State ex rel. Skaggs v. BrunnerState ex rel. Skaggs v. Brunner
Lead Opinion
{¶ 1} This is an original action for a writ of mandamus to (1) compel respondent Secretary of State Jennifer L. Brunner to correct her allegedly erroneous interpretation of
{¶2} Under
{¶ 3} If an individual desires to cast a provisional ballot, the board of elections provides a provisional ballot form that it prepared and a ballot. The board’s form, which is designated an “application,” specifically requires the voter to print the voter’s name аnd to sign an affirmation. The provisional ballot form is printed on an envelope, which the voter seals after inserting the ballot.
{¶ 4} Upon receipt of the provisional ballots, the board of elections uses the information provided by the voters to determine whether they are eligible to vote and to have their votes counted.
Provisional-Ballot Affirmations: Secretary of State’s Initial Instructions
{¶ 5} This case involves provisional-ballot forms on which the voter failed to provide both the voter’s name and signature. On March 31, 2008, Brian Shinn, the assistant general counsel for the secretary of state, responded by e-mail to questions from elections board officials concerning provisional ballots. Shinn advised the board of elections that a provisional ballot could not be counted if the voter signed the affirmation statement but did not print his or her name on the form and that both the voter’s name and signature were required in order for the ballot to be counted:
{¶ 6} “Voter did not print his or her name on column one but signed the provisional ballot affirmation statement. The ballot cannot be counted unless the voter’s name appears somewhere on the provisional ballot affirmation envelope written by the voter or a poll worker. Name AND signature are required by
{¶ 7} On October 24, 2008, in Northeast Ohio Coalition for the Homeless v. Brunner, S.D.Ohio No. C2-06-896,
{¶ 8} “If ANY of the following apply, board staff responsible for processing provisional ballots shall recommend to the board that a provisional ballot not be counted, and a board of elections shall neither open nor count the provisional ballot:
{¶ 9} “ * * *
{¶ 10} “The individual did not provide the following:
{¶ 11} “(1) His or her name and signature as the person who cast the provisional ballot;
{¶ 12} “(2) A statement that he or she, as the person who cast the provisional ballot, is a registered voter in the jurisdiction in which he or she cast the provisional ballot; and
{¶ 13} “(3) A statement that he or she, as the person who cast the provisional ballot, is eligible to vote in the particular election in which he or she cast the provisional ballot;
{¶ 14} “or
{¶ 15} “(4) His or her name recorded in a written affirmation statement entered either by the individual or at the individual’s direction recorded by an election official.” (Boldface sic.) Secretary of State Directive No. 2008-101 at 8.
{¶ 16} On October 28, 2008, pursuant to a court order issued in Northeast Ohio Coalition for the Homeless,
{¶ 17} Based on the secretary of state’s instructions in Secretary of State Directive 2008-101 and her assistant gеneral counsel’s March 2008 e-mail instructions, the office of the Franklin County Prosecuting Attorney advised the board of elections that a provisional-ballot voter must provide both the voter’s name and signature to be eligible to have the vote counted. The board was prepared to follow these instructions.
Unofficial Returns and Modified Instructions
{¶ 18} The board of elections released its initial unofficial returns for the November 4, 2008 election, and those returns showed three relatively close races, including those for the 15th Congressional District between Steve Stivers and Mary Jo Kilroy and for two Ohio House of Representatives districts. Over 27,000 provisional ballots were cast in Franklin County in the November 4 general election, and the outcome of these three races may be determined by these ballots.
{¶ 20} In response to DeRose’s e-mail, Shinn modified his previous instructions and said that for the most part, these provisional ballots lacking both voters’ names or signatures should be counted.
{¶ 21} By a November 12, 2008 e-mail, Shinn notified the board of elections that the secretary of state agreed with his earlier “advice that a provisional ballot that contains the signature of a voter but not the written name MUST BE COUNTED if the person is a registered elector, the person voted in the correct precinct, and the person was not required to provide additional information to the board [and] failed to do so.”
{¶ 22} On November 14, the board of elections met to consider whether the different groups of disputed provisional ballots (1) with names but not signatures on the affirmation, (2) with signatures but not names on the affirmation, and (3) with names and signatures, but not in the correct locations on the affirmation should be considered eligible to be opened and counted. The board of elections deadlocked two-to-two on each of the motions that these categories of provisional ballots be deemed eligible to be counted. The secretary of state is authorized to break these tie votes pursuant to
{¶ 23} In other counties, including Union and Madison Counties, the boards of elections followed the preelection instructions of the secretary of state in Directive 2008-101 and disqualified provisional ballots if the voter failed to provide both a printed name and a signature on the affirmation. Evidently, the secretary of state did not provide her changed directive on the eligibility of provisional ballots to counties other than Franklin County.
{¶ 24} Relator Dana Skaggs is a Franklin County elector who voted in the November 4, 2008 election, and relator Kyle Fannin is a Franklin County elector who voted by provisional ballot in the November 4 election.
{¶ 25} On November 13, relators filed this action for a writ of mandamus to compel the secretary of state to instruct the boards of elections that any provisional ballot must include both the voter’s name and signature in the statutorily required affirmation in order to be eligible to be counted and to compel the secretary of state and the Franklin County Board of Elections to reject any provisional ballot that does not include both the voter’s name and signature.
{¶ 26} The secretary of state filed a notice removing this case to the United States District Court for the Southern District of Ohio pursuant to Sections 1441(b) and 1443(2), Title 28, U.S.Code. The federal district court denied relators’ and the board’s motions to remand the case to this court. Ohio ex rel. Skaggs v. Brunner (S.D.Ohio 2008),
{¶ 27} On appeal, the United States Court of Appeals for the Sixth Circuit reversed the judgment of the federal district court and held that the district court erred in denying relators’ and the board’s motions to remand the case to this court. Ohio ex rel. Skaggs v. Brunner (C.A.6, 2008),
{¶ 28} The parties have now submitted their briefs and evidence, and the secretary of state and the intervening respondent, the Ohio Democratic Party, also filed answers. This cause is now before the court for our expedited consideration and determination.
Mandamus
{¶ 29} “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
General Duties of the Secretary of State
{¶ 30} The secretary of state is the state’s chief election officer and has duties to “[i]ssue instructions by directives and advisories * * * to members of the boards as to the proper methods of conducting elections,” “[pjrepare rules and instructions for the conduct of elections,” “[d]etermine and prescribe the forms of ballots,” and “[cjompel the observance by election officers in the several counties of the requirements of the election laws.”
{¶ 31} Relators claim that the secretary of state has a duty enforceable in mandamus under these and other statutory provisions to direct the board of elections not to count the disputed provisional ballots.
Request for Relief
{¶ 32} Relators assert that they are entitled to the requested extraordinary relief because the secretary of state, through her postelection instructions, misdirected the Franklin County Board of Elections that it should count the provisional ballots that do not include both the voter’s name and signature in the statutorily required affirmation.
{¶ 33} The Help America Vote Act, Section 15301 et seq., Title 42, U.S.Code, authorizes the states to determine “whether a provisional ballot will be counted as a valid ballot.” Sandusky Cty. Democratic Party v. Blackwell (C.A.6, 2004),
{¶ 34} This case involves the validity of three categories of provisiоnal ballots cast at the November 4 general election in Franklin County: (1) ballots with affirmations that contain printed names but no signatures, (2) ballots with affirmations that contain signatures but no printed names, and (3) ballots that contain both printed names and signatures, but one or both are not located in the correct place on the affirmation. The disputed ballots comprise about 1,000 of
{¶ 35} Relators, two Franklin County voters, request that all three categories of disputed provisional ballots be deemed invalid and not be counted. Respondent Secretary of State Jennifer L. Brunner, the intervening respondent, Ohio Democratic Party, and amici curiae, the ACLU Voting Rights Project and ACLU of Ohio, request that the court hold that all three categories be ruled valid and be counted. Respondent Franklin County Board of Elections defers to the secretary of state’s position because of her tie-breaking decisions on the disputed provisional ballots. We address the three categories of prоvisional ballots in order.
Ballots With Printed Names But With No Signatures
{¶ 36} The first category of provisional ballots at issue consists of ballots on which the individual printed his or her name in the affirmation but did not sign the affirmation. According to DeRose, approximately 30 provisional ballots fall in this category. The most relevant statute on this issue is
{¶ 37} “To determine whether a provisional ballot is valid and entitled to be counted, the board shall examine its records and determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election. The board shall examine the information contained in the written affirmation executed by the individual who cast the provisional ballot under division (B)(2) of
{¶ 39} “(b) A statеment that the individual is a registered voter in the jurisdiction in which the provisional ballot is being voted;
{¶ 40} “(c) A statement that the individual is eligible to vote in the election in which the provisional ballot is being voted.” (Emphasis added.)
