Rep. Emilia Sykes (D-Ohio; photo, left), 38, is a first-term member of Congress, having been initially elected in 2022. She is running for re-election.
Sykes comes from an Akron political family (see her bio here), and has lived in Akron since childhood, except when away attending college. Before Congress, she represented an Akron district in the state legislature.
Her husband (profile here), who she married two years ago, is a politician in Columbus and lives there. They’ve maintained separate residences, but a Republican activist challenged her voter registration, arguing she can only vote at her husband’s address.
This would mean she couldn’t vote for herself in the upcoming election, because he lives in a different congressional district.
The local election board split 2-2, along party lines, on the activist’s challenge; so the secretary of state, a Republican, will decide (see story here). If he decides against Sykes, it may be up to the courts. A judge would look at the Ohio election statute (read it here), which says,
“All registrars and precinct election officials, 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.
“(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.
“(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.
“(D) The place where the family of a married person resides shall be considered to be the person’s 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.”
What we have here is a tangled mess of a statute. Section (A) requires Sykes to vote where she lives, Section (B) makes clear that visiting her husband doesn’t change her voting residence, and Section (C) is explicit that unless she moves in with him, she can’t vote at his residence.
Then there’s Section (D), which assumes married people live together. What if they don’t? But aren’t legally separated?
(Hand goes up.) First, what does “considered” mean, and is it permissive or mandatory? The term appears to create a presumption. If permissive, the election officials can deviate from it; but if mandatory, then where Sykes lives is immaterial.
Second, what does “have separated and live apart” mean? Can election officials simply consider the fact that Sykes and her husband “live apart,” or does the conjunctive “and” mean both conditions must be met, i.e. they must be separated and live apart for the exception to apply? Sykes and her husband aren’t separated; they’ve simply maintained their premarital residences.
Third, what about the fact that if Section (D) applies to Sykes, then it’s in conflict with Sections (A) and (C)? How do you resolve this conflict?
And finally, if Section (D) supersedes Sections (A) and (C), applies to Sykes, and the exception doesn’t, then is the “place where the family of [the] married person” resides his residence or hers? Which spouse is the horse, and which is the cart?
Neither Sykes nor her husband have minor children; both live alone, so neither of their residences is a “family” residence. Because Section (D) doesn’t use gender pronouns, or otherwise designate which spouse is the “married person,” which is their “place” is indeterminate. The statute offers no clue of which to choose. A presumption preferring one spouse over the other may violate the Equal Protection clause.
So maybe the right answer to this question is that Section (D) should be struck down as unconstitutional. However, courts generally won’t do that if there’s a way to interpret a law in a way that doesn’t violate the Constitution. In this case, a court could do that by finding Section (D) is permissive. Or it could decide that Section (D) only creates a rebuttable presumption that spouses live together, and when if they don’t, Section (D) becomes inoperative.
Let’s talk briefly about presumptions. In law, a presumption can be either rebuttable or conclusive. The rules of interpretation generally favor finding a presumption to be rebuttable, unless the statute is explicit that it’s conclusive, which this statute isn’t.
A rebuttable presumption is just what the adjective implies; you begin with the assumption that married people live together, but election officials can determine otherwise based on evidence. In this case, Sykes presented evidence consisting of a driver’s license, renter’s insurance receipt, and other documentation.
A conclusive presumption means you can’t challenge the assumption; an example is “the wife’s residence is where her husband lives, no exceptions.” That’s not what Section (D) says, nor does any other language in Section (D) suggest the statute creates a conclusive presumption of that nature.
It seems to me the two Democrats on the county elections board got this right, and the two Republicans voted in a partisan manner instead of following the law. We’re seeing this all too frequently these days from Republican elected officials who took an oath to uphold the law.
This case illustrates something that law students, law professors, and judges encounter: Sometimes statutes are badly written. This is especially likely to happen when a legislature tries to micromanage, instead of trusting those who run things like elections exercise common sense. Over the last century or so, legislatures have replaced a lot of American common law, which consists of judges solving legal problems with logical thinking, with codified law consisting of highly detailed statutes.
In practice, this means legislatures have wrested large swaths of lawmaking away from judges; and, frankly, they’re not very good at it, as Section (D) illustrates. At the end of the day, you still need judges to clear up their word salads, untangle their contradictions and ambiguities, and try to make sense of rules that legislators themselves didn’t necessarily understand when they enacted them.