In re Election Contest of Democratic Primary Election Held May 4, 1999 for Nomination to the Office of Clerk, Youngstown Municipal Court, 88 Ohio St. 3d 258

Per Curiam. Election Contest: Applicable Standards Durkin challenges the May 4, 1999 primary election for the office of Clerk of the Youngstown Municipal Court. In evaluating Durkin’s election contest, we are guided by several, well-established precepts. Initially, “courts should be very reluctant to interfere with elections, except to enforce rights or mandatory or ministerial duties as required by law.” State ex rel. Taft v. Franklin Cty. Court of Common Pleas (1998), 81 Ohio St.3d 480, 481, 692 N.E.2d 560, 562; MacDonald v. Bernard (1982), 1 Ohio St.3d 85, 86, 1 OBR 122, 123, 438 N.E.2d 410, 411-412.

Additionally, every reasonable presumption should be indulged in favor of upholding the validity of an election and against ruling it void. Copeland v. Tracy (1996), 111 Ohio App.3d 648, 655, 676 N.E.2d 1214, 1218; Beck v. Cincinnati (1955), 162 Ohio St. 473, 475, 55 O.O. 373, 374, 124 N.E.2d 120, 122. Moreover, an election result will not be disturbed unless the evidence establishes that the result was contrary to the will of the electorate. Portis v. Summit Cty. Bd. of Elections (1993), 67 Ohio St.3d 590, 592, 621 N.E.2d 1202, 1203; Mehling v.

Moorehead (1938), 133 Ohio St. 395, 408, 11 O.O. 55, 60, 14 N.E.2d 15, 21. In sum, “[t]he message of the established law of Ohio is clear: oür citizens must be confident that their vote, cast for a candidate or an issue, will not be disturbed except under extreme circumstances that clearly affect the integrity of the election.” (Emphasis added.) In re Election of November 6, 1990 for the Office of Atty. Gen. of Ohio (1991), 58 Ohio St.3d 103, 105, 569 N.E.2d 447, 450; State ex rel. Billis v. Summers (1992), 76 Ohio App.3d 848, 850, 603 N.E.2d 410, 411.

More specifically, in order to prevail in his contest of the May 4, 1999 primary election, Durkin had to prove by clear and convincing evidence that one or more election irregularities occurred and that the irregularity or irregularities affected enough votes to change or make uncertain the result of the primary election.

In re Election Contest of Democratic Primary Held May 4, 1999, 87 Ohio St.3d at 119, 717 N.E.2d at 702, citing In re Election of Nov. 6, 1990, 58 Ohio St.3d 103, 569 N.E.2d 447, at syllabus. “Clear and convincing evidence” is “ ‘[tjhat measure or degree of proof which is more than a mere “preponderance of evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which -will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ ” Cincinnati Bar Assn. v.

Massengale (1991), 58 Ohio St.3d 121, 122, 568 N.E.2d 1222, 1223, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the syllabus. With the foregoing standards in mind, we next consider Durkin’s claimed election irregularities. Unpled Irregularities On appeal, Durkin contends that an election irregularity occurred when the board failed to meet and act by majority vote on Sammarone’s withdrawal, instead permitting its employees, e.g., then Deputy Director Sciortino, to make decisions regarding the withdrawal.

Durkin further claims that the board’s failure to consult the Secretary of State concerning Sammarone’s withdrawal constituted a separate election irregularity. In his amended election-contest petition, however, Durkin never alleged these election irregularities. Instead, Durkin alleged that the board’s failure to remove Sammarone’s name from the May 4 ballot pursuant to R.C. 3501.30(

E) and Secretary of State Advisory No. 96-02 and the board’s additional failure to adequately notify voters of the withdrawal were the sole election irregularities. Insofar as Durkin’s amended petition did not set forth the election irregularities that he now claims on appeal, it did not comport with the requirements of R.C. 3515.09, which requires election-contest petitions to “set forth the grounds for such [election] contest.” The procedures prescribed for election contests are specific and exclusive, and must be strictly construed.

In re Contested Election of November 2, 1995 (1995), 72 Ohio St.3d 411, 414, 650 N.E.2d 859, 862. Durkin nevertheless relies on R.C. 3515.11 to assert that “it is judicially feasible to conform the pleadings to evidence” of additional election irregularities elicited during trial.

