IN the SUPREME COURT of OHIO State Ex Rel., JOHN FOCKLER, Et Al

Supreme Court of Ohio Clerk of Court - Filed January 06, 2017 - Case No. 2016-1863

IN THE SUPREME COURT OF OHIO

State ex rel., JOHN FOCKLER, et al., : : Relators, : : Case No. 2016-1863 v. : : Original Action in Mandamus JON HUSTED, OHIO SECRETARY OF STATE, : : Original Action Respondent. : Under S. Ct. Prac. R. 12.04

RESPONDENT OHIO SECRETARY OF STATE JON HUSTED’S EVIDENCE VOLUME 2

MIKE DEWINE (0009181) Ohio Attorney General

Mark R. Brown (0081941) HALLI BROWNFIELD WATSON (082466) 303 East Broad Street *Counsel of Record Columbus, Ohio JORDAN S. BERMAN (0093075) Tel: 614-236-6590 | Fax: 614-236-6956 Assistant Attorneys General [email protected] Constitutional Offices Section 30 East Broad Street, 16th Floor Counsel for Relators Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-728-7592 [email protected] [email protected]

Counsel for Respondent Ohio Secretary of State

IN THE SUPREME COURT OF OHIO

RESPONDENT OHIO SECRETARY OF STATE JON HUSTED’S EVIDENCE VOLUME 2

Respondent Ohio Secretary of State Jon Husted submits the following evidence in this original action.

VOLUME 1

Exhibit Document 1 Affidavit of Matthew Walsh, Exhibits A-G 2 S. B. 193 3 LSC Fiscal Analysis of S.B. 193 Libertarian Party of Ohio v. Husted, Application for Stay and Emergency 4 Injunction 5 Libertarian Party of Ohio v. Husted, Husted Opposition to Application 6 Libertarian Party of Ohio v. Husted, R. 27 Appellee-Defendant Brief [Husted]

VOLUME 2

Exhibit Document 7 Libertarian Party of Ohio v. Husted, R. 18 Opinion and Preliminary Injunction Libertarian Party of Ohio v. Husted, R. 47 Opinion and Order and Preliminary 8 Injunction

Exhibit Document Libertarian Party of Ohio v. Husted, R. 185 Intervenor State’s Memo in 9 Opposition to Motion for Summary Judgment 10 Libertarian Party of Ohio v. Husted, R. 336 Opinion and Order 11 Libertarian Party of Ohio v. Husted, R. 369 Opinion and Order

Respectfully submitted,

MIKE DEWINE (0009181) Ohio Attorney General

s/ Halli Brownfield Watson HALLI BROWNFIELD WATSON (082466)* *Counsel of Record JORDAN S. BERMAN (0093075) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-728-7592 [email protected] [email protected]

Counsel for Respondent Ohio Secretary of State

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Respondent Ohio Secretary of State

Jon Husted’s Evidence was served by regular U.S. mail, postage prepaid, on January 6, 2017 and via email, upon the following:

Mark R. Brown (0081941) 303 East Broad Street Columbus, Ohio [email protected]

Counsel for Relators

s/ Halli Brownfield Watson HALLI BROWNFIELD WATSON (082466) Assistant Attorney General

EXHIBIT 7

EXHIBIT 8

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

LIBERTARIAN PARTY OF OHIO, et al., : : Case No. 2:13-cv-00953 Plaintiffs, : : Judge Watson v. : : Magistrate Judge Kemp JON HUSTED, : : Defendant. :

INTERVENOR-DEFENDANT THE STATE OF OHIO’S MEMORANDUM CONTRA INTERVENOR-PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ON THEIR FACIAL FEDERAL CONSTITUTIONAL CHALLENGE TO S.B. 193 [Doc. No. 165],

AND CROSS-MOTION FOR SUMMARY JUDGMENT ON INTERVENOR- PLAINTIFFS’ FACIAL FEDERAL CONSTITUTIONAL CHALLENGE TO S.B. 193

Respectfully submitted,

MICHAEL DEWINE Ohio Attorney General

/s/ Kristopher J. Armstrong KRISTOPHER J. ARMSTRONG (0077799) Trial Attorney SARAH E. PIERCE (0087799) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 (614) 466-2872 (614) 728-7592 (fax) [email protected] [email protected]

Counsel for Intervenor-Defendant State of Ohio

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... iii

I. INTRODUCTION ...... 1

II. FACTS ...... 1

A. The Green Party of Ohio and Constitutional Party of Ohio Intervene as Plaintiffs...... 1

B. Ohio’s Ballot Access Law at the Time of the Blackwell Decision...... 2

C. Ballot Access Uncertainty Post-Blackwell...... 3

D. H.B. 194: Ohio’s First Attempt at Statutory Ballot Access...... 4

E. S.B. 193 significantly reforms Ohio’s ballot access system...... 4

F. Ohio’s Choice to give general ballot access to a newly-formed political party’s candidate...... 6

III. LAW AND ARGUMENT ...... 7

A. The challenged provisions of S.B. 193 are non-discriminatory in their application and are fully constitutional under the Anderson/Burdick framework...... 7

1. S.B. 193 does not severely burden Intervenor-Plaintiffs’ rights...... 10

2. Even assuming that the burden imposed is “severe”— which it is not—the challenged provisions of S.B. 193 are appropriately tailored to meet a compelling state interest as a matter of law...... 23

IV. CONCLUSION ...... 24

CERTIFICATE OF SERVICE ...... 25

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TABLE OF AUTHORITIES

Cases Page(s)

American Party of Texas v. White, 415 U.S. 767 (1974) ...... 14, 15

Anderson v. Celebrezze, 460 U.S. 780 (1983) ...... 7

Barr v. Galvin, 626 F.3d 99, 109 (1st Cir. 2010) ...... 8, 9

Burdick v. Takushi, 112 S.Ct. 2059 (1992) ...... 7, 8, 23

Constitution Party of Ohio v. Brunner, Case No. 2:08-cv-666 (S.D. Ohio 2008) ...... 1

Eu v. San Francisco County Democratic Central Committee, 109 S.Ct. 1013 (1989) ...... 23

Green Party of Arkansas v. Martin, 649 F.3d 675 (8th Cir. 2011) ...... 8, 11, 13

Green Party of Tennessee v. Hargett, Case No. 3:110-cv-00692, 2013 WL 3010697 (M.D. Tenn. June 18, 2013) ...... 16, 17

Jeneness v. Fortson, 403 U.S. 431 (1971) ...... 10

Libertarian Party of Ohio v. Blackwell. 462 F. 3d 579 (6th Cir. 2006) ...... passim

Libertarian Party of Ohio v. Brunner, 567 F.Supp2d 1006 (S.D. Ohio 2008) ...... 1

Monro v. Socialist Workers Party, 479 U.S. 189 193-95 (1986) ...... 1, 9, 13, 23

Moore v. Brunner, Case No. 2:08-cv-224 (S.D. Ohio 2008) ...... 1

Rainbow Coalition of Oklahoma v. Oklahoma State Election Board, 844 F.2d 740 (10th Cir. 1988) ...... 12

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Cases Page(s)

Rogers v. Corbett, 468 F.3d 188 (3rd Cir. 2006) ...... 8, 12

Rosario v. Rockefeller, 93 S. Ct. 1245 (1973) ...... 23

Swanson v. Worley, 490 F.3d 894 (11th Cir. 2007) ...... 11, 12

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) ...... 10

Statutes Page(s)

Ohio Rev. Code § 3501.01(E)(2) ...... 2

Ohio Rev. Code § 3501.01(F) ...... 22

Ohio Rev. Code § 3501.01(K) ...... 21

Ohio Rev. Code § 3513.05 ...... 7, 20

Ohio Rev. Code § 3513.19 ...... 14

Ohio Rev. Code § 3513.20 ...... 14

Ohio Rev. Code § 3517.01 ...... 2, 13, 22

Ohio Rev. Code § 3517.01(A)(1)(a) ...... 5

Ohio Rev. Code § 3517.01(A)(1)(b) ...... 5, 13

Ohio Rev. Code § 3517.01(A)(1)(b)(iii) ...... 5, 21

Ohio Rev. Code § 3517.012 ...... 2, 6, 22

Ohio Rev Code § 3517.012(A)(1) ...... 21

Ohio Rev. Code § 3517.012(B)(2)(a)-(b) ...... 20

Ohio Rev. Code § 3517.012(E)(2) ...... 19

Ohio Rev. Code § 3517.016 ...... 15, 16

Ohio Revised Code § 3517.012(A)(1) ...... 22

Ohio’s Ballot Access Law ...... 2

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Other Authorities Page(s)

First Amendment ...... 3

Fourteenth Amendment ...... 3, 4, 8, 12

Fed. R. Civ. P. 56 ...... 7

Senate Bill 193 ...... 2, 4

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I. INTRODUCTION

Intervenor-Plaintiffs, representing the Green Party of Ohio and the Constitution Party of

Ohio, have moved for summary judgment on their facial federal constitutional challenge to Ohio

S.B. 193, which expanded statutory ballot-access guidelines for Ohio’s minor political parties.

S.B. 193 satisfies the Anderson-Burdick analysis and is fully constitutional. S.B. 193 does not

impose a severe burden on the rights of minor parties and is justified by Ohio’s important

regulatory interests in “preserving the integrity of the electoral process and in regulating the

number of candidates on the ballot,” in “requir[ing] a preliminary showing of significant support

before placing a candidate on the general election ballot,” and in reducing “voter confusion,

ballot overcrowding, [and] the presence of frivolous candidacies” on the ballot. Monro v.

Socialist Workers Party, 479 U.S. 189 193-95 (1986).

Intervenor-Plaintiffs’ motion should therefore be denied. As the undisputed facts show

that S.B. 193 is constitutional, summary judgment should be entered in favor of Defendants on

Intervenor-Plaintiffs’ facial federal constitutional challenge to S.B. 193.

II. FACTS

A. The Green Party of Ohio and Constitutional Party of Ohio Intervene as Plaintiffs.

Ohio has not had a ballot access law since 2006 when the Sixth Circuit declared Ohio’s

law unconstitutional in Libertarian Party of Ohio v. Blackwell, 462 F. 3d 579 (6th Cir. 2006).

In the absence of such a law, the Green Party Ohio and the Constitutional Party of Ohio sought,

and were granted, access to Ohio’s ballot by agreement with the Secretary of State following a

court order (see Directive 2011-01 (referencing 2008 agreement arising out of Constitution Party

of Ohio v. Brunner, Case No. 2:08-cv-666 (S.D. Ohio 2008), Moore v. Brunner, Case No. 2:08-

cv-224 (S.D. Ohio 2008), and Libertarian Party of Ohio v. Brunner, 567 F.Supp2d 1006 (S.D.

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Ohio 2008)) or by Secretary of State directive (Directives 2009-21; 2011-01; 2013-02).

Currently, but for the provisions of the enactment that they challenge here, these two political

parties do not have ballot access after the 2014 election cycle. There is no court order granting

them access and the Secretary of State has not granted it by Directive. (This Court’s order

granting the Plaintiffs’ preliminary injunction in this case applied only to the 2014 election, and

the Secretary’s last directive regarding ballot access for minor political parties granted it only for

the 2013 election cycle. See Doc. No. 47, pp. 27-28; Directive 2013-02.)

In order to fill the void left by Blackwell, the General Assembly passed, and the Governor

signed, S.B. 193. S.B. 193 greatly reduces the requirements on political parties to qualify for

Ohio’s ballot far below those that the Court in Blackwell rejected. It also greatly reduces the

burdens placed on political parties to petition for party status if they have not retained ballot

access by not receiving sufficient votes.

Nonetheless, Intervenor-Plaintiffs Green Party Ohio and Constitutional Party of Ohio and

some of their prospective candidates, here challenge certain provisions of Senate Bill 193.

Effective February 5, 2014, S.B. 193 (in pertinent part) amended Ohio Rev. Code Section

3501.01(E)(2)’s requirements for becoming a “Minor Political Party”, Ohio Rev. Code Section

3517.01’s requirements for becoming a “Political Party”, and Ohio Rev. Code Section

3517.012’s requirements for a new political party to nominate a candidate for the general

election.

B. Ohio’s Ballot Access Law at the Time of the Blackwell Decision.

In order to understand the ballot access laws as they will exist under S.B. 193, it is

important to understand how they differ from those assessed in Libertarian Party of Ohio v.

