State ex rel. Koebel v. Erie Cty. Bd. of Elections

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Koebel v. Erie Cty. Bd. of Elections, Slip Opinion No. 2026-Ohio-3999.] 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. 2026-OHIO-3999 THE STATE EX REL. KOEBEL v. ERIE COUNTY BOARD OF ELECTIONS ET AL . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Koebel v. Erie Cty. Bd. of Elections, Slip Opinion No. 2026-Ohio-3999.] Elections—Mandamus—Writ sought to compel board of elections and secretary of state to remove replacement candidate name from general-election ballot— Relator’s claim barred by doctrine of laches—Writ denied. (No. 2026-1225—Submitted September 30, 2026—Decided October 8, 2026.) IN MANDAMUS. __________________ The per curiam opinion below was joined by FISCHER and SHANAHAN, JJ. BRUNNER, J., concurs, with an opinion. KENNEDY, C.J., concurs in part and concurs in judgment only in part, with an opinion. DEWINE, J., concurs in judgment only in part, with an opinion joined by DETERS and HAWKINS, JJ.  SUPREME COURT OF OHIO Per Curiam. {¶ 1} In this expedited election case, relator, Carl Koebel, seeks a writ of mandamus ordering respondents, the Erie County Board of Elections and Secretary of State Frank LaRose, to remove Caleb Stidham from the November 2026 general- election ballot for the office of state representative. The person nominated in the Republican Party primary withdrew his candidacy, and a Republican Party district committee selected Stidham as the replacement candidate under R.C. 3513.31(B). The board of elections’ vote on whether to certify Stidham as the replacement candidate resulted in a tie. The secretary of state broke the tie in favor of certifying Stidham as the nominee and ordered that Stidham be certified to the general- election ballot. {¶ 2} Koebel claims that the party district committee was required to comply with the requirements of Ohio’s Open Meetings Act, R.C. 121.22 et seq., when choosing Stidham as the replacement candidate. He asserts that because the committee did not do so, the board of elections was required to reject Stidham’s certification to the ballot. We do not reach this issue, however. Rather, we deny the writ based on the doctrine of laches. Koebel unreasonably delayed in bringing his complaint, and the board of elections and the secretary of state have been prejudiced by this delay. I. BACKGROUND {¶ 3} Ohio House of Representatives District 89 includes all of Erie County and Ottawa County and parts of Huron County. Erie County contains the greatest number of electors within the 89th House District. {¶ 4} D.J. Swearingen won the Republican Party nomination for the office of state representative of the 89th House District in the May 2026 primary election. On August 4, 2026, Swearingen notified the Erie County Board of Elections that he was withdrawing his candidacy and requested that his name be removed from the ballot. 2  January Term, 2026 {¶ 5} Under R.C. 3513.31(B), a district committee made up of the chairpersons and secretaries of each Republican Party county central committee in the 89th House District was authorized to select a replacement candidate for Swearingen. This opinion refers to that committee as the “party district committee.” R.C. 3513.31(B) requires that the party district committee select a replacement candidate at a meeting called for that purpose. On August 10, the party district committee met to select a replacement for Swearingen. That meeting was closed to the public. A member of the Erie County Board of Elections attempted to attend the party district committee’s meeting and was denied entry. {¶ 6} At the meeting, the party district committee selected Caleb Stidham as the replacement candidate. Stidham served as the chairman of the Erie County Republican Party and, as such, was a member of the party district committee. The party district committee provided to the Erie County Board of Elections a written certification naming Stidham as the replacement candidate. {¶ 7} On August 14, the Erie County Board of Elections held a meeting at which it voted on a motion to certify Stidham to the ballot. At the meeting, the two Republican Party board members acknowledged that the party-district-committee meeting had been closed to the public. The board of elections voted two-to-two on the motion to certify Stidham as the nominee. The board members who voted against the certification indicated that they did so because the party-district- committee meeting should have been open to the public and that Stidham should not have voted on his own selection.1 The matter was submitted to the secretary of state for his tie-breaking decision. See R.C. 3501.11(X). On August 20, the secretary of state issued a letter in which he broke the tie in favor of Stidham’s candidacy. 