State ex rel. Walsh v. Ashtabula Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Walsh et al. v. Board of Elections of
Ashtabula County.
[Cite as State ex rel. Walsh v. Ashtabula Cty. Bd. of
Elections (1992), Ohio St.3d .]
Elections -- Elector who had been continuously registered for
thirty days or more, but who had not been registered at
her current address for thirty days or more when she
signed and circulated her statement of candidacy and
circulator's statement, was an elector qualified to vote
for the office she sought when she signed the declaration
of candidacy and was a "qualified elector" when she signed
the circulator's statement.
(No. 92-1859 -- Submitted and decided October 14, 1992 --
Opinion announced December 9, 1992.*)
In Mandamus.
Relator, Patricia M. Walsh, timely filed a nominating
petition and statement of candidacy for County Court Judge,
Western Area, Ashtabula County. Respondent, the Ashtabula
County Board of Elections, rejected her petition, and she filed
a statutory protest. Respondent conducted a hearing on the
protest on September 9, 1992, and affirmed its rejection of the
petition and statement of candidacy.
On September 15, 1992, relator filed this action seeking a
writ of mandamus to compel respondent to accept her petition
and statement of candidacy for the office of County Court
Judge, certify her as a candidate for that office, and place
her name on the ballot for the general election to be held
November 3, 1992.
On October 2, 1992, Secretary of State Bob Taft moved to
intervene as of right pursuant to Civ.R. 24(A) as a relator and
urged allowance of the writ. We granted the motion to
intervene on October 14, 1992.

Patricia M. Walsh, pro se.
Lee I. Fisher, Attorney General, and Cherry Lynne Poteet,
Assistant Attorney General, for intervening relator.
Gregory J. Brown, Prosecuting Attorney, for respondent.

Per Curiam. For the reasons that follow we allow the
writ.
Relator and respondent have agreed to the following facts:
(1) That relator has resided in Rome Township, Ashtabula
County, since April 1990;
(2) that her residence is within the jurisdiction of the
office she seeks;
(3) that on July 31, 1992, relator filed a form with
respondent changing her voter registration from her prior
residence in Lake County to her current residence in Ashtabula
County;
(4) that relator's Lake County registration was in effect
since 1983 and was uncancelled at the time she filed the change
of residence form;
(5) that relator signed her statement of candidacy on
August 19, 1992, that she and others circulated her petitions
on August 19 and 20, 1992, and that respondent disputes only
relator's qualifications as a qualified elector;
(6) that if respondent had found that relator was a
"qualified elector and/or a qualified circulator elector," her
nominating petition would have contained sufficient signatures
under law; and
(7) that the Secretary of State advised respondent that
relator's petition should not be rejected, but the county
prosecuting attorney advised rejection.
Respondent rejected relator's statement of candidacy "due
to 'non-qualified elector' and 'non-qualified
circulator-elector'" status. R.C. 3513.261 requires the
statement of candidacy of an independent candidate to "* * *
contain a declaration made under penalty of election
falsification that the candidate * * * is an elector qualified
to vote for the office he seeks." It also requires a
circulator of a nominating petition to declare "* * * under
penalty of election falsification that he is a qualified
elector of the state of Ohio and resides at the address
appearing below his signature [t]hereto * * *."
The questions presented are whether an elector who had
been continuously registered for thirty days or more, but who
had not been registered at her current address for thirty days
or more when she signed and circulated her statement of
candidacy and circulator's statement, was an "elector qualified
to vote for the office [she] seeks," when she signed the
declaration of candidacy, and a "qualified elector" when she
signed the circulator's statement.
R.C. 3501.01(N) defines both "elector" and "qualified
elector," for the purpose of the election laws, as meaning "a
person having the qualifications provided by law to entitle him
to vote." Section 1, Article V, Ohio Constitution provides:
"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."
Read literally, the section allows anyone to vote who has