Blackwell, 462 F.3d 579 (6th Cir. 2006). Ohio law, as it existed in 2006 and as the Court struck

down in Blackwell, provided that a party retained ballot access for two years so long as its

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candidate for either President or Governor received at least 5% of the vote in the most recent

election. If a party lost ballot access because it did not obtain at least 5% of the vote for either

Governor or President, or if a new party sought to come into existence, it had to file with the

Secretary of State a petition to form a new political party. The petition had to contain the

signatures of at least 1% of the total number of voters who cast ballots in the last Presidential or

Gubernatorial election. The party needed to file that petition with the Secretary of State no later

than 120 days before the State’s primary election. In Presidential elections, the State holds the

primary election on the first Tuesday after the first Monday in March. In Gubernatorial election

years, the State holds the primary election on the first Tuesday after the first Monday in May.

That meant that a political party seeking ballot access had to file its petitions in either early

December of the year preceding the election (for Presidential election years) or early February of

the election year (for Gubernatorial election years).

The Libertarian Party of Ohio (LPO) timely submitted a sufficient number of signatures

to appear on Ohio’s 2004 election ballot. LPO, however, used an improper and outdated form

for those petitions, and the Secretary accordingly rejected the petitions. LPO filed suit claiming

that the combination of Ohio’s 1% signature requirement with its early filing deadline in

December of the year before the election violated the Party’s First and Fourteenth Amendment

rights. The Sixth Circuit in Blackwell agreed with the LPO and issued an opinion striking down

Ohio’s ballot-access laws for Presidential election years.

C. Ballot Access Uncertainty Post-Blackwell.

After Blackwell, Ohio did not have a ballot-access law for minor and new parties. To

remedy this, then-Secretary of State Brunner issued a Directive for the 2008 general election.

She administratively reduced the number of signatures needed for a new-party candidate to

qualify for the State’s ballot from 1% to 0.5%. She also moved up the nominating-petition filing

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date from 120 days before the primary election to just 100 days before the election. The LPO,

and other parties, again filed suit claiming that, among other things, the Secretary of State did not

have the authority to administratively set requirements for ballot access. This Court agreed and

ordered ballot access for the LPO and the Green Party for the 2008 election. Because the State

did not have another ballot access mechanism, and none of the parties granted ballot access by

her Directive reached the 5% threshold to retain it, the Secretary issued Directives giving these

parties continued ballot access for the 2010 and 2011 election cycles (Directives 2009-21, 2011-

01).

D. H.B. 194: Ohio’s First Attempt at Statutory Ballot Access.

In order to provide a statutory mechanism for new political parties to reach the ballot, the

General Assembly passed H.B. 194 in 2011. It sought to fix the problems found by the

Blackwell Court by pushing the minor party nominating petition filing date back from 120 days

before the primary election to 90 days before the primary election. Before the law became

effective, LPO filed suit, claiming that the combination of a 1% signature requirement with a

filing deadline of 90 days before the 2012 March primary violated their First and Fourteenth

Amendment rights. This Court issued a preliminary injunction against the provisions and

ordered ballot access for the LPO candidates for the 2011 and 2012 election cycles.

A referendum was filed against H.B. 194 staying its effective date. Before H.B. 194 was

placed before the voters of Ohio, and before any its provisions became effective, the General

Assembly passed S.B. 295, repealing H.B. 194 in its entirety.

E. S.B. 193 significantly reforms Ohio’s ballot access system.

Senate Bill 193, passed on November 6, 2013, and the law Intervenor-Plaintiffs challenge

here, greatly altered Ohio’s ballot access laws from the system that was struck down in

Blackwell. S.B. 193 first altered the vote threshold a new or minor political party must receive in

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order to retain ballot access.1 Under the terms of S.B. 193, a new political party—that is, a party

that seeks a position on Ohio’s ballot but that has not obtained sufficient votes in the preceding

election to retain ballot access—must submit a petition with the Ohio Secretary of State

containing the signatures of 1% of the total vote for Governor or nominees for Presidential

electors at the most recent election. Ohio Rev. Code 3517.01(A)(1)(b). The new political party

must submit those signatures no later than 126 days before the November general election. Ohio

Rev. Code 3517.01(A)(1)(b)(iii). If any political party obtains at least 3% of the vote for either

President or Governor at the next general election, that party retains ballot access for the next

four year cycle. Ohio Rev. Code 3517.01(A)(1)(a).

To aid new political parties that might seek 2014 ballot access but did not retain it from

the 2012 general election, the General Assembly reduced certain thresholds even further. First,

instead of submitting signatures in an amount equal to 1% of the vote in the last even year

general election, the General Assembly reduced the signature total to 0.5% for the 2014 election

cycle. This means that any party that did not retain automatic ballot access can now obtain it by

filing a petition with the Secretary of State no later than 126 days before the November 4, 2014

general election (July 1, 2014) containing only 28,167 valid signatures. As Plaintiff-Libertarian

Party of Ohio’s own expert testified, this half percent requirement is “in the median of the fifty

states,” and approximately twenty-five states have set higher requirements. Ohio Rev. Code

3517.01(A)(1)(b)(iii); see also (Dep. Tr. Winger, p. 27, lns 9-14).

1 A new political party is a political party that has filed party petitions with the Ohio Secretary of State seeking ballot access. A minor political party is a political party that has obtained more than 2% of the vote for President or Governor in the 2014 general election (this threshold raises to 3% beginning with the 2016 general election) but not more than 20% of the vote. If a party obtains that vote threshold, it will retain ballot access for four years. If a party obtains at least 20% of the vote for either Governor or President, that party is a major political party.

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Further aiding new parties’ transition into the new ballot access statutory scheme, S.B.

193 reduced the 3% vote total needed to retain ballot access for the 2014 election. That is, a

party need only garner 2% of the votes for Governor in the 2014 election to retain access, as

opposed to the 3% that will apply in subsequent elections. When considered in conjunction with

S.B. 193’s increased ballot access retention period to four years, this reduction for 2014 eases a

new party’s ability to retain primary and general election ballot access until 2018.

