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 1
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
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 1
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 1 Exh. 1, p | 1 Exh. 1, p | 2 Exh. 1, p | 3 Exh. 1, p | 4
Directive 2013-02 Continued Ballot Access for Minor Political Parties in Ohio in 2013 Page 2 of 3
3. Any candidate seeking political party nomination at a primary election must declare under penalty of election falsification that the candidate is a member of the political party whose nomination the candidate is seeking. This declaration is made in the declaration of candidacy.
4. Any elector may seek political party nomination as a candidate of a minor political party in 2013, regardless of the elector’s prior political affiliation. R.C. 3517.013.
B. Signature Number and Signers of Candidate Petitions for Minor Political Party Candidates
1. The minimum number of signatures for candidates of minor political parties seeking nomination at the primary election is one-half the minimum number of signatures required for candidates of major political parties. R.C. 3513.05.
2. When the candidacy is for election as a member of the state central committee or the county central committee of a minor political party, the minimum number of signatures is the same as it is for major parties. R.C. 3513.05.
3. Only electors who did not vote in a different political party’s primary election in the preceding two calendar years may sign a declaration of candidacy and petition for nomination or election of the Constitution Party, Green Party, Libertarian Party, or Socialist Party USA. R.C. 3513.05, R.C. 3517.015.
4. Signers of a declaration of candidacy and petition of a candidate seeking nomination or election at a primary election must declare that he or she is a member of the political party of the candidate. R.C. 3513.07. Signers of such declaration of candidacy and petitions must make their declaration of party membership in good faith and may not sign declaration of candidacy and petitions of candidates of different political parties for the same primary election.
C. Circulators of Minor Political Party Candidate Petitions
1. The circulator of a candidate’s petition does not have to be an Ohio resident or Ohio elector under the ruling of the U.S. Court of Appeals for the Sixth Circuit in Nader v. Blackwell, 545 F.3d 459 (2008).
2. Each circulator of a declaration of candidacy and petition must, however, be a member of the political party named in the declaration of candidacy. A board of elections determines a circulator’s political party affiliation as follows:
a. Non-elector of Ohio: If the circulator is not an Ohio elector, the board of elections should accept as true the claim of political party membership that is included in the circulator’s statement, unless the Board has knowledge to the contrary.
Walsh Affidavit, Exh. A Directive 2013-02 Continued Ballot Access for Minor Political Parties in Ohio in 2013 Page 3 of 3
b. Ohio elector: An Ohio elector who circulates another person’s declaration of candidacy and petition for the nomination or election of the Constitution Party, Green Party, Libertarian Party, or Socialist USA Party must satisfy the party affiliation standard set forth in seventh paragraph of R.C. 3513.05. The circulator must have either voted in only that party’s primary in the prior two calendar years, or did not vote in any other party’s primary election in the preceding two calendar years. As with all candidate petitions for partisan office, the board of elections should examine the circulator’s Ohio voting history. If the Board determines that the circulator voted in another political party’s primary election during the prior two calendar years, the Board must invalidate all part-petitions circulated by the circulator for the candidate named in the petition.
3. Candidates may circulate their own declarations of candidacy without regard to how they may have voted in the prior two calendar years. R.C. 3513.05 (tenth paragraph), R.C. 3513.191(C)(4), and R.C. 3517.013.
D. Protests
A protest may be filed against a candidate for political party nomination or election at a primary election on or before the 74th day before the primary election by only (1) an elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election for the candidate; or (2) the controlling committee of the political party named in the candidate’s declaration of candidacy. R.C. 3513.05.
E. Holding of a Primary Election for One or More Minor Political Parties
Separate primary election ballots shall be provided by the board of elector for each political party having candidates for nomination or election in a primary election. R.C. 3513.13.
If you have any questions regarding this Directive or its implementation, please contact the Secretary of State’s elections counsel assigned to your county at (614) 466-2585.
Sincerely,
Jon Husted
Walsh Affidavit, Exh. A Walsh Affidavit, Exh. B Walsh Affidavit, Exh. B Walsh Affidavit, Exh. C Walsh Affidavit, Exh. C Walsh Affidavit, Exh. C Walsh Affidavit, Exh. C Walsh Affidavit, Exh. C Walsh Affidavit, Exh. C
INDEPENDENTS – EARL/JOHNSON “PLACEHOLDER” SWAP
CONTENTS: Page 1 How is Ohio law unclear on the ability to replace one independent presidential candidate with another?
Page 2 TIMELINE: Past Opportunities for forming a Minor Political Party in Ohio
Page 4 Why does Secretary Husted have the authority to allow Charlie Earl and Gary Johnson to switch places on the ballot, given the lack of clarity in Ohio law?
Walsh Affidavit, Exh. D
How is Ohio law unclear on the ability to replace one independent presidential candidate with another?
Section 3513.31 (F) of the Ohio Revised Code contemplates the “committee of five” designated to represent a person nominated by petition as an independent candidate to fill a “vacancy in the nomination in the event of a timely withdrawal” (by the 86th day before the General Election – August 15th in the case of the 2016 election calendar).
The way the election calendar is structured by the Ohio Revised Code may suggest the statute was not intended for Presidential Candidates.
Filing Deadline 2016 Calendar Date Description Day before the Primary March 14, 2016 Filing deadline for all independent Election candidates for the General Election (R.C. 3513.257) ballot (except Presidential Candidates).
90th day before the August 10, 2016 Filing deadline for all independent General Election Presidential Candidates for the (R.C. 3505.10) General Election.
86th day before the August 15, 2016 Political party or independent General Election candidate nominating committees (R.C. 3513.31) must certify name of person to fill a vacancy on the November 8th General Election Ballot caused by withdrawal or disqualification of candidate by 4:00 p.m.
78th day before the August 22, 2016 Boards of elections must certify the General Election validity and sufficiency of nominating (R.C. 3513.263) petition papers of independent joint candidates for president and vice- president.
70th day before the August 30, 2016 Form of official ballots for November General Election 8th General Election must be certified (R.C. 3513.263) by the Secretary of State to boards of elections.
Since the boards of elections are not legally required to certify the sufficiency of prospective independent presidential candidates until after the deadline to replace withdrawn independent candidates on the ballot, the question of statutory interpretation is: Can someone withdraw as a candidate before their candidacy has even been validated?
Furthermore, it is not clear whether R.C. 3505.10 (B)(3) – the statutory provision that outlines how presidential candidates are placed on the ballot – permits the Secretary of State to place on the ballot a presidential and vice-presidential ticket who are
The Office of the Ohio Secretary of State Page 2 of 6 Walsh Affidavit, Exh. D attempting to qualify for the presidential ballot by substituting for a withdrawn presidential and vice-presidential ticket. That statuts seems to permit only three ways to qualify for the presidential ballot: by nomination at a major party convention, by nomination at a minor party convention and through filing enough valid signatures to qualify as an independent candidate. Unlike other statutes (i.e. R.C. 3505.03), achieving ballot status on the presidential ballot through filling a vacancy is not mentioned.
This is not a question answered by Ohio law.
The Office of the Ohio Secretary of State Page 3 of 6
Walsh Affidavit, Exh. D
TIMELINE: Past Opportunities for forming a Minor Political Party in Ohio
When? Description 2006 – 2014 Ohio does not have a process for establishing Minor Political Parties because a federal court had declared previous statutes unconstitutional. Instead, courts and the Secretary of State had to extend ballot access to entities seeking to become Minor Political Parties.
November 6, 2013 Senate Bill 193 is passed by the General Assembly and signed into law by Governor John Kasich establishing a formal process for entities to become Minor Political Parties.
November 10, 2013 The Libertarian Party of Ohio files suit challenging the constitutionality of Senate Bill 193. The Libertarian Party of Ohio claimed that its ballot access for 2014 was unconstitutionally voided by the legislation.
January 7, 2014 Judge Michael H. Watson of the United States District Court for the Southern District of Ohio rules that the General Assembly-passed law cannot be enforced until after the 2014 Gubernatorial Election on November 4, 2014. This allowed the non-Major Political Parties to submit 500 signatures and gain access to the Gubernatorial ballot in 2014, but left the law in-tact for future elections.
As a result of this ruling, the Green Party of Ohio collected a sufficient number of signatures to qualify for the November 2014 ballot. Their Gubernatorial candidate, Anita Rios, went on to receive over 2 percent of the vote in the 2014 General Election, which was above the threshold needed to automatically renew their minor party status for four years.
The Libertarian Party of Ohio failed to collect a sufficient number of signatures. While the party sued the State of Ohio claiming it did collect a sufficient number of signatures, multiple courts rejected this claim.
Several political entities, including the Libertarian Party of Ohio, have continued their legal challenges to Senate Bill 193 beyond the 2014 election cycle. However, multiple courts have upheld the state’s law (as noted below)
November 4, 2016 In the 2014 Gubernatorial Election, 3,149,876 ballots were cast out of 7,748,201 registered voters.
The Green Party Candidate Anita Rios received 3.33 percent of the total vote cast in the Gubernatorial Election, thus renewing the Green Party’s status as a Minor Political Party for 4 years.
Senate Bill 193, which went into effect after this election, sets the signature threshold for new prospective minor political parties at 1 percent of the total vote cast in the most recent Gubernatorial or Presidential Election, just 30,559 signatures.
The Office of the Ohio Secretary of State Page 4 of 6 Walsh Affidavit, Exh. D
March 16, 2015 The United States Court, Southern District of Ohio, Eastern Division denies a challenge to Senate Bill 193 brought by the Green Party of Ohio and the Constitution Party of Ohio.
October 14, 2015 The United States District Court, Southern District of Ohio, Eastern Division denies a challenge against Senate Bill 193 by the Libertarian Party of Ohio. In its decision, the court states that this case is no different from the challenge to Senate Bill 193 the court denied on March 16, 2016.*
“Plaintiffs fail to cogently explain how their as-applied challenge to Senate Bill 193 differs from intervening plaintiffs’ facial challenge…”
July 5, 2016 Pursuant to Ohio Revised Code 3517.012, this is the final day to form a 126 days before the Minor Political Party in time for the 2016 Presidential General Election General Election scheduled for November 8, 2016.
Due to low voter turnout in the 2014 Gubernatorial General Election, the signature threshold was just 30,559.
No Minor Political Party files formation petitions with election officials.
June 7, 2016 Franklin County Court of Common Pleas Judge David C. Young holds that Senate Bill 193 does not violate the Ohio Constitution as alleged by the Libertarian Party of Ohio.
July 29, 2016 The Sixth Circuit Court of Appeals unanimously rejects the Libertarian Party of Ohio’s appeal of lower court findings in the case.
*Two courts had ruled against challenges to Senate Bill 193 by October 14, 2015, putting all prospective minor parties on notice that the law was constitutional and would remain in effect. Still, no prospective Minor Political Parties attempted to form ahead of the July 5 2016 deadline.
The Office of the Ohio Secretary of State Page 5 of 6
Walsh Affidavit, Exh. D
How does Secretary Husted have the authority to allow Charlie Earl and Gary Johnson to switch places on the ballot, given the lack of clarity in Ohio law?
The Ohio Revised Code does not explicitly say that 3513.31-(F) does or does not apply to independent candidates for President and Vice-President.
Furthermore, the Ohio Revised Code does not explicitly say whether or not an individual may withdraw from the ballot and be replaced by another prior to having their own candidacy validated.
Therefore, Ohio law neither openly permits nor prohibits Mr. Earl from withdrawing his independent candidacy and being replaced by Governor Johnson prior to Mr. Earl’s candidacy being validated.
The law being unclear, Secretary Husted believes the spirit of ballot access should prevail.
