Lead Opinion
{¶ 1} This is an expedited election action for a writ of mandamus to, among other things, compel the secretary of state to issue a directive to the county boards of elections that they must void any applications for absentee ballots accepted by election officials after the registration of persons but before the 30-day registration period has passed and to advise the boards of elections that 30 days must elapse following registration before an absentee-ballot application may be accepted from the registered person.
{¶2} After construing the pertinent constitutional and statutory provisions, including Section 1, Article V of the Ohio Constitution, and R.C. 3503.01, 3503.06, 3509.02, 3509.03, and 3509.04, we hold that respondent, the secretary of state, correctly instructed boards of elections that an otherwise qualified citizen must be registered to vote for 30 days as of the date of the election at which the citizen offers to vote in order to be a qualified elector entitled to apply for and submit an absentee ballot at the election, and that the citizen need not be registered for 30 days before applying for, receiving, or completing an absentee ballot for the election. Therefore, because relators cannot establish either a clear legal right to the requested extraordinary relief or a clear legal duty on the part of the secretary of state to provide it, we deny the writ.
Directive 2008-63
{¶ 3} On August 13, 2008, respondent, Secretary of State Jennifer Brunner, issued Directive 2008-63 to all county boards of elections. In this directive, the secretary of state provided the following instructions to boards of elections for processing voter-registration applications received the week immediately preceding the voter-registration deadline:
{¶ 4} “It is anticipated that the November 4, 2008, election will be the first election for which many Ohioans will register to vote, and other Ohioans will have
{¶ 5} “ * * *
{¶ 6} “Consequently, boards of elections can expect to receive large numbers of new and changed voter registrations, in the week immediately preceding the voter registration deadline for the 2008 general election, October 6, 2008. * * * Because part of that week coincides with the beginning of the absentee voting period for that election, the boards also should expect to receive large numbers of absentee ballot applications along with the registration applications. * * *
{¶ 7} “ * * *
{¶ 8} “ * * * [Tjhere are several days before the 2008 general election during which a person may appear at the board of elections office and simultaneously submit for that election applications to register to vote or to update an existing registration and to request an absentee ballot. As discussed above, a board of elections must first obtain from the person who presents himself or herself to vote during this period a completed voter registration or change of address form.
{¶ 9} “Boards of elections are required to develop procedures to immediately register the applicant and issue an absentee ballot to the newly registered elector of the county at the time of registration, reserving the right to delay registration and immediate absentee voting if a board is not satisfied as to the validity of the application and the applicant’s qualifications. Boards of elections utilizing satellite locations for early in-person absentee voting should develop sufficient procedures to enable them to comply with this directive as they would if in-person absentee voting were taking place at the board’s office.” (Emphasis added.)
{¶ 10} The secretary of state also issued a memorandum in which she reiterated that Directive 2008-63 “[Requires boards to develop procedures to immediately register an applicant and issue an absentee ballot to the newly registered elector of the county at the time of registration [djuring the overlap period.” The secretary of state additionally repeated that boards reserved the right “to delay registration and immediate absentee voting if a board is not satisfied as to the validity of the application and the applicant’s qualifications.”
Opinions of Prosecuting Attorneys
{¶ 11} Under R.C. 309.09(A), a county prosecuting attorney acts as the legal advisor for the county board of elections. Between August 25 and September 5, 2008, the prosecuting attorneys for Holmes, Miami, and Madison Counties advised their local boards of elections that Directive 2008-63 should be disregarded as unsupported by law to the extent that it orders boards of elections to permit same-day registration and absentee voting. According to the secretary of
Directives 2008-91 and 2008-92
{¶ 12} On September 11, 2008, the secretary of state issued Directives 2008-91 and 2008-92 to the boards of elections. In Directive 2008-91, the secretary of state again noted that “at least a five-day ‘overlap’ period exists during which a voter may register to vote and receive an absentee ballot when registration and the ballot request are made in person at the board of elections or at its satellite office established for in person absentee voting.” In Directive 2008-92, the secretary of state ordered that all previous directives, which would include Directives 2008-63 and 2008-91, were effective on September 12, 2008, the date of an amendment to R.C. 3501.053 classifying directives as either temporary or permanent, “unless subsequently and specifically superseded, revoked or replaced by a subsequent directive of the Secretary of State, whether temporary or permanent.”
Expedited Election Case
{¶ 13} Relators, Rhonda L. Colvin and C. Douglas Moody, are qualified electors of the state of Ohio. On September 12, 2008, relators filed this expedited election action for a writ of mandamus to compel Secretary of State Brunner to “issue a Directive to the County Boards of Election[s] that they must void any applications for absent voters’ ballots that were accepted by the election officials] following the registration of voters and prior to the lapsing of the thirty (30) day required period under Ohio law” and to “issue a clarifying Directive to the County Boards of Elections reiterating that thirty (30) days must elapse, consistent with the Revised Code, before an application for absent voter’s ballot may be accepted by the election official following the registration of a voter, and clarifying that Directive 2008-63 should be construed consistent with Ohio law and does not change or modify the requirement under Ohio law that thirty (30) days must elapse before an application for an absent voter’s ballot may be accepted by the election official following the registration of a voter.” The secretary of state filed an answer, and the parties submitted evidence and briefs pursuant to the expedited election schedule in S.Ct.Prac.R. X(9).
{¶ 14} This cause is now before the court for its consideration of the merits.
{¶ 15} Relators have filed a motion to strike the amicus curiae memorandum of Iraq and Afghanistan Veterans of America and Veterans for America. We grant the motion and strike the memorandum because the memorandum was not served by personal service, facsimile transmission, or e-mail, as required by the Rules of Practice, and there is not enough time to allow an extension of briefing for proper service. See, e.g., S.Ct.Prac.R. X(8) and (9), VI(6), and XIV(2)(A)(1), (B)(3), and (D)(2). Service by mail in an expedited election case is not acceptable. See State ex rel. McCord v. Delaware Cty. Bd. of Elections,
Jurisdiction
{¶ 16} The secretary contends that this court lacks subject-matter jurisdiction over relators’ mandamus claim because it is simply a disguised action for a declaratory judgment that Directives 2008-63, 2008-91, and 2008-92 are unlawful and for a prohibitory injunction preventing the secretary of state from implementing the directives.
{¶ 17} “It is axiomatic that ‘if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus and must be dismissed for want of jurisdiction.’ ” State ex rel. Obojski v. Perciak,
{¶ 18} ‘We have applied this jurisdictional rule to expedited election cases by examining the complaint to determine whether it actually seeks to prevent, rather than compel, official action.” State ex rel. Evans v. Blackwell,
{¶ 19} Although some of the relief requested by relators could be interpreted to seek the prevention of the application of the secretary of state’s challenged directives, relators primarily seek to compel the secretary to comply with her statutory duties to provide appropriate instructions consistent with election laws.
{¶ 20} As relators observe, we have expressly recognized that if the secretary of state “has, under the law, misdirected the members of the boards of elections as to their duties, the matter may be corrected through the remedy of mandamus.” State ex rel. Melvin v. Sweeney (1950),
{¶ 21} The secretary claims that we subsequently overruled or clarified our holding in Melvin in State ex rel. Hodges v. Taft (1992),
{¶ 22} “While a writ cannot issue against the Secretary of State for lack of a clear legal duty, it is apparent that the advice given in respondent Taft’s Directive No. 91-40 regarding circulator compensation statements is contrary to the commands of R.C. 3519.06 concerning verification. It would be unrealistic to contend that the boards of elections could ignore the secretary’s advice; there is authority that the boards were required to follow it. * * * On the other hand, the circulator statement requirements of R.C. 3519.05 and 3519.06 may, as amicus curiae Ohio Citizen Action argues, be an unwarranted restriction or limitation on the right of initiative prohibited by Section lg, Article II [of the Ohio Constitution]. The answer to these issues does not, however, lie in the issuance of a writ absent the necessary grounds therefor. They may be addressed in an action for declaratory judgment pursuant to R.C. Chapter 2721. Indeed, the prohibitive relief requested by relators is more suited to declaratory judgment or injunction than to mandamus, which is a command to perform an affirmative act.” Id. at 8,
{¶ 23} Hodges, however, did not purport to either overrule or clarify Melvin. In fact, our holding in Melvin is not even discussed. Notably, in Hodges, we did not determine whether the secretary’s challenged directive was correct. Id. at 8,
{¶ 24} Therefore, in accordance with our holding in Melvin, we reject the secretary’s argument and find that we have jurisdiction to consider relators’ mandamus claim.
Laches
{¶25} The secretary of state and some of the amici curiae next argue that laches bars relators’ mandamus claim. “If relators in election cases do not
{¶ 26} Relators knew or should have known about the secretary of state’s Directive 2008-63 around the time it was issued on August 13. Yet they waited 30 days until September 12 to file this expedited election case to challenge the propriety of that directive and subsequently issued directives. See State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000),
{¶ 27} But “we generally require a showing of prejudice before we apply laches to bar a consideration of the merits of an election case.” State ex rel. Brinda v. Lorain Cty. Bd. of Elections,
{¶ 28} Relators’ delay in filing this expedited election case did not cause this case to become an expedited election case under S.Ct.Prac.R. X(9), which provides an accelerated schedule for the submission of a response, evidence, and briefs when an original action relating to a pending election is filed within 90 days before the election. This case would still be an expedited election case governed by S.Ct.Prae.R. X(9) even if relators had filed this case on the same day that the secretary issued Directive 2008-63. Therefore, the secretary’s ability to prepare and defend against relators’ mandamus claim has not been compromised by the delay.
{¶ 29} Nor did the delay impair any election board’s ability to prepare, print, and distribute appropriate ballots because of the expiration of the absentee-ballot deadline. This case was fully briefed before the passage of that deadline. See Brinda,
{¶ 30} Therefore, laches does not bar relators’ mandamus claim.
Mandamus
{¶ 31} “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,
General Duties of the Secretary of State
{¶ 32} The secretary of state is the chief election officer of the state. 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,” “[prescribe 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).
{¶ 33} Relators contend that the secretary of state has a duty under these provisions to issue a new directive correcting her previous directives insofar as they require boards of elections to permit newly registered persons to apply for, receive, and submit absentee ballots before they are registered for at least 30 days.
Requirements to Apply for, Receive, and Submit Absentee Ballots
{¶ 34} Absentee ballots “shall be printed and ready for use on the thirty-fifth day before the day of the election,” R.C. 3509.01, which is September 30 for the November 4 election. The registration deadline for that election is Monday, October 6. See R.C. 3503.19(A) and 1.14. The secretary’s directives were addressed to this overlap period by authorizing newly registered electors within this period to apply for, receive, and submit absentee ballots.
{¶ 36} “Upon receipt by the director of elections of an application for absent voter’s ballots that contain[s] all of the required information * * *, the director, if the director finds that the applicant is a qualified elector, shall deliver to the applicant * * * proper absent voter’s ballots.” R.C. 3509.04(B). “Any qualified elector may vote by absent voter’s ballots at an election.” R.C. 3509.02(A).
Qualified Electors: 30-Day Registration Requirement Applies to Date of Election
{¶ 37} For purposes of an elector’s qualification to apply for an absentee ballot, an elector’s qualification to vote by absentee ballot, and an elections director’s determination whether an applicant is a qualified elector, R.C. 3501.01(N) defines “elector” or “qualified elector” as “a person having the qualifications provided by law to be entitled to vote.” See also R.C. 3501.01(0) (“ ‘Voter’ means an elector who votes at an election”).
{¶ 38} Relators cite Section 1, Article V of the Ohio Constitution and R.C. 3503.01 in support of their contention that persons must be registered for 30 days before they are qualified to apply for an absentee ballot or to vote by absentee ballot at an election, or for elections officials to determine if they are entitled to an absentee ballot.
{¶ 39} Section 1, Article V of the Ohio Constitution provides:
{¶ 40} “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.” (Emphasis added.)
{¶ 41} R.C. 3503.01(A) similarly provides:
{¶ 42} “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 immediately preceding the election at which the citizen offers to vote, is a resident of the county and precinct in which the citizen 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 the citizen resides.” (Emphasis added.)
{¶ 43} In construing these provisions, we must “read words and phrases in context according to the rules of grammar and common usage.” State ex rel. Lee
{¶ 44} For the following reasons, after so construing these and related provisions, we hold that — in accordance with the secretary of state’s directives — an otherwise qualified citizen must be registered to vote for 30 days as of the election in which the citizen offers to vote in order to be a qualified elector, but need not be registered for 30 days before applying for, receiving, or completing an absentee ballot.
{¶ 45} First, neither Section 1, Article Y of the Ohio Constitution nor R.C. 3503.01(A) expressly ties the 30-day registration period to any of the dates relators advocate, i.e., the dates newly registered persons apply for, receive, or submit absentee ballots. We cannot generally add a requirement that does not exist in the Constitution or a statute. See State ex rel. Columbia Reserve Ltd. v. Lorain Cty. Bd. of Elections,
{¶ 46} Second, because these provisions are silent concerning the date by which a citizen must have been registered for the specified 30 days to be entitled to vote at an election, we may apply the in pari materia rule of construction. State ex rel. Herman v. Klopfleisch (1995),
{¶ 47} R.C. 3503.06 pertains to the same subject matter and specifies the registration and residency periods for voting and certain other acts by expressly providing that the determinative date for the 30-day registration requirement is “at the time of the next election”:
{¶ 48} “No person shall be entitled to vote at any election * * * unless the person is registered as an elector and will have resided in the county and precinct where the person is registered for at least thirty days at the time of the next election.” (Emphasis added.)
{¶ 49} Construing R.C. 3503.06 in pari materia with Section 1, Article V of the Ohio Constitution and R.C. 3503.01, we conclude that the person must be registered for at least 30 days at the time of the November 4 election in order to be entitled to vote at that election. Notably, R.C. 3503.06 makes no distinction between entitlement to vote in person or by absentee ballot at an election, so its
{¶ 50} Relators suggest in their reply brief that R.C. 3503.06 is inapplicable because it “does not purport to be an exhaustive statement of the requirements to be a qualified elector.” But although the statute does not — as relators observe— refer to constitutional or R.C. 3503.01 requirements that a qualified elector be a citizen of the United States and at least 18 years old, it does specifically refer to the registration and residency required for voting and, in that context, expressly designates the time of the next election as the applicable date.
{¶ 51} Third, an elector who submits an absentee ballot does not actually vote at an election until the ballot is tabulated on election day. See R.C. 3509.06 (providing procedure for counting absentee ballots on election day); Millsaps v. Thompson (C.A.6, 2001),
{¶ 52} Fourth, relators’ claim that the pertinent provisions require that the elector or absentee-ballot applicant be a qualified elector at, for example, the time of application is belied by one of the statutes. In their reply brief, relators assert that these provisions are tied to electors who are presently qualified, not to electors who will be qualified at some future date. See R.C. 3501.01(N) (defining a “qualified elector” as a “person having the qualifications provided by law to be entitled to vote” [emphasis added]); R.C. 3509.03(G) (requiring that an applica
{¶ 53} Conspicuously absent from this argument in relators’ reply brief, however, is any citation to R.C. 3503.01, which relators claimed in their initial merit brief to “clearly set forth” the “qualifications to be entitled to vote in the State of Ohio.” That statute specifies that one of the requirements for being a qualified elector is that the person “has been a resident of the state thirty days immediately preceding the election at which the citizen offers to vote,” which would require an absentee-ballot applicant to state that the applicant “is a qualified elector” under R.C. 3509.03(G), even though at that time the applicant could not necessarily know that he or she would continue to reside within the state for the 30-day period before the election. (Emphasis added.)
