Kyser v. Board of Elections of Cuyahoga County

• Decision Date: 15 November 1972
• Citation: 62 O.O.2d 107,291 N.E.2d 775,33 Ohio App.2d 52
• Parties: , 62 O.O.2d 107 KYSER, Appellant, v. BOARD OF ELECTIONS OF CUYAHOGA COUNTY et al., Appellees.
• Court: Ohio Court of Appeals

Page 52

33 Ohio App.2d 52

291 N.E.2d 775, 62 O.O.2d 107

KYSER, Appellant, v. BOARD OF ELECTIONS OF CUYAHOGA COUNTY et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Nov. 15, 1972.

Syllabus by the Court

1. The right to vote is a fundamental right and can only be denied when a compelling reason for doing so is demonstrated.

2. Although the right to vote has been held to be a 'fundamental political right, because preservative of all rights' and 'the essence of a democratic society,' the right does not emanate specifically from the United States Constitution, and the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the federal Constitution.

3. Once a person acquires the status of an elector in a given precinct, that status is lost only if the person (1) becomes an elector in another precinct in the same county or another county of the state by establishing a permanent residence in that precinct thirty days next preceding an election (R.C. § 3503.01); or (2) removes to another state with the intention of making such state his residence (R.C. § 3503.02(E)); or (3) removes to another state with the intention of remaining there an indefinite time and making such state his place of residence, notwithstanding the fact that he may entertain an intention to return at some future period (R.C. § 3503.02(G)); or (4) goes into another state and while there exercises the right of a citizen by voting (R.C. § 3503.02(H)).

Clarence D. Rogers, Cleveland, for appellant.

John T. Corrigan, Pros. Atty., and John L. Dowling, Lakewood, for appellees.

MANOS, Judge.

This is an appeal from an order of the Common Pleas Court of Cuyahoga County affirming a decision of the County Board of Elections which denied the plaintiff-appellant his right to vote.

In his petition the plaintiff-appellant makes the following statement of facts which the defendant-appellee does not contest.

The plaintiff has worked at a steady job in Cleveland for the past eight years. Since November of 1970 he has been living in the city of Cleveland in a Dodge Explorer motor unit, a vehicle equipped with its own locomotion and providing living facilities for six people. The plaintiff does not keep his vehicle at fixed place for any length of time, but spends his nights parked on numerous roads and in the several parks situated in the Cleveland area. The plaintiff maintains no order residence and collects his mail at a postal box.

In July of 1971 the plaintiff attempted to register to vote at the County Board of Elections. The Board of Elections refused to accept his registration because he had not established a permanent residence in a precinct 40 ¹ days before an election as then required by R.C. § 3503.01. The plaintiff thereafter brought an action against the Board alleging that the statute as applied to him violates his rights under the 14th Amendment by denying him equal protection of the laws and abridging his right to travel. The Common Pleas Court, rejecting this contention, affirmed the decision of the board.

After a careful review of the record and the statutes in issue, we find that the Board of Elections and the Common Pleas Court erred in denying the plaintiff his right to vote and hold that the plaintiff may vote in the precinct from which he was last qualified to register under the provisions of Chapter 3503 of the Ohio Revised Code.

I.

R.C. § 3503.01 and § 3503.02 specify both the manner by which the right to vote in a precinct is acquired and how the right, once acquired, is lost. ² To become an elector in a precinct in Ohio, a person must be eighteen years of age or over and have been a resident of the state six months, the county thirty days and the voting precinct thirty days next preceding the election at which he offers to vote (R.C. § 3503.01). Once a person acquires the status of an elector in a given precinct, that status is lost only if the person (1) becomes an elector in another precinct in the same county or another county of the state by establishing a permanent residence in that precinct thirty days next preceeding an election (R.C. § 3503.01); ³ or (2) removes to another state with the intention of making such state his residence (R.C. § 3503.02(E)); or (3) removes to another state with the intention of remaining there an indefinite time and making such state his place of residence, notwithstanding the fact that he may entertain an intention to return at some future period (R.C. § 3503.02(G)); or (4) goes into another state and while there exercise the right of a citizen by voting (R.C. § 3503.02(H)).

The plaintiff in this case testified that prior to buying a mobile unit he had a permanent residence in the city of Cleveland and voted in the precinct in which that residence was located. It is clear that the plaintiff, though presently a transient, has not lost his right to vote in his old precinct under any of the aforementioned provisions of the Code. He has never established a new permanent voting residence in another precinct which would cause him to forfeit his right to vote in his former precinct under R.C. § 3503.01; nor has he removed to any other state or voted in any other state and accordingly does not fall within any of the provisions of R.C. § 3503.02 which specify how a voting residence, once established in a precinct, is lost.

II.

The right to vote is a fundamental right and can only be denied when a compelling reason for doing so is demonstrated. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Cipriano v. Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370; Kramer v. Union Free School District No. 15., 395 U.S. 621, 84 S.Ct. 1886, 23 L.Ed.2d 583. The importance of the right was well expressed by the United States Supreme Court in Wesberry v. Sanders, supra, at page 17 of 376 U.S., at page 535 of 84 S.Ct.:

'No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.'

All qualified voters have a constitutionally protected right to vote. Although the right to vote has been held to be a 'fundamental political right, because preservative of all rights' ⁴ and 'the essence of democratic society,' ⁵ the right does not emanate specifically from the United States Constitution and the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the federal Constitution. ⁶

We can understand the formidable concern of the County Board of Elections in this case for preservation of the incorruptibility of the ballot box should a number of persons who have no permanent residence in a precinct because they live in a mobile unit which they park in different places within the county demand of the Board of Elections the right to register and vote in a precinct of their choice and by voting allow a candidate for political office to win by fraud, thus violating an important state interest. To prevent fraud is a lawful and compelling state goal.

In this case there is no compelling reason to deny the plaintiff his right to vote. The danger of fraud does not exist since the plaintiff will not be able to choose the precinct in which he will vote without first establishing a fixed residence for 30 days and the plaintiff maintains an interest in the community by continuing to live and work in the greater Cleveland area.

III.

Since under Ohio law the plaintiff has never lost his right to vote in the precinct in which he last had a permanent voting residence and because the right to vote is a fundamental right of such importance that a compelling reason must be established to deny him that right, and no such reason is apparent in the present case, we hold that the plaintiff, a person living in a mobile unit which he drives to and from work and parks within a political boundary but not fixed as to any precinct in that boundary and who otherwise qualifies for the right to vote, should be permitted to vote in the precinct from which he removed himself but in which he had his last permanent residence until he either forfeits his right to vote in that precinct under the provisions of R.C. § 3503.02 or he locates a permanent voting residence elsewhere under R.C. § 3503.01.

The judgment is reversed and the cause remanded for further proceedings according to law not inconsistent with this opinion.

Judgment reversed.

SILBERT, J., concurs.

KRENZLER, Judge (dissenting).

I respectfully dissent from the majority opinion for the following reasons.

R.C. § 3503.01 which was amended effective March 23, 1972 clearly sets forth the requirements for qualifying to vote at an election. A person may vote at all elections if he or she has the following qualifications:

1. Citizen of the United States;

2. eighteen (18) years of age or over;

3. resident of the State of Ohio-six (6) months;

4. resident of the county thirty (30) days;

5. resident of the voting precinct thirty (30) days next preceding the election at which he offers to vote.

There is an exception provided for in R.C. § 3503.01 and that is that if any qualified elector in good faith moves his residence from one county to another county or...