1. Koebel does not argue as part of this writ action that the board was required to reject the certification due to Stidham’s vote in the meeting. 3  SUPREME COURT OF OHIO {¶ 8} Koebel filed his verified complaint for a writ of mandamus on September 14 and an amended petition on September 16. Koebel is a qualified elector in the 89th House District. Koebel seeks a writ of mandamus ordering the board of elections and the secretary of state to deny Stidham’s certification as the Republican nominee for state representative for the 89th House District and remove him from the ballot. Alternatively, Koebel asks this court to “remand the matter to the Erie County Board of Elections with instructions to investigate whether the requirements of R.C. 3513.31(B) were satisfied and whether the purported selection was lawfully made, and to deny certification unless those requirements are established.” Koebel argues that the party district committee was required to comply with the Open Meetings Act, R.C. 121.22 et seq., and because it did not, Stidham’s selection was invalid. He argues that the board of elections is required to reject certification of a replacement candidate whose selection was invalid. {¶ 9} Stidham filed a motion to intervene as a respondent, which we granted. 2026-Ohio-3699. The case is an expedited election case under S.Ct.Prac.R. 12.08. II. LEGAL ANALYSIS {¶ 10} Before turning to whether Koebel has met the requirements for a writ of mandamus, respondents argue that the writ should be denied or dismissed for several preliminary reasons—laches, a noncompliant verification affidavit, and standing. We find that laches is dispositive. A. Koebel’s affidavit and motion for leave to submit a supplemental affidavit {¶ 11} The secretary of state argues that Koebel’s complaint should be dismissed because the amended complaint was not verified by an affidavit based on personal knowledge as required by S.Ct.Prac.R. 12.02(B). The secretary of state also argues that the affidavit Koebel attached to his amended complaint is faulty because it is the same affidavit that was attached to the original verified complaint and does not specifically aver that the factual allegations in the amended complaint 4  January Term, 2026 are true. Koebel has now moved for leave to file a supplemental verification affidavit. The secretary of state opposes the motion. We grant the motion for leave and do not dismiss the complaint for failure to comply with S.Ct.Prac.R. 12.02(B). {¶ 12} 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) requires that a complaint instituting an original action in this court “shall be supported by an affidavit.” The affidavit “shall be made on personal knowledge, setting forth facts admissible in evidence, 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); accord State ex rel. Henderson v. Clermont Cty. Bd. of Elections, 2024-Ohio-333, ¶ 10. {¶ 13} Koebel attached his own affidavit to both the complaint and the amended complaint. This affidavit, however, does not state that the factual allegations in it are based on personal knowledge. Instead, it states that “[t]he factual allegations in the Verified Complaint are true to the best of [Koebel’s] knowledge, information, and belief.” An affidavit that attests that the factual allegations are “true ‘to the best of [the affiant’s] knowledge, information, and belief’ ” does not comply with S.Ct.Prac.R. 12.02(B)(2). (Bracketed text in original.) State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 2015-Ohio- 3761, ¶ 14. We have, however, “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.” Henderson at ¶ 15. Here, Koebel timely moved to file a supplemental affidavit and attached the new affidavit to the motion. {¶ 14} In the supplemental affidavit, Koebel avers that he is competent to testify to the facts in the affidavit. He does not aver that all the facts in the affidavit are based on personal knowledge, but rather he delineates which facts are based on personal knowledge and which facts are not. We find that the supplemental affidavit complies with S.Ct.Prac.R. 12.02(B)(2). 