OR10lNAL

IN THE SUPREME COURT OF OHIO

State of Ohio ex rel.

Jon A. Husted
148 Sherbrooke Drive Case No.
Kettering, Ohio 45429 09-1707
Relator, . Original Action in Mandamus
And Request for Peremptory Writ
V.
Expedited Election Matter
Jennifer L. Brunner, Under S.Ct.Prae.R. X Section 9
Ohio Secretary of State
180 East Broad Street
Columbus, Ohio 43215

and

Montgomery County Board of Elections

451 W. Third Street
Dayton, Ohio 45481-8705

Respondents.

COMPLAINT FOR WRIT OF MANDAMUS

IN EXPEDITED ELECTION MATTER
AND REQUEST FOR PEREMPTORY WRIT

Maria J. Armstrong (0038973)

Counsel ofRecord
Anne Marie Sferra (0030855)
Jennifer A. Flint (0059587)
BRICKER & ECKLER LLP
100 South Third Street
Columbus, Ohio 43215
Telephone: (614) 227-8821
Facsimile: (614) 227-2390
E-mail: marmstrong@.bricker.com
E-mail: asferra@bricker.com
E-mail: iflint@bricker.com
Counsel. for Relator

SFP 2 2 2009
CLERK OF COURT
SUPREME COUR1 OF OHIO
 COMPLAINT FOR WRIT OF MANDAMUS

Jon A. Husted ("Relator") brings this original action requesting that a writ of mandamus

be issued ordering Respondents Jennifer L. Brunner, Ohio Secretary of State, and the

Montgomery County Board of Elections to maintain Relator's status as a properly registered and

qualified elector in Montgomery County, Ohio. This action is filed under S.Ct.Prac.R. X,

Section 9, as it relates to the November 5, 2009 general election (which is within 90 days of the

filing of this action), Relator's ability and authority to vote in that election, and Relator's

continuing ability to avail himself of his rights as an elector and candidate.

Relator further respectfully asks this Court for a peremptory writ to maintain his status as

a duly registered voter in Montgomery County pending the outcome of the instant matter.

Relator avers as follows:

JURISDICTION

1. This Court has original jurisdiction in mandamus pursuant to Section 2, Article IV of the

Ohio Constitution and Chapter 2731 of the Ohio Revised Code.

PARTIES

2. Relator is a resident of Montgomery County, Ohio, and is duly qualified to be a registered

voter and elector of the state of Ohio, in Montgomery County.

3. Relator is the endorsed Republican candidate to run for the office of Ohio Secretary of

State in 2010.

4. Respondent Jennifer L. Brunner ("Respondent Brunner") is the duly elected and acting

Ohio Secretary of State.

5. Respondent Montgomery County Board of Elections ("Board") is the duly established

and acting election authority for Montgomery County, Ohio, pursuant to R.C. 3501.06.

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 FACTUAL BACKGROUND

6. Relator has resided in Montgomery County, Ohio for twenty-three years.

7. Relator attended the University of Dayton, in Montgomery County, from 1985 to 1993,

earning Bachelor's and Master's degrees.

8. Relator is registered to vote in Montgomery County, Ohio and has voted in primary,

special, and general elections in Montgomery County for at least the past twenty years.

9. Relator has never been a registered voter any place except Montgomery County, Ohio.

10. After graduation, Relator worked for the Montgomery County Commissioners from 1993

to 1997, and then served as Vice President of Business and Economic Development at the

Dayton Area Chamber of Commerce until December 31, 2000.

11. Relator was elected to the Ohio House of Representatives in 2000 representing the 37th

House District, located within Montgomery County, and served in the Ohio House of

Representatives from 2001 to 2008.

12. Relator served as the Speaker of the House from 2005 through 2008.

13. In November 2008, following four years as Speaker of the House, Relator was elected to

the Ohio Senate, representing the 6th Senate District, located in Montgomery County.

14. Relator's duties in the General Assembly are very demanding and time consuming and

require Relator to spend a considerable amount of time in Columbus.

15. As a state legislator, Relator is paid as a state employee, receives retirement, disability

and health benefits as a state employee, and has workers' compensation, employment tax

obligations, and immunity as accorded to state employees.

16. Like all state employees, Relator is entitled to representation by the Ohio Attorney

General for actions taken within the scope of his official duties and upon written request.

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 17. In addition to his duties in the Ohio Senate, Relator is currently employed in Montgomery

County with the Dayton Area Chamber of Commerce, as the Director of Workforce

Education and Employer Services.

18. For the past fifteen years, Relator has lived in Kettering, Ohio, in Montgomery County, at

148 Sherbrooke Drive, Kettering, Ohio 45429, which is a single-family residence that he

owns (hereinafter "Kettering Residence").

19. Relator receives mail at the Kettering Residence and pays utility bills for the Kettering

Residence.

20. Relator purchases his vehicles in Montgomery County, Ohio, and has registered those

vehicles in Montgomery County, Ohio.

21. Relator's driver's license was issued in Montgomery County, Ohio, and the address on

his driver's license is his Kettering Residence.

22. Relator banks with Dayton Air Credit Union, which is located in Montgomery County,

Ohio, and has done so since 1985.

23. Relator pays property and income taxes as a resident of Montgomery County, Ohio.

24. Among other community service, Relator has served as a member of the Dayton Area

Chamber of Commerce, Kettering Enterprise Zone Review Board, the Montgomery

County Workforce Development Board, the Montgomery County Transportation

Improvement district board, and the Miami Valley Prep Consortium, all serving the

Montgomery County area.

25. Relator married in 2005. His spouse owns a house and is employed in Franklin County,

Ohio. Relator stays with his family in his wife's Franklin County home when he is in

Franklin County on public business.

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 26. As Relator testified, he has jointly owned property in Columbus with his wife on brief

occasions. For the great majority of time since his marriage in 2005, at present, and at the

time of the Board meetings, such property has been held solely by Relator's wife.

27. Relator has continually owned his home in Kettering, Ohio before and during his

marriage and throughout any other periods of time when he also owned property in

Columbus.

28. Relator transferred the Kettering Property from his name in 2006 to "Jon A. Husted,

Trustee."

29. Relator retums to Montgomery County regularly and as his state duties allow.

30. Documents produced by Relator support Relator's sworn testimony that Relator

consistently and regularly spends time in Montgomery County, but is not there

continually.

31. At no time since he entered state service has Relator abandoned his residency in

Montgomery County or ever intended to permanently reside anywhere else.

32. Relator intends and has always intended to reside in Montgomery County, Ohio.

33. Relator desires to vote on November 5, 2009 in Montgomery County, Ohio.

34. Relator is the endorsed candidate of the Ohio Republican Party for Ohio Secretary of

State for the 2010 election and must circulate petitions for candidacy that attest, uinder

penalty of election law, to his voting residence.