Pending that boards of elections are able to validate at least 5,000 signatures on the Earl/Moellman petitions, Secretary Husted intends to permit their candidacy be withdrawn and for the nominating committee’s chosen pair to replace them as independent candidates on the Ohio ballot.
NOTE: Under Ohio law, independent candidates may choose to have the designation “Nonparty Candidate” or “Other Party Candidate” printed under their name on the General Election ballot. The designation “Indpendent Candidate” cannot be printed on the ballot (R.C. 3505.03, 3513.257). When their petitions were filed, Earl/Moellman requested to have no designation printed under their names on the ballot.
Additional NOTE: The presence of independent joint-candidates for president and vice-president, even when endorsed by, or affiliated with, a national political party or that of another state, is not sufficient under Senate Bill 193 to create a minor political party for future election cycles.
The Office of the Ohio Secretary of State Page 6 of 6 Walsh Affidavit, Exh. D
Directive 2016-31 Ballots and Candidates for the November 8, 2016 Presidential General Election Page 2 of 7
relationships in the central tabulating system against the county’s voter registration system. This is to ensure that each voter receives the correct ballot style (i.e., the correct combination of candidate offices and issues) based upon that voter’s residential address.
As a part of the review for accuracy of district relationships between the county’s voter registration system and its tabulating system, but no later than September 16, 2016, the board also must ensure that 1) the Secretary of State’s precinct codes (three alphabet letters) are accurate in the tabulating system and, if appropriate, the county’s voter registration system; and 2) the precinct names correspond between the two systems.
Note: It also is imperative that a board of elections upload to the statewide voter registration database (SWVRD) any changes to district relationships (including wards and precincts) that have been made locally in the county’s voter registration system (VRS).
After the board has completed all changes in the county VRS, but no later than September 16, 2016, the board must send a complete list of the district(s) that had changes to Robin Fields at [email protected]. Be sure to include the name and the state code associated with each district so the names can be corrected in the SWVRD.
The board must spot-check at least one voter record for each precinct in the SWVRD against the county’s VRS.
B. Official Ballot Forms2
The certified ballot forms accompanying this Directive are for offices to be elected at the November 8, 2016 Presidential General Election. The ballot forms contain the correct title for each office as that title should appear on your county’s ballot and the order in which offices must appear on the ballot for all voting systems.
The names of all candidates, who have not withdrawn pursuant to R.C. 3513.30, must be arranged, rotated, and printed upon the ballot in accordance with the provisions of Ohio Revised Code Chapters 3505, 3506, and 3513 and Chapter 4 of the EOM (Directive 2016- 22).
C. Order of Offices3
The order of offices shall be as follows:
President and Vice President U. S. Senator Representative to Congress
2 R.C. 3505.03, .04, .05, .10. 3 R.C. 3505.03, .10.
Walsh Affidavit, Exh. E Directive 2016-31 Ballots and Candidates for the November 8, 2016 Presidential General Election Page 3 of 7
State Senator State Representative County Commissioner (Full term commencing 1-2-2017)4 County Commissioner (Full term commencing 1-3-2017) Prosecuting Attorney Clerk of the Court of Common Pleas Sheriff County Recorder County Treasurer County Engineer Coroner Member of the State Board of Education Chief Justice of the Supreme Court (Full term commencing 1-1-2017) Justice of the Supreme Court (Full term commencing 1-1-2017) Justice of the Supreme Court (Full term commencing 1-2-2017) Judge of the Court of Appeals (full terms in order of date commencing) Judge of the Court of Common Pleas (full terms in order of date commencing) Judge of the County Court (full terms in order of date commencing)
If there is both a full and an unexpired term for the same office, place the full term first followed by the unexpired term.
D. Write-In Vote Blank Spaces5
A write-in space must be provided on the ballot for every office for which the board of elections or the Secretary of State has received a valid declaration of intent to be a write-in candidate.
The Secretary of State will certify the names of valid write-in candidates who filed with the Secretary of State’s Office after the August 29, 2016 deadline.
E. Questions and Issues6
Offices for which candidates may be elected are presented on the ballot first, followed by the questions and issues. The ballot form contains examples of some of the local questions and issues that may appear on the ballot in your county. Not every category or type of question/issue will appear on every ballot in every county, so please apply as much of the form as is appropriate to the ballots in your county.
4 If an unexpired term election is held for the office of County Commissioner (Unexpired term ending 12-31-2018) or County Auditor (Unexpired term ending 3-10-2019), the offices should appear after the offices for full term with the office of County Commissioner first followed by County Auditor. 5 R.C. 3513.041. 6 R.C. 3505.06.
Walsh Affidavit, Exh. E Directive 2016-31 Ballots and Candidates for the November 8, 2016 Presidential General Election Page 4 of 7
Additional instructions on headings, ballot language, and percentage of votes can be found in Chapter 4 of the EOM (Directive 2016-22).
Questions and issues must be grouped together in the following political subdivision order for elections held in 2016:
Municipal Township School and other Districts County
Each board of elections may determine the specific order in which the questions/issues within each group are placed on the ballot in that county, however, a board should adopt a method for doing so (i.e., ordered alphabetically or by date filed, etc.). Absentee ballots must contain identical ordering of issues within groups to regular ballots.
Please review the appropriate sections of the Ohio Revised Code, local charter (if applicable), and the Questions and Issues Handbook for ballot language and formats that are not on the attached ballot forms.
F. Absentee Ballots7
Each board of elections must have absentee ballots printed and ready for use 45 days before the general election (September 24, 2016) for Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) voters.
A copy of each absentee ballot (candidates and questions and issues) must be sent to the Secretary of State’s office at least 46 days before the election (September 23, 2016). Please send to Serena Henderson via email at [email protected].
7 R.C. 3509.01; R.C. 3511.04.
Walsh Affidavit, Exh. E Directive 2016-31 Ballots and Candidates for the November 8, 2016 Presidential General Election Page 5 of 7
G. Candidates Certified by the Secretary of State8
The following candidates have been certified to the November 8, 2016 General Election ballot:
For President and Vice President
For President Hillary Clinton For Vice President Tim Kaine Democratic
For President Richard Duncan For Vice President Ricky Johnson Nonparty candidates
For President Gary Johnson For Vice President William Weld
For President Jill Stein For Vice President Ajamu Baraka Green
For President Donald J. Trump For Vice President Michael R. Pence Republican
8 The filing deadline for a write-in candidate is August 29, 2016. Accordingly, the Secretary of State’s Office will certify the names of any valid write-in candidates who filed with the Secretary of State’s Office after the filing deadline.
Walsh Affidavit, Exh. E Directive 2016-31 Ballots and Candidates for the November 8, 2016 Presidential General Election Page 6 of 7
For U.S. Senator
Tom Connors Nonparty candidate
Joseph R. DeMare Green
Rob Portman Republican
Scott Rupert Nonparty candidate
Ted Strickland Democratic
For Chief Justice of the Supreme Court (Full term commencing 1/1/2017)
Maureen O’Connor
For Justice of the Supreme Court (Full term commencing 1/1/2017)
Pat Fischer John P. O’Donnell
For Justice of the Supreme Court (Full term commencing 1/2/2017)
Pat DeWine Cynthia Rice
H. Candidates of Other District Offices (e.g., Representative to Congress, State Senate, State Representative, Member of the State Board of Education and Judge of the Court of Appeals)
Candidates for other district offices must be certified to the appropriate board(s) of elections by the most-populous county board of elections of the district. If you are a less- populous county of a district and have not received a list of candidates from the most- populous county, you must contact the most-populous county before programming your ballots.
Walsh Affidavit, Exh. E Directive 2016-31 Ballots and Candidates for the November 8, 2016 Presidential General Election Page 7 of 7
If you have any questions regarding this Directive or Chapter 4 of the EOM (Directive 2016-22), please contact the Secretary of State’s elections attorney assigned to your county.
Sincerely,
Jon Husted
Walsh Affidavit, Exh. E
Walsh Affidavit, Exh. F Walsh Affidavit, Exh. F Walsh Affidavit, Exh. G Walsh Affidavit, Exh. G
EXHIBIT 2 (130th General Assembly) (Amended Substitute Senate Bill Number 193)
AN ACT
To amend sections 3501.01, 3501.07, 3505.03, 3505.08, 3505.10, 3506.11, 3513.01, 3513.04, 3513.05, 3513.31, 3513.311, 3513.312, 3517.01, 3517.012, 3517.02, 3517.03, 4503.03, and 5747.29 and to repeal section 3517.015 of the Revised Code to eliminate intermediate political parties and to revise the processes for determining political party status and for establishing new political parties.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 3501.01, 3501.07, 3505.03, 3505.08, 3505.10, 3506.11, 3513.01, 3513.04, 3513.05, 3513.31, 3513.311, 3513.312, 3517.01, 3517.012, 3517.02, 3517.03, 4503.03, and 5747.29 of the Revised Code be amended to read as follows: Sec. 3501.01. As used in the sections of the Revised Code relating to elections and political communications: (A) "General election" means the election held on the first Tuesday after the first Monday in each November. (B) "Regular municipal election" means the election held on the first Tuesday after the first Monday in November in each odd-numbered year. (C) "Regular state election" means the election held on the first Tuesday after the first Monday in November in each even-numbered year. (D) "Special election" means any election other than those elections defined in other divisions of this section. A special election may be held only on the first Tuesday after the first Monday in February, May, August, or November, or on the day authorized by a particular municipal or county charter for the holding of a primary election, except that in any year in which a presidential primary election is held, no special election shall be held in February or May, except as authorized by a municipal or county charter, but may be held on the first Tuesday after the first Monday in March. (E)(1) "Primary" or "primary election" means an election held for the
Exh. 2, p | 1 Am. Sub. S. B. No. 193 130th G.A. 2 purpose of nominating persons as candidates of political parties for election to offices, and for the purpose of electing persons as members of the controlling committees of political parties and as delegates and alternates to the conventions of political parties. Primary elections shall be held on the first Tuesday after the first Monday in May of each year except in years in which a presidential primary election is held. (2) "Presidential primary election" means a primary election as defined by division (E)(1) of this section at which an election is held for the purpose of choosing delegates and alternates to the national conventions of the major political parties pursuant to section 3513.12 of the Revised Code. Unless otherwise specified, presidential primary elections are included in references to primary elections. In years in which a presidential primary election is held, all primary elections shall be held on the first Tuesday after the first Monday in March except as otherwise authorized by a municipal or county charter. (F) "Political party" means any group of voters meeting the requirements set forth in section 3517.01 of the Revised Code for the formation and existence of a political party. (1) "Major political party" means any political party organized under the laws of this state whose candidate for governor or nominees for presidential electors received no not less than twenty per cent of the total vote cast for such office at the most recent regular state election. (2) "Intermediate political party" means any political party organized under the laws of this state whose candidate for governor or nominees for presidential electors received less than twenty per cent but not less than ten per cent of the total vote cast for such office at the most recent regular state election. (3) "Minor political party" means any political party organized under the laws of this state whose that meets either of the following requirements: (a) Except as otherwise provided in this division, the political party's candidate for governor or nominees for presidential electors received less than ten twenty per cent but not less than five three per cent of the total vote cast for such office at the most recent regular state election or which. A political party that meets the requirements of this division remains a political party for a period of four years after meeting those requirements. (b) The political party has filed with the secretary of state, subsequent to any election in which it received less than five per cent of such vote its failure to meet the requirements of division (F)(2)(a) of this section, a petition signed by qualified electors equal in number to at least one per cent of the total vote cast for such office in the last preceding regular state
Exh. 2, p | 2 Am. Sub. S. B. No. 193 130th G.A. 3 election, except that a that meets the requirements of section 3517.01 of the Revised Code. A newly formed political party shall be known as a minor political party until the time of the first election for governor or president which occurs not less than twelve months subsequent to the formation of such party, after which election the status of such party shall be determined by the vote for the office of governor or president. (G) "Dominant party in a precinct" or "dominant political party in a precinct" means that political party whose candidate for election to the office of governor at the most recent regular state election at which a governor was elected received more votes than any other person received for election to that office in such precinct at such election. (H) "Candidate" means any qualified person certified in accordance with the provisions of the Revised Code for placement on the official ballot of a primary, general, or special election to be held in this state, or any qualified person who claims to be a write-in candidate, or who knowingly assents to being represented as a write-in candidate by another at either a primary, general, or special election to be held in this state. (I) "Independent candidate" means any candidate who claims not to be affiliated with a political party, and whose name has been certified on the office-type ballot at a general or special election through the filing of a statement of candidacy and nominating petition, as prescribed in section 3513.257 of the Revised Code. (J) "Nonpartisan candidate" means any candidate whose name is required, pursuant to section 3505.04 of the Revised Code, to be listed on the nonpartisan ballot, including all candidates for judicial office, for member of any board of education, for municipal or township offices in which primary elections are not held for nominating candidates by political parties, and for offices of municipal corporations having charters that provide for separate ballots for elections for these offices. (K) "Party candidate" means any candidate who claims to be a member of a political party, whose name and who has been certified to appear on the office-type ballot at a general or special election through the filing of a declaration of candidacy and petition of candidate, and who as the nominee of a political party because the candidate has won the primary election of the candidate's party for the public office the candidate seeks, has been nominated under section 3517.012, or is selected by party committee in accordance with section 3513.31 of the Revised Code. (L) "Officer of a political party" includes, but is not limited to, any member, elected or appointed, of a controlling committee, whether
