Montgomery Co Tie Vote 4-7-09

Jennifer Brunner Ohio Secretary of State 1 8O East broad street,

I 6th

Columbus. Ohio

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April 7, 2009 Steven P. Harsman, Director

Montgomery County Board of Elections 451 West Third St. Dayton, Ohio 454^1

RE: Tie vote on whether Jon A. Husted is a qualified elector of Montgomery Count}' Dear Mr. Harsman:

On February 25, 2009, the Montgomery County Board of Elections reached a tie vote on the question of whether Jon A. Husted is a qualified elector of Montgomery County. My analysis and decision are outlined below. Background

Husted currently serves as state senator, representing Ohio's Sixth Senate District, having been elected at the 2008 general election. Prior to his term in the state senate,

Husted served as state representative from the Thirty-seventh House District from 2001 through 2008. Husted also served as Speaker of the Ohio House of Representatives from 2005 through 2008. On October 27, 2008, the Montgomery County Board of Elections ("the Board") received a telephone call and subsequent facsimile from a representative of ProgressOhio, a non profit corporation, requesting an investigation of Husted's residency. Hearing Tr. 1.1 Then, on October 28, 2008, the Board received another investigation request from Regine Elliot, a Montgomery County elector. Hearing Tr. 1. Based on this challenge, the Board initiated an investigation of Husted's residency and qualifications as an elector of Montgomery County. Unfortunately, neither of the investigation requests was included in the official record submitted by the Board. The Board conducted an investigatory hearing on January 7, 2009. Husted attended the hearing. There is no record that Husted was represented by counsel at the hearing. Victor Whisman of the Montgomery County Prosecutor's office appeared at the hearing as legal counsel for the Board of Elections. At the conclusion of the hearing, the Board initially reached a tie vote on the question of requesting additional documents from Husted. This motion was subsequently withdrawn pending the receipt of additional legal research from Whisman. On February 25, 2009, the Board received the requested legal research from Whisman. Following a discussion among the Board members, Board Chair Gregory Gantt made the 1 The Board conducted a hearing regarding Husted's residence on January 7, 2009. References to the hearing are referred to by the abbreviation "Hearing Tr." And the page number in the transcript.

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following motion: "I make a motion that we've done our job and investigated this and that [Husted is] a resident of 148 Sherbrooke Avenue [sic]." The motion was seconded by Board Member James Nathanson. Board Members Gantt and Nathanson voted in favor of the motion, while Board Members Dennis Lieberman and Thomas Ritchie voted

against the motion, resulting in a tie vote. In accordance with R.C. 3501.n(X) and with the procedures outlined in the Ohio Election Official Manual, the Montgomery County Board of Elections submitted the tie vote to me on March 11, 2009. My analysis and

decision are outlined below. Discussion

The tie vote of the Montgomery County Board of Elections concerns whether Jon A. Husted is a qualified elector of Montgomery County. The statute providing the rules for determining the residence qualifications of an Ohio elector is R.C. 3503.02. The portions of R.C. 3503.02 relevant to this matter are:

All registrars and judges of elections, in determining the residence of a person offering to register or vote, shall be governed by the following rules: (A) That place shall be considered the residence of a person in which the person's habitation is fixed and to which, whenever the person is absent, the person has the intention of returning, (emphasis added) (B) A person shall not be considered to have lost the person's residence who leaves the person's home and goes into another state or county of this state, for temporary purposes only, with the intention of returning. (emphasis added) (C) A person shall not be considered to have gained a residence in any county of this state into which the person comes for temporary purposes only, without the intention of making such county the permanent place of abode, (emphasis added)

(D) The place where the family of a married person resides shall be considered to be the persons place of residence; except that when the spouses have separated and live apart, the place where such a spouse resides the length of time required to entitle a person to vote shall be considered to be the spouse's place of residence, (emphasis added)

