State ex rel. Oster v. Lorain Cty. Bd. of Elections
| Decision Date | 04 October 2001 |
| Docket Number | No. 01-1639.,01-1639. |
| Citation | 93 Ohio St.3d 480,756 NE 2d 649 |
| Parties | THE STATE EX REL. OSTER ET AL. v. LORAIN COUNTY BOARD OF ELECTIONS ET AL. |
| Court | Ohio Supreme Court |
Riley, Resar & Associates, P.L.L., and Kenneth R. Resar, for relators.
Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A. Innes, Assistant Prosecuting Attorney, for respondent Lorain County Board of Elections.
Phillips & Co., L.P.A. and Gerald W. Phillips, for intervening respondent.
On June 7, 2001, the Council of respondent city of Lorain, Ohio, enacted Ordinance No. 77-01, which reclassified approximately 202.7 acres of land from R-1A "Residential" to R-PUD "Residential Planned Unit Development." Intervening respondent, Committee for the Referendum of Ordinance No. 77-01, Citizens for a Better Lorain ("committee"), circulated a referendum petition requesting that Ordinance No. 77-01 be submitted to Lorain voters at the November 6, 2001 general election.
Circulators of the petition applied the following procedure, which is the usual and customary manner in which petition signatures are obtained. Circulators approached potential signers and asked if the person was a registered voter. If the person indicated that he or she was a registered voter, the person was asked to sign the referendum petition, and, if necessary, the person also signed a voter registration card to indicate a change of address for the person's registration. If the person advised the circulator that he or she was not a registered voter, the circulator asked the person if he or she wanted to sign a voter registration application and, if the person did, he or she was then asked to sign the petition. The committee submitted the voter registration applications to respondent Lorain County Board of Elections ("board") before the petition was filed.
On July 6, 2001, the committee filed the referendum petition with the Lorain City Auditor. The petition consisted of seventy-one part-petitions and two thousand twenty-five unverified signatures. On July 25, 2001, the board certified that the petition contained 1,584 valid signatures, which was more than the 1,562 signatures required to place the referendum on Ordinance No. 77-01 on the November 6 election ballot.
On August 6, 2001, relators, Thomas and Evelyn Oster, taxpayers and resident electors of Lorain, submitted a written protest challenging the referendum petition and the board's July 25, 2001 determination that the petition contained 1,584 valid signatures. The Osters submitted the protest to both the board and the city auditor. On August 9, the city auditor certified the sufficiency and validity of the referendum petition to the board. The auditor relied upon the board's July 25 determination and concluded that the petition contained 1,584 valid registered-voter signatures.
In their protest, the Osters challenged the validity of three categories of signatures: (1) the signatures of individuals who signed the petition when they were not registered electors; (2) the signatures on part-petitions circulated by individuals who were not registered electors at the time they circulated them; and (3) the signatures on those part-petitions in which the circulators knew that one or more individuals signing the petition were not registered electors at the time they signed.
According to the board's voter registration information, fifty-nine of the individuals whose signatures were challenged by the Osters signed the referendum petition before each person's application for registration and/or change of residence had been deemed satisfactory and eligible by the board. The board's voter registration records further established that fifty-eight of the individuals whose signatures were challenged by the Osters signed the referendum petition before each person's application for registration and/or change of residence had been filed with the board, and forty-four of these individuals were not deemed eligible by the board until after the July 6, 2001 petition-filing date. The board and the city had counted all of these as valid signatures because the registration applications had been filed with the board before the referendum petition was filed with the city auditor.
Of the seventy-one part-petitions, twenty-seven contained signatures of persons who had informed the circulator that they were not registered with the board or had changed their residence since the last time they had voted. These part-petitions contained a total of six hundred eighty-four signatures. Regarding these part-petitions, the circulators knew that these persons' applications for registration and/or change of residence had not been filed with the board when they were allowed to sign the petition, but the circulators believed that each application would be filed with the board prior to the filing of the referendum petition with the city auditor.
Three of the petition circulators were not registered to vote until after they had obtained signatures. Their applications for registration, however, were filed with the board before the petition was filed with the city auditor. The Osters challenged the one hundred and four signatures obtained by these circulators before the circulators were registered electors.
On August 30, 2001, the board held a hearing on the Osters' protest, and at the conclusion of the hearing, the board denied the protest. During the hearing, the board's deputy director testified that board employees time-stamp registration applications upon their submission to the board, and that the applications are then distributed to employees for processing. At the time that the board received the petition here, they had employees on vacation, so some of the applications were not processed on the same day that they had been received. The board authorized the placement of the referendum of Ordinance No. 77-01 on the Lorain ballot for the November 6, 2001 general election.
On September 10, 2001, relators filed this action for a writ of prohibition to prevent respondents, Lorain County Board of Elections and the city of Lorain, from proceeding with the November 6 referendum on Ordinance No. 77-01. We granted the committee's motion to intervene as a respondent, and the parties filed evidence and briefs pursuant to the expedited election schedule of S.Ct. Prac.R. X(9).
This cause is now before the court for a consideration of the merits.
The Osters seek a writ of prohibition to prevent respondents from submitting the referendum on Lorain Ordinance No. 77-01 to the electorate at the November 6, 2001 general election. "In extraordinary actions like prohibition challenging the quasi-judicial decision of a board of elections, the applicable standard is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions." State ex rel. Baur v. Medina Cty. Bd. of Elections (2000), 90 Ohio St.3d 165, 166, 736 N.E.2d 1, 2, quoting State ex rel. Crossman Communities of Ohio, Inc. v. Greene Cty. Bd. of Elections (1999), 87 Ohio St.3d 132, 135-136, 717 N.E.2d 1091, 1095.
The Osters claim that the board abused its discretion and disregarded applicable law by denying their protest and placing the referendum issue on the November 6, 2001 election ballot. More specifically, the Osters initially assert that the board erroneously counted as valid signatures of persons who were not registered as electors with the board on the date they signed the petition and who were also not qualified electors on the date the petition was filed with the Lorain City Auditor.
The Osters claim that under Section 1, Article V of the Ohio Constitution, R.C. 3503.01, and R.C. 3503.06, the fifty-eight signatures of persons who signed the petition before each person's application for registration and/or change of residence had been filed with the board were invalid and should not have been counted as valid by the board.
Under the Ohio Constitution, "[e]very citizen of the United States, of the age of eighteen years, who has been a resident of the state, county, township, or ward, such time as may be provided by law, and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections." Section 1, Article V; see, also, R.C. 3503.01, which provides comparable qualifications for electors in order to vote in the precinct in which the elector resides.
Neither Section 1, Article V of the Ohio Constitution nor R.C. 3503.01, however, addresses qualifications of persons to sign referendum petitions. In other words, neither of these provisions requires that otherwise qualified persons must be registered to vote for thirty days before they are qualified to sign referendum petitions.
The Osters next cite R.C. 3503.06 in support of their contention that these fifty-eight signatures are invalid. R.C. 3503.06 provides that "[n]o person shall be entitled to vote at any election, or to sign * * * any declaration of candidacy or any nominating, initiative, referendum, or recall petition, unless the person is registered as an elector." (Emphasis added.)
The board and the committee relied on R.C. 3501.38, which specifies:
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