State ex rel. Husted v. Brunner, 2009-1455.
| Court | United States State Supreme Court of Ohio |
| Citation | 123 Ohio St.3d 119,914 N.E.2d 397,2009 Ohio 4805 |
| Docket Number | No. 2009-1455.,2009-1455. |
| Parties | The STATE ex rel. HUSTED v. BRUNNER, Secy. of State. |
| Decision Date | 14 September 2009 |
v.
BRUNNER, Secy. of State.
[914 N.E.2d 399]
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, and Erick D. Gale, Assistant Attorneys General, for respondent.
PER CURIAM.
{¶ 1} This is an original action for a writ of mandamus to compel the secretary of state to immediately dismiss or deny the purported challenge concerning whether relator is a qualified elector of Montgomery County or, in the alternative, to immediately issue a decision on the matter. We grant a peremptory writ of mandamus to compel the secretary of state to summarily decide, no later than seven days from the date of this opinion, the matter submitted to her on a tie vote by the board of elections relating to relator's residency, and we dismiss relator's remaining claims.
{¶ 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. In November 2008, Husted was elected to the Ohio Senate, where he currently represents the 6th Senate District, which is located in Montgomery County. Husted is listed as a registered voter in Montgomery County, although he admits that he resides in Franklin County with his family in his wife's home when he is in Franklin County on public business.
{¶ 3} In October 2008, ProgressOhio.org, Inc., a nonprofit corporation, and Regine Elliott, a Montgomery County elector, requested that the Montgomery County Board of Elections investigate Husted's eligibility to vote as a resident of Montgomery County. The board of elections conducted a hearing on the matter in January 2009 at which Husted gave sworn testimony. At a subsequent meeting, the board of elections tied two-to-two on the issue of Husted's residency. By letter dated March 11, 2009, the director of the board of elections submitted the tie vote to respondent, Secretary of State Jennifer L. Brunner.
{¶ 4} On April 7, 2009, the secretary of state determined that the official record submitted by the board of elections was insufficient to permit her to decide the matter and held the matter "in abeyance while Senator Husted is separately provided with the opportunity to submit additional documentation that may assist the board in its decision." The secretary of state requested that Husted submit certain records relating to his residency, and after Husted provided some of these records, the secretary of state subpoenaed certain other records. On June 8, 2009, the secretary of state returned the matter to the board of elections to consider the additional records and to reach a determination on the question of Husted's residency.
{¶ 5} The board of elections reconsidered the matter and again deadlocked two-to-two. The board submitted the tie vote to the secretary of state, who, on July 16, received the materials sent by the board. The secretary of state has not ruled on the matter.
{¶ 6} On August 11, Husted filed this action for a writ of mandamus to compel the secretary of state to immediately dismiss the matter related to his residency, immediately deny the purported challenge to his residency, or immediately issue a decision breaking the board's tie vote. On September 4, the secretary of state submitted an answer. In her answer, the secretary concedes that she has not yet issued a decision breaking the tie vote and suggests that the board of elections is still investigating the matter and will resolve it.
{¶ 7} This cause is now before us for our S.Ct.Prac.R. X(5) determination.
{¶ 8} We must now determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. S.Ct. Prac.R. X(5). Dismissal, which the secretary of state requests in her answer, is required if it appears beyond doubt, after presuming the truth of all material factual allegations of Husted's complaint and making all reasonable inferences in his favor, that he is not entitled to the requested extraordinary relief in mandamus. State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462...
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