State ex rel. Walsh v. Ashtabula Cty. Bd. of Elections

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The State ex rel. Walsh et al. v. Board of Elections of

Ashtabula County.

[Cite as State ex rel. Walsh v. Ashtabula Cty. Bd. of

Elections (1992), Ohio St.3d .]

Elections -- Elector who had been continuously registered for

thirty days or more, but who had not been registered at

her current address for thirty days or more when she

signed and circulated her statement of candidacy and

circulator's statement, was an elector qualified to vote

for the office she sought when she signed the declaration

of candidacy and was a "qualified elector" when she signed

the circulator's statement.

(No. 92-1859 -- Submitted and decided October 14, 1992 --

Opinion announced December 9, 1992.*)

In Mandamus.

Relator, Patricia M. Walsh, timely filed a nominating

petition and statement of candidacy for County Court Judge,

Western Area, Ashtabula County. Respondent, the Ashtabula

County Board of Elections, rejected her petition, and she filed

a statutory protest. Respondent conducted a hearing on the

protest on September 9, 1992, and affirmed its rejection of the

petition and statement of candidacy.

On September 15, 1992, relator filed this action seeking a

writ of mandamus to compel respondent to accept her petition

and statement of candidacy for the office of County Court

Judge, certify her as a candidate for that office, and place

her name on the ballot for the general election to be held

November 3, 1992.

On October 2, 1992, Secretary of State Bob Taft moved to

intervene as of right pursuant to Civ.R. 24(A) as a relator and

urged allowance of the writ. We granted the motion to

intervene on October 14, 1992.

Patricia M. Walsh, pro se.

Lee I. Fisher, Attorney General, and Cherry Lynne Poteet,

Assistant Attorney General, for intervening relator.

Gregory J. Brown, Prosecuting Attorney, for respondent.

Per Curiam. For the reasons that follow we allow the

writ.

Relator and respondent have agreed to the following facts:

(1) That relator has resided in Rome Township, Ashtabula

County, since April 1990;

(2) that her residence is within the jurisdiction of the

office she seeks;

(3) that on July 31, 1992, relator filed a form with

respondent changing her voter registration from her prior

residence in Lake County to her current residence in Ashtabula

County;

(4) that relator's Lake County registration was in effect

since 1983 and was uncancelled at the time she filed the change

of residence form;

(5) that relator signed her statement of candidacy on

August 19, 1992, that she and others circulated her petitions

on August 19 and 20, 1992, and that respondent disputes only

relator's qualifications as a qualified elector;

(6) that if respondent had found that relator was a

"qualified elector and/or a qualified circulator elector," her

nominating petition would have contained sufficient signatures

under law; and

(7) that the Secretary of State advised respondent that

relator's petition should not be rejected, but the county

prosecuting attorney advised rejection.

Respondent rejected relator's statement of candidacy "due

to 'non-qualified elector' and 'non-qualified

circulator-elector'" status. R.C. 3513.261 requires the

statement of candidacy of an independent candidate to "* * *

contain a declaration made under penalty of election

falsification that the candidate * * * is an elector qualified

to vote for the office he seeks." It also requires a

circulator of a nominating petition to declare "* * * under

penalty of election falsification that he is a qualified

elector of the state of Ohio and resides at the address

appearing below his signature [t]hereto * * *."

The questions presented are whether an elector who had

been continuously registered for thirty days or more, but who

had not been registered at her current address for thirty days

or more when she signed and circulated her statement of

candidacy and circulator's statement, was an "elector qualified

to vote for the office [she] seeks," when she signed the

declaration of candidacy, and a "qualified elector" when she

signed the circulator's statement.

R.C. 3501.01(N) defines both "elector" and "qualified

elector," for the purpose of the election laws, as meaning "a

person having the qualifications provided by law to entitle him

to vote." Section 1, Article V, Ohio Constitution provides:

"Every citizen of the United States, of the age of

eighteen years, who has been a resident of the state, county,

township, or ward, such time as may be provided by law, and has

been registered to vote for thirty days, has the qualifications

of an elector, and is entitled to vote at all elections. Any

elector who fails to vote in at least one election during any

period of four consecutive years shall cease to be an elector

unless he again registers to vote."

