State v. Jackson

• Decision Date: 14 July 2004
• Docket Number: Case No. 2003-0408.
• Citation: 102 Ohio St.3d 380,811 NE 2d 68
• Parties: The State of Ohio, Appellant, v. Jackson, Appellee.
• Court: Ohio Supreme Court

102 Ohio St.3d 380

2004-Ohio-3206

811 NE 2d 68

2004-Ohio-3206

The State of Ohio, Appellant, v. Jackson, Appellee.

Case No. 2003-0408.

In the Supreme Court of Ohio.

Submitted January 14, 2004.

Decided July 14, 2004.

LUNDBERG STRATTON, J.

I. Introduction

{¶1} In this case, we must determine whether Ohio law precludes using ballots as evidence of ballot tampering. The appellate court held that the "secret ballot rule" precluded use of the ballots as evidence. We disagree and reverse the judgment of the court of appeals.

II. Statement of the Case

{¶2} Pursuant to R.C. 3509.08, which permits election board members to assist physically infirm electors in voting, the Cuyahoga County Board of Elections sent two board employees, Linda Weaver, a Democrat, and appellee John Jackson, a Republican, to help physically infirm residents at a Cleveland nursing home mark their ballots. Weaver became suspicious that Jackson was marking the ballots contrary to some of the residents' intentions. For example, one resident allegedly intended to vote her entire ballot Democratic, but Weaver noticed that the ballot reflected a vote for George W. Bush, who was the Republican candidate for President of the United States.

{¶3} Upon returning to work on Monday October 23, 2000, Weaver reported her suspicions to the board. Following an investigation, the Cuyahoga County Prosecuting Attorney's Office secured a search warrant authorizing investigators to seize the allegedly tainted ballots.

{¶4} Subsequently, a grand jury indicted Jackson on five counts of tampering with ballots in violation of R.C. 3599.26 and one count of misconduct of an employee of the board of elections in violation of R.C. 3599.16. Jackson filed a motion to suppress the ballots. Jackson's motion relied on provisions in the Revised Code, Section 1, Article V of the Ohio Constitution (right to vote), and Section 2, Article V of the Ohio Constitution (all elections must be by ballot). After oral argument, the trial court granted Jackson's motion to suppress the ballots.

{¶5} The state appealed, and in a two-to-one decision, the court of appeals affirmed the trial court's judgment. The majority ruled that the "secret ballot rule" precluded disclosure of ballots and that because it contained no exception to the secrecy requirement, there was no authority to permit the ballots to be used as evidence.

{¶6} This cause is now before this court pursuant to the acceptance of the state's discretionary appeal.

III. Analysis

A. Constitutional Claims

1. Standing

{¶7} The state argues that Jackson lacked standing to bring a Fourth Amendment claim because he has no reasonable expectation of privacy in the ballots. Jackson counters that his constitutional claim for suppressing the ballots does not originate in the Fourth Amendment, and therefore standing is not an issue, because the expectation of privacy is not required outside the context of Fourth Amendment inquiries. We agree with Jackson.

{¶8} The Fourth Amendment protects persons from "unreasonable searches and seizures" by the government. State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, 364, 588 N.E.2d 116. Under the exclusionary rule, evidence seized in violation of the Fourth Amendment will result in its suppression. State v. Jones (2000), 88 Ohio St.3d 430, 434, 727 N.E.2d 886. In order to have standing to challenge a search or seizure, the defendant must have a reasonable expectation of privacy in the evidence seized. See Alderman v. United States (1969), 394 U.S. 165, 171-172, 89 S.Ct. 961, 22 L.Ed.2d 176.

{¶9} The ballots in this case were seized pursuant to a search warrant, and its validity was never seriously challenged by Jackson. Instead, Jackson asserts that Sections 1 and 2 of Article V of the Ohio Constitution require ballot secrecy. Thus, Jackson does not allege that the seizure was unreasonable but rather alleges that Sections 1 and 2 of Article V of the Ohio Constitution prohibit disclosure of the ballots and thus prohibit their use as evidence. Accordingly, we reject the state's argument that Jackson lacked standing under the Fourth Amendment to challenge admission of the ballots.

2. The Merits of Jackson's Constitutional Claim — Ballot Secrecy

{¶10} Jackson asserts that the Ohio Constitution substantively requires that a ballot must remain secret without qualification. Jackson relies on Sections 1 and 2, Article V of the Ohio Constitution. Section 1, Article V provides:

{¶11} "Every 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. Any elector who fails to vote in at least one election during any period of four consecutive years shall cease to be an elector unless he again registers to vote."

