dissenting.
{¶ 46} I have long been against the application of laches as a first resort in election cases. State ex rel. Ascani v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 495, 700 N.E.2d 1234 (Pfeifer, J., concurring). The rights to vote and to petition a government are the most basic and cherished of our fundamental rights, and we should endeavor to resolve election issues substantively whenever possible.
{¶ 47} Laches is especially not applicable here because relators did not sit on their rights. Nader’s supporters learned on September 8 that they had successfully submitted a sufficient number of signatures on their nominating petition. On September 21, the Secretary of State preliminarily certified the petition, provisionally placing Nader on the ballot. To what end would Nader supporters have contested the Secretary of State’s certification of a legally sufficient number of signatures? Nader’s supporters were properly on the way to the next aspect of their campaign — their job was to be planting yard signs, not planting premature motions in Ohio courthouses. Only after the four-week review and hearing of the protest culminating in the Secretary of State’s September 28 decision did the county boards’ rejection of 8,009 signatures become significant. It was the Secretary of State who waited three weeks to hold a hearing on the protesters’ claim and nearly one month, all told, to rule on the protest. A decision to remove Nader from the ballot was issued the day that absentee ballots were to be first mailed. That bell could not be unrung. Relators filed the present action within six days, two of which were weekend days.
{¶ 48} At this point, absentee ballots have been mailed, and many have been returned to local boards of elections. We cannot have a 2004 presidential election in which Nader’s name appears on all of the ballots. The time has passed here for the best result, leaving us to find the best result possible. Assuming that a review of rejected signatures would yield the remaining number necessary for Nader to get on the ballot, what would be the best result? Because some *578absentee voters were unable to cast a vote for Nader, should voters casting ballots on election day also be denied that right?
{¶ 49} It is important that a properly certified Nader appear on the Ohio presidential ballot. That is not because of the unknowable effect his presence would have on a closely divided presidential election in Ohio, but because his supporters have the right to be heard as much as supporters of the other candidates. As many electors as possible should have the option to cast a vote for Nader — the fact that some cannot have that option does not mean that most should not. Pursuant to R.C. 3509.01, absentee ballots are to be available for use 35 days before an election. A universe of potential change lies before voters 35 days out — their favored candidate could die, be unmasked, commit a felony, or change his stance on an important issue — but that is the risk that absentee voters take. The world need not stand still to protect the rights of the absentee voter:
{¶ 50} “The casting of an absentee ballot is a privilege and not an absolute right. It is a privilege accorded individuals who, because of their own business, or their own pleasure, see fit not to be within the jurisdiction, or within the municipality, on election day. They must take the situation as they find it. If they have absented themselves from the voting place at the time the issue is presented properly, they have so absented themselves at their own risk.” Portmann v. Bd. of Elections of Stark Cty. (1938), 60 Ohio App. 54, 60, 13 O.O. 420, 19 N.E.2d 531.
{¶ 51} Therefore, we should not let the release of absentee ballots restrain this court from ordering a modification of the election-day ballot to include Nader as a choice for president if the facts and law merit his inclusion.
{¶ 52} The law and the process relied upon by the county boards and the Secretary of State to remove Nader from the ballot are dubious. Local boards made their decisions assuming the continued viability of R.C. 3503.06, which provides:
{¶ 53} “No person shall be entitled * * * to sign or circulate any declaration of candidacy or any nominating, initiative, referendum, or recall petition, 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.”
{¶ 54} R.C. 3503.06 violates the constitutional rights of the Nader circulators by requiring them to be registered voters and Ohio residents. The United States Supreme Court in Buckley v. Am. Constitutional Law Found., Inc. (1999), 525 U.S. 182, 194-195, 119 S.Ct. 636, 142 L.Ed.2d 599, explicitly found a Colorado statute requiring circulators of initiative petitions to be registered voters to be violative of the First Amendment’s free-speech guarantee.
Cassidy & Associates and Michael P. Cassidy; Mark R. Brown, for relators.{¶ 55} The Buckley majority declined to address the constitutionality of residency requirements. We should now make an explicit determination on the constitutionality of the circulator-residency requirement in this case. In Buckley, the court was addressing initiative petitions circulated in Colorado. Obviously, those initiatives affected only Coloradoans. Here, where we are dealing with a presidential election, our only national election, the national interest is at issue. In this instance, First Amendment considerations must outweigh a state’s interest in keeping local issues settled by local voters. I would therefore hold that R.C. 3503.06 as applied to presidential elections is unconstitutional as to both residency and registration requirements.
{¶ 56} We do not know to what extent registration or residency affected the boards of elections’ decisions on the 8,009 rejected signatures. We should order the Secretary of State to make that determination and any necessary correction.
{¶ 57} The outcome in this case also is the result of a flawed process. Relators allege that boards of elections may have ignored the petitions of circulators whose voter registrations were filed but unprocessed. Before going to the extraordinary measure of removing a name from the ballot, the Secretary of State should have ordered the local boards to determine whether the registrations of circulators were up to date. Not doing so constituted an abuse of discretion and a violation of the Secretary of State’s statutory duty to oversee county boards of elections. R.C. 3501.05(M). The decision to remove Nader from the ballot was the direct result of an overtaxed voter-registration system that lacked statewide oversight.
{¶ 58} To assume that it is too late to correct the errors of the Secretary of State is to sell the electoral process short. The election is not until November 2 — we should make every effort until that time to present Ohio’s electors a representative ballot.
{¶ 59} I accordingly dissent, would grant relator’s mandamus action, and would order the Secretary of State to conduct a review of the 8,009 rejected signatures to determine how many were rejected due to residency or registration status or because the circulator’s registration had not yet been processed. The intervenors-protesters should also be given the opportunity to challenge on an expedited basis any signatures newly certified. If, under this review and under these new standards Nader reaches 5000 valid signatures, his name should be added to the election-day ballot.
O’Donnell, J., concurs in the portion of the foregoing dissenting opinion regarding laches. Jim Petro, Attorney General, Richard N. Coglianese and Damian W. Sikora, Assistant Attorneys General, for respondent. Law Offices of Donald J. McTigue and Donald J. McTigue; Kirkland & Ellis and Andrew B. Clubok, for intervening respondents.