State ex rel. Myles v. Brunner

• Decision Date: 02 October 2008
• Docket Number: No. 2008-1842.,2008-1842.
• Citation: 2008 Ohio 5097,899 N.E.2d 120,120 Ohio St.3d 328
• Parties: The STATE of Ohio ex rel. MYLES et al. v. BRUNNER, Secy. of State.
• Court: Ohio Supreme Court

899 N.E.2d 120

120 Ohio St.3d 328

2008-Ohio-5097

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

No. 2008-1842.

Supreme Court of Ohio.

Submitted October 1, 2008.

Decided October 2, 2008.

Keating, Muething & Klekamp P.L.L., James E. Burke, and Charles M. Miller, Cincinnati, for relators.

Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, Pearl M. Chin, and Michael J. Schuler, Assistant Attorneys General, for respondent.

PER CURIAM.

{¶ 1} This is an expedited election action for a writ of mandamus to compel the secretary of state to issue a directive to county boards of elections that they may not reject an absentee-ballot application based on the applicant's failure to mark a box. Because the secretary of state erroneously instructed boards of elections that certain absentee-ballot applications must be rejected when applicants do not mark a box next to a qualified-elector statement, we grant the writ.

McCain-Palin Absentee-Ballot Applications

{¶ 2} McCain-Palin 2008, Inc., distributed absentee-ballot applications to qualified electors in Ohio that were in the following form:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

{¶ 3} Relators, William Myles and Betty R. Smith, are residents of Hamilton County, Ohio, and are registered voters and qualified electors. Relators received the McCain absentee-ballot applications and submitted them without checking the box to the left of the statement, "I am a qualified elector and would like to receive an Absentee Ballot for the November 4, 2008 General Election."

Secretary of State's Memorandum

{¶ 4} On September 5, 2008, respondent, Secretary of State Jennifer Brunner, issued a memorandum to counties and boards of elections after she received questions from many boards regarding the sufficiency of absentee-ballot applications with an unmarked check box next to an applicant's statement that the person is a qualified elector. In the memorandum, the secretary of state instructed the boards of elections to reject absentee-ballot applications like the McCain applications that have an unmarked check box next to the applicant's statement that the person is a qualified elector:

{¶ 5} "If your board of election receives an absentee ballot application with a check box related directly to a required statement, and the statement is not directly related to a signature line such as appears on the Secretary of State prescribed voter registration Form 11-A, the check box must be marked in some manner by the applicant in order to affirm the required statement. If the box is not checked, the applicant has not affirmatively made the statement required under R.C. 3509.03, and the application must be rejected unless the applicant has affirmed the statement in some other way." (Emphasis added.)

Impact of Secretary of State's Memorandum

{¶ 6} Relator Smith's application for an absentee ballot was rejected because she did not mark the box on the McCain application form next to the statement that she is a qualified elector. Relator Myles believes that his application on the McCain form might be rejected for the same reason. Over 3,500 absentee-ballot applications have been rejected by certain boards of elections because of the applicants' failure to check the box next to their qualified-elector statements.

Expedited Election Case

{¶ 7} Relators subsequently filed this expedited election action for a writ of mandamus to compel the secretary of state to (1) "issue a Directive to the County Boards of Election[s] that they may not reject an absentee ballot application on the basis of a box not being marked," and (2) "issue a clarifying memorandum to the County Board[s] of Elections reiterating that the County Board[s] of Elections must issue an absentee ballot to any qualified elector who submits an application that contains all of information required by R.C. 3509.03." The parties submitted evidence and briefs pursuant to the accelerated schedule set forth in S.Ct.Prac.R. X(9).

{¶ 8} This cause is now before the court for its determination on the merits.

