Opinion
No. 71-553
Decided October 6, 1971.
Elections — Referendum petition — Sufficient signatures — Petition certified as valid — Additional signature added in presence of circulator — Petition not rendered invalid.
IN PROHIBITION.
The facts are agreed. In May 1971, the Fulton County Board of Education transferred an area from the Gorham-Fayette School District to the Archbold Area Local School District. In June 1971, a referendum petition was filed with the Fulton County Superintendent of Schools, who delivered the petition to the board of elections to determine the sufficiency of the signatures. The board of elections certified that the petition contained a sufficient number of valid signatures to place the issue on the ballot, and returned the petition, with the certification, to the superintendent of schools. After the petition had been returned to the superintendent's office, an additional person signed the petition in the presence of the circulator and a notary public.
When the county board of education met it determined that the signature added to the petition after certification was invalid, but that, since there was a sufficient number of valid signatures, the referendum issue should be on the ballot.
Relators seek to prevent the respondents, members of the Board of Elections of Fulton County, from submitting the referendum issue to the voters.
Mr. David P. Rupp, Jr., for relators.
Mr. Richard B. McQuade, Jr., prosecuting attorney, for respondents.
The issue is whether a referendum petition which had been declared valid by a board of elections is rendered invalid by the subsequent addition of another signature.
Relators contend that the subsequently added, and hence invalid, signature made the whole petition invalid. They cite R.C. 3501.38(I), which states: "No alterations, corrections, or additions may be made to a petition after it is filed in a public office." Relators also cite State, ex rel. Weaver, v. Wiethe (1965), 4 Ohio St.2d 1, in which relator was not permitted to file additional signatures after the board of elections had determined that an insufficient number had been filed. Weaver does not require a writ to issue where this addition (or deletion) does not affect the efficacy of the petition.
Relators argue that any result short of declaring the entire petition invalid would be contrary to the intent of the General Assembly. It is argued further that the only effective remedy to enforce the statute is to declare the entire petition invalid.
Respondents point out that R.C. 3311.22 requires a county superintendent of schools to submit a referendum petition to the board of elections to determine its sufficiency and argue that R.C. 3501.38(I) was enacted to prevent alteration of the petition between the time of its filing and when it receives the consideration of the board of elections. Respondents suggest that if changes made on a petition after it has been found sufficient will invalidate it, then opponents of an issue could seek to deliberately alter, and thus invalidate, the petition.
Only one paragraph in R.C. 3501.38 (paragraph [F]) makes any reference to the rejection of an entire petition which is in instances where the circulator "knowingly permits an unqualified person to sign." That is not the situation here.
It is not contended that there was fraud, deception or undue influence in connection with the preparation, circulation, signing, filing or validation of the petition.
Writ denied.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.