OHIO MANUFACTURERS’ ASSOCIATION ET AL. v. OHIOANS FOR DRUG PRICE RELIEF ACT ET AL.
No. 2016-0313
Supreme Court of Ohio
August 15, 2016
147 Ohio St.3d 250 | 2016-Ohio-5377 | 64 N.E.3d 951
{¶ 1} This is an original action pursuant to
{¶ 2} For the reasons set forth below, we sustain the challenge in part. We hold that 10,303 signatures, including the signatures on all part-petitions circulated by Roy Jackson and Kacey Veliquette, were erroneously validated.
Background
{¶ 3} On December 22, 2015, the committee submitted approximately 10,029 part-petitions, purportedly containing 171,205 signatures, to the office of Ohio Secretary of State Jon Husted in support of an initiative to enact the “Ohio Drug Price Relief Act” as
{¶ 4} To qualify an initiative for the ballot, supporters must submit petitions that satisfy two criteria. First, the petitions must contain a number of valid
{¶ 5} Upon verifying a sufficient number of signatures, the secretary of state is required to transmit the proposed statute and initiative petitions to the General Assembly, as soon as it convenes, for consideration.
{¶ 6} Instead, on January 4, 2016, he issued Directive 2016-01, returning the part-petitions to the county boards with instructions to again review two aspects of them. First, the directive ordered the boards to determine whether petition signatures were improperly removed (i.e., crossed out) by unauthorized persons. And second, the directive ordered the boards to investigate whether circulator statements were invalid due to systematic signature overreporting (i.e., preaffixing the number of signatures purportedly witnessed by the petition circulators to part-petitions containing fewer actual signatures). Husted ordered the boards to complete this review and recertify their results by January 29, 2016.
{¶ 7} On February 4, 2016, Husted advised the committee that the petition contained 96,936 valid signatures, more than the 91,677 required. He also advised the committee that signatures from 47 counties met the constitutional threshold (more than the required 44) and that the constitutional requirements were “fully satisfied.” He transmitted the initiative and petition to the General Assembly.
Procedural History
{¶ 8} On February 29, 2016, OMA commenced this original protest action. The protest complaint identified three defects1 in the part-petitions which, OMA alleged, should cause them to be discounted in their entirety:
Contractors crossed out signatures on part-petitions, in violation of R.C. 3519.06(C) .- Some petition circulators listed nonresidential addresses as their permanent addresses, in violation of
R.C. 3501.38(E)(1) . - More than 1,400 part-petitions contain false circulator statements because they contain fewer signatures than the circulator attested to witnessing, in violation of
R.C. 3501.38(E) and3519.06(D) .
OMA requested an “order and/or judgment declaring” the part-petitions and signatures thereon invalid, and an “order and/or judgment” that the petition failed to meet the requirements of
{¶ 9} We issued an opinion denying the committee’s motion for judgment on the pleadings, 147 Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, and on June 1, 2016, OMA made an equivocal request for an evidentiary hearing, stating that the challengers “will not know for certain whether they need an evidentiary hearing until outstanding discovery is completed.” OMA never renewed this request and on August 15, 2016, withdrew the request.
{¶ 10} On May 13, 2016, OMA filed a motion for partial summary judgment. We deny that motion as moot. The parties have submitted merit briefs and evidence, and the case is ripe for adjudication on the merits.
Analysis of the Alleged Petition Defects
First Allegation: Signature Deletions
{¶ 11} Ashland County part-petition No. 000007 is a typical example of a signature deletion. The statement of circulator Larry Boyce indicates that he witnessed 28 signatures. And indeed, Ashland County part-petition No. 000007 has a signature on each of its 28 lines. However, one signature, on line 2, has been blacked out with a marker. In its review, the board of elections determined that two signatures—those on lines 4 and 21—were invalid. The board therefore certified 25 valid signatures. The principal claim in this protest is that Ashland County part-petition No. 000007, and thousands of similar part-petitions, should be invalidated in their entirety, based on the theory that someone other than the circulator or signer blacked out at least one signature.