{¶ 41} Under this statute, the affirmation must include the individual’s name and signature to be eligible to be counted, unless the individual declines to execute the affirmation. In the latter case, the individual’s name must appear in “a” written affirmation to be eligible to be counted.
{¶ 42} We must first determine whether the secretary of state’s directives on this matter before and after the election are consistent with each other. As set
{¶ 43} After the election, in her decision breaking the tie between the members of the Franklin County Board of Elections, the secretary again stated thаt provisional ballots that contain only a printed name in the affirmation section may be counted. In that decision, the secretary expanded her previous directive by introducing the concept of poll-worker error. She noted that an affirmation that includes only a printed name and not a signature will be valid if the individual has declined to execute the affirmation under
{¶ 44} Although the secretary’s latter opinion, issued on November 20, 2008, is clearly broader than Directive 2008-101, issued on October 24, 2008, we find that they are at least arguably consistent with each other. Therefore, we must next determine whether the secretary of state’s directives in this regard were unreasonable under the law. See State ex rel. Brinda v. Lorain Cty. Bd. of Elections,
{¶ 45} The relators argue that the statute requires the voter to place both a name and a signature on the ballot envelope for the affirmation to be valid and that it cannot be presumed that an individual declined to sign the affirmation (and is therefore exempt from it) merely because no signature exists. Contrarily, the secretary, and Justice Lanzinger in dissent, argue that there is no way to tell whether an individual declined to sign the affirmation or merely failed to do so, and that in the face of such uncertainty, we must err in favor of counting all such ballots to avoid disenfranchising voters.
{¶ 46} At first blush, that position seems reasonable, but it does not include consideration of other sections of the Revised Code that bear directly on the question before us. Although we agree that the relevant statutes are not the model of clarity, the secretary’s interpretation requires us to presume that
{¶ 47} There are several acts that must occur before the vote of an individual who wishes to decline to sign the affirmation will be counted. First, the individual (or an election official acting at the individual’s direction) must include his or her name “in a written affirmation.”
{¶ 48} Finally, “[a]n election official at the polling place shall transmit * * * the individual’s name if the individual declines to execute such an affirmation to an appropriate local election official for verification,” and the official receiving the individual’s name must then verify whether the individual is eligible to vote before his or her vote will be counted.
{¶ 49} The statutory scheme designates the process to be followed when a voter wishes to decline to sign the affirmation for some reason. Only one of these statutorily mandated actions, the individual’s simply putting his or her name in the affirmation without a signature, occurred here. The only indication here that thе provisional voters at issue actually declined to complete the affirmation is the fact that their affirmations contained no signature. There is no evidence that the relevant elections officials noted anywhere on the ballot envelopes that the provisional voters at issue here declined to execute the affirmation, that the official transmitted that information to a separate election official, or that the receiving official verified the information, all of which must occur if the ballot of a voter who declines to sign the affirmation is to be counted.
{¶ 50} We acknowledge that we are bound to “liberally construe election laws in favor of the right to vote.” State ex rel. Colvin,
{¶ 51} “[I]n the absence of evidence to the contrаry, public officers, administrative officers and public authorities, within the limits of the jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully.” State ex rel. Speeth v. Carney (1955),
{¶ 52} Relying solely on the presence of incomplete affirmations, the secretary presumes that poll workers failed to take the proper actions to record the individuals’ declination and transmit their names to local election officials, and that the officials failed to verify the eligibility of any names that were transmitted, even though no corroborating evidence of these alleged failures was submitted. In fact, even Mary Jo Kilroy’s campaign team does not argue that these ballots are failed declinations: According to DeRose, “[a]s to these 30 provisional ballots [that contain a printed name but no signature], because you have a name and the precinct where the provisional ballot was cast, the Board of Elections should immediately notify these voters of the defect and have thеm come into the Board to sign the affirmation.” (Emphasis added.) The secretary then concludes, solely on the basis of these presumptions, that these otherwise defective affirmations were actually valid declinations, and the votes must be counted as if they were valid.
{¶ 53} If we were presented with evidence that the election officials had performed any of their statutorily required actions or evidence that they had affirmatively failed to do so because they were improperly trained or improperly instructed regarding their duties in these circumstances, we may have been persuaded that declinations could be presumed.
{¶ 54} Without such evidence, the secretary and the dissent ask too much. They ask that we apply no presumption of regularity, that we assume systematic poll-worker error so as to change an invalid affirmation to a valid one, and that we assume no other reason than poll-worker error for a voter failing to affix a signature to the ballot envelope. This interpretation allows the exception in
{¶ 55} We therefore grant the writ of mandamus in regard to the first category of provisional ballots.
{¶ 56} For the second category of provisional ballots, those with signatures in the affirmation but no printed names, our analysis of the pertinent statutes again reveals that they present a quagmire of intricate and imprecisely stated requirements, including internal inconsistencies and multiple affirmations and declinations, some of which even the parties appear to confuse in their respective merit briefs. In view of these generally murky statutes, we hold that the secretary of state’s preelection interpretation of these statutory provisions as reflected in both her assistant general counsel’s March 31 e-mail response to the Franklin County Board of Eleсtions as well as Secretary of State Directive 2008-101 was reasonable insofar as it relates to ballots with affirmations that contain signatures but no printed names. Colvin,
{¶ 57} Having initially adopted that reasonable construction of an imprecise statutory scheme, which was evidently followed by other counties, including Madison and Union Counties, the secretary of state acted unreasonably in modifying her earlier instructions for those two categories of ballots by apparently advising only one county in the 15th Congressional District Franklin County of that modification. See State ex rel. Myles v. Brunner,
{¶ 58} As the United States Court оf Appeals for the Sixth Circuit recently held, “[t]he right to vote includes the right to have one’s vote counted on equal terms with others.” League of Women Voters of Ohio v. Brunner (C.A.6, 2008),
{¶ 59} Therefore, based on our interpretation of -the pertinent state law, we conclude that the secretary of state abused her discretion when she instructed the Franklin County Board of Elections during the counting of the votes that
Ballots with Names and Signatures in an Incorrect Place
{¶ 60} The final category of provisional ballots at issue, those that contain names and signatures in incorrect places on the affirmation, does not appear to have been addressed by the secretary’s preelection directive. However, the assistant general counsel’s March 2008 instructions were actually consistent with his and the secretary’s postelection instructions that, as long as the voter’s name and signature appear somewhere on the envelope, the ballot should be counted.
. {¶ 61} Nevertheless, there is uncontroverted evidence here that most of the ballots in this category had signatures and names located on a completely different affirmation — the identification affirmation set forth in
{¶ 62} By failing to contain either the voters’ names or signatures in such an affirmation, these individuals’ ballots plainly failed to comply with
Conclusion
{¶ 63} Because relators have established that the secretary of state misdirected the Franklin County Board of Elections to count the disputed provisional ballots, we grant the writ of mandamus to compel the secretary of state to forthwith direct respondent Franklin County Board of Elections that in order for a provisional ballot to be eligible to be counted it must contain both the voter’s name and signature in a manner рrescribed by
Writ granted.
Notes
. In their complaint, relators also requested a writ of mandamus compelling respondents to reject any provisional ballot that did not include the required identification verification information required by
Concurrence in Part
concurring in part and dissenting in part.
{¶ 64} I join Justice Lanzinger’s opinion, but I write separately to provide an instructional note to practitioners.
{¶ 65} In order to reach the merits of this case, the majority allows relators to avoid the mandatory language of S.CtPrac.R. X(4)(B), which requires, in an original action other than habeas corpus, a supporting affidavit of the relator or counsel made on personal knowledge, specifying the details of the claim and setting forth facts admissible in evidence. Neither relators nor their counsel executed an affidavit in this matter. S.CtPrac.R. X(4)(B) reads:
{¶ 66} “All complaints shall contain a specific statement of facts upon which the claim for relief is based, shall be supported by an affidavit of the relator or counsel specifying the details of the claim, and may be accompanied by a memorandum in support of the writ. The affidavit required by this division shall be made on personal knowledge, setting forth facts admissible in evidence, and showing affirmatively that the affiant is competent to testify to all matters stated in the affidavit.”
{¶ 67} This court’s enforcement of the S.Ct.Prac.R. X(4)(B) affidavit requirement has tended toward the draconian. See State ex rel. Evans v. Blackwell,
{¶ 69} As I did in State ex rel. Shemo v. Mayfield Hts. (2001),
Concurrence in Part
concurring in part and dissenting in part.
