dissenting. I respectfully dissent. For the reasons that follow, I would issue a writ of prohibition with regard to at least three of the six petitions at issue.
In denying the writ, the majority accepts respondents’ argument that this case is barred by laches. I disagree. I believe the relator has established that he acted with the required diligence in pursuing this case. He filed a written protest twenty days after the petitions were filed. Although the actual protest is not part of the record, it is clear from the transcript of the hearing before the board that the written protest detailed at least six separate categories of *598irregularities with regard to the circulation of the petitions. In preparing his protest, relator examined and compared over two thousand seven hundred signatures contained in the six petitions and interviewed and obtained affidavits from persons who had signed the petition regarding irregularities in the circulation of the petitions. I believe that relator acted with due diligence in this regard. Moreover, neither respondent argues this as grounds for laches, but, rather, both argue that the claim is barred by laches because relator did not file his action in this court until fourteen days after the board denied his protest.
I would find that respondents are estopped from raising laches as a defense because of the board’s prior action of continuing the September 13 protest hearing for fourteen days. The majority finds that the continuance was necessitated by relator’s failure to comply with R.C. 3501.39(A) by not stating all of his objections in his September 10 protest with sufficient specificity. I disagree with that finding.
The transcript from the September 27 hearing indicates that at the September 13 hearing, Thomas Hisrich, chairman of the board, instructed relator to narrow his protest to just those signatures that the board certified as valid. The September 13 hearing was then continued to allow relator time to narrow his protest. Contrary to the majority’s assertion, this is not a requirement of R.C. 3501.39(A). It is clear to me that the hearing was continued as a matter of convenience to the board members who did not want to “waste a lot of time” listening to relator’s protests regarding petition signatures that were not certified.
Relator advised Hisrich that he would be ready to continue the proceedings the following Monday, September 17. Hisrich informed relator that the board would be unable to hold the hearing the week of September 17 because members of the board wished to attend the Tuscarawas County Fair that was scheduled for that week. Therefore, Hisrich set September 27, fourteen days later, as the date for further hearing. Thus, I conclude that respondents are estopped from raising laches based on relator’s fourteen-day delay in filing his complaint in this court when the board delayed the protest hearing fourteen days so its members could attend the county fair. For the foregoing reasons, I would reject respondents’ laches defense and reach the merits of this case.
Relator raised numerous objections to the petitions in his protest before the board and in his complaint before this court. One stands out and is supported by the evidence. That objection relates to the circulator affidavit that, pursuant to R.C. 3501.38, must be on each part-petition. R.C. 3501.38 provides that all petitions filed with a board of elections on any issue “shall” be governed by the following:
*599“(E) On each petition paper the circulator shall indicate the number of signatures contained thereon, and shall sign a statement made under penalty of election falsification that he witnessed the affixing of every signature, that all signers were to the best of his knowledge and belief qualified to sign, and that every signature is to the best of his knowledge and belief the signature of the person whose signature it purports to be.” (Emphasis added.)
Relator’s protest included the assertion that a petition circulator, Chester McVey, who had submitted part-petitions on each issue, had executed faulty affidavits on some of the part-petitions he circulated. In support of his contention, relator offered an affidavit executed by Ida Roberts. That affidavit contains the following statements:
“2. On July 5, 2001, Chester McVey came to Affiant’s home with several petitions which he said were to lower property taxes and fix roads.
it* * *
“4. Chester McVey waited on Affiant’s porch while Affiant took the petitions inside her house.
“5. While Affiant was inside her home, Affiant signed her name and that of her husband, Ollie Roberts, to the petitions.
“6. Affiant returned to her porch with the petitions and handed them back to Chester McVey bearing the names of both Affiant and Ollie Roberts.
U* * *
“8. Chester McVey did not personally witness Affiant affix her signature to the petitions or sign her husband’s name on the petitions.”
Because no evidence was submitted at the hearing to rebut this affidavit, the board should have found that McVey had executed faulty affidavits on the part-petitions containing Ida Roberts’s signature. Furthermore, because election laws are mandatory and require strict compliance, State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 169, 602 N.E.2d 615, 617, the entire part-petitions containing the faulty affidavits should have been invalidated for failure to comply with R.C. 3501.38(E).
The record shows that the board certified twenty-four to twenty-six signatures on each of the six part-petitions containing Ida Roberts’s signature. (Ida Roberts signed a part-petition for each of the six issues.) Because I would find that these signatures should not have been certified, I would subtract the appropriate number from the number of signatures certified by the board on each petition and then determine whether each of the six petitions had the required number of signatures to place them on the ballot.
Accordingly, the board certified four hundred sixty-one signatures on the petition to repeal the November 5, 1963 levy. I would subtract twenty-five from *600that total, leaving four hundred thirty-six valid signatures. Because each petition was required to have at least four hundred forty signatures to be placed on the ballot, I would find the number of signatures on this petition insufficient and would issue a writ of prohibition as to the petition to repeal the November 5,1963 levy. Similarly, the board certified four hundred forty-four signatures on the petition to repeal the May 6, 1969 levy and four hundred fifty-six signatures on the petition to repeal the November 7, 1977 levy. Thus, reducing these totals by twenty-five and twenty-six respectively leaves fewer than four hundred forty signatures on each. Therefore, I would also issue a writ with regard to these petitions.
Squire, Sanders & Dempsey, L.L.P., David J. Young and Michael R. Reed, for relator. Michael A. Cochran, Tuscarawas County Assistant Prosecuting Attorney, for respondent Tuscarawas County Board of Elections.On the other hand, the board certified four hundred sixty-nine signatures on the petition to repeal the December 9, 1969 levy. Subtracting twenty-five signatures from that total leaves four hundred forty-four valid signatures, which are more than the four hundred forty signatures required. Thus, I would not issue a writ of prohibition as to the petition to repeal the December 9, 1969 levy. Likewise, the board certified four hundred sixty-five signatures on the petition to repeal the May 5, 1970 levy and four hundred sixty-six signatures on the petition to repeal the November 4, 1975 levy. Thus, when these totals are reduced by twenty-five and twenty-four respectively they still have the required number of signatures to place these issues on the ballot. Notwithstanding these computations, it appears from the face of the petitions that they would be subject to further challenge upon other statutory and evidentiary grounds. However, neither the board nor the relator pursued these issues at the hearing by developing or producing competent, sworn evidence to the apparent irregularities. Therefore, I would not issue a writ with regard to these petitions.
Accordingly, I would issue a writ with regard to the petition to repeal the November 5, 1963 levy, the petition to repeal the May 6, 1969 levy, and the petition to repeal the November 7, 1977 levy. I recognize that ballots have been prepared and the election is already underway through absentee ballots. Thus, in issuing a writ I would indicate that the votes cast on the three issues specified above should not be tabulated.
Betty D. Montgomery, Attorney General, Darrell M. Pierre, Jr., and Elizabeth Luper Schuster, Assistant Attorneys General, for respondent Secretary of State of Ohio. Susan J. Kyte, urging granting of the writ for amicus curiae, Ohio Education Association.