State ex rel. Purdy v. Clermont County Board of Elections

1997 Ohio 278, 673 N.E.2d 1351, 77 Ohio St. 3d 338, 1996 Ohio LEXIS 2340

Opinions

Douglas, J.

The issue in this case is whether respondents properly concluded that R.C. 3513.04 barred relators from running for the offices of the State Board in the November 1996 general election. R.C. 3513.04 provides that “[n]o person who seeks party nomination for an office or position at a primary election by declaration of candidacy * * * shall be permitted to become a candidate at the following general election for any office by nominating petition or by write-in.” (Emphasis added.) R.C. 3513.259 specifies that “[njominations of candidates for the office of member of the state board of education shall be made only by nominating petition.” (Emphasis added.)

Relators assert that R.C. 3513.04 pertains only to partisan elections and, therefore, respondents acted in clear disregard of R.C. 3513.04 by construing the statute to bar their candidacies for election to the State Board. Specifically, relators contend that R.C. 3513.04 should not be interpreted to prohibit unsuccessful candidates in a partisan primary from becoming candidates at the following general election for a nonpartisan office. Pursuant to R.C. 3505.04, individuals seeking election to the State Board are required to be listed on nonpartisan ballots.

The paramount consideration in construing a statute is legislative intent. State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio St.3d 5, 8, 630 N.E.2d 313, 315. “ ‘In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished.’ ” Id., quoting State v. S.R. (1992), 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319, 1323. “If the meaning of a statute is unambiguous and definite, then it must be applied as written and no further interpretation is appropriate.” State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 997.

Relators contend that the term “any office,” as set forth in R.C. 3513.04, pertains only to partisan offices and not nonpartisan offices such as the offices of the State Board. We disagree. ‘Words used in a statute must be accorded their usual, normal or customary meaning.” State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections (1996), 75 Ohio St.3d 275, 277, 662 N.E.2d 17, 19; see, also, R.C. 1.42. “Any” means “one or some indiscriminately of whatever kind.” Webster’s Third New International Dictionary (1971) 97. “Office” means “[a] public charge or employment.” Black’s Law Dictionary (6 Ed.1990) 1082.

Clearly, R.C. 3513.04 is not limited to “any partisan office,” as relators contend. If we were to interpret R.C. 3513.04 in this manner we would be adding language to the statute that simply does not exist. “It is the duty of the court to give effect to the words used and not to insert words not used.” State ex rel. Carter v. Wilkinson (1994), 70 Ohio St.3d 65, 66, 637 N.E.2d 1, 2. Moreover, relators’ position is further undermined by the fact that R.C. 3513.04 has been amended to expand the breadth of the statute from barring unsuccessful primary candidates from running for the “same office” to barring them from running for “any office” at the following general election. See 124 Ohio Laws 673, 678. Indeed, the present version of R.C. 3513.04 contains no special exception for those candidates who run on a nonpartisan ballot. See, e.g., 1963 Ohio Atty.Gen. Ops. No. 478, at 491 (“For the purposes of [R.C. 3513.04], the question of whether a candidate runs on a partisan or non-partisan ballot is irrelevant.”).

The language of R.C. 3513.04 is plain and unambiguous and conveys a clear and definite meaning. The statute unequivocally precludes the candidacies of relators for the offices of the State Board with respect to the November election. See, also, 1993 Ohio Atty.Gen.Ops. No. 93-052, at 2-252 (“The language of this portion of R.C. 3513.04 is clear, and does not, therefore, require interpretation.”). Thus, we find that respondents properly interpreted R.C. 3513.04 and, accordingly, did not act in clear disregard of the statute in denying certification of relators’ nominating petitions.

Relators also argue, alternatively, that R.C. 3513.04 as interpreted and applied by respondents violates the First and Fourteenth Amendments to the United States Constitution. In particular, relators contend that their constitutional rights as candidates to ballot access and the rights of electors to vote for candidates of their choice have been improperly restricted by respondents’ interpretation of R.C. 3513.04.

Initially, it is important to observe that although relators seek a writ of mandamus, the effect of the requested relief would be to enjoin respondents from enforcing the clear mandates of R.C. 3513.04 and to obtain a declaratory judgment on the constitutionality of the statute as it is applied to their situations. Normally, if the allegations in a complaint indicate that the real object sought is injunction, the complaint does not state a cause of action for mandamus and must be dismissed for want of jurisdiction. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 290, 649 N.E.2d 1205, 1207; State ex rel. Governor v. Taft (1994), 71 Ohio St.3d 1, 2-3, 640 N.E.2d 1136, 1137-1138. Relators could seek a declaratory judgment regarding the constitutionality of R.C. 3513.04, provided that they comply with R.C. Chapter 2721. See, specifically, R.C. 2721.03; see, also, R.C. 2721.12; and Sebastiani v. Youngstown (1979), 60 Ohio St.2d 166, 14 O.O.3d 405, 398 N.E.2d 558 (Where the constitutionality of an ordinance [or statute] is challenged by declaratory judgment, service of a copy of the proceeding upon the Attorney General is a jurisdictional requirement.).

Nevertheless, we have also concluded that the constitutionality of a statute may, in certain instances, be challenged by mandamus. State ex rel. Zupancic v. Limbach (1991), 58 Ohio St.3d 130, 133, 568 N.E.2d 1206, 1209; see, also, State ex rel. Brown v. Summit Cty. Bd. of Elections (1989), 46 Ohio St.3d 166, 545 N.E.2d 1256; and, generally, 1 Antieau, The Practice of Extraordinary Remedies (1987) 313-315, Section 2.20. Indeed, certain election matters may present extraordinary circumstances. In this regard, declaratory judgment might not provide an adequate remedy in the ordinary course of law. Brown, 46 Ohio St.3d at 167-168, 545 N.E.2d at 1258; and Thurn, 72 Ohio St.3d at 291-292, 649 N.E.2d at 1207-1208, citing State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 129, 412 N.E.2d 393, 394 (“[G]iven the proximity of the election, an injunction would arguably not constitute an adequate remedy because any ‘appellate process would last well past the election.’ ”).

In the case at bar, relators would have a clear legal right to have their petitions certified if we determined that R.C. 3513.04 was unconstitutional as applied to their situation. Granted, relators could achieve nearly the same results as a writ of mandamus if they would seek a declaratory judgment coupled with a mandatory injunction. However, given the fact that relators are seeking to have their petitions certified and names placed on the ballots for the upcoming November election, the alternative remedy would not be adequate. Zupancic, supra, 58 Ohio St.3d at 134, 568 N.E.2d at 1209. Accordingly, given the circumstances here, we believe it is appropriate to consider the constitutional challenges posed by relators.

The constitutional rights of candidates and voters “do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter (1972), 405 U.S. 134, 143, 92 S.Ct. 849, 855-856, 31 L.Ed.2d 92, 99. Election laws that govern the selection and eligibility of candidates inevitably affect an individual’s right to vote and to associate with others for political purposes. Anderson v. Celebrezze (1983), 460 U.S. 780, 788, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547, 557. Notwithstanding, states are free to adopt comprehensive laws that protect the integrity and reliability of the electoral process. Id.

Relators claim that any election law that limits ballot access for prospective candidates must be analyzed under the most rigorous standard of review. In this regard, relators assert that to pass constitutional scrutiny, R.C. 3513.04 “must advance a compelling state interest and there must be no less restrictive means available for advancing that interest.” However, the fact that a state creates barriers that limit the field of candidates from which voters may choose does not per se compel close scrutiny. Bullock, 405 U.S. at 143, 92 S.Ct. at 856, 31 L.Ed.2d at 100; see, also, State ex rel. Markulin v. Ashtabula Cty. Bd. of Elections (1992), 65 Ohio St.3d 180, 185, 602 N.E.2d 626, 630 (noting that a four-member plurality of the United States Supreme Court in Clements v. Fashing [1982], 457 U.S. 957, 967-968, 102 S.Ct. 2836, 2846, 73 L.Ed.2d 508, 518-519, stated that candidacy is not a fundamental right). In fact, the United States Supreme Court has adopted a modified balancing test in voting and ballot access cases. 3 Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure (2 Ed. Supp.1996) 89, Section 18.32(e).

