State ex rel. Colvin v. Brunner

• Decision Date: 29 September 2008
• Docket Number: No. 2008-1813.,2008-1813.
• Court: Ohio Supreme Court
• Parties: The STATE ex rel. COLVIN et al. v. BRUNNER, Secy. of State.

896 N.E.2d 979

120 Ohio St.3d 110

2008-Ohio-5041

The STATE ex rel. COLVIN et al. v. BRUNNER, Secy. of State.

No. 2008-1813.

Supreme Court of Ohio.

Submitted September 29, 2008.

Decided September 29, 2008.

Chester, Willcox & Saxbe, L.L.P., Donald C. Brey, Elizabeth J. Watters, and Deborah A. Scott, for relators.

Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, Aaron Epstein, Michael J. Schuler, and Dennis P. Smith Jr., Assistant Attorneys General, for respondent.

Benesch, Friedlander, Coplan & Aronoff, L.L.P., and William M. Todd, urging granting of the writ for amicus curiae State Representative Larry Wolpert.

Thomas C. Drabick Jr., urging denial of the writ for amicus curiae Ohio American

Federation of Labor-Congress of Industrial Organizations.

Hunter, Carnahan, Shoub & Byard and Michael J. Hunter, urging denial of the writ for amicus curiae District 1199, Health Care and Social Service Union, Service Employees International Union.

Altshuler Berzon L.L.P., Stephen P. Berzon, Stacey M. Leyton, Barbara J. Chisholm, and Peter E. Leckman, urging denial of the writ for amicus curiae Ohio American Federation of Labor-Congress of Industrial Organizations and District 1199, Health Care and Social Service Union, Service Employees International Union.

Meredith Bell-Platts, Neil Bradley, Carrie L. Davis, Jeffrey M. Gamso, Daniel P. Tokaji, Paul Moke, Teresa James, Richard Saphire, Brenda Wright, Jon Greenbaum, Bob Kengle, Jennifer R. Scullion, and Matthew Morris, urging denial of the writ for amici curiae 1 Matters; American Civil Liberties Union of Ohio; American Civil Liberties Union Foundation, Inc., Voting Rights Project; Demos; Lawyers' Committee for Civil Rights Under Law; League of Women Voters of Ohio; Project Vote; Northeast Ohio Coalition for the Homeless; and United States Hispanic Leadership Institute, Inc.

PER CURIAM.

{¶ 1} This is an expedited election action for a writ of mandamus to, among other things, compel the secretary of state to issue a directive to the county boards of elections that they must void any applications for absentee ballots accepted by election officials after the registration of persons but before the 30-day registration period has passed and to advise the boards of elections that 30 days must elapse following registration before an absentee-ballot application may be accepted from the registered person.

{¶ 2} After construing the pertinent constitutional and statutory provisions, including Section 1, Article V of the Ohio Constitution, and R.C. 3503.01, 3503.06, 3509.02, 3509.03, and 3509.04, we hold that respondent, the secretary of state, correctly instructed boards of elections that an otherwise qualified citizen must be registered to vote for 30 days as of the date of the election at which the citizen offers to vote in order to be a qualified elector entitled to apply for and vote an absentee ballot at the election, and that the citizen need not be registered for 30 days before applying for, receiving, or completing an absentee ballot for the election. Therefore, because relators cannot establish either a clear legal right to the requested extraordinary relief or a clear legal duty on the part of the secretary of state to provide it, we deny the writ.

Directive 2008-63

{¶ 3} On August 13, 2008, respondent, Secretary of State Jennifer Brunner, issued Directive 2008-63 to all county boards of elections. In this directive, the secretary of state provided the following instructions to boards of elections for processing voter-registration applications received the week immediately preceding the voter-registration deadline:

{¶ 4} "It is anticipated that the November 4, 2008, election will be the first election for which many Ohioans will register to vote, and other Ohioans will have recently changed their addresses in boards of elections records. A significant number of those new and changed registrations will be generated by voter registration drives conducted up to the registration deadline on October 6, 2008.

