State ex rel. McCann v. Delaware Cty. Bd. of Elections (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. McCann v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2018-Ohio-3342.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-3342THE STATE EX REL. MCCANN ET AL. v. DELAWARE COUNTY BOARD OF
ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. McCann v. Delaware Cty. Bd. of Elections,
Slip Opinion No. 2018-Ohio-3342.]
Elections—Prohibition—Writ of prohibition sought to prevent board of elections
from placing township zoning referendum on the ballot—R.C. 519.12(H)—
R.C. 3501.38(E)(1)—Writ granted.
(No. 2018-1037—Submitted August 15, 2018—Decided August 21, 2018.)
IN PROHIBITION.
________________
Per Curiam.
I. INTRODUCTION
{¶ 1} In this expedited elections case, relators, Norma J. McCann and James
E. Wheeler (“the protestors”), seek a writ of prohibition to prevent respondent,
Delaware County Board of Elections (“the board”), from placing a township zoning
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referendum on the November 2018 ballot. We grant the writ because on one of the
part-petitions, a person other than the circulator indicated the number of signatures
that the circulator had witnessed, invalidating the part-petition, and without the
signatures on that part-petition, the referendum petition lacks sufficient signatures
for placement on the ballot.
II. FACTS
A. The Zoning Amendment and the Referendum Petition
{¶ 2} In March 2018, the Harlem Township Board of Trustees approved
John D. McCann’s request to rezone 13.28 acres from “agricultural residential” to
“planned commercial district.” A group of township residents circulated a petition
for a township zoning referendum requesting that the trustees submit the zoning
change to the voters of the township in the November 2018 general election. On
April 18, the petitioners submitted the petition to the trustees. On April 25, the
trustees certified the petition to the board to determine its sufficiency and validity
in accordance with R.C. 519.12(H).
{¶ 3} The petition included 12 or 13 part-petitions (depending on how they
are counted); the board numbered them 1 through 13. The petitioners used the
secretary of state’s two-page form 6-O. The form’s first page contains spaces to
include information about the proposed zoning amendment and requested
referendum, plus 4 signature lines, numbered 1 through 4. The second page
contains 14 additional signature lines, numbered 5 through 18, a circulator
statement, and a space for the township fiscal officer to acknowledge receipt of the
part-petition. The circulator statement contains a blank for the circulator to write
in the number of signatures he witnessed:
I, [printed name of circulator], declare under penalty of
election falsification that I reside at the address appearing below my
signature; that I am the circulator of the foregoing petition
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containing [number] signatures; that I witnessed the affixing of
every signature; that all signers were to the best of my knowledge
and belief qualified to sign; and that every signature is to the best of
my knowledge and belief the signature of the person whose
signature it purports to be or of an attorney in fact acting pursuant to
section 3501.382 of the Revised Code.
[signature of circulator]
Most of the submitted part-petitions consisted of the form’s two pages, but three
part-petitions contained three pages: part-petition No. 1, part-petition No. 2, and a
grouping of pages that the board labeled part-petition Nos. 11 and 12.
1. Part-petition No. 1
{¶ 4} Part-petition No. 1 consisted of one form–6-O first page and two
form–6-O second pages. The 4 signature lines on the first page were marked out
with an “X,” and no signatures appeared on that page. The 14 signature lines on
the second page were renumbered to begin at 1, and the page contained 13
signatures. In the blank in the circulator statement for the number of signatures was
written “13 of 16,” in two different colors of ink. The signature lines on the third
page were renumbered to begin at 14, and the page contained 3 signatures. The
blank in the circulator statement for the number of signatures had a number written
in black ink that had been scribbled out in blue ink. Another number was written
next to that in blue ink, but that number had also been scribbled out. Finally, in the
margin, in blue ink, was written “16 total.”
2. Part-petition No. 2
{¶ 5} Part-petition No. 2 also contained one form–6-O first page and two
form–6-O second pages. As with part-petition No. 1, the signature lines on its first
page were marked out with an “X” and contained no signatures and the 14 signature
lines on its second page were renumbered to begin at 1. The second page contained
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14 signatures, and in the blank in the circulator statement for the number of
signatures was written, in black ink, “pg 1 of 2,” with “28 total” written in the
margin. The signature lines on the third page were renumbered to begin at 15, and
the page contained 14 signatures. In the blank in the circulator statement for the
number of signatures was written, in blue ink, “28.” All the circulator statements
in part-petition Nos. 1 and 2 were signed by Herman E. Berk Jr.
3. Part-petition Nos. 11 and 12
{¶ 6} Part-petition Nos. 11 and 12 were a grouping of three pages made up
of two form–6-O first pages and one form–6-O second page. The first page
contained 4 signatures. The signature lines on the second page were renumbered
to begin at 5, and the page contained 2 signatures. Those on the third page were
renumbered to begin at 7, and the page contained 2 more signatures. In the blank
in the circulator statement for the number of signatures the number “8” was written,
and the circulator statement was signed by Juanita Berk.
B. The Certification of the Petition to the Ballot
{¶ 7} The referendum petition needed 116 valid signatures to qualify for the
ballot. The petitioners submitted 183 signatures, and the board’s staff initially
verified 146 of them. However, according to its May 24, 2018 meeting minutes,
the board then rejected part-petition No. 1 because “of the dual [circulator]
statements and the confusion they inspire.” The board accepted part-petition No. 2
though, because “the two circulator’s statements are consistent.” The board
rejected part-petition Nos. 11 and 12 without stating a reason. And it rejected part-
petition No. 13 because its pages had not been affixed together in any way when
submitted. The board found that without the rejected part-petitions, the petition
had 127 valid signatures—11 more than necessary—and on May 24, the board
certified the referendum to the November 2018 ballot.
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C. The Protest and this Prohibition Action
{¶ 8} On June 8, the protestors filed with the board their protest against the
petition, arguing that the board should have also rejected part-petition No. 2 due to
several purported defects and that it should have rejected the entire petition because
the part-petitions were affixed together with paperclips, rather than staples, in
contravention of board policy. The board held a hearing on the protest on July 17.
{¶ 9} At the hearing, Herman Berk testified that he signed both circulator
statements on part-petition No. 2 immediately after the last elector signed each page
but that when he signed the statements, he left the space for the number of
signatures witnessed blank. He later met with Bonnie Perry, a fellow circulator,
and they sat beside each other and each counted the signatures on his part-petition,
because Berk wanted Perry to make sure he was counting correctly. Both counted
28 signatures, and in Berk’s presence, with his knowledge and permission, Perry
wrote “pg 1 of 2,” “28 total,” and “28” in the blanks. Perry’s testimony matched
Berk’s. She stated that she had made no edits to any of Berk’s petition papers; she
wrote only the number of signatures that he and she had agreed on. After the
circulator statements were completed, Berk gave his part-petition to Perry. Perry
collected all 13 part-petitions from the various circulators and then gave them to
another person, who filed the petition with the trustees.
{¶ 10} At the conclusion of the hearing, the board unanimously denied the
protest. The referendum remains certified to the ballot. The protestors filed this
prohibition action on July 24. The following day, we granted their motion to
expedite.
III. ANALYSIS
{¶ 11} The protestors assert three grounds for a writ of prohibition: (1) that
part-petition No. 2 had two circulator statements, (2) that part-petition No. 2’s
circulator did not indicate on the part-petition the number of signatures witnessed,
and (3) that the part-petitions were paper-clipped together, not stapled as board
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policy requires. Because we issue a writ based on the second ground, we do not
address the remaining arguments.
A. Legal Standards
1. Prohibition
{¶ 12} To obtain a writ of prohibition, the protestors must show that (1) the
board exercised quasi-judicial power, (2) the exercise of that power was unlawful,
and (3) the protestors have no adequate remedy in the ordinary course of the law.
State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-
Ohio-4758, 835 N.E.2d 336, ¶ 27. The board exercised quasi-judicial power when
it denied the protest after a hearing that included sworn testimony. See id. at ¶ 28.
And due to the proximity of the election, the protestors lack an adequate remedy at
law. Id. at ¶ 29. The question is, then, whether the protestors have shown that the
board engaged in fraud or corruption; abused its discretion, i.e., acted in an
unreasonable, arbitrary, or unconscionable fashion; or clearly disregarded
applicable legal provisions. Id. at ¶ 30.
2. Liberal Construction, Strict Compliance, Substantial Compliance
{¶ 13} “[R]eferendum provisions should be liberally construed to permit
the exercise of the power.” S.I. Dev. & Constr., L.L.C. v. Medina Cty. Bd. of
Elections, 100 Ohio St.3d 272, 2003-Ohio-5791, 798 N.E.2d 587, ¶ 22. But once
their requirements are determined, “the settled rule is that election laws are
mandatory and require strict compliance and that substantial compliance is
acceptable only when an election provision expressly states that it is.” State ex rel.
Ditmars v. McSweeney, 94 Ohio St.3d 472, 476, 764 N.E.2d 971 (2002).
3. Referendum Statutes
{¶ 14} The applicable legal provisions are R.C. 519.12(H) and 3501.38(E).
R.C. 519.12(H) provides that a township zoning amendment shall become effective
30 days after a board of township trustees approves it, unless within that time period
the trustees receive a petition asking them to submit the amendment to the voters at
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the next election and the petition is signed by a number of electors residing in the
unincorporated areas of the township that is not less than 8 percent of the total votes
cast for governor in the unincorporated areas of the township in the most recent
gubernatorial election.
{¶ 15} R.C. 519.12(H) contains only a few strict requirements for township-
zoning-referendum petitions. First, each part-petition “shall contain the number
and the full and correct title, if any, of the zoning amendment resolution, motion,
or application, furnishing the name by which the amendment is known and a brief
summary of its contents.” R.C. 519.12(H). Second, “each petition shall be
governed by the rules specified in [R.C. 3501.38].” R.C. 519.12(H).
{¶ 16} R.C. 3501.38(E)(1), the subsection relevant here, states:
On each petition paper, the circulator shall indicate the
number of signatures contained on it, and shall sign a statement
made under penalty of election falsification that the circulator
witnessed the affixing of every signature, that all signers were to the
best of the circulator’s knowledge and belief qualified to sign, and
that every signature is to the best of the circulator’s knowledge and
belief the signature of the person whose signature it purports to be
or of an attorney in fact acting pursuant to [R.C. 3501.382].
(Emphasis added.) R.C. 519.12(H) provides that “[t]he form of a petition calling
for a zoning referendum and the statement of the circulator shall be substantially as
follows.” (Emphasis added.) It then sets forth a sample form that incorporates a
blank for the number of signatures witnessed into the circulator statement that is to
be signed under penalty of election falsification. Id.7
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{¶ 17} R.C. 519.12(H)’s third strict requirement is that the petition “shall
be filed with the board of township trustees and shall be accompanied by an
appropriate map of the area affected by the zoning proposal.”
B. Indication of the Number of Signatures
{¶ 18} The protestors argue that the board abused its discretion and acted in
clear disregard of the law by denying their protest against part-petition No. 2,
because its circulator statements were modified by Perry after the circulator, Berk,
signed them. We agree.
{¶ 19} R.C. 3501.38(E)(1) states: “[T]he circulator shall indicate the
number of signatures contained on” each petition paper. (Emphasis added.) “The
purpose of this requirement is to protect against signatures being added after the
circulator’s statement is made.” Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d
139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 11 (denying writ of mandamus when
board of elections had rejected part-petitions because they understated the number
of signatures); see also State ex rel. Loss v. Bd. of Elections of Lucas Cty., 29 Ohio
St.2d 233, 233-234, 281 N.E.2d 186 (1972) (denying writ of mandamus when board
of elections had rejected part-petition because space for indicating the number of
signatures witnessed was left blank). R.C. 3501.38(E)(1) does not permit
substantial compliance; the petitioners were required to strictly comply with it.
State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain
Cty. Bd. of Elections, 96 Ohio St.3d 308, 2002-Ohio-4194, 774 N.E.2d 239, ¶ 49.
{¶ 20} In addition, form 6-O incorporates the blank for the number of
signatures witnessed into the circulator statement (as in R.C. 519.12(H)’s sample
form) and instructs that the statement “[m]ust be completed and signed by the
circulator.” (Emphasis added.) This court has looked to the design of the secretary
of state’s forms to suggest the secretary’s interpretation of statutes, to which this
court typically gives “great deference.” State ex rel. Crowl v. Delaware Cty. Bd. of
Elections, 144 Ohio St.3d 346, 2015-Ohio-4097, 43 N.E.3d 406, ¶ 10. And the
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secretary has admonished that “[t]he entire part-petition is invalid if the circulator’s
statement is not completed as required by law,” Secretary of State Directive 2017-
15, Section 1.02(G), Ohio Election Official Manual at 11-6.
{¶ 21} It is undisputed that here, the circulator, Herman Berk, was not the
person who wrote in the number of signatures witnessed on part-petition No. 2.
The part-petition therefore did not strictly comply with R.C. 3501.38(E)(1).
{¶ 22} The board makes a case for essentially deeming Perry’s writing to
be the act of Berk, because Perry wrote the number of signatures Berk had
witnessed in Berk’s presence, with Berk’s knowledge, in response to Berk’s request
for assistance, and before the part-petition left Berk’s possession and because R.C.
3501.38(E)(1) requires the circulator to “indicate” the number of signatures, not to
“write” the number “in [his] own hand.”
{¶ 23} However, even if R.C. 3501.38(E)(1), liberally construed,
countenanced “indicat[ion]” of the number of signatures by Berk through Perry, the
secretary’s interpretation of the requirement on form 6-O is owed deference. And
the board’s argument that the secretary’s interpretation should be read in the
disjunctive, i.e., as setting forth one requirement that the circulator statement be
“completed [by anyone]” and another that it be “signed by the circulator,” strains
credulity. The instruction clearly requires the circulator to both complete and sign
the statement. Here, the circulator complied with only one of those requirements.1
{¶ 24} We conclude that the board abused its discretion by denying the
protest as to part-petition No. 2. The rejection of part-petition No. 2 brings the
number of valid signatures to 99. Because the petitioners did not submit at least
116 valid signatures, the referendum cannot proceed to the ballot.
1
The board also suggests that the Americans with Disabilities Act may require it to accommodate
a disabled circulator who is unable to complete the blank for the number of signatures witnessed on
his or her own. However, that question is beyond the scope of the issues before the court, as no
party has suggested that Berk was disabled and required an accommodation.
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IV. CONCLUSION
{¶ 25} For the foregoing reason, we grant a writ of prohibition and order
the board to remove the referendum from the ballot. Because we grant the writ for
this reason, we do not reach the protestors’ remaining arguments.
Writ granted.
O’CONNOR, C.J., and O’DONNELL and DEGENARO, JJ., concur.
DEWINE, J., concurs in judgment only, with an opinion joined by FISCHER,
J.
KENNEDY, J., dissents, with an opinion joined by FRENCH, J.
_________________
DEWINE, J., concurring in judgment only.
{¶ 26} I agree with the lead opinion that part-petition No. 2 was not in
compliance with the statutory requirement and, therefore, the referendum was not
properly certified to the ballot. I write separately because rather than simply relying
upon the plain language of the statute, the lead opinion largely premises its result
on the “great deference” it gives to the secretary of state’s interpretation of the
statute, lead opinion at ¶ 20. In an appropriate case, we ought to take a hard look
at our practice of deferring to statutory interpretations made by administrative
agencies and nonjudicial officials. But this case can be decided without reaching
the subject of deference.
{¶ 27} There are two problems with the lead opinion’s approach. First,
deference to the secretary’s interpretation is unnecessary; the plain language of the
statute is all we need to decide the case. Second, that deference is unwarranted; it
is our job, not the secretary’s, to issue final interpretations of the law.
{¶ 28} This court has said that “ ‘when faced with a problem of statutory
construction, [it will] show[] great deference to the interpretation given the statute
by the officers or agency charged with its administration.’ ” State ex rel. Brown v.
Dayton Malleable, Inc., 1 Ohio St.3d 151, 155, 438 N.E.2d 120 (1982), quoting
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Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). In accord
with this principle, we have deferred to the secretary of state’s reasonable
interpretation of the state’s election laws. See, e.g., State ex rel. Lucas Cty.
Republican Party Executive Commt. v. Brunner, 125 Ohio St.3d 427, 2010-Ohio-
1873, 928 N.E.2d 1072, ¶ 23.
{¶ 29} But here, the statute is clear: it requires the circulator to “indicate”
the number of signatures. R.C. 3501.38(E)(1). It is uncontroverted that the
circulator did not indicate the number of signatures; someone else did. There is no
need to defer to the secretary’s interpretation; the plain language of the statute is all
we need to decide the case.
{¶ 30} Nevertheless, the lead opinion in large part premises its decision on
the secretary’s interpretation of the statute. Judicial deference to an agency’s
interpretation of a statute is at odds with the separation-of-powers principle that is
central to our state and federal Constitutions. It has long been understood that part
of the judicial power is to “say what the law is.” Marbury v. Madison, 5 U.S. 137,
177, 1 Cranch 137, 2 L.Ed. 60 (1803). The Ohio Constitution, like the federal
Constitution, allocates power among three distinct branches of government. “The
judicial power of the state is vested in a supreme court, courts of appeals, courts of
common pleas and divisions thereof, and such other courts inferior to the supreme
court as may from time to time be established by law.” Ohio Constitution, Article
IV, Section 1.
{¶ 31} Deference to an administrative agency’s interpretation of the law,
however, “wrests from Courts the ultimate interpretative authority to ‘say what the
law is,’ * * * and hands it over to the Executive.” Michigan v. Environmental
Protection Agency, __ U.S. __, 135 S.Ct. 2699, 2712, 192 L.Ed.2d. 674 (2015)
(Thomas, J., concurring), quoting Marbury at 177. In following this rule, we
abandon our role as an independent check on the executive branch. See Perez v.
Mtge. Bankers Assn., __ U.S. __, 135 S.Ct. 1199, 1219, 191 L.Ed.2d 186 (2015)
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(Thomas, J., concurring). In addition, judicial deference to administrative agencies
on matters of legislative interpretation aggrandizes the power of the administrative
state at the expense of the judiciary and officials directly accountable to the people.
See Arlington, Texas v. Fed. Communications Comm., 569 U.S. 290, 312-317, 133
S.Ct. 1863, 185 L.Ed.2d 941 (2013) (Roberts, C.J., dissenting).
{¶ 32} Although not as well developed, our practice of deferring to an
administrative agency’s statutory interpretations is similar to the doctrine applied
in federal courts, see Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d. 694 (1984). (In some respects,
our practice could be seen as more expansive than the doctrine that is applied in the
federal courts because under Chevron, a statutory provision must be ambiguous
before a court will defer to an agency’s interpretation, id. As is evidenced by
today’s lead opinion, we have not consistently imposed that requirement.)
