

These points certainly will be the mainstay of Bernabei's legal counsel (J. Corey Colombo) of Columbus; one would think.

Those, however, the SCPR believes are beyond the pale of the BOE proceedings and will only prevail at the Ohio Supreme Court level.

In Cicchinelli's case, the SCPR surmises that he loses the political battle within the BOE framework anyway one cuts it.

Even if the Democrats are recused, it is hard to see the Republican members of the Board voting to certify him in the face of a protest being filed.

That vote is likely to be 2 - 0, if the Democrats are recused; 4 - 0, if they are not.

But an appeal to the Ohio Supreme Court is likely to come out in favor of Cicchinelli both because he has done much more in advance of filing as an independent to disassociate himself from the "organized" Stark County Democratic Party than Bernabei.

Bernabei, on the other hand, was "up-to-his-ears," and "knee-deep" in organized Stark County Democratic Party/candidate activities to within days of filing his independent candidacy on May 4, 2015.

When is "all-is-said-and-done," the SCPR thinks it is likely that both Bernabei and Cicchinelli make it to the November ballot.

So the "fuss-and-feathers" about Democrat members Sam Ferruccio, Jr. and William V. Sherer, II being recused are kind of a political/legal skirmish that the SCPR doesn't think means much, if anything, in the ultimate outcome of these proceedings.

But Cicchinelli attorney Craig T. Conley does get rather creative in dealing with the argument that were Ferruccio and Sherer to be recused, there would be no quorum and therefore the protests could not be heard.

As the SCPR understands Conley's argument, if the two Democrats are recused because:
  • they are members of the Stark County Democratic Party executive committee
    • which voted to authorize the filing of BOE protests against the Bernabei and Cicchinelli candidacies
      • Note:  the SCPR has learned that neither Ferruccio nor Sherer, II were present at that meeting authorizing the filing of protests,
then Secretary Husted could appoint temporary replacements or alternatively Ferruccio and Sherer could participate for quorum purposes but then abstain from participating on the certification determination question.

While in the cases at hand (Bernabei and Cicchinelli), the voting participation of Ferruccio and Sherer is not likely to make a difference in the outcome, Conley's effort is applauded by the SCPR.

For a conflict-in-interest free BOE membership deciding ballot questions is of critical importance in the integrity and the preservation of the "rule of law" over political party loyality considerations are of paramount importance in our American democratic-republican system of government.

No comments: