Jennifer Brunner

Ohio Secretary of State

1 8O East broad street, I 6th Floor

Columbus. Ohio 43215 USA

TEL: 1-877-767-6446 FAX: I -6 1 4-644-O649

WWW-SOS. STATE. OH. US

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 This motion was subsequently withdrawn pending the receipt of additional legal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.

■■'i :."
Montgomery County Tie Vote -Jon A. Husted Residency Page 2 of 5

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
Montgomery County Tie Vote - Jon A. Husted Residency Page 3 of 5

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.
Montgomery County Tie Vote -Jon A. Husted Residency Page 4 of 5

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-Ohio-
771, 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.
Montgomery Count}' Tie Vote - Jon A. Husted Residency Page 5 of 5

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 fact-
specific, 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