{¶ 33} The federal Chevron deference doctrine has come under severe and
repeated criticism. See, e.g., Christopher J. Walker, Attacking Auer and Chevron
Deference: A Literature Review, 16 Geo.J.L. & Pub. Policy 103 (2018); Philip
Hamburger, Chevron Bias, 84 Geo.Wash.L.Rev. 1187 (2016). In recent years, the
United States Supreme Court has pulled back on the reach of Chevron deference.
In King v. Burwell, __ U.S. __, 135 S.Ct. 2480, 2488-2489, 192 L.Ed.2d 483(2015), the court refused to apply the Chevron deference doctrine to a matter of
“economic and political significance.” And in Michigan v. Environmental
Protection Agency, the court rejected the agency’s interpretation as “stray[ing] far
beyond” Chevron’s reasonable-interpretation standard. __ U.S. at __, 135 S.Ct. at
2706-2707. State courts have also recently taken a fresh look at their
administrative-deference doctrines, with at least two states retreating from
doctrines that afforded deference to agency interpretations of law. Tetra Tech EC,
Inc. v. Wisconsin Dept. of Revenue, 382 Wis.2d 496, 2018 WI 75, 914 N.W.2d 21;
King v. Mississippi Military Dept., 245 So.3d 404 (Miss.2018).
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{¶ 34} I share the above concerns that have been expressed about judicial
deference to agency interpretations of laws. But this proceeding—an expedited
elections matter with limited briefing and a quick turnaround—is not the
appropriate one in which to give our administrative-deference practice the review
it deserves. I look forward to a case that squarely puts the issue before us. As for
this case, there is no need to get to deference; we ought to simply apply the statute
as written.
FISCHER, J., concurs in the foregoing opinion.
_________________
KENNEDY, J., dissenting.
{¶ 35} A board of elections’ obligation to ensure that a part-petition
circulator strictly complied with R.C. 3501.38(E)(1) does not require it to apply the
statute with a bent toward excluding petitions. Instead, the board must simply
ensure that the circulator met the statute’s actual requirements. Here, respondent,
the Delaware County Board of Elections, did that. This court, on the other hand,
inserts a court-made requirement that a circulator’s indication of the number of
signatures on a part-petition must be in his own hand. It’s not enough for the
majority that the circulator sign a statement “under penalty of election falsification”
attesting to the number of signatures on the part-petition for a township zoning
referendum. The majority’s “in-his-own-hand” requirement is not part of a
hypertechnical interpretation of the statute; instead, it’s simply made up.
{¶ 36} The majority’s focus in this case is on part-petition No. 2. The
circulator of part-petition No. 2, Herman E. Berk Jr., had a duty to comply with the
requirements of R.C. 3501.38(E)(1) in order for the part-petition to be valid. That
statute reads:
On each petition paper, the circulator shall indicate the
number of signatures contained on it, and shall sign a statement
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made under penalty of election falsification that the circulator
witnessed the affixing of every signature, that all signers were to the
best of the circulator’s knowledge and belief qualified to sign, and
that every signature is to the best of the circulator’s knowledge and
belief the signature of the person whose signature it purports to be
or of an attorney in fact acting pursuant to [R.C. 3501.382].
(Emphasis added.) R.C. 3501.38(E)(1).
{¶ 37} I would hold that Berk’s signed declaration attesting to—among
other things—the number of signatures on the part-petition more than satisfies the
requirement in R.C. 3501.38(E)(1) that the circulator “indicate the number of
signatures contained on it.” Berk submitted the following circulator statement as a
part of the part-petition in question:
I, Herman E. Berk Jr., declare under penalty of election
falsification that I reside at the address appearing below my
signature; that I am the circulator of the foregoing petition
containing 28 signatures; that I witnessed the affixing of every
signature; that all signers were to the best of my knowledge and
belief qualified to sign; and that every signature is to the best of my
knowledge and belief the signature of the person whose signature it
purports to be or of an attorney in fact acting pursuant to section
3501.382 of the Revised Code.