{¶ 54} In State ex rel. Walsh v. Ashtabula Cty. Bd. of Elections (1992),
{¶ 55} Furthermore, R.C. 3503.011 specifies that a person who will not be 18 years old until the date of the next general election is permitted to vote in the primary election preceding the general election: “At a primary election every qualified elector who is or will be on the day of the next general election eighteen or more years of age, and who is a member of or is affiliated with the political party whose primary election ballot he desires to vote, shall be entitled to vote such ballot at the primary election.”
{¶ 56} Thus, relators’ contention lacks merit, and the pertinent statutes do not prevent the date of the election from being used as the applicable date for the 30-day registration period provided in R.C. 3503.06.
{¶ 57} Fifth, insofar as R.C. 3503.06 does not remove the ambiguity concerning the date on which a person must have been registered to vote for 30 days to be entitled to vote by absentee ballot, the secretary’s administrative construction of the provisions supports her interpretation that the 30-day registration requirement is satisfied if the voter meets that requirement on election day. See R.C. 1.49(F). The secretary of state’s construction is reasonably supported by the pertinent provisions, and in accordance with well-settled precedent, the court must defer to that reasonable interpretation. See State ex rel. Heffelfinger v. Brunner,
{¶ 58} Sixth, the secretary of state’s interpretation of the pertinent provisions avoids the unreasonable or absurd result of having a shifting qualification date at which the 30-day registration requirement is met based on the different acts involved, i.e., 30 days before (1) the date an absentee-ballot application is executed, (2) the date elections officials determine whether an application is legally sufficient, (3) the date a ballot is submitted, and (4) the date a person votes an absentee ballot. This might inject confusion into the absentee-voting process, whereas the method of using the election date is supported by both the plain language of R.C. 3503.06 and the secretary’s reasonable construction of the pertinent constitutional and statutory provisions. See State ex rel. Essig v. Blackwell,
{¶ 59} Seventh, we need not consider as evidence two newspaper articles submitted by relators to support their “concerns” about fraud caused “by unlawful votes by unqualified electors,” including college students and homeless people. See State ex rel. Miller v. Cuyahoga Cty. Bd. of Elections,
{¶ 60} Eighth, relators erroneously assert that because some prosecuting attorneys have advised their local boards of elections not to follow the secretary’s
{¶ 61} Ninth, in their reply brief, relators contend that the secretary of state’s directives may conflict with the Help America Vote Act and R.C. 3503.15. But neither relators nor respondents raised this issue in their initial briefs; relators are thus forbidden to raise this new argument in their reply brief. See State ex rel. Grounds v. Hocking Cty. Bd. of Elections,
{¶ 62} Finally, the secretary of state’s construction is consistent with our duty to liberally construe election laws in favor of the right to vote. See Wilson v. Kennedy (1949),
{¶ 63} Therefore, because the secretary of state’s interpretation of the pertinent provisions concerning qualified electors for purposes of the 30-day registration requirement is reasonable, is supported by the language of the applicable provisions, including R.C. 3503.06, avoids unreasonable or absurd results, would not necessarily result in the asserted widespread fraud, and is consistent with our duty to liberally construe election laws in favor of the right to vote, we defer to the secretary’s reasonable interpretation and hold that her directives permitting registration and absentee voting within the overlap period is proper. Notably, although relators attempt to portray this case as being limited to same-day registration and absentee voting during the few days of the period between the start of absentee voting and the registration deadline for the November 4
Conclusion
{¶ 64} Because relators can thus establish neither a clear legal right to the requested relief nor a corresponding clear legal duty on the part of the secretary to provide the requested relief, we deny the writ of mandamus. By so holding, we need not consider other issues raised by the secretary of state, including whether relators’ advocated construction of the pertinent provisions would violate the Constitution or federal law and whether mandamus is inappropriate to control the secretary of state’s “discretion” in issuing instructions.
Writ denied.
Notes
. We do not address the secretary of state’s motion to strike the amicus curiae brief of Representative Wolpert, because our judgment renders it moot.
Dissenting Opinion
dissenting.
