State ex rel. Skaggs v. Brunner

Lanzinger, J.,

concurring in part and dissenting in part.

{¶ 70} I concur in the portion of the judgment that holds that the secretary of state may not change her own reasonable interpretation of election law at the request of a candidate after the election. I agree that the writ should be granted to compel the secretary to instruct the Franklin County Board of Elections to reject those provisional ballots with signatures but without names on the affirmation, just as she had initially advised the board. I also concur that provisional ballots with names and signatures located at other than the appropriate places for affirmation also must be rejected because they do not substantially follow the form set forth for affirmations in R.C. 3505.182. I dissent from that portion of the judgment granting the writ with respect to provisional ballots that have names without signatures on the affirmation, because the secretary was not inconsistent or unreasonable in her instructions to the boards of elections regarding these ballots.

The Secretary’s Directive No. 2008-101

{¶ 71} Secretary of State Directive No. 2008-101 was issued by the secretary in October 2008 to all county boards of elections. For the first disputed category of provisional ballots, those with affirmations containing names but no signatures, the secretary’s directive followed the statute in stating which provisional ballots were to be counted:

{¶ 72} “1. Ballots Eligible to be Counted

{¶ 73} “Where ALL of the following apply, the board staff responsible for processing provisional ballots must recommend to the board that a provisional ballot shall count, and a board of elections shall count the provisional ballot:

{¶ 74} “a) The individual named on the affirmation is properly registered to vote;

{¶ 75} “b) The individual named on the affirmation is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot;

{¶ 76} “c) The individual provided the following:

{¶ 77} “(1) His or her name and signature as the person who cast the provisional ballot;

{¶ 78} “(2) A statement that he or she, as the person who cast the provisional ballot, is a registered voter in the jurisdiction in which he or she cast the provisional ballot; and

{¶ 79} “(3) A statement that he or she, as the person who cast the provisional ballot, is eligible to vote in the particular election in which he or she cast the provisional ballot;

{¶ 80} “or

{¶ 81} “(4) His or her name recorded in a written affirmation statement entered either by the individual or at the individual’s direction recorded by an election official;

{¶ 82} “or

{¶ 83} “(5) A completed affirmation under R.C. 3505.18(B)(4) [sic] (SOS Form 10-T).”² (Boldface sic).

{¶ 84} Thus, this portion of the directive set forth the general rule that to count a provisional ballot, the voter must be properly registered and eligible to vote and must have provided one of three alternatives: name and signature with statements of registration and eligibility; or name on an affirmation statement; or a completed R.C. 3505.18(A)(4) affirmation. The directive also gave advice regarding what ballots could not be counted:

{¶ 85} “2. Ballots not Eligible to be Counted

{¶ 86} “If ANY of the following apply, board staff responsible for processing provisional ballots shall recommend to the board that a provisional ballot not be counted, and a board of elections shall neither open nor count the provisional ballot:

{¶ 87} “ * * *

{¶ 88} “c) The individual did not provide the following:

{¶ 89} “(1) His or her name and signature as the person who cast the provisional ballot;

{¶ 90} “ * * *

{¶ 91} “or

{¶ 92} “(4) His or her name recorded in a unitten affirmation statement entered either by the individual or at the individual’s direction recorded by an election official.” (Boldface sic and emphasis added.)

{¶ 93} In other words, with respect to provisional ballots where the voters’ names are recorded in the written affirmation statement but there are no signatures, in both Directive 2008-101 as well as in the instructions after the election and in her decision breaking the board’s tie vote, the secretary of state’s position has been consistent: these votes should be counted. Consequently, I agree with the majority’s holding that the secretary of state was consistent in her instructions regarding this category of provisional ballots.

{¶ 94} With regard to the second disputed category of provisional ballots that contained signatures but no printed name, I concur with the majority’s conclusion that the secretary’s posteleetion instructions were inconsistent and that the writ should be granted.

{¶ 95} For the third disputed category, provisional ballots that contain names and signatures in inappropriate places on the affirmation, I agree that although the secretary’s postelection instructions were not inconsistent, the writ is appropriate because the secretary’s instructions failed to apply the plain language of the pertinent statutes.

{¶ 96} For the first category of disputed provisional ballots, therefore, I now address the merits of relators’ claim and would deny the writ for these provisional ballots for the following reasons.