Berk’s signature follows the statement. The statement is Berk’s statement, signed
by him, attesting to all the facts set forth in the statement “under penalty of election
falsification,” including the indication of the number of signers on the part-petition.
That someone else physically filled in the blank regarding the number of signers is
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immaterial. It is Berk who was attesting to the accuracy of that number in his
statement. His statement begins with “I, Herman J. Berk Jr., declare” and ends with
his signature, so it is Berk who was making all the declarations contained in
between, including his indication of the number of signers.
{¶ 38} Looking back to the statute, all that it requires is that the circulator
“indicate the number of signatures contained on it.” (Emphasis added.) R.C.
3501.38(E)(1). It does not require that the “indicat[ion]” be in the circulator’s own
hand. What if Berk had asked someone to type in the number of signatures on the
part-petition? Would that have invalidated the part-petition? How the number was
physically registered on the piece of paper is not significant; the signed statement
supporting that figure is what is important.
{¶ 39} Certainly, the definition of “indicate” does not require that the
indication of a number must be written in one’s own hand with a pen, or certified,
or sworn to in the presence of a notary public. Because there is no definition of
“indicate” in the statute, we look to its ordinary meaning: “to point out or point to
or toward with more or less exactness: show or make known with a fair degree of
certainty.” Webster’s Third New International Dictionary 1150 (2002).
{¶ 40} Did Berk “show or make known with a fair degree of certainty” the
number of signers on the part-petition in his signed attestation? Of course he did.
In fact, he went further than he need have: the requirement to “indicate the number
of signatures contained on” the part-petition is not one of the items R.C.
3501.38(E)(1) requires to be a part of the “statement made under penalty of election
falsification.” The elements of that statement are “that the circulator witnessed the
affixing of every signature, that all signers were to the best of the circulator’s
knowledge and belief qualified to sign, and that every signature is to the best of the
circulator’s knowledge and belief the signature of the person whose signature it
purports to be or of an attorney in fact acting pursuant to [R.C. 3501.382].” R.C.
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3501.38(E)(1). Berk did not just “indicate” the number of signatures on the part-
petition; he attested to it in a signed statement under threat of election falsification.
{¶ 41} And in this case, we have undisputed testimony that the insertion of
the number into the space for the number of signatures on the part-petition was
witnessed and authorized by the circulator. Further, the indicated number of
signatures, 28, never changed after Berk relinquished control of the part-petition.
Berk and his scrivener, Bonnie Perry, each independently counted the number of
signatures on the part-petition. Berk testified about their process: “Me and her went
over them. I counted them, and Bonnie verified, right beside me, that they was all
same.” He testified that Perry filled in the number “[w]hile [he] was standing
there.” All this occurred in each other’s company in Berk’s home.
{¶ 42} Perry wrote the number of signatures Berk had witnessed in Berk’s
presence, with Berk’s knowledge, in response to Berk’s request for assistance, and
before the part-petition left Berk’s possession. There is absolutely no indication of
the fraud R.C. 3501.38(E)(1) is designed to thwart.
{¶ 43} The exact order of signing the circulator statement and filling in the
number of signatures on the part-petition is unimportant. Rather, that the number
matches the number of signatures at the time of filing is what matters. R.C.
3501.38(G) contemplates that the number of signatures may change even after the
circulator signs the circulator statement. R.C. 3501.38(G) provides that “[t]he
circulator of a petition may, before filing it in a public office, strike from it any
signature the circulator does not wish to present as a part of the petition.” It follows
that the indication of the number of signatures on the part-petition would have to
be amended to match the true number of signatures. In that instance, the signature
could precede the insertion of the correct number. R.C. 3501.38(G) establishes the
time of “filing the [petition] in a public office” as the time when the R.C.
3501.38(E)(1) requirement to indicate the number of signatures on the part-
petitions must be satisfied.