Read literally, the section allows anyone to vote who has

been registered for thirty days or more, if the other

qualifications have been met. However, the mere fact of

registration is not sufficient under the registration laws to

permit one to vote anywhere. R.C. 3503.01, the first paragraph

of which parallels and embellishes Section 1, Article V, states

in part:

"Every citizen of the United States who is of the age of

eighteen years or over and who has been a resident of the state

thirty days next preceding the election in which he offers to

vote, is a resident of the county and precinct in which he

offers to vote, and has been registered to vote for thirty

days, has the qualifications of an elector and may vote at all

elections in the precinct in which he resides." (Emphasis

added.)

Moreover, in In re Protest Filed by Citizens for the Merit

Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 105, 551

N.E.2d 150, 153, we stated:

"Although a person may be registered with the board of

elections, if that person has moved to a new residence, he or

she cannot be 'registered' as an elector unless that person has

satisfied the change-of-residence requirements of R.C. Chapter

3503."

In another part of that opinion, we defined "elector" and

"qualified elector" in terms of being registered at one's

current address:

"All of these provisions produce the conclusion that even

a previously registered elector who has changed residence may

not vote at any location unless he or she has filed a change of

residence notice with the board of elections. Stated another

way, such person is not an 'elector' or 'qualified elector'

unless his actual current residence is registered with the

board of elections. The voting residence is that residence

filed with the board of elections." (Emphasis added.) Id. at

104, 551 N.E.2d at 153.

The agreed facts indicate that relator had been

continuously registered for more than thirty days and was

registered at her current address when she signed her statement

of candidacy and circulator's statement. There is no dispute

over relator's age, citizenship, or thirty days of state

residence. Therefore, relator was an "elector" and a

"qualified elector" when she signed and circulated the

statement of candidacy. Neither the statutes nor In re Protest

requires that the thirty days of registration be at the current

address. Moreover, there is no assertion that she listed the

wrong address when she signed the circulator's statement.

Therefore, as a "qualified elector" who listed her correct

address, she was eligible to circulate her petitions, and the

respondent disregarded R.C. 3513.261 by finding otherwise.

To be a candidate, however, R.C. 3513.261 also requires a

person to declare that "he is qualified to vote for the office

he seeks." Again, the only objection respondent raises to

relator's statement of candidacy is that she was not registered

at her current address for thirty days or more before signing

the declaration. R.C. 3503.06 provides in part:

"No person shall be entitled to vote at any election, or

to sign any declaration of candidacy * * *, unless he is

registered as an elector."

R.C. 3503.07 then states the qualifications for

registering:

"Each person who will be of the age of eighteen years or

more at the next ensuing November election, who is a citizen of

the United States, and who, if he continues to reside in the

precinct until the next election, will at that time have

fulfilled all the requirements as to length of residence to

qualify him as an elector shall, unless otherwise disqualified,

be entitled to be registered as an elector in such precinct.

When once registered, an elector shall not be required to

register again unless his registration is canceled."

The Attorney General argues that if a person has complied

with R.C. 3503.07, he or she may sign a declaration of

candidacy. We agree.

There is no dispute over any of relator's qualifications

for registering listed in R.C. 3503.07 because it is agreed

that she has lived at her current address in the precinct since

1990. Therefore, relator was clearly qualified to register.

Being qualified to register, she was also qualified to change

her registration under R.C. 3503.16, which provides in part:

"Whenever a registered elector changes his place of

residence from one precinct to another within a county or from

one county to another, he shall report such change to the board

of elections.

