[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Henderson v. Clermont Cty. Bd. of Elections, Slip Opinion No. 2024-Ohio-333.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-333
THE STATE EX REL . HENDERSON v. CLERMONT COUNTY BOARD OF
ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Henderson v. Clermont Cty. Bd. of Elections, Slip
Opinion No. 2024-Ohio-333.]
Mandamus—Relator failed to comply with personal-knowledge requirement of
S.Ct.Prac.R. 12.02(B)(2) in affidavit filed with petition—Cause dismissed.
(No. 2024-0090—Submitted January 30, 2024—Decided January 31, 2024.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} In this expedited election matter, relator, Matthew Henderson, seeks
a writ of mandamus ordering respondent, the Clermont County Board of Elections,
to place his name on the March 19, 2024 primary-election ballot as a candidate for
the Republican Party nomination for the office of U.S. Representative for the
Second Ohio Congressional District. The board determined that Henderson’s
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candidate petition did not contain enough valid signatures to qualify him for
placement on the ballot.
{¶ 2} Henderson subsequently filed a motion for leave to amend the
affidavit that he filed with his complaint, in response to the board’s contention that
his affidavit does not comply with S.Ct.Prac.R. 12.02(B)(2). Because Henderson’s
amended affidavit does not cure all the defects of his original affidavit, we deny the
motion for leave as futile and dismiss the complaint for failure to comply with
S.Ct.Prac.R. 12.02(B)(2).
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Process for Becoming a Congressional Candidate
{¶ 3} Henderson seeks the Republican Party nomination for a seat in the
U.S. House of Representatives representing the Second Ohio Congressional
District. Ohio’s second congressional district encompasses territory in 14 counties.
See R.C. 3521.012.
{¶ 4} Under R.C. 3513.05, a person desiring to become a candidate for a
party nomination for a congressional office must file a declaration of candidacy and
petition no later than 4:00 p.m. on the 90th day before the day of the primary
election. To be valid, the petition must contain the signatures of at least 50 qualified
electors who are members of the same political party as the candidate. Id. When,
as here, the declaration of candidacy is for a congressional district that encompasses
territory in more than one county, the petition must be filed with the board of
elections of the most populous county within the district. Id. Clermont County is
the most populous county in the second congressional district. See Ohio Secretary
of State, County Populations and Filing Locations, Ohio Congressional Districts,
available at https://www.ohiosos.gov/elections/elections-officials/rules/#manual
(accessed Jan. 30, 2024) [https://perma.cc/ZNW7-CBHU.]
{¶ 5} The board of elections with which the petition is filed shall promptly
transmit to the board of each other county within the district the petition papers “as
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January Term, 2024
purport to contain signatures of electors” from those counties. R.C. 3513.05. If a
part-petition contains signatures of electors of more than one county, “the board
shall determine the county from which the majority of signatures came, and only
signatures from such county shall be counted. Signatures from any other county
shall be invalid.” Id. Each board receiving petitions “shall * * * examine and
determine the validity or invalidity of the signatures on the petition papers so
transmitted to or filed with it * * * and shall return to each other board all petition
papers transmitted to it by such board, together with its certification of its
determination as to the validity or invalidity of the signatures thereon.” Id. Upon
return of the petition papers, the board of elections of the most populous county in
the district must then determine whether the petition contains enough valid
signatures to qualify the candidate for placement on the primary-election ballot. Id.
B. Henderson Is Not Certified for the Ballot
{¶ 6} On December 20, 2023, Henderson filed with the board a declaration
of candidacy and nominating petition to run for the Republican Party nomination
for the office of U.S. Representative for the Second Ohio Congressional District.
Henderson’s petition consisted of four part-petitions containing 63 total signatures:
• Part-petition No. 1 contains 12 signatures, with all signers purporting to be
electors of Ross County.
• Part-petition No. 2 contains 23 signatures, with all signers purporting to be
electors of Pickaway County.
• Part-petition No. 3 contains 24 signatures, with signers purporting to be electors
of Pickaway, Pike, Ross, or Scioto Counties.
• Part-petition No. 4 contains 4 signatures, with all signers purporting to be
electors of Hocking County.
{¶ 7} The board unanimously rejected Henderson’s petition at its regular
meeting on December 22. The board found that the “Petition for Candidate” section
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had not been completed on part-petition No. 1, thus rendering it invalid in its
entirety. And regarding part-petition No. 3, the board noted that it contained
signatures of purported electors from four different counties, and because the most
signatures came from purported electors of Pickaway County, the valid signatures
from only that county would be counted and “[a]ll other signatures would be
invalidated.” See R.C. 3513.05. As a result, Henderson’s petition contained fewer
than the 50 valid signatures required to qualify him for placement on the primary-
election ballot.
{¶ 8} The board declined Henderson’s request that it reconsider its decision.
Henderson commenced this action on January 16, 2024, requesting a writ of
mandamus ordering the board to certify his name for placement on the March 19
primary-election ballot as a candidate for the Republican Party nomination for U.S.
Representative of the Second Ohio Congressional District. Along with his
complaint, Henderson submitted an affidavit in which he avers “upon personal
knowledge or information” that the facts alleged in the complaint “are true and
accurate as [he] verily believe[s].” We set an expedited schedule for the board to
file an answer to the complaint and for the parties to submit evidence and merit
briefs. __ Ohio St.3d __, 2024-Ohio-153, __ N.E.3d __.
{¶ 9} In its answer, the board denied that Henderson was entitled to relief
and raised as an additional defense that Henderson’s complaint was defective for
failing to include an affidavit as required by S.Ct.Prac.R. 12.02(B)(2). Henderson
then filed a motion for leave to amend his affidavit, which the board opposes.