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{¶ 44} The lead opinion, rather than interpret the statute itself, defers2 to the
secretary of state’s supposed interpretation, which it claims is memorialized in a
grammatically ambiguous sentence fragment that appears on petition form No. 6-
O, which the secretary of state provides. Under the words “Circulator Statement”
on that form appear the words “Must be completed and signed by the circulator.”
{¶ 45} I do not believe that the secretary’s admonition on the form rises to
the level of statutory interpretation. Although the sentence fragment is
unambiguous regarding who must sign the circulator statement—“signed by the
circulator”—it is ambiguous regarding who must perform the completing—“must
be completed.” It does not say, for instance, “The circulator must complete and
sign this statement.” It leaves open for interpretation who must complete the
statement and whether directing someone else to complete some information is
tantamount to completing the statement oneself.
{¶ 46} If the secretary of state had intended the form to declare his
interpretation of R.C. 3501.38(E)(1), he would have used one or more complete
sentences to make his point clearly. As constructed, the sentence fragment does
not grammatically mean that the blanks in the circulator statement must be
completed by the circulator himself.
{¶ 47} The secretary had more space to declare a definitive interpretation
of the statute in Directive 2017-15, which is incorporated as Chapter 11 of the Ohio
Election Official Manual. Therein, he instructs:
2
I will leave for another day the issue whether the judicial branch truly owes deference to
administrative agencies’ interpretations of statutes. See, e.g., Pereira v. Sessions, __ U.S. __, 138
S.Ct. 2105, 2120, __ L.Ed.2d __ (2018) (Kennedy, J., concurring) (“[I]t seems necessary and
appropriate to reconsider, in an appropriate case, the premises that underlie Chevron [U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)]
and how courts have implemented that decision. The proper rules for interpreting statutes and
determining agency jurisdiction and substantive agency powers should accord with constitutional
separation-of-powers principles and the function and province of the Judiciary”).
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SUPREME COURT OF OHIO
Prior to verifying the validity of individual signatures
contained on a part-petition, the board of elections must verify the
validity of that part-petition. Check each part-petition to determine
whether the circulator’s statement on the last page of the part-
petition has been properly completed. The entire part-petition is
invalid if the circulator’s statement is not completed as required by
law.
{¶ 48} In his directive, the secretary uses the passive voice regarding the
completion of the circulator statement. He says that it must be completed, not that
the circulator himself must complete it. There is certainly no definitive statement
that the blanks in the circulator statement—outside of the signature line—must be
physically filled in by the circulator.
{¶ 49} The lead opinion elevates the secretary’s ambiguously worded
sentence fragment on a sample form that possibly reflects the secretary’s desire that
a circulator fill out his own statement to a statutory requirement that must be strictly
complied with. But the supposed requirement is not actually in the statute.
{¶ 50} “In construing a statute, we may not add or delete words.” State v.
Hughes, 86 Ohio St.3d 424, 427, 715 N.E.2d 540 (1999). In this case, the majority
not only adds words requiring that a circulator himself write in his own hand the
number of signatures that appear on a petition, by doing so it also needlessly
interferes in the election process. Today’s decision should also be a cautionary tale
to candidates and issue supporters who think that the careful and responsible tack
is to check over and amend part-petition before filing them. After today’s decision,
changes to the indication of the number of signers on a part-petition—even to
correct counting errors—cannot be recorded on the part-petition by anyone but the
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January Term, 2018
circulator, in his or her own hand. This is a needless, nonstatutory requirement
judicially grafted upon an already daunting petition process.
FRENCH, J., concurs in the foregoing opinion.
_________________
McTigue and Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo,
Derek S. Clinger, and Ben F.C. Wallace, for relators.
Carol Hamilton O’Brien, Delaware County Prosecuting Attorney, and
Christopher D. Betts and Andrew J. King, Assistant Prosecuting Attorneys, for
respondent.
_________________
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