State ex rel. Ashbrook v. Brown

• Decision Date: 23 September 1988
• Docket Number: No. 88-1165,88-1165
• Citation: 529 N.E.2d 896,39 Ohio St.3d 115
• Parties: The STATE, ex rel. ASHBROOK et al., v. BROWN, Secy. of State, et al.
• Court: Ohio Supreme Court

Page 115

39 Ohio St.3d 115

529 N.E.2d 896

The STATE, ex rel. ASHBROOK et al., v. BROWN, Secy. of State, et al.

No. 88-1165.

Supreme Court of Ohio.

Submitted Sept. 20, 1988.

Decided Sept. 23, 1988.

Schaller, Hostetter & Campbell and Thomas K. Campbell, Newark, for relators.

Anthony J. Celebrezze, Jr., Atty. Gen., and Catherine M. Cola, Columbus, for respondent Secretary of State.

B. Kevin Bennett, Asst. Pros. Atty., for respondent Bd. of Elections of Licking County.

PER CURIAM.

Relators argue that Wheeler's death must be considered an involuntary withdrawal of a candidate for which the law permits a substitution. Respondent Secretary of State argues that the law concerning deceased candidates does not allow substitution for a candidate who dies on primary election day, and that even if it did, the central committee did not follow the applicable procedures in making the substitution. We agree with relators and grant the writ.

R.C. 3513.17 requires removal from the primary ballot of the name of a candidate for county office who dies more than five days before the primary election. For other candidates, it requires removal of the name if death occurs more than ten days before the election. R.C. 3513.17 then concludes:

"In no case shall votes cast for a deceased candidate be counted or recorded."

The Secretary of State contends that this is a comprehensive prohibition applicable to all deceased candidates and that, since Wheeler was a deceased candidate on and after election day, votes for him may not be counted or recorded.

R.C. 3513.31 provides in part:

"If a person nominated in a primary election as a party candidate for election at the next general election dies, the vacancy so created may be filled by the same committee in the same manner as provided in this section for the filling of similar vacancies created by withdrawals * * *."

The Secretary of State contends that since Wheeler's votes could not be counted or recorded pursuant to R.C. 3513.17, he was not a "person nominated in a primary election" whose vacancy could be filled under R.C. 3513.31.

Relators argue that the public policy favoring freely competitive elections should prevent such a result. They rely on State ex rel. Flex v. Gwin (1969), 20 Ohio St.2d 29, 49 O.O.2d 185, 252 N.E.2d 289, and State ex rel. Giuliani v. Cuyahoga Cty. Bd. of Elections (1984), 14 Ohio St.3d 8, 14 OBR 314, 471 N.E.2d 148, in which this court declined to interpret statutes literally when the result would have been to prevent freely competitive elections.

We note that the prohibition of R.C. 3513.17, that "[i]n no case shall votes cast for a deceased candidate be counted or recorded," is ambiguous as applied to deceased candidates for whom absentee votes have been cast before their death. Such votes, when cast, were not cast for a deceased candidate. R.C. 1.49 provides in pertinent part: "If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters * * * (E) [t]he consequences of a particular construction * * *." The consequences of construing R.C. 3513.17 as the Secretary of State contends would be to preclude a freely competitive general election in November because an untimely death had occurred in May. We reject this construction and construe the prohibition of R.C. 3513.17 narrowly, to apply only to votes cast after a candidate dies.

We note from the certification of the board of elections that absent voters'...