State ex rel. Stokes v. Brunner

Moyer, C.J.,

dissenting.

{¶ 31} I dissent from the judgment granting the writ of mandamus to compel the secretary of state to declare that observers are permitted in all active polling places and to instruct local election officials to permit observers in all early-voting locations. As a policy matter, no one would argue with the beneficial effect poll observers may provide in ensuring the integrity of the voting process and instilling public trust in the election results. See, e.g., Secretary of State Directive 2008-29 (Feb. 25, 2008).

{¶ 32} That is not the issue with which we are presented. The issue here is whether the secretary of state acted reasonably in her application of the pertinent statutory law. The rationale for the majority decision rejects two of the most firmly established principles of law applied consistently by this court:

{¶ 33} 1. Election laws are mandatory and require strict compliance; substantial compliance is acceptable only when an election provision states that it is. See State ex rel. Grounds v. Hocking Cty. Bd. of Elections, 117 Ohio St.3d 116, 2008-Ohio-566, 881 N.E.2d 1252, ¶ 21, quoting State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 476, 764 N.E.2d 971; see also State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 32.

{¶ 34} 2. Courts have a duty to defer to the reasonable interpretation by the secretary of state of pertinent statutory provisions. See State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 84; cf. State ex rel. Myles v. Brunner, 120 Ohio St.3d 328, 2008-Ohio-5097, 899 N.E.2d 120, ¶ 26 (court must defer to secretary of state’s interpretation when it is reasonable).

{¶ 35} When the pertinent provisions, including R.C. 3505.21, are examined here, there is no question that the General Assembly has not provided for observers for in-person absentee voting and that we cannot judicially legislate to add this nonexistent requirement. State ex rel. Columbia Res. Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815, ¶32 (court cannot “add a requirement that does not exist in the statute”). For the following reasons, it is evident that the statute applies only to election-day voting *258and does not impose any specific requirement that duly appointed observers may serve during in-person absentee voting that precedes election day.

{¶ 36} First, in his merit brief, Stokes cites part of only one sentence in R.C. 3505.21 to support his claim: “Upon the filing of a certificate, the person named as observer in the certificate shall be permitted to be in and about the polling place for the precinct during the casting of the ballots * * Stokes also claims that the “two important phrases” in R.C. 3505.21 are “polling place” and “casting of [the] ballots.”

{¶ 37} But as the secretary of state persuasively asserts, “[i]n reviewing a statute, a court cannot pick out one sentence and disassociate it from the context, but must look to the four corners of the enactment to determine the intent of the enacting body.” State v. Wilson (1997), 77 Ohio St.3d 334, 336, 673 N.E.2d 1347; see also State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 34 (applying the foregoing rule of construction to an election statute).

{¶ 38} A review of the full statute reveals that it relates to election-day casting and counting of ballots: (1) no person can serve as observer unless the board of elections has been notified, and this notification must be provided by any political party, group of candidates, or committee “not less than eleven days before the election”-, (2) the notification may be amended by filing an amendment with the board of elections “at any time until four p.m. of the day before the election”-, (3) committees that advocate or oppose a measure may file a petition to appoint observers “[n]ot later than four p.m. of the twentieth day prior to an election”-, (4) observers appointed to a precinct “may file their certificates of appointment with the presiding judge of the precinct at the meeting on the evening prior to the election, or with the presiding judge of the precinct on the day of the election”-, and (5) even in the sentence cited by Stokes, an observer’s rights are conditioned upon the filing of the certificate, which is tied to the day of the election, and observers “shall be permitted to watch every proceeding of the judges of elections from the time of the opening until the closing of the polls,” which contemplates the pertinent election day, which is November 4 here. (Emphasis added.) R.C. 3505.21.

{¶ 39} The majority has issued a writ of mandamus to, inter alia, “compel the secretary of state * * * to instruct boards of elections to allow observers in all early-voting locations as long as the pertinent requirements of R.C. 3505.21 have been satisfied.” The error in this result is revealed when attempting to apply the previously specified timing requirements of R.C. 3505.21, including the time to file a certificate of appointment, which are expressly tied to election day, to the absentee-voting period before election day. See State ex rel. Todd v. Felger, 116 Ohio St.3d 207, 2007-Ohio-6053, 877 N.E.2d 673, ¶ 10 (court has duty to construe statutes to avoid unreasonable or absurd results).

*259{¶ 40} Here, for example, Stokes attempted to file his certificate of appointment with election officials on October 3, which is neither “on the evening prior to the election” nor “the day of the election,” as required by R.C. 3505.21.

{¶ 41} And what effect is the required 11-day notice in R.C. 3505.21 of the appointment of observers if a political party appoints an observer for the absentee-voting period that began on September 30, but then provides the notice specified in the statute the requisite 11 days before the November 4 election, i.e., October 2Jfl This would mean that observers could begin observing before political parties have any duty to notify local boards of elections of their appointment, a result that contradicts the plain language of R.C. 3505.21.