F. Ohio’s Choice to give general ballot access to a newly-formed political party’s candidate.

In the wake of Blackwell, Ohio had to make a choice regarding how a newly-formed

party would nominate its candidates. The State could: (1) continue to require new political

parties to file their nominating petitions sufficiently early in the election cycle to allow those

petitions to be validated before the State’s primary (but later than 364 days before the general

election, as that was the rule struck down in Blackwell), or (2) have only established political

parties (i.e. parties that obtained ballot access by meeting the vote-total requirements) hold

primaries, while allowing new political parties to determine their nominees through other means.

After Blackwell, it was seemingly impossible for the State to develop a timetable for a new party

to file primary-nominating paperwork that was condensed enough to satisfy the constitutional

concerns that drove the result in Blackwell yet still afforded the Boards of Election and the

Secretary sufficient time to validate the signatures on the paperwork, while preparing to hold a

primary election. Thus, the State made a rational policy choice to no longer require these new

political parties to participate in primary elections, but rather to select their candidates by

nominating petition. See Ohio Rev. Code 3517.012.

To further aid new parties as they seek ballot access, S.B. 193 further reduced the number

of signatures a newly-formed party must submit on a candidate nominating petition. State law

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mandates that in order to participate in a major party primary as a candidate for statewide office,

the candidate must submit a petition containing 1,000 valid signatures. Ohio Rev. Code 3513.05.

Prior to S.B. 193, new and minor party candidates had to submit their candidate petitions with

500 signatures. S.B. 193 significantly reduced that signature threshold for non-major parties. So

long as a new or minor political party has sufficient signatures on its party-formation petition to

qualify for Ohio’s ballot, candidates running for statewide office under such party’s banner need

only to submit 50 signatures. Candidates for any office elected less-than-statewide need only

submit a petition with 5 signatures.

III. LAW AND ARGUMENT

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56. There are no disputed material facts here. Intervenor-Plaintiffs have not shown

they are entitled to judgment as a matter of law. As S.B. 193 satisfies the Anderson/Burdick

analysis, Defendants are entitled to judgment as a matter of law on Intervenor-Plaintiffs’ facial

federal constitutional challenge to S.B. 193.

A. The challenged provisions of S.B. 193 are non-discriminatory in their application and are fully constitutional under the Anderson/Burdick framework.

The challenged provisions of S.B. 193 are fully constitutional under the election

regulation analysis set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.

Takushi, 504 U.S. 428 (1992). The Supreme Court has recognized that election regulations “will

invariably impose some burden upon individual voters.” Burdick, 540 U.S. at 433. But

subjecting every such regulation to strict scrutiny is impractical, because doing so “would tie the

hands of States seeking to assure that elections are operated equitably and efficiently.” Id. And

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the fact that a State’s system “’creates barriers…tending to limit the field of candidates from

which voters might choose…does not itself compel close scrutiny.’” Id. (citations omitted).

Instead, a “more flexible standard” applies to state election laws. Id. at 434. This

standard requires that the court “weigh ‘the character and the magnitude of the asserted injury to

the rights protected by the First and the Fourteenth Amendments that the plaintiff seeks to

vindicate’ against ‘the precise interests put forward by the State as justifications for the burden

imposed by its rule,’ taking into consideration ‘the extent to which those interests make it

necessary to burden the plaintiff’s rights.’” Id. quoting Anderson, 460 U.S. at 789.

Applying this “sliding scale” analysis, if a state election law imposes “only ‘reasonable

nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters ‘the

State’s important regulatory interests are generally sufficient to justify’ the restrictions[]” , and it

is constitutional. Id. See e.g., Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 582 (6th

Cir. 2006) (examining State’s ballot access provision under the Anderson/Burdick framework);

Green Party of Arkansas v. Martin, 649 F.3d 675, 685-87 (8th Cir. 2011) (same); Rogers v.

Corbett, 468 F.3d 188, 193 (3rd Cir. 2006) (same).

The challenged provisions at issue in this case are reasonable, nondiscriminatory, and

indeed unremarkable. Any political party that obtains at least 3% (or for 2014 only 2%) of the

vote for the office of either Governor or President will retain automatic ballot access in the State

of Ohio for four years. Any political party that fails to obtain that vote threshold can still obtain

ballot access by submitting petitions with signatures equal to 1% (or for 2014 only 0.5%) of the

electorate who voted in the most recent Presidential or Gubernatorial election.

The First Circuit recently found ballot access restrictions that applied to all political

parties to be nondiscriminatory and therefore constitutional. Barr v. Galvin, 626 F.3d 99, 109

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(1st Cir. 2010). At issue in Barr was a Massachusetts law prohibiting substitution of a

Presidential and Vice Presidential candidate of a political party that the State did not recognize

because it did not obtain at least 3% of the vote in a preceding election. Because the law in Barr

applied equally to all political parties, the First Circuit had no issue finding the law to be

nondiscriminatory. The Court stated, “[t]he *** Ballot access provisions at issue here are

nondiscriminatory. They do not specifically differentiate among Democrats, Republicans,

Libertarians, Mugwumps, or candidates affiliated with any other political organization. In other

words, all political organizations are subject to the same criteria for determining whether they

qualify for recognition as political parties and, thus, for the array of rights indigenous to

recognized political parties under Massachusetts law.” Importantly, the Barr Court recognized

that, “equality of opportunity—not equality of outcomes—is the linchpin of what the

Constitution requires in this type of situation.” Id. at 112.

Just as the law in Barr was nondiscriminatory, so too is S.B. 193. Any political party that

obtains the requisite number of votes for President or Governor will retain ballot access. Any

political party that fails to obtain the requisite number of votes for President or Governor will

lose its ballot access and will be able to petition for ballot access by submitting petitions to the

Secretary of State at least 126 days before an even-year General Election. This evenhandedness

fully satisfies the Anderson and Burdick framework. And preventing ballot overcrowding and

ensuring a modicum of support before allowing a party’s candidate to appear on the ballot are

more than sufficient interests supporting S.B. 193. See Monro v. Socialist Workers Party, 479

U.S. 189 193-95 (1986). As long as the State has “a rational basis undergirding the regulation [it

passes] constitutional muster.” Barr, 626 F.3d at 112.

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The State’s important interest in regulating elections via such nondiscriminatory

provisions is well-settled, and indeed conceded by the Intervenor-Plaintiffs. (See Doc. 30,

Intervenor-Plaintiffs’ Motion for Preliminary Injunction, PageID # 281; Doc. 165-1, Intervenor

Plaintiffs’ Memorandum in Support of their Motion for Summary Judgment, PageID # 3288).

As the U.S. Supreme Court emphasized “States may, and inevitably must, enact reasonable

regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.”

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). In fact, “there must be a

substantial regulation of elections if they are to be fair and honest and if some sort of order,

rather than chaos, is to accompany the democratic process.” Id. at 358 (internal citations

omitted). S.B. 193 is Ohio’s effort to preserve the integrity of its elections. It applies equally to

all political parties and easily passes constitutional muster under the Anderson/Burdick

framework.

1. S.B. 193 does not severely burden Intervenor-Plaintiffs’ rights.

The aspects of S.B. 193 that Intervenor-Plaintiffs claim severely burden their rights (its

party qualification requirements, its requirement that minor parties run a candidate for Governor

or President in order to retain four year access, and its lack of a primary election for newly-

qualified parties) are reasonable, non-discriminatory restrictions under the rule of reason and all

prevailing case law. They are justified by the State’s well-recognized interest in regulating

elections and in providing voters a comprehensible ballot of candidates and parties with a

significant modicum of support and consistent with regulations in other states that have

withstood federal review. See Jeneness v. Fortson, 403 U.S. 431, 432 (1971) (finding an

important state interest exists “in requiring some preliminary showing of a significant modicum

of support before printing the name of a political organization's candidate on the ballot—the

interest, if no other, in avoiding confusion, deception, and even frustration of the democratic

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process at the general election.”). They are precisely the type of ballot-access regulations that

courts have routinely deemed constitutional.

a. S.B. 193 imposes “low and late” signature and petition requirements that are constitutional.

Ballot access laws such as those in S.B. 193 requiring a new party to submit signatures in

numbers equaling a low percentage of votes cast and allowing the submission to occur

reasonably late in the election cycle are routinely found not to impose a severe burden. Indeed,

federal courts have denied motions for preliminary injunctions against, or have not found

unconstitutional, significantly more-severe ballot access regulations, upholding:

 Arkansas regulation defined “political party” as a group with at least 3% of vote

for gubernatorial candidate in the last gubernatorial election, or allowed a

candidate to gain access through a new political party which must file a petition of

10,000 signatures with the SOS collected over a 90 day period of time (Green

Party of Arkansas v. Martin, 649 F.3d 675, 677-78 (8th Cir. 2011));

 Alabama regulation requiring a minor party candidate to file a petition signed by

3% of the qualified electors who voted for Governor in the last general election

for the state, county, city, district, or other subdivision in which he or she wished

to run and requiring the petition to be filed on the date of the primary election

held on the first Tuesday in June (Swanson v. Worley, 490 F.3d 894, 896, 910

(11th Cir. 2007));

 Pennsylvania statute requiring a candidate of a minor party to gather signatures of

at least 2% of the vote total of the candidate who obtained highest number of

votes for statewide office (meaning 2000 signatures for Governor, but 67,070 for

State Treasurer because large margin of win) over a five month period of time

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(March 8, 2006-Aug 1, 2006 for general election), even when paired with state

law imposing condition that one of minor party’s candidates must have polled 2%

of vote total of highest-polling candidate in previous election and where signatory

(Rogers v. Corbett, 468 F.3d 188, 190-191 (3rd Cir. 2006));

 Oklahoma law requiring a new political party to submit a petition containing the

signatures of at least 5% of the total votes cast in the last general election for

either Governor or President and requiring that the petitions be filed no later than

May 31 of an even numbered year (Rainbow Coalition of Oklahoma v. Oklahoma

State Election Board, 844 F.2d 740, 742, 747 (10th Cir. 1988)).

Simply put, while “high percentage” and “lower but early” statutes may be

unconstitutional (especially in combination), “low and late” statutes are constitutional. The

provisions challenged here have significantly changed the statutes at issue in Blackwell, where

petitions were due 120 days before the March primary- almost a year before the general election.

Like the statutes upheld in Swanson and Rainbow Coalition (and unlike the statute struck down

in Blackwell), S.B. 193 is a “low and late” statute. To qualify for the 2014 ballot, for example, it

requires minor parties to submit petitions signed by registered Ohio voters in an amount equal to

0.5% of the vote in the most recent election for President, and to submit them 126 days before

the November general election, i.e., in early July. The statutes upheld in Swanson and Rainbow

Coalition required 600% and 1000%, respectively, more signatures than S.B. 193 and required

parties to submit them earlier in the election cycle. Therefore, as in those cases, S.B. 193 does

not impose a severe burden on Plaintiff’s First and Fourteenth Amendment rights.

Rather, S.B. 193 constitutionally advances the State’s interests in “preserving the

integrity of the electoral process and in regulating the number of candidates on the ballot,” in

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“requir[ing] a preliminary showing of significant support before placing a candidate on the

general election ballot,” and in reducing “voter confusion, ballot overcrowding, [and] the

presence of frivolous candidacies” on the ballot. Monro v. Socialist Workers Party, 479 U.S.

189 193-95 (1986). Intervenor-Plaintiffs attempt to throw a series of road-blocks in the way of

the denial of their motion for summary judgment by claiming that various aspects of S.B. 193

impose severe burdens on minor parties. Closely examined however, each of their arguments

fails legally, factually, or both.

b. Intervenor Plaintiffs are not unconstitutionally burdened by the requirement to field a candidate for Governor or President in order to remain ballot-qualified for four years.

Intervenor-Plaintiffs offer no authority for the proposition that S.B. 193’s requirement

that they field a candidate for President and Governor to remain ballot qualified for a four year

period severely burdens them. To be clear, running a candidate is not a requirement to obtain

ballot access, it is a requirement for retaining it for four years. See Ohio Rev. Code 3517.01.

Thus, even if a minor party fails to retain access, it may still qualify for the general election

ballot in any particular year without running a Presidential or Gubernatorial candidate by

submitting petitions. Ohio Rev. Code 3517.01(A)(1)(b). Courts routinely uphold ballot-access

frameworks with this requirement. See, e.g., Green Party of Arkansas v. Martin, 649 F.3d 675,

677-78 (8th Cir. 2011) (finding constitutional a ballot access law that only afforded minor party

that qualified as a political party one general election as a political party and required that party’s

candidate for Governor or President to win a 3% threshold for that office each general election).2

2 Relatedly, the Green Party is running a gubernatorial candidate, so its claims of unconstitutionality are not ripe. The Green Party may yet meet the vote threshold to remain ballot-qualified for four years.

