Opinion
No. 72-722
Decided October 25, 1972.
Elections — Primaries — Nominations — Names written on ballot — Percent required for nomination — R.C. 3513.23 — Statutory requirements discriminatory.
1. R.C. 3513.23, to the extent that it requires write-in candidates at primary elections to receive that number of votes which is equal to 15 percent of the total number of electors who vote such primary election ballot, creates invidious distinctions between write-in candidates and candidates whose names are printed on the ballot.
2. Where there are no names printed on the ballot for an office at a primary election, a write-in candidate receiving the most votes for that office who receives more votes than would have been required to have his name printed on the primary ballot pursuant to R.C. 3513.05 is entitled to have his name placed on the ballot at the general election.
APPEAL from the Court of Appeals for Franklin County.
Relators, appellees herein, filed a complaint in mandamus in the Court of Appeals to compel the respondents, members of the Board of Elections of Franklin County, to issue relator Craig A. McIntyre a certificate of nomination as the Republican candidate for the office of State Representative for the 30th Ohio House District for the November 1972 general election and to place his name on the ballot for that election.
An agreed statement of facts, filed in the Court of Appeals, relates that:
"1. Plaintiff-relator, Craig A. McIntyre, is, and was at all times pertinent hereto, a qualified elector of Franklin County, Ohio, a resident of the 30th Ohio House District and a registered Republican. Plaintiff McIntyre was a duly authorized write-in candidate for the Republican nomination for the office of State Representative for the 30th Ohio House District in the May 2, 1972 primary election, having filed his declaration of candidacy as required by law and having paid the prescribed filing fee.
"* * *
"4. The name of no candidate appeared on the printed Republican primary ballot for the 30th Ohio House District for the May 2, 1972 primary election. In said election there were two duly qualified write-in candidates for said nomination, to-wit: Plaintiff McIntyre and Roy Shinaberry. At said election, a total of six hundred and forty-five (645) votes were cast for the Republican nomination for the said office. Plaintiff McIntyre received four hundred and sixty-six (466) votes and candidate, Roy Shinaberry received one hundred and seventy-nine (179) votes. At said election four thousand three hundred twenty (4,394) [ sic] persons registered and voted as Republicans in the 30th Ohio House District.
"5. After the May 2, 1972 primary election, plaintiff McIntyre duly filed his statement of receipts and expenditures with the Franklin County Board of Elections. At a regular meeting of the said board on June 19, 1972, plaintiff McIntyre requested that he be issued a Certificate of Nomination as the Republican candidate for the 30th Ohio House District and that his name be placed on the ballot as the Republican candidate for said office. The defendants, however, voted to deny said requests solely upon the basis that plaintiff McIntyre did not receive the minimum percentage of votes specified in Ohio Revised Code Section 3513.23. Plaintiff McIntyre is in all other respects qualified to be a candidate at the next general election for the office of State Representative for the 30th House District and to assume and perform the duties of said office if elected thereto."
The Court of Appeals granted the writ as prayed for and the cause is now before this court upon appeal as a matter of right.
Messrs. Graham Dutro, Mr. James L. Graham, Messrs. Vorys, Sater, Seymour Pease and Mr. John W. Hoberg, for appellees.
Mr. George C. Smith, prosecuting attorney, and Mr. William B. Shimp, for appellants.
R.C. 3513.23 provides:
"If an elector voting at a primary election writes in a blank space provided therefor on the ballot of one political party under the title of an office for which a nomination is to be made the name of a person other than the persons whose names are printed on the ballot as candidates for such nomination, and if such elector places `X' in the rectangular space at the left of the name written, such ballot shall be counted as a vote for the nomination of the person whose name is written thereon, but in no event shall a person, whose name is written on a primary election ballot, be nominated as a candidate for election to an office if the name of no person living on the day of such primary election is printed on such ballot as a candidate for such nomination, unless the total number of votes cast for the person whose name is written on the ballot is not less than that number which is equal to fifteen per cent of the total number of electors who vote such primary election ballot at such primary election."
As disclosed in the agreed statement of facts, relator McIntyre failed to receive "that number [of votes] which is equal to fifteen per cent of the total number of electors who vote such primary election ballot * * *."