{¶ 12} We reject this aspect of the challenge.
{¶ 13} The Revised Code affirmatively permits three persons to delete a signature from a petition, so long as the deletion occurs before the petition is filed: (1) the circulator, (2) the signer, or (3) the “attorney in fact” for any signer.
{¶ 14} OMA’s merit brief relies primarily on the testimony of Pamela Lauter, who coordinated some of the petition circulators. Lauter described a process that she called “purging the deck,” which involved persons other than the circulators reviewing the part-petitions after the circulators had turned them in and removing invalid signatures by highlighting them with a black, washable magic marker, not crossing them out. But she insisted that the signatures remained visible after the highlighting and denied ever using a black “Sharpie” marker that would have made the signatures unreadable. Unfortunately, the specific “highlighted” part-petitions she discussed were not identified for the record.
{¶ 15} Other evidence confirms that the circulators were not responsible for the deletions of this type. Four petition circulators, Vikki Moore, Marquita Barnhouse, Gloria Torrence, and Rebecca Douglas, denied crossing names off the part-petitions they circulated. And Angelo Paparella, president and owner of PCI Consultants, Inc., the head contractor for the petition drive, testified that PCI operates an out-of-state processing center at which validators review the part-petitions and strike out invalid signatures before returning the part-petitions to the client.
{¶ 16} The evidence therefore shows that signature deletions occurred that were not authorized by
{¶ 17} The limited grant of authority to remove a signature serves two purposes: it protects the ability of petition signers to change their minds and remove their signatures, so long as they do so in a timely manner. And it protects circulators from the potential Hobson’s choice that would arise if they discover that a petition signature is invalid: either (1) submit a false
{¶ 18} By implication,
Most importantly, [these statutes] serve to protect the registered Ohio voters exercising their right under the state constitution to petition state government (in this case, to propose a state law for consideration by the General Assembly) from having their signature improperly removed from a part-petition.
To return to the example of Ashland County part-petition No. 000007, the logical remedy for an unauthorized deletion would be to count the crossed-out signature (assuming it is otherwise valid), not to invalidate the 25 indisputably valid signatures from eligible voters. Adopting OMA’s position would have the perverse effect of rewarding a petition opponent when a part-petition has been unlawfully altered.
{¶ 19} Petition proponents, who want to submit as many valid signatures as possible, have no incentive to delete signatures improperly. Certainly OMA has identified no theory as to how petition advocates would benefit from making unauthorized cross-outs or how such a practice jeopardizes the interests discussed above. According to Lauter, circulation coordinators highlighted signatures for “payroll purposes,” that is, to avoid paying circulators for invalid signatures on the front end, rather than having to “charge-back” the expense. Indeed, the Butler County Board of Elections reported after the re-review that 79.59 percent of the marked-out signatures were facially invalid and would have been declared invalid by the board if they had not already been stricken.
{¶ 20} Invalidating the entire part-petition because of an unauthorized deletion would serve no public interest and would turn the implicit protection afforded by
{¶ 21}
No initiative or referendum part-petition is properly verified if it appears on the face thereof, or is made to appear by satisfactory evidence:
(A) That the statement required by
section 3519.05 of the Revised Code is not properly filled out;(B) That the statement is not properly signed;
(C) That the statement is altered by erasure, interlineation, or otherwise;
(D) That the statement is false in any respect;
(E) That any one person has affixed more than one signature thereto.
OMA asserts that the deletion of signatures violated
{¶ 22} The flaw in this argument is that the phrase “the statement,” as used throughout the election code, is a term of art: it refers specifically to the circulator’s attestation as to the number and validity of signatures on the part-petition. And the signature pages are not part of the attestation statement.
{¶ 23} The term “statement” first appears in
{¶ 24} OMA would have us hold that
{¶ 25} But OMA’s statutory construction would create redundancies and contradictions in the Revised Code. If
{¶ 26} It is generally our obligation to defer to the secretary of state’s reasonable interpretation of an election statute. State ex rel. Cornerstone Developers, Ltd. v. Greene Cty. Bd. of Elections, 145 Ohio St.3d 290, 2016-Ohio-313, 49 N.E.3d 273, ¶ 16. However, Husted has vacillated on his interpretation of this statute.
{¶ 28} Instead, he ordered the boards to conduct their re-review, but, of critical importance, he did not instruct the boards to disqualify petitions containing unauthorized deletions. In fact, he gave no clear guidance on that point. The guidance that he did provide, in Directive 2016-01, quoted above, strongly suggested that unauthorized deletions pose a problem because they potentially remove valid signatures that should be counted—not because they invalidate the entire part-petitions that contain them.
{¶ 29} But then, at the conclusion of the re-review, Husted appears to have changed his position. He took the extraordinary step, based on Lauter’s testimony about “purging the deck,” of unilaterally invalidating every part-petition circulated in Cuyahoga County by DRW Campaigns, L.L.C., and Ohio Petitioning Partners, L.L.C. And he explained his decision by using the legal reasoning urged by OMA. He also endorsed OMA’s statutory construction in his memorandum in response to the committee’s motion for judgment on the pleadings. Given this history, we hold that the secretary of state has not announced a definitive statutory interpretation that warrants our deference.
{¶ 30} In addition, this aspect of OMA’s challenge fails for lack of evidence. OMA’s complaint asserts that there are signature strike-throughs on approximately 5,598 part-petitions. The strike-through problem regarding 4,579 of those part-petitions allegedly invalidates 63,759 signatures, according to a spreadsheet prepared by a litigation-support manager of the law firm representing OMA. But OMA has not submitted evidence regarding who deleted those signatures. This evidence would not be difficult to compile: if the number of signatures reported by the circulator in the statement includes the lines blacked out, then the logical inference is that someone else deleted the signatures after the part-petition left the circulator’s hands. But OMA has not done such an analysis. Rather, it merely asks the court to create a conclusive presumption of invalidity, one that
{¶ 31} This decision is consistent with Husted’s own actions at the end of the re-review. He invalidated signatures only from Cuyahoga County because he concluded that he “lack[ed] sufficient evidence to invalidate part-petitions beyond those in Cuyahoga County where the testimony was actually presented.” The evidence in the record before us is no stronger than the evidence available to the secretary of state, at least with respect to signatures collected in Franklin County, in Hamilton County, and throughout the state. For example, when Paparella, the head contractor for the petition drive, was shown copies of sample part-petitions during his deposition, he was unable to tell just from the ink used whether the strike-outs were done by employees at the processing center or were done by the circulators in the field or by field managers.
{¶ 32} We reject OMA’s first signature challenge.
Second Allegation: False Circulator Addresses
{¶ 33} OMA also challenges the number of valid signatures on the ground that four circulators allegedly submitted false information in their circulator statements.
Fifi Harper
{¶ 34} Harper was hired in 2015 to circulate part-petitions for the committee. On these part-petitions, she listed her address as “4022 East Greenway Road, # 11312 Phoenix, Arizona 85032” (“the Greenway address”). According to evidence submitted by OMA, the Greenway address is for “Pack Ship and Print Center,” a business in a “strip plaza.” Harper concedes in an affidavit that the Greenway address is a business facility that hosts mailboxes. The affidavit of the owner of the business at the Greenway address confirms that the building is not residential, that Harper does not live there, and that she rented mailbox no. 312 in August 2015.