(F) Except as otherwise provided in division (G) of this section, if a person removes from this state and continuously resides outside this state for a

period of four years or more, the person shall be considered to have lost the person's residence in this state, notwithstanding the fact that the person may entertain an intention to return at some future period. (G) If a person removes from this state to engage in the sendees of the United States government, the person shall not be considered to have lost the person's residence in this state during the period of such service, and

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likewise should the person enter the employment of the state, the place where such person resided at the time of the person's removal shall be considered to be the person's place of residence. Husted was the only witness to testify at the hearing. Husted presented the following

evidence on his own behalf regarding the relevant factors of R.C. 3503.02: Husted owns a home at 148 Sherbrooke Drive in Kettering, Montgomery County, Ohio. Hearing Tr. 1. He has owned that home for the past fourteen years. Hearing Tr. 1. Husted is registered to vote at 148 Sherbrooke Drive. Hearing Tr. 1. Prior to running for state representative in 2000, while living in Kettering, Husted worked for the Montgomery County Commissioners and the Dayton Area Chamber of Commerce. Hearing Tr. 1.

Husted has served in the General Assembly since 2001. Hearing Tr. 1-2. During his first term as a state representative, Husted began arranging for overnight stays in Columbus. Hearing Tr. 2. Husted has "rented, owned, or stayed with family in at least six different places" during his tenure as a state representative and state senator. Hearing Tr. 2. At one point, approximately three years ago, Husted and his wife had ownership in a condominium located in Columbus, near the Statehouse. Hearing Tr. 6. Husted and his wife have a two-year-old daughter. Hearing Tr. 5. At the time of their marriage, Husted's wife resided in Columbus. Hearing Tr. 6. Since their marriage, Husted's wife has "maintained" a house in Franklin County. Hearing Tr. 6. Husted also has a thirteen-year-old son who lives in Upper Arlington with Husted's former wife. Hearing Tr. 5. Husted's son attends school in Upper Arlington. Hearing Tr. 5. Husted testified that "for the most part [it is] accurate" that his family resides in Columbus. Hearing Tr. 3. He stated that he personally "split[s] time between" Columbus and Kettering, spending a "considerable amount of time in Columbus." Hearing Tr. 5,14-15. He further testified that during the past year he has returned to 148 Sherbrooke Drive "[n]ot daily, but at least weekly" and that "[o]n some occasions" he has spent the night at 148 Sherbrooke Drive. Hearing Tr. 6-8,14-15. Husted's children have rooms at the residence at 148 Sherbrooke Drive, and his wife supervised the remodeling of the home two years ago. Hearing Tr. 5-6. Approximately two years ago, 148 Sherbrooke Drive was apparently placed into a trust. Hearing Tr. 7-8.

Husted stated that he receives various forms of mail at the 148 Sherbrooke Drive location. Hearing Tr. 7. There is a telephone at 148 Sherbrooke Drive. Hearing Tr. 11. Husted pays the Dayton Power & Light bill for 148 Sherbrooke Drive, but could not recall the amount of the average bill during the past year. Hearing Tr. 7. Husted testified that his taxes and retirement statements were sent to 148 Sherbrooke Drive and that this is the location that his "official business" is conducted through. Hearing Tr. 9-10. Husted has a bank account with Dayton Air Credit Union. Hearing Tr. 11. Under further questioning Husted stated that he "may" share a joint account with his wife in Columbus and that his paychecks "may" be deposited to this joint account, but that he does not use the account. Hearing Tr. 11-13. Husted's automobile is registered in Montgomery County, Ohio. HearingTr.11.

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Husted claimed that to the extent he departed from Montgomery County, it was due to his role as a state legislator. Hearing Tr. 4. Husted testified that intends to return to Kettering full-time when his public service ends. Hearing Tr. 2, 4,15 Following the public hearing, one Board member moved to request that Husted present two specific documents, his Dayton Power & Light utility bills and a copy of the trust documents related to ownership of 148 Sherbrooke Drive. The Board reached a tie vote on this motion - but that tie vote was not submitted to me for consideration because the member subsequently withdrew his motion. It does not appear that there were any further formal attempts by the Montgomery County Board of Elections to secure documents from Husted.