PROCEDURAL HISTORY

35. On October 27 and October 28, 2008, respectively, Progress Ohio, Inc. and an individual

named Regine Elliot sent correspondence to the Board questioning whether Relator is

eligible to vote as a resident of Montgomery County.

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 36. Although no formal protest or challenge was ever filed with the Board, the Board

considered this matter on at least four occasions for the purpose of determining Relator's

eligibility to vote in Montgomery County: October 31, 2008; January 7, 2009; February

25, 2009; and June 29, 2009.

37. Relator voluntarily appeared before the Board on January 7, 2009, gave sworn testimony,

and answered numerous questions from the Board under oath.

38. On January 7, 2009, Relator repeatedly testified, under oath, that his intention was and is

to remain a resident of Montgomery County.

39. Relator repeatedly testified, under oath, that to the extent his public duties have taken him

away from Montgomery County, those absences were and are temporary.

40. Other than Relator, no witnesses appeared or testified before the Board at any of its

meetings on this issue. No records were sought or provided at the meeting.

41. The Board was unable to resolve the matter, issuing a tie vote on February 25, 2009, and

then submitting the matter to Respondent Brunner for a decision breaking the tie vote

pursuant to R.C. 3501.11(X).

42. Respondent Brunner failed to summarily break the tie vote.

43. Respondent Brunner found insufficient evidence to reach any decision at that time.

44. Instead of breaking the tie, Respondent Brunner solicited additional information from

Relator and gathered additional evidence by issuing subpoenas to third-parties.

45. Respondent Brunner returned the matter to the Board which again tied on June 29, 2009.

46. Respondent Board again submitted the tie vote to Respondent Brunner for disposition.

47. Respondent Brunner again failed to summarily break the tie.

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 48. On August 11, 2009, Relator filed a complaint in this Court requesting that a writ of

mandamus be issued against Respondent Brunner ordering her to break the tie. See State

ex rel. Husted v. Brunner, Case No. 2009-1455.

49. On September 14, 2009, this Court issued a Peremptory Writ of Mandamus ordering

Respondent Brunner to break the Board's tie vote within seven days. See State ex rel.

Hustedv. Brunner, 2009-Ohio-4805.

50. This Court further ruled that the "statute does not expressly provide a process for the

secretary of state to gather additional evidence or return a matter to a board of elections

once it has been submitted to her for a summary decision on the matter." Id at ¶16.

51. On September 21, 2009, Respondent Brunner issued her decision, ruling that Relator "is

no longer a resident of Montgomery County and therefore is not eligible to vote there"

and that "his voter registration should be cancelled by the Montgomery County Board of

Elections ***." Branner Letter, September 21, 2009, p.p. 3, 12 (Attached).

52. In reaching her decision, Respondent Brunner again conducted her own, independent

investigation and took "notice of information that further exists publicly and that is

beyond the record ***." Id. at p. 3.

53. Ohio Revised Code Section 3503.06 requires a person to be registered as an elector and

reside in the county where the person is registered to vote for at least thirty (30) days

before an election, in order to be validly registered to vote in that election. For the

upcoming general election, an elector must be registered to vote on or before October 5,

2009 in order to cast a ballot.

54. Relator cannot register to vote in any other county because he has not legally resided in

nor intends to reside in any county except Montgomery County.

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 55. As a candidate for statewide elective office, Relator must circulate, and then file a

declaration of candidacy, on or not later than seventy-five days before the primary

election (i.e., approximately February 18, 2010). R.C. 3513.05.

56. The declaration of candidacy form requires that Relator attest, under penalty of election

law, that he is a "qualified elector" of his "voting residence." R.C. 3513.07.

57. Respondent Brunner's delay and Respondents' decision have jeopardized Relator's

ability to vote in Ohio and run for elected office.

CLAIM FOR RELIEF:

RELATOR IS ENTITLED TO A WRIT OF MANDAMUS ORDERING THAT
RESPONDENTS RECOGNIZE AND TREAT RELATOR AS AN ELIGIBLE AND
OUALIFIED ELECTOR IN MONTGOMERY COUNTY, OHIO

A. RESPONDENTS ABUSED THEIR DISCRETION AND ACTED IN CLEAR DISREGARD

OF SECTION 3, ARTICLE II OF THE OHIO CONSTITUTION AND OHIO REVISED
CODE SECTION 3503.02

58. Section 3, Article II of the Ohio Constitution recognizes that state legislators may be

absent from their districts on "public business" without losing their residency in their

districts and eligibility to run for office.

59. R.C. 3503.02(G) states that "* * * 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."

60. Relator was unquestionably a resident of Montgomery County at the time he was elected

to serve his district in the Ohio House of Representatives.

61. Relator is a resident of Montgomery County for voting purposes pursuant to R.C.

3503.02(G).

62. Respondents abused their discretion and acted in clear disregard of applicable law by not

concluding that Relator is a resident of Montgomery County for voter registration

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 purposes pursuant to R.C. 3503.02(G) and Section 3, Article II, Ohio Constitution.

63. Respondents have acted in clear disregard of Section 3, Article II, Ohio Constitution by

effectively changing a state legislator's residency despite his sworn statements

announcing his intention to retain residency status and facts supporting that intention.

64. Respondent's actions have violated the Constitutional protections accorded to legislators

pursuant to Section 3, Article II, Ohio Constitution.

65. Relator has a clear legal right to a decision from Respondents that complies with R.C.

3503.02(G) and Section 3, Article II, Ohio Constitution.

66. Relator has no adequate remedy at law to compel Respondents to properly apply R.C.

3503.02(G) and Section 3, Article II, Ohio Constitution.

B. RESPONDENTS ABUSED THEIR DISCRETION, IGNORED THE FACTS, AND

CLEARLY DISREGARDED THE LAW BY CONCLUDING THAT RELATOR WAS NOT
A RESIDENT OF MONTGOMERY COUNTY

67. The record contains overwhelming and uncontroverted evidence that Relator's voting

residence is Montgomery County.

68. Relator is the only person who testified in this matter. Other than Relator, Respondent

Brunner was the only other person to submit "evidence" to the Board, albeit subsequent

to the Board's first tie vote.

69. The documentary evidence consistently supports Relator's sworn testimony regarding his

continued presence in Montgomery County and his unwavering intention to remain a

resident of Montgomery County.

70. The only evidence in the record suggesting in any way that Relator resides in any county

other than Montgomery County is Relator's own testimony regarding his spouse and her

residence in Franklin County.

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 71. R.C. 3503.02 sets forth the factors governing the determination of a person's residence

for voter registration and voting purposes.