Exh. 2, p | 3 Am. Sub. S. B. No. 193 130th G.A. 4 representing the territory of the state, a district therein, a county, township, a city, a ward, a precinct, or other territory, of a major, intermediate, or minor political party. (M) "Question or issue" means any question or issue certified in accordance with the Revised Code for placement on an official ballot at a general or special election to be held in this state. (N) "Elector" or "qualified elector" means a person having the qualifications provided by law to be entitled to vote. (O) "Voter" means an elector who votes at an election. (P) "Voting residence" means that place of residence of an elector which shall determine the precinct in which the elector may vote. (Q) "Precinct" means a district within a county established by the board of elections of such county within which all qualified electors having a voting residence therein may vote at the same polling place. (R) "Polling place" means that place provided for each precinct at which the electors having a voting residence in such precinct may vote. (S) "Board" or "board of elections" means the board of elections appointed in a county pursuant to section 3501.06 of the Revised Code. (T) "Political subdivision" means a county, township, city, village, or school district. (U) "Election officer" or "election official" means any of the following: (1) Secretary of state; (2) Employees of the secretary of state serving the division of elections in the capacity of attorney, administrative officer, administrative assistant, elections administrator, office manager, or clerical supervisor; (3) Director of a board of elections; (4) Deputy director of a board of elections; (5) Member of a board of elections; (6) Employees of a board of elections; (7) Precinct polling place judges; (8) Employees appointed by the boards of elections on a temporary or part-time basis. (V) "Acknowledgment notice" means a notice sent by a board of elections, on a form prescribed by the secretary of state, informing a voter registration applicant or an applicant who wishes to change the applicant's residence or name of the status of the application; the information necessary to complete or update the application, if any; and if the application is complete, the precinct in which the applicant is to vote. (W) "Confirmation notice" means a notice sent by a board of elections, on a form prescribed by the secretary of state, to a registered elector to
Exh. 2, p | 4 Am. Sub. S. B. No. 193 130th G.A. 5 confirm the registered elector's current address. (X) "Designated agency" means an office or agency in the state that provides public assistance or that provides state-funded programs primarily engaged in providing services to persons with disabilities and that is required by the National Voter Registration Act of 1993 to implement a program designed and administered by the secretary of state for registering voters, or any other public or government office or agency that implements a program designed and administered by the secretary of state for registering voters, including the department of job and family services, the program administered under section 3701.132 of the Revised Code by the department of health, the department of mental health and addiction services, the department of developmental disabilities, the opportunities for Ohioans with disabilities agency, and any other agency the secretary of state designates. "Designated agency" does not include public high schools and vocational schools, public libraries, or the office of a county treasurer. (Y) "National Voter Registration Act of 1993" means the "National Voter Registration Act of 1993," 107 Stat. 77, 42 U.S.C.A. 1973gg. (Z) "Voting Rights Act of 1965" means the "Voting Rights Act of 1965," 79 Stat. 437, 42 U.S.C.A. 1973, as amended. (AA) "Photo identification" means a document that meets each of the following requirements: (1) It shows the name of the individual to whom it was issued, which shall conform to the name in the poll list or signature pollbook. (2) It shows the current address of the individual to whom it was issued, which shall conform to the address in the poll list or signature pollbook, except for a driver's license or a state identification card issued under section 4507.50 of the Revised Code, which may show either the current or former address of the individual to whom it was issued, regardless of whether that address conforms to the address in the poll list or signature pollbook. (3) It shows a photograph of the individual to whom it was issued. (4) It includes an expiration date that has not passed. (5) It was issued by the government of the United States or this state. Sec. 3501.07. At a meeting held not more than sixty nor less than fifteen days before the expiration date of the term of office of a member of the board of elections, or within fifteen days after a vacancy occurs in the board, the county executive committee of the major political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector. The secretary of state shall appoint such elector, unless he the secretary of state has reason to believe that the elector would not be a competent member of such board. In such
Exh. 2, p | 5 Am. Sub. S. B. No. 193 130th G.A. 6 cases the secretary of state shall so state in writing to the chairman chairperson of such county executive committee, with the reasons therefor, and such committee may either recommend another elector or may apply for a writ of mandamus to the supreme court to compel the secretary of state to appoint the elector so recommended. In such action the burden of proof to show the qualifications of the person so recommended shall be on the committee making the recommendation. If no such recommendation is made, the secretary of state shall make the appointment. If a vacancy on the board of elections is to be filled by a minor or an intermediate political party, authorized officials of that party may within fifteen days after the vacancy occurs recommend a qualified person to the secretary of state for appointment to such vacancy. Sec. 3505.03. On the office type ballot shall be printed the names of all candidates for election to offices, except judicial offices, who were nominated at the most recent primary election as candidates of a political party or who were nominated in accordance with section 3513.02 of the Revised Code, and the names of all candidates for election to offices who were nominated by nominating petitions, except candidates for judicial offices, for member of the state board of education, for member of a board of education, for municipal offices, and for township offices. The face of the ballot below the stub shall be substantially in the following form: "OFFICIAL OFFICE TYPE BALLOT (A) To vote for a candidate record your vote in the manner provided next to the name of such candidate. (B) If you tear, soil, deface, or erroneously mark this ballot, return it to the precinct election officers or, if you cannot return it, notify the precinct election officers, and obtain another ballot." The order in which the offices shall be listed on the ballot shall be prescribed by, and certified to each board of elections by, the secretary of state; provided that for state, district, and county offices the order from top to bottom shall be as follows: governor and lieutenant governor, attorney general, auditor of state, secretary of state, treasurer of state, United States senator, representative to congress, state senator, state representative, county commissioner, county auditor, prosecuting attorney, clerk of the court of common pleas, sheriff, county recorder, county treasurer, county engineer, and coroner. The offices of governor and lieutenant governor shall be printed on the ballot in a manner that requires a voter to cast one vote jointly for the candidates who have been nominated by the same political party or petition.
Exh. 2, p | 6 Am. Sub. S. B. No. 193 130th G.A. 7 The names of all candidates for an office shall be arranged in a group under the title of that office, and, except for absentee ballots or when the number of candidates for a particular office is the same as the number of candidates to be elected for that office, shall be rotated from one precinct to another. On absentee ballots, the names of all candidates for an office shall be arranged in a group under the title of that office and shall be so alternated that each name shall appear, insofar as may be reasonably possible, substantially an equal number of times at the beginning, at the end, and in each intermediate place, if any, of the group in which such name belongs, unless the number of candidates for a particular office is the same as the number of candidates to be elected for that office. The method of printing the ballots to meet the rotation requirement of this section shall be as follows: the least common multiple of the number of names in each of the several groups of candidates shall be used, and the number of changes made in the printer's forms in printing the ballots shall correspond with that multiple. The board of elections shall number all precincts in regular serial sequence. In the first precinct, the names of the candidates in each group shall be listed in alphabetical order. In each succeeding precinct, the name in each group that is listed first in the preceding precinct shall be listed last, and the name of each candidate shall be moved up one place. In each precinct using paper ballots, the printed ballots shall then be assembled in tablets. Under the name of each candidate nominated at a primary election and each candidate, nominated by petition under section 3517.012 of the Revised Code, or certified by a party committee to fill a vacancy under section 3513.31 of the Revised Code shall be printed, in less prominent type face than that in which the candidate's name is printed, the name of the political party by which the candidate was nominated or certified. Under the name of each candidate appearing on the ballot who filed a nominating petition and requested a ballot designation as a nonparty candidate under section 3513.257 of the Revised Code shall be printed, in less prominent type face than that in which the candidate's name is printed, the designation of "nonparty candidate." Under the name of each candidate appearing on the ballot who filed a nominating petition and requested a ballot designation as an other-party candidate under section 3513.257 of the Revised Code shall be printed, in less prominent type face than that in which the candidate's name is printed, the designation of "other-party candidate." No designation shall appear under the name of a candidate appearing on the ballot who filed a nominating petition and requested that no ballot designation appear under the candidate's name under section 3513.257 of the Revised Code, or who
Exh. 2, p | 7 Am. Sub. S. B. No. 193 130th G.A. 8 filed a nominating petition and failed to request a ballot designation either as a nonparty candidate or as an other-party candidate under that section. Except as provided in this section, no words, designations, or emblems descriptive of a candidate or the candidate's political affiliation, or indicative of the method by which the candidate was nominated or certified, shall be printed under or after a candidate's name that is printed on the ballot. Sec. 3505.08. (A) Ballots shall be provided by the board of elections for all general and special elections. The ballots shall be printed with black ink on No. 2 white book paper fifty pounds in weight per ream assuming such ream to consist of five hundred sheets of such paper twenty-five by thirty-eight inches in size. Each ballot shall have attached at the top two stubs, each of the width of the ballot and not less than one-half inch in length, except that, if the board of elections has an alternate method to account for the ballots that the secretary of state has authorized, each ballot may have only one stub that shall be the width of the ballot and not less than one-half inch in length. In the case of ballots with two stubs, the stubs shall be separated from the ballot and from each other by perforated lines. The top stub shall be known as Stub B and shall have printed on its face "Stub B." The other stub shall be known as Stub A and shall have printed on its face "Stub A." Each stub shall also have printed on its face "Consecutive Number ...... " Each ballot of each kind of ballot provided for use in each precinct shall be numbered consecutively beginning with number 1 by printing such number upon both of the stubs attached to the ballot. On ballots bearing the names of candidates, each candidate's name shall be printed in twelve point boldface upper case type in an enclosed rectangular space, and an enclosed blank rectangular space shall be provided at the left of the candidate's name. The name of the political party of a candidate nominated at a primary election, nominated by petition under section 3517.012 of the Revised Code, or certified by a party committee shall be printed in ten point lightface upper and lower case type and shall be separated by a two point blank space. The name of each candidate shall be indented one space within the enclosed rectangular space, and the name of the political party shall be indented two spaces within the enclosed rectangular space. The title of each office on the ballots shall be printed in twelve point boldface upper and lower case type in a separate enclosed rectangular space. A four point rule shall separate the name of a candidate or a group of candidates for the same office from the title of the office next appearing below on the ballot; a two point rule shall separate the title of the office from the names of candidates; and a one point rule shall separate names of
Exh. 2, p | 8 Am. Sub. S. B. No. 193 130th G.A. 9 candidates. Headings shall be printed in display Roman type. When the names of several candidates are grouped together as candidates for the same office, there shall be printed on the ballots immediately below the title of the office and within the separate rectangular space in which the title is printed "Vote for not more than ...... ," in six point boldface upper and lower case filling the blank space with that number which will indicate the number of persons who may be lawfully elected to the office. Columns on ballots shall be separated from each other by a heavy vertical border or solid line at least one-eighth of an inch wide, and a similar vertical border or line shall enclose the left and right side of ballots. Ballots shall be trimmed along the sides close to such lines. The ballots provided for by this section shall be comprised of four kinds of ballots designated as follows: office type ballot; nonpartisan ballot; questions and issues ballot; and presidential ballot. On the back of each office type ballot shall be printed "Official Office Type Ballot;" on the back of each nonpartisan ballot shall be printed "Official Nonpartisan Ballot;" on the back of each questions and issues ballot shall be printed "Official Questions and Issues Ballot;" and on the back of each presidential ballot shall be printed "Official Presidential Ballot." On the back of every ballot also shall be printed the date of the election at which the ballot is used and the facsimile signatures of the members of the board of the county in which the ballot is used. For the purpose of identifying the kind of ballot, the back of every ballot may be numbered in the order the board shall determine. The numbers shall be printed in not less than thirty-six point type above the words "Official Office Type Ballot," "Official Nonpartisan Ballot," "Official Questions and Issues Ballot," or "Official Presidential Ballot," as the case may be. Ballot boxes bearing corresponding numbers shall be furnished for each precinct in which the above-described numbered ballots are used. On the back of every ballot used, there shall be a solid black line printed opposite the blank rectangular space that is used to mark the choice of the voter. This line shall be printed wide enough so that the mark in the blank rectangular space will not be visible from the back side of the ballot. Sample ballots may be printed by the board of elections for all general elections. The ballots shall be printed on colored paper, and "Sample Ballot" shall be plainly printed in boldface type on the face of each ballot. In counties of less than one hundred thousand population, the board may print not more than five hundred sample ballots; in all other counties, it may print not more than one thousand sample ballots. The sample ballots shall not be distributed by a political party or a candidate, nor shall a political party or
Exh. 2, p | 9 Am. Sub. S. B. No. 193 130th G.A. 10 candidate cause their title or name to be imprinted on sample ballots. (B) Notwithstanding division (A) of this section, in approving the form of an official ballot, the secretary of state may authorize the use of fonts, type face settings, and ballot formats other than those prescribed in that division. Sec. 3505.10. (A) On the presidential ballot below the stubs at the top of the face of the ballot shall be printed "Official Presidential Ballot" centered between the side edges of the ballot. Below "Official Presidential Ballot" shall be printed a heavy line centered between the side edges of the ballot. Below the line shall be printed "Instruction to Voters" centered between the side edges of the ballot, and below those words shall be printed the following instructions: "(1) To vote for the candidates for president and vice-president whose names are printed below, record your vote in the manner provided next to the names of such candidates. That recording of the vote will be counted as a vote for each of the candidates for presidential elector whose names have been certified to the secretary of state and who are members of the same political party as the nominees for president and vice-president. A recording of the vote for independent candidates for president and vice-president shall be counted as a vote for the presidential electors filed by such candidates with the secretary of state. (2) To vote for candidates for president and vice-president in the blank space below, record your vote in the manner provided and write the names of your choice for president and vice-president under the respective headings provided for those offices. Such write-in will be counted as a vote for the candidates' presidential electors whose names have been properly certified to the secretary of state. (3) If you tear, soil, deface, or erroneously mark this ballot, return it to the precinct election officers or, if you cannot return it, notify the precinct election officers, and obtain another ballot." (B) Below those instructions to the voter shall be printed a single vertical column of enclosed rectangular spaces equal in number to the number of presidential candidates plus one additional space for write-in candidates. Each of those rectangular spaces shall be enclosed by a heavy line along each of its four sides, and such spaces shall be separated from each other by one-half inch of open space. In each of those enclosed rectangular spaces, except the space provided for write-in candidates, shall be printed the names of the candidates for president and vice-president certified to the secretary of state or nominated in one of the following manners:
Exh. 2, p | 10 Am. Sub. S. B. No. 193 130th G.A. 11 (1) Nominated by the national convention of a political party to which delegates and alternates were elected in this state at the next preceding primary election. A political party certifying candidates so nominated shall certify the names of those candidates to the secretary of state on or before the ninetieth day before the day of the general election. (2) Nominated by nominating petition in accordance with section 3513.257 of the Revised Code. Such a petition shall be filed on or before the ninetieth day before the day of the general election to provide sufficient time to verify the sufficiency and accuracy of signatures on it. (3) Certified to the secretary of state for placement on the presidential ballot by authorized officials of an intermediate or a minor political party that has held a state or national convention for the purpose of choosing those candidates or that may, without a convention, certify those candidates in accordance with the procedure authorized by its party rules. The officials shall certify the names of those candidates to the secretary of state on or before the ninetieth day before the day of the general election. The certification shall be accompanied by a designation of a sufficient number of presidential electors to satisfy the requirements of law. The names of candidates for electors of president and vice-president shall not be placed on the ballot, but shall be certified to the secretary of state as required by sections 3513.11 and 3513.257 of the Revised Code. A vote for any candidates for president and vice-president shall be a vote for the electors of those candidates whose names have been certified to the secretary of state. (C) The arrangement of the printing in each of the enclosed rectangular spaces shall be substantially as follows: Near the top and centered within the rectangular space shall be printed "For President" in ten-point boldface upper and lower case type. Below "For President" shall be printed the name of the candidate for president in twelve-point boldface upper case type. Below the name of the candidate for president shall be printed the name of the political party by which that candidate for president was nominated in eight-point lightface upper and lower case type. Below the name of such political party shall be printed "For Vice-President" in ten-point boldface upper and lower case type. Below "For Vice-President" shall be printed the name of the candidate for vice-president in twelve-point boldface upper case type. Below the name of the candidate for vice-president shall be printed the name of the political party by which that candidate for vice-president was nominated in eight-point lightface upper and lower case type. No Except for candidates nominated by petition under section 3517.012 of the Revised Code, no political identification or name of any political party shall be
Exh. 2, p | 11 Am. Sub. S. B. No. 193 130th G.A. 12 printed below the names of presidential and vice-presidential candidates nominated by petition. The rectangular spaces on the ballot described in this section shall be rotated and printed as provided in section 3505.03 of the Revised Code. Sec. 3506.11. The names of all candidates for an office shall be arranged in a group under the title of the office and printed on labels so that they may be rotated on the voting machine as provided in section 3505.03 of the Revised Code. Under the name of each candidate nominated at a primary election, nominated by petition under section 3517.012 of the Revised Code, or certified by a party committee to fill a vacancy under section 3513.31 of the Revised Code, the name of the political party that nominated or certified the candidate shall be printed in less prominent typeface than that in which the candidate's name is printed. Sec. 3513.01. (A) Except as otherwise provided in this section and section 3517.012 of the Revised Code, on the first Tuesday after the first Monday in March of 2000 and every fourth year thereafter, and on the first Tuesday after the first Monday in May of every other year, primary elections shall be held for the purpose of nominating persons as candidates of political parties for election to offices to be voted for at the succeeding general election. (B) The manner of nominating persons as candidates for election as officers of a municipal corporation having a population of two thousand or more, as ascertained by the most recent federal census, shall be the same as the manner in which candidates were nominated for election as officers in the municipal corporation in 1989 unless the manner of nominating such candidates is changed under division (C), (D), or (E) of this section. (C) Primary elections shall not be held for the nomination of candidates for election as officers of any township, or any municipal corporation having a population of less than two thousand, unless a majority of the electors of any such township or municipal corporation, as determined by the total number of votes cast in such township or municipal corporation for the office of governor at the most recent regular state election, files with the board of elections of the county within which such township or municipal corporation is located, or within which the major portion of the population thereof is located, if the municipal corporation is situated in more than one county, not later than one hundred twenty days before the day of a primary election, a petition signed by such electors asking that candidates for election as officers of such township or municipal corporation be nominated as candidates of political parties, in which event primary elections shall be held in such township or municipal corporation for the purpose of
Exh. 2, p | 12 Am. Sub. S. B. No. 193 130th G.A. 13 nominating persons as candidates of political parties for election as officers of such township or municipal corporation to be voted for at the succeeding regular municipal election. In a township or municipal corporation where a majority of the electors have filed a petition asking that candidates for election as officers of the township or municipal corporation be nominated as candidates of political parties, the nomination of candidates for a nonpartisan election may be reestablished in the manner prescribed in division (E) of this section. (D)(1) The electors in a municipal corporation having a population of two thousand or more, in which municipal officers were nominated in the most recent election by nominating petition and elected by nonpartisan election, may place on the ballot in the manner prescribed in division (D)(2) of this section the question of changing to the primary-election method of nominating persons as candidates for election as officers of the municipal corporation. (2) The board of elections of the county within which the municipal corporation is located, or, if the municipal corporation is located in more than one county, of the county within which the major portion of the population of the municipal corporation is located, shall, upon receipt of a petition signed by electors of the municipal corporation equal in number to at least ten per cent of the vote cast at the most recent regular municipal election, submit to the electors of the municipal corporation the question of changing to the primary-election method of nominating persons as candidates for election as officers of the municipal corporation. The ballot language shall be substantially as follows: "Shall candidates for election as officers of ...... (name of municipal corporation) in the county of ...... (name of county) be nominated as candidates of political parties? ...... yes ...... no" The question shall be placed on the ballot at the next general election in an even-numbered year occurring at least ninety days after the petition is filed with the board. If a majority of the electors voting on the question vote in the affirmative, candidates for election as officers of the municipal corporation shall thereafter be nominated as candidates of political parties in primary elections, under division (A) of this section, unless a change in the manner of nominating persons as candidates for election as officers of the municipal corporation is made under division (E) of this section. (E)(1) The electors in a township or municipal corporation in which the township or municipal officers are nominated as candidates of political
Exh. 2, p | 13 Am. Sub. S. B. No. 193 130th G.A. 14 parties in a primary election may place on the ballot, in the manner prescribed in division (E)(2) of this section, the question of changing to the nonpartisan method of nominating persons as candidates for election as officers of the township or municipal corporation. (2) The board of elections of the county within which the township or municipal corporation is located, or, if the municipal corporation is located in more than one county, of the county within which the major portion of the population of the municipal corporation is located, shall, upon receipt of a petition signed by electors of the township or municipal corporation equal in number to at least ten per cent of the vote cast at the most recent regular township or municipal election, as appropriate, submit to the electors of the township or municipal corporation, as appropriate, the question of changing to the nonpartisan method of nominating persons as candidates for election as officers of the township or municipal corporation. The ballot language shall be substantially as follows: "Shall candidates for election as officers of ...... (name of the township or municipal corporation) in the county of ...... (name of county) be nominated as candidates by nominating petition and be elected only in a nonpartisan election? ...... yes ...... no" The question shall appear on the ballot at the next general election in an even-numbered year occurring at least ninety days after the petition is filed with the board. If a majority of electors voting on the question vote in the affirmative, candidates for officer of the township or municipal corporation shall thereafter be nominated by nominating petition and be elected only in a nonpartisan election, unless a change in the manner of nominating persons as candidates for election as officers of the township or municipal corporation is made under division (C) or (D) of this section. Sec. 3513.04. Candidates for party nominations to state, district, county, and municipal offices or positions, for which party nominations are provided by law, and for election as members of party controlling committees shall have their names printed on the official primary ballot by filing a declaration of candidacy and paying the fees specified for the office under divisions (A) and (B) of section 3513.10 of the Revised Code, except that the joint candidates for party nomination to the offices of governor and lieutenant governor shall, for the two of them, file one declaration of candidacy. The joint candidates also shall pay the fees specified for the joint candidates under divisions (A) and (B) of section 3513.10 of the Revised Code. The secretary of state shall not accept for filing the declaration of