{¶ 70} I concur in the portion of the judgment that holds that the secretary of state may not change her own reasonable interpretation of election law at the request of a candidate after the election. I agree that the writ should be granted to compel the secretary to instruct the Franklin County Board of Elections to reject those provisional ballots with signatures but without names on the affirmation, just as she had initially advised the board. I also concur that provisional ballots with names and signatures located at other than the appropriate places for affirmation also must bе rejected because they do not substantially follow the form set forth for affirmations in
{¶ 71} Secretary of State Directive No. 2008-101 was issued by the secretary in October 2008 to all county boards of elections. For the first disputed category of provisional ballots, those with affirmations containing names but no signatures, the secretary’s directive followed the statute in stating which provisional ballots were to be counted:
{¶ 72} “1. Ballots Eligible to be Counted
{¶ 73} “Where ALL of the following apply, the board staff responsible for processing provisional ballots must recommend to the board that a provisional ballot shall count, and a board of elections shall count the provisional ballot:
{¶ 74} “a) The individual named on the affirmation is properly registered to vote;
{¶ 75} “b) The individual named on the affirmation is eligible to cast a ballot in the precinct аnd for the election in which the individual cast the provisional ballot;
{¶ 76} “c) The individual provided the following:
{¶ 77} “(1) His or her name and signature as the person who cast the provisional ballot;
{¶ 78} “(2) A statement that he or she, as the person who cast the provisional ballot, is a registered voter in the jurisdiction in which he or she cast the provisional ballot; and
{¶ 79} “(3) A statement that he or she, as the person who cast the provisional ballot, is eligible to vote in the particular election in which he or she cast the provisional ballot;
{¶ 80} “or
{¶ 81} “(4) His or her name recorded in a written affirmation statement entered either by the individual or at the individual’s direction recorded by an election official;
{¶ 82} “or
{¶ 83} “(5) A completed affirmation under
{¶ 84} Thus, this portion of the directive set forth the general rule that to count a provisional ballot, the voter must be properly registered and eligible to vote and must have provided one of three alternatives: name and signature with statements of registration and eligibility; or name on an affirmation statement; or a
{¶ 85} “2. Ballots not Eligible to be Counted
{¶ 86} “If ANY of the following apply, board staff responsible for processing provisional ballots shall recommend to the board that a provisional ballot not be counted, and a board of elections shall neither open nor count the provisional ballot:
{¶ 87} “ * * *
{¶ 88} “c) The individual did not provide the following:
{¶ 89} “(1) His or her name and signature as the person who cast the provisional ballot;
{¶ 90} “ * * *
{¶ 91} “or
{¶ 92} “(4) His or her name recorded in a unitten affirmation statement entered either by the individual or at the individual’s direction recorded by an election official.” (Boldface sic and emphasis added.)
{¶ 93} In other words, with respect to provisional ballots where the voters’ names are recorded in the written affirmation statement but there are no signatures, in both Directive 2008-101 as well as in the instructions after the election and in her decision breaking the board’s tie vote, the secretary of state’s position has been consistent: these votes should be counted. Consequently, I agree with the majority’s holding that the secretary of state was consistent in her instructions regarding this category of provisional ballots.
{¶ 94} With regard to the second disputed category of provisional ballots that contained signatures but no printed name, I concur with the majority’s cоnclusion that the secretary’s posteleetion instructions were inconsistent and that the writ should be granted.
{¶ 95} For the third disputed category, provisional ballots that contain names and signatures in inappropriate places on the affirmation, I agree that although the secretary’s postelection instructions were not inconsistent, the writ is appropriate because the secretary’s instructions failed to apply the plain language of the pertinent statutes.
{¶ 96} For the first category of disputed provisional ballots, therefore, I now address the merits of relators’ claim and would deny the writ for these provisional ballots for the following reasons.
{¶ 97} Under
{¶ 98} “(a) A registered voter in the jurisdiction in which the individual desires to vote;
{¶ 99} “(b) Eligible to vote in that election.”
{¶ 100} Relators rely on
{¶ 101} “(1) To determine whether a provisional ballot is valid and еntitled to be counted, the board shall examine its records and determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election. The board shall examine the information contained in the written affirmation executed by the individual who cast the provisional ballot under division (B)(2) of
{¶ 102} “(a) The individual’s name and signature;
{¶ 103} “(b) A statement that the individual is a registered voter in the jurisdiction in which the provisional ballot is being voted;
{¶ 104} “(c) A statement that the individual is eligible to vote in the election in which the provisional ballot is being voted.
{¶ 105} “ * * *
{¶ 106} “(4)(a) If, in examining a provisional ballot affirmation and additional information under divisions (B)(1) and (2) of this section, the board determines that any of the following applies, the provisional ballot envelope shall not be opened, and the ballot shall not be counted:
{¶ 107} “ * * *
{¶ 108} “(in) The individual did not provide all of the information required under division (B)(1) of this section in the affirmation that the individual executed at the time the individual cast the provisional ballot.” (Emphasis added.)
