State ex rel. Husted v. Brunner

Citation123 Ohio St.3d 288,915 N.E.2d 1215,2009 Ohio 5327
Decision Date06 October 2009
Docket NumberNo. 2009-1707.,2009-1707.
PartiesThe STATE ex rel. HUSTED v. BRUNNER et al.
CourtUnited States State Supreme Court of Ohio

Bricker & Eckler, L.L.P., Maria J. Armstrong, Anne Marie Sferra, and Jennifer A. Flint, for relator.

Richard Cordray, Attorney General, and Richard N. Coglianese, Damian Sikora, Erick D. Gale, Robert Moormann, and Michael J. Schuler, Assistant Attorneys General, for respondent secretary of state.

McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, Columbus, and J. Corey Colombo, urging denial of the writ for amicus curiae, ProgressOhio.org.

PER CURIAM.

{¶ 1} This is an expedited election action for a writ of mandamus to compel respondents, the secretary of state and the Montgomery County Board of Elections, to find that relator, Jon A. Husted, is a resident of Montgomery County for election purposes and to maintain Husted's name on the poll books as a properly registered Montgomery County elector for all election purposes. Because the secretary of state erred in canceling Husted's existing Montgomery County voter registration without following any of the statutorily prescribed methods for doing so and further erred in concluding that there was clear and convincing evidence that Husted is not a Montgomery County resident, we grant the writ and order the Montgomery County Board of Elections to treat Husted as a Montgomery County resident for election purposes.

I. Facts

{¶ 2} Relator, Jon A. Husted, served in the Ohio House of Representatives from 2001 to 2008, representing the 37th House District, which is located in Montgomery County. Husted served as Speaker of the House from 2005 through 2008. In November 2008, Husted was elected to the Ohio Senate, where he currently represents the Sixth Senate District, which is located in Montgomery County. Husted is registered to vote in Montgomery County.

{¶ 3} In October 2008, a nonprofit corporation and a Montgomery County elector requested that respondent Montgomery County Board of Elections investigate Husted's eligibility to vote as a resident of Montgomery County. A few months later, the board conducted a hearing at which Husted presented the only testimony. At the beginning of the hearing, the board's counsel described the hearing as an administrative investigatory hearing that was being conducted based upon the board's authority pursuant to R.C. 3501.11(J) to investigate irregularities. Husted testified that he has lived in the Dayton area for the past 24 years, including the past 14 years at his home in Kettering. Three years ago, he married his current wife, who owns a house in the Columbus area, and she resides there with their young daughter. Husted testified that he splits time between Montgomery and Franklin Counties, but has been outside of Montgomery County only due to his employment as a state legislator. He also presented the uncontroverted testimony that it is his intention upon the completion of his public service to return to his home in Kettering in Montgomery County. He pays taxes in Kettering, receives some mail at that address, and returns there at least weekly despite his legislative commitments in Franklin County.

{¶ 4} At a subsequent meeting, the board of elections tied two-to-two on the issue of whether Husted is a qualified elector of Montgomery County, and the director of the board submitted the tie vote to respondent Secretary of State Jennifer L. Brunner in March 2009. The secretary determined that the record submitted to her by the board was insufficient, so she obtained additional evidence and then returned the matter to the board for its consideration of the additional evidence. When the board again deadlocked on the matter, it was resubmitted to the secretary in mid-July.

{¶ 5} On September 14, we granted a writ of mandamus to compel the secretary of state to comply with her duty under R.C. 3501.11(X) to break the elections board's tie vote and summarily decide the issue of Husted's residency within seven days. State ex rel. Husted v. Brunner, 123 Ohio St.3d 119, 2009-Ohio-4805, 914 N.E.2d 397.

{¶ 6} On September 21, the secretary of state broke the tie vote by concluding that it had been established by clear and convincing evidence that Husted "is no longer a resident of Montgomery County and therefore is not eligible to vote there." The secretary noted in her opinion that the board had proceeded pursuant to its authority under R.C. 3501.11(J) to "`[i]nvestigate irregularities, nonperformance of duties, or violations of Title XXXV of the Revised Code by election officers and other persons; administer oaths, issue subpoenas, summon witnesses, and compel the production of books, papers, records, and other evidence in connection with any such investigation; and report the facts to the prosecuting attorney or the secretary of state.'" The secretary further noted that the board had a duty to act on the matter under R.C. 3501.11(Q) to "`[i]nvestigate and determine the residence qualifications of electors.'"

{¶ 7} Husted then filed this expedited election action for a writ of mandamus against the secretary of state and the board of elections.

II. Legal Analysis
A. Mandamus to Challenge Secretary of State's Tie-Breaking Decision

{¶ 8} "To be entitled to the requested writ, relator[] must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the secretary of state [and the board of elections] to provide it, and the lack of an adequate remedy in the ordinary course of the law." State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 13. Because of the proximity of the November 3 election at which Husted wishes to vote as a Montgomery County elector, he has established that he lacks an adequate remedy in the ordinary course of the law. State ex rel. Greene v. Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10.

{¶ 9} For the remaining requirements, "[i]n extraordinary actions challenging the decisions of the Secretary of State and boards of elections, the standard is whether they engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions." Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, 11. Mandamus is the appropriate remedy to challenge the secretary's tie-breaking decision in these circumstances. See id.; see also State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 583, 651 N.E.2d 995. Husted claims that the secretary of state and the board of elections abused their discretion and clearly disregarded applicable law by ruling that he is not a qualified elector of Montgomery County.

B. Failure to Follow Proper Procedure for Canceling Registration

{¶ 10} Husted claims that the secretary of state and the board of elections clearly disregarded applicable law by failing to follow the proper procedure for canceling his voter registration. We agree that he is entitled to the requested extraordinary relief because the board followed a procedure that is not authorized by the pertinent statutory provisions.

{¶ 11} As we have consistently held, "`County boards of elections are of statutory creation, and the members thereof in the performance of their duties must comply with applicable statutory requirements.'" Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 12, quoting State ex rel. Babcock v. Perkins (1956), 165 Ohio St. 185, 187, 59 O.O. 258, 134 N.E.2d 839.

{¶ 12} The election statutes address the cancellation of a voter's registration with specificity. R.C. 3503.21(C) provides that "[t]he registration of a registered elector shall not be canceled except as provided in this section, division (Q) of section 3501.05 of the Revised Code, division (C)(2) of section 3503.19 of the Revised Code, or division (C) of section 3503.24 of the Revised Code." Because Husted's registration was not canceled pursuant to one of the prescribed methods, he has established his entitlement to the requested extraordinary relief.

{¶ 13} It is clear from the record that R.C. 3501.05(Q) and 3503.21 do not apply. R.C. 3501.05(Q) grants the secretary of state the authority to adopt rules to carry out the provisions of R.C. 3503.21 for the removal of ineligible voters from the statewide voter-registration database. R.C. 3503.211 describes different occurrences that will cause a registered elector's registration to be canceled, the only potentially relevant one being R.C. 3503.21(A)(5) ("change of residence of the registered elector to a location outside the county of registration"). Before a voter's registration is canceled under this subsection, the board of elections must send a confirmation notice and the registered elector must fail to respond to the confirmation notice or otherwise update the registration and fail to vote in any election during the period of two federal elections after the mailing of the confirmation notice. R.C. 3503.21(B)(2). Nothing in the record indicates that the board of elections ever sent Husted a confirmation notice under this subsection or that he failed to vote after any such mailing. R.C. 3503.19(C)(2)2 also does not apply, because it relates to a voter's initial registration, which is not the issue here.

{¶ 14} The only remaining manner in which Husted's registration may be canceled is R.C. 3503.24(C).3 The secretary of state, however, specifically rejects this ground because she asserts that this case does not involve challenges to a person's right to vote under R.C. 3503.24 or R.C. 3505.19. Instead, she relies on the general provision in R.C. 3501.11(Q) granting boards of elections the authority to "[i]nvestigate and determine the residence qualifications of electors." The secretary of state takes an expansive view of this phrase, contending...

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