been registered for thirty days or more, if the other
qualifications have been met. However, the mere fact of
registration is not sufficient under the registration laws to
permit one to vote anywhere. R.C. 3503.01, the first paragraph
of which parallels and embellishes Section 1, Article V, states
in part:
"Every citizen of the United States who is of the age of
eighteen years or over and who has been a resident of the state
thirty days next preceding the election in which he offers to
vote, is a resident of the county and precinct in which he
offers to vote, and has been registered to vote for thirty
days, has the qualifications of an elector and may vote at all
elections in the precinct in which he resides." (Emphasis
added.)
Moreover, in In re Protest Filed by Citizens for the Merit
Selection of Judges, Inc. (1990), 49 Ohio St.3d 102, 105, 551
N.E.2d 150, 153, we stated:
"Although a person may be registered with the board of
elections, if that person has moved to a new residence, he or
she cannot be 'registered' as an elector unless that person has
satisfied the change-of-residence requirements of R.C. Chapter
3503."
In another part of that opinion, we defined "elector" and
"qualified elector" in terms of being registered at one's
current address:
"All of these provisions produce the conclusion that even
a previously registered elector who has changed residence may
not vote at any location unless he or she has filed a change of
residence notice with the board of elections. Stated another
way, such person is not an 'elector' or 'qualified elector'
unless his actual current residence is registered with the
board of elections. The voting residence is that residence
filed with the board of elections." (Emphasis added.) Id. at
104, 551 N.E.2d at 153.
The agreed facts indicate that relator had been
continuously registered for more than thirty days and was
registered at her current address when she signed her statement
of candidacy and circulator's statement. There is no dispute
over relator's age, citizenship, or thirty days of state
residence. Therefore, relator was an "elector" and a
"qualified elector" when she signed and circulated the
statement of candidacy. Neither the statutes nor In re Protest
requires that the thirty days of registration be at the current
address. Moreover, there is no assertion that she listed the
wrong address when she signed the circulator's statement.
Therefore, as a "qualified elector" who listed her correct
address, she was eligible to circulate her petitions, and the
respondent disregarded R.C. 3513.261 by finding otherwise.
To be a candidate, however, R.C. 3513.261 also requires a
person to declare that "he is qualified to vote for the office
he seeks." Again, the only objection respondent raises to
relator's statement of candidacy is that she was not registered
at her current address for thirty days or more before signing
the declaration. R.C. 3503.06 provides in part:
"No person shall be entitled to vote at any election, or
to sign any declaration of candidacy * * *, unless he is
registered as an elector."

R.C. 3503.07 then states the qualifications for
registering:
"Each person who will be of the age of eighteen years or
more at the next ensuing November election, who is a citizen of
the United States, and who, if he continues to reside in the
precinct until the next election, will at that time have
fulfilled all the requirements as to length of residence to
qualify him as an elector shall, unless otherwise disqualified,
be entitled to be registered as an elector in such precinct.
When once registered, an elector shall not be required to
register again unless his registration is canceled."
The Attorney General argues that if a person has complied
with R.C. 3503.07, he or she may sign a declaration of
candidacy. We agree.
There is no dispute over any of relator's qualifications
for registering listed in R.C. 3503.07 because it is agreed
that she has lived at her current address in the precinct since
1990. Therefore, relator was clearly qualified to register.
Being qualified to register, she was also qualified to change
her registration under R.C. 3503.16, which provides in part:
"Whenever a registered elector changes his place of
residence from one precinct to another within a county or from
one county to another, he shall report such change to the board
of elections.
"* * *
"Upon receipt of a change of residence notice, whether
directly from the applicant or from the registrar, deputy
registrar, or the precinct election officials under section
3503.11 of the Revised Code, the board shall compare the
applicant's signature with the original registration of such
applicant, and if such signature appears to be the same, entry
of such change of residence on the original registration cards
or forms, and on the registration lists, shall be made. Such
registrant shall be immediately notified by the board by mail
of the change so made."
R.C. 3503.11(A) then states:
"Persons qualified to register or to change their
registration may register or change their registration at the
office of the board of elections or at any permanent or
temporary branch registration office established by the board,
at any time such office is open except that no registration or
change in registration shall be made at any temporary branch
registration office after nine p.m. of the twenty-ninth day
preceding a primary or general election. Any registration or
change in registration made at the office of the board of
elections or at a permanent registration office later than the
thirtieth day preceding a special, primary, or general
election, or at a temporary branch registration office later
than the thirtieth day preceding the special election or later
than the twenty-ninth day preceding a primary or general
election, shall be invalid for that election, but shall be
valid for any subsequent election for which the registrant
qualifies as an elector."
By changing her registration on July 31, 1992, well before
the thirtieth day preceding the general election, relator
became eligible under R.C. 3503.07 to vote in the precinct
where she now resides, and thus eligible to vote for the office

she seeks. Such eligibility to vote and being an elector are
all that R.C. 3513.261 requires in order for a person to be
eligible to sign a declaration of candidacy.
Respondent argues that the thirty-day registration
requirement must be applied at the time relator signed her
declaration of candidacy and circulator's statement, but lacks
authority for such an interpretation of the law. Respondent
first cites R.C. 3501.38(A), a statute applicable to signers of
petitions, not candidates. The statute states:
"Only electors qualified to vote on the candidacy or issue
which is the subject of the petition shall sign a petition.
Each signer shall be a registered elector pursuant to section
3503.11 of the Revised Code. The facts of qualification shall
be determined as of the date when the petition is filed."
This statute is consistent with what we have previously
said. If a previously registered elector changes his or her
place of registration and then signs a petition only a few days
before it is filed, that signature would apparently be valid
because the signer would have been qualified to vote on the
candidacy or issue as of the filing date.
Respondent also cites State ex rel. Latimer v. Leonard
(1940), 65 Ohio App. 158, 18 O.O. 354, 29 N.E.2d 432, in which
a candidate allegedly moved from one precinct to another on
February 4 (although this was disputed and found by the board
of elections not to be a fact) and filed his declaration of
candidacy on March 4. The election was to be held May 14.
According to the Latimer court, G.C. 4785-30, the predecessor
statute of R.C. 3503.01, then stated, "[n]o person shall be
permitted to vote at any election unless he shall have been a
resident of the voting precinct 28 days next preceding the
election at which he offers to vote," and G.C. 4785-71, a
predecessor statute of R.C. 3513.07 required a candidate to
swear in the declaration of candidacy that "he is a qualified
elector in the ward and precinct in which [his stated] address
is located." Id. at 161, 18 O.O. at 355, 29 N.E.2d at 434.
The court concluded that "[a] qualified elector evidently
is one who is qualified, at any designated time, to exercise
the privilege of voting * * *" (id.); and further concluded
that:
"[It is] necessary that the relator should have lived
* * * [at his new address] at least twenty-eight days before
filing his declaration of candidacy, regardless of the date
upon which he caused the books of the board of elections to
conform to his actual residence by filing application for
transfer * * *." 65 Ohio App. at 162, 18 O.O. at 356, 29
N.E.2d at 434.
Latimer, if correct when decided, is no longer
applicable. There is currently no precinct -- residence
requirement for a person to become an independent candidate;
there is only a requirement that a person be an elector and be
eligible to vote for the office he seeks. If there were a
precinct -- residence requirement, then a candidate who had
lived in a precinct less than the required amount of time
before signing a declaration of candidacy could arguably be
accused of having sworn falsely. However, there is no such
residence requirement, and relator did not swear falsely when
she declared in her statement of candidacy that she (1) was an