72. R.C. 3503.02(A) provides: "[t]hat 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."

73. R.C. 3503.02(B) provides: "[a] person shall not be considered to have lost the person's

residence who leaves the person's home and goes into another *** county of this state,

for temporary purposes only, with the intention of returning."

74. R.C. 3503.02(C) provides: "[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."

75. Relator is a resident of Montgomery County pursuant to R.C. 3503.02(A), (B), and (C)

because his Kettering Residence is his fixed habitation to which, whenever he is absent,

Relator intends to return.

76. In finding that Relator is not a resident of Montgomery County, Respondents failed to

properly consider the evidence supporting R.C. 3503.02(A), (B), (C), and (G), and

impermissibly focused upon R.C. 3503.02(D).

77. R.C. 3503.02(D) provides: "[t]he place where the family of a married person resides shall

be considered to be the person's place of residence ***. "

78. Respondents impermissibly imposed a presumption that Relator's residency is controlled

solely by the location of the residence of his spouse and failed to properly consider

evidence that rebuts such a presumption.

79. Respondent Brunner abused her discretion, clearly disregarded the applicable law, and

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 effectively created an irrebuttable presumption as to Relator's residency based on R.C.

3503.02(D) by:

a) gathering and considering additional evidence after this Court's Order that

relates exclusively to Relator's spouse;

b) repeatedly stressing and placing undue reliance on the fact that Relator and his

wife are not "separated and living apart";

c) determining, without any evidence in the record or legal basis to do so, that

Relator's spouse "intends to remain in Franklin County"; and

d) concluding, without any evidence in the record or legal basis to do so, that

Relator intends to "continue to reside in Franklin County *** when his public

service is complete."

Brunner Letter, p.p. 9, 10, 11.

80. Application of R.C. 3503.02(D) in this manner violates Relator's fundamental

Constitutional right to equal protection.

81. Relator has a clear legal right to maintain his status as a registered voter in Montgomery

County based on the evidence submitted and state law defining residency for voting

purposes.

82. As to his residency status, Relator has no adequate remedy at law.

C. RESPONDENTS ABUSED THEIR DISCRETION, AND ACTED IN CLEAR DISREGARD

OF THE LAW BY FAILING To FOLLOW THE PROPER STATUTORY PROCESS
RESOLVING RESIDENCY ISSUES

83. R.C. 3503.24 and R.C. 3505.19 govern challenges to a registered elector's qualifications

to vote, including the elector's residency to vote in a particular county, and set forth

procedures for such challenges.

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 84. R.C. 3503.21 sets forth the conditions and procedures that must occur in order for the

registration of a registered elector to be cancelled.

85. Where specific statutes set forth a process for challenging and deciding voter registration

and residency, broad and general authority to investigate alleged voting irregularities

cannot be used to circumvent established statutory procedures or create amorphous new

processes.

86. Regardless of how Respondents characterize the matter before them, Relator has a clear

legal right to have his residency status determined in accordance with the statutory

procedures set forth in law and Respondent Brunner's own directive.

87. Relator has a clear legal right to have his matter determined fairly and with the same due

process accorded to other electors whose residency status was questioned and ruled upon

by Respondent Brunner.

88. Respondents abused their discretion by stripping Relator of his right to vote without

applying the statutory procedures and applicable laws.

89. As to his residency status, Relator has no adequate remedy at law.

D. RESPONDENT BRUNNER ABUSED HER DISCRETION BY CONSIDERING EVIDENCE

THAT WAS NOT PROPERLY PART OF THE RECORD.

90. Respondent Brunner previously determined that the evidence in the record before the

Board was insufficient for her to disenfranchise Relator.

91. Respondent Brunner continued to gather and consider additional evidence after the first

tie vote by issuing subpoenas to third parties and then by searching the public record,

which such information was not a part of the record of this matter.

92. Respondent Brunner had no authority to unilaterally collect, consider and rely upon

evidence which was never sought from nor presented to Relator.

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 93. Respondents impermissibly rely upon information that is nowhere in the official record.

94. Relator has a clear legal right to maintain his status as a registered voter in Montgomery

County based on Respondent Brunner's determination that the record lacks sufficient

evidence to reach a contrary conclusion.

95. Relator has no adequate remedy at law to require a proper review of this matter.

Prayer for Relief

Therefore, Relator respectfully requests this Court issue a writ of mandamus ordering

Respondents to:

a) Find that Relator is a resident of Montgomery County for election purposes; and

b) Maintain Relator's name on the poll books as a properly registered Montgomery

County elector for all election purposes; and

c) Issue a peremptory writ requiring Respondents to maintain Relator's name on the

poll books and treat him as a validly registered elector pending the resolution of this

case.

Relator also seeks attorney fees and such other relief as this Court deems appropriate.

Respectfully submitted,

Maria'J. Ardi'strong (0038973),'Counsel ofRecord

Anne Marie Sferra (0030855)
Jennifer A. Flint (0059587)
BRICKER & ECKLER LLP
100 South Third Street
Columbus, Ohio 43215-4291
Telephone: (614) 227-8821
Facsimile: (614) 227-2390
E-mail: asferrana bricker.com
E-mail: marmstrong(^ a bricker.com
E-mail: iflint@bricker.com
Attorneys for Relator, Jon A. Husted

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 AFFIDAVIT

Jon A. Husted, being duly cautioned and sworn, states that he has personal knowledge of

and is competent to testify to the factual allegations set forth in this Complaint for Writ of

Mandamus. These factual allegations are true to the best of my knowledge and belief.

Sworn to before me and subscribed in my presence this day of September, 2009.

Notary Public
Tevi L Knrd"
Notary PO', SteEa nf Ohb
My Oanmiaetoo ExpNes 124M13 My commission expires on: t Z-0C(-ZG(3
 JENNIFER BRUNNER
OHIO SECRETARY OF STATE

180 EAST BROAD STR6F_T, 16TH FLOOR

COLUMBUS, OHIO 43215 USA

TEL: 1-877-767-6446 FAX: 1-6 1 4-6440649

WWW.SOS. s'TATE.ON. US

September 21, 2009

Steven P. I-Iarsnian, Director

Montgomery CottntyBoard of Elections
451 West Third St.
Dayton, Ohio 45481

RP.: Second tie vote on whetlier Jon Rusted is a qualified elector of Montgomery County

Dear Mr. Harsman:

On June 29, 2oo9, the Montgomery County Board of Elections ("the Board") reached a
tie vote on the question of ivhether Jon FIusted ("Husted") is a qualified elector of
Montgomery County. The Board previously reached a tie vote on this question on
Febrtiary 25, 2009. My decision on the matter is set forth below.