5  SUPREME COURT OF OHIO {¶ 15} “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, 2017-Ohio-8115, ¶ 11, quoting State ex rel. Commt. for the Charter Amendment for an Elected Law Director v. Bay Village, 2007-Ohio-5380, ¶ 12-13. Koebel’s supplemental affidavit clarifies which allegations are based on personal knowledge and which are based on “information and belief.” S.Ct.Prac.R. 12.02(B)(2) requires that the affidavit do three things: it must (1) be made on personal knowledge, (2) set forth facts admissible in evidence, and (3) show affirmatively that the affiant is competent to testify to all matters stated in the affidavit. Koebel’s supplemental affidavit does all three. {¶ 16} The secretary of state opposes the motion for leave, arguing that Koebel should have filed a motion to amend the complaint and included the supplemental affidavit as part of the motion to amend the complaint. We have not, however, required that a relator file a motion to amend the complaint in order to amend a verification affidavit; a motion for leave to file an amended affidavit is sufficient. See State ex rel. Nelsonville v. Athens Cty. Bd. of Elections, 2025-Ohio- 4363, ¶ 13-14 (granting motion for leave to file an amended affidavit); State ex rel. Ganoom v. Franklin Cty. Bd. of Elections, 2016-Ohio-1241, ¶ 4-8 (granting motion for leave to amend affidavit). Therefore, we grant Koebel’s motion to file the supplemental affidavit and do not dismiss the complaint for failure to comply with S.Ct.Prac.R. 12.02(B). B. Standing {¶ 17} The secretary of state argues that Koebel lacks standing to bring this action. We disagree. {¶ 18} “Traditional standing principles require litigants to show, at a minimum, that they have suffered ‘(1) an injury that is (2) fairly traceable to the 6  January Term, 2026 defendant’s allegedly unlawful conduct, and (3) likely to be redressed by the requested relief.’ ” ProgressOhio.org, Inc. v. JobsOhio, 2014-Ohio-2382, ¶ 7, quoting Moore v. Middletown, 2012-Ohio-3897, ¶ 22. The “injury must be personal—that is, the plaintiff or relator must suffer a particular harm, not the general harm that may be suffered by the public at large.” State ex rel. Martens v. Findlay, 2025-Ohio-5589, ¶ 16. {¶ 19} The secretary of state argues that Koebel has not suffered an “injury different from every other registered voter in the 89th District.” However, we have “long held in mandamus cases regarding election matters that an elector is a proper relator because he is beneficially interested in the case.” State ex rel. Martens v. Findlay Mun. Court, 2024-Ohio-5667, ¶ 12, fn. 1, citing State ex rel. Gregg v. Tanzey, 49 Ohio St. 656, 662 (1892) and State v. Brown, 38 Ohio St. 344, 346-347 (1882). “The elector’s beneficial interest arises from the particular injury to his vote that would occur if election officials disregarded their election duties.” Id. “Brown and Gregg are part of a long line of cases establishing that mandamus is available to enforce public duties, that any duty related to an election is public, and that a citizen has the capacity to sue even if the duty only generally affects him.” State ex rel. Barth v. Hamilton Cty. Bd. of Elections, 65 Ohio St.3d 219, 221 (1992). {¶ 20} The secretary of state, however, does not even mention these cases, much less argue that they were wrong or do not apply to this action. Absent any such argument, the secretary of state has not shown that Koebel lacks standing. Rather, Koebel has standing because his “beneficial interest arises from the particular injury to his vote that would occur if election officials disregarded their election duties,” Findlay Mun. Court at ¶ 12, fn. 1. C. Laches {¶ 21} The board of elections, the secretary of state, and Stidham all argue that we should deny the writ based on the doctrine of laches. We agree. 7  SUPREME COURT OF OHIO {¶ 22} “Extreme diligence and promptness are required in elections-related matters.” (Cleaned up.) State ex rel. Miller v. Union Cty. Bd. of Elections, 2023- Ohio-3664, ¶ 18. “‘Laches will bar an action when there is (1) an unreasonable delay or lapse of time in asserting a right, (2) the absence of an excuse for the delay, (3) actual or constructive knowledge of the injury or wrong, and (4) prejudice to the opposing party.’ ” Id., quoting State ex rel. Clark v. Twinsburg, 2022-Ohio- 3089, ¶ 11. {¶ 23} The secretary of state broke the board of elections’ tie vote on August 20. Koebel either knew or should have known about the secretary of state’s decision shortly thereafter. For example, on August 21 and 22 respectively, two different Ohio newspapers published articles about the secretary of state’s decision. See Hancock, Frank LaRose breaks tie, certifies Caleb Stidham as GOP candidate for northern Ohio House race, The Plain Dealer: Web Edition (August 21, 2026); Elbridge, Stidham approved as GOP nominee; Could Serve 89th District, Toledo Blade (August 22, 2026). Koebel filed his complaint on September 14—25 days after the secretary of state broke the tie vote. We have found shorter delays in election cases to be unreasonable, and we find Koebel’s delay to be unreasonable here. See, e.g., State ex rel. Pinkston v. Delaware Cty. Bd. of Elections, 2023-Ohio- 1060, ¶ 16 (applying laches based on a 14-day delay); State ex rel. Syx v. Stow City Council, 2020-Ohio-4393, ¶ 11 (22-day delay); State ex rel. Fuller v. Medina Cty. Bd. of Elections, 2002-Ohio-5922, ¶ 11 (17-day delay); State ex rel. Landis v. Morrow Cty. Bd. of Elections, 2000-Ohio-295, ¶ 8-9 (22-day delay); State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 1995-Ohio-269, ¶ 11, 13 (17-day delay). {¶ 24} “Laches also requires that the opposing party be prejudiced by the delay.” Miller at ¶ 20. “Prejudice occurs in election cases involving requested changes to absentee ballots if a relator’s delay in filing leads to the impossibility of relief before the ballots are printed and mailed.” State ex rel. Ohio Democratic Party v. LaRose, 2024-Ohio-4953, ¶ 27; see also State ex rel. Brinda v. Lorain Cty. 8  January Term, 2026 Bd. of Elections, 2007-Ohio-5228, ¶ 13 (“the majority of the cases in which we have held that laches barred an election claim have involved the passage of the statutory absentee-ballot deadline”). The board of elections and the secretary of state argue that they were prejudiced by Koebel’s delay in this case because on September 18, the board sent absentee ballots to overseas and absent uniformed services voters as required by law (“UOCAVA” ballots). See R.C. 3509.01(B)(1) and 3511.04(B). In Erie County, the board of elections sent out 33 UOCAVA ballots. In addition, beginning on October 6, boards of elections will start sending absentee ballots to other voters. See R.C. 3509.01(B)(2). On September 21, the board of elections ran its final test of the ballots and voting machines, and on September 23 the board submitted to its vendor the approved form of ballots for the printing of 36,450 ballots. {¶ 25} Finally, “for laches to apply, the prejudice must have been avoidable if the relators in a case had filed their case promptly.” Ohio Democratic Party at ¶ 31. When analyzing laches in similar expedited election cases, we have recognized that it takes several weeks from the filing of a case for it to be resolved. See Pinkston at ¶ 18; Brinda at ¶ 13. Here, the secretary of state issued his tie- breaking decision 29 days before the September 18 date by which UOCAVA ballots must be printed and ready for use, see R.C. 3509.01(B)(1), and if Koebel had promptly filed his complaint, there is a reasonable chance that we could have issued an opinion by the deadline. And at a minimum, any prejudice related to the board of elections’ printing of non-UOCAVA absentee ballots could have been limited. Moreover, Koebel’s 25-day delay in filing his complaint was particularly lengthy and therefore prejudicial to respondents. {¶ 26} In his reply brief, Koebel argues that his delay in filing was justified because he needed to find counsel and conduct an investigation to determine whether the party-district-committee meeting had been closed to the public before he brought his complaint. But it is difficult to see how confirming that the meeting 9  SUPREME COURT OF OHIO had been closed would take a significant amount of time, and regardless, Koebel offers no evidence showing that he promptly began investigating whether the meeting had been closed. {¶ 27} Koebel also cites R.C. 3511.04(B), which generally provides that boards of elections must send separate absentee ballots to overseas and military voters if a candidate or issue is added to the ballot after the initial absentee ballot has been sent. Koebel recognizes that the statute does not prescribe a procedure for replacement ballots when a candidate is removed from the ballot, but he argues that the statute supports the argument that late changes to the ballot are permissible. But even if late changes to the ballot may be possible, the boards of elections would still be prejudiced by having to spend extra time and money