When tliese facts are applied to the relevant rules for determining residence under R.C. 3503.02 (listed above), it is clear that, prior to 2001, Husted was a resident of Montgomery County, living at 148 Sherbrooke Drive in Kettering. It is undisputed that since 2001, Husted has spent "considerable" time living outside Montgomery County on a regular basis. It is also undisputed that Husted's family resides outside Montgomery County. Thus, it appears that Husted has homes in both Montgomery County and Franldin County. Although an individual may have more than one home, he may only have one "residence" for purposes of voter registration. Determining Husted's eligibility to be a Montgomery Count)' voter requires determining which of these homes constitutes his "voting residence." Ohio law defines "voting residence" as "[tjhat place * * * in which the person's habitation is fixed and to which, whenever the person is absent, the person has the intention of returning." R.C. 3503.02(A). Other provisions of R.C. 3503.02 provide guidelines that election officials must use in determining whether an address qualifies as an elector's "voting residence." Husted's undisputed testimony repeatedly emphasized his intent to return to Montgomery County on a full time basis when his public sendee is completed. The courts have noted that a "person's intent is of great import" in applying R.C. 3503.02. Stare ex rel. Stine v. Brown Cty Bd. ofElections (2004), 101 Ohio St.3d 252, 2004-Ohio771, at II15. However, "[b]ona fide residence may be determined not only by an intention to reside at a fixed place, but also by factors that express such an intent." Bell v. Marinko (C.A.6, 2004), 367 F.3d 588, 592 (emphasis added). The law expressly provides that residence is the location where a person's "habitation is fixed." R.C. 3503.02(A) (emphasis added). A voter's present circumstances are necessarily part of the analysis in determining his voting residence. These determinations have historically been conducted on a case-by-case basis, applying the guidelines contained in R.C. 3503.02.

Although there is no evidence to dispute Husted's intent to return to Montgomery County at some point in the future, the record is unclear as to where his habitation is presently fixed. He testified that he returns to Montgomery County on a weekly, but not daily basis. However, he also testified that he spends "a considerable amount of time in Columbus." From his testimony alone, it is not clear whether Husted is a Montgomery County resident who periodically remains in Franklin County or a Franklin County resident who periodically travels to Montgomery County.

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Reviewing the evidence offered at the hearing, many of Husted's statements were unclear, incomplete, or partially contradictory. For example, he indicated that he previously owned property in Franklin County, but could not specify when or how long he owned this property. Husted was also unclear on the details of ownership regarding both 148 Sherbrooke Drive and his wife's property in Franklin County. There was also a lack of clarity with regard to utility usage at 148 Sherbrooke Drive, which would tend to indicate how frequently the property is actually occupied. Husted testified that he pays the utilities for the property, but could not recall details about average cost of these utilities. Regarding this point, Board Members Lieberman and Ritchie asserted in their position statement that water utility records for 148 Sherbrooke Drive, received pursuant to a public records request, indicated usage so low as to suggest no one was living there and that these water bills were paid from a joint checking account based in Columbus. The issue of Husted's location of residence is an important question requiring careful and thorough consideration, because it affects his fundamental right to vote. Moreover,

in an effort to afford the greatest election integrity, only eligible persons are permitted to be electors, to protect the electorate from dilution by unauthorized votes. When deciding a question of such import, it is essential to have a clear, well-developed record. Unfortunately, in this case, the official record submitted by the Montgomery County Board of Elections is insufficient to permit me to decide the matter without further information. A significant portion of the material submitted in the oificial record involves legal

arguments regarding whether R.C. 3503.02(0) or 3503.02(0 conclusively resolve this question. While these arguments are useful, residency determinations require a factspecific, case-by-case analysis. Due to the lack of clear, specific factual evidence in the official record it is impossible to perform the necessary analysis without further information. Decision

Therefore, I am holding this matter in abeyance while Senator Husted is separately provided with the opportunity to submit additional documentation that may assist the board in its decision. Sincerely,

Jennifer Brunner