{¶ 35} The requirement that a circulator provide a permanent address serves the important function of ensuring that a board of elections can contact the circulator in the event that complications arise during the verification process. See In re Protest of Brooks, 155 Ohio App.3d 370, 2003-Ohio-6348, 801 N.E.2d 503, ¶ 46 (3d Dist.) (stating that one reason petition circulators are required to state the address of the person or entity compensating them is so that the payor can be contacted if complications arise in the verification process). The evidence in the record demonstrates that Harper met this requirement. The mailbox at the Greenway address is, according to Harper, “the only location at which I can be contacted that is of a permanent, on-going nature” and “the only place from which when I am absent I have a specific present intention to return.” We therefore decline to invalidate the part-petitions that Harper circulated.
Kelvin Moore
{¶ 36} Moore’s declared address on part-petitions he circulated was 3143 West 33rd Street, Cleveland, Ohio. OMA submitted an affidavit from a private investigator, who states that “Dave” told him that he (Dave) owns the property, that only businesses are located there, and that no one named Kelvin Moore resides there. In a second affidavit, a process server states that he rang the buzzer for a suite in the secured building and a woman told him over the intercom that there was no Kelvin Moore in the building. Both affidavits constitute inadmissible hearsay. Because there is no admissible evidence in the record to impugn the address Moore gave, we decline to invalidate the part-petitions he circulated.
Roy Jackson and Kacey Veliquette
{¶ 37} Jackson listed his address on part-petitions he circulated as 2100 Brice Road, Reynoldsburg, Ohio. That address is the location of a Days Inn and Suites. Records from the Days Inn and Suites show that Jackson was a guest there in October 2015. The address Veliquette stated on the part-petitions she circulated was 1900 S. Ocean Blvd., Myrtle Beach, South Carolina. That address is the location of the Shady Rest Motel, which has no record of a person named Kacey Veliquette staying at the motel in 2015 or 2016 or being a permanent resident there. Therefore, the evidence establishes that Jackson and Veliquette listed nonpermanent, nonresidential addresses on their circulator statements.
{¶ 38} Rather than dispute this conclusion, the committee challenges the constitutionality of
{¶ 39} But while the record contains evidence establishing Harper’s lack of a permanent residence and her establishment of a permanent mailing address, it contains no comparable evidence of Jackson’s residential status. Thus, a factual predicate for an as-applied constitutional challenge to the statute has not been established.
{¶ 40} The record contains an affidavit from Veliquette explaining that she, too is a transient circulator. And her affidavit explains why she chose to put the address of the Shady Rest Motel on her circulator statement. But it does not establish that she could actually be contacted at that location. Therefore, her part-petitions could be deemed valid only if we were to rule that it is unconstitutional to require circulators to provide some means of locating them. To the contrary, we hold that such a requirement is a sufficient state interest to justify the statute under any level of scrutiny.
{¶ 41} We therefore hold that the part-petitions circulated by Jackson and Veliquette should not have been validated, and we invalidate all of the signatures contained on those part-petitions.
Third Allegation: Signature Overcounting
{¶ 42}
{¶ 43} The evidence establishes a substantial problem of overcounting. As an example, Allen County part-petition no. 000005 contains six signatures, five of which the board of elections counted as valid. The remaining 22 signature lines are blank. But the circulator statement indicates that the circulator witnessed 28 signatures. In addition, multiple circulators during hearings before boards of elections looked at part-petitions that they themselves had circulated and testified that the stated number of witnessed signatures—in those situations, as in this example, 28—was not in their handwriting.
{¶ 44} The requirement that a circulator state the number of signatures personally witnessed “is a protection against signatures being added later.” State ex rel. Loss v. Lucas Cty. Bd. of Elections, 29 Ohio St.2d 233, 234, 281 N.E.2d 186 (1972) (invalidating a candidate part-petition when the line indicating the total number of signatures witnessed was left blank). We are not dealing here with a case of minor or negligent miscounts. Systemic overcounts of the
{¶ 45} We therefore invalidate the part-petitions with overcounts, as specified in the next section.
