dissenting.
{¶ 65} I respectfully dissent.
{¶ 66} In State ex rel. Walsh v. Ashtabula Cty. Bd. of Elections (1992), 65 Ohio St.3d 197, 199, 602 N.E.2d 638, we acknowledged that the Ohio Constitution is the place to begin to determine whether a person has the qualifications of an elector and that Section 1, Article V of the Constitution “allows anyone to vote who has been registered for thirty days of more, if the other qualifications have been met.” In deciding that case, we looked to the election statutes to supplement the constitutional definition of a qualified elector, not to modify it.
{¶ 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.)
*124{¶ 70} Notably, the Constitution uses the present perfect form of the verb “has been registered to vote for thirty days” (emphasis added), which conflicts with the majority’s use of the future perfect form, “mil have been registered for 30 days by the date of the election” (emphasis added). Moreover, this provision was added to the Constitution by initiative petition in response to the General Assembly’s enactment of a law allowing same-day registration and voting. See Am.Sub.S.B. No. 125, 137 Ohio Laws, Part I, 305, 316-318. The constitutional provision was approved by voters of Ohio in November 1977 by a significant margin (more than 60 percent). 137 Ohio Laws, Part II, 4155. This history provides a clear indication of the will of the citizens of Ohio that voters be registered in this state for a time certain prior to voting.
{¶ 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), 96 Ohio St. 172, 117 N.E. 173, paragraph one of the syllabus.
{¶ 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. * * *
*125{¶ 78} “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.)
{¶ 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), 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714, that “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Ohio’s statutory scheme is designed to bring order to the elections process by providing a framework of reasonable deadlines and requirements that allow candidates to place their names on the ballot and allow citizens to register to vote. But whatever role these statutes play in an election, they cannot eviscerate the constitutional definition of a qualified elector.
{¶ 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), 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481. Neither the Ohio Constitution nor the Ohio election statutes prohibit any electors from voting in this election. Upon becoming a qualified elector, a person may choose to vote in person or by absentee ballot, within the boundaries of the statutes regulating absentee voting. See R.C. 3509.03.
{¶ 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.
Chester, Willcox & Saxbe, L.L.P., Donald C. Brey, Elizabeth J. Watters, and Deborah A. Scott, for relators. Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, Aaron Epstein, Michael J. Schuler, and Dennis P. Smith Jr., Assistant Attorneys General, for respondent. Benesch, Friedlander, Copian & Aronoff, L.L.P., and William M. Todd, urging granting of the writ for amicus curiae State Representative Larry Wolpert. Thomas C. Drabick Jr., urging denial of the writ for amicus curiae Ohio American Federation of Labor-Congress of Industrial Organizations. Hunter, Carnahan, Shoub & Byard and Michael J. Hunter, urging denial of the writ for amicus curiae District 1199, Health Care and Social Service Union, Service Employees International Union.{¶ 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, 116 Ohio St.3d 172, 2007-Ohio-5838, 876 N.E.2d 1231, ¶ 13. In this case, relators have met that burden. As we emphasized in State ex rel. Melvin v. Sweeney (1950), 154 Ohio St. 223, 225, 43 O.O. 36, 94 N.E.2d 785, when the secretary gives the boards of elections “an erroneous interpretation of the election laws there must be some remedy to correct the error and to require proper instructions in lieu of those erroneously given.” Moreover, we stated in State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299, 2007-Ohio-5228, 874 N.E.2d 1205, ¶ 30, that “[w]e need not defer to the secretary of state’s interpretation [if] it is unreasonable and fails to apply the plain language” of the law.
{¶ 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.
Slaby and Cupp, JJ., concur in the foregoing opinion. Altshuler Berzon, L.L.P., Stephen P. Berzon, Stacey M. Leyton, Barbara J. Chisholm, and Peter E. Leckman, urging denial of the writ for amicus curiae Ohio American Federation of Labor-Congress of Industrial Organizations and District 1199, Health Care and Social Service Union, Service Employees International Union. Meredith Bell-Platts, Neil Bradley, Carrie L. Davis, Jeffrey M. Gamso, Daniel P. Tokaji, Paul Moke, Teresa James, Richard Saphire, Brenda Wright, Jon Greenbaum, Bob Kengle, Jennifer R. Scullion, and Matthew Morris, urging denial of the writ for amici curiae IMatters; American Civil Liberties Union of Ohio; American Civil Liberties Union Foundation, Inc., Voting Rights Project; Demos; Lawyers’ Committee for Civil Rights Under Law; League of Women Voters of Ohio; Project Vote; Northeast Ohio Coalition for the Homeless; and United States Hispanic Leadership Institute, Inc.