{¶ 65} I respectfully dissent.
{¶ 66} In State ex rel. Walsh v. Ashtabula Cty. Bd. of Elections (1992),
{¶ 67} The Ohio Constitution circumscribes the qualifications of an elector by prescribing who may vote in the state of Ohio.
{¶ 68} Section 1, Article V of the Ohio Constitution provides:
{¶ 69} “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.” (Emphasis added.)
{¶ 71} In this case, relators seek a writ of mandamus to compel the secretary of state to issue a countermanding directive to the local boards of elections in conformity with the Ohio Constitution and the statutes of Ohio relating to absentee voting. In that regard, R.C. 3509.02 is specifically tailored to describe those who are permitted to vote in this fashion. Without ambiguity, R.C. 3509.02(A) states:
{¶ 72} “Any qualified elector may vote by absent voter’s ballots at an election.” (Emphasis added.)
{¶ 73} Similarly, R.C. 3509.02(B) states:
{¶ 74} “Any qualified elector who is unable to appear at the office of the board of elections * * * may vote by absent voter’s ballots in that election as specified in division (G) of section 3503.16 of the Revised Code.” (Emphasis added.)
{¶ 75} Thus, in order to either obtain or cast an absent voter’s ballot, one must first be a qualified elector. Pursuant to the plain language of Section 1, Article V of the Ohio Constitution, a citizen is required to have been registered to vote for 30 days before being “a qualified elector.” Consequently, a person who has not been registered to vote for 30 days does not have the qualifications of an elector and is not a “qualified elector” in the state of Ohio. Because this is a constitutional qualification, “such qualifications can be altered only by amendment to the Constitution.” State ex rel. Taylor v. French (1917),
{¶ 76} At issue in this case is Directive 2008-63, which the secretary of state has issued to the county boards of elections:
{¶ 77} “[TJhere are several days before the 2008 general election during which a person may appear at the board of elections office and simultaneously submit for that election applications to register to vote or to update an existing registration and to request an absentee ballot. * * *
{¶ 79} The secretary of state’s directive proposes to permit individuals who do not have the constitutional qualifications of an elector to obtain and cast an absent voter’s ballot. In my view, it directly conflicts -with the Ohio Constitution and the applicable, relevant state statute designating the right to vote by absent voter’s ballot.
{¶ 80} The United States Supreme Court recognized in Storer v. Brown (1974),
{¶ 81} “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must five.” Wesberry v. Sanders (1964),
{¶ 82} The majority states that a person who casts an absentee voter’s ballot does not “actually vote at an election until the ballot is tabulated on election day.” ¶ 51, supra. That assertion defies reality.
{¶ 83} The act of voting occurs when a voter relinquishes dominion and control over a ballot, which has been marked by the voter, by hand-delivering the ballot to a precinct worker at a polling place, by mailing an absentee ballot to the board of elections, or by delivering an absentee ballot to the board of elections. ■ At that point, a voter has irrevocably committed to the votes cast and has no ability to retrieve the ballot or alter the choices. For the voter, the act of voting is complete at that time. The tabulation of a vote is a process that occurs subsequent to the voter’s act of voting.
{¶ 84} To obtain a writ of mandamus, relators must demonstrate a clear legal right to relief, a clear legal duty on the part of the secretary of state to issue constitutional and lawful election directives, and no adequate remedy in the ordinary course of law for the issuance of an unconstitutional and/or unlawful directive. State ex rel. Heffelfinger v. Brunner,
{¶ 85} As the secretary’s directive is in direct conflict with Section 1, Article V of the Ohio Constitution and is contrary to the statutory precondition for voting by absentee ballot, it is unconstitutional and unlawful and therefore unreasonable.
{¶ 86} Accordingly, I would issue a writ of mandamus forthwith commanding the secretary of state to publish a countermanding directive to all boards of elections to clarify and to direct that no county board of elections may issue an absent voter’s ballot to any person who has not been registered to vote for 30 days, because that person is not a qualified elector in the state of Ohio by virtue of the Ohio Constitution.