Remedy
{¶ 46} For the reasons stated above, we deny OMA’s motion to strike and deny OMA’s motion for partial summary judgment as moot. Consistent with our opinion, we invalidate 297 signatures on the part-petitions submitted by Roy Jackson. We invalidate 632 signatures on the part-petitions submitted by Kacey Veliquette. And as to the part-petitions with overcounts, we invalidate 9,374 signatures.3 In total, OMA has demonstrated that 10,303 signatures that were counted as valid should not have been counted. The petition therefore contained 86,633 valid signatures, which means that it was short of the 91,677 signatures required by 5,044 signatures.
{¶ 47} Pursuant to
Motions denied and challenge sustained in part.
FRENCH, J., concurs, with an opinion.
O’CONNOR, C.J., concurs in part and dissents in part, with an opinion.
O’DONNELL, J., concurs in part and dissents in part, with an opinion joined by KENNEDY, J.
O’NEILL, J., concurs in part and dissents in part, with an opinion.
PFEIFER, J., dissents, with an opinion.
FRENCH, J., concurring.
{¶ 48} I agree with the court’s resolution in this case. I write separately, however, to raise a concern regarding the Ohio Constitution’s provisions for initiative petitions to enact laws.
{¶ 49} The Ohio Constitution reserves to the people of Ohio “the power to propose to the General Assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided.”
{¶ 50} This case highlights the unworkable timeline that
{¶ 51} As an illustration, consider the ten-day time period that
{¶ 52} The system is broken and calls for modern amendments to fix it. I respectfully ask the Ohio Constitutional Modernization Commission and the General Assembly to address these issues and prevent another situation like this from arising.
O’CONNOR, C.J., concurring in part and dissenting in part.
{¶ 54} But in the absence of any showing of fraud, I dissent from the court’s decision to sustain the allegation of signature “overcounting.” Going forward, the court’s decision to strike valid signatures in this case based on “overcounting,” with no showing of fraud, will have unintended consequences for every prospective candidate for any elected office in Ohio.
{¶ 55} Finally, I dissent from the court’s decision to require the secretary of state to return the initiative to the General Assembly. If the signatures are sufficient, “the amendment, proposed law, or law shall be placed on the ballot as required by law.”
O’DONNELL, J., concurring in part and dissenting in part.
{¶ 56}
{¶ 57} Clearly, Fifi Harper did not do that. The address she provided on the part-petitions she circulated is, in fact, a private mail box at “Pack Ship and Print Center,” a business in a commercial strip mall. It is not a residential address, and Harper never lived there. Rather, at the time she obtained that mail box, she lived at 4802 N. 12th Street, Apt. 2102, Phoenix AZ 85014-4094, the address that is apparently still listed on her Arizona driver’s license. It may be true, as Harper claims, that she no longer lives at that address and that she did not have any permanent residence at the time that she circulated the part-petitions at issue in this case, but that does not permit her to disregard Ohio’s election law by making the untrue representation in her circulator’s statement that a nonresidential address is a residential address. If she truly lacked a permanent residential address, then she should not have provided one, rather than knowingly listing a nonresidential address in violation of
{¶ 58} Thus, in my view, the part-petitions she circulated containing a false residential address are invalid and should be stricken in all respects.
{¶ 60} Accordingly, to that extent, I respectfully dissent.
KENNEDY, J., concurs in the foregoing opinion.
O’NEILL, J., concurring in part and dissenting in part.
{¶ 61} I concur in all aspects of the court’s opinion except for the remedy.
{¶ 62} We are currently 85 days before the election. Implementation of the remedy is not our job. Interpretation of the law is.
PFEIFER, J., dissenting.
{¶ 63} As I stated in my dissent in Ohio Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274 (“OMA I”), I would dismiss this case because this courts lacks jurisdiction. It lacks jurisdiction because the challenge procedure set forth in
Jurisdiction
{¶ 64}
{¶ 65} This court’s jurisdiction under
Overcounts
{¶ 66} Twice, the part-petitions in this case have been sent out to county boards of elections for verification. The county boards have painstakingly reviewed each signature on each part-petition and have verified that they are the signatures of registered voters. The professionals have done their jobs, determining that registered Ohio voters have signed the part-petitions calling for the Ohio Drug Price Relief Act to be submitted to the General Assembly for its consideration. The secretary of state has certified that there were sufficient petition signatures to merit the submission of the proposed law to the General Assembly. It was submitted to the General Assembly. More than six months later, this court, somehow, determines that that never happened.