because of Koebel’s delay in filing his complaint. Koebel also notes that the board of elections chose to continue placing orders for the printing of non-UOCAVA absentee ballots after Koebel filed his complaint. He seems to be arguing that the board should have avoided incurring these costs once it had notice that Koebel’s complaint had been filed. But the board of elections could not reasonably have been expected to stop preparing for the election, and in any event, it was Koebel’s unreasonable delay in bringing his case that prevented this court from deciding this case before the board had to begin printing ballots. {¶ 28} For these reasons, we conclude that Koebel’s action is barred by laches. Because we deny the writ based on laches, we do not address the merits of Koebel’s claim. See Fuller, 2002-Ohio-5922, at ¶ 12; Polo, 1995-Ohio-269, at ¶ 14.2 2. In his reply brief, Koebel requests an award of attorney fees “if [he] prevails.” He did not request attorney fees either in his complaint or his merit brief, but even if Koebel were otherwise entitled to attorney fees, he has not prevailed in this action. We deny the request for attorney fees. 10  January Term, 2026 III. CONCLUSION {¶ 29} Koebel unreasonably delayed in bringing his complaint, and the board of elections and secretary of state were prejudiced by this delay. Therefore, Koebel’s action is barred by laches and we deny the writ. In addition, we grant Koebel’s motion for leave to submit a supplemental affidavit. Writ denied. __________________ BRUNNER, J., concurring. {¶ 30} I agree that the writ requested in this case should be denied, and I join in full the per curiam opinion and also Part I of the second separate opinion, such that a majority of this court reaffirms that an elector has standing to seek an extraordinary writ relating to an election by virtue of his or her status as an elector. I write separately to address the conclusion of the third separate opinion that relator, Carl Koebel, does not have standing. I offer this concurring opinion because additional considerations fundamental to voting and an elector’s status demonstrate why it is fundamentally and patently wrong to deny standing to an elector who did not plead additional evidence to show standing beyond his or her status as an elector. {¶ 31} We have “long held in mandamus cases regarding election matters that an elector is a proper relator because he is beneficially interested in the case.” State ex rel. Martens v. Findlay Mun. Court, 2024-Ohio-5667, ¶ 12, fn. 1, citing State v. Brown, 38 Ohio St. 344, 346-347 (1882), and State ex rel. Gregg v. Tanzey, 49 Ohio St. 656, 662 (1892). “The elector’s beneficial interest arises from the particular injury to his vote that would occur if election officials disregarded their election duties.” Id. 11  SUPREME COURT OF OHIO Overturning Nearly 150 Years of Ohio Legal Precedent {¶ 32} The third separate opinion would effectively overturn this precedent. The reasoning it provides for overturning the precedent, however, relies on misstating this court’s holdings in Brown and Gregg. In Brown, the court identified several factors that established the relator’s beneficial interest in the case, including that “as an elector, he would be entitled to vote at the election, if an election were proper, and would be himself eligible to the office.” Brown at 346-347. We gave no indication in Brown that the relator’s eligibility to run for the office was an essential factor in establishing standing. In fact, we indicated the exact opposite. In the syllabus, the court made no mention of that factor and instead stated as follows: “A proceeding in mandamus to compel the sheriff to give notice and make proclamation to the qualified voters of a county to elect a judge of the court of common pleas therein is properly instituted upon the relation of an elector of such county.” Id. at paragraph one of the syllabus. {¶ 33} Our decision in Gregg reflects this understanding of Brown. In Gregg, we stated: “It was held in State v. Brown, 38 Ohio St. 344, that an elector has such beneficial interest in an election as entitles him to institute ‘a proceeding in mandamus to compel the sheriff to give notice and make proclamation to the qualified voters of a county to elect a judge of the court of common pleas therein.’ ” (Emphasis in original.) Gregg at 662, quoting Brown at paragraph one of the syllabus. We then recognized that the elector’s interest exists beyond the mere calling of an election and extends through to the completion of the election. Id. (“The beneficial interest of the elector in the election does not cease, we think, when the machinery for holding it is set in motion, nor until all lawful steps are taken to its completion.”). Contrary to the claim of the third separate opinion, we did not indicate that our holding was based on any unique injury to the elector’s ability to have his vote counted or have a winner declared. Our holding was that “[a]n action in mandamus, to compel the board to make, certify, and transmit to the proper 12  January Term, 2026 officers, as required by law, the several abstracts of votes shown by the tally sheets returned from the various election precincts of the county, may be instituted on the relation of any elector of the county.” Id. at paragraph three of the syllabus. {¶ 34} In the nearly 150 years since Brown and Gregg were decided, we have continued to adhere to their holdings. See State ex rel. Barth v. Hamilton Cty. Bd. of Elections, 65 Ohio St.3d 219, 221 (1992) (“Brown and Gregg are part of a long line of cases establishing that mandamus is available to enforce public duties, that any duty related to an election is public, and that a citizen has the capacity to sue even if the duty only generally affects him.”); State ex rel. Skilton v. Miller, 164 Ohio St. 163, 164-165 (1955) (same). We have recognized the ongoing validity of these holdings as recently as two years ago—in an opinion written by the author of the third separate opinion in this case, no less. See Martens, 2024-Ohio-5667, at ¶ 12, fn. 1 (“We have long held in mandamus cases regarding election matters that an elector is a proper relator because he is beneficially interested in the case. . . . The elector’s beneficial interest arises from the particular injury to his vote that would occur if election officials disregarded their election duties.”). {¶ 35} At no point have we questioned the validity of this line of cases. That fact is significant on its own, as the public benefits from stability in the law. I also note, however, that the constitutional language on which the standing requirement is based is contained in Article IV, Section 1 of the Ohio Constitution. And while that section has been amended numerous times in the last 150 years, the core language on which the standing requirement is grounded—the vesting of the “judicial power of the state” in the “supreme court”—has remained unchanged. See Martens at ¶ 10; Voss v. Quicken Loans, 2026-Ohio-531, ¶ 10. In light of that, I find it hard to believe that the long line of precedent discussed above is inconsistent with the Ohio Constitution. 13  SUPREME COURT OF OHIO Consequences for Electors Relating to Voting Eligibility and First Amendment Rights {¶ 36} I also reject the position of the third separate opinion that it would be appropriate to make such a massive change to our standing requirements in the present case. Koebel understandably based the allegations of his complaint on the well-established law discussed above. Although the secretary of state raised a sliver of an argument that Koebel lacks standing, there is no mention of the long-standing precedent discussed above, much less presentment of any argument by any party for why it should be overturned. It is sorely difficult to characterize the legal position of the third separate opinion as anything other than judicial activism and legislating from the bench. The position taken by the third separate opinion also steps on the toes of the executive branch. {¶ 37} The secretary of state is the chief election officer of the State and is required to provide instructions, directives, and advisory opinions for the State’s 88 county boards of elections. R.C. 3501.05(B), (C), (M), (X), and (EE). The county boards of elections are required to follow the secretary’s instructions and issue their own instructions for conducting elections in their respective counties that are consistent with the secretary’s instructions, directives, and advisory opinions. R.C. 3501.11(E), (P), and (U). {¶ 38} Key instructions the secretary of state must provide are those in furtherance of the state’s implementation of the National Voter Registration Act of 1993 (“NVRA”). 52 U.S.C. 20501 et seq. The NVRA specifically requires states to “conduct a general program that makes a reasonable effort to remove the names of ineligible voters” who have died or changed residence from state voter- registration databases. 