Opinion
No. 85-1643
Decided October 30, 1985.
Elections — Mandamus — Residency — Writ issued to compel registration of person as voter, when.
IN MANDAMUS.
Relator, Sharon L. Van Auken, first registered to vote in the Kelleys Island precinct of Erie County on October 7, 1984. She voted in that precinct by absentee ballot in the 1984 general election.
A challenge to her qualifications as an elector was filed on May 6, 1985, alleging that she was not a resident of Kelleys Island. After a hearing on July 10, 1985, the Erie County Board of Elections determined that she was not a resident of Kelleys Island and deleted her name from the precinct's registration lists. She did not appeal that decision, but, subsequently, changed her residency status and how lives full-time on Kelleys Island. By affidavit, she states that she has only left the island for three short visits since June 7, 1985, the longest being three days. She further states that her son is now enrolled in the Kelleys Island school, that she and her husband are building a new home on Kelleys Island on the same road where they now live, and that her husband is registered to vote in the Kelleys Island precinct. These facts are not disputed by respondents.
Relator submitted a new registration form to the Erie County Board of Elections and demanded that she be registered as a voter in the Kelleys Island precinct for the November 5, 1985 election. The board denied her request at its meeting of October 24, 1985. The minutes of the meeting indicate that the denial was "* * * for the reason she did not exercise her right to appeal her being deleted to the Court of Common Pleas * * *."
Relator then filed this action in mandamus against respondents, the Erie County Board of Elections, its director and members, and the Secretary of State, seeking the issuance of a writ to compel them to register her as a voter in the Kelleys Island precinct in time for the general election on November 5, 1985.
Thomas G. Petkewitz, for relator.
Anthony J. Celebrezze, Jr., attorney general, and Andrew I. Sutter, for respondent secretary of state.
John A. Pfefferle, prosecuting attorney, and Jeffrey A. Catri, for respondent board of elections.
Relator contends she has established residency in Kelleys Island precinct and respondents are under a clear legal duty to register her as a voter in the November 5 election.
Respondent board of elections contends that relator is precluded from relief in mandamus and from being registered for the November 5 election because she did not appeal the ruling of the board deleting her name from the registration lists. This argument is irrelevant in view of the fact that relator claims to have modified her residency status and has submitted a new registration form.
Respondents make no challenge to the facts which relator alleges now support her residency on Kelleys Island. Thus, for purposes of this action, they must be accepted as true. There is nothing which prohibits relator from removing the disability formerly found by the board of elections and re-registering.
Respondents, having failed to assert any challenge to relator's new registration, are under a clear legal duty to register her as an elector in the Kelleys Island precinct of Erie County in the November 5, 1985 election.
Accordingly, the writ as prayed for is allowed.
Writ allowed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
DOUGLAS and WRIGHT, JJ., dissent.