{¶ 67} How the court gets to the conclusion has profound implications for future election cases. Most notably, this court invalidates around 9,000 signatures—which nobody disputes were genuine—because the circulators overstated the number of signatures contained on individual part-petitions. The term of art
If the number of signatures reported in the statement is equal to or greater than the total number of signatures not crossed out on the part-petition, then the board does not reject the part-petition because of the inconsistent signature numbers. [State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 65 Ohio St.3d 167, 602 N.E.2d 615 (1992).] Instead, the board must review the validity of each signature as usual.
Example: The circulator’s statement indicates that the circulator witnessed 22 signatures, but there are only 20 signatures on the petition.
Note: In determining whether the number of signatures reported by a circulator of a non-statewide candidate’s petition matches the number of signatures on that part petition, particularly with regard to crossed out signatures, board of elections should take care so as to not make a determination that is “too technical, unreasonable, and arbitrary” given the unique fact set of that petition and information available to the board, if any. [State ex rel. Schwarz v. Hamilton Cty. Bd. of Elections, 173 Ohio St. 321, 181 N.E.2d 888 (1962); State ex rel. Curtis v. Summit Cty. Bd. of Elections, 144 Ohio St.3d 405, 2015-Ohio-3787, 44 N.E.3d 261.]
(Boldface sic.)
{¶ 68} On the other hand, the same source states that when the circulator attests to having witnessed a lesser number of signatures than those that appear on the part-petition, the secretary of state’s policy is to strike the entire part-petition. Id. This difference in treatment at least makes intuitive sense: if a circulator states that he or she witnessed 20 signatures and there are 22 signatures on the part-petition, that means that there are two that he or she did not witness. How can the reviewing board of elections be expected to tell which signatures the circulator didn’t witness? On the other hand, if there are 22 signatures and the circulator states that he or she witnessed 28, the circulator has attested to having witnessed at least 22.
{¶ 69} When the secretary of state returned the part-petitions for re-review, he instructed the county boards of elections to carefully review overcounts:
The Ohio Supreme Court has accorded flexibility to circulators, providing that “* * * arithmetic errors will be tolerated, but only if the error does not promote fraud.” [State ex rel. Citizens for Responsible Taxation, 65 Ohio St.3d at 172.] The relevant example in the Election Official Manual recognizes that “arithmetic errors” may occur.
* * *
By their nature, however, “arithmetic errors” should be isolated, unintentional oversights.
The “over-reporting of signatures” (e.g., a circulator statement purporting to witness 28 signatures on a part-petition bearing only two signatures) is so strikingly prevalent in this submission that the suggestion that unintentional “arithmetic errors” are to blame strains credulity. This cannot be the result envisioned by case law; otherwise the exception would swallow the rule.
Secretary of State Directive 2016-01, at 2-3, http://www.sos.state.oh.us/SOS/Upload/elections/directives/2016/Dir2016-01.pdf (accessed Aug. 14, 2016).
{¶ 70} After that guidance, the part-petitions were reviewed again and ultimately certified by the secretary of state. Now those part-petitions are before this court.
{¶ 71} The secretary of state relied on this court’s decisions in explaining his policy on overcounts. We should follow our decisions, too. In State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 65 Ohio St.3d 167, 602 N.E.2d 615 (1992), this court held that the board of elections had improperly rejected five part-petitions for overcounting; in each instance the circulator statements “indicated one more signature than each part-petition actually contained.” Id. at 171. The court held that incorrectness in the signature count is not fatal to an entire part-petition:
R.C. 3501.38(E) , however, does not expressly mandate a correct signature total, and [State ex rel. Loss] implies that arithmetic error will be tolerated, but only if the error does not promote fraud. Indeed, Loss may explain why the Secretary of State instructed respondents here to reject an entire part-petition only where the circulator states a number “less than the total number of uncrossed out signatures” (emphasis sic) and to, in effect, overlook discrepancies in the number of signatures “in all other instances.”
