Protest Filed by Citizens for Merit Selection of Judges, Inc., In re

• Decision Date: 28 February 1990
• Docket Number: No. 88-1404,88-1404
• Citation: 49 Ohio St.3d 102,551 N.E.2d 150
• Parties: In re PROTEST FILED with the Franklin County Board of Elections BY CITIZENS FOR the MERIT SELECTION OF JUDGES, INC. on Behalf of Issue III, Merit Selection of Judges.
• Court: Ohio Supreme Court

Page 102

49 Ohio St.3d 102

551 N.E.2d 150

In re PROTEST FILED with the Franklin County Board of Elections BY CITIZENS FOR the MERIT SELECTION OF JUDGES, INC. on Behalf of Issue III, Merit Selection of Judges.

No. 88-1404.

Supreme Court of Ohio.

Submitted Sept. 26, 1989.

Decided Feb. 28, 1990.

Syllabus by the Court

1. Although a person may be registered with a 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. (State ex rel. Braverman v. Vitullo [1948], 150 Ohio St. 289, 38 O.O. 121, 82 N.E.2d 92, followed; State ex rel. Schroy v. Wagner [1933], 127 Ohio St. 174, 187 N.E. 572, overruled in part.)

2. The requirement of R.C. 3519.10 that a signer of an initiative petition place the address of his or her voting residence on the petition is not in conflict with Section 1g, Article II of the Ohio Constitution.

3. A board of elections may disqualify a signature on an initiative petition circulated pursuant to R.C. Chapter 3519 where the residence indicated by a signer is not the same as the residence on record with the board of elections for said signer.

In September 1987, appellant, the Franklin County Board of Elections ("board"), filed an action in the Franklin County Court of Common Pleas asking the court to determine the sufficiency of signatures on an initiative petition to amend the Ohio Constitution. The petition was filed with the Secretary of State by the Citizens for the Merit Selection of Judges, Inc. ("Citizens"), pursuant to Section 1g, Article II of the Ohio Constitution, and R.C. Chapter 3519.

The board submitted a report to the Secretary of State indicating that 3,823 valid petitions were examined. The number of signatures on the petitions totalled 72,129. Of this number, only those signatures rejected by the board as "not registered at this address" ("NRA") form the basis of the legal dispute in this case. There appear to be approximately 9,100 such signatures.

The designation "NRA" applies to the signature of any person who is registered to vote, but who indicated on the petition an address different from that registered with the board. The trial court ruled that these signatures must be counted as valid, concluding that the case law reviewing nominating petitions, which requires "voting residence," is not applicable to initiative petitions.

On appeal to the Tenth District Court of Appeals, the board contended that it properly invalidated the signatures based on the use of the term "elector" in R.C. 3519.10 and in Section 1g, Article II of the Ohio Constitution. The court of appeals disagreed, relying primarily upon State ex rel. Schroy v. Wagner (1933), 127 Ohio St. 174, 187 N.E. 572, and affirmed the judgment of the trial court.

The cause is now before this court upon the allowance of a motion to certify the record.

S. Michael Miller, Pros. Atty., William B. Shimp, Columbus, and Harland H. Hale, for appellant.

Lane, Alton & Horst, Jack R. Alton and John A. Fiocca, Jr., Columbus, for appellee.

MOYER, Chief Justice.

The sole issue presented in this case is whether a board of elections may disqualify a signature on an initiative petition circulated pursuant to R.C. Chapter 3519 where the residence indicated by a signer is not the same as the residence on record with the board of elections for said signer.

We first must determine whether the court of appeals correctly concluded that this election case is not moot. Appellee, Citizens, does not contest this conclusion.