52 U.S.C. 20507(a)(4). These list-maintenance programs of states’ voter-registration databases must be “uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965.” 52 U.S.C. 20507(b)(1). 14  January Term, 2026 {¶ 39} The NVRA also establishes a confirmation-notice procedure that must be followed before names may be removed from the voter-registration rolls based on a change of residence. Specifically, a name cannot be removed unless the registrant confirms the change of residence in writing. A name can be removed if the registrant (1) does not respond to a notice asking for their address to be confirmed and (2) has failed to vote during a specified period encompassing two federal elections. 52 U.S.C. 20507(d)(1)(A) and (B).3 {¶ 40} To further protect Ohio electors from being removed from Ohio’s voter-registration database, Ohio has created additional protections in state law that protect a registration from cancellation, which can be found in statutes, rules, and instructions of the secretary of state. See, e.g., R.C. 3503.15(C)(11) (requiring the database to include the elector’s “last activity date”); Adm.Code 111:3-11-01; Secretary of State, Directive 2026-19 (accessed Oct. 5, 2026) [https://perma.cc/TE45-KJ3Y] (governing Ohio’s 2026 General Voter Records Maintenance Program and instructing boards of elections that an elector’s status must be changed from “active-confirmation” to “active-active” if a record is located on review of the “Automatic Confirmation of Address Safeguard” file from the “Board of Elections Portal” and that the elector’s registration must not be canceled if the elector updates his or her registration or engages in “voter-initiated activity”); Secretary of State, Election Official Manual, https://www.ohiosos.gov/assets/2026- 02_fulleom.pdf (accessed Oct. 5, 2026) [https://perma.cc/ZT73-G9DL] (providing that “voter-initiated activity” includes voting, submitting a valid absentee-ballot application, registering to vote, updating or confirming an address with a board of elections or the Ohio Bureau of Motor Vehicles, and “[s]igning verified candidate 3. Notably, 52 U.S.C. 20507(b)(2) provides that a state voter-list-maintenance program “shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.” 15  SUPREME COURT OF OHIO or valid issue petitions” [emphasis added]). Even though Koebel was not engaged in petition signing, there is a clear argument that he was engaged in election activity. If he could have filed a protest, it is clear from the record that he would have; instead, he instituted a lawsuit. The third separate opinion makes an assumption that a protest can be filed only when a statute specifically authorizes it. Statutes governing the duties of boards of elections point to the general work of a board to hear from the public about irregularities and violations of Title XXXV of the Revised Code and to investigate them, including the validity of “nomination papers.” R.C. 3501.11(J) and (K)(1). {¶ 41} The ramifications of the position of the third separate opinion if adopted by a majority of this court would be deep and troubling. Fortunately, there is no majority view for this ill-conceived position. In the election-law context, original actions brought by individual voters are essential to the protection of individual rights—including voting rights. Denying electors standing to engage in what is purely election activity by requiring specific standing beyond being an elector, could result in their disenfranchisement, because challenging what is on the ballot by protest or lawsuit is the flip side of signing a petition to place a candidate or issue on the ballot. As such, the speech associated with voter activity challenging the right to hold an election would be restrained. And this restraint could extend to voting with the application of the NVRA, because clearly what Koebel did is election activity, which would prevent voter registration cancellation if he did not respond to a notice to confirm his address. {¶ 42} The United States Supreme Court has consistently recognized that voting is a fundamental form of political participation and that election-related activities lie at the core of First Amendment protection. See, e.g., Meyer v. Grant, 486 U.S. 414, 421-422 (1988) (“The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change . . . . Thus, the circulation of a petition involves the 16  January Term, 2026 type of interactive communication concerning political change that is appropriately described as ‘core political speech.’ ”). Whatever underlies the rationale for the unusual position of the third separate opinion, to dismiss the action for standing is strongly aberrant and misguided. It is repugnant to free and fair elections and to the exercise of the First Amendment by electors who engage in voter activity. Conflating Electors with Relators When There Is a Protest Procedure {¶ 43} Finally, I note with concern that the expressed disregard of our well- established standing precedent by the third separate opinion may lead to further infringement on free speech in its conflation of an elector with a relator. For example, the third separate opinion gratuitously states that “[w]e have assumed that when a statutory protest is denied, the elector who unsuccessfully pursued the protest has a particularized injury sufficient to establish standing to pursue an action in mandamus to challenge the denial of the protest.” (Emphasis added.) Opinion concurring in judgment only, ¶ 93-94. It is electors who file protests of elections, and they may become relators, but they are not relators until they appear as such before this court or a court with jurisdiction in original actions such as mandamus and prohibition. When they do appear, having first been electors who are protestors, by virtue of their election activity in protesting, they have standing. Expedited and Last-Minute Election Cases are Generally Inappropriate Vehicles for Overturning Nearly 150-Year-Old Legal Precedents {¶ 44} Finally, even if it were appropriate to reexamine the precedent that the third separate opinion wishes to overturn, the expedited nature of this litigation due to the general election scheduled to take place less than a month from now prevents this court from giving the issue the thorough consideration it deserves, including the opportunity for the parties to fully brief arguments on this issue. It is therefore not proper to use the present case to make such a significant change in our case law. Accordingly, under our nearly 150 years of precedent, Koebel has established standing. 17  SUPREME COURT OF OHIO Conclusion {¶ 45} Although the third separate opinion may cloak its drastic position in legalese, the public should understand that the effects of such a holding, if adopted by a majority of this court, would be real and tangible. The path the third separate opinion would blaze through our precedent could and would lead to nothing short of disenfranchisement—not just of citizens’ rights to full participation in our electoral process, but of the very act of voting itself. For the foregoing reasons, I fully join the per curiam opinion and Part I of the second separate opinion and express resolute words of caution regarding the irresponsible position of law taken by the third separate opinion. __________________ KENNEDY, C.J., concurring in part and concurring in judgment only in part. {¶ 46} I fully join Part II(B) of the per curiam opinion and its holding that relator, Carl Koebel, has standing to bring this action. And because Koebel has standing, I would address the merits of his request for a writ of mandamus. {¶ 47} I concur in the majority’s judgment denying Koebel the requested writ. However, I disagree with the per curiam that laches applies, because respondents, Ohio Secretary of State Frank LaRose and the Erie County Board of Elections, and intervening respondent, Caleb Stidham, have failed to prove material prejudice from Koebel’s delay in filing the action. Therefore, I would resolve this action on the basis that Koebel has not established that he has a clear legal right to the requested relief or that the secretary of state and the board have a clear legal duty to provide that relief. See State ex rel. Manley v. Walsh, 2014-Ohio-4563, ¶ 18. 18  January Term, 2026 I. STANDING {¶ 48} I fully agree with the per curiam opinion that “Koebel has standing because his ‘beneficial interest arises from the particular injury to his vote that would occur if election officials disregarded their election duties,’ ” per curiam opinion, ¶ 48, quoting State ex rel. Martens v. Findlay Mun. Court, 2024-Ohio- 5667, ¶ 12, fn. 1. I write separately to further explain this court’s long history of holding that electors have beneficial-interest standing in mandamus cases involving election matters and to rebut the claim of the third separate opinion that the overruling of State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 1999-Ohio- 123, in Martens limited ou