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c. Intervenor-Plaintiffs do not have a constitutional right to a primary and cannot be severely burdened by the lack of one.

It is well-settled that minor parties3 do not have a constitutional right to reach the general-

election ballot via primary election. American Party of Texas v. White, 415 U.S. 767, 781-82

(1974) (“Appellants’ burden is not satisfied by mere assertions that small parties must proceed

by convention when major parties are permitted to choose their candidates by primary

election.”). In White, the United States Supreme Court rejected a challenge to Texas’s law that

provided primaries for major parties, while requiring minor parties to select candidates via

convention. Id. The Court Stated:

“The fact is that there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. (A State is not) guilty of invidious discrimination in recognizing these differences and providing different routes to the printed ballot. Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike . . . .”

Id. (citations omitted).

Intervenor-Plaintiff Green Party Ohio’s4 argument that Ohioans may only change their

party registrations at partisan primaries does not trump White’s foreclosure of their claim, and it

misconstrues Ohio law. Ohioans may “register” with a party by pulling that party’s ballot at a

primary election or by signing a new-party candidate’s petition. Ohio Revised Code Sections

3513.19 and 3513.20, upon which Plaintiffs rely, do not provide that Ohio voters may change

their political affiliation at a primary election, but rather address only what should be done when

a voter’s right to vote in a particular party’s primary is challenged. They do not regulate party

3 Minor parties that are not “new”—i.e, those who poll more than 2% (in 2014) or 3% (thereafter) and become qualified for four years—may participate in primary elections. Ohio Rev. Code 3513.01(A); Ohio Rev. Code 3517.01(A)(1)(a); Ohio Rev. Code 4(B).

4 Intervenor-Plaintiff Constitution Party’s by-laws provide that the party nominates all candidates via convention, and any claims related to their lack of a primary are clearly inapplicable. See http://www.cpofohio.org/about-bylaws.html (last visited Sept. 8, 2014).

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affiliation in general. Moreover, the Ohio Revised Code expressly states that Section 3513.19

does not apply to new-party voters:

At the first primary election held by a newly formed political party meeting the requirements of sections 3517.011 and 3517.012 of the Revised Code, any qualified elector who desires to vote the new party primary ballot is not subject to section 3513.19 of the Revised Code and shall be allowed to vote the new party primary ballot regardless of prior political party affiliation.

Ohio Rev. Code 3517.016. S.B. 193’s rules regarding minor-party primary participation are

indistinguishable from those upheld in White.

Even if White were not dispositive of this issue, Intervenor-Plaintiffs cannot prove that

they are severely burdened by the lack of a primary. Indeed, the Libertarian Party’s own expert

now has testified in his deposition to this Court that he does not believe that it is good public

policy to require minor parties to participate in one. (Deposition of Richard Winger, taken

December 11, 2013 in Libertarian Party of Ohio, et al. v. Husted, 2:13 CV 00983, hereinafter

“Winger Tr.”, p. 59, lns. 14-18). Richard Winger acknowledges that Ohio’s law is hardly

outside the mainstream. He agrees that it is not unusual for a state to make a policy choice that

newly-qualified political parties do not get to participate in a state-run primary. Id. Further, he

endorses this as a preferable, logical choice:

Q: “In your mind, why would a state make that kind of a policy choice?” A: “Well, I have communicated with Ohio government officials for many years to make them aware that the nation’s leading election administration expert wrote in 1951 – Dr. Joseph P. Harris – and he wrote a model direct primary system for the National Civic League, which back then was called the National Municipal League, and he said states should not provide primaries to small parties. It’s a waste of money. They seldom have primary contests. And that’s one reason. Another reason is it makes it

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very difficult for states to have a reasonable qualifying deadline if it’s going to insist that new parties nominate by primary.” Q: “Any other reasons?” A: “When there is a contested minor party primary, frequently the voters in that primary are not well informed.”

(Winger Tr., 59-60) (emphasis added). Plaintiff-LPO’s expert himself supports Ohio’s policy

choice not to allow newly formed parties to participate in primaries, stating, “[A]s a policy

matter, I favor convention nomination for small parties.” Id. p. 61, lns. 2-4.

Mr. Winger has been consistent in this position—including when testifying on behalf of

the Tennessee Green Party. See Green Party of Tennessee v. Hargett, Case No. 3:110-cv-00692,

2013 WL 3010697 (M.D. Tenn. June 18, 2013). In Hargett, he opined that “[t]the rationale for

requiring major parties to nominate by primary does not apply to minor and newly-

qualifying parties.” Id. at *11-12 (M.D. Tenn. June 18, 2013) (emphasis added). He stated that

“[m]inor parties in the United States almost never have contested primaries, so providing them

with their own is wasteful.” Id. In contrast to major parties, minor parties “generally try to

nominate their most effective spokesperson, but there is no general public expectation that the

typical minor person will be elected in the general election.” Id. Thus, Mr. Winger opined that

“[t]he benefits of government operation of a primary should be restricted to parties which have

cast a minimum vote, say 10% in order to avoid the needless expense of printing separate ballots

for the very small parties in which contests are extremely rare”. Id.

Ohio’s experience with allowing minor parties to participate in primary elections

illustrates Mr. Winger’s testimony. For example, in 2010, Ohio had 8,013,558 registered voters.

Only 1,814,244 of those, or approximately 22%, cast a ballot in the May primary. See

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http://www.sos.state.oh.us/upload/elections/2010/pri/turnout.pdf (last visited September 8,

2014).5 5,476 individuals requested a Libertarian Party primary ballot; 3,074 individuals

requested a Constitution Party primary ballot; 1,315 individuals requested a Green Party primary

ballot; and 790 individuals requested a Socialist Party primary ballot. Id. Such low minor-party

turnout demonstrates that it is unnecessary for such parties to actually participate in the primary.

These numbers are even more telling when examining the low number of minor party

ballot requests in the 2010 primary. In that election, in 8 counties, no one requested a

Constitution Party primary ballot and in 46 counties, no more than 10 individuals requested one.

Id. Similarly, in 23 counties no one requested a Green Party primary ballot, and in 46 counties no

more than 10 individuals requested one. Id. Further, in 4 counties no one requested a

Libertarian Party primary ballot and in 32 counties no more than ten individuals requested one.