BacltBrounti

Senator Husted currently serves as state senator, representing Ohio's Sixtti Senate
District, having been elected at the zooti gene•al election. Prior to his term in the state
senate,l3usted served as state representative from tlie Thirty-seventh House District
from 2ooi through aoo8. Husted also setved as Speaker of the Oluo 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 facsitnile frotn a representative of ProgressOhio, a non-
profiit corporation, requesting art investigation of Husted's residency. Hearing Tr. i.,
Then, on October 28, 2oo8, the Board received another investigation request from
Regine Elliot, a Montgomery Cottnty elector. Hearing Tr. 1. Based on this request, the
Board initiated an investigation of Senator Husted's residency and qualifications as an
elector of Montgomery County. Unfortunately, neither of the investigation requests was
iiacludeti in the official record subYnitted by the Board for its first tievote on this issue.

The Board conducted an investigatory hearing on January 7, 2009. Senator Husted

attencled the hearing. There is no record that Senator Husted was represented by
counsel at the hearing. Victor Whisman of the Montgotnery County Prosecutor's office
appeared at the hearing as legal counsel for the Board of Elections. At the conclusion of
the hearitzfg, the Board initially reaetted a tie vote on the question of requesting
additional documents fi•orn Husted. This motion was subsequently withdrawn pending
the receipt of additional legal research from Whisman.

On February 25, 2oog, the Board received the requested legal research from Whisman.
Following a discassion among the Board members, Board Chair Gregory Gantt made the

I The Board condttcted a hearing regarding Husted's residence onJanuary 7, 2oo9. References to
the hearing are referred to by the abbreviation "Hearing Tr." And the page nnmber in the
transcript.
Montgoiuery County'Pie vote - Jon Husted Residency Page 2 of 12

following motion: "I make a inotion 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 rnotion, ivhile Board Members Dennis Lieberman and Thonias Ritchie voted
against the motion, resulting in a tie vote. In accordance with R.C. 3501.11(Y) and with
the procedures outlined in the Ohio Election Official Manual, the Montgomery County
Board of Elections submitted the tie vote to rneon March 11, 2009.

After reviewing the materials submitted by the Board, I concluded thatadditional factual
information was required to resolve this qpestion. On April 7, 2oo9, I notified the Board
that I was holding the matter in abeyance to allow for the collection of additional
evidence. The following day I requested that Senator Husted submit certain additional
doeuments and records that had been sought by some of the Board members. Flusted
responded on April 17, 2009, by sending a collection of documents to the Board that
included some of the reqtiested records. Because this response was incomplete, I issued
subpoenas to several government offices and utilities to obtain records related to Senator
Husted's residency: These records were collected and submitted to the Board on June 8,
2oo9,,Aith instructions to reconsider the matter and to reacli a determination on the
question of Senator Husted's residency.

On June 29, 2009, the Board met and briefly disetissed the additional evidence and the
law relevant to determining an elector's residence. Once again, Board Chair Gantt
moved that the Board hold that Senator Husted is a resident of Montgomery County,
"living at 148 Sherbrooke Avenue [sic]." Jttne Mtg. Tr. 2. The motion was seconded by
Board Member Nathanson, Board Chair Gantt and Member Nathanson voted in favor of
the motion, while BQard-membeis Lieberman and Ritehie voted against the motion,
resuhing in a tie vote. June Mtg. Tt•. 8-9. In accordance with R.C. 3501.is(X) and v,ith
the procedures outlined in the Ohio Election Official Manual, the Montgomery County
Board of Electionssubmitted the tie vote to me on July 14, 2009.

Prior to the tie vote being submitted to me by the Montgomery County Board of
Eleetions, Senator Husted filed in my office on July 6, 2009, a request tllat I"finally
resolve this case Nvithin ten (io) days of your official receipt of the same." On August ii,
2009; Senator Husted filed an action in mandamus with the Supreme Court of Ohio,
seeking the following;

i. Disniissal of the challenge to his eligibility to vote in Montgomery County because it

was not a "proper challenge" and alleging an "unlawful delay" in resolving the matter.

2. An order that the Secretary deny the challenge based on laclc of evidence in tlie record
that he was not eligible to vote in Montgoniery County.

3. An order that the Secretary deny the challenge on the basis that the evidence in the
record shows that he was eligible to vote in Montgomery County.

4. An order that the Secretary issue a ruling on the challenge.

On September 14, 2oog, the Supreme Court of Ohio dismissed all of Senator Husted's
claims, except the last one and ordered that the tie vote be broken no-later than seven (7)
days from its decision. My analysis and vote on the motion are outlined below.
Montgomery County Tie Vote - Jon IIttsted IZesiclency Page 3 of 12

Discussion

Courts have recognized the significanee of an individual's constitutional right to vote.

State ex rel. Faton u. L'rie Chj Bd. of Elections, 2oo6-Ohio-966, 2006 WL 513910 (Sixth
Appellate District, 2/28/2006). The cotu•t also recognized in that case that federal court
interpretations of the National Voter Registration Act, "found that the consideration of
the residence and voting precinct of a voter's spouse is an appropr' tate factor to consider
in furtlierance of a state's goal to see that all applicants fulfill the residency requirent.ent"
when examining the application of R.C. 3503:02(D) .2 Bell v. Marinko (C.A.6 2004), 367
F.3d 588,592-593.

In State ex rel. Eaton v. Erie Ctg Bd. of Elections, the court relied on evidence that
Relator Eaton's wifelived in Florida and had voted there to uphold the decision of the
Erie County Board of Elections that he was not entitled to be an elector of Kelley's Island
and therefore no longer entitled to file as a candidate for reelection to the Kelley's Island
council. This was despite the fact that, in addition to testimony on his frequency of being
at Kelley's Island, he also testified that he had a Kelley's Island mailing address, and that
the Kelley's Island address was on his state and federal income tax returns, that he
believed that the address on his personal automobile registration had been on Kelley's
Island for ten years, and that he reported no earnings in Florida. The fact that Eaton's
wife lived full-time in Florida and voted there was enough for the cotirt to uphold the
Erie County Board of Elections' actions in stripping him of his voting rights and denying
him furtlier rights to reapplv for voter registration. See, also, State ex rel. Spangler v.
Btl, of Elections of Cuyaltoga Cty., 7 Ohio St.3d 20, 21(hol<ling that an candidate for
office was not a resident of Brook Park where his farnily resided in Fairview Parlc and
"there was no e-Mence that the residence of [the candidate's] family in Fairview Park
was temporary or that they ever intended to live in the city of Brook Parlr').

Based on the holding of the Sixth District Court of Appeals in State ex rel. Eaton u. Et7e
Cty.Bd. ofElections, and the similar fact pattern of Senator Husted's case to that of the
relator in the Eaton case, his voter r•egistration sliould becancelled by the Montgomery
County Board of Elections, despite the fact that he is a state elected official who serves in
Columbus butsays he intends to return to Kettering. R.C. 3503•o2(G) 3 There is no
evidence that Senator Husted and his wife are or ever have been separated or live
separately. Since I ain ordered in mandamus by the Supreme Court of Ohio to break this
tie vote, I note that I am able to take notice of information that furtlier exists publicly
and that is beyond the record, unlike as would be the limitation ofa judicial
determination.

