Mirlisena v. Fellerhoff
463 N.E.2d 115
11 Ohio Misc.2d 7, 463 N.E.2d 115, 11 O.B.R. 101
(Cite as: 11 Ohio Misc.2d 7, 463 N.E.2d 115)
moment deem this conduct to be an irregularity reducing the
Fellerhoff total by one vote.
Another alleged irregularity is the alleged failure to send notice postcards to numerous new voters. The evidence for this
was the computer notice lists which did not have a number
of names of registered voters (over sixty people) listed on
them; and, further, that these voters did not in fact vote. Respondent presented in opposition credible evidence that
some computer notice lists had not been preserved; and that
only about twenty-nine of these voters would have been on
lists examined by petitioner.
Although the board of elections may well be faulted for not
preserving in their entirety these obviously important lists,
petitioner has again failed to present affirmative evidence of
irregularity sufficient to allow the court to do more than
speculate among possible inferences. Here the possible inferences are:
1. The voters were not notified;
2. The voters were notified but the notice lists were lost or
destroyed;
3. The voters didn't vote because they didn't choose to do so,
even after notice or with full knowledge of the location of
the polling places; and
4. The voters were, in some cases, notified by an earlier
mailing.
In this case, the failure of affirmative evidence is glaring
and unnecessary. All names and addresses were known, but
not one of the allegedly disenfranchised voters was subpoenaed to court by petitioner. In view of the presumption
in favor of regularity in election matters (37 Ohio Jurisprudence 3d 566, Elections, Section 209), petitioner has failed
to demonstrate irregularity affirmatively on this point.
Another irregularity allegedly arises out of the return as undeliverable of one hundred thirty envelopes mailed on
November 4, 1983, by the Over-the-Rhine Community
Council from the computer notification list of October 22,
1983. Certainly this mailing **122 raises the possibility that
the notification list was incorrect. However, it does not af-
Page 7
firmatively establish that the board of election's mailing was
equally unsuccessful; or that the addresses were in fact incorrect; or that the voters had not moved. The burden of
proof is on the petitioner, and suspicion or possibility does
not satisfy this burden.
Irregularities were claimed by petitioner in the notification
of approximately twenty specifically named voters primarily
in precinct 17D.
An examination of the exhibits revealed that three of the
named individuals actually voted; that four of these individuals were in fact on the notification list; that one individual received two notices. As to the remaining twelve individuals, the court will, without deciding the issue at this
point, deem them deleted from respondent's sixty-two vote
total over petitioner.
Another irregularity alleged by petitioner is the failure of
poll workers to contact *13 the board of elections regarding
the people who came into the various disputed precincts
with notice postcards or registration application receipts, but
for whom there were no buff cards and who were not on the
signature lists.
The simple fact is that those people who entered polling
places with registration application receipts or with notice
postcards, but who were not in the buff books or on the signature lists, were on the face of it not eligible to vote in the
particular precinct. Efforts on the poll workers' part to help
them are laudable, but not required by the greatly detailed
election laws. The court will not now, in the pursuit of some
ill-conceived judicial affirmative action, create such an obligation. Here again the absence of any affirmative showing
of irregularity will not allow the court to do other than speculate on the possibility of irregularity.
Summation
Counsel for petitioner stated in his final argument that it is
not necessary to demonstrate the names and addresses of all
disenfranchised voters. He asked rhetorically: how much
evidence is enough?
Although it is theoretically possible that the court might infer that sixty-two or more voters were disenfranchised from
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
339
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