In Burdick v. Takushi (1992), 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245, the court, in upholding Hawaii’s prohibition on write-in voting, observed:

“Election laws will invariably impose some burden upon individual voters. Each provision of a code, 'whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.’ Anderson v. Celebrezze, 460 U.S. 780, 788 [103 S.Ct. 1564, 1570, 75 L.Ed.2d 547, 557] (1983). Consequently, to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently. * * * Accordingly, the mere fact that a State’s system ‘creates barriers * * * tending to limit the field of candidates from which voters might choose * * * does not of itself compel close scrutiny.’ Bullock v. Carter, 405 U.S. 134, 143 [92 S.Ct. 849, 856, 31 L.Ed.2d 92, 100] (1972); Anderson, supra, at 788 [103 S.Ct., at 1569-1570, 75 L.Ed.2d, at 557]; McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802 [89 S.Ct. 1404, 22 L.Ed.2d 739] (1969).

“Instead, as the full Court agreed in Anderson, 460 U.S., at 788-789 [103 S.Ct., at 1569-1570, 75 L.Ed.2d, at 557-558]; id., at 808, 817 [103 S.Ct., at 1580, 1584-1585, 75 L.Ed.2d, at 570, 575-576] (Rehnquist, J., dissenting), a more flexible standard applies. A court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiffs rights.’ Id., at 789 [103 S.Ct., at 1570, 75 L.Ed.2d, at 558]; Tashjian [v. Republican Party of Connecticut], supra [479 U.S. 208], at 213-214 [107 S.Ct. 544, at 547-549, 93 L.Ed.2d 514, at 522-523 (1986) ].

“Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’ Norman v. Reed, 502 U.S. 279, 289 [112 S.Ct. 698, 705-706, 116 L.Ed.2d 711, 723] (1992). But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions. Anderson, 460 U.S., at 788 [103 S.Ct., at 1570, 75 L.Ed.2d, at 557]; see also id., at 788-789, n. 9 [103 S.Ct., at 1570, 75 L.Ed.2d, at 557-558].” 504 U.S. at 433-434, 112 S.Ct. at 2063-2064, 119 L.Ed.2d at 253-254.

R.C. 3513.04 does not prevent an individual from securing a position on the ballot for election to the State Board. It does not discriminate between those who are and those who are not affiliated with a party, nor does it create burdensome ballot access requirements. Rather, R.C. 3513.04 simply prohibits individuals who have run in and lost a party primary from submitting nominating petitions, or becoming candidates by write-in, for any other elective office with respect to the upcoming general election.

The effect of R.C. 3513.04 is to require that a candidate make a choice. A candidate can run in a primary election and take the chance of securing a position on the general election ballot. However, if the candidate fails to win the primary election he or she cannot then seek another elective office by way of nominating petition or by write-in. In the case at bar, relators chose to run in the March 1996 primary for the office of state representative. Then, only after they lost their primaries, relators sought to run in the general election for the State Board. Relators were not prevented from becoming candidates for election to the State Board. Certainly, had relators pursued the office of the State Board and never run in their primaries, they could have easily secured positions on the 1996 November ballot. Indeed, any burden imposed by R.C. 3513.04 was born of relators’ own failure to identify the public office in which they truly desired to serve. Additionally, although relators are prohibited from having their names placed on the 1996 November ballot, there is nothing to prevent them from running for the State Board in the next election. Therefore, we find that R.C. 3513.04 imposes only a very limited burden on relators and does not unreasonably interfere with the right of voters to have candidates of their choice placed on the ballot.

Some of the important state interests that have been recognized to uphold the constitutionality of various elections provisions are (1) having orderly, fair, and honest elections instead of chaos, (2) maintaining the integrity of the political process by preventing interparty raids and intraparty feuds, (3) maintaining the integrity of various routes to the ballot, (4) avoiding voter confusion, ballot overcrowding, or frivolous candidacies, (5) ensuring that elections are operated equitably and efficiently, (6) preventing candidacies that are prompted by short-range political goals, pique, or personal quarrel, and (7) preventing parties from fielding an independent candidate to capture and bleed off votes in a general election that might otherwise go to another party. See, generally, U.S. Term Limits, Inc. v. Thornton (1995), 514 U.S.-,-, 115 S.Ct. 1842, 1870, 131 L.Ed.2d 881, 919; see, also, Storer v. Brown (1974), 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714; and Foster v. Cuyahoga Cty. Bd. of Elections (1977), 53 Ohio App.2d 213, 7 O.O.3d 282, 373 N.E.2d 1274.

Ohio has carefully set forth which public offices are subject to partisan primaries and those that call for nonpartisan elections. R.C. 3505.04. However, compliance with R.C. 3505.04 does not necessarily mean that a person who decides to run for a nonpartisan office is not affiliated with a particular party. It is indeed possible that individuals who compete for a particular nonpartisan position, such as the State Board, are actually members of the same party.

In Foster, supra, the Court of Appeals for Cuyahoga County held that R.C. 3513.04 was constitutional as applied to defeated primary candidates running for a different office in the succeeding general election. In reaching this conclusion, the court of appeals stated:

“A defeated party primary candidate running in a general election by write-in even for a different office with a different electorate can conceivably have the effect of diminishing the general election as a major struggle. There is a strong suggestion that a loser in a party primary is not an independent in terms of political philosophy; party allegiance was demonstrated by candidacy in the primary election. The independent candidacy in the general election of a defeated party primary candidate is suggestive of intraparty feuding. The candidacy of an individual whose political philosophy and voter support is independent of the major parties is not limited by R.C. 3513.04 since this individual would not ordinarily be a candidate in a party primary.” (Footnote omitted.) 53 Ohio App.2d at 232, 7 O.O.3d at 292-293, 373 N.E.2d at 1286.

It is evident that relators’ first and foremost desire was to become state representatives. However, relators lost their primaries and then filed nominating petitions seeking reelection to the State Board. Clearly, R.C. 3513.04 was enacted to address this type of situation. A state may enact legislation which is designed to prevent the possibility of intraparty conflicts, voter confusion, and candidacies prompted by short-range goals. “Legislatures * * * should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights,” Munro v. Socialist Workers Party (1986), 479 U.S. 189, 195-196, 107 S.Ct. 533, 537-538, 93 L.Ed.2d 499, 506.

With respect to the situation here, we believe that relators have failed to overcome the presumption of constitutionality afforded R.C. 3513.04. Burdick, supra, 504 U.S. at 441, 112 S.Ct. at 2067, 119 L.Ed.2d. at 258 (“[W]hen a State’s ballot access laws pass constitutional muster as imposing only reasonable burdens on First and Fourteenth Amendment rights * * * a prohibition on write-in voting will be presumptively valid, since any burden on the right to vote for the candidate of one’s choice will be light and normally will be counterbalanced by the very state interests supporting the ballot access scheme.”). See, also, State v. Dorso (1983), 4 Ohio St.3d 60, 61, 4 OBR 150, 151, 446 N.E.2d 449, 450 (“[A]ll legislative enactments enjoy a presumption of constitutionality,” and “the courts must apply all presumptions and pertinent rules of construction so as to uphold, if at all possible, a statute or ordinance assailed as unconstitutional.”); and Herman, 72 Ohio St.3d at 587, 651 N.E.2d at 999, citing Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 352, 639 N.E.2d 31, 33 (“Statutes are presumed to be constitutional unless shown beyond a reasonable doubt to violate a constitutional provision.”).

R.C. 3513.04 does not impose an unconstitutional burden upon the First and Fourteenth Amendment rights of relators and voters. Ohio clearly has a legitimate interest in preventing potential conflicts among party members, an interest in preventing the possibility of voter confusion, and an interest in preventing candidacies that may conceivably be prompted by short-range goals.¹ Ohio’s interests outweigh the slight burden the statute places on relators. R.C. 3513.04 imposes a reasonable restriction on candidates who choose to run for public office, and it furthers the integrity of the electoral process.

Based on the foregoing, we find that respondents did not act in clear disregard of R.C. 3513.04 in denying certification of relators’ nominating petitions. Accordingly, relators’ requested writ of mandamus is denied.

Writ denied.

Resnick, F.E. Sweeney and Stratton, JJ., concur. Moyer, C.J., Pfeifer and Cook, JJ., dissent.

1

. Also, although not pertinent to this case (but a decision this court will soon have to make given the plethora of election cases being filed with us), there is a compelling state interest for the state, the Secretary of State and county boards of elections, to see that elections are conducted in an orderly manner. It may be that after ballots have been printed and, especially, after absentee voting has commenced, questions of inclusion or exclusion of candidates or issues may be too late.