As a general rule, election cases are moot where the relief sought is to have a name or an issue placed on the ballot and the election was held before the case could be decided. State ex rel. Gyurcik v. Brown (1964), 176 Ohio St. 288, 27 O.O.2d 200, 199 N.E.2d 596; State ex rel. Santora v. Bd. of Elections of Cuyahoga Cty. (1962), 174 Ohio St. 11, 21 O.O.2d 35, 185 N.E.2d 438. Nevertheless, even when an election has been conducted, a case is not moot where the issue or controversy is " 'capable of repetition yet evading review.' " Storer v. Brown (1974), 415 U.S. 724, 737, fn. 8, 94 S.Ct. 1274, 1282, fn. 8, 39 L.Ed.2d 714 quoting Rosario v. Rockefeller (1973), 410 U.S. 752, 756, fn. 5, 93 S.Ct. 1245, 1249, fn. 5, 36 L.Ed.2d 1; Foster v. Cuyahoga Cty. Bd. of Elections (1977), 53 Ohio App.2d 213, 7 O.O.3d 282, 373 N.E.2d 1274. This is one such case. Here, the issue is a matter of constitutional and statutory interpretation which affects how Ohio's eighty-eight boards of elections will determine the sufficiency of a particular category of signatures on initiative petitions. We therefore agree with the court of appeals that this case presents a matter evading review but capable of repetition and was properly considered by the appellate court.

The narrow questions presented are what is an "elector," and must he or she place on an initiative petition the residence shown on the records of the board of elections, or may said signer enter his or her current address on the petition if it is different from the address on the board of elections' records?

Section 1, Article V of the 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."

R.C. 3501.01(N) defines "elector" or "qualified elector" as "a person having the qualifications provided by law to entitle him to vote." R.C. 3501.01(O) provides: " 'Voter' means an elector who votes at an election." Further, R.C. 3501.01(P) states that " '[v]oting residence' means that place of residence of an elector which shall determine the precinct in which he may vote." R.C. 3503.07 provides: "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, * * * shall, unless otherwise disqualified, be entitled to be registered as an elector in such precinct. * * * " (Emphasis added.)

Section 1g, Article II of the Ohio Constitution provides in relevant part: " * * * Each signer of any * * * petition must be an elector of the state and shall place on such petition after his name the date of signing and his place of residence. * * * "

We observe that Section 1g, Article II of the Ohio Constitution, by its own language, ¹ is a self-executing provision. Hockett v. State Liquor Licensing Bd. (1915), 91 Ohio St. 176, 183, 110 N.E. 485, 487. A clause in a constitution is self-executing if it contains more than a mere framework, and specifically provides for carrying into immediate effect the enjoyment of the rights established therein without legislative action. See Yenter v. Baker (1952), 126 Colo. 232, 248 P.2d 311. However, laws may be passed to facilitate its operation, as long as they do not restrict or limit the provision or the powers therein reserved. See Daggett v. Hudson (1885), 43 Ohio St. 548, 3 N.E. 538.

Under R.C. 3503.14, a person who qualifies to register to vote must complete a registration form that specifically asks "What is your residence?," and provides spaces expressly designated for the person's full street address, city, state and zip code. If an already registered elector changes residence, he or she must notify the board of elections at least thirty days (twenty-nine days in some cases) preceding the next special, primary or general election. R.C. 3503.11(A). R.C. 3503.11(E)(1) also permits a registered elector who changes residence within his precinct to present himself on the day of a special, primary or general election at the polling place and vote if he first completes a notice of change of residence. See, also, R.C. 3503.15 and 3503.16. In order to be entitled to vote, therefore, a person must qualify under Section 1, Article V of the Ohio Constitution and R.C. 3503.07, and then register in accordance with R.C. 3503.06 et seq.

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.

We consider next the specific requirement found in R.C. 3519.10 and the relevant cases cited by the parties.

R.C. 3519.10 provides in pertinent part: "Each signer of any initiative * * * petition must be a qualified elector of the state. He shall place on such petition after his name the date of signing and the location of his voting residence, including the street and number in which such voting residence is located * * *."

Citizens argues that the language of R.C. 3519.10 is directly in conflict with Section 1g, Article II of the Ohio Constitution, and that the requirement of R.C. 3519.10 that signers of an initiative petition state their "voting residence" as registered with the board of elections conflicts with the general "residence" requirement contained in Section 1g.

In support of its ruling, the court of appeals relied on this court's three-to-three decision in State ex rel. Schroy v. Wagner (1933), 127 Ohio St. 174, 187 N.E. 572. It is the first of two brief opinions of this court on the issue and is in conflict with the later case, discussed infra. In Wagner, the court considered whether G.C. 4785-34 ² would permit previously registered...