Prior Primary Nomination for Another Office Does Not Bar Selection for an Unexpired Term Under R.C. 3513.31(I)

1. Introduction

This election dispute concerned whether a successful primary candidate for one office could subsequently become his party’s candidate for an unexpired judicial term. Mark Derrig sought to compel Ohio Secretary of State Frank LaRose and the Summit County Board of Elections to remove Judge Nathan Manning from the November 3, 2026 general-election ballot for the Ninth District Court of Appeals.

Manning had won the Republican primary nomination for the 52nd Ohio House District. After a vacancy arose on the Ninth District Court of Appeals, the governor appointed him to that court. Manning withdrew from the legislative race, and a Republican Party district committee selected him as its candidate for the remaining unexpired judicial term.

Derrig argued that the final sentence of R.C. 3513.31(I) prohibited that selection because Manning had already been nominated in a primary election. The court rejected this reading. Its central conclusion was that the statutory restriction protects an existing primary nomination for the same vacant, unexpired term; it does not independently disqualify someone merely because that person previously won a primary for another office.

The opinion also addresses elector standing, the prejudice necessary to establish laches, the requirements for election-related mandamus, and the distinction between a binding holding and noncontrolling commentary in an earlier decision.

2. Background and Procedural History

The sequence of nominations and appointments

• May 5, 2026: Manning won the Republican primary nomination for state representative in the 52nd Ohio House District.
• May 31: Judge Donna Carr retired from the Ninth District Court of Appeals before her elected term expired.
• July 10: Governor Mike DeWine appointed Manning to fill the judicial vacancy under Article IV, Section 13 of the Ohio Constitution.
• July 13: Manning notified the Lorain County Board of Elections that he was formally withdrawing from the legislative race.
• August 4: A Republican Party district committee selected and certified Manning as the party’s candidate for the remaining unexpired appellate-court term.
• August 5: The Summit County Board of Elections received the certification.
• August 25: The board instructed the other county boards within the Ninth District to place Manning on the general-election ballot.

The distinction between appointment and election matters. Article IV, Section 13 permits the governor to fill a judicial vacancy temporarily. When the constitutional timing conditions require an election for the remaining term, the appointee’s continued service depends on the election and qualification of a successor; appointment does not itself confer the entire remaining elected term.

The ballot challenge

Derrig submitted a letter challenging Manning’s selection on August 31. Following a September 8 hearing, the board divided two to two on whether to remove Manning from the ballot. It referred the tie to Secretary LaRose under R.C. 3501.11(X).

On September 11, LaRose resolved the tie in favor of Manning. He gave two reasons: no statutory protest procedure authorized Derrig’s challenge to a selection under R.C. 3513.31(I), and Manning’s withdrawal from the legislative race meant that he was no longer a general-election candidate for another office.

Derrig commenced this original mandamus action on September 15 and amended his complaint the next day. Manning intervened. LaRose and Manning submitted answers, briefs, and evidence; the board submitted none.

Derrig requested orders requiring LaRose to reverse his tie-breaking determination and requiring the board to exclude Manning from the ballot and notify the other county boards accordingly. This was therefore an original action seeking affirmative performance of asserted election duties, not an ordinary appeal from the board’s decision.

3. Summary of the Opinion

The court denied the writ because Derrig did not establish either a clear legal right to Manning’s removal or a corresponding clear legal duty on the respondents.

1. Standing: The per curiam opinion applied existing election-mandamus precedent recognizing a qualified elector’s beneficial interest in officials’ performance of election duties.
2. Laches: Manning failed to establish material prejudice to himself caused by Derrig’s alleged delay.
3. Adequate ordinary remedy: The approaching election made ordinary legal remedies inadequate.
4. Statutory interpretation: R.C. 3513.31(I) prevents a party committee from choosing any candidate for a vacant unexpired term when the party already has a primary nominee for that term. It does not impose the candidate-specific prohibition Derrig proposed.
5. Earlier precedent: Language suggesting otherwise in State ex rel. Trumbull Cty. Republican Cent. Commt. v. Trumbull Cty. Bd. of Elections was dicta rather than the controlling holding of that case.
6. Unresolved procedural issue: The court did not decide whether an authorized statutory protest procedure existed for Derrig’s challenge.

