Brown v. Wood Cty. Bd. of Elections , 79 Ohio App. 3d 474 ( 1992 )

I must respectfully dissent. In State ex rel. Zahneis v. Bd. ofElections (1971), 27 Ohio App. 2d 233, 56 O.O.2d 402,273 N.E.2d 797, a candidate for the office of mayor filed a petition including the circulator's affidavit required by R.C.3501.38(E). Thereafter, a protest was lodged by the incumbent candidate who alleged that, despite the certification, the circulator had not witnessed each and every signature. In that case, as in this case, the board of elections convened a hearing to resolve the question of the validity of the petitions. The protestor presented extrinsic evidence that the circulator did not witness each and every signature on the petition. The board, therefore, declared the petitions to be invalid based on the extrinsic evidence presented. That decision was upheld by the Hamilton County Court of Appeals when the circulator's candidate sought mandamus to compel the board to accept the petition. If, as in Zahneis, extrinsic evidence can be accepted by the board to invalidate a petition and disenfranchise voters who favored the challenger, then I see no reason why, in this case, extrinsic evidence could not be utilized to render valid a facially invalid petition. Certainly it should not be simpler to disenfranchise than it is to encourage robust political debate. As indicated above, a state may impose reasonable restrictions on access to the ballot by a candidate. Anderson v. Celebrezze (1983), 460 U.S. 780, 103 S. Ct. 1564, 75 L. Ed. 2d 547. If the subpoena power of the board can only be exercised to deny access to the ballot and not to allow for a full slate of candidates, then I believe the procedure would be unreasonable. Therefore, in keeping with the general principle that state laws should be construed, if possible, to give them constitutional effect, I construe the provisions of R.C. Title 35 to allow for the presentation of evidence showing that the necessary signatures were obtained according to law, despite an incomplete certification by the circulator.

Moreover, I cannot find that this procedure is violative of R.C. 3501.38(I). The extrinsic proof presented at the hearing of the board did no more alter, correct or add anything to thepetition than was done in State ex rel. Zahneis v. Bd. ofElections, supra. Certainly, if the board of elections has the authority and power to determine the validity of nominating petitions, that power, if as construed by the majority, is meaningless inasmuch as whichever action they may take pursuant to any extrinsic evidence, would under the majority's reasoning be an addition, alteration, or correction of the petition pursuant to R.C. 3501.38(I).