In Erie County, former state lawmaker Steven Kraus is challenging Rep. D.J. Swearingen, R-Huron, for the GOP nomination in Ohio’s 89th House district. But an Ohio Supreme Court challenge is trying to kick Kraus off the ballot. He was convicted of felony theft in 2015 which is a disqualifying offense under state law. Kraus contends that because he got that conviction sealed, he should be allowed to hold public office.

Dennis Schreiner, a township trustee who brought the court challenge, lodged a similar complaint with the Erie County Board of Elections in December. The board, however, sidestepped the issue when it met to certify candidates later that month.

“So, the question today is did Steve (Kraus) submit sufficient petitions with enough valid signatures to put them on the ballot in March,” board director Alex Jones explained. “It is the opinion of the staff after review that he has.”

“The challenge, or the protest, is I think a separate question, which is, is Mr. Kraus qualified to hold the office?” Jones added.

The board met again earlier this month to consider Schreiner’s protest. After hearing from both sides, they voted 4-0 to deny Schreiner’s protest, clearing the way for Kraus to appear on the primary ballot.

In court filings, Schreiner argues the board “abused it’s discretion” by certifying Kraus despite his past conviction. He’s urged the Ohio Supreme Court to issue a writ of prohibition, to keep Kraus out of the contest.

How Kraus got here

In 2014, Kraus shocked Ohio Democrats by defeating then-party chairman and state Rep. Chris Redfern, who was seeking reelection to the Northwest Ohio district. After that election cycle, Redfern stepped down as party chairman.

But Kraus’ victory was short lived. About two weeks after winning the election, local prosecutors charged Kraus with theft. The incident involved Kraus, a professional auctioneer, taking antiques from an elderly woman’s home. Kraus argued he was given permission to take the items and prepare them for auction.

The homeowner’s real estate agent disputed Kraus’ version of events, insisting she gave him permission to look at a car on the property, but not to enter “the house or to appraise other property.” The homeowner, meanwhile, contends Kraus didn’t wind up returning all he took.

In July 2015, a jury convicted Kraus of theft from an elderly person, and he was forced to vacate his House seat. The following year, an appeals court upheld his conviction and the state supreme court declined further review.

In public statements, Kraus casts the episode in defiant terms. Instead of being convicted, he was “canceled.” The Statehouse seat that conviction cost him was “stolen.” And Kraus is quick to draw links between himself and former president Donald Trump.

“(Trump’s) working to regain his seat. Well, I got my expungement in ’23, now I’m working to regain mine,” Kraus said. “They’re trying to keep him — the left, the liberals — are trying to keep him off the ballot in different states, and the liberals, the left, who pretend to be Republicans, are trying to keep me off the ballot, too.”

The facts and arguments

In a letter to the Erie County Board of Elections, Andrew Mayle, an attorney representing Kraus, acknowledges the prior conviction and that the conviction would bar someone from holding public office. But he contends Kraus can’t be disqualified because he had his criminal case sealed.

The same statute that would bar Kraus from public office includes a handful of caveats. If a conviction is “reversed, expunged, or annulled,” an individual can serve. The same goes if they receive a full pardon. Schreiner argues a sealed conviction is not the same as an expunged conviction; Mayle insists “not so.”

Pointing to a pair of Supreme Court cases, he argues the justices use the terms ‘seal’ and ‘expunge’ interchangeably. In Boykin v. State, for instance, “the sealing of a criminal record is itself commonly known as expungement,” Mayle writes. And he adds, at the time lawmakers passed the law, sealing a conviction was the most a defendant could do.

“Denying ballot access to individuals who faced legal adversity but then paid their debts to society to the point where the courts saw fit to seal their convictions not only seems to be a disservice to the courts and those individuals, it ultimately has the effect of limiting voter choice — a result antithetical to American democracy,” Mayle insists.

In an interview, Kraus argued he filed for expungement but wound up getting his records sealed.

“Do you know what expungement is?” he asked. “Expungement means grace. Expungement means mercy of the court. Nobody’s entitled to it.”

“But the court grants it,” he argued, “because you’ve done the right things, because you paid your debt to society. It is grace and mercy. So what are you telling me? That I got grace and mercy back in January of 2023, but now I don’t have it anymore because they changed the law in October?”

Schreiner rejects the idea that a sealed record and an expunged record were ever equivalent. He argues even at that time of Kraus’ conviction, state law drew a distinction between the two procedures.

“They have different requirements, are available under different circumstances, and are not interchangeable,” Schreiner writes.

He pointed to juvenile law, which makes the distinction between their definitions explicit, and noted no provision in Ohio’s adult criminal statutes gives the terms the same definition. Digging through the same court cases as Mayle, Schreiner argued even as judges acknowledge the terms having the same colloquial meaning, they just as often point to distinctions between the two mechanisms.

And Schreiner argued this shouldn’t be a surprise to Kraus. The judge who sealed his criminal record warned the conviction wasn’t going away, and state officials could still access his records, for instance if he applied to reinstate his auctioneer’s license.

“It would be a very strange result,” Schreiner argued, “if the law was more protective of an auctioneer’s license than a seat in the Ohio House of Representatives.”

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This story is provided by Ohio Capital Journal, a part of States Newsroom, a national 501 (c)(3) nonprofit. See the original story here.