State ex rel. Citizens For Responsible Taxation v. Scioto Cty. Bd. of Elections

• Decision Date: 09 December 1992
• Docket Number: No. 92-1821,92-1821
• Citation: 602 N.E.2d 615,65 Ohio St.3d 167
• Parties: The STATE ex rel. CITIZENS FOR RESPONSIBLE TAXATION et al. v. SCIOTO COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 167

65 Ohio St.3d 167

602 N.E.2d 615

The STATE ex rel. CITIZENS FOR RESPONSIBLE TAXATION et al. v. SCIOTO COUNTY BOARD OF ELECTIONS et al.

No. 92-1821.

Supreme Court of Ohio.

Submitted and Decided Oct. 14, 1992.

Opinion announced Dec. 9, 1992. ^*

Relators, Citizens for Responsible Taxation and Virginia Froman, a member of that organization, circulated an initiative petition to decrease a 2.6 mill levy that was approved by the voters in 1989 to fund, for a continuing period of time, programs and facilities operated by the Scioto County Board of Mental Retardation and Developmental Disabilities ("MRDD"). On August 20, 1992, relators filed the petition with respondents, the Scioto County Board of Elections and its individual members, including Steven Mowery, the chairman of MRDD. Relators' petition was composed of several part-petitions and contained 2,951 signatures.

For the levy decrease to be submitted at the November 3, 1992 general election, relators needed 2,403 valid signatures on their petition. On August 22, 1992, respondents, other than Mowery, rejected the petition because only 2,186 signatures were determined to be valid. Relators filed a protest, and after a hearing on September 4, 1992, respondents reconsidered forty-one of the previously rejected signatures and accepted them as valid. Respondents, including Mowery, found the petition insufficient again, because it contained only 2,227 signatures, 176 fewer than necessary for the issue to be placed on the ballot.

Relators seek a writ of mandamus to compel placement of the levy decrease on the general election ballot. Donald J. McTigue, Youngstown, for relators.

Lynn Allan Grimshaw, Pros. Atty., and Mark A. Leventhal, Asst. Pros. Atty., for respondents.

PER CURIAM.

Relators argue that respondents improperly rejected 172 of their petition signatures on the ground that the signers provided only their post office box number, township and, in some instances, a precinct, and not the road or rural route number which also appears on their voter registration cards. Relators challenge the rejection of five part-petitions containing 122 signatures, which respondents invalidated because circulator statements did not accurately reflect the number of signatures appearing on each part-petition. Relators further contend that respondents improperly rejected fifteen signatures because other signatures on the same part-petition did not appear genuine.

In addition, relators complain that when they presented their petition for filing, respondents' deputy director gave them a list of 117 signers who wanted their names deleted. Relators maintain that the board would not accept the petition until these signers' names were crossed out and that relators attempted to comply. Relators claim that forty-two signatures were improperly struck from the petition because of this list and that efforts to strike these names also contributed to the discrepancies in the circulator statements on the five rejected part-petitions.

For the reasons that follow, we hold that respondents were required to count the 122 signatures on the five rejected part-petitions, but did not disregard the law or abuse their discretion in disqualifying the other 229 signatures. Thus, we deny the writ of mandamus because relators remain fifty-four signatures short of the number required for this issue to appear on the ballot.

Voting Address

R.C. 3501.38(C) provides:

"Each signer shall place on the petition after his name the date of signing and the location of his voting residence, including the street and number if in a municipal corporation or the rural route number, post office address, or township if outside a municipal corporation. The voting address given on the petition shall be the address appearing in the registration records at the board of elections."

Respondents invalidated 172 signatures because the signers did not provide their street or rural route number that appears on their voter registration cards, in addition to their post office box number, township, and, in some cases, their precinct. Relators argue that the post office box number is the "post office address" for these signers, that the signers were easily identified as electors by their post office box number and township, and that a street or rural route number is just another way to provide the same information. Relators also assert substantial compliance and that respondents abused their discretion by rejecting these signatures, as they have previously accepted signatures on nominating petitions where the signer placed only a post office box number and township after his or her name.