Affirmations With Names and Without Signatures

{¶ 97} Under R.C. 3505.181(B)(2), an individual who is eligible to cast a provisional ballot “shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is both of the following:

{¶ 98} “(a) A registered voter in the jurisdiction in which the individual desires to vote;

{¶ 99} “(b) Eligible to vote in that election.”

{¶ 100} Relators rely on R.C. 3505.183(B), which specifies:

{¶ 101} “(1) To determine whether a provisional ballot is valid and entitled to be counted, the board shall examine its records and determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election. The board shall examine the information contained in the written affirmation executed by the individual who cast the provisional ballot under division (B)(2) of section 3505.181 of the Revised Code. If the individual declines to execute such an affirmation, the individual’s name, written by either the individual or the election official at the direction of the individual, shall be included in a written affirmation in order for the provisional ballot to be eligible to be counted; otherwise, the following information shall be included in the written affirmation in order for the provisional ballot to be eligible to be counted:

{¶ 102} “(a) The individual’s name and signature;

{¶ 103} “(b) A statement that the individual is a registered voter in the jurisdiction in which the provisional ballot is being voted;

{¶ 104} “(c) A statement that the individual is eligible to vote in the election in which the provisional ballot is being voted.

{¶ 105} “ * * *

{¶ 106} “(4)(a) If, in examining a provisional ballot affirmation and additional information under divisions (B)(1) and (2) of this section, the board determines that any of the following applies, the provisional ballot envelope shall not be opened, and the ballot shall not be counted:

{¶ 107} “ * * *

{¶ 108} “(in) The individual did not provide all of the information required under division (B)(1) of this section in the affirmation that the individual executed at the time the individual cast the provisional ballot.” (Emphasis added.)

{¶ 109} Relators are correct that the statutory directive concerning the voter’s “name and signature” on the provisional-ballot affirmation is mandatory. R.C. 3505.183(B)(1)(a) and 3505.183(B)(4)(a)(iii). “[T]he 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 (2002), 94 Ohio St.3d 472, 476, 764 N.E.2d 971. But the requirement of a name and signature on the affirmation is invoked only when the voter has not “decline[d] to execute” the affirmation. R.C. 3505.183(B)(1).

The Proof of a Declined Execution of Affirmation

{¶ 110} The term “decline” is not statutorily defined. Construed in ordinary terms, then, “decline” means “to refuse courteously or politely” or “to withhold consent.” Webster’s Third New International Dictionary (2002) 586; see also Black’s Law Dictionary (8th Ed.2004) 439, defining a “declination” as “[a]n act of refusal.”

{¶ 111} R.C. 3505.183(B)(1) merely states that a voter who declines to execute the affirmation can still have the vote counted if “either the individual or the election official at the direction of the individual” writes the individual’s name on the affirmation. In this first category of disputed provisional ballots, all of them contain the voter’s printed name, so this statutory condition is satisfied. See also R.C. 3505.181(B)(3) and (4), providing that a provisional ballot in which the individual declines to execute the affirmation will be counted if the election official determines that the individual is eligible to vote. Proof of the eligibility of the voter remains the principal concern.

{¶ 112} Admittedly, R.C. 3505.182, the statute that sets forth the form and requires that the form be “substantially” followed, places a duty on an election official to comply with R.C. 3505.181(B)(6) (relating to identification affirmations) if the voter declines to execute the affirmation required by R.C. 3505.182. R.C. 3505.181(B)(6), however, gives conflicting instruction on what happens if the voter declines. First, it states that “the appropriate local election official shall record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot or voter or address information under division (B)(3) of this section.” (Emphasis added.) The second part continues, “If the individual declines to execute such an affirmation, the appropriate local election official shall record the individual’s name and include that information with the transmission of the ballot under division (B)(3) of this section.” (Emphasis added.) The second part does not require any notation of the declination, simply the individual’s name.

{¶ 113} Furthermore, Franklin County’s provisional-ballot form does not include any place for the appropriate election official to record the fact that a voter has declined to execute the affirmation, and the forms provided by R.C. 3505.182 and the secretary of state include only a space for which the election official can record that a voter declined to execute an identification affirmation rather than the eligibility affirmation at issue here. In fact, relators in their own brief recognize that the duty imposed on the local election official to record the fact that the individual declined to execute an identification affirmation under R.C. 3505.181(B)(6) does not apply to an individual declining to execute the voter-eligibility affirmation specified in R.C. 3505.181(B)(2), 3505.182, and 3505.183(B).