Exh. 2, p | 14 Am. Sub. S. B. No. 193 130th G.A. 15 candidacy of a candidate for party nomination to the office of governor unless the declaration of candidacy also shows a joint candidate for the same party's nomination to the office of lieutenant governor, shall not accept for filing the declaration of candidacy of a candidate for party nomination to the office of lieutenant governor unless the declaration of candidacy also shows a joint candidate for the same party's nomination to the office of governor, and shall not accept for filing a declaration of candidacy that shows a candidate for party nomination to the office of governor or lieutenant governor who, for the same election, has already filed a declaration of candidacy or a declaration of intent to be a write-in candidate, or has become a candidate by the filling of a vacancy under section 3513.30 of the Revised Code for any other state office or any federal or county office. No person who seeks party nomination for an office or position at a primary election by declaration of candidacy or by declaration of intent to be a write-in candidate and no person who is a first choice for president of candidates seeking election as delegates and alternates to the national conventions of the different major political parties who are chosen by direct vote of the electors as provided in this chapter shall be permitted to become a candidate by nominating petition, including a nominating petition filed under section 3517.012 of the Revised Code, by declaration of intent to be a write-in candidate, or by filling a vacancy under section 3513.31 of the Revised Code at the following general election for any office other than the office of member of the state board of education, office of member of a city, local, or exempted village board of education, office of member of a governing board of an educational service center, or office of township trustee. Sec. 3513.05. Each person desiring to become a candidate for a party nomination at a primary election or for election to an office or position to be voted for at a primary election, except persons desiring to become joint candidates for the offices of governor and lieutenant governor and except as otherwise provided in section 3513.051 of the Revised Code, shall, not later than four p.m. of the ninetieth day before the day of the primary election, file a declaration of candidacy and petition and pay the fees required under divisions (A) and (B) of section 3513.10 of the Revised Code. The declaration of candidacy and all separate petition papers shall be filed at the same time as one instrument. When the offices are to be voted for at a primary election, persons desiring to become joint candidates for the offices of governor and lieutenant governor shall, not later than four p.m. of the ninetieth day before the day of the primary election, comply with section 3513.04 of the Revised Code. The prospective joint candidates' declaration
Exh. 2, p | 15 Am. Sub. S. B. No. 193 130th G.A. 16 of candidacy and all separate petition papers of candidacies shall be filed at the same time as one instrument. The secretary of state or a board of elections shall not accept for filing a declaration of candidacy and petition of a person seeking to become a candidate if that person, for the same election, has already filed a declaration of candidacy or a declaration of intent to be a write-in candidate, or has become a candidate by the filling of a vacancy under section 3513.30 of the Revised Code for any federal, state, or county office, if the declaration of candidacy is for a state or county office, or for any municipal or township office, if the declaration of candidacy is for a municipal or township office. If the declaration of candidacy declares a candidacy which is to be submitted to electors throughout the entire state, the petition, including a petition for joint candidates for the offices of governor and lieutenant governor, shall be signed by at least one thousand qualified electors who are members of the same political party as the candidate or joint candidates, and the declaration of candidacy and petition shall be filed with the secretary of state; provided that the secretary of state shall not accept or file any such petition appearing on its face to contain signatures of more than three thousand electors. Except as otherwise provided in this paragraph, if the declaration of candidacy is of one that is to be submitted only to electors within a district, political subdivision, or portion thereof, the petition shall be signed by not less than fifty qualified electors who are members of the same political party as the political party of which the candidate is a member. If the declaration of candidacy is for party nomination as a candidate for member of the legislative authority of a municipal corporation elected by ward, the petition shall be signed by not less than twenty-five qualified electors who are members of the political party of which the candidate is a member. No such petition, except the petition for a candidacy that is to be submitted to electors throughout the entire state, shall be accepted for filing if it appears to contain on its face signatures of more than three times the minimum number of signatures. When a petition of a candidate has been accepted for filing by a board of elections, the petition shall not be deemed invalid if, upon verification of signatures contained in the petition, the board of elections finds the number of signatures accepted exceeds three times the minimum number of signatures required. A board of elections may discontinue verifying signatures on petitions when the number of verified signatures equals the minimum required number of qualified signatures. If the declaration of candidacy declares a candidacy for party nomination or for election as a candidate of an intermediate or a minor
Exh. 2, p | 16 Am. Sub. S. B. No. 193 130th G.A. 17 party, the minimum number of signatures on such petition is one-half the minimum number provided in this section, except that, when the candidacy is one for election as a member of the state central committee or the county central committee of a political party, the minimum number shall be the same for an intermediate or a minor party as for a major party. If a declaration of candidacy is one for election as a member of the state central committee or the county central committee of a political party, the petition shall be signed by five qualified electors of the district, county, ward, township, or precinct within which electors may vote for such candidate. The electors signing such petition shall be members of the same political party as the political party of which the candidate is a member. For purposes of signing or circulating a petition of candidacy for party nomination or election, an elector is considered to be a member of a political party if the elector voted in that party's primary election within the preceding two calendar years, or if the elector did not vote in any other party's primary election within the preceding two calendar years. If the declaration of candidacy is of one that is to be submitted only to electors within a county, or within a district or subdivision or part thereof smaller than a county, the petition shall be filed with the board of elections of the county. If the declaration of candidacy is of one that is to be submitted only to electors of a district or subdivision or part thereof that is situated in more than one county, the petition shall be filed with the board of elections of the county within which the major portion of the population thereof, as ascertained by the next preceding federal census, is located. A petition shall consist of separate petition papers, each of which shall contain signatures of electors of only one county. Petitions or separate petition papers containing signatures of electors of more than one county shall not thereby be declared invalid. In case petitions or separate petition papers containing signatures of electors of more than one county are filed, the board shall determine the county from which the majority of signatures came, and only signatures from such county shall be counted. Signatures from any other county shall be invalid. Each separate petition paper shall be circulated by one person only, who shall be the candidate or a joint candidate or a member of the same political party as the candidate or joint candidates, and each separate petition paper shall be governed by the rules set forth in section 3501.38 of the Revised Code. The secretary of state shall promptly transmit to each board such separate petition papers of each petition accompanying a declaration of candidacy filed with the secretary of state as purport to contain signatures of
Exh. 2, p | 17 Am. Sub. S. B. No. 193 130th G.A. 18 electors of the county of such board. The board of the most populous county of a district shall promptly transmit to each board within such district such separate petition papers of each petition accompanying a declaration of candidacy filed with it as purport to contain signatures of electors of the county of each such board. The board of a county within which the major portion of the population of a subdivision, situated in more than one county, is located, shall promptly transmit to the board of each other county within which a portion of such subdivision is located such separate petition papers of each petition accompanying a declaration of candidacy filed with it as purport to contain signatures of electors of the portion of such subdivision in the county of each such board. All petition papers so transmitted to a board and all petitions accompanying declarations of candidacy filed with a board shall, under proper regulations, be open to public inspection until four p.m. of the eightieth day before the day of the next primary election. Each board shall, not later than the seventy-eighth day before the day of that primary election, examine and determine the validity or invalidity of the signatures on the petition papers so transmitted to or filed with it and shall return to the secretary of state all petition papers transmitted to it by the secretary of state, together with its certification of its determination as to the validity or invalidity of signatures thereon, and shall return to each other board all petition papers transmitted to it by such board, together with its certification of its determination as to the validity or invalidity of the signatures thereon. All other matters affecting the validity or invalidity of such petition papers shall be determined by the secretary of state or the board with whom such petition papers were filed. Protests against the candidacy of any person filing a declaration of candidacy for party nomination or for election to an office or position, as provided in this section, may be filed by any qualified elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election for the candidate whose declaration of candidacy the elector objects to, or by the controlling committee of that political party. The protest shall be in writing, and shall be filed not later than four p.m. of the seventy-fourth day before the day of the primary election. The protest shall be filed with the election officials with whom the declaration of candidacy and petition was filed. Upon the filing of the protest, the election officials with whom it is filed shall promptly fix the time for hearing it, and shall forthwith mail notice of the filing of the protest and the time fixed for hearing to the person whose candidacy is so protested. They shall also forthwith mail notice of the time fixed for such hearing to
Exh. 2, p | 18 Am. Sub. S. B. No. 193 130th G.A. 19 the person who filed the protest. At the time fixed, such election officials shall hear the protest and determine the validity or invalidity of the declaration of candidacy and petition. If they find that such candidate is not an elector of the state, district, county, or political subdivision in which the candidate seeks a party nomination or election to an office or position, or has not fully complied with this chapter, the candidate's declaration of candidacy and petition shall be determined to be invalid and shall be rejected; otherwise, it shall be determined to be valid. That determination shall be final. A protest against the candidacy of any persons filing a declaration of candidacy for joint party nomination to the offices of governor and lieutenant governor shall be filed, heard, and determined in the same manner as a protest against the candidacy of any person filing a declaration of candidacy singly. The secretary of state shall, on the seventieth day before the day of a primary election, certify to each board in the state the forms of the official ballots to be used at the primary election, together with the names of the candidates to be printed on the ballots whose nomination or election is to be determined by electors throughout the entire state and who filed valid declarations of candidacy and petitions. The board of the most populous county in a district comprised of more than one county but less than all of the counties of the state shall, on the seventieth day before the day of a primary election, certify to the board of each county in the district the names of the candidates to be printed on the official ballots to be used at the primary election, whose nomination or election is to be determined only by electors within the district and who filed valid declarations of candidacy and petitions. The board of a county within which the major portion of the population of a subdivision smaller than the county and situated in more than one county is located shall, on the seventieth day before the day of a primary election, certify to the board of each county in which a portion of that subdivision is located the names of the candidates to be printed on the official ballots to be used at the primary election, whose nomination or election is to be determined only by electors within that subdivision and who filed valid declarations of candidacy and petitions. Sec. 3513.31. (A) If a person nominated in a primary election as a candidate for election at the next general election, whose candidacy is to be submitted to the electors of the entire state, withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy in the party nomination so created may be filled by the state
Exh. 2, p | 19 Am. Sub. S. B. No. 193 130th G.A. 20 central committee of the major political party that made the nomination at the primary election, if the committee's chairperson and secretary certify the name of the person selected to fill the vacancy by the time specified in this division, at a meeting called for that purpose. The meeting shall be called by the chairperson of that committee, who shall give each member of the committee at least two days' notice of the time, place, and purpose of the meeting. If a majority of the members of the committee are present at the meeting, a majority of those present may select a person to fill the vacancy. The chairperson and secretary of the meeting shall certify in writing and under oath to the secretary of state, not later than the eighty-sixth day before the day of the general election, the name of the person selected to fill the vacancy. The certification must be accompanied by the written acceptance of the nomination by the person whose name is certified. A vacancy in a party nomination that may be filled by an intermediate or a minor political party shall be filled in accordance with the party's rules by authorized officials of the party. Certification must be made as in the manner provided for a major political party. (B) If a person nominated in a primary election as a party candidate for election at the next general election, whose candidacy is to be submitted to the electors of a district comprised of more than one county but less than all of the counties of the state, withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy in the party nomination so created may be filled by a district committee of the major political party that made the nomination at the primary election, if the committee's chairperson and secretary certify the name of the person selected to fill the vacancy by the time specified in this division, at a meeting called for that purpose. The district committee shall consist of the chairperson and secretary of the county central committee of such political party in each county in the district. The district committee shall be called by the chairperson of the county central committee of such political party of the most populous county in the district, who shall give each member of the district committee at least two days' notice of the time, place, and purpose of the meeting. If a majority of the members of the district committee are present at the district committee meeting, a majority of those present may select a person to fill the vacancy. The chairperson and secretary of the meeting shall certify in writing and under oath to the board of elections of the most populous county in the district, not later than four p.m. of the eighty-sixth day before the day of the general election, the name of the person selected to fill the vacancy. The certification must be accompanied by the written acceptance of the nomination by the person whose name is