The justices differed over the proper reasoning. Justice Shanahan joined the per curiam opinion; Justice Fischer joined except as to Part II(B), the mandamus merits analysis. Chief Justice Kennedy and Justice Brunner concurred and identified additional standing grounds through their opinions in a companion case. Justice DeWine, joined by Justices Deters and Hawkins, concurred only in the judgment and would have dismissed the action for lack of standing rather than reached the merits.

4. Legal Reasoning

A. The statute regulates the party’s authority, not simply a candidate’s history

R.C. 3513.31(I) permits a political-party committee to select a candidate for an unexpired elective term when a qualifying vacancy arises within the specified statutory period. Its final sentence states:

“If a person has been nominated in a primary election or nominated by petition under section 3517.012 of the Revised Code, the authorized committee of that political party shall not select and certify a person as the party candidate.”

Derrig treated the sentence as though it prohibited the committee from selecting the same person who had previously won any primary. The court instead emphasized the repeated use of the indefinite expression “a person.” The sentence does not say “that person,” “the previously nominated person,” or equivalent language.

Read literally but in context, the sentence provides that once a person has been nominated for the relevant vacant term, the committee may not select any person as an alternative party candidate for that term. The prohibition operates on the committee’s authority to make a selection; it is not a personal disability attached to every successful primary candidate.

B. Context identifies the relevant primary election

The court did not interpret “a primary election” to mean a primary for any office. R.C. 3513.31(I) addresses filling a particular vacant office for a particular unexpired term. Consequently, the relevant primary is the primary for that office and term.

This contextual limitation is indispensable. Without it, the existence of any successful primary candidate could be read to prevent the party committee from selecting anyone for an unrelated vacancy. The court avoided that disconnected reading by interpreting the final sentence as part of the provision’s overall subject matter.

The resulting rule protects an existing nomination from displacement by party officials. A committee may use the vacancy-selection mechanism when appropriate, but it may not substitute its preferred candidate for a nominee already chosen through the primary process for the same unexpired term.

C. The statutory calendar permits a primary nomination for the vacancy

The court reinforced its interpretation by examining R.C. 3513.05. That provision generally requires declarations of candidacy for a party primary to be filed no later than the ninetieth day before the primary.

R.C. 3513.31(I), however, contemplates a qualifying vacancy arising after the 115th day before the primary. A vacancy arising early in that period can therefore leave time before the declaration deadline for candidates to enter the primary for the newly vacant term.

This overlap explains why R.C. 3513.31(I) needs a restriction concerning an existing primary nomination. The party-selection mechanism and the primary process are not necessarily mutually exclusive from the outset. If the primary produces a nominee for the vacant term, the committee may not displace that nominee.

Derrig’s assertion that R.C. 3513.31(I) applies only when no primary is held failed because the statute contains no such limitation and because that reading would conflict unnecessarily with the filing opportunities preserved by R.C. 3513.05.

D. Related statutes already regulate simultaneous candidacies

The court also relied on R.C. 3513.052. Subsection (A) already prohibits seeking election to multiple offices at the same election. Subsection (H)(2)(b) addresses filling a vacancy under R.C. 3513.31 and permits the relevant change when the candidate withdraws from the first race before the applicable vacancy-filling deadline.

Derrig’s interpretation would substantially duplicate these restrictions by converting R.C. 3513.31(I) into another prohibition on candidates moving from one race to another. Reading the provisions together instead gives each a distinct function:

• R.C. 3513.31(I): Limits a party committee’s power to replace an existing nominee for the vacant term.
• R.C. 3513.052: Regulates candidacy for multiple offices and the withdrawal conditions relevant to changing races.
• R.C. 3513.04: Independently restricts certain candidacies following an unsuccessful primary campaign.

Derrig had emphasized that R.C. 3513.31(I) was absent from the withdrawal provisions listed in R.C. 3513.052(G). The opinion did not undertake a separate, comprehensive construction of subsection (G); its answer rested on the contextual reading of R.C. 3513.31(I) and the express relevance of subsection (H)(2)(b).

Accordingly, the decision should not be understood as granting an unrestricted right to change races. Manning’s earlier nomination did not disqualify him under the provision at issue, but other statutory restrictions remain operative.

E. The court’s rationale differs from LaRose’s rationale

LaRose relied on Manning’s withdrawal and earlier judicial language suggesting that R.C. 3513.31(I) prevents selection of someone already running for another office. The court reached the same practical result through a different interpretation: the final sentence is not a candidate-specific prohibition in the first place.

Withdrawal nevertheless remained relevant to the separate statutory rules governing multiple candidacies. The distinction matters because an election official’s correct result does not necessarily make every part of the official’s reasoning controlling law.

F. Mandamus required a definite legal entitlement

A writ of mandamus requires clear and convincing evidence of a clear legal right, a corresponding clear legal duty, and the absence of an adequate ordinary remedy. The impending election satisfied the third requirement, but it did not supply the first two.

Because R.C. 3513.31(I) did not prohibit Manning’s selection on the asserted ground, Derrig could not establish that election officials had a clear duty to remove him. Election urgency justified consideration through an extraordinary remedy; it did not relax the substantive burden for obtaining that remedy.

5. Precedents Cited and Their Influence

A. The central precedent: unsuccessful primary candidates

State ex rel. Trumbull Cty. Republican Cent. Commt. v. Trumbull Cty. Bd. of Elections, 2022-Ohio-3268, was the principal substantive precedent. There, Sarah Kovoor unsuccessfully sought a primary nomination for the Eleventh District Court of Appeals. After a common-pleas judgeship became vacant, a party committee selected her for the unexpired term. The court denied mandamus because R.C. 3513.04 barred her subsequent candidacy following her unsuccessful primary campaign.

In rejecting an argument that R.C. 3513.31(I) displaced R.C. 3513.04, that opinion stated that a committee could not select a primary winner and described the provision as preventing selection of someone already a general-election candidate for another office. Derrig relied heavily on that language.

The present opinion distinguished the binding determination from the additional explanation. The earlier holding concerned a primary loser and R.C. 3513.04. Its broader description of how R.C. 3513.31(I) applies to primary winners was unnecessary to that holding and inconsistent with the present court’s reading of the statutory text.

The court therefore treated that description as dicta. It did not overturn the earlier holding concerning unsuccessful primary candidates. The practical lesson is that precedent must be identified by the legal issue actually decided, not by isolated language extending beyond that issue.

B. Plain meaning, grammar, and statutory context

• State ex rel. Spencer v. Stark Cty. Bd. of Elections, 2026-Ohio-966, quoting State ex rel. Russell v. Thornton, 2006-Ohio-5858, supplied the instruction to read statutory words in context and according to grammar and common usage. This supported examining both the repeated indefinite article and the provision’s vacancy-filling subject matter.
• State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581 (1995), established that an unambiguous statute must be applied as written. The court accordingly declined to rewrite the final sentence into a candidate-specific prohibition.
• Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 2013-Ohio-989, required related provisions to be construed together. It supported harmonizing the vacancy mechanism with primary filing deadlines and multiple-candidacy restrictions.
• Judy v. Ohio Bur. of Motor Vehicles, 2003-Ohio-5277, supported the significance of “a” as an indefinite article and cautioned against substituting different statutory language to achieve a preferred interpretation.
• Z.J. v. R.M., 2025-Ohio-5662, supplied the explanation that an indefinite article refers to a nonspecific member of a class. This reinforced the distinction between “a person” and “that previously nominated person.”
• State ex rel. New Carlisle v. Clark Cty. Bd. of Elections, 2025-Ohio-814, quoting State v. Wilson, 1997-Ohio-35, cautioned against separating a sentence from the enactment as a whole. It justified limiting “a primary election” to the relevant vacant office.
• State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 2007-Ohio-5228, supplied the prohibition against adding or deleting statutory words. Derrig’s interpretation effectively required adding language identifying the selected person as the previously nominated individual.

Together, these authorities show that the court’s textual approach was contextual rather than mechanical. Grammar identified the nature of the prohibition, while the statutory scheme identified the office and nomination to which it applied.

C. Standing and an elector’s beneficial interest

• ProgressOhio.org, Inc. v. JobsOhio, 2014-Ohio-2382, quoting Moore v. Middletown, 2012-Ohio-3897, provided the ordinary requirements of injury, traceability, and redressability.
• State ex rel. Sinay v. Sodders, 1997-Ohio-344, stated the mandamus inquiry: whether the relator would be directly benefited or injured by the judgment.
• State ex rel. Martens v. Findlay, 2025-Ohio-5589, emphasized that injury must be personal rather than merely a harm shared by the public generally.
• State ex rel. Martens v. Findlay Municipal Court, 2024-Ohio-5667, recognized elector standing in election mandamus and described those cases as representing the outer bounds of standing. The court relied on its recognition of a particular injury to an elector’s vote when election officials disregard their duties.
• State v. Brown, 38 Ohio St. 344 (1882), and State ex rel. Gregg v. Tanzey, 49 Ohio St. 656 (1892), supplied the historical foundation for treating electors as beneficially interested relators. The latter specifically recognized an elector’s interest within the relevant county and judicial circuit.

LaRose argued that Derrig alleged no injury different from other Ninth District voters. The per curiam opinion nevertheless applied the established elector-standing cases, stressing that LaRose had not addressed that line of authority or argued for its reconsideration. This was an application of existing doctrine, not an unrestricted declaration that any voter may litigate every election grievance.

D. Laches and material prejudice

• Blankenship v. Blackwell, 2004-Ohio-5596, imposed “utmost diligence” on election litigants.
• State ex rel. Miller v. Union Cty. Bd. of Elections, 2023-Ohio-3664, quoting State ex rel. Clark v. Twinsburg, 2022-Ohio-3089, identified the four elements of laches: unreasonable delay, no excuse, knowledge of the wrong, and prejudice.
• State ex rel. Pennington v. Bivens, 2021-Ohio-3134, quoting Smith v. Smith, 168 Ohio St. 447 (1959), required the party asserting laches to demonstrate material prejudice.
• State ex rel. Roadway Express, Inc. v. Indus. Comm., 1998-Ohio-213, distinguished material prejudice from ordinary inconvenience or expense. Manning’s need to defend his candidacy did not, without more, establish the required prejudice.
• State ex rel. Ohio Democratic Party v. LaRose, 2024-Ohio-4953, required prejudice that timely action could have avoided. Manning did not explain why an earlier challenge would have eliminated the need to defend his candidacy.
• State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 2007-Ohio-5228, recognized that interference with absentee-ballot preparation may constitute material prejudice.
• State ex rel. Halstead v. Jackson, 2022-Ohio-3205, required the party invoking laches to establish its own prejudice rather than rely on possible prejudice to an elections board.

Manning argued that the delay pushed the litigation beyond the September 19 deadline for transmitting military and overseas absentee ballots. But that alleged administrative prejudice belonged to the board, not Manning, and neither the board nor LaRose asserted it. The court rejected laches without deciding that the entire period before Derrig’s August 31 challenge was reasonable.

E. Mandamus and the unresolved protest question

• State ex rel. Strbich v. Montgomery Cty. Bd. of Elections, 2024-Ohio-4933, supplied the three-part mandamus test and the clear-and-convincing evidentiary burden.
• State ex rel. Leneghan v. Delaware Cty. Bd. of Elections, 2026-Ohio-1598, and State ex rel. Evans v. Blackwell, 2006-Ohio-4334, supported finding ordinary remedies inadequate because the election was fewer than 30 days away.
• State ex rel. Scherach v. Lorain Cty. Bd. of Elections, 2009-Ohio-5349, was invoked by LaRose and Manning to support their contention that no statutory protest mechanism applied. The court expressly declined to resolve that argument because the merits independently defeated the requested writ.

F. Authorities supporting the standing concurrence

Justice DeWine’s concurrence relied on a more demanding application of individualized injury:

• Beaver Excavating Co. v. Testa, 2012-Ohio-5776, treated standing as a threshold requirement preceding consideration of the merits.
• Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 2007-Ohio-5024, placed the burden of establishing standing on the relator.
• Voss v. Quicken Loans, L.L.C., 2026-Ohio-531, supported the constitutional foundation of standing and the need for particularized harm.
• Fortner v. Thomas, 22 Ohio St.2d 13 (1970), limited judicial decision-making to actual controversies involving parties legitimately affected by specific facts.
• State ex rel. Martens v. Findlay Mun. Court, 2024-Ohio-5667, and ProgressOhio.org, Inc. v. JobsOhio, 2014-Ohio-2382, supplied injury, causation, and redressability standards that the concurrence considered unsatisfied.
• State ex rel. Duckett v. Hancock Cty. Bd. of Elections, 2026-Ohio-3747, illustrated a different situation involving an elector’s exercise of a legislatively created protest right.

State ex rel. Koebel v. Erie Cty. Bd. of Elections, 2026-Ohio-3999, was the companion decision to which several justices referred. Chief Justice Kennedy and Justice Brunner identified additional standing reasons in their separate writings there; Justice DeWine incorporated his contrary analysis. Because those writings are not reproduced in the supplied opinion, their full reasoning cannot be reconstructed from this text alone.

6. The Standing Disagreement

The standing dispute concerns whether an elector’s interest in a legally administered election is sufficiently personal to permit a ballot-removal action.

The per curiam opinion treated established election-mandamus cases as recognizing an injury to the elector’s vote when officials fail to perform election duties. Derrig’s qualification to vote in the relevant judicial election supplied the required beneficial interest under that precedent.

Justice DeWine viewed the same allegations as a generalized grievance. Derrig was not a candidate for the judicial office, was not a Republican Party member, and did not claim that he would be prevented from voting for his preferred candidate. In the concurrence’s account, he sought only to prevent other voters from choosing Manning.

The concurrence also distinguished cases involving statutory protest procedures. Where the legislature creates a protest right and an elector exercises it, denial of that right may provide a different basis for standing. It considered this case outside that category.

This disagreement is institutionally important. Under the concurrence’s approach, the court would never reach the statutory merits. Under the per curiam approach, elector standing permits judicial enforcement of election duties even when the alleged injury is shared with other qualified voters. The actual disposition was denial on the merits, not dismissal for lack of standing.

7. Potential Impact and Limits

Party nominations for unexpected vacancies

The decision clarifies that R.C. 3513.31(I) is not an independent bar against selecting every person who previously won a primary for another office. Party committees and election officials must instead determine whether the party already has a nominee for the particular vacant unexpired term.

Although the case concerned a judicial vacancy, the reasoning addresses a provision governing elective-office vacancies more generally. Its application in future disputes will still depend on the relevant office, timing requirements, and other statutory restrictions.

Protection of primary voters’ choice

The interpretation preserves the primary process against displacement by party officials. Where a nominee already exists for the vacant term, the committee cannot bypass that result through the alternative selection procedure.

Continued force of separate candidacy restrictions

The opinion does not abolish the unsuccessful-primary-candidate restriction applied in the earlier case, permit simultaneous candidacies contrary to R.C. 3513.052, or excuse noncompliance with withdrawal and certification deadlines. Eligibility requires examining the statutory scheme as a whole.

More precise reliance on precedent

Future litigants cannot safely rely on the earlier opinion’s broad characterization of R.C. 3513.31(I) as controlling. They must distinguish its holding under R.C. 3513.04 from its nonbinding discussion of another provision.

Procedural consequences

The laches analysis reinforces the need to identify concrete, party-specific prejudice caused by delay. It does not authorize leisurely election litigation; the “utmost diligence” requirement remains intact.

The standing division also signals continuing uncertainty over the constitutional limits of elector-based mandamus. Meanwhile, the statutory protest question remains open in this decision and should not be treated as resolved merely because the court considered the substantive claim.

8. Complex Concepts Simplified

Mandamus

An extraordinary court order directing a public official to perform a clear legal duty. It requires more than showing that the official’s decision is debatable.

Relator

The person bringing the mandamus action. Derrig was the relator.

Standing

The right to bring a particular dispute before a court, ordinarily based on a personal injury that the requested judgment can remedy.

Beneficial interest

An interest showing that the relator would be directly benefited or injured by the court’s decision. The justices disagreed over whether Derrig’s status as an elector supplied that interest.

Laches

A defense based on unjustified delay that materially harms the party asserting it. Delay alone is insufficient.

Holding and dicta

A holding is the legal determination necessary to decide a case. Dicta are additional observations not necessary to that determination and do not carry the same binding force.

Indefinite article

The word “a,” which ordinarily identifies an unspecified member of a class. Here, “a person” did not mean “that previously nominated person.”

Superfluous language

Language that adds little or no independent legal work. Courts generally prefer interpretations that give related provisions distinct functions.

Unexpired term

The portion of an elected official’s term remaining after the office becomes vacant.

Clear and convincing evidence

A heightened evidentiary standard requiring a firm belief in the matters that must be established.

9. Conclusion

State ex rel. Derrig v. LaRose clarifies that the final sentence of R.C. 3513.31(I) protects an existing nomination for the relevant vacant unexpired term. It does not independently disqualify a candidate merely because that candidate previously won a primary for another office.

The opinion’s broader significance lies in its contextual statutory interpretation, its separation of binding precedent from dicta, and its insistence that election urgency cannot substitute for a clear legal entitlement to mandamus. Separate restrictions on candidacy remain applicable, while the divided standing analysis and unresolved protest question leave important procedural issues for future litigation.