{¶12} Section 2, Article V provides:

{¶13} "All elections shall be by ballot."

{¶14} Generally speaking, in construing the Constitution, we apply the same rules of construction that we apply in construing statutes. Miami Cty. v. Dayton (1915), 92 Ohio St. 215, 223, 110 N.E. 726. Thus, the intent of the framers is controlling. If the meaning of a provision cannot be ascertained by its plain language, a court may look to the purpose of the provision to determine its meaning. Castleberry v. Evatt (1946), 147 Ohio St. 30, 33 O.O. 197, 67 N.E.2d 861, paragraph one of the syllabus.

{¶15} Section 1, Article V of the Ohio Constitution merely indicates that every citizen who has certain qualifications has a right to vote. Section 2, Article V merely requires that "all elections shall be by ballot." Clearly, Section 1 has nothing to do with this case. Section 2 does not expressly provide that ballots must always remain secret. Therefore, we must look beyond the language of Section 2 to determine its intent.

{¶16} Although this court has never had occasion to answer the particular question that is before us today, there are several cases that we find instructive on the issue of ballot secrecy.

{¶17} In 1896, this court, in interpreting Section 2, Article V of the Ohio Constitution, stated: "No form of ballot is prescribed by the constitution, and therefore the general assembly is free to adopt such form as in its judgment shall be for the best interests of the state. The election must be by ballot, but the form of the ballot, so long as it is a ballot, is left to the sound discretion of the general assembly." State ex rel. Bateman v. Bode (1896), 55 Ohio St. 224, 229, 45 N.E. 195. This proclamation, however, begged the question "What does voting by `ballot' mean?"

{¶18} In 1909, the state sought to purchase voting machines to tabulate the votes. A Cleveland taxpayer filed suit, alleging that use of voting machines would violate the Constitution's requirement that all elections be by ballot. State ex rel. Karlinger v. Bd. of Deputy State Supervisors of Elections (1909), 80 Ohio St. 471, 89 N.E. 33. The court in Karlinger recognized that there had been little doubt since the adoption of the Constitution in 1802 that ballot meant "printed or written expression of the voter's choice upon some material capable of receiving and reasonably retaining it, prepared or adopted by each individual voter and passing by the act of voting from his exclusive control into that of the election officers, to be by them accepted as the expression of his choice." Id., 80 Ohio St. at 489-490, 89 N.E. 33. Adopting this literal definition of "ballot," the court held that use of voting machines violated the requirement to vote by ballot because the "card boards are attached to the machines bearing the names of candidates and the propositions and amendments upon which the electors are to express a choice. These remain attached to the machine for the information of all voters. They do not pass into the control of any voter, nor by the act of voting into the control of the officers of the election. To speak of such a card board as the ballot of the constitution is obviously paying but mock deference to that instrument." Id., 80 Ohio St. at 490-491, 89 N.E. 33.

{¶19} In 1929, the validity of voting machines came before this court again in State ex rel. Automatic Registering Machine Co. v. Green (1929), 121 Ohio St. 301, 168 N.E. 131. Again opponents of voting machines alleged that voting by machine contravened Section 2, Article V of the Ohio Constitution. However, the court declined to follow the literal definition of "ballot" adopted in Karlinger. Citing numerous laws from foreign jurisdictions, the court in Green recognized that "ballot" "means secret voting in contradistinction to viva voce by voice, or open voting." Id., 121 Ohio St. at 308, 168 N.E. 131. Thus, the court in Green held:

{¶20} "A constitutional requirement that all elections be by ballot does not invalidate an otherwise legal enactment providing for the use of voting machines in elections. The term `ballot' designates a method of conducting elections which will insure secrecy, as distinguished from open or viva-voce voting." (Emphasis added.) Green, 121 Ohio St. 301, 168 N.E. 131, paragraph one of the syllabus.

{¶21} We believe that Section 2, Article V aspires to secrecy of voting. We find it implausible that the framers adopted this provision for the purpose of imposing for eternity the type of ballot used 1851. Certainly, the framers had to foresee that the design and or implementation of the ballot would evolve over time. That being so, the term "ballot" must still have some meaning. We look to Green to answer this question. We believe that "ballot" must mean "secret voting." Accordingly, pursuant to Green, we hold that Section 2, Article V aspires to "a method of conducting elections which will ensure secrecy."

{¶22} However, a constitutional provision alone has no force unless...