Kennedy, J., dissenting.
{¶ 35} A board of elections obligation to ensure that a part-petition circulator strictly complied with R.C. 3501.38(E)(1) does not require it to apply the statute with a bent toward excluding petitions. Instead, the board must simply ensure that the circulator met the statutes actual requirements. Here, respondent, the Delaware County Board of Elections, did that. This court, on the other hand, inserts a court-made requirement that a circulators indication of the number of signatures on a part-petition must be in his own hand. Its not enough for this court that the circulator sign a statement under penalty of election falsification attesting to the number of signatures on the part-petition for a township zoning referendum. This courts in-his-own-hand requirement is not part of a hypertechnical interpretation of the statute; instead, its simply made up.
{¶ 36} This courts focus in this case is on part-petition No. 2. The circulator of part-petition No. 2, Herman E. Berk Jr., had a duty to comply with the requirements of R.C. 3501.38(E)(1) in order for the part-petition to be valid. That statute reads:
On each petition paper, the circulator shall indicate the number of signatures contained on it , and shall sign a statement made under penalty of election falsification that the circulator witnessed the affixing of every signature, that all signers were to the best of the circulators knowledge and belief qualified to sign, and that every signature is to the best of the circulators knowledge and belief the signature of the person whose signature it purports to be or of an attorney in fact acting pursuant to [ R.C. 3501.382 ].
(Emphasis added.) R.C. 3501.38(E)(1).
{¶ 37} I would hold that Berks signed declaration attesting to-among other things-the number of signatures on the part-petition more than satisfies the requirement in R.C. 3501.38(E)(1) that the circulator indicate the number of signatures contained on it. Berk submitted the following circulator statement as a part of the part-petition in question:
I, Herman E. Berk Jr., declare under penalty of election falsification that I reside at the address appearing below my signature; that I am the circulator of the foregoing petition containing 28 signatures; that I witnessed the affixing of every signature; that all signers were to the best of my knowledge and belief qualified to sign; and that every signature is to the best of my knowledge and belief the signature of the person whose signature it purports to be or of an attorney in fact acting pursuant to section 3501.382 of the Revised Code.
Berks signature follows the statement. The statement is Berks statement, signed by him, attesting to all the facts set forth in the statement under penalty of election falsification, including the indication of the number of signers on the part-petition. That someone else physically filled in the blank regarding the number of signers is immaterial. It is Berk who was attesting to the accuracy of that number in his statement. His statement begins with I, Herman J. Berk Jr., declare and ends with his signature, so it is Berk who was making all the declarations contained in between, including his indication of the number of signers.
{¶ 38} Looking back to the statute, all that it requires is that the circulator indicate the number of signatures contained on it. (Emphasis added.) R.C. 3501.38(E)(1). It does not require that the indicat[ion] be in the circulators own hand. What if Berk had asked someone to type in the number of signatures on the part-petition? Would that have invalidated the part-petition? How the number was physically registered on the piece of paper is not significant; the signed statement supporting that figure is what is important.
{¶ 39} Certainly, the definition of indicate does not require that the indication of a number must be written in ones own hand with a pen, or certified, or sworn to in the presence of a notary public. Because there is no definition of indicate in the statute, we look to its ordinary meaning: to point out or point to or toward with more or less exactness: show or make known with a fair degree of certainty, Websters Third New International Dictionary 1150 (2002).
{¶ 40} Did Berk show or make known with a fair degree of certainty the number of signers on the part-petition in his signed attestation? Of course he did. In fact, he went further than he need have: the requirement to indicate the number of signatures contained on the part-petition is not one of the items R.C. 3501.38(E)(1) requires to be a part of the statement made under penalty of election falsification. The elements of that statement are that the circulator witnessed the affixing of every signature, that all signers were to the best of the circulators knowledge and belief qualified to sign, and that every signature is to the best of the circulators knowledge and belief the signature of the person whose signature it purports to be or of an attorney in fact acting pursuant to [ R.C. 3501.382 ]. R.C. 3501.38(E)(1). Berk did not just indicate the number of signatures on the part-petition; he attested to it in a signed statement under threat of election falsification.
