State, Ex Rel. Rose v. Ryan , 119 Ohio App. 363 ( 1963 )

This court has heretofore held that under the circumstances here present — where the vacancy arose after the final date for filing petitions for the primary election — there can be no primary and hence there are no names authorized to be printed on the ballot for city attorney.

In this case, of course, the ballot is a voting machine. A most unusual situation is present as a result. On the face of the voting machine about shoulder high are three horizontal rows, the top being, "Questions," below that, "Offices," and still below that, "Candidates."

Counting from the left, in position three is the title of "City Attorney" but under it there are no names, as none were nominated. Only one voting lever is reserved for voting for city attorney and that is locked so it can not be moved.

Ten or more inches above the row labelled "Questions" is a series of slots, numbered one to eleven. None is labelled "Write-in Row" and the instruction is "If Write-in is Permitted, Raise Slide Above Corresponding Office Column Number and Write Name on Exposed Paper."

Thus it is, that although the charter clearly and expressly authorizes a write-in for every municipal office, the voter is left in a quandary and must determine at his peril whether or not he is raising the proper slide for write-in.

It is clear from the testimony before us that if he makes an error and raises the wrong number, he is liable to lose his vote several ways. If, instead of raising slide three, he raises and writes the name of his city attorney choice on slot two, he will have cast one vote for him for mayor and he will find the two levers for mayor locked and unable to be moved.

If the voter makes a mistake and raises the slide on number four, he either will have cast one vote for his favorite for city council or, because that is multiple choice with four to be elected, he may have jeopardized all his votes for four councilmen.

All this would be prevented or at least reduced to a minimum by the simple expediency of putting a label of city attorney above the write-in slot for city attorney.

As now arranged the voting machines (1) have a label — City Attorney — at a place where it is impossible to vote for city attorney, and (2) reserve one of eleven slots for write-in but carry no mark or title at all.

The circumstances are quite unusual and it would seem that a remedy is called for which is adequate. If the board of elections feels the label "City Attorney" must remain in the place where no one can possibly vote for city attorney, I still see no reason why, under such rare circumstances, a second label should not be attached which will tell the elector where he can — not where he can't — vote for city attorney.

As to whether paper ballots are authorized to be used along with voting machines, I am unable to agree with the contention of the Attorney General that this is not authorized and would work an impossible hardship.

Without expressing any opinion as to whether or not they are required here, I note that Section 3507.11, Revised Code, being part of the "Voting Machine" chapter, provides as follows:

"If a board of elections deems it impracticable to use voting machines for all or any part of an election in any precinct in which voting machines have been provided, it shall arrange to have the voting in such precinct conducted by paper ballots or voting machines, or both."

In the case of State, ex rel. Benjamin, a Taxpayer, v. Brown,Secy. of State (1955), 164 Ohio St. 189, the first paragraph of the syllabus reads as follows:

"1. Under the provisions of Section 3507.11, Revised Code, if a board of elections deems it impractical to use voting machines for all or any part of an election in any precinct in which voting machines have been provided, it shall arrange to have the voting in such precinct conducted by paper ballots or voting machines or both."

(Decided October 25, 1963.) ON APPLICATION for contempt charge.

BRYANT, J. The sole question before the court at this time arises under a "charge of contempt for failure to fully comply with peremptory writ of mandamus." The charge was positively sworn to and filed by Fred Rose, relator herein, and the charge named Jerry F. Ryan, William B. Haines, William Schneider and Charles Davies, as members of the Franklin County Board of Elections, and Ted W. Brown, as Secretary of State, respondents herein.

In further support of the charge, Rose attached to it an additional separate affidavit, signed and sworn to by him, and also (1) a photo-copy of a portion of the minutes of the respondent board of elections and (2) a photo-copy of a two-page letter by Secretary of State Brown, dated October 21, 1963, and addressed to the respondent board of elections.

The contempt charge arises following prior action by this court and in particular a decision, opinion rendered on October 14, 1963 (page 367 herein), by Duffey, J., concurred in by Troop, J., and the writer, with the journal entry prepared by the court and filed on October 17, 1963.

In substance the contempt charge alleges that the respondents as members of the board of elections and as Secretary of State "have failed, neglected and refused to fully comply with a peremptory writ of mandamus issued by the court on the 17th day of October, 1963, and served upon the respondents in conformance with law." The contempt charge continues, in part, as follows:

"Relator says that the respondents are not providing a `proper ballot' for the write-in race for city attorney in accordance with the form of ballot and specifications required by the Columbus City Charter. That proper instructions do not appear as required; that the instructions are in conflict and confusing to the electorate; that the instructions on the voting machine violate the provisions of the city charter; and that the instructions on the voting machine are incomplete and in conflict with other instructions to the voters.

"Relator says that the respondents do not have authority or discretion to change the explicit provisions of the city charter. Relator attaches hereto and makes a part hereof a separate affidavit, copies of two motions and a letter to respondent board by respondent, Ted W. Brown.

"Wherefore relator ask (asks) that the respondents be required to provide a proper ballot with all the legal requirements in accordance with the order and decision of the court and in accordance with law together with the relief asked in relator's amended petition."

It appears that sometime after the decision and journal entry in this case and the service of the peremptory writ of mandamus upon the respondent board and the respondent Secretary of State, the respondent board held a meeting and that two motions were duly made and seconded and each resulted in a tie vote.

One of them was a motion by Mr. Ryan, seconded by Mr. Haines, "that this board shall prepare paper ballots for the office of city attorney for the Columbus city election, 1963" with certain other instructions of a procedural nature. This motion received favorable votes from Messrs. Haines and Ryan and negative votes from Messrs. Davies and Schneider.

The following is the text of the motion which ultimately prevailed:

"Motion by Mr. Schneider, second by Mr. Davies, that the space reserved for the title of the office of City Attorney for the City of Columbus on the regular title row of voting machines be blocked out, that a printed sticker be placed over and above the write-in slot pertaining to that office, and that the sticker properly designate that as the write-in slot for the office of city attorney. Roll call: Yeas, Mr. Davies, Mr. Schneider, 2. Nays, Mr. Haines, Mr. Ryan, 2."

Both questions above referred to having resulted in tie votes by the respondent board were submitted to the Secretary of State who by letter of October 21, 1963, addressed to the board in the conclusion thereof wrote as follows:

"In my opinion, therefore, not only as a matter of compliance with the order of the court, but as a matter of administrative policy, the voting machine provides a proper method for conducting this election.

"I therefore vote no on the motion of Mr. Ryan, and yes on the motion of Mr. Schneider, and resolve the issue in favor of the use of properly labeled voting machines."

The third and fourth paragraphs of the Secretary of State's letter read as follows:

"I have carefully studied the opinion and order of the court as well as the pertinent provisions of the Columbus City Charter. It is my opinion that the order of the court may be fully complied with by conducting the election for the office of city attorney on voting machines, placing the label bearing the title of the office above the appropriate write-in slot, instead of below the locked-out levers.

"If the conduct of the election in that manner complies with the order of the court, there are certainly many other compelling reasons which argue for conducting the election that way. Franklin County has expended considerably more than a million dollars in the purchase of voting machines. The machines which it has purchased are widely in use in many counties in Ohio, and a challenge such as that which has now been made has never been made before. The voting machines provide a convenient and secure method of conducting elections including elections which must be entirely by write-in votes. Particularly when the title of the office is placed on a label above the write-in slot, there is no reason why every interested voter may not raise the slot and cast his vote."

In the memorandum in support of the contempt charges, relator again urges that this court order the board of elections to use a paper ballot contending it is the only ballot that can "fully comply with the city charter" and also "that a paper ballot is necessary for full compliance." We believe this argument was fully answered in the opinion of this court rendered on October 14, 1963, written by Duffey, J. (See page 367 herein.)

In the alternative, relator contends that if a voting machine is to be used additional changes in the instructions are required. Relator points out that since the time the action now before us was filed three changes have been made on the voting machine as follows: "1. Added write-in label (Hand) on the upper left. 2. Blocked out of city attorney titled on Regular Title row. 3. City attorney title Label placed over Slot No. 3 in sticker form."

Relator contends that none of the three changes will appear on instructions posted at the precinct; and, as a result, it is the contention of relator that the posted instructions should show the above changes and all the slots provided on the machine and that the slide or cover should be permanently lifted in case of the write-in space for city attorney.

Counsel for the respondents have filed a memorandum in opposition in which they contend that the Charter of the City of Columbus does not require a paper ballot and that the journal entry of this court which was incorporated into the writ of mandamus makes no reference to a paper ballot. This brief concludes by contending that the action taken by the election officials "is in full compliance with the order of this court to provide a `proper ballot' in the aforementioned electoral race." Respondents also contend that the machine as now arranged for the coming election has the title of the office above the write-in slot and that, because no printed names are involved in the city attorney's race and entitled to appear on the face of the voting machine, the voting machine now is in full compliance and is a proper ballot.

In this connection, at the hearing held on the contempt charge photographic representations of the face of the voting machine as now ordered by the respondent election officials were presented and received by the court after proper qualification. From these it would appear that the title of city attorney has been blocked out in the row labeled "Offices."

It would also appear that a label has been placed over the write-in slot reserved for election of a city attorney and that this label among other things contains the following legend: "City Attorney," followed by a statement as to the termination date of the term of office and the further statement "vote for one."

In addition, at the bottom of this label there is an arrow pointing down to the write-in slot, which is position No. 3 in the row of write-in slots.

We observe, therefore, that at this time the face of the voting machine contains a large hand at the upper left part of the machine with the words "write-in row" in large type and beneath it a further legend was written in caps "if write-in is permitted — raise slide above corresponding office column number and write name on exposed paper."

As previously stated, this is a hearing to determine the issues raised by the charge of contempt against the election officials involved on behalf of relator herein.

It is clear that in determining the contempt charge now pending before us, we are limited to the issues raised in the pleadings as further limited by the parties in open court and in the briefs.

Upon consideration of this matter we are of the opinion that no contempt of the peremptory writ of mandamus has been shown, and the application for citation for contempt, therefore, is not well taken, must be overruled, and it will be, and hereby is, so ordered.

Application overruled.

DUFFEY and TROOP, JJ., concur.