"* * *

"Upon receipt of a change of residence notice, whether

directly from the applicant or from the registrar, deputy

registrar, or the precinct election officials under section

3503.11 of the Revised Code, the board shall compare the

applicant's signature with the original registration of such

applicant, and if such signature appears to be the same, entry

of such change of residence on the original registration cards

or forms, and on the registration lists, shall be made. Such

registrant shall be immediately notified by the board by mail

of the change so made."

R.C. 3503.11(A) then states:

"Persons qualified to register or to change their

registration may register or change their registration at the

office of the board of elections or at any permanent or

temporary branch registration office established by the board,

at any time such office is open except that no registration or

change in registration shall be made at any temporary branch

registration office after nine p.m. of the twenty-ninth day

preceding a primary or general election. Any registration or

change in registration made at the office of the board of

elections or at a permanent registration office later than the

thirtieth day preceding a special, primary, or general

election, or at a temporary branch registration office later

than the thirtieth day preceding the special election or later

than the twenty-ninth day preceding a primary or general

election, shall be invalid for that election, but shall be

valid for any subsequent election for which the registrant

qualifies as an elector."

By changing her registration on July 31, 1992, well before

the thirtieth day preceding the general election, relator

became eligible under R.C. 3503.07 to vote in the precinct

where she now resides, and thus eligible to vote for the office

she seeks. Such eligibility to vote and being an elector are

all that R.C. 3513.261 requires in order for a person to be

eligible to sign a declaration of candidacy.

Respondent argues that the thirty-day registration

requirement must be applied at the time relator signed her

declaration of candidacy and circulator's statement, but lacks

authority for such an interpretation of the law. Respondent

first cites R.C. 3501.38(A), a statute applicable to signers of

petitions, not candidates. The statute states:

"Only electors qualified to vote on the candidacy or issue

which is the subject of the petition shall sign a petition.

Each signer shall be a registered elector pursuant to section

3503.11 of the Revised Code. The facts of qualification shall

be determined as of the date when the petition is filed."

This statute is consistent with what we have previously

said. If a previously registered elector changes his or her

place of registration and then signs a petition only a few days

before it is filed, that signature would apparently be valid

because the signer would have been qualified to vote on the

candidacy or issue as of the filing date.

Respondent also cites State ex rel. Latimer v. Leonard

(1940), 65 Ohio App. 158, 18 O.O. 354, 29 N.E.2d 432, in which

a candidate allegedly moved from one precinct to another on

February 4 (although this was disputed and found by the board

of elections not to be a fact) and filed his declaration of

candidacy on March 4. The election was to be held May 14.

According to the Latimer court, G.C. 4785-30, the predecessor

statute of R.C. 3503.01, then stated, "[n]o person shall be

permitted to vote at any election unless he shall have been a

resident of the voting precinct 28 days next preceding the

election at which he offers to vote," and G.C. 4785-71, a

predecessor statute of R.C. 3513.07 required a candidate to

swear in the declaration of candidacy that "he is a qualified

elector in the ward and precinct in which [his stated] address

is located." Id. at 161, 18 O.O. at 355, 29 N.E.2d at 434.

The court concluded that "[a] qualified elector evidently

is one who is qualified, at any designated time, to exercise

the privilege of voting * * *" (id.); and further concluded

that:

"[It is] necessary that the relator should have lived

* * * [at his new address] at least twenty-eight days before

filing his declaration of candidacy, regardless of the date

upon which he caused the books of the board of elections to

conform to his actual residence by filing application for

transfer * * *." 65 Ohio App. at 162, 18 O.O. at 356, 29

N.E.2d at 434.

Latimer, if correct when decided, is no longer

applicable. There is currently no precinct -- residence

requirement for a person to become an independent candidate;

there is only a requirement that a person be an elector and be

eligible to vote for the office he seeks. If there were a

precinct -- residence requirement, then a candidate who had

lived in a precinct less than the required amount of time

before signing a declaration of candidacy could arguably be

accused of having sworn falsely. However, there is no such

residence requirement, and relator did not swear falsely when

she declared in her statement of candidacy that she (1) was an

elector, and (2) was qualified to vote for the office she seeks.

Similarly, in State ex rel. Barrett v. Leonard (C.P.

1941), 21 O.O. 355, 6 Ohio Supp. 345, also cited by respondent,

the Court of Common Pleas of Hamilton County held that the

signatures of persons who signed nominating petitions listing

their current addresses could not be counted, even though the

signers might have subsequently, and before the election,

changed the old addresses on their registrations at the board

of elections to the current addresses. Citing Latimer, the

court held that at the time they signed the petitions, the

signers were not registered electors whose signatures could be

counted under G.C. 4785-34, which then, as now (R.C. 3503.06),

stated that no person could vote or sign a declaration of

candidacy or nominating petition unless he or she was

registered as an elector. 21 O.O. at 358, 6 Ohio Supp. at 347.

As stated above, Barrett would be decided the same way

today. To have their signatures counted, signers of nominating

petitions must list the same address that appears on record at

the board of elections (R.C. 3501.38[C]). This case does not

establish respondent's theory that a statement of candidacy

cannot be signed before thirty days have passed after a change

of registration.

Respondent also cites In re Protest, supra, where we

stated:

"An elector must be 'registered' in order to either vote

or sign such petition on the day that he or she decides to

exercise the right. In either case, that person must have

filed a change of residence notice with the board of

elections." (Emphasis sic.) 49 Ohio St.3d at 106, 551 N.E.2d

at 154.

Again, relator had filed a change-of-residence notice

before signing and circulating her declaration of candidacy.

Thus, she was qualified on the day she signed her statement of

candidacy, and her actions conform to the requirements of In re

Protest.

Finally, respondent cites State ex rel. Higgins v. Brown

(1960), 170 Ohio St. 511, 11 O.O.2d 322, 166 N.E.2d 759, in

which this court disqualified a candidate who had not lived in

a precinct for forty or more days when he swore in his

declaration of candidacy prescribed under R.C. 3513.07 that his

"voting residence" was in that precinct. At that time, R.C.

3503.01 imposed a forty-day precinct -- residence requirement

for voting. The court found that "* * * at the time of such

sworn statement the candidate [was] not residing in such

precinct, [had] not resided there for 40 or more days and

[had] not even attempted to register as an elector * * *

[there]." Id. at paragraph five of the syllabus.

Higgins is also distinguishable. Here, relator was

registered at her "voting residence" at the time she signed her

statement of candidacy.1 Therefore, she was eligible to vote

for the office she seeks, satisfying the requirement to sign a

valid statement of candidacy.

In State ex rel. Schenk v. Shattuck (1982), 1 Ohio St.3d

272, 274, 1 OBR 382, 383, 439 N.E.2d 891, 893, we stated:

"'Words limiting the right of a person to hold office are

to be given a liberal construction in favor of those seeking to

hold office, in order that the public may have the benefit of

choice from all those who are in fact and in law qualified.'"

(Quoting from Gazan v. Heery [1936], 183 Ga. 30, 187 S.E. 371.)

In this case, respondent created a residence requirement

where none exists. In doing so, it disregarded the applicable

statutes cited herein that permit relator to change her

registration to her current address before signing a statement

of candidacy and thereby become a candidate, provided she

possessed the qualifications of an elector. Accordingly, we

allow the writ of mandamus and order respondent to accept

relator's petition and certify her as a candidate for the

office of Ashtabula County Court Judge, Western Area, on the

ballot for the general election to be held on November 3, 1992.

Writ allowed.

Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown

and Resnick, JJ., concur.

FOOTNOTE

1 R.C. 3501.01(P) defines "voting residence" as "that

place of residence of an elector which shall determine the

precinct in which he may vote."

* We granted the writ in this case in an order dated October

14, 1992, "consistent with the opinion to follow." See 65 Ohio

St.3d 1426, 600 N.E.2d 244. We announce the "opinion to

follow" today.