State ex rel. Witt v. Bernon | Cases | Westlaw

The relator prays for a peremptory writ of mandamus commanding the members of the Board of Elections of Cuyahoga County to take any and all actions necessary to permit the relator to be represented in each polling place in the City of Cleveland, Cuyahoga County, in the special non-partisan primary election to be held therein January 12th, 1932, by one challenger and one witness in each polling place in the City of Cleveland.

The provisions of the charter of the City of Cleveland under which this election is to be held is silent on the subject of challenges and witnesses. We must necessarily be relegated to the general provisions of the Code with a view of determining this question. Sec 4785-120 GC deals with the subject of challenges and witnesses. We shall quote the part which we deem pertinent to the subject, as follows:

“No persons other than the judges and clerks of elections, the witnesses and a police officer, or other persons who may be detailed to any precinct on request of the board of elections, or the secretary of state or his legal representative, shall be admitted to the polling place after the closing of the polls until the counting, certifying and signing of the final returns of each election have been completed.”

We are of the opinion that the language above cited is broad enough to lodge discretion in the members of the Board of Elections to allow challengers and witnesses in each precinct, if in their discretion it is right and proper so to do. We are also of the opinion that when five candidates for the office of Mayor of the City of Cleveland appear on the primary ballot that to allow challengers and witnesses to any one candidate and at the same time disallow it as to other candidates would constitute a gross abuse of discretion and would be violative of the equal protection clauses of the Federal Constitution and the State Constitution.

It is, therefore, ordered by this Court that, if in the exercise of its discretion the Board of Elections permits any one of the candidates for Mayor the right to have challengers and witnesses, the same right shall be extended to all the candidates when so requested by any one of them including the Relator Peter Witt.

Writ alowed. O.S.J.