Id. Finally, in 39 counties no one requested a Socialist Party primary ballot and in 41 counties

no more than ten individuals requested one. Id.

Turnout for the minor parties in the 2012 election was similar. For the 2012 primary,

Ohio had 7,722,180 individuals who were registered to vote.6 Total turnout for the 2012 primary

election was 1,970,753, or just over 25% of the registered voters. Id. During the 2012 Primary

election, the Libertarian Party had only 337 individuals across the entire state cast a ballot for its

5 Certified copies of the election results cited in this pleading were filed with this Court in conjunction with the State’s opposition to Intervenor-Plaintiffs’ motion for a preliminary injunction. See Doc. Nos. 40, 40-1, 40-2, and 40-3. For the Court’s convenience, these certified copies are also attached to this pleading as Attachment A. 6 See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results/20120306turn out.aspx (last visited Sept. 8, 2014).

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Senatorial candidate.7 The Green Party had 398 individuals cast a ballot in its US Senatorial

race.8 Neither the Constitution Party nor the Socialist Party fielded any statewide candidate in a

primary in 2012.

At a primary election, every precinct has to have a primary ballot prepared for every

party running a candidate statewide. For a county with electronic voting machines, the machines

have to be programmed for the ballot styles for all of these parties. A county using paper ballots

has to print primary paper ballots for each of these minor political parties for each precinct in the

county. For minor parties in the 2010 primary, some of those ballots (paper or electronic) went

unused in 46 counties. The expenditure of such resources in the face of such low minor-party

turnout substantiates the view of Libertarian Party witness Mr. Winger that it is “wasteful” to

demand minor-party participation in primary elections. (Winger Tr. 59-60)

The small number of minor party candidates that have appeared on the general election

ballot further bears out the S.B. 193 approach. In the 2010 general election the Libertarian Party

only ran Ohio Senate candidates in 3 of Ohio’s 33 districts, and Ohio House candidates in 24 of

Ohio’s 99 districts.9 Also in 2010, the Green Party ran a candidate for Governor, candidates in

three U.S. Congressional districts, and three candidates for the Ohio House.10 The Constitution

Party ran a statewide candidate for Attorney General and U.S. Senator, candidates in five U.S.

7 See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results/20120306liber tarianussenator.aspx (last visited Sept. 8, 2014). 8 See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results/20120306gree nussenator.aspx (last visited Sept. 8, 2014). 9 See http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2010results/20100504OHse nate-L.aspx (last visited Sept. 8, 2014). 10 See http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2010results/20100504USrep -G.aspx (last visited Sept. 8, 2014).

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Congressional districts, and three candidates for the Ohio House.11 Even less, the Socialist Party

ran a candidate for U.S. Senator, but did not run a candidate for any other office.12

In 2012, the Green Party did not field any candidates for either the Ohio House or the

Ohio Senate.13 The Libertarian Party fielded one State Senate candidate14 and only 6 candidates

for the Ohio Statehouse. It is crucial to note that minor parties were granted automatic access to

the 2010 and 2012 general election by then-Secretary Brunner’s Directive. See Directive Nos.

2009-21 and 2011-01. Even with this automatic access, Intervenor-Plaintiffs fielded very few

candidates, if any at all.

Importantly, S.B. 193 does not forever bar Intervenor-Plaintiffs from participating in a

primary. Once a new party successfully petitions for access to Ohio’s ballot, it is allowed to run

candidates in a primary election at the next even-year general election regardless of the vote total

its candidate for President or Governor received the year it successfully petitioned. This is

precisely the type of “nondiscriminatory regulation” that is permissible under the

Anderson/Burdick framework and Ohio Rev. Code 3517.012(E)(2) should be upheld.

d. Intervenor-Plaintiffs are not burdened by having too few voters available to sign their petitions.

Intervenor-Plaintiffs’ argument that they will be burdened by having too small a pool of

voters to sign their party-formation and candidate-nomination petitions is specious. Under S.B. 193,

any registered Ohio voter who requests an “issues-only” primary ballot (i.e., a ballot without

11 See http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2010results/20100504USrep -C.aspx (last visited Sept. 8, 2014). 12 See http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2010results.aspx (last visited Sept. 8, 2014). 13 See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results.aspx (last visited Sept. 8, 2014). 14 See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results/20120306liber tarianohsen.aspx (last visited Sept. 8, 2014).

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Republican or Democratic partisan candidates) or who does not vote in the 2014 primary, is eligible

to sign a minor-party candidate’s nominating petition. Ohio Rev. Code 3517.012(B)(2)(a)-(b). For

the 2012 primary election, Ohio had over 7.7 million registered voters. Of those, only approximately

1.9 million people voted in that primary election.15 Even assuming that every single one of those

individuals cast a partisan primary ballot (as opposed to requesting an issues-only ballot), that would

have left over 5.8 million Ohioans—or approximately 75% of all registered voters—able to sign

petitions for LPO candidates. This is hardly, as Plaintiffs attempt to paint it, a small pool of

“apathetic” Ohioans.

Moreover, considering that minor-party statewide candidates need only 50 signatures and that

district-wide candidates need only 5 signatures to qualify for the ballot as designated minor-party

candidates, it is hard to fathom how the Intervenor Plaintiffs suffer any disadvantage. Ohio Rev.

Code 3517.012(B)(2)(a)-(b). That is especially true considering that major party candidates can get

signatures only from individuals who voted in their party primary (a far smaller pool of voters than

the minor parties may draw from) and that major-party statewide candidates need 1,000 signatures

(far more than the minor parties need). Ohio Rev. Code 3513.05. Intervenor-Plaintiffs both need far

fewer signatures (only 5% of what the major party candidates need) and can get those signatures

from a larger universe of registered voters. Any argument that S.B. 193 politically disadvantages

minor parties simply does not hold water.

e. Intervenor-Plaintiffs misinterpret Ohio law: they are NOT barred from participating in the 2015 (or any other odd-year) election.

Intervenor-Plaintiffs are not barred from participating in the 2015 election, or in any odd-

year election. Their argument is premised on two sections of the Ohio Revised Code. First, they

cite to the section requiring that party-formation petitions “declare[] the petitioners’ intention of

15 http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/HistoricalElectionCompari sons/Voter%20Turnout%20in%20Primary%20Elections%20(even).aspx (last visited Sept. 8, 2014).