R.C. 3515.11 provides that “[t]he proceedings at the trial of the contest of an election shall be similar to those in judicial proceedings, in so far as practicable, and shall be under the control and direction of the court * * * with power to order or permit amendments to the petition or proceedings as to form or substance.” Civ.R. 15(B), which is generally applicable to civil judicial proceedings, governs amendments of pleadings to conform to the evidence tried by the parties, and provides: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues.

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. * * * ” (Emphasis added.) We need not consider the merits of these additional claims.

Durkin never sought to amend his petition to include these claims, Brown-Clark did not expressly or impliedly consent to trial of these claims, and the trial court never considered whether these claims constituted election irregularities. See State ex rel. Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385, 391, 715 N.E.2d 179, 184; State ex rel. BSW Dev. Group v. Dayton (1998), 83 Ohio St.3d 338, 344, 699 N.E.2d 1271, 1276-1277.

And despite Durkin’s claims to the contrary, at the time he filed his amended petition he could have obtained the meeting minutes of the board that he eventually introduced as evidence at trial, which would have disclosed his claimed irregularities. Nor would any purported lack of access to supporting evidence until trial have precluded him from requesting the trial court to .amend his petition to include these claims.

In fact, when Brown-Clark objected to Durkin’s attempts to litigate these unpled issues, Durkin failed to request leave from the trial court to amend his petition to include these additional claimed irregularities. Therefore, the common pleas court did not err by failing to determine these unpled claims. Failure to Remove Withdrawn Candidate’s Name from Ballot Durkin’s remaining claim, which he properly raised in his amended election-contest petition, is that the board’s failure to remove Sammarone’s name from the ballot constituted an election irregularity because it contravened R.C. 3513.30(

E) and Secretary of State Advisory No. 96-02. After Sammarone withdrew from the primary election in accordance with R.C. 3513.30(

B) and (D), the board’s duty was that set forth in R.C. 3513.30(E), which provides: “When a person withdraws under division (

B) or (

D) of this section, the board of elections shall remove the name of the withdrawn candidate from the ballots to the extent practicable in the time remaining before the election and according to the directions of the secretary of state. If the name is not removed from all ballots before the day of the election,'the votes for the withdrawn candidate are void and shall not be counted.” (Emphasis added.) When construing a statute, our paramount concern is the legislative intent in enacting the statute. Yonkings v. Wilkinson (1999), 86 Ohio St.3d 225, 227, 714 N.E.2d 394, 396.

In determining the legislative intent, we first review the statutory language and the purpose to be accomplished. Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d 417, 419, 704 N.E.2d 1217, 1218. Under the plain language of the statute, R.C. 3513.30(

E) expressly limits the board’s duty to remove the name of a withdrawn candidate from ballots “to the extent practicable in the time remaining before the election.” Whether it is practicable to remove a withdrawn candidate’s name from ballots in the time remaining before the election is an issue vested within the discretion of boards of elections. See State ex rel. Ohio Assn. of Pub. School Emp. v. Girard Civ. Serv.

Comm. (1976), 45 Ohio St.2d 295, 297, 74 O.O.2d 463, 464-465, 345 N.E.2d 58, 60, where we held that comparable language in R.C. 124.31 requiring promotions in the classified service to be based upon merit, “to be ascertained as far as practicable by promotional examinations,” vested the question of whether promotional examinations were practicable initially in the civil service commission. This

interpretation furthers the purpose of R.C. 3513.30(E), which the then Secretary of State’s Chief Elections Counsel, who helped draft the provision, testified was to confer broad discretion on boards of elections to handle ballot-removal issues in candidate-withdrawal cases. The evidence establishes that the board did not abuse its discretion under R.C. 3513.30(

E) by determining that it was not practicable to remove Sammarone’s name from the ballots. The term “abuse of discretion” connotes an unreasonable, arbitrary, or unconscionable decision. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730, 654 N.E.2d 1254, 1256. At the time that Sammarone withdrew from the primary election, there was insufficient time to reprint the ballots to remove his name. In addition, because Mahoning County uses optical-scan ballot-counting machines, neither placing stickers on nor marking over his name on the ballots was feasible.