Exh. 2, p | 20 Am. Sub. S. B. No. 193 130th G.A. 21 certified. A vacancy in a party nomination that may be filled by an intermediate or a minor political party shall be filled in accordance with the party's rules by authorized officials of the party. Certification must be made as in the manner provided for a major political party. (C) If a person nominated in a primary election as a party candidate for election at the next general election, whose candidacy is to be submitted to the electors of a county, withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy in the party nomination so created may be filled by the county central committee of the major political party that made the nomination at the primary election, or by the county executive committee if so authorized, if the committee's chairperson and secretary certify the name of the person selected to fill the vacancy by the time specified in this division, at a meeting called for that purpose. The meeting shall be called by the chairperson of that committee, who shall give each member of the committee at least two days' notice of the time, place, and purpose of the meeting. If a majority of the members of the committee are present at the meeting, a majority of those present may select a person to fill the vacancy. The chairperson and secretary of the meeting shall certify in writing and under oath to the board of that county, not later than four p.m. of the eighty-sixth day before the day of the general election, the name of the person selected to fill the vacancy. The certification must be accompanied by the written acceptance of the nomination by the person whose name is certified. A vacancy in a party nomination that may be filled by an intermediate or a minor political party shall be filled in accordance with the party's rules by authorized officials of the party. Certification must be made as in the manner provided for a major political party. (D) If a person nominated in a primary election as a party candidate for election at the next general election, whose candidacy is to be submitted to the electors of a district within a county, withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy in the party nomination so created may be filled by a district committee consisting of those members of the county central committee or, if so authorized, those members of the county executive committee in that county of the major political party that made the nomination at the primary election who represent the precincts or the wards and townships within the district, if the committee's chairperson and secretary certify the name of the person selected to fill the vacancy by the time specified in this division, at a meeting called for that purpose. The district committee meeting shall be called by the chairperson of the county central committee or executive
Exh. 2, p | 21 Am. Sub. S. B. No. 193 130th G.A. 22 committee, as appropriate, who shall give each member of the district committee at least two days' notice of the time, place, and purpose of the meeting. If a majority of the members of the district committee are present at the district committee meeting, a majority of those present may select a person to fill the vacancy. The chairperson and secretary of the district committee meeting shall certify in writing and under oath to the board of the county, not later than four p.m. of the eighty-sixth day before the day of the general election, the name of the person selected to fill the vacancy. The certification must be accompanied by the written acceptance of the nomination by the person whose name is certified. A vacancy in a party nomination that may be filled by an intermediate or a minor political party shall be filled in accordance with the party's rules by authorized officials of the party. Certification must be made as in the manner provided for a major political party. (E) If a person nominated in a primary election as a party candidate for election at the next general election, whose candidacy is to be submitted to the electors of a subdivision within a county, withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy in the party nomination so created may be filled by a subdivision committee consisting of those members of the county central committee or, if so authorized, those members of the county executive committee in that county of the major political party that made the nomination at that primary election who represent the precincts or the wards and townships within that subdivision, if the committee's chairperson and secretary certify the name of the person selected to fill the vacancy by the time specified in this division, at a meeting called for that purpose. The subdivision committee meeting shall be called by the chairperson of the county central committee or executive committee, as appropriate, who shall give each member of the subdivision committee at least two days' notice of the time, place, and purpose of the meeting. If a majority of the members of the subdivision committee are present at the subdivision committee meeting, a majority of those present may select a person to fill the vacancy. The chairperson and secretary of the subdivision committee meeting shall certify in writing and under oath to the board of the county, not later than four p.m. of the eighty-sixth day before the day of the general election, the name of the person selected to fill the vacancy. The certification must be accompanied by the written acceptance of the nomination by the person whose name is certified. A vacancy in a party nomination that may be filled by an intermediate or a minor political party shall be filled in accordance with the party's rules by authorized officials of
Exh. 2, p | 22 Am. Sub. S. B. No. 193 130th G.A. 23 the party. Certification must be made in the manner provided for a major political party. (F) If a person nominated by petition as an independent or nonpartisan candidate for election at the next general election withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy so created may be filled by a majority of the committee of five, as designated on the candidate's nominating petition, if a member of that committee certifies in writing and under oath to the election officials with whom the candidate filed the candidate's nominating petition, not later than the eighty-sixth day before the day of the general election, the name of the person selected to fill the vacancy. The certification shall be accompanied by the written acceptance of the nomination by the person whose name is certified and shall be made in the manner provided for a major political party. (G) If a person nominated in a primary election or nominated by petition under section 3517.012 of the Revised Code as a party candidate for election at the next general election dies, the vacancy so created may be filled by the same committee in the same manner as provided in this section for the filling of similar vacancies created by withdrawals or disqualifications under section 3513.052 of the Revised Code, except that the certification, when filling a vacancy created by death, may not be filed with the secretary of state, or with a board of the most populous county of a district, or with the board of a county in which the major portion of the population of a subdivision is located, later than four p.m. of the tenth day before the day of such general election, or with any other board later than four p.m. of the fifth day before the day of such general election. (H) If a person nominated by petition as an independent or nonpartisan candidate for election at the next general election dies prior to the tenth day before the day of that general election, the vacancy so created may be filled by a majority of the committee of five designated in the nominating petition to represent the candidate named in it. To fill the vacancy a member of the committee shall, not later than four p.m. of the fifth day before the day of the general election, file with the election officials with whom the petition nominating the person was filed, a certificate signed and sworn to under oath by a majority of the members, designating the person they select to fill the vacancy. The certification must be accompanied by the written acceptance of the nomination by the person whose name is so certified. (I) If a person holding an elective office dies or resigns subsequent to the one hundred fifteenth day before the day of a primary election and prior to the eighty-sixth day before the day of the next general election, and if,
Exh. 2, p | 23 Am. Sub. S. B. No. 193 130th G.A. 24 under the laws of this state, a person may be elected at that general election to fill the unexpired term of the person who has died or resigned, the appropriate committee of each political party, acting as in the case of a vacancy in a party nomination, as provided in divisions (A) to (D) of this section, may select a person as the party candidate for election for such unexpired term at that general election, and certify the person's name to the appropriate election official not later than four p.m. on the eighty-sixth day before the day of that general election, or on the tenth day following the day on which the vacancy occurs, whichever is later. When the vacancy occurs on or subsequent to the eighty-sixth day and six or more days prior to the fortieth day before the general election, the appropriate committee may select a person as the party candidate and certify the person's name, as provided in the preceding sentence, not later than four p.m. on the tenth day following the day on which the vacancy occurs. When the vacancy occurs fewer than six days before the fortieth day before the general election, the deadline for filing shall be four p.m. on the thirty-sixth day before the general election. Thereupon the name shall be printed as the party candidate under proper titles and in the proper place on the proper ballots for use at the election. If a person has been nominated in a primary election or nominated by petition under section 3517.012 of the Revised Code, the authorized committee of that political party shall not select and certify a person as the party candidate. (J) Each person desiring to become an independent candidate to fill the unexpired term shall file a statement of candidacy and nominating petition, as provided in section 3513.261 of the Revised Code, with the appropriate election official not later than four p.m. on the tenth day following the day on which the vacancy occurs, provided that when the vacancy occurs fewer than six days before the fifty-sixth day before the general election, the deadline for filing shall be four p.m. on the fiftieth day before the general election. The nominating petition shall contain at least seven hundred fifty signatures and no more than one thousand five hundred signatures of qualified electors of the district, political subdivision, or portion of a political subdivision in which the office is to be voted upon, or the amount provided for in section 3513.257 of the Revised Code, whichever is less. (K) When a person nominated as a candidate by a political party in a primary election or by nominating petition for an elective office for which candidates are nominated at a party primary election withdraws, dies, or is disqualified under section 3513.052 of the Revised Code prior to the general election, the appropriate committee of any other major political party or committee of five that has not nominated a candidate for that office, or
Exh. 2, p | 24 Am. Sub. S. B. No. 193 130th G.A. 25 whose nominee as a candidate for that office has withdrawn, died, or been disqualified without the vacancy so created having been filled, may, acting as in the case of a vacancy in a party nomination or nomination by petition as provided in divisions (A) to (F) of this section, whichever is appropriate, select a person as a candidate of that party or of that committee of five for election to the office. Sec. 3513.311. (A) If a candidate for lieutenant governor dies, withdraws, or is disqualified as a candidate prior to the seventieth day before the day of a primary election, the vacancy on the ballot shall be filled by appointment by the joint candidate for the office of governor. Such candidate for governor shall certify in writing and under oath to the secretary of state not later than the sixty-fifth day before the day of such election the name and residence address of the person selected to fill such vacancy. (B) If a candidate for governor dies, withdraws, or is disqualified as a candidate prior to the seventieth day before the day of a primary election, the vacancy on the ballot shall be filled by appointment by the joint candidate for the office of lieutenant governor. Such candidate for lieutenant governor shall certify in writing and under oath to the secretary of state not later than the sixty-fifth day before the day of such election the name and residence address of the person selected to fill such vacancy. (C) If a candidate for the office of lieutenant governor dies on or after the seventieth day, but prior to the tenth day, before a primary election, the vacancy so created shall be filled by appointment by the joint candidate for the office of governor. Such candidate for governor shall certify in writing and under oath to the secretary of state not later than the fifth day before the day of such election the name and residence address of the person selected to fill such vacancy. (D) If a candidate for the office of governor dies on or after the seventieth day, but prior to the tenth day, before a primary election, the vacancy so created shall be filled by appointment by the joint candidate for the office of lieutenant governor. Such candidate for lieutenant governor shall certify in writing and under oath to the secretary of state not later than the fifth day before the day of such election the name and residence address of the person selected to fill such vacancy. (E) If a person nominated in a primary election or nominated by petition under section 3517.012 of the Revised Code as a candidate for election to the office of governor or lieutenant governor at the next general election withdraws as such candidate prior to the ninetieth day before the day of the general election or dies prior to the tenth day before the day of such general
