Summary
In Snyder, supra, the court had ordered ballots to an election to be impounded as part of a mandamus action against the board of elections.
Summary of this case from Smith v. Granville Twp. Bd. of TrusteesOpinion
No. 73-840
Decided February 6, 1974.
Elections — Board of elections — Local option petitions — Protest — Hearing and decision to be prompt — R.C. 4301.33 and 4305.14 — Delay in final determination — Mandamus — Available, when — To order ballots counted and election certified.
IN MANDAMUS.
On August 8, 1973, relator filed local option election petitions with the Board of Elections of Crawford County, which petitions the board found to be valid.
A protest, filed to the petitions on August 31, alleged, inter alia, that two of the precincts were not a "residence district," and that, because of misrepresentations of the circulators, the petitions were fraudulent. A hearing on the protest was held on September 25, and the local option issues were ruled off the ballot on the ground that the two contiguous precincts did not constitute a "residence district." The board did not rule on any other allegation of the protest.
On October 1, the Secretary of State notified the board that its decision concerning "residence precincts" was incorrect and that the petitions were not to be invalidated on that basis alone. The board then determined that it would conduct a further hearing on the protest on October 25, 1973.
See Stewart v. Trumbull County Bd. of Elections (1973), 34 Ohio St.2d 129.
On October 11, 1973, relator filed a mandamus action in this court for an order directing respondents Board of Elections of Crawford County to hold the local option election for which petitions had been filed. On October 16, the Prosecuting Attorney of Crawford County filed a motion to dismiss the mandamus action, and, on October 19, this court overruled the motion to dismiss, dismissed the Secretary of State as a party, and ordered that the election be held, but that the ballots be impounded and not counted.
The protestors took no part in this mandamus action.
Respondents then conducted a hearing on the protest on October 25 and 26, at the conclusion of which both sides were given time to file briefs, which extended the time for determination of the protest beyond November 6, 1973, the date set for the election.
On December 14, 1973, respondents decided that petitions were invalid and that, therefore, there were not enough signatures to place the local option issues on the ballot at the election which had been held on November 6, 1973. A copy of respondents' December 14, 1973, decision was forwarded to this court on January 16, 1974.
Messrs. Stouffer, Wait Ashbrook and Mr. William G. Harrington, for relator.
Mr. Robert L. Brown, prosecuting attorney, for respondents.
Relator requests this court to order respondents to count the ballots cast on November 6, 1973, and certify the results of the election.
The purpose of the statutes allowing protest to local option election petitions and hearing thereon is for resolution and determination of a protest by a board of elections in sufficient time before the election to allow the orderly processes of campaigning and voting without the uncertainties caused by irresolution of protests.
R.C. 4305.14 and 4301.33 provide that:
"(A) Such board shall, not later than the eighty-fourth day before the day of a general election, examine and determine the sufficiency of the signatures, [and] determine the validity of such petition [for local option] * * *
"(B) If the petition is valid ["sufficient" in R.C. 4301.33] * * * the board * * * shall order the holding of a special election in the district for the submission of the questions specified * * * on the day of the next general election * * *.
"* * *
"* * * Upon the filing of such protest [against local option petitions] the election officials with whom it is filed shall promptly fix the time for hearing the same * * *. At the time so fixed such election officials shall hear the protest and determine the validity or invalidity of the petition."
Those statutes contemplate the prompt hearing of a protest filed to local option election petitions and the prompt decision of that protest by a board of elections. In this case, the hearing on October 25 and 26, 1973, was less than two weeks before the election. Furthermore, the time allowed by respondents for the filing of briefs necessarily extended a decision on the protest beyond election day. That decision was not rendered until more than one month after the election. It should be noted, also, that at the September 25, 1973, hearing on the protest respondents. apparently without objection, did not rule on the validity of the petitions, even though that issue was before them.
Under the facts of this case, respondents were under a duty to hear and finally determine the protest promptly at the earliest practicable time before the election. This, they failed to do.
Therefore, a writ of mandamus is allowed directing the Board of Elections of Crawford County to count the ballots cast in the November 6, 1973, local option election and declare the results of the election.
Writ allowed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.