Given these circumstances, the board’s decision was neither unreasonable, arbitrary, nor unconscionable. Secretary of State Advisory No. 96-02 does not require a contrary result.

The advisory states that “[i]f a certified candidate withdraws in writing prior to thirty-five (35) days before a primary or general election * * *, a board of elections must reprint all ballots without the name of the withdrawn candidate, or otherwise remove the name of the withdrawn candidate from existing ballots by use of stickers or another method adopted by the board.” But the opinion was drafted as an advisory rather than as a directive.

In addition, as specified by the official under whose direction the advisory was issued, despite the use of language normally considered mandatory, the advisory merely provided guidance and was not mandatory. Finally, a contrary conclusion would nullify the “to the extent practicable” clause in R.C. 3513.30(E). See State ex rel. Sinay v.

Sodders (1997), 80 Ohio St.3d 224, 232, 685 N.E.2d 754, 760 (“ “We must construe statutes to avoid unreasonable or absurd results.’ ”); In re Election of Member of Rock Hill Bd. of Edn. (1996), 76 Ohio St.3d 601, 609-610, 669 N.E.2d 1116, 1123 (board of elections could not rely on Secretary of State advisory that erroneously interpreted election statute).

Moreover, after the board determined that it was impracticable to remove Sammarone’s name from the ballots given the proximity of the election, it diligently proceeded to notify electors that Sammarone had withdrawn as a candidate and that votes for him would not be counted. Notices were placed in each absentee-ballot envelope and individual voting booth, a local newspaper reported the withdrawal, and poll workers were instructed to verbally inform voters of the withdrawal.

Based on the foregoing, the board did not abuse its broad discretion in not removing Sammarone’s name from the ballots, and it did not violate R.C. 3513.30(E). Durkin failed to establish by the requisite clear and convincing evidence that one or more election irregularities occurred. Therefore, we need not determine the second prong of the election-contest test, i.e., whether the claimed irregularity or irregularities affected enough votes to change or make uncertain the result of the primary election.

We note, however, that to the extent Durkin and amici curiae claim entitlement to a new election, that relief is not available in an election contest. Hitt v. Tressler (1983), 7 Ohio St.3d 11, 12, 7 OBR 404, 405, 455 N.E.2d 667, 667-668, quoting Hitt v. Tressler (1983), 4 Ohio St.3d 174, 178, 4 OBR 453, 457, 447 N.E.2d 1299, 1304, fn. 10 (“[A] court is without jurisdiction to order an election in [an election-contest] case in the absence of legislative authority.”).

Conclusion Because Durkin did not establish any election irregularity by the board’s actions on the Sammarone withdrawal, the common pleas court properly denied the writ. This is not a case in which “extreme circumstances” manifestly affected the “integrity of the election.” In re Election of November 6, 1990, 58 Ohio St.3d at 105, 569 N.E.2d at 450. Instead, the board acted diligently and properly exercised its statutory discretion by keeping Sammarone’s name on the ballot and notifying the electors of his withdrawal. Accordingly, we affirm the judgment of the court of common pleas. Judgment affirmed.

Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur. Douglas, J., not participating. . Durkin does not claim on appeal that the board committed an election irregularity by not adequately notifying voters of Sammarone’s withdrawal. . R.C. 3513.30 provides: “(

B) Any person filing a declaration of candidacy may withdraw as such candidate at any time prior to the primary election, or, if the primary election is a presidential primary election, at any time prior to the fiftieth day before the presidential primary election. The withdrawal shall be effected and the statement of withdrawal shall be filed in accordance with the procedures prescribed in division (

D) of this

section for the withdrawal of persons nominated in a primary election or by nominating petition. “(D) * * * Such withdrawal may be effected by the filing of a written statement by such candidate announcing the candidate’s withdrawal and requesting that the candidate’s name not be printed on the ballots. * * * If such candidate’s declaration of candidacy * * * was filed with a board of elections, the candidate’s statement shall be addressed to, and filed with such board.” .

Given this disposition, we also need not consider the merits of Brown-Clark’s alternate assertion that Durkin’s claims are barred by estoppel, a ground not relied upon by the trial court in denying the contest. See In re Contested Election of Nov. 2, 1993, 72 Ohio St.3d at 414, 650 N.E.2d at 862.