We cannot accept substantial compliance as a means to save these signatures. The settled rule is that election laws are mandatory and require strict compliance. State ex rel. Evergreen Co. v. Bd. of Elections (1976), 48 Ohio St.2d 29, 2 O.O.3d 126, 356 N.E.2d 716; State ex rel. Senn v. Bd. of Elections (1977), 51 Ohio St.2d 173, 5 O.O.3d 381, 367 N.E.2d 879. Substantial compliance is acceptable only when an election statute expressly permits it. State ex rel. Saffold v. Bd. of Elections (1970), 22 Ohio St.2d 63, 51 O.O.2d 95, 258 N.E.2d 112; Stern v. Bd. of Elections (1968), 14 Ohio St.2d 175, 43 O.O.2d 286, 237 N.E.2d 313; State ex rel. Wolson v. Kelly (1966), 6 Ohio St.2d 67, 35 O.O.2d 85, 215 N.E.2d 719 (substantial compliance with form for declaration of candidacy and nominating petition allowed by R.C. 3513.07). Accord State ex rel. Green v. Casey (1990), 51 Ohio St.3d 83, 85, 554 N.E.2d 1288, 1290-1291; State ex rel. Esch v. Lake Cty. Bd. of Elections (1991), 61 Ohio St.3d 595, 597-598, 575 N.E.2d 835, 836.

R.C. 3501.38(C) does not permit substantial compliance, and the pertinent 172 signatures clearly did not strictly comply. The signers did not provide their "voting residence," as a post office box mailing address is not used to "determine the precinct in which * * * [an elector] may vote." R.C. 3501.01(P). See, e.g., Kyser v. Cuyahoga Cty. Bd. of Elections (1973), 36 Ohio St.2d 17, 65 O.O.2d 93, 303 N.E.2d 77, syllabus, appeal dismissed (1974), 415 U.S. 970, 94 S.Ct. 1547, 39 L.Ed.2d 863 ("A post office box number can not be used to fulfill the requirement of 'residence' in R.C. 3503.01 by a person attempting to register to vote.") Thus, the pertinent signers also did not place on the petition their address which appears on the registration records of the board of elections. In a related case, In re Protest Filed by Citizens for the Merit Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 551 N.E.2d 150, paragraph three of the syllabus, we said:

"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."

cents We acknowledge that the signers in this case came closer to complying with R.C. 3501.38(C) than did the signers in In re Protest, who had moved from the address indicated on their voter registration cards. Here, the signers supplied information that respondents had on record and could have used to confirm the validity of their signatures. Thus, we consider whether respondents must, in effect, correct the failure to identify a signer's voting address, where this is possible from the registration records.

Although not cited by the parties, State ex rel. Buchanon v. Stillman (1967), 12 Ohio St.2d 13, 41 O.O.2d 151, 231 N.E.2d 61, establishes that respondents have discretion to overlook such deficiencies. There, a board of elections accepted the signatures on a local-option petition as valid, but the petition was later protested on the ground that the circulator affidavits did not include the statement " 'that to the best of * * * [the circulator's] knowledge and belief all signers of the petition were qualified to sign the same.' " Id. The board rejected the protest, and we refused to grant a writ of prohibition to prevent the issue from appearing on the ballot. We held that the lack of this statement in the circulator affidavits was no longer a defect once the board determined that the signatures were valid. However, we also recognized that the board would have been justified in relying on the defect to invalidate the petition, stating:

"Section 3501.38(E), Revised Code, provides that 'every petition paper shall bear the affidavit of the circulator * * * that all signers were to the best of his knowledge and belief qualified to sign.' Therefore, where the circulators' affidavits to such petitions do not contain such statements, the board of elections can for that reason determine that the petitions are invalid, and it can thereby save the time and expense of checking the signatures and of determining that the signers thereof were qualified to sign." Id. at 14-15, 41 O.O.2d at 152, 231 N.E.2d at 62.

Buchanon leads us to relators' argument that respondents employed a "double standard" and abused their discretion by overlooking defective voting addresses on nominating petitions, but not on relators' initiative petition. Respondents explain that they were instructed by the Secretary of State not to count signatures on initiative petitions which provided only a post office box number as the voting address. Relators reply that the rules for nominating and initiative petitions are the same under R.C. 3501.38 and should be enforced the same way.

The record indicates that respondents have, apparently with some regularity, accepted signatures that did not comply with the voting-residence requirement in R.C. 3501.38(C). However, under R.C. 3501.11(P), respondents must "[p]erform such * * * duties as are prescribed by law or the rules of the secretary of state." Respondents, therefore, had a duty to follow the Secretary of State's instruction, absent a showing that the order had no statutory basis. State ex rel. Sagebiel v....