{¶ 41} And in this case, we have undisputed testimony that the insertion of the number into the space for the number of signatures on the part-petition was witnessed and authorized by the circulator. Further, the indicated number of signatures, 28, never changed after Berk relinquished control of the part-petition. Berk and his scrivener, Bonnie Perry, each independently counted the number of signatures on the part-petition. Berk testified about their process: Me and her went over them. I counted them, and Bonnie verified, right beside me, that they was all same. He testified that Perry filled in the number [w]hile [he] was standing there. All this occurred in each others company in Berks home.
{¶ 42} Perry wrote the number of signatures Berk had witnessed in Berks presence, with Berks knowledge, in response to Berks request for assistance, and before the part-petition left Berks possession. There is absolutely no indication of the fraud R.C. 3501.38(E)(1) is designed to thwart.
{¶ 43} The exact order of signing the circulator statement and filling in the number of signatures on the part-petition is unimportant. Rather, that the number matches the number of signatures at the time of filing is what matters. R.C. 3501.38(G) contemplates that the number of signatures may change even after the circulator signs the circulator statement. R.C. 3501.38(G) provides that [t]he circulator of a petition may, before filing it in a public office, strike from it any signature the circulator does not wish to present as a part of the petition. It follows that the indication of the number of signatures on the part-petition would have to be amended to match the true number of signatures. In that instance, the signature could precede the insertion of the correct number. R.C. 3501.38(G) establishes the time of filing the [petition] in a public office as the time when the R.C. 3501.38(E)(1) requirement to indicate the number of signatures on the part-petitions must be satisfied.
{¶ 44} The lead opinion, rather than interpret the statute itself, defers to the secretary of states supposed interpretation, which it claims is memorialized in a grammatically ambiguous sentence fragment that appears on petition form No. 6-O, which the secretary of state provides. Under the words Circulator Statement on that form appear the words Must be completed and signed by the circulator.
{¶ 45} I do not believe that the secretarys admonition on the form rises to the level of statutory interpretation. Although the sentence fragment is unambiguous regarding who must sign the circulator statement-signed by the circulator-it is ambiguous regarding who must perform the completing-must be completed. It does not say, for instance, The circulator must complete and sign this statement. It leaves open for interpretation who must complete the statement and whether directing someone else to complete some information is tantamount to completing the statement oneself.
{¶ 46} If the secretary of state had intended the form to declare his interpretation of R.C. 3501.38(E)(1), he would have used one or more complete sentences to make his point clearly. As constructed, the sentence fragment does not grammatically mean that the blanks in the circulator statement must be completed by the circulator himself.
{¶ 47} The secretary had more space to declare a definitive interpretation of the statute in Directive 2017-15, which is incorporated as Chapter 11 of the Ohio Election Official Manual. Therein, he instructs:
Prior to verifying the validity of individual signatures contained on a part-petition, the board of elections must verify the validity of that part-petition. Check each part-petition to determine whether the circulators statement on the last page of the part-petition has been properly completed. The entire part-petition is invalid if the circulators statement is not completed as required by law.
{¶ 48} In his directive, the secretary uses the passive voice regarding the completion of the circulator statement. He says that it must be completed, not that the circulator himself must complete it. There is certainly no definitive statement that the blanks in the circulator statement-outside of the signature line-must be physically filled in by the circulator.
{¶ 49} The lead opinion elevates the secretarys ambiguously worded sentence fragment on a sample form that possibly reflects the secretarys desire that a circulator fill out his own statement to a statutory requirement that must be strictly complied with. But the supposed requirement is not actually in the statute.
{¶ 50} In construing a statute, we may not add or delete words. State v. Hughes , 86 Ohio St.3d 424, 427, 715 N.E.2d 540 (1999). In this case, this court not only adds words requiring that a circulator himself write in his own hand the number of signatures that appear on a petition, but by doing so it also needlessly interferes in the election process. Todays decision should also be a cautionary tale to candidates and issue supporters who think that the careful and responsible tack is to check over and amend part-petitions before filing them. After todays decision, changes to the indication of the number of signers on a part-petition-even to correct counting errors-cannot be recorded on the part-petition by anyone but the circulator, in his or her own hand. This is a needless, nonstatutory requirement judicially grafted upon an already daunting petition process.
French, J., concurs in the foregoing opinion.
I will leave for another day the issue whether the judicial branch truly owes deference to administrative agencies interpretations of statutes. See, e.g., Pereira v. Sessions , --- U.S. ----, 138 S.Ct. 2105, 2120, 201 L.Ed.2d 433 (2018) (Kennedy, J., concurring) ([I]t seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ] and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary).