A lawsuit contesting the results of Ohio’s primary election heard opening statements July 8 in a bench trial.
Avon Lake attorney Gerald W. Phillips said the state of Ohio’s decision to postpone the election due to the novel coronavirus pandemic along with alleged procedural issues with the mail-in ballots violated his constitutional rights in seeking to overturn the results of his unsuccessful Republican primary bid for Lorain County commissioner.
In his opening statement before Lorain County Common Pleas Judge Mark A. Betleski, Phillips argued that the actions of Ohio Gov. Mike DeWine and former Ohio Department of Health Director Dr. Amy Acton were “illegal, unlawful and unconstitutional” in their actions to postpone Ohio’s primary election and did not follow proper mechanisms to do so.
“The constitution is the paramount organic law of a particular body, whether the federal, state or in the city charter,” he said. “No ordinance, statute or administrative executive officer can violate that.
“In this particular case, Amy Acton and Gov. DeWine violated the constitution. And case law indicates that there’s no exceptions for violating the constitution for an emergency unless it’s expressly provided in the constitution.”
Phillips filed a lawsuit June 8 in Lorain County Common Pleas Court seeking to nullify the results of the election where he was defeated by North Ridgeville Council at-Large member Michelle Hung.
In a special meeting June 12, the Lorain County Board of Elections voted to formally join the suit against Phillips.
Phillips alleges 3,142 registered voters were “disenfranchised and illegally, unlawfully and unconstitutionally excluded from exercising their right to vote,” according to the suit.
He added the Lorain County Board of Elections failed to do its job in administering the mail-in ballots , not properly educating voters and called Election Day a “comedy of errors.”
“The state had a duty to make sure that that interest in protecting the sanctity of the ballot, was done and put the right restrictions in there so that that was accomplished: I believe they failed,” Phillips said.
In response to Phillips, Hung’s attorney James Miller said in his opening statement that after his client was declared the winner on election night and following a recount, Phillips’ suit lacked the necessary evidence.
Miller argued Phillips lacked the evidence to prove that there were both election irregularities and that such irregularities would have altered the end results of the contest.
“After losing the election and a recount, Mr. Phillips filed this action basically seeking a do-over,” he said.
Lorain County Assistant Prosecutor Daniel Petticord, representing the Lorain County Board of Elections, said the case came down to simple math: Hung defeated Phillips by more than 2,000 votes and 1,522 Republican primary ballots were not returned.
Petticord argued even if any irregularities occurred, they would not have changed the result of the election.
He also argued that Phillips’ decision to bring forth “broad based constitutional challenges” against Acton and DeWine after he lost the election was not permitted in Ohio.
“You can’t do that,” Petticord said. “That’s not how the system works in Ohio.”
The trial is scheduled for a status conference July 15.
Phillips is asking the court to invalidate the results of his primary, order a new primary race and cancel any certificate of nomination of Hung.
He also seeks costs and reasonable attorney fees.