Exh. 2, p | 25 Am. Sub. S. B. No. 193 130th G.A. 26 election, the vacancy so created shall be filled in the manner provided for by section 3513.31 of the Revised Code. (F) If a person nominated by petition as a an independent candidate for election to the office of governor or lieutenant governor withdraws as such candidate prior to the ninetieth day before the day of the general election or dies prior to the tenth day before the day of such general election, the vacancy so created shall be filled by the candidates' committee in the manner provided for, as in the case of death, by section 3513.31 of the Revised Code, except that, in the case of withdrawal of candidacy, the name and residence address of the replacement candidate shall be certified in writing and under oath to the secretary of state not later than the eighty-sixth day before the day of the general election. (G) If the vacancy in a joint candidacy for governor and lieutenant governor can be filled in accordance with this section and is not so filled, the joint candidacy which has not been vacated shall be invalidated and shall not be presented for election. (H) Any replacement candidate appointed or selected pursuant to this section shall be one who has the qualifications of an elector. Sec. 3513.312. (A) Notwithstanding section 3513.31 of the Revised Code, if a person nominated in a primary election or nominated by petition under section 3517.012 of the Revised Code as a party candidate for the office of representative to congress for election at the next general election withdraws as such candidate prior to the ninetieth day before the day of such general election, or dies prior to the ninetieth day before the day of such general election, the vacancy in the party nomination so created shall be filled by a special election held in accordance with division (B) of this section. (B) The boards of elections of all the counties contained in whole or in part within the congressional district in which a vacancy occurs as described in division (A) of this section shall, as soon as reasonably practicable, conduct the special election and give notice of the time and places of holding such election as provided in section 3501.03 of the Revised Code. Such election shall be held and conducted and returns thereof made as in the case of a primary election. (C) The state shall pay all costs of any special election held pursuant to this section. Sec. 3517.01. (A)(1) A political party within the meaning of Title XXXV of the Revised Code is any group of voters that meets either of the following requirements: (a) Except as otherwise provided in this division, at the most recent
Exh. 2, p | 26 Am. Sub. S. B. No. 193 130th G.A. 27 regular state election, the group polled for its candidate for governor in the state or nominees for presidential electors at least five three per cent of the entire vote cast for that office or that. A group that meets the requirements of this division remains a political party for a period of four years after meeting those requirements. (b) The group filed with the secretary of state, subsequent to any election in which it received less than five per cent of that vote its failure to meet the requirements of division (A)(1)(a) of this section, a party formation petition signed that meets all of the following requirements: (i) The petition is signed by qualified electors equal in number to at least one per cent of the total vote for governor or nominees for presidential electors at the most recent election, declaring their for such office. (ii) The petition is signed by not fewer than five hundred qualified electors from each of at least a minimum of one-half of the congressional districts in this state. If an odd number of congressional districts exists in this state, the number of districts that results from dividing the number of congressional districts by two shall be rounded up to the next whole number. (iii) The petition declares the petitioners' intention of organizing a political party, the name of which shall be stated in the declaration, and of participating in the succeeding primary general election, held in even-numbered years, that occurs more than one hundred twenty twenty-five days after the date of filing. (iv) The petition designates a committee of not less than three nor more than five individuals of the petitioners, who shall represent the petitioners in all matters relating to the petition. Notice of all matters or proceedings pertaining to the petition may be served on the committee, or any of them, either personally or by registered mail, or by leaving such notice at the usual place of residence of each of them. No (2) No such group of electors shall assume a name or designation that is similar, in the opinion of the secretary of state, to that of an existing political party as to confuse or mislead the voters at an election. If any political party fails to cast five per cent of the total vote cast at an election for the office of governor or president, it shall cease to be a political party. (2)(B) A campaign committee shall be legally liable for any debts, contracts, or expenditures incurred or executed in its name. (B)(C) Notwithstanding the definitions found in section 3501.01 of the Revised Code, as used in this section and sections 3517.08 to 3517.14, 3517.99, and 3517.992 of the Revised Code: (1) "Campaign committee" means a candidate or a combination of two or more persons authorized by a candidate under section 3517.081 of the
Exh. 2, p | 27 Am. Sub. S. B. No. 193 130th G.A. 28 Revised Code to receive contributions and make expenditures. (2) "Campaign treasurer" means an individual appointed by a candidate under section 3517.081 of the Revised Code. (3) "Candidate" has the same meaning as in division (H) of section 3501.01 of the Revised Code and also includes any person who, at any time before or after an election, receives contributions or makes expenditures or other use of contributions, has given consent for another to receive contributions or make expenditures or other use of contributions, or appoints a campaign treasurer, for the purpose of bringing about the person's nomination or election to public office. When two persons jointly seek the offices of governor and lieutenant governor, "candidate" means the pair of candidates jointly. "Candidate" does not include candidates for election to the offices of member of a county or state central committee, presidential elector, and delegate to a national convention or conference of a political party. (4) "Continuing association" means an association, other than a campaign committee, political party, legislative campaign fund, political contributing entity, or labor organization, that is intended to be a permanent organization that has a primary purpose other than supporting or opposing specific candidates, political parties, or ballot issues, and that functions on a regular basis throughout the year. "Continuing association" includes organizations that are determined to be not organized for profit under subsection 501 and that are described in subsection 501(c)(3), 501(c)(4), or 501(c)(6) of the Internal Revenue Code. (5) "Contribution" means a loan, gift, deposit, forgiveness of indebtedness, donation, advance, payment, or transfer of funds or anything of value, including a transfer of funds from an inter vivos or testamentary trust or decedent's estate, and the payment by any person other than the person to whom the services are rendered for the personal services of another person, which contribution is made, received, or used for the purpose of influencing the results of an election. Any loan, gift, deposit, forgiveness of indebtedness, donation, advance, payment, or transfer of funds or of anything of value, including a transfer of funds from an inter vivos or testamentary trust or decedent's estate, and the payment by any campaign committee, political action committee, legislative campaign fund, political party, political contributing entity, or person other than the person to whom the services are rendered for the personal services of another person, that is made, received, or used by a state or county political party, other than moneys a state or county political party receives from the Ohio political party fund pursuant to section 3517.17 of the Revised Code and the
Exh. 2, p | 28 Am. Sub. S. B. No. 193 130th G.A. 29 moneys an entity may receive under sections 3517.101, 3517.1012, and 3517.1013 of the Revised Code, shall be considered to be a "contribution" for the purpose of section 3517.10 of the Revised Code and shall be included on a statement of contributions filed under that section. "Contribution" does not include any of the following: (a) Services provided without compensation by individuals volunteering a portion or all of their time on behalf of a person; (b) Ordinary home hospitality; (c) The personal expenses of a volunteer paid for by that volunteer campaign worker; (d) Any gift given to an entity pursuant to section 3517.101 of the Revised Code; (e) Any contribution as defined in section 3517.1011 of the Revised Code that is made, received, or used to pay the direct costs of producing or airing an electioneering communication; (f) Any gift given to a state or county political party for the party's restricted fund under division (A)(2) of section 3517.1012 of the Revised Code; (g) Any gift given to a state political party for deposit in a Levin account pursuant to section 3517.1013 of the Revised Code. As used in this division, "Levin account" has the same meaning as in that section. (h) Any donation given to a transition fund under section 3517.1014 of the Revised Code. (6) "Expenditure" means the disbursement or use of a contribution for the purpose of influencing the results of an election or of making a charitable donation under division (G) of section 3517.08 of the Revised Code. Any disbursement or use of a contribution by a state or county political party is an expenditure and shall be considered either to be made for the purpose of influencing the results of an election or to be made as a charitable donation under division (G) of section 3517.08 of the Revised Code and shall be reported on a statement of expenditures filed under section 3517.10 of the Revised Code. During the thirty days preceding a primary or general election, any disbursement to pay the direct costs of producing or airing a broadcast, cable, or satellite communication that refers to a clearly identified candidate shall be considered to be made for the purpose of influencing the results of that election and shall be reported as an expenditure or as an independent expenditure under section 3517.10 or 3517.105 of the Revised Code, as applicable, except that the information required to be reported regarding contributors for those expenditures or independent expenditures shall be the same as the information required to be
Exh. 2, p | 29 Am. Sub. S. B. No. 193 130th G.A. 30 reported under divisions (D)(1) and (2) of section 3517.1011 of the Revised Code. As used in this division, "broadcast, cable, or satellite communication" and "refers to a clearly identified candidate" have the same meanings as in section 3517.1011 of the Revised Code. (7) "Personal expenses" includes, but is not limited to, ordinary expenses for accommodations, clothing, food, personal motor vehicle or airplane, and home telephone. (8) "Political action committee" means a combination of two or more persons, the primary or major purpose of which is to support or oppose any candidate, political party, or issue, or to influence the result of any election through express advocacy, and that is not a political party, a campaign committee, a political contributing entity, or a legislative campaign fund. "Political action committee" does not include either of the following: (a) A continuing association that makes disbursements for the direct costs of producing or airing electioneering communications and that does not engage in express advocacy; (b) A political club that is formed primarily for social purposes and that consists of one hundred members or less, has officers and periodic meetings, has less than two thousand five hundred dollars in its treasury at all times, and makes an aggregate total contribution of one thousand dollars or less per calendar year. (9) "Public office" means any state, county, municipal, township, or district office, except an office of a political party, that is filled by an election and the offices of United States senator and representative. (10) "Anything of value" has the same meaning as in section 1.03 of the Revised Code. (11) "Beneficiary of a campaign fund" means a candidate, a public official or employee for whose benefit a campaign fund exists, and any other person who has ever been a candidate or public official or employee and for whose benefit a campaign fund exists. (12) "Campaign fund" means money or other property, including contributions. (13) "Public official or employee" has the same meaning as in section 102.01 of the Revised Code. (14) "Caucus" means all of the members of the house of representatives or all of the members of the senate of the general assembly who are members of the same political party. (15) "Legislative campaign fund" means a fund that is established as an auxiliary of a state political party and associated with one of the houses of
Exh. 2, p | 30 Am. Sub. S. B. No. 193 130th G.A. 31 the general assembly. (16) "In-kind contribution" means anything of value other than money that is used to influence the results of an election or is transferred to or used in support of or in opposition to a candidate, campaign committee, legislative campaign fund, political party, political action committee, or political contributing entity and that is made with the consent of, in coordination, cooperation, or consultation with, or at the request or suggestion of the benefited candidate, committee, fund, party, or entity. The financing of the dissemination, distribution, or republication, in whole or part, of any broadcast or of any written, graphic, or other form of campaign materials prepared by the candidate, the candidate's campaign committee, or their authorized agents is an in-kind contribution to the candidate and an expenditure by the candidate. (17) "Independent expenditure" means an expenditure by a person advocating the election or defeat of an identified candidate or candidates, that is not made with the consent of, in coordination, cooperation, or consultation with, or at the request or suggestion of any candidate or candidates or of the campaign committee or agent of the candidate or candidates. As used in division (B)(C)(17) of this section: (a) "Person" means an individual, partnership, unincorporated business organization or association, political action committee, political contributing entity, separate segregated fund, association, or other organization or group of persons, but not a labor organization or a corporation unless the labor organization or corporation is a political contributing entity. (b) "Advocating" means any communication containing a message advocating election or defeat. (c) "Identified candidate" means that the name of the candidate appears, a photograph or drawing of the candidate appears, or the identity of the candidate is otherwise apparent by unambiguous reference. (d) "Made in coordination, cooperation, or consultation with, or at the request or suggestion of, any candidate or the campaign committee or agent of the candidate" means made pursuant to any arrangement, coordination, or direction by the candidate, the candidate's campaign committee, or the candidate's agent prior to the publication, distribution, display, or broadcast of the communication. An expenditure is presumed to be so made when it is any of the following: (i) Based on information about the candidate's plans, projects, or needs provided to the person making the expenditure by the candidate, or by the candidate's campaign committee or agent, with a view toward having an expenditure made;