{¶ 114} The voter is not required by statute to state specifically that he or she declines to sign the affirmation. Only the voter’s name is needed on the affirmation for the vote to be countable. Under these circumstances, we need not, as the majority claims, “assume no error by any voter” because the voter has in fact already done all he or she is required to do under R.C. 3505.183(B)(1) by causing his or her name to be printed on the affirmation.

{.¶ 115} The majority states that there are “several” acts that must occur before the vote of an individual who wishes to decline to sign the affirmation will be counted. This statement is not supported by the pertinent provisions. R.C. 3505.183(B)(1) does not require the voter to additionally communicate to the poll worker that the voter is declining to execute the affirmation, and it does not require the poll worker to ask the voter. Nor does R.C. 3505.182 or any other statute suggest that a poll worker’s failure to note the fact of the declination on the provisional ballot invalidates an otherwise eligible ballot. Instead, the General Assembly expressly conditioned eligibility of the vote solely on the act of the voter’s name being printed on the affirmation, whether by the voter directly or by the election official at the voter’s direction. We cannot require something that the General Assembly has not. “We will not add a requirement that does not exist in the statute.” State ex rel. Columbia Reserve Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815, ¶ 32.

{¶ 116} We recently granted a writ of mandamus to compel the secretary of state to issue a directive to boards of elections that they not reject any absentee-ballot application merely because a box next to a required qualified-elector statement was not checked. Myles, 120 Ohio St.3d 328, 2008-Ohio-5097, 899 N.E.2d 120. There, we held that because R.C. 3509.03 did not expressly require that the statement be located a certain distance from the applicant’s signature or that the box next to the statement be marked, we could not impose that requirement. Id. at ¶ 21. Similarly, when a voter who casts a provisional ballot declines to sign the affirmation, the voter need not specify or explain the reason for choosing not to sign. The voter, or an election official at the voter’s direction, simply must write the voter’s name.

{¶ 117} Since there is no additional requirement for a voter to effectuate the decimation, a missing signature in and of itself cannot invalidate the provisional vote of an otherwise qualified voter. Nor does the statute suggest that the failure or neglect of an election official to note the fact of a declination on a form that provides no space or instructions for doing so mystically transforms an otherwise eligible vote into an ineligible one. Most important in this regard, the board has evidently now concluded, based on the information provided in these disputed ballots, that the electors are all eligible to vote. See R.C. 3505.183(B)(1), which provides that the board must examine all of its records, which would presumably include the poll book where the provisional voter has signed before being issued a provisional ballot.

{¶ 118} Because there is thus no legitimate way to distinguish between voters who declined to execute the affirmation and those voters who simply neglected to do so, all ballots containing names but no signatures should be counted. Otherwise, eligible voters would be disenfranchised.

The Secretary’s Reasonable Interpretation

{¶ 119} The secretary’s directive to allow provisional ballots with affirmations containing names but no signatures to be counted was therefore reasonable. Allowing these ballots to be counted honors “our duty to liberally construe election laws in favor of the right to vote,” our principle of deferring to the secretary of state’s reasonable interpretation of election laws, and precedent requiring us to “ ‘avoid unduly technical interpretations that impede the public policy favoring free, competitive elections.’ ” State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 62 and 57; State ex rel. Myles v. Brunner, 120 Ohio St.3d 328, 2008-Ohio-5097, 899 N.E.2d 120, ¶ 22, quoting State ex rel. Ruehlmann v. Luken (1992), 65 Ohio St.3d 1, 3, 598 N.E.2d 1149.

{¶ 120} Furthermore, it would be erroneous to place the burden on the secretary of state to establish which of these provisional ballots were cast by individuals who declined to execute the affirmation when relators bear the burden of proving their entitlement to the requested extraordinary relief in mandamus. See State ex rel. Preschool Dev., Ltd. v. Springboro, 99 Ohio St.3d 347, 2003-Ohio-3999, 792 N.E.2d 721, ¶ 12.

{¶ 121} Nor can the policy against voter fraud alter the fact that the General Assembly has chosen to allow for provisional ballots to be counted even without any signature on an affirmation. R.C. 3505.183(B)(1). Based on the language of the pertinent statutes, I would hold that the provisional ballots containing names without signatures on the affirmation are entitled to be counted if the board determines that the individuals are otherwise eligible to vote. The secretary’s instructions correctly follow the statutes and were consistent with her pre-election instructions in Directive 2008-101. Secretary of State Directive No. 2008-101 at 7-8.

