In re Protest Filed with the Franklin County Board of Elections

551 N.E.2d 150, 49 Ohio St. 3d 102, 1990 Ohio LEXIS 88, 1990 WL 17332
Ohio Supreme Court·Decided February 28, 1990·No. No. 88-1404·Published·Cited by 49 cases

Opinions

Moyer, C.J.

The sole issue presented in this case is whether a board of elections may disqualify a signature on an initiative petition circulated pursuant to R.C. Chapter 3519 where the residence indicated by a signer is not the same as the residence on record with the board of elections for said signer.

We first must determine whether the court of appeals correctly concluded that this election case is not moot. Appellee, Citizens, does not contest this conclusion.

As a general rule, election cases are moot where the relief sought is to have a name or an issue placed on the ballot and the election was held before the case could be decided. State, ex rel. Gyurcik, v. Brown (1964), 176 Ohio St. 288, 27 O.O. 2d 200, 199 N.E. 2d 596; State, ex rel. Santora, v. Bd. of Elections of Cuyahoga Cty. (1962), 174 Ohio St. 11, 21 O.O. 2d 35, 185 N.E. 2d 438. Nevertheless, even when an election has been conducted, a case is not moot where the issue or controversy is “ ‘capable of repetition yet evading review.’ ” Storer v. Brown (1974), 415 U.S. 724, 737, fn. 8, quoting Rosario v. Rockefeller (1973), 410 U.S. 752, 756, fn. 5; Foster v. Cuyahoga Cty. Bd. of Elections (1977), 53 Ohio App. 2d 213, 7 O.O. 3d 282, 373 N.E. 2d 1274. This is one such case. Here, the issue is a matter of constitutional and statutory interpretation which affects how Ohio’s eighty-eight boards of elections will determine the sufficiency of a particular category of signatures on initiative petitions. We therefore agree with the court of appeals that this case presents a matter evading review but capable of repetition and was properly considered by the appellate court.

The narrow questions presented are what is an “elector,” and must he or she place on an initiative petition the residence shown on the records of the board of elections, or may said signer enter his or her current address on the petition if it is different from the address on the board of elections’ records?

Section 1, Article V of the Ohio Constitution provides:

“Every citizen of the United States, of the age of eighteen years, who has been a resident of the state, county, township, or ward, such time as may be provided by law, and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections. Any elector who fails to vote in at least one election during any period of four consecutive years shall cease to be an elector unless he again registers to vote.”

R.C. 3501.01(N) defines “elector” or “qualified elector” as “a person having the qualifications provided by law to entitle him to vote.” R.C. 3501.01(0) provides: “ ‘Voter’ means an elector who votes at an election.” Further, R.C. 3501.01(P) states that “ ‘[v]oting residence’ means that place [104] of residence of an elector which shall determine the precinct in which he may vote.” R.C. 3503.07 provides: “Each person who will be of the age of eighteen years or more at the next ensuing November election, who is a citizen of the United States, and who, if he continues to reside in the precinct until the next election, * * * shall, unless otherwise disqualified, be entitled to be registered as an elector in such precinct. * * *” (Emphasis added.)

Section lg, Article II of the Ohio Constitution provides in relevant part: “* * * Each signer of any * * * petition must be an elector of the state'and shall place on such petition after his name the date of signing and his place of residence. * * *”

We observe that Section lg, Article II of the Ohio Constitution, by its own language,1 is a self-executing provision. Hockett v. State Liquor Licensing Bd. (1915), 91 Ohio St. 176, 183, 110 N.E. 485, 487. A clause in a constitution is self-executing if it contains more than a mere framework, and specifically provides for carrying into immediate effect the enjoyment of the rights established therein without legislative action. See Yenter v. Baker (1952), 126 Colo. 232, 248 P. 2d 311. However, laws may be passed to facilitate its operation, as long as they do not restrict or limit the provision or the powers therein reserved. See Daggett v. Hudson (1885), 43 Ohio St. 548, 3 N.E. 538.

Under R.C. 3503.14, a person who qualifies to register to vote must complete a registration form that specifically asks “What is your residence?,” and provides spaces expressly designated for the person’s full street address, city, state and zip code. If an already registered elector changes residence, he or she must notify the board of elections at least’ thirty days (twenty-nine days in some cases) preceding the next special, primary or general election. R.C. 3503.11(A). R.C. 3503.11(E)(1) also permits a registered elector who changes residence within his precinct to present himself on the day of a special, primary or general election at the polling place and vote if he first completes a notice of change of residence. See, also, R.C. 3503.15 and 3503.16. In order to be entitled to vote, therefore, a person must qualify under Section 1, Article Y of the Ohio Constitution and R.C. 3503.07, and then register in accordance with R.C. 3503.06 et seq.

All of these provisions produce the conclusion that even a previously registered elector who has changed residence may not vote at any location unless he or she has filed a change of residence notice with the board of elections. Stated another way, such person is not an “elector” or “qualified elector” unless his actual current residence is registered with the board of elections. The voting residence is that residence filed with the board of elections.

We consider next the specific requirement found in R.C. 3519.10 and tiie relevant cases cited by the parties.

R.C. 3519.10 provides in pertinent part: “Each signer of any initiative * * * petition must be a qualified elector of the state. He shall place on such petition after his name the date of signing and the location of his voting [105] residence, including the street and number in which such voting residence is located * *

Citizens argues that the language of R.C. 3519.10 is directly in conflict with Section lg, Article II of the Ohio Constitution, and that the requirement of R.C. 3519.10 that signers of an initiative petition state their “voting residence” as registered with the board of elections conflicts with the general “residence” requirement contained in Section lg.

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In re Protest Filed with the Franklin County Board of Elections, 551 N.E.2d 150, 49 Ohio St. 3d 102, 1990 Ohio LEXIS 88, 1990 WL 17332 (Ohio 1990).

551 N.E.2d 150 (In re Protest Filed with the Franklin County Board of Elections) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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