I find it necessary respectfully to dissent from the majority in this case for two reasons.
The first arises from my concern that the ruling will lead to confusion in the minds of potential candidates and the electorate as to the status of a would be "write-in" candidate in the position of the appellant. When an elector seeks to become a write-in candidate at the general election after having previously sought office at a party primary election during the same year, Ohio election laws bar him from ballot access. This is what the majority opinion says but the court has validated the candidacy of *Page 234 the appellant in this instance for reasons which do not impress me as legally valid or judicially cogent.
We are determining that under certain, hopefully rare, circumstances a board of elections may ignore the laws of the state of Ohio and permit a candidacy of this kind. If, for any reason, no one hastens into the courts to challenge such an erroneous act, the candidate may obtain votes by the write-in process. Theoretically, therefore, an unauthorized candidate might win election by this process and should he do so, his success would be subject, in my judgment, to challenge in the courts. This is a result devoutly to be abhorred, and we should seek resolutely to prevent its occurrence.
The second reason for this dissent derives from the majority's utilization of the equitable doctrine of laches as the basis for its conclusion. We are holding (1) that the Board of Elections of Cuyahoga County acted improperly in approving the appellant's application to become a write-in candidate for Sheriff of Cuyahoga County, (2) that the trial court was correct in sustaining the constitutionality of R. C. 3513.04; and (3) that the appellant's quest for permission to become a write-in nominee should have been prevented by the board of elections. Having uttered these views, the assertion that the appellee, who was himself merely another elector seeking write-in votes, may be held guilty of laches for delay in asserting a public legal right impresses me as a legal "non sequitur."
In substance, it is not the appellee whose erroneous conduct is at issue before us. Rather, it is the egregious misconduct of the board of elections which is properly in question. Our ruling against the appellee operates to condone a violation of the state election laws by the board.
Beyond this, the application of the equitable doctrine of laches to the particular circumstances of this case appears to me to be unfortunate. Unquestionably, where time is an important factor as it usually is in election matters, extreme diligence and prompt action are required from one who challenges the proceedings of an elections board. This is necessary because election arrangements normally *Page 235 entail the printing of ballots or the preparation of voting machines along with the distribution of notices and absentee ballots in the satisfaction of voting procedures.
However, in the instant case, none of these considerations is urgently applicable. A "write-in" candidacy is provided by law for all general elections. Therefore, the appellant's candidacy required no additional printing and only a minimal amount of notification to any one. The board of elections in a proper write-in situation merely authorizes the officials charged with recording such votes to note them on the records of the precinct.
These conditions have been tacitly recognized by the majority which seeks to levy the charge of laches against the appellee solely by reason of delay in bringing his action below. Presumably, it is believed that this delay affected the appellant adversely through permitting him to engage in various expenditures in pursuit of his election goals.
It is informative in this context to analyze the timetable. The board of elections approved the appellant's candidacy as a write-in candidate for Sheriff on September 27, 1976. The appellee filed an action on October 22, 1976, in the Court of Common Pleas seeking an injunction against this candidacy. It was not until a week later, on October 29, 1976, that the appellant filed his motion to dismiss the complaint. To assert that the appellee was guilty of laches in waiting 25 days before bringing his original action, and to ignore the seven-day delay by the appellant in filing his motion to dismiss the complaint, suggests that procrastination may well have been a factor favorably regarded by the appellant in pursuit of his political objective. Applying laches to excuse a violation of election law where little or no harm was done to the appellant appears to be both unwise and inappropriate.
In Pomeroy's Equity Jurisprudence at p. 50, the distinguished authority recites:
"An important limitation upon the general rule as to the effect of delay has been established by a considerable preponderance of authority. `Where an injunction is *Page 236 asked in support of a strict legal right, the party is entitled to it if his legal right is established; mere delay and acquiescence will not, therefore, defeat the remedy unless it has continued so long as to defeat the right itself.' * * *"
The equitable doctrine of laches is based upon the coincidence of unwarranted delay and a change of position by the party seeking to invoke the doctrine. Shanik v. White SewingMachine Corp. (1941), 25 Del. Ch. 371, 19 A.2d 831, 837.
In Smith v. Smith (1959), 168 Ohio St. 447, the court declared:
"Delay in asserting a right does not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown that the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting his claim."
Here the only material prejudice which could have been incurred by the appellant relates to his expenditure of time and money for his candidacy. The public records of the board of elections indicate that he spent $1,186.34 for pencils in his campaign, advertising his candidacy and presumably making them available for voters to write-in his name on Election day. This was his total expenditure. Considering that his candidacy was county-wide, this sum would scarcely seem to qualify as the kind of expenditure calling for the invocation of laches either "materially prejudicing" the appellant or as a "change of position" justifying what we have characterized as an illegal action.
For these reasons, I would affrm the ruling of the court below and would dismiss the appeal. *Page 237