elector, and (2) was qualified to vote for the office she seeks.
Similarly, in State ex rel. Barrett v. Leonard (C.P.
1941), 21 O.O. 355, 6 Ohio Supp. 345, also cited by respondent,
the Court of Common Pleas of Hamilton County held that the
signatures of persons who signed nominating petitions listing
their current addresses could not be counted, even though the
signers might have subsequently, and before the election,
changed the old addresses on their registrations at the board
of elections to the current addresses. Citing Latimer, the
court held that at the time they signed the petitions, the
signers were not registered electors whose signatures could be
counted under G.C. 4785-34, which then, as now (R.C. 3503.06),
stated that no person could vote or sign a declaration of
candidacy or nominating petition unless he or she was
registered as an elector. 21 O.O. at 358, 6 Ohio Supp. at 347.
As stated above, Barrett would be decided the same way
today. To have their signatures counted, signers of nominating
petitions must list the same address that appears on record at
the board of elections (R.C. 3501.38[C]). This case does not
establish respondent's theory that a statement of candidacy
cannot be signed before thirty days have passed after a change
of registration.
Respondent also cites In re Protest, supra, where we
stated:
"An elector must be 'registered' in order to either vote
or sign such petition on the day that he or she decides to
exercise the right. In either case, that person must have
filed a change of residence notice with the board of
elections." (Emphasis sic.) 49 Ohio St.3d at 106, 551 N.E.2d
at 154.
Again, relator had filed a change-of-residence notice
before signing and circulating her declaration of candidacy.
Thus, she was qualified on the day she signed her statement of
candidacy, and her actions conform to the requirements of In re
Protest.
Finally, respondent cites State ex rel. Higgins v. Brown
(1960), 170 Ohio St. 511, 11 O.O.2d 322, 166 N.E.2d 759, in
which this court disqualified a candidate who had not lived in
a precinct for forty or more days when he swore in his
declaration of candidacy prescribed under R.C. 3513.07 that his
"voting residence" was in that precinct. At that time, R.C.
3503.01 imposed a forty-day precinct -- residence requirement
for voting. The court found that "* * * at the time of such
sworn statement the candidate [was] not residing in such
precinct, [had] not resided there for 40 or more days and
[had] not even attempted to register as an elector * * *
[there]." Id. at paragraph five of the syllabus.
Higgins is also distinguishable. Here, relator was
registered at her "voting residence" at the time she signed her
statement of candidacy.1 Therefore, she was eligible to vote
for the office she seeks, satisfying the requirement to sign a
valid statement of candidacy.
In State ex rel. Schenk v. Shattuck (1982), 1 Ohio St.3d
272, 274, 1 OBR 382, 383, 439 N.E.2d 891, 893, we stated:
"'Words limiting the right of a person to hold office are
to be given a liberal construction in favor of those seeking to
hold office, in order that the public may have the benefit of

choice from all those who are in fact and in law qualified.'"
(Quoting from Gazan v. Heery [1936], 183 Ga. 30, 187 S.E. 371.)
In this case, respondent created a residence requirement
where none exists. In doing so, it disregarded the applicable
statutes cited herein that permit relator to change her
registration to her current address before signing a statement
of candidacy and thereby become a candidate, provided she
possessed the qualifications of an elector. Accordingly, we
allow the writ of mandamus and order respondent to accept
relator's petition and certify her as a candidate for the
office of Ashtabula County Court Judge, Western Area, on the
ballot for the general election to be held on November 3, 1992.
Writ allowed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.

FOOTNOTE
1 R.C. 3501.01(P) defines "voting residence" as "that
place of residence of an elector which shall determine the
precinct in which he may vote."

* We granted the writ in this case in an order dated October
14, 1992, "consistent with the opinion to follow." See 65 Ohio
St.3d 1426, 600 N.E.2d 244. We announce the "opinion to
follow" today.