Trying to keep Aey on ballot

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David Aey

Removing Aey from the ballot is contrary to voters’ rights, a lawyer argues.

By PETER H. MILLIKEN

VINDICATOR STAFF WRITER

YOUNGS-TOWN — David P. Aey has filed a motion in federal court for a temporary restraining order barring the Mahoning County Board of Elections from removing his name from the March 4 Democratic primary ballot as a candidate for sheriff.

Aey and his lawyer, Martin E. Yavorcik, filed the motion Tuesday afternoon in U.S. District Court in Youngstown in response to Thursday’s Ohio Supreme Court decision that ordered the board to remove Aey’s name from the ballot. The federal case has been assigned to U.S. District Judge David Dowd in Akron, and no federal court hearing has been scheduled.

If the Ohio Supreme Court ruling stands, Sheriff Randall A. Wellington will be unopposed for re-election in the Democratic primary. He has no Republican opposition. The independent candidate filing deadline is March 3; and the filing deadline for write-in candidates is Sept. 3.

The state Supreme Court granted a request from Wellington to have Aey removed from the ballot on the grounds that Aey lacked the two years of supervisory law enforcement experience at the rank of corporal or above, which state law requires of candidates for sheriff.

In his federal court filing, Aey maintains that the state law that sets forth the qualifications to run for sheriff violates the First and 14th Amendments to the U.S. Constitution.

“We’re asking that the statute be struck as unconstitutional. It’s a prior restraint on his First and 14th Amendment rights,” Yavorcik said after he and Aey made the filing. “The requirements [to run for sheriff] are extraordinary, and I think that they’re a prior restraint on his free speech,” Yavorcik added.

“It’s America, and I think we should be entitled to our due process, and the taxpayers of Mahoning County should have the right to vote. They should determine who’s qualified and who’s not qualified,” Aey said outside federal court.

“I feel that I’m more than qualified,” after 13 years as a sheriff’s deputy, four years on the local SWAT team, and three years as a supervisor with the U.S. marshal’s violent fugitive task force, Aey said.

By not issuing the temporary restraining order, the court would nullify votes for Aey that may be contained on some 7,035 absentee ballots already cast, Yavorcik argued.

“What we’re saying is, ‘Put him on the ballot. Let’s have the election. We would even agree to seal the ballots and then litigate the case, and then open them up and see what’s what,”’ Yavorcik said.

After the Ohio Supreme Court ruling, the board of elections said it won’t count absentee votes for Aey and will keep his name off the election day ballot. Absentee balloting began Feb. 8 and will end March 3.

“The public has a strong interest in having their votes counted, as the vote is the foundation of our government,” Yavorcik argued in a memorandum in support of the restraining order. “Not granting the plaintiff a temporary restraining order will have a chilling effect on constitutionally protected political speech,” he added.

County Prosecutor Paul J. Gains said he awaits a decision from the Ohio attorney general’s office on whether it will defend the county board of elections in the matter, which pertains to the constitutionality of a state law. But Gains declined to comment on the merits, or lack thereof, of Aey’s complaint.

The federal court will “take a look at this based on its merits, and we’ll do what the court tells us to do as we did last week,” said Tom McCabe, county elections director.