{¶ 122} At best, the majority presents an alternative interpretation of a legislative scheme that the majority itself concedes is “generally murky,” a “quagmire of intricate and imprecisely stated requirements, including internal inconsistencies and multiple affirmations and declinations,” and “not the model of clarity.” The mere fact that the majority offers a different reading of the “confusing]” requirements does not render the secretary’s construction of those requirements an unreasonable one. Thus, we must defer to her construction, which is also plausible. It is our “ ‘ “duty to defer to the Secretary of State’s interpretation of election law if it is subject to two different, but equally reasonable, interpretations.” ’ ” Colvin, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 57, quoting State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 57, quoting Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 22.

Legislative Concerns

{¶ 123} In holding that the secretary of state’s initial directive interpreting these statutes was reasonable, the majority has sidestepped certain points. Among the issues not considered are (1) whether mistakes made on the affirmation affect the voter’s eligibility under state law and the impact of mistakes attributable to poll-worker error on the voter’s eligibility,³ (2) whether R.C. 3505.183(B)(1) requires a printed name in addition to the provisional voter’s signature on the affirmation even though the General Assembly does not require a printed name,⁴ and (3) whether granting the writ in this case violates the constitutional rights to vote and equal protection, the Voting Rights Act, or the Help America Vote Act. These issues were raised and briefed by the parties, but remain untouched by the majority. Instead, the ease is disposed of on grounds that the secretary’s actions were “fundamentally unfair.” The remaining issues will lurk until the next election unless certain language is clarified.

{¶ 124} The General Assembly’s statutory procedure for the casting, processing, and counting of provisional ballots in Ohio is far from lucid. At best, R.C. 3505.181, 3505.182, and 3505.183 ambiguously set forth the requirements for election officials to determine whether a provisional vote is to be counted as a valid ballot. The secretary of state’s change in position in this case concerning at least one category of disputed provisional ballots is but one example of the statutes being read in differing yet defensible ways. As a result, the General Assembly should re-examine R.C. 3505.181, 3505.182, and 3505.183 to determine whether they accurately express its legislative intent in light of the fundamental constitutional importance of the right to vote and to have that vote counted. See Section 1, Article V, Ohio Constitution, which states, “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.”

Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and Christopher J. Hogan, for relators. Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, Aaron Epstein, Pearl M. Chin, and Michael J. Shuler, Assistant Attorneys General, for respondent Secretary of State Jennifer L. Brunner. Ron O’Brien, Franklin County Prosecuting Attorney, and Patrick J. Piccininni and Anthony E. Palmer Jr., Assistant Prosecuting Attorneys, for respondent Franklin County Board of Elections. McTigue Law Group, Donald J. McTigue, and Mark A. McGinnis, for intervening respondent Ohio Democratic Party.

Conclusion

{¶ 125} In summary, I concur in the portion of the judgment and opinion insofar as it relates to the second category of disputed provisional ballots, those with signatures but without names on the affirmation, because the secretary altered her instructions to Franklin County for counting these ballots while her previous instructions to other counties remained unchanged. I concur in judgment with respect to the granting of the writ on the third category of disputed provisional ballots, those with names and signatures located at other than the appropriate places for affirmation, because although the secretary did not provide inconsistent instructions on these ballots, the applicable statutes require that they not be counted.

{¶ 126} Finally, because the secretary of state consistently and correctly instructed the board of elections to count the disputed ballots containing names without signatures on the affirmation, provided that the voter was properly registered and was otherwise an eligible voter, and because relators have not met their burden of establishing their entitlement to it, I would deny the writ with respect to this category of ballots. Because the majority does not do so and consequently disenfranchises those electors who are constitutionally and statutorily eligible to have their votes counted, I respectfully dissent from that portion of the opinion.

Pfeifer, J., concurs in the foregoing opinion. Carrie L. Davis and Jeffrey M. Gamso, urging denial of the writ for amicus curiae ACLU of Ohio. Meredith Bell-Platts and Neil Bradley, urging denial of the writ for amicus curiae ACLU Voting Rights Project.

2 . The reference is in error and apparently should be R.C. 3505.18(A)(4), which refers to the affirmation that must be completed to show proper identification. See also R.C. 3505.181(B)(6).

3 . R.C. 3505.182 sets forth a form that requires the poll worker to sign a statement that the voter’s affirmation was signed and affirmed before the official.

4 . Compare R.C. 4505.07(F)(6), which requires a “space for the signature of the transferor and the transferor’s printed name and address in full” on the reverse side of a motor vehicle certificate of title. (Emphasis added.)