{¶ 42} In effect, the majority’s adoption of Stokes’s tortured construction of R.C. 3505.21 defies our longstanding precedent that “ ‘election laws are mandatory and require strict compliance and that substantial compliance is acceptable only when an election provision states that it is.’ ” See Grounds, 117 Ohio St.3d 116, 2008-Ohio-566, 881 N.E.2d 1252, ¶ 21, quoting Ditmars, 94 Ohio St.3d at 476, 764 N.E.2d 971; see also Stoll, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 32.

{¶ 43} Second, a review of related statutes indicates that when the General Assembly has intended to permit observers, including in the context of absentee voting, it has done so with specific, unambiguous language and often while incorporating the procedure specified in R.C. 3505.21. See Colvin, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶46 (“statutes that relate to the same subject matter must be construed in pari materia so as to give full effect to the provisions”); R.C. 3501.26 (“When the polls are closed after a primary, general, or special election, the receiving officials shall, in the presence of the counting officials and attending observers, proceed * * * ”); R.C. 3505.183(D) (“Observers, as provided in section 3505.21 of the Revised Code, may be present at all times that the board is determining the eligibility of provisional ballots to be counted and counting those provisional ballots determined to be eligible”); R.C. 3505.32(B) (“The county executive committee of each political party * * * that was permitted by section 3505.21 of the Revised Code to have a qualified elector serve as an observer during the counting of the ballots at each polling place at an election may designate a qualified elector who may be present and may observe the making of the official canvass”); R.C. 3509.06(F) (“Observers may be appointed under section 3505.21 of the Revised Code to witness the examination and opening of identification envelopes and the counting of absent voters’ ballots under this section”); R.C. 3515.04 (“Observers shall be permitted to see the ballots” during a recount); R.C. 3515.13 (“Both the contestor and contestee [in an election contest involving a recount] may appoint one observer”).

*260{¶ 44} If the General Assembly had intended that duly appointed observers be allowed for in-person absentee voting, it could have easily done so, as it has in the provisions cited, including for counting absentee ballots in R.C. 3509.06(F), but the General Assembly did not. See also R.C. 3509.05(A), which provides that when absentee ballots are delivered to an elector at a board of elections, the elector “may retire to a voting compartment provided by the board and there mark the ballots,” but does not include any provision for observers during this process.

{¶ 45} In fact, effective January 27, 2006, the General Assembly first adopted no-fault absentee voting. See 2006 Sub.H.B. No. 234. The General Assembly enacted the provisions replacing challengers and witnesses with observers, including R.C. 3505.21, effective June 1, 2006, i.e., after no-fault absentee voting had commenced. See 2006 Am.Sub.H.B. No. 3. Again, if the General Assembly had so intended, it could have specified that its newly enacted observer provisions applied to in-person absentee voting. But it did not.

{¶ 46} Stokes’s reliance on R.C. 3501.11(Z) does not warrant a different conclusion. That statute provides that elections boards have a duty to, “[o]n any day on which an elector may vote in person at the office of the board or at another site designated by the board, consider the board or other designated site a polling place for that day. All requirements or prohibitions of law that apply to a polling place shall apply to the office of the board or other designated site on that day.” (Emphasis added.) Although this statute requires boards of elections to treat in-person absentee-voting locations as polling places, it does not confer any independent right on .observers when it is not election day.

{¶ 47} Therefore, R.C. 3505.21 and related statutes impose no duty on election officials to permit observers during the in-person absentee voting for the November 4 general election. At a minimum, the foregoing discussion establishes beyond dispute that the secretary of state — the state’s chief election officer — has adopted a reasonable construction of the pertinent provisions. Consequently, courts, including this one, have a duty to defer to the secretary’s reasonable interpretation. Colvin, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, at ¶ 57; Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 13.

{¶ 48} Based on the foregoing, Stokes has established neither a clear legal right nor a corresponding clear legal duty on the part of the secretary of state to permit observers at early-voting locations. Consequently, he is not entitled to the requested extraordinary relief in mandamus, and the writ must be denied. Ultimately, it is the sole province of the General Assembly to weigh the various interests and policies involved to determine whether permitting observers during in-person absentee voting is appropriate, and until it does so, courts have no *261authority to legislate a duty that the General Assembly has not yet recognized. State ex rel. Canales-Flores v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 129, 2005-Ohio-5642, 841 N.E.2d 757, ¶ 40, quoting Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 14 (‘“The Ohio General Assembly, and not this court, is the proper body to resolve public policy issues’ ”).

Porter, Wright, Morris & Arthur, L.L.P., James P. Hadden, and Matthew D. Crumpton, for relator. Nancy Hardin Rogers, Attorney General, and Richard N. Coglianese, Damian W. Sikora, and Pearl M. Chin, Assistant Attorneys General, for respondent.

{¶ 49} Because the court ignores the plain language of the pertinent statutes, our well-established precedent in election cases to construe election statutes to require strict compliance and avoid unreasonable or absurd results, as well as our equally well-settled duty to defer to the reasonable interpretation of those statutes by the state’s chief election officer, I dissent.

Wolff and Lanzinger, JJ., concur in the foregoing opinion.