Attorney general: Dismiss Aey’s suit

Photo

David Aey

The case is before a federal judge in Youngstown.

By PETER H. MILLIKEN

VINDICATOR STAFF WRITER

YOUNGS-TOWN — Ohio Attorney General Marc Dann’s office seeks to intervene to defend the constitutionality of a state election law, which was attacked by David P. Aey — the candidate for Mahoning County sheriff who was taken off the ballot by the Ohio Supreme Court.

Dann’s office filed a motion to intervene Wednesday in a lawsuit Aey had filed Tuesday in U.S. District Court in Youngstown. Saying the federal court lacks jurisdiction over Aey’s complaint and Aey “has failed to state a claim upon which relief can be granted,” Dann sought dismissal of Aey’s complaint.

With his federal lawsuit, Aey filed a motion for a temporary restraining order barring the Mahoning County Board of Elections from removing his name from the March 4 Democratic primary ballot.

Aey and his lawyer, Martin E. Yavorcik, filed the motion in response to the Feb. 14 Ohio Supreme Court decision that ordered the board to remove Aey’s name from the ballot.

The state Supreme Court granted a request from Sheriff Randall A. 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.

If the Ohio Supreme Court ruling stands, Wellington will be unopposed for re-election in the Democratic primary. He has no Republican opposition. Filing deadlines are March 3 for independent candidates and Sept. 3 for write-in candidates.

In his federal court filing, Aey maintained that the state law that sets forth the qualifications to run for sheriff is an unconstitutional prior restraint on Aey’s free speech rights. The state law violates the First and 14th amendments to the U.S. Constitution, Aey argued.

“It’s our position that the federal courts have already established the constitutionality of the qualifications statute,” said Ted Hart, deputy director of communications for the state attorney general’s office.

Hart said the Mahoning County prosecutor’s office will defend the county board of elections in this matter.

The case was initially assigned to U.S. District Judge David D. Dowd Jr. in Akron, but Judge Dowd removed himself, and the case has been reassigned to U.S. District Judge Peter C. Economus in Youngstown. No hearing date or ruling on Dann’s motion to intervene has yet been announced.

Judge Dowd’s written removal notice didn’t give a reason why he was removing himself from the case, and a spokeswoman for his office said there would be no further comment.

Judge Dowd presided over the federal class-action lawsuit in which Mahoning County jail inmates successfully claimed jail crowding under Wellington’s administration violated their constitutional rights.

Aey said he believes he is “more than qualified” to be sheriff after 13 years as a deputy sheriff, four years on the local SWAT team, and three years as a supervisor with the U.S. marshal’s violent-fugitive task force.

The board of elections has said it won’t count absentee votes for Aey, and his name won’t be on election day paper ballots or voting machines. Absentee balloting began Feb. 8 and ends March 3.