{¶ 72} This court “accept[ed] the Secretary of State’s reading of the signature-total requirement, see State ex rel. Beck v. Casey (1990), 51 Ohio St.3d 79, 81, 554 N.E.2d 1284, 1286, and conclude[d] that respondents improperly rejected the instant five part-petitions for noncompliance with
{¶ 73} A few months ago in OMA I, this court dealt with respondents’ argument that as a matter of law, part-petitions can never be rejected on the basis of an overcount. Respondents relied on Citizens for Responsible Taxation, but this court’s opinion stated that “Citizens for Responsible Taxation did not hold that an overcount can never promote fraud.” OMA I, 147 Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, at ¶ 20. At that time, this court recognized that whether an overcount promotes fraud should determine whether the overcount should result in the disqualification of an entire part-petition. Today, any overcount results in complete disqualification.
{¶ 74} In OMA I, the court reviewed this court’s jurisprudence on how to treat undercounts; again, the presence of fraud is a determining factor:
In cases in which the circulator’s statement slightly undercounts the signatures, this court has ordered the entire part-petition counted, so long as there is no indication of fraud or material misrepresentation. State ex rel. Curtis v. Summit Cty. Bd. of Elections, 144 Ohio St.3d 405, 2015-Ohio-3787, 44 N.E.3d 261, ¶ 8; State ex rel. Schwarz v. Hamilton Cty. Bd. of Elections, 173 Ohio St. 321, 323, 181 N.E.2d 888 (1962). Only when the circulator knowingly submits an undercount has the court invalidated the entire part-petition. See, e.g., Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 13–14.
(Emphasis sic.) OMA I at ¶ 19.
{¶ 75} Has the longstanding practice of disqualifying undercounts and allowing overcounts been completely reversed? At the very least, shouldn’t the majority employ the “indication of fraud or material misrepresentation” test on the overcounts in his case?
{¶ 76} Instead, this court decides for the first time in this case that any overcount invalidates an entire part-petition. This court makes no attempt to determine whether fraud occurred in any instance or whether an error may have been one of arithmetic or a simple oversight. As an example, consider Lucas County part-petition No. 000285. The part-petition contains 27 signatures (19
{¶ 77} Instead of reviewing the individual part-petitions, this court has relied on an exhibit submitted as evidence by the challengers. That exhibit, according to a supporting affidavit, is a spreadsheet created by the “Litigation Support Manager” at Bricker & Eckler, L.L.P. (“Bricker”), the challengers’ counsel, “based upon Bricker’s review of the part-petitions.” The spreadsheet notes the instances in which Bricker has determined that a circulator attested that he or she witnessed 28 signatures when the part-petition did not contain 28 signatures. The spreadsheet also includes the number of valid signatures contained on each of those part-petitions, to make this court’s invalidation of signatures of registered voters easy.
{¶ 78} There are also a large number of part-petitions in this case containing just one signature, when the circulator has attested to witnessing 28. If the requirement that a circulator state the number of signatures personally witnessed “‘is a protection against signatures being added later.’ State ex rel. Loss v. Lucas Cty. Bd. of Elections, 29 Ohio St.2d 233, 234, 281 N.E.2d 186 (1972),” lead opinion at ¶ 44, why is the court disqualifying all the part-petitions that contain only one signature? Where are the signatures that could have been added later? They are not on the part-petitions.
Circulator Addresses
{¶ 80} The court disqualifies 632 signatures on the part-petitions submitted by Kacey Veliquette, a transient circulator. The lead opinion, paying extreme short shrift to respondents’ argument that the permanent-address requirement violates the First Amendment to the United States Constitution, concludes that “her part-petitions could be deemed valid only if we were to rule that it is unconstitutional to require circulators to provide some means of locating them.” (Emphasis sic.) Lead opinion at ¶ 40. But Veliquette has provided a way to locate her: paid circulators must provide “the name and address of the person employing the circulator to circulate the petition, if any.”
Remedy
{¶ 81} The court gives respondents ten days to gather additional signatures in support of their proposal petition, but to what end? First, we must overcome the absurdity of the court’s continued belief that the processes under
{¶ 83} Respondents have given up trying to get their initiative on the November 2016 ballot; they wrote in their “Notice of continued circulation of supplemental petition,” filed in this court on July 13, 2016:
Although Respondent Secretary’s actions adversely affected Petition Respondents’ ability to submit their Supplementary Petition before the deadline to appear on the November 2016 ballot, Petition Respondents have until September 2, 2016 to collect a sufficient number of signatures to place the Ohio Drug Price Relief Act on the 2017 general election ballot, which they plan to do.
{¶ 84} The four-month period for consideration of their proposal initiative by the General Assembly under
{¶ 85} The lead opinion’s remedy runs contrary to the curative process of
{¶ 86} Likewise, the additional signatures in this case, if certified by the secretary of state, should relate back to the secretary of state’s February 4, 2016 transmission of the proposal petition to the General Assembly. The fix would establish that the proposal was indeed properly before the General Assembly for its four-month review. The four-month review did happen, and it ended on June 4. The rest of the timetable should continue forward from that—leaving respondents until September 2, 2016, to file their supplementary petition to get on the 2017 ballot.
{¶ 87} But no, the lead opinion concludes, the proposal petition is fixed only as of the date the additional signatures are verified. But what if we were to apply that logic to a case in which a supplementary petition did not contain sufficient signatures 125 days before the election but the initiative supporters corrected that in the ten-day curative period? According to the lead opinion, the supple-
{¶ 88} The curative nature of the additional signatures relates back to the deficiency in the petition that they are curing. So respondents should have ten days to fix any deficiency, and that fix should relate back to the proposal submission to the General Assembly of February 4, 2016.
Conclusion
{¶ 89} The lead opinion states, “It is generally our obligation to defer to the secretary of state’s reasonable interpretation of an election statute. State ex rel. Cornerstone Developers, Ltd. v. Greene Cty. Bd. of Elections, 145 Ohio St.3d 290, 2016-Ohio-313, 49 N.E.3d 273, ¶ 16.” Lead opinion at ¶ 26. The secretary of state has determined that there were sufficient registered voters from the requisite number of counties who actually signed the part-petitions that were timely filed and twice checked by local, properly trained election officials to assure that the signatures matched the voter-registration cards. We should defer to that judgment.
{¶ 90} The sweeping reach of this per curiam opinion—handed down without parentage and without oral argument—marks a sea change for the Ohio Supreme Court. In ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, this court made it clear that Ohio citizens have little hope to meet the requirements to challenge enactments of the General Assembly in the courts of Ohio. Now, the court chooses to make it extremely difficult for Ohio citizens to even politely exercise their fundamental constitutional right to petition the General Assembly to take action on important matters affecting millions of Ohio citizens. The fallout from today’s decision will undoubtedly multiply the challenges to both state and local citizen petitions of all types as well as to the efforts of any citizen seeking to stand for election to public office. Any suggestion that our court’s decision is protecting Ohio citizens from election fraud is a complete fiction. What we have is a government protecting itself from its people. Today, the walls got higher.
Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Anne Marie Sferra, Nelson M. Reid, and James P. Schuck, for challengers.
Michael DeWine, Attorney General, Steven T. Voigt, Senior Assistant Attorney General, and Brodi J. Conover, Assistant Attorney General, for respondent Ohio Secretary of State Jon Husted.