II. ANALYSIS
{¶ 10} A complaint for a writ of mandamus “must be * * * verified by
affidavit.” R.C. 2731.04. In addition, S.Ct.Prac.R. 12.02(B)(1) states that a
complaint in an original action in this court “shall be supported by an affidavit
specifying the details of the claim.” Our rules further provide that the affidavit
“shall be made on personal knowledge, setting forth facts admissible in evidence,
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January Term, 2024
and showing affirmatively that the affiant is competent to testify to all matters stated
in the affidavit.” S.Ct.Prac.R. 12.02(B)(2).
{¶ 11} In this case, Henderson submitted an affidavit purporting to testify
to the truth of the facts set forth in his complaint and to the authenticity of the
documents attached to the complaint. The board argues that Henderson’s affidavit
is fatally defective for two reasons: (1) it is not properly notarized and (2) it does
not satisfy the personal-knowledge requirement. Henderson filed a motion for
leave to amend his original affidavit and attached a copy of his amended affidavit
to both the motion for leave and his reply brief. The amended affidavit is identical
to the original affidavit except that it cures the notarial defect that was in the original
affidavit.1
{¶ 12} In its opposition to the motion for leave, the board acknowledges
that Henderson’s amended affidavit is properly notarized. However, the board
argues that Henderson’s motion should still be denied because the amended
affidavit has not cured the other material deficiency of the original affidavit—it
does not satisfy the personal-knowledge requirement under S.Ct.Prac.R.
12.02(B)(2). See State ex rel. McDougald v. Greene, 160 Ohio St.3d 82, 2020-
Ohio-2782, 153 N.E.3d 75, ¶ 14 (court may deny motion for leave to amend when
the amendment would be futile).
{¶ 13} Both the original and the amended affidavit state in the preamble that
Henderson is testifying “upon personal knowledge or information.” (Emphasis
added.) Henderson concludes both affidavits by stating, “I have reviewed the facts
set forth in the foregoing Complaint and verify that the facts are true and accurate
as I verily believe.”
1. Henderson’s original affidavit was defective because it contained a notarial seal but not the
signature of the notary. See State ex rel. White v. Franklin Cty. Bd. of Elections, 160 Ohio St.3d 1,
2020-Ohio-524, 153 N.E.3d 1, ¶ 13 (documents containing notarial stamp but not signature of notary
are unsworn statements).
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{¶ 14} “An affidavit that is made ‘ “to the best of” ’ an affiant’s ‘personal
knowledge and information’ does not satisfy S.Ct.Prac.R. 12.02(B)(2), because that
type of statement does not make clear ‘which allegations are based on personal
knowledge and which allegations are based simply on information.’ ” State ex rel.
Simonetti v. Summit Cty. Bd. of Elections, 151 Ohio St.3d 50, 2017-Ohio-8115, 85
N.E.3d 728, ¶ 11, quoting State ex rel. Commt. for the Charter Amendment for an
Elected Law Dir. v. Bay Village, 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d
574, ¶ 12-13, quoting State ex rel. Hackworth v. Hughes, 97 Ohio St.3d 110, 2002-
Ohio-5334, 776 N.E.2d 1050, ¶ 24. Thus, we have held that affidavits containing
similar language to that of Henderson’s do not comply with S.Ct.Prac.R.
12.02(B)(2). See, e.g., Simonetti at ¶ 12 (affidavit “ ‘based upon [affiant’s] personal
knowledge and information’ ” is invalid); State ex rel. Beard v. Hardin, 153 Ohio
St.3d 571, 2018-Ohio-1286, 109 N.E.3d 1174, ¶ 11 (affidavit containing the
following language, “ ‘statements that I make in this Affidavit are based upon my
personal knowledge or upon information that I believe to be true,’ ” does not
comply with S.Ct.Prac.R. 12.02(B)(2) [emphasis deleted]); State ex rel.
Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-Ohio-
3761, 41 N.E.3d 1229, ¶ 14 (affidavit attesting to factual allegations being true “ ‘to
the best of [the affiant’s] knowledge, information, and belief’ ” does not comply
with S.Ct.Prac.R. 12.02(B)(2) [brackets sic]).
{¶ 15} We have declined to dismiss mandamus petitions for noncompliance
with S.Ct.Prac.R. 12.02(B)(2) when the relator sought leave to cure the defective
personal-knowledge language in an amended affidavit and did, in fact, cure it.
Simonetti at ¶ 13; Beard at ¶ 13; Youngstown at ¶ 14. But in this case, while
Henderson has sought leave to file an amended affidavit, he has not cured the
personal-knowledge defect that is present in the original affidavit. Indeed, he has
submitted an affidavit with the same defective personal-knowledge language, albeit
one that has been properly notarized. Accordingly, Henderson’s proposed amended
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January Term, 2024
affidavit remains noncompliant with S.Ct.Prac.R. 12.02(B)(2). We therefore deny
his motion for leave to amend as futile and dismiss the complaint for
noncompliance with S.Ct.Prac.R. 12.02(B)(2).
{¶ 16} Because Henderson’s complaint is fatally defective, we need not
reach the merits of his mandamus claim.
III. CONCLUSION
{¶ 17} We deny as futile Henderson’s motion for leave to amend his
affidavit and dismiss the complaint for failure to comply with S.Ct.Prac.R.
12.02(B)(2).
Cause dismissed.
KENNEDY, C.J., and FISCHER, DEWINE, STEWART, BRUNNER, and DETERS,
JJ., concur.
DONNELLY, J., concurs in judgment only and would reach the merits of the
case.
_________________
Matthew Henderson, pro se.
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Brian C.
Shrive, Julia B. Carney, and Joseph T. Mooney, Assistant Prosecuting Attorneys,
for respondent.
_________________
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