From the record of this matter, I understand Senator Husted's wife's name to be Tina L.
Husted. Reviewing the website of the Franldin County Board of Elections

2 R.C. 3503.o2(D) provides: "The place where the family of a mariietl person resicles shall be
considered to be the person's place of residence; except that when the spouses have separated and
live apart, theplace where such a spouse resides the length of tiine required to entitle a person to
vote shall be considered to be the spouse's place of residence."
3 R•C• 3503.02(G) providess "If a person removes from this state to engage in the services.of thc
United States government, the person sliall not be consideredto have lost the person's residence
in this state during the period of such service, and likewise slioutd the person enter tlie
emplogmeritbf the state, the place where stcch person rresided at the time ofthe person's remoaal
shall be considered to be tlze person's place of residence," (emphasis added)
Montgosneiy County Tie Vote - Jon I-Iusted Residency Page 4 of 12

(http://vote:franldincountyohio.gov/voter/voterSearch,cfm), the entry of simply her first

and last name provides information she is a registered elector in Pranklin County, and is
registered to vote at the atldress of 23o5 Haverford Itoad, Columbus, Ohio 43220.

A fitrther public online search of the state's statewide voter registration database
(http://wivw.sos.state.oh.us/SOS/voterquery.aspx) of the voter registi'alion of his wife
indicates also indicates that Tina L. FIusted lives at 2305 Haverford Road, Columbus,
Ohio 4322o, and has voted as an elector of that residence since the 2002 general election
and most recently in the 2008 presidential primary and general elections. A similar
online public records search of the voter registration of Senator Husted indicates that he
is registered at 148Sherbroolce Drive, Kettering, Ohio 45429>and has voted as an elector
of that residence since the 2000 presidential primary election and niost recently in the
aoo$ presidential primary and general elections and May 2009 primary election.

As an initial matter, it is necessaty to clarify some issues surrounding, the timing of this
residency investigation. Husted, Board Chair Gantt, and Board Member Nathanson have
all expressed concerns about delays in resolving the investigation, Gantt-Nathanson
First Position Paper, at i, 3; Gantt-Nathanson Second Position Paper, at i. I share their
concern that voter registration investigations be resolved promptly and accurately. The
investigation regardiiig Husted's residency commenced in late October zoo8 and the
matter has now been pending for approximately eleven months. However, in this case it
is the Board's own process that has consumed the vast majority of the time since the
investigation commenced. The Board did not conduct a hearing on the matter until early
January 2009, more than two months after the requests were filed. The Board then
waited nearlytwo months beforeholding a vote on the matter. The incompleteness of
the record submitted by the Board required this office to first afferto Senator Husted the
opportunity to provide additional documents for consideration, which he provided to the
Board and copied to the Secretary. The record was still incomplete at that tinie, since the
Board's deliberations on obtaining additional records through its investigatory subpoena
power resulted in a tie vote. The Secretary of State, therefore, used the investigatory
subpoena power of the office to obtain the records that the Board was unable to obtain
and referred the matter back to the Board in the hopes that a tie vote could be avoided.
Then, after receiving the additional documents obtained by this office, the Board toak
another month to review the matter and reached a second tie vote. Thereafter, Senator
Husted, himself, added to the time by prematurely filing an action with the Supreme
Court of Ohio to try to force the Seeretary's hand to rule in his favor. fhe time required
to resolve this matter could have been substantially reduced if the Board and Senator
Husted had cooperated in a complete and thorough investigation in a timely manner.

A. Legal standards governing voter registration residence

Under Ohiolawevery United States citizen who is at least eighteen years old, has been a
resident of the state at least thirty days before the relevant election, has been registered
to vote for at least thirty days before the relevant election, and is a resident of the county
and precinct where he or she seeks to vote has the qualifications of an elector and is
entitled to vote. R.C: 3503•o1(A). R.C. 3503.02 provides the rules for deterinining the
residence qualifications of an Ohio elector. The portions of R.C. 3503.o2 relevanfto 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:
Montgomery County 11e Vote - Jon Husted Residency Page 5 of 12

(A) That place shall be consiclered the resielence of a person in which the
person's habitation is frxed and to which, whenever the person is absent,
theperson has the interztion of retui•rziiig. (emphasis added)

(B) A person shall not be considered to have lost the person's residence
who leaves the person's hotne and goes into another state or county of this
state, for temporary purposes only, with the intention of returning.

(C) A person shall not be considered to have gained a residence in any

county of this state into whiclr the person comes for temporary purposes
only, witliout the intention of maldng such county the permanent place of
abode:

(D) The place where the family of a married person resides shall be
considered to be the person's place of residenee; except that when the
spouses have separated and live apart, the place where stich a spouse
resides the length of time required to entitle a person to vote shall be
consideredto 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 fatt that the
person may entertain an intention to return at some ftiture period.

(G) If a person renioves from this state to engage in the services 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
Iilcewise should the person enter the employment of the state, the place
tultere such person resided at the time of the per•son's removal shall be
considered to be the person's place of residence.

As discussed below, resolving the challenge to Senator Husted's residency involves

harmoni2ing three potentially conflicting portions of this statute: (i) the general rule
based on anindividual's present circumstances and intent, (2) the exception for married
voters, and (3) the exception for certain government employees.

B. Nature of proceeding before the Board

While there are specific statutes in Ohio law regarding challeizges to an individual's voter
registration, this particular matter was specified at the Board's first hearing as an
investigation pursuant to R.C. 3501.11(J) 4(I-Iearing Tr. i.). In addition, the Board has
the duty to "[i]nvestigate and determine the residence qualifications of electors" under
R.C. 3501.zs(Q). The Board attempted to resolve the matter ofSenator Husted's voter

4 RC. 35oi.i1(J) requires a board of elections to: "Investigate in•egularities, nonperformance of

duties, orviolations of Title XXXV of the Revised Code by election officers and other persons;
administer oaths, issue subpoenas, summon witnesses, and compel the production of books,
papers, records, and other evidence in connection with any such investigation; and report tlie
facts to the prosecuting attorney or the secretary of state."
MontgorneiT County 15e Vote - Jon Husted Residency Page 6 of 12

registration based on the residency questions raised at the hearings and was unable to
resolve the question, referring the matter as a tie vote to the Secretary of State. I'he
Secretary utilized the investigatoty authority of the office (R.C. 35o1,o5(N)(1)) to provide
the Board with more information to avoid a tie vote and to determine Senator Husted's
qualifications as an elector, but the Board was unable to reach a decision tvithout
reaclung a tie and has referred the matter back to the Secretaty of State. The Secretary of
State has been ordered by the Supreme Court of Ohio at Senator Husted's demand, to
break the Board's tie vote.