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organizing a political party, the name of which shall be stated in the declaration, and of

participating in the succeeding general election, held in even-numbered years, that occurs more

than one hundred twenty-five days after the date of filing.” See Ohio Rev. Code

3517.01(A)(1)(b)(iii). However, this statute does not prohibit a party that forms in an odd-

numbered year from fielding candidates in that year; it merely requires the party to verify its

intent to also field candidates in the next even-year election. And, this only makes sense: there

are generally no state-wide partisan races in odd-numbered years (the only odd-year partisan

races would be local ones), so the even-year elections are the ones the statute is primarily

concerned with. This requirement simply does not speak to the party’s power to field candidates

in odd-year elections at all.

Second, Intervenor-Plaintiffs cite to the code section stating:

When a party formation petition meeting the requirements of section 3517.01 of the Revised Code declaring the intention to organize a political party is filed with the Secretary of State, the new party comes into legal existence on the date of filing and is entitled to nominate candidates to appear on the ballot at the general election held in even-numbered years that occurs more than one hundred twenty- five days after the date of filing.

See Ohio Rev. Code 3517.012(A)(1) (emphasis added). This section defeats Intervenor-

Plaintiffs’ argument. It provides that a minor party comes into existence when its petitions are

submitted (which might occur in an odd-numbered year) AND may nominate candidates in the

next even-year election. The “and” indicates that both things happen: the party exists AND it

may nominate candidates in the next even-year election. A party that exists in an odd-numbered

year may, of course, nominate candidates in that year’s election. See Ohio Rev. Code

3501.01(K) (defining “party candidate” as a candidate of a “political party” who is certified to

appear on a general or special election ballot either by winning a primary or being nominated

under Ohio Rev. Code 3517.012); Ohio Rev. Code 3501.01(F) (defining “political party” as a

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group meeting the requirements of Ohio Rev. Code 3517.01); Ohio Rev. Code 3517.01 (defining

“political party” in relevant part as a group that files the proper petitions and stating that the

party comes into existence when the petitions are filed).

The second half of Ohio Revised Code Section 3517.012(A)(1), stating that the party

may field candidates in the next even-year election, simply confirms that a party coming into

existence in an odd-numbered year carries its party status through to the next even-year general

election (and does not need to re-qualify as party that year, regardless of whether it fields

candidates in the odd-numbered year). The statute is permissive, not restrictive. Certainly, it

does not restrict a new party’s ability to participate in an odd-year election. Intervenor-

Plaintiffs’ claims that S.B. 193 burdens minor-parties’ access to the 2015 election and other odd-

year elections is therefore meritless.

f. Intervenor-Plaintiffs do not challenge Ohio Rev. Code 3517.012’s lowered signature requirements.

Notably, the Intervenor-Plaintiffs are not challenging S.B. 193’s lowered signature

requirements for newly-formed political party nominating petitions. See Ohio Rev. Code

3517.012. They are not asking this Court to overturn them, or to eliminate petitions as a possible

pathway to the general election ballot. Considering the claims that they do make, this means

that they do not want to have to satisfy the requirements to become a “minor political party”, but

still, want to be able to place a candidate on the ballot while enjoying S.B. 193’s lowered

requirements for nominating petition.

But they also want to choose whether to nominate that candidate via petition, convention,

committee, or primary. They essentially don’t want to have to organize and then decide for

themselves how to put a candidate on the ballot. Ohio law does not afford “Major” parties such

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carte blanche when it comes to ballot access. To afford it to Intervenor-Plaintiffs would be to

impose the type of “discriminatory regulation” that the Anderson/Burdick forbids.

2. Even assuming that the burden imposed is “severe”—which it is not— the challenged provisions of S.B. 193 are appropriately tailored to meet a compelling state interest as a matter of law.

Because there is no severe burden, there is no reason for this Court to engage in an equal

protection analysis. Even if it did, S.B. 193 passes constitutional muster. “A State indisputably

has a compelling interest in preserving the integrity of its election process.” Eu v. San Francisco

County Democratic Central Committee, 109 S.Ct. 1013, 1024 (1989), citing, Rosario v.

Rockefeller, 93 S. Ct. 1245, 1251-1252 (1973). To that end, a State may impose restrictions that

promote the integrity of primary elections, id., citing White, 94 S.Ct. at 1305-1306, and such

have been deemed constitutional (prohibition against minor party primary election participation

held constitutional). See also Rosario, 93 S.Ct. 1245 (waiting periods before voters may change

party registration and participate in another party’s primary held constitutional).

S.B. 193 constitutionally advances the State’s compelling interest in preserving the

integrity of the election process. It “preserv[es] the integrity of the electoral process and in

regulating the number of candidates on the ballot,” in “requir[ing] a preliminary showing of

significant support before placing a candidate on the general election ballot,” and in reducing

“voter confusion, ballot overcrowding, [and] the presence of frivolous candidacies” on the ballot.

Monro v. Socialist Workers Party, 479 U.S. 189, 193-95 (1986). The State is permitted to

accomplish this with the reasonable restrictions imposed by S.B. 193. See Burdick, 112 S.Ct. at

2064, citing Anderson, 460 U.S. at 788.

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IV. CONCLUSION

For the foregoing reasons, the State of Ohio respectfully requests that this Court deny

Intervenor-Plaintiffs’ Motion for Summary Judgment and that the Court grant summary

judgment in Defendants’ favor on Intervenor-Plaintiffs’ federal constitutional challenge to S.B.

193.

Respectfully submitted,

MICHAEL DEWINE Ohio Attorney General

Counsel for Intervenor-Defendant State of Ohio

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CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of September, 2014, the foregoing was filed

electronically. Notice of this filing will be sent to all parties for whom counsel has entered an

appearance by operation of the Court’s electronic filing system. Parties may access this filing

through the Court’s system. I further certify that a copy of the foregoing has been served by e-

mail or facsimile upon all parties for whom counsel has not yet entered an appearance and upon

all counsel who have not entered their appearance via the electronic system.

/s/ Kristopher J. Armstrong KRISTOPHER J. ARMSTRONG (0077799) Assistant Attorney General

25 Exh. 9, p | 31 Exhibit 10

Exhibit 11