{¶ 109} Relators are correct that the statutory directive concerning the voter’s “name and signature” on the provisional-ballot affirmation is mandatory.
The Proof of a Declined Execution of Affirmation
{¶ 110} The term “decline” is not statutorily defined. Construed in ordinary terms, then, “decline” means “to refuse courteously or politely” or “to withhold consent.” Webster’s Third New International Dictionary (2002) 586; see also Black’s Law Dictionary (8th Ed.2004) 439, defining a “declination” as “[a]n act of refusal.”
{¶ 111}
{¶ 112} Admittedly,
{¶ 113} Furthermore, Franklin County’s provisional-ballot form does not include any place for the appropriate election official to record the fact that a voter has declined to execute the affirmation, and the forms provided by
{¶ 114} The voter is not required by statute to state specifically that he or she declines to sign the affirmation. Only the voter’s name is needed on the affirmation for the vote to be countable. Under these circumstances, we need not, as the majority claims, “assume no error by any voter” because the voter has in fact already done all he or she is required to do under
{.¶ 115} The majority states that there are “several” acts that must occur before the vote of an individual who wishes to decline to sign the affirmation will be counted. This statement is not supported by the pertinent provisions.
{¶ 116} We recently granted a writ of mandamus to compel the secretary of state to issue a directive to boards of elections that they not reject any absentee-ballot application merely because a box next to a required qualified-elector statement was not checked. Myles,
{¶ 117} Since there is no additional requirement for a voter to effectuate the decimation, a missing signature in and of itself cannot invalidate the provisional vote of an otherwise qualified voter. Nor does the statute suggest that the failure or neglect of an election official to note the fact of a declination on a form
{¶ 118} Because there is thus no legitimate way to distinguish between voters who declined to execute the affirmation and those voters who simply neglected to do so, all ballots containing names but no signatures should be counted. Otherwise, eligible voters would be disenfranchised.
The Secretary’s Reasonable Interpretation
{¶ 119} The secretary’s directive to allow provisional ballots with affirmations containing names but no signatures to be counted was therefore reasonable. Allowing these ballots to be counted honors “our duty to liberally construe election laws in favor of the right to vote,” our principle of deferring to the secretary of state’s reasonable interpretation of election laws, and precedent requiring us to “ ‘avoid unduly technical interpretations that impede the public policy favoring free, competitive elections.’ ” State ex rel. Colvin v. Brunner,
{¶ 120} Furthermore, it would be erroneous to place the burden on the secretary of state to establish which of these provisional ballots were cast by individuals who declined to execute the affirmation when relators bear the burden of proving their entitlement to the requested extraordinary relief in mandamus. See State ex rel. Preschool Dev., Ltd. v. Springboro,
{¶ 121} Nor can the policy against voter fraud alter the fact that the General Assembly has chosen to allow for provisional ballots tо be counted even without any signature on an affirmation.
{¶ 122} At best, the majority presents an alternative interpretation of a legislative scheme that the majority itself concedes is “generally murky,” a
Legislative Concerns
{¶ 123} In holding that the secretary of state’s initial directive interpreting these statutes was reasonable, the majority has sidestepped certain points. Among the issues not considered are (1) whether mistakes made on the affirmation affect the voter’s eligibility under state law and the impact of mistakes attributable to poll-worker error on the voter’s eligibility,
{¶ 124} The General Assembly’s statutory procedure for the casting, processing, and counting of provisional ballоts in Ohio is far from lucid. At best,
Conclusion
{¶ 125} In summary, I concur in the portion of the judgment and opinion insofar as it relates to the second category of disputed provisional ballots, those with signatures but without names on the affirmation, because the secretary altered her instructions to Franklin County for counting these ballots while her previous instructions to other counties remained unchanged. I concur in judgment with respect to the granting of the writ on the third category of disputed provisional ballots, those with names and signatures located at other than the appropriate places for affirmation, because although the secretary did not provide inconsistent instructions on these ballots, the applicable statutes require that they not be counted.
{¶ 126} Finаlly, because the secretary of state consistently and correctly instructed the board of elections to count the disputed ballots containing names without signatures on the affirmation, provided that the voter was properly registered and was otherwise an eligible voter, and because relators have not met their burden of establishing their entitlement to it, I would deny the writ with respect to this category of ballots. Because the majority does not do so and consequently disenfranchises those electors who are constitutionally and statutorily eligible to have their votes counted, I respectfully dissent from that portion of the opinion.
. The reference is in error and apparently should be
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