Given the importance of the right to vote to our system of government, it must be
zealously protected. Voting is a"fundamental political right, because [it is] presetvative
of all rights." Yick 147o v. Hopkins (1886), 118 U.S. 356, 370; Reynolds v. Sims (1964),
377 U.S. 533, 562. The arc of lunerican history, fcotn the Fifteenth, Nineteenth, and
Twenty-sixth amendments to the United States Constitution to theVoting Rights Act of
1965 and the National Voter Registration Act of 1993, bends toward expansion and
protection of the right to vote. Wlien aii individual qualilies to register and exercise this
vital right, it should not be removed lightly. Emphasizing again that this matter is not
before the Board upon a challenge to Senator Husted's voter registration, but rather,
upon the Board's own investigation, I note that on challenges I have directed boards of
elections to apply a heightened standard of review so that the burden of proving that a
registered elector is not qualified to vote under Ohio law must be established by "clear
and convincing evidence.". See, Secretaty of State Directive 2008-79
(http://www.sos.state.oh.us/SOS/elections/Directives/2oo8%2oDirectives/2oo8-
7g.aspx). This heightened standard shall be applied in this instance in my casting of my
vote, in an abttndance of caution and out of respect for Senator Husted's service to the
Stateof Ohio.

In addition to preserving and protecting the right to vote, this office has worked to
protectagainst voter registration fraud and voter fraud. Last year, Directives 2008-25,
2oo8-56, 2008-57, 2008-72, 2008-73, and 2008-74 instructed boards of elections in
minimum security requirenients to guarantee protection of ballots and voting s}=stems.
These steps have helped to ensure safe and seeure elections with no significant delays or
problems.

C. Evidence related to Senator Husted's residency

Senator Husted was the only witness to testify at the Board's hearing in January. Husted
presented the following evidence on his own behalf regarding the relevant factors of R.C.
3503.02;

Senator Husted otvns a home at 148 Sherbrooke Drive in ICettering, Montgomeiy

County, Ohio. T+Ie has owned that home for the past fourteen years. Senator Husted is
registered to vote at 148 Sherbrooke Drive. Prior to running for state representative in
2000, while living in Kettering, Husted worked for the Montgomery County Commission
and the Dayton Area Chamber of Cotnmerce.

Senator Husted has served in the General Assembly since 2oor. During his first term as
a state representative, Senator Husted began arranging for overnight stays in Columbus.
Senator I3usted has "rented, owned, or stayed with family in at least six different places"
during his tenure as a state representative and state senator. IIearing Tr. 2. At one
Montgomery County'I'ie Vote - Jon Husted Residency Pagc 7 of 12

point, approximately three years ago, Senator Husted and his wife had ownership in a
coiidominium located in Columbus, near the Statehouse.

Senator Husted and his v,dfe have a two-year-old daughter. Senator Husted's wife is a
real estate broker, with an office in Franklin County. She also performs physical therapy
services, "mostly in Columbus." Hearing Tr. 9. At the time of their marriage, Senator
Husted's wife resided in Columbus and sincethe marriage, Senator Husted's wii'e has
"maintained" a house in Fraiiklin County. Hearing Tr. 5-6, Senator Husted also has a
thirteen-year-old son who lives and attends school in Upper Arlington. Hearing Tr. 5.

Senator 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"
Colurnbus and Kettering, spending a "considerable aniount of time in Columbus."
Hearing Tr. 5, i4-i5. 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. FIearing Tr. 6-8, i4-rg. Senator Husted's
children have rooms at the residence at 148 Sherbrooke Drive, and his current Nvife
supervised the remodeling of the home trvo years ago. Senator Husted also testified that
the weekend before the hearing he and his family traveled to Kettering for a hunting trip
but did not stay at the Sherbroolce Drive home. I-Iearing Tr. g, io.

Senator Husted stated that he receives various forms of mail at the 148 Sherbrooke Drive
location. Husted pays the Dayton Power & Light bill for 148 Sherbrooke Drive, but could
not recall the amount of the average bill durhig the past year. Senator Husted testified
that his taxes and retirement statements are sent to 148 Sherbroolce Drive and that this
is the location through which his "official business" is conducted. Hearing Tr. 9-io.
Senatot' Husted has a bank account Mth Dayton Air Credit Union. Under further
questioning, Senator Husted adinittedthat he has a joint personal checking account with
his vvife in Columbus to which his paychecks are deposited. FIearing Tr. 11-13. Senator
Iiusted's automobile is registered in Montgomery County, Ohio..

Senator Husted claimed that to the extent he departed from Montgomery County, it was
due to his role as a state legislator. Hearing Tr. 4. Senator Husted testified that he
intends to rettirn to Kettering f[dl-time when his public service ends. Hearing Tr. 2, 4,
Following the Board's initial tie vote and my request for further supporting
documentation, Senator Husted submitted to the Board records demonstrating that his
driver's license and automobile are registered in Montgomery County. The documents
further showed that Senator Husted has some utility services at 148 Sherbrooke Drive
ancl that Senator Husted receives mail from private entities and state and local
government agencies at that address. Senator Husted provided a copy of his required
financial disclosure forms indicating that he listed 148 Sherbrooke Drive as his address.
YIe also submitted copies of invoices reflecting the renovations to that property discussed
in his hearing testimony. The documents inchided pay stubs from the Dayton Area
Chamber of Commerce and records from the Day Air Credit Union reflectiiig financial
ties to Montgomery County.

In addition to Senator Husted's testimony and vohmtarily-subinitted documents, the

record conl:ains docunients received in response to subpoenas issued by this office.
These records reflect that Senator Husted has owned the property at 148 Sherbrooke
Drive since October 1995• He transferred that property to a trust in January 2007. An
Oetober 21, 2oo8 letter from Montgomery County Auditor Karl L. Keith to Senator
Montgomety County Tie Vote - Jon Husted Residency Page 8 of 12

Husted indicates that Senator Husted has continually received a 2.5% tax rollback on the
148 Sherbrooke Drive property as his "principal residence." The property at 148
Sherbrooke Drive is served by water, natural gas, and electrical utilities. The records for
these utilities reflect notably reduced consurnption during 2008 when cotnpared with
similar records from 2ooo. For example, there was no recorded water consumption at
148 Sherbrool(e Drive during Marcli through July 2oo8; while during the saineperiod in
aooo approximately 21 hundred cubic feet of water were used. Similarly, from April
tltrough October 2oo8 no more than 112 kilowatt hours of electricity were consumed in
any single month; during the comparable period in 2ooo, no less than 28o kilowatt
hours of electricity were consumed evety month. According to records from the United
States Postal Service, from January 2005 to January 2oo6 and March 2oo6 to February
2007, Husted had all mail from 148 Slierbrooke Drive forwarded to his state office at 77
South High Street in Columbus:

Documents reseived in response to a subpoena also help to.clarify some of the issues
regarding Senator IIusted's presence in Columbus. From October 2003 to March 20o6,
he owned a condominium located at 911-L Manor Lanc in Columbus. From February
2oo6 to March 2007, Husted and his wife owned a condominium.located at 145 North
High Street, Unit looo in Columbus. On February 3, 2oo6, Mrs. Husted declared under
penalty of perjuty in the conveyance documents that the 145 North High Street
condominium would be their principal residence by January 1, 2007, and that the
property was eligible fortlte 2,5% property tax rollback. The Husteds sold the 145 North
High Street condominiuni in March 2007.