Exh. 2, p | 31 Am. Sub. S. B. No. 193 130th G.A. 32 (ii) Made by or through any person who is, or has been, authorized to raise or expend funds, who is, or has been, an officer of the candidate's campaign committee, or who is, or has been, receiving any form of compensation or reimbursement from the candidate or the candidate's campaign committee or agent; (iii) Except as otherwise provided in division (D) of section 3517.105 of the Revised Code, made by a political party in support of a candidate, unless the expenditure is made by a political party to conduct voter registration or voter education efforts. (e) "Agent" means any person who has actual oral or written authority, either express or implied, to make or to authorize the making of expenditures on behalf of a candidate, or means any person who has been placed in a position with the candidate's campaign committee or organization such that it would reasonably appear that in the ordinary course of campaign-related activities the person may authorize expenditures. (18) "Labor organization" means a labor union; an employee organization; a federation of labor unions, groups, locals, or other employee organizations; an auxiliary of a labor union, employee organization, or federation of labor unions, groups, locals, or other employee organizations; or any other bona fide organization in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, hours, and other terms and conditions of employment. (19) "Separate segregated fund" means a separate segregated fund established pursuant to the Federal Election Campaign Act. (20) "Federal Election Campaign Act" means the "Federal Election Campaign Act of 1971," 86 Stat. 11, 2 U.S.C.A. 431, et seq., as amended. (21) "Restricted fund" means the fund a state or county political party must establish under division (A)(1) of section 3517.1012 of the Revised Code. (22) "Electioneering communication" has the same meaning as in section 3517.1011 of the Revised Code. (23) "Express advocacy" means a communication that contains express words advocating the nomination, election, or defeat of a candidate or that contains express words advocating the adoption or defeat of a question or issue, as determined by a final judgment of a court of competent jurisdiction. (24) "Political committee" has the same meaning as in section 3517.1011 of the Revised Code. (25) "Political contributing entity" means any entity, including a
Exh. 2, p | 32 Am. Sub. S. B. No. 193 130th G.A. 33 corporation or labor organization, that may lawfully make contributions and expenditures and that is not an individual or a political action committee, continuing association, campaign committee, political party, legislative campaign fund, designated state campaign committee, or state candidate fund. For purposes of this division, "lawfully" means not prohibited by any section of the Revised Code, or authorized by a final judgment of a court of competent jurisdiction. Sec. 3517.012. (A)(1) 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 hold a primary election as set out in section 3513.01 of the Revised Code, nominate candidates to appear on the ballot at the primary general election, held in even-numbered years that occurs more than one hundred twenty twenty-five days after the date of filing. (2)(a) Upon receiving a party formation petition filed under division (A)(1) of this section, the secretary of state shall promptly transmit to each board of elections the separate petition papers that purport to contain signatures of electors of that board's county. (b) Not later than the one hundred eighteenth day before the day of the general election, each board shall examine and determine the sufficiency of the signatures on the petition papers and shall return them to the secretary of state, together with the board's certification of its determination as to the validity or invalidity of the signatures on the petition. (c) Any qualified elector may file a written protest against the petition with the secretary of state not later than the one hundred fourteenth day before the day of the general election. Any such protest shall be resolved in the manner specified under section 3501.39 of the Revised Code. (d) Not later than the ninety-fifth day before the day of the general election, the secretary of state shall determine whether the party formation petition is sufficient and shall notify the committee designated in the petition of that determination. (B)(1) Not later than one hundred ten days before the day of that general election and not earlier than the day the applicable party formation petition is filed, each candidate or pair of joint candidates wishing to appear on the ballot at the general election as the nominee or nominees of the party that filed the party formation petition shall file a nominating petition, on a form prescribed by the secretary of state, that includes the name of the political party that submitted the party formation petition. Except as otherwise provided in this section and sections 3505.03, 3505.08, 3506.11, 3513.31,
Exh. 2, p | 33 Am. Sub. S. B. No. 193 130th G.A. 34 3513.311, and 3513.312 of the Revised Code, the provisions of the Revised Code concerning independent candidates who file nominating petitions apply to candidates who file nominating petitions under this section. (2)(a) If the candidacy is to be submitted to electors throughout the entire state, the nominating petition, including a petition for joint candidates for the offices of governor and lieutenant governor, shall be signed by at least fifty qualified electors who have not voted as a member of a different political party at any primary election within the current year or the immediately preceding two calendar years. (b) Except as otherwise provided in this division, if the candidacy is to be submitted only to electors within a district, political subdivision, or portion thereof, the nominating petition shall be signed by not less than five qualified electors who have not voted as a member of a different political party at any primary election within the current year or the immediately preceding two calendar years. (3)(a) Each board of elections that is responsible to verify signatures on the nominating petition shall examine and determine the sufficiency of those signatures not later than the one hundred fifth day before the day of the general election and shall be resolved as specified in that section. (b) Written protests against the petition may be filed in the manner specified under section 3513.263 of the Revised Code not later than the one hundredth day before the general election and shall be resolved as specified in that section. (c) Not later than the ninety-fifth day before the day of the general election, the secretary of state or the board of elections, as applicable, shall determine whether the nominating petition is sufficient and shall notify the candidate and the committee designated in the party formation petition of that determination. (C)(1) After being notified that the political party has submitted a sufficient party formation petition under division (A) of this section, the committee designated in a party formation petition shall, not later than the seventy-fifth day before the day of the general election, certify to the secretary of state a slate of candidates consisting of candidates or joint candidates who submitted sufficient nominating petitions under division (B) of this section. The slate certifying the candidates shall be on a form prescribed by the secretary of state and signed by all of the individuals of the committee designated in the party formation petition. In no event shall the slate of candidates include more than one candidate for any public office or more than one set of joint candidates for the offices of governor and lieutenant governor. The names of the candidates or joint candidates so
Exh. 2, p | 34 Am. Sub. S. B. No. 193 130th G.A. 35 certified shall appear on the ballot at the general election as that party's nominees for those offices. For purposes of this division, "joint candidates" means the joint candidates for the offices of governor and lieutenant governor. (2) If a candidate's nominating petition is insufficient or if the committee does not certify the candidate's name under division (C)(1) of this section, the candidate shall not appear on the ballot in the general election. (3) If a party formation petition is insufficient, no candidate shall appear on the ballot in the general election as that political party's nominee, regardless of whether any candidate's nominating petition is sufficient. Sec. 3517.02. All members of controlling committees of a major or intermediate political party shall be elected by direct vote of the members of the party, except as otherwise provided in section 3517.05 of the Revised Code. Their names shall be placed upon the official ballot, and, notwithstanding division (B) of section 3513.23 of the Revised Code, the persons receiving the highest number of votes for committeepersons shall be the members of those controlling committees. Each member of a controlling committee shall be a resident and qualified elector of the district, ward, or precinct that the member is elected to represent. All members of controlling committees of a minor political party shall be determined in accordance with party rules. Each political party shall file with the office of the secretary of state a copy of its constitution and bylaws, if any, within thirty days of adoption or amendment. Each party shall also file with the office of the secretary of state a list of members of its controlling committees and other party officials within thirty days of their election or appointment. Sec. 3517.03. The controlling committees of each major political party or organization shall be a state central committee consisting of two members, one a man and one a woman, representing either each congressional district in the state or each senatorial district in the state, as the outgoing committee determines; a county central committee consisting of one member from each election precinct in the county, or of one member from each ward in each city and from each township in the county, as the outgoing committee determines; and such district, city, township, or other committees as the rules of the party provide. All the members of such committees shall be members of the party and shall be elected for terms of either two or four years, as determined by party rules, by direct vote at the primary held in an even-numbered year. Except as otherwise provided in section 3517.02 of the Revised Code, candidates
Exh. 2, p | 35 Am. Sub. S. B. No. 193 130th G.A. 36 for election as state central committee members shall be elected at primaries in the same manner as provided in sections 3513.01 to 3513.32 of the Revised Code for the nomination of candidates for office in a county. Candidates for election as members of the county central committee shall be elected at primaries in the same manner as provided in those sections for the nomination of candidates for county offices, except as otherwise provided in sections 3513.051 and 3517.02 of the Revised Code. Each major party controlling committee shall elect an executive committee that shall have the powers granted to it by the party controlling committee, and provided to it by law. When a judicial, senatorial, or congressional district is comprised of more than one county, the chairperson and secretary of the county central committee from each county in that district shall constitute the judicial, senatorial, or congressional committee of the district. When a judicial, senatorial, or congressional district is included within a county, the county central committee shall constitute the judicial, senatorial, or congressional committee of the district. The controlling committee of each intermediate political party or organization shall be a state central committee consisting of two members, one a man and one a woman, from each congressional district in the state. All members of the committee shall be members of the party and shall be elected by direct vote at the primary held in the even-numbered years. Except as otherwise provided in section 3517.02 of the Revised Code, candidates for election shall be elected at the primary in the same manner as provided in sections 3513.01 to 3513.32 of the Revised Code. An intermediate political party may have such other party organization as its rules provide. Each intermediate party shall file the names and addresses of its officers with the secretary of state. A minor political party may elect controlling committees at a primary election in the even-numbered year by filing a plan for party organization with the secretary of state on or before the ninetieth day before the day of the primary election. The plan shall specify which offices are to be elected and provide the procedure for qualification of candidates for those offices. Candidates to be elected pursuant to the plan shall be designated and qualified on or before the ninetieth day before the day of the election. Such parties may, in lieu of electing a controlling committee or other officials, choose such committee or other officials in accordance with party rules. Each such party shall file the names and addresses of members of its controlling committee and party officers with the secretary of state. Sec. 4503.03. (A)(1)(a) Except as provided in division (B) of this section, the registrar of motor vehicles may designate one or more of the
Exh. 2, p | 36 Am. Sub. S. B. No. 193 130th G.A. 37 following persons to act as a deputy registrar in each county: (i) The county auditor in any county, subject to division (A)(1)(b)(i) of this section; (ii) The clerk of a court of common pleas in any county, subject to division (A)(1)(b)(ii) of this section; (iii) An individual; (iv) A nonprofit corporation as defined in division (C) of section 1702.01 of the Revised Code. (b)(i) If the population of a county is forty thousand or less according to the most recent federal decennial census and if the county auditor is designated by the registrar as a deputy registrar, no other person need be designated in the county to act as a deputy registrar. (ii) The registrar may designate a clerk of a court of common pleas as a deputy registrar if the population of the county is forty thousand or less according to the last federal census. In a county with a population greater than forty thousand but not more than fifty thousand according to the last federal census, the clerk of a court of common pleas is eligible to act as a deputy registrar and may participate in the competitive selection process for the award of a deputy registrar contract by applying in the same manner as any other person. All fees collected and retained by a clerk for conducting deputy registrar services shall be paid into the county treasury to the credit of the certificate of title administration fund created under section 325.33 of the Revised Code. Notwithstanding the county population restrictions in division (A)(1)(b) of this section, if no person applies to act under contract as a deputy registrar in a county and the county auditor is not designated as a deputy registrar, the registrar may ask the clerk of a court of common pleas to serve as the deputy registrar for that county. (c) As part of the selection process in awarding a deputy registrar contract, the registrar shall consider the customer service performance record of any person previously awarded a deputy registrar contract pursuant to division (A)(1) of this section. (2) Deputy registrars shall accept applications for the annual license tax for any vehicle not taxed under section 4503.63 of the Revised Code and shall assign distinctive numbers in the same manner as the registrar. Such deputies shall be located in such locations in the county as the registrar sees fit. There shall be at least one deputy registrar in each county. Deputy registrar contracts are subject to the provisions of division (B) of section 125.081 of the Revised Code. (B)(1) The registrar shall not designate any person to act as a deputy
Exh. 2, p | 37 Am. Sub. S. B. No. 193 130th G.A. 38 registrar under division (A)(1) of this section if the person or, where applicable, the person's spouse or a member of the person's immediate family has made, within the current calendar year or any one of the previous three calendar years, one or more contributions totaling in excess of one hundred dollars to any person or entