Gerald Phillips sues to overturn April 28 election loss; calls to impeach Gov. Mike DeWine

(This story has been updated.) ELYRIA — Gerald Phillips, a Republican candidate for Lorain County commissioner who lost his April 28 primary, is suing over the results of the election in Lorain County Common Pleas Court, calling the election itself unconstitutional and demanding a new one. The suit goes further than just calling the election and its results unconstitutional: It also calls for the impeachment and removal of Gov. Mike DeWine and Ohio Department of Health Director Dr. Amy Acton over their shutdown of the state and the postponement of the original March 17 primary. Phillips, an Avon Lake attorney, alleges that a recount shows 3,142 Republican voters "were disenfranchised and illegally unlawfully and unconstitutionally excluded from exercising their right to vote," according to his wide-ranging 35-page lawsuit. Phillips alleges he "detrimentally relied upon and campaigned upon the premise of a typical election process, absentee ballots and in-person voting on March 17, 2020, to his detriment and costs and expenses, incurring substantially more campaign costs and expenses and totally disrupting his total campaign strategy." He demands that the results of his race against Michelle Hung be invalidated due to the unconstitutional postponement of the election, demanding not only a new primary election but the rescinding of the certificate of election issued to Hung, a Republican city councilwoman from North Ridgeville. A message seeking additional comment on the lawsuit was left for Phillips on Monday. Hung is positioned to take on incumbent Democratic county Commissioner Lori Kokoski in November. She said Monday that she wasn't surprised by Phillips' suit. "We all knew when he paid $1,700 for (a recount) that there was an ulterior motive," she said Monday. "It's just Jerry being Jerry." Hung said her campaign is moving forward with an eye on the November general election. "My campaign is working on my general election and moving forward through the summer and fall to Nov. 3," she said. In the suit, Phillips further alleges that some Republican voters improperly had their registrations canceled, including by absentee ballot. The majority of the voting in the election, which was delayed by the state from March 17 to April 28 due to COVID-19 pandemic concerns, were cast by absentee or provisional ballot. Phillips paid for a recount in the contest, which he lost by a count of 8,471 votes for Hung to 6,440 for Phillips, according to complete and official results from the Lorain County Board of Elections. That's a difference of 2,031 votes. Hung later gained a single vote in the contest during a May 28 recount requested and paid for by Phillips. The recount cost more than $1,700, which Phillips had to put down in a deposit, according to the Board of Elections. Phillips then had 10 days to contest the results of the election, under Ohio law. Among his many charges are that Lorain County Board of Elections staff are guilty of misconduct, including for not assisting voters outside the Board of Elections offices on Election Day. He further alleges that disabled voters were denied their constitutional right to vote when going to the board offices that day, that voters were not notified of the rules and regulations of the delayed vote and that there were improper delays in sending out absentee ballot requests by mail. Phillips, who in the suit calls himself "an expert election law attorney having tried, litigated and advocated numerous cases in local courts, appellate courts and especially in the Ohio Supreme Court," said in his "expert opinion" that "there was complete chaos, confusion, and gross misunderstanding concerning the exclusive mail in or absentee ballot election process for the Presidential Primary Election." Lorain County Board of Elections Director Paul Adams said Monday he had no comment on Phillips' allegations. The board certified the final, official numbers in the election at a meeting on May 14. There were no changes in any of the races at the time. The board then conducted the recount at Phillips' request and expense on May 28. Phillips further goes on to allege that DeWine and Acton, by virtue of their orders to close the polls on March 17 and delay the election, were "nothing but dilatory [meaning 'slow to act'] and totally lacking in any promptness or due diligence." "Action and DeWine conspire at the eleventh hour to undertake a conspiracy to derail the Presidential Primary Election for their own political gain, attention and promotion, including the Hair (sic) Mary Closure of the Polls," Phillips wrote. He further alleges that Acton's powers as Ohio Department of Health director are "overly vague, broad and are unconstitutional," and that she violated the Ohio Constitution by closing the polls. Ohio, Phillips said, was the only one of four states whose scheduled March 17 primary did not go forward without a significant difference in the COVID-19 fatality rate. Furthermore, he alleges that most of Ohio's COVID-19 related deaths, nearly 1,900, were in nursing homes while another 80 were in prisons or jails. That leaves "a mere 419 deaths for non-highly susceptible Ohioans, (which) among 11,747,694 Ohioans, represents a mere .000036 (0.0036 percent), no justification to destroy Ohio's economy." He goes on to write that Acton and DeWine "has used a 'sledge hammer' to kill the Ohio economy through their unconstitutional actions, destroying the Ohio economy and destroying the constitutional rights of all Ohioans, individuals and businesses, outside of Nursing Homes and Jails, when Acton and DeWine should have used a 'scalpel and a knife' to delicately slice and dice the COVID 19." Both Acton and DeWine should be removed from office, Phillips demanded, citing Ohio's constitution and impeachment procedures under the Ohio Revised Code. "Acton has quarantined the entire people of the State of Ohio, for more than 14 days, and Acton has no legal statutory, constitutional, or express legal authority to order such broad, unlimited, unrestricted, unlawful, illegal, and unconstitutional quarantine," Phillips wrote. Dan Tierney, a DeWine spokesman, said the governor's office declined comment on pending litigation. Phillips' suit also seeks reimbursement of costs and attorney fees in connection with the lawsuit. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him at @daveobrienCT on Twitter.