D. Analysis of legal and factual arguments related to Husted's

residency

Wlten these facts are applied to the relevant rules for determining residence under R.C.
3803.02 (listed above), it appears that prior to 2001 Senator Husted was a resident of
Montgomery County, living at 148 Sherbrooke Drive in Kettering. It is undisputed that
since 2oo1, Husted has spent "considerable" time living outside Montgomery County on
a regular basis. It is also undisputed that Senator Httsted's family resides otttside
Montgoinery Gounty. Titus, it appears that Senator Husted has homes in both
Montgomery County and Franltlin County. Although an individual may have inore than
one home, he may only have one "residence" for the purposes of voter registration.
Determining Senator Husted's eligibility to be a Montgonie,ry County elector requires
determining which o'f these homes coustitutes his "voting residence.""

1. Appli.cation of the state employec residence provision

Board Chair Gantt and Member Nathanson argue that Senator Husted's residency is
governed by R.C. 3503.o2(G). Gantt-Nathanson Second Position Paper, at 2. That
statute provides, in part, that when a person "enters the employment of the state, the
place wltere such person resided at the time of the person's removal shall be considered
to be the person's place of residence." R.C. 3503.o2(G). Based on this provision they
claiin that Senator Husted's residence was effectively fixed in Montgomery County from
the moment he became a state legislator. Board Chair Gantt opined that Senator Husted
"cotdd have even sold his home and terminated any employment he has in the
[Kettering] area witl-iout affecting his residency status" and that "the only action taken by
Mr. Husted within the last eight years that could have possibly affected his residency is
his marriage to a womait who resided in the Columbus area." Gantt Memo, at 5.
Montgomery County T5e Vote - Jon Husted Residency Page 9 of 12

Section 3, Article II of the Ohio Constitution rcquires state legislators to reside in their
district for a year prior to election.5 Engaging in a legal fiction that a legislator remains a
"resident" of his district by virtue of holding office regardless of his actual, physical
presence in the district violates this coivstitutional requirement. Therefore, I expressly
reject this rationgle to determine Senator Husted's residency.

Additionally, Gantt and Nathanson ignore a key issue in the interpretation of R.C.
3503•02(G)-tlie type of "removal" required to trigger the statute. The first clause of the
statute speaks to when a person "removes from this state" to serve the federal
government. In such case, the person does not lose his or her residence in the state while
in government senice. The statute continues: "and likewise should the person enter the
employment of the state," he or she will similarly not lose his or her residence in the
state. A literal reading of the statute has no application to Senator Husted's situation,
sinec he has not removed from the state, onlyfrom Montgomery County.

2. Application of the married voter residence provision

Board members Lieberman and Ritchie argue, in part, that the analysis of Husted's
residency is governed by the rule regarding married voters in R.C. 3503•02(H)•
Lieberman-Ritchie Second Position 1'aper. 1`his statute provides that "[t]he place Avhere
the family of a married person resides sTtallbe considered to be theperson's place of
residence," except where the spouses have separated and live apart.6 R.C. 3503,o2(D)
(emphasis added). Husted testified that "for the most part" his wife and young daughter
reside in Golumbus. Husted's wife owns a home in Upper Arlington that she claims as
her "principal residence" for property tax purposes. There is no evidence that Flusted
and his wife are separated and living apart. In fact, Senator Husted admitted that his
paycheck goes into a bank account held jointly with his cndfe in Columbus. Hearing Tr.
12-13. Hertook pains in his testimony to indicate that his wife does sometimes perform
physical therapy out of town, that she returns to Kettering with him occasionally, but in
the trip most recent to the hearing, the family did not stay at the Ketteringlocation.
Hearing Tr. 9-11. Thus, according to I:iebernian and Ritchie, Husted should be
considered a resident of Franldin Coun'ty, Ohio.

5 In a brief filed Nvitb the Board following the hearing and incorporated by reference into the
position statement of Gantt and Nathanson following the first tie vote, Senator Husted argues
that Section 3, Artiele II bolsters his resideney claim because it provides an exception to the one
year residency requirement if the prospective state legislator "lhas.l been absent on the public
busine,ss "** of this State " Section g, Article II, Ohio Constitution. Senator Husted claims that
this clause constitutes recognition that legislators "mnst be absent from their districts in order to
perform their official duties." Husted Meino in Support of Dismissal, at S. Obviously, state
legislators are required to leave their districts fi•om time to time taattend to duties in Columbus.
Even given the added responsibilities that Senator Husted bore as Speaker of the House of
Representatives, it is not clear that he was required to i•emain outside his district for long periods
of time wheq the General Asseinblywas not in session. Fuither, it is not cleat• on its face that this
constitutional provision was intended to enable absentee legislators, and Senator Husted offers
no authority to support this position.

6 The courts have heid that the "separated and liv[ing] apart" exception in R.C. 3803.02(D) only
refers to the physical location of the spouses and does not require the courts to inquire inYo the
status or quality of the marital union. So long as the spouses physically maintain two separate
residences, the exception may apply. Cox u. Village of Union City (1948), 84 Ohio App. 279, 282.
Montgomery County Tic Vote - Jon Husted Residency Page io of 12

Although the statute contains mandatory language (i.c., "shall be considered"), the
United States Court of Appeals for the Sixth Circuit has ruled that R.C. 3503.02(D) does
not violate the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution, as the stattite is applied as a rebuttable presumption that a married
voter resides where his or her fainily resides. Bell v. Marinko (C.A.G, 2004), 367 F.3d
585, 593• Sworn testimony or an affidavit may be sufficient to overcome the
presumption. Senator I-lusted did not make it clear from his testimony that he and his
wife reside separately, and the presuinption in R.C. 3503.02(D) is not rebutted by his
testimony or by records he provided either at the hearing or in response to the Secretary
of State's offer to allow him to produce more information. Even using the dear and
convincing evidentiary standard, his testimony fails to rebut the presumption that he
lives with his wife and daughter in Franklin County. iVIoreover, the eiddence of his wife's
voter registration and voting history establish by clear and eonvincing evidence under
R.C. 3503.o2(D) that he has.lost his Montgomery County residency status, such as
occurted in State ex rel. Eaton v. Erie Countej Bd. of Elections, when an office holder
sought to ivn for reelection but was stripped of his voting rights when his wife
maintained a permanent residence in Florida and voted there.

