Opinion
No. 32994
Decided April 2, 1952.
Elections — Candidate for delegate to national convention — Registered elector — Notice of change of address — Statute not strictly complied with — Card not in form required by statute — Section 4785-44, General Code — Candidate not thereby disqualified — Mandamus.
IN MANDAMUS.
On February 6, 1952, Harvey B. Woods, relator, filed with the Board of Elections of Hamilton County his declaration of candidacy and petition for election as a district delegate to Republican National Convention to be held in July 1952, and requested that his name be placed upon the Republican primary ballot for the election to be held on May 6, 1952.
The relator declared that his voting residence was in "G" precinct of the seventh ward of Cincinnati in Hamilton county; that his postoffice address was 1190 Towne avenue in that city, and that he was a qualified elector in the precinct in which his voting residence was located, all as required by the provisions of Section 4785-71, General Code.
Until January 8, 1952, relator resided at 2818 Victoria avenue in the city of Cincinnati where he was a registered elector in "J" precinct, fourth ward, in the First Congressional District. On that day he moved to 1190 Towne avenue, Cincinnati, which is in "G" precinct, seventh ward, in the same congressional district. On January 28, 1952, he mailed a letter to the board of elections giving the board written notice to change his registration to his new address. This notice was received by the board on January 30, 1952. About January 30, 1952, a clerk of the board of elections telephoned relator's home acknowledging the receipt of the notice to change his registration and advised that he was mailing a change-of-registration card. The card was duly received by the relator, and he signed and mailed it to the board February 2, 1952, four days before he filed his declaration of candidacy and petition. The board, however, failed to receive the card, and on February 9, 1952, relator went to the office of the board and his registration was on that day formally changed to his Towne avenue address.
Upon checking the registration list, the board of elections determined that relator was not a qualified elector in "G" precinct, seventh ward, in which was his new place of residence as stated in his declaration and petition, and on February 11 rejected his declaration of candidacy and petition solely on that ground. On February 18, 1952, pursuant to a request by relator, a hearing was held before the board of elections, whereupon the board again rejected relator's declaration of candidacy and petition.
On March 4, 1952, this action in mandamus was instituted in this court by the relator praying that the respondents, members of the board of elections, be required to accept his declaration of candidacy and petition and to place his name on the ballot for election at the primary election to be held May 6, 1952.
Mr. John A. Benjamin and Mr. Orville M. Tate, for relator.
Mr. C. Watson Hover, prosecuting attorney, Mr. William J. Schmid and Mr. Carl B. Rubin, for respondents.
In the instant case, after the board received the letter from the candidate requesting it to change his address on the registration records, the candidate signed his declaration giving his new address as his voting address.
The board contends that Section 4785-44, General Code, requires that "a change in registration * * * by a written notice by mail" must be made on the card "with approximately the * * * wording" specified in that statute. It may be observed that the statute requires the board to provide these "change of residence notices in card form" and also provides that there "shall be attached the signed statement of two electors as indicated" in the form specified. However, the record in the instant case discloses that the card, which is furnished by this board for this purpose, bears only a remote resemblance to the form specified in the statute and does not require any statement by other electors. In fact, that card requires nothing more than was clearly furnished by the candidate's letter, which the board admittedly received before the candidate signed his declaration of candidacy. The information so furnished was all that was required to enable the board to change the registration of the candidate, and that is probably why the form of card used by this board requires nothing more.
The board can not base its action in the instant case on its failure to take notice of this information received by it, the information having been substantially that required by the statute to effect a change in registration by mail.
The writ is allowed.
Writ allowed.
STEWART, MIDDLETON, TAFT and MATTHIAS, JJ., concur.
I concur in the judgment but for a different reason. The sole question to be answered is whether the board of elections was justified in rejecting the declaration of candidacy and petition of the relator because he was not on the day of filing his declaration and petition a registered elector at his new place of residence in "G" precinct, seventh ward, Cincinnati.
It must be kept in mind that the relator's former residence and new residence were in the same city, county and congressional district, and that he was a registered elector at his former place of residence at the time his declaration of candidacy and petition were filed. No claim is made that relator's statement in his declaration and petition was made for any fraudulent purpose or to deceive the board with which he filed them. Apparently, the error was entirely the result of inadvertence on his part. Although the relator made an effort to register in the precinct of his new residence, nevertheless it is conceded and the fact remains that he had no registration in that precinct on the day he filed his declaration of candidacy and petition. Under the statute, it was necessary that he be a registered elector on the date of filing.
The pertinent part of Section 4785-30, General Code, provides as follows:
"No person shall be permitted to vote at any election unless he shall have been a resident of the state one year, of the county forty days and of the voting precinct forty days next preceding the election at which he offers to vote, provided that any qualified elector who in good faith moves his residence from one precinct to another precinct in the same county at any time subsequent to the fortieth day preceding an election shall have the right to vote at such election in the precinct from which he moved wherein his voting residence had been legally established * * *."
By reason of the provisions of this section of the statute, an elector's registration for election purposes is kept alive for forty days in the precinct and ward from which he has removed unless within that period his registration has become effective in the precinct and ward of his new residence, provided the two residences are in the same county.
In the case of State, ex rel. Ehring, v. Bliss et al., Board of Elections, 155 Ohio St. 99, 97 N.E.2d 671, the relator, a resident of Akron, had moved from one precinct to another in that city on a date subsequent to the fortieth day preceding the filing of his declaration of candidacy and petition for councilman at large in the city of Akron. He failed to request the board of elections, in conformity with the provisions of Section 4785-44, General Code, to have his registration changed. In his declaration of candidacy and petition he gave his new address as his "postoffice address" and his old address as his "voting residence." The Summit County Board of Elections rejected his declaration of candidacy and petition on the ground that he was not a registered elector at his new address. This court held that Ehring, relator in that case, would have been eligible to vote in the precinct of his former residence if the election had been held on the day he filed his declaration and petition.
The last three paragraphs of the syllabus of the Ehring case, above cited, are as follows:
"3. Under the provisions of Section 4785-3, General Code, an elector or qualified elector is a person having the qualifications provided by law to entitle him to vote.
"4. Under the provisions of amended Section 4785-30, General Code, any qualified elector who in good faith removes from one precinct to another precinct in the same county at any time subsequent to the fortieth day preceding an election shall have the right to vote at such election in the precinct from which he moved wherein his voting residence had been legally established.
"5. An elector's petition and declaration of candidacy for the office of councilman at large are not invalid by reason of the fact that within forty days preceding the filing thereof the elector has in good faith removed from one precinct to another in the same ward of the municipality without changing his registration at the county board of election."
I am of the opinion that the principles applied in that case are applicable here, and that the relator in the instant case was a duly qualified registered elector in the precinct of his former residence in the district from which he filed his declaration of candidacy and petition at the time they were filed, and that the board of elections unlawfully rejected them.