Jurisdiction and Other Matters

{¶ 9} We reject the secretary's contention that we lack subject-matter jurisdiction over relators' mandamus claim based on our holding in State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 20, quoting State ex rel. Melvin v. Sweeney (1950), 154 Ohio St. 223, 226, 43 O.O. 36, 94 N.E.2d 785 ("As relators observe, we have expressly recognized that if the secretary of state `has, under the law, misdirected the members of boards of elections as to their duties, the matter may be corrected through the remedy of mandamus'"). We similarly reject the secretary's arguments that mandamus will not remedy an abuse of her discretion in this regard and that relators have an adequate remedy at law that would preclude mandamus.¹

Mandamus

{¶ 10} "To be entitled to the requested writ, relators must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of the secretary of state 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.

General Duties of the Secretary of State

{¶ 11} As the state's chief election officer pursuant to R.C. 3501.04, the secretary of state has many election-related duties, including the duties to "[i]ssue instructions by directives and advisories to members of the boards as to the proper methods of conducting elections," "[p]repare rules and instructions for the conduct of elections," "[p]rescribe the form of registration cards, blanks, and records," and "[c]ompel the observance by election officers in the several counties of the requirements of the election laws." R.C. 3501.05(B), (C), (F), and (M).

{¶ 12} Relators contend that the secretary of state has a duty enforceable in mandamus under these provisions to issue a directive or a new memorandum correcting her previous memorandum by instructing boards of elections to accept the McCain applications even if the applicant has not checked the box next to the qualified-elector statement.

R.C. 3509.03

{¶ 13} Relators assert that they are entitled to the requested extraordinary relief in mandamus because the secretary of state, through her memorandum, misdirected the boards of elections as to their duties regarding the McCain absentee-ballot applications. They claim that they fully complied with the requirements of R.C. 3509.03, which provides:

{¶ 14} "[A]ny qualified elector desiring to vote absent voter's ballots at an election shall make written application for those ballots to the director of elections of the county in which the elector's voting residence is located. The application need not be in any particular form but shall contain all of the following:

{¶ 15} "* * *

{¶ 16} "(G) A statement that the person requesting the ballots is a qualified elector." (Emphasis added.)

{¶ 17} In construing R.C. 3509.03, "our paramount concern is the legislative intent in enacting the statute." State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. "To discern this intent, we first consider the statutory language, reading words and phrases in context and construing them in accordance with the rules of grammar and common usage." State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 40.

{¶ 18} R.C. 3509.03 specifies that although an absentee-ballot application need not be in any particular form, it "shall contain" certain items, including a "statement that the person requesting the ballots is a qualified elector." R.C. 3509.03(G). "[T]he settled rule is that election laws are mandatory and require strict compliance and that substantial compliance is acceptable only when an election provision expressly states that it is." State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 476, 764 N.E.2d 971. R.C. 3509.03 demands strict compliance insofar as absentee-ballot applications must contain the specified information.

{¶ 19} It is unquestioned here that the challenged McCain absentee-ballot applications contain all the information required by R.C. 3509.03, including the qualified-elector statement specified by R.C. 3509.03(G).

{¶ 20} In her memorandum, however, the secretary of state advised that these applications were defective and must be rejected because there was no affirmation that the applicant was making the preprinted qualified-elector statement when the box next to the statement was not marked and was not located near the applicant's signature.

{¶ 21} R.C. 3509.03 does not expressly require that the statement be located a certain distance from the applicant's signature. Because the statute also does not strictly require that the box next to the qualified-elector statement be marked, we cannot require it. State ex rel. Columbia Reserve Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815, ¶ 32 ("We will not add a requirement that does not exist in the statute").

{¶ 22} Moreover, we "must avoid unduly technical interpretations that impede the public policy favoring free, competitive elections." State ex rel. Ruehlmann v. Luken (1992), 65 Ohio St.3d 1, 3, 598 N.E.2d 1149; cf. Stern v. Cuyahoga Cty. Bd. of Elections (1968), 14 Ohio St.2d 175, 180, 43 O.O.2d 286, 237 N.E.2d 313 ("Absolute compliance with every technicality should not be required in order to constitute substantial compliance, unless such complete and absolute conformance to each technical requirement of the printed form serves a public interest and a public purpose").

{¶ 23} No vital public purpose or public interest is served by rejecting electors' applications for absentee ballots because of an unmarked check box next to a qualified-elector statement. There is...