3. Application of the general residency determinationrule

Because the Secietary of State is applying a clear and convincing standard to Senator
I3usted'ssituation, it is usefril to lookat whether the application of the general residency
detertninafiion rule may operate to rebut the presumption of R.C. 3503.o2(D) that has
not been rebutted by Senator Husted's testimony. Under R.C. 3so3.o2(A) the law
defrnes "voting residence"as "[t]hat place *"" in which the person's habitation is fixed
and to which, whenever the person is absent, the person has the intention of returiiing."
R,C. S5o3.o2(A).

Senator Husted's tuzdisputecl testimony repeatedly emphasized his intent to return to

Montgomery County on a full-time basis when his public service is. completed. The
courts have noted that a"person's intent is of great import" in applying R.C. 3503•02•
State ex rel. Stine u. BrrownCtej Bd. of Elections (2004), ro1 Ohio St:3d 252, 2004-Ohio-
771, at ¶i5. 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 5$$> 592 (emphasis added). The law expressly
provides that residence is the location vvhere a person's "habitation is fixed." R.C.
3503,02(A) (etnphasis added), Senator I-lusted admitted in his testimony before the
Board that he sometimes took reimbursement for travel out of the state and that the
reimbursements depended on where he was leaving from, but thathe could not recall
any reinibursements for travel from his Kettering location. Hearing Tr. 12. He indicated
that he purchased groceries for both locations in Kettering and Colnmbus. Hearing Tr.
ii. He indicated that he and his family traveled to botti places and that the children had
bedrooms in both places, but he did not cite any instances where the family stayed in
Kettering. Hearing Tr. 5, 10.

With respect to the location where Husted's habitation is presently fixed, the evidence
doesnot rebut the presumption that his residence is with his family in Franldin County.
Senator Husted testified that he is in iVlontgoinety County weekly, but not daily. I-Ie
retains a habitable dwelling in Montgomery County and has made certain improvements
to that dwelling; however, use of the property is sporadic as is evidenced from utility
records. Senator Husted claims the Montgomery County property as his "principal
Montgoinery County Tie Vote - Jon I-Iusted Residency Page 11 of 12

residence" for property tax purposes. In addition to his state legislative role, Senator
Husted is employed by a Montgomery Cotinty entity and conducts at least some of his
financial business through a Montgomery County-based bank. He at times receives mail
at the Montgomery County address, and like John Eaton, in State ex reI. Eaton v. Er•ie
Cty Bd. of Elections, some of his personal business appears to be conducted through the
Montgomery County address. These facts, however, under case law are not sufficient to
find that Senator Husted's presence is currently fixed in Montgoinery County.

Other portions of the evidentiary record suggest a contrary conelusion. Senator Husted,
by his oi±ai admission, spends a°considerable amount of time in Columbus." His wife,
young daughter, and school-age son all reside in h'ranklin County. His rvife owns a home
in Franldin County, and Senator Husted himself owned or co-owned at least t»o
different properties in Columbus between 20o3 and 2007. Senator Husted reported that
one of these Columbus condominiums was his "principal residence" for property tax
purposes in 2oo6. For nearly two calendar years he had all mail fottivarded from his
Montgomery County dwelling to an address in Columbus. Utility records for the
Montgomery Cotmty property demonstrate a substantial decline in consumption as
compared to 2ooo, including a period in 2008, with no reported water consutnption,
suggesting a substantially reduced presence in Montgomery County. These facts support
a finding that Senator Husted's presence is currently fixed in Franklin County and that
he periodically retnrns to Montgomery County on a temporary basis.

With respect to Senator Husted's intention to return to Montgomery County, he testified

under oath that any absence from Montgomery County is temporary and that he intends
to return fttll-time once his state service is completed. Made under penalty of perjury,
such testimony is due a proper aniount of deference. No contrary testimony was offered
at the hearing. However, in of Stcite e.r ret. Eaton v. Erie Cty Bd. of.i✓iections, the board
found that there was conflicting evidence and testimony. I'he Sixth District Cotirt of
Appeals quoted from the board's transcript: "We have considered the operationof an
application of 3502(D) of the Ohio Revised Code and loolcing at the authority of the Bell
case from the Sixth Circuit, consider it as evidence, ratlier consider the application and
residency of the spouses as evidence, but not as dispositive of the Board's finding..

Other facts outlined above provide evidence contrary to Senator Husted's stated
intentions. For example, the fact that Senator Husted's wife owns a home in Franklin
County and has one or more established businesses in the Columbus area suggest that
she intends to remain in Franklin County. Because there is no testimony that Senator
Husted and his -vvife live separately, it is not unreasonable to anticipate that he cvrill
continue to reside in Franlclin County with his family even when his public senice is
cotnplete: Likewise,-claiming a Columbus condominium as his "principal residence" is
evidence contrary to an intent to return to Montgomery County.

In Directive 2008-79, 1 instructed boards of elections that an existing voter's registration

could only be cancelled upon a showing of "clear and convinciug evidence." "Clear and
convincing evidence is that measure or degree of proof which will produce in the mind of
the trier of facts a firm belief or conviction as to the allegations sought to be established."
Cross a. Ledford (1954)161 Ohio St. 469, 477. As outlined in detail above, the evidence
in the record supports by clear and convincing evidence that Senator Husted is not and
has not been a resident of Montgomery County before and since the time the Board
undertook its investigation. Wliile Senator Husted's subjective testimony claims an
intention to return to a "fixed" habitation, the iveight of the evidence based on his actions
Montgomery County Tie Vote - Jon IIusted Residency Page 12 of 12

and those of his family under the relevant legal provisious tip the scale so clearly against
his assertions that I am convinced and hold the firm belief that he is no longer a resident
of Montgomery County and tbereforeis not eligible to vote there. I note that his voting
history during the pendency of this investigation should not be a stibjectfor further
inquiry, as the question of whether he was entitled to vote there remained at issue and he
should not be thus penalized.

Decision

For the foregoing reasons, I vpte with Board members Lieberman and Ritchey AGAINST
the motion that Senator Husted is a resident of Montgomery County, residing at 148
Sherbrooke Dlive, Ketteting, Ohio. Accordingly, the motion fails. The Montgomery
County Board of Elections is hereby instructed to proceed accordingly,

Sincerely,

Jennifer Brunner