{¶ 5} "* * *

{¶ 6} "Consequently, boards of elections can expect to receive large numbers of new and changed voter registrations, in the week immediately preceding the voter registration deadline for the 2008 general election, October 6, 2008. * * * Because part of that week coincides with the beginning of the absentee voting period for that election, the boards also should expect to receive large numbers of absentee ballot applications along with the registration applications. * * *

{¶ 7} "* * *

{¶ 8} "* * * [T]here are several days before the 2008 general election during which a person may appear at the board of elections office and simultaneously submit for that election applications to register to vote or to update an existing registration and to request an absentee ballot. As discussed above, a board of elections must first obtain from the person who presents himself or herself to vote during this period a completed voter registration or change of address form.

{¶ 9} "Boards of elections are required to develop procedures to immediately register the applicant and issue an absentee ballot to the newly registered elector of the county at the time of registration, reserving the right to delay registration and immediate absentee voting if a board is not satisfied as to the validity of the application and the applicant's qualifications. Boards of elections utilizing satellite locations for early in-person absentee voting should develop sufficient procedures to enable them to comply with this directive as they would if in-person absentee voting were taking place at the board's office." (Emphasis added.)

{¶ 10} The secretary of state also issued a memorandum in which she reiterated that Directive 2008-63 "[r]equires boards to develop procedures to immediately register an applicant and issue an absentee ballot to the newly registered elector of the county at the time of registration [d]uring the overlap period." The secretary of state additionally repeated that boards reserved the right "to delay registration and immediate absentee voting if a board is not satisfied as to the validity of the application and the applicant's qualifications."

Opinions of Prosecuting Attorneys

{¶ 11} Under R.C. 309.09(A), a county prosecuting attorney acts as the legal advisor for the county board of elections. Between August 25 and September 5, 2008, the prosecuting attorneys for Holmes, Miami, and Madison Counties advised their local boards of elections that Directive 2008-63 should be disregarded as unsupported by law to the extent that it orders boards of elections to permit same-day registration and absentee voting. According to the secretary of state, the boards of elections in Holmes and Miami Counties have indicated that they will follow the secretary's directive. Madison County's procedure for registration and absentee voting during the overlap period is the subject of a pending federal lawsuit.

Directives 2008-91 and 2008-92

{¶ 12} On September 11, 2008, the secretary of state issued Directives 2008-91 and 2008-92 to the boards of elections. In Directive 2008-91, the secretary of state again noted that "at least a five-day `overlap' period exists during which a voter may register to vote and receive an absentee ballot when registration and the ballot request are made in person at the board of elections or at its satellite office established for in person absentee voting." In Directive 2008-92, the secretary of state ordered that all previous directives, which would include Directives 2008-63 and 2008-91, were effective on September 12, 2008, the date of an amendment to R.C. 3501.053 classifying directives as either temporary or permanent, "unless subsequently and specifically superseded, revoked or replaced by a subsequent directive of the Secretary of State, whether temporary or permanent."

Expedited Election Case

{¶ 13} Relators, Rhonda L. Colvin and C. Douglas Moody, are qualified electors of the state of Ohio. On September 12, 2008, relators filed this expedited election action for a writ of mandamus to compel Secretary of State Brunner to "issue a Directive to the County Boards of Election[s] that they must void any applications for absent voters' ballots that were accepted by the election official[s] following the registration of voters and prior to the lapsing of the thirty (30) day required period under Ohio law" and to "issue a clarifying Directive to the County Boards of Elections reiterating that thirty (30) days must elapse, consistent with the Revised Code, before an application for absent voter's ballot may be accepted by the election official following the registration of a voter, and clarifying that Directive 2008-63 should be construed consistent with Ohio law and does not change or modify the requirement under Ohio law that thirty (30) days must elapse before an application for an absent voter's ballot may be accepted by the election official following the registration of a voter." The secretary of state filed an answer, and the parties submitted evidence and briefs pursuant to the expedited election schedule in S.Ct.Prac.R. X(9).

{¶ 14} This cause is now before the court for its consideration of the merits.

Motion to Strike¹

{¶ 15} Relators have filed a motion to strike the amicus curiae memorandum of Iraq and Afghanistan Veterans of America and Veterans for America. We grant the motion and strike the memorandum because the memorandum was not served by personal service, facsimile transmission, or e-mail, as required by the Rules of Practice, and there is not enough time to allow an extension of briefing for proper service. See, e.g., S.Ct.Prac.R. X(8) and (9), VI(6), and XIV(2)(A)(1), (B)(3), and (D)(2). Service by mail in an expedited election case is not acceptable. See State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 19.

Jurisdiction

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