Thus, if R.C. 3513.23 is constitutionally valid, the board of elections properly denied relator's requests for a certificate of nomination and for the placing of his name on the ballot at the general election.
It is relator's position, however, that R.C. 3513.23 violates the Equal Protection Clause of the Ohio Constitution (Section 2, Article I), and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
In Williams v. Rhodes (1968), 393 U.S. 23, the Supreme Court of the United States held that Ohio election statutes requiring new political parties seeking ballot positions in presidential elections to obtain petitions signed by qualified electors totaling 15 percent of the number of ballots cast in the last gubernatorial election created invidious distinctions and were violative of the Equal Protection Clause because they gave established parties an advantage over new parties.
In the course of the opinion in Williams, the court said, at page 30:
"We turn then to the question whether the court below properly held that the Ohio laws before us result in a denial of equal protection of the laws. It is true that this court has firmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that `invidious' distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the state claims to be protecting, and the interests of those who are disadvantaged by the classification. In the present situation the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. * * *"
While the statutes declared unconstitutional in Williams required a new party to obtain petitions signed by electors totaling 15 percent of the number of ballots cast in the last gubernatorial election, the Republican and Democratic parties faced, as noted in the opinion, "substantially smaller burdens" in that they were "allowed to retain their positions on the ballot simply by obtaining 10% of the votes in the last gubernatorial election and need not obtain any signature petitions." ( Id, page 25.)
Under R.C. 3513.23, a write-in candidate is required to receive 15 percent of the "total number of electors who vote" the primary election ballot in order to be nominated, while a candidate whose name is printed on the ballot is not required to receive any set percentage of votes in order to be nominated. Thus, the distinction between classes found in R.C. 3513.23 is greater than the distinction held to be unconstitutional in Williams.
Another factor to be considered in light of Williams is the "right of qualified voters * * * to cast their votes effectively."
As the Court of Appeals pointed out in its opinion, application of R.C. 3513.23 denies the electors who voted for relator "* * * the effectiveness of their votes, not because the candidate for whom they voted did not receive the highest number of votes, but because they were insufficient in number to meet the 15 percent requirement of R.C. 3513.23."
We note here that relator received in excess of ten percent of the vote of the "total number of electors" who voted the primary election ballot, that he received more votes than would have been required to have his name printed on the primary ballot pursuant to R.C. 3513.05, and that he "is in all other respects qualified to be a candidate at the next general election for the office of State Representative * * *."
We are of the opinion that, in light of the decision in Williams v. Rhodes, supra ( 393 U.S. 23), R.C. 3513.23, to the extent that it requires write-in candidates at primary elections to receive that number of votes which is equal to 15 percent of the total number of electors who vote such primary election ballot, creates invidious distinctions between write-in candidates and candidates whose names are printed on the ballot. Where there are no names printed on the ballot for an office at a primary election, a write-in candidate receiving the most votes for that office who receives more votes than would have been required to have his name printed on the primary ballot pursuant to R.C. 3513.05 is entitled to have his name placed on the ballot at the general election.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
SCHNEIDER, HERBERT, CORRIGAN and STERN, JJ., concur.
LEACH and BROWN, JJ., dissent.
In Williams v. Rhodes (1968), 393 U.S. 23, relied upon by the majority, the only method a new party had of obtaining a place on the Ohio ballot was by filing petitions signed by electors totaling 15 percent of the number of ballots cast in the last gubnernatorial election. Here, Craig McIntyre, as provided by R.C. 3513.05, could have had his name placed on the primary ballot by the relatively simple process of filing a petition signed by 100 qualified electors of the district who were members of the Republican Party; in which event the 15 percent requirement of R.C. 3513.23 would have had no application, either to McIntyre or any write-in opponent of McIntyre.
In my opinion, the legislative decision to require a 15 percent vote for qualification for placement on the November ballot where no name of a living person appears on the May ballot, even if unwise as a matter of policy, does not unconstitutionally discriminate against write-in candidates in favor of candidates whose names might have been but were not on the ballot. A write-in candidate, allegedly discriminated against, could have easily qualified for a place on the printed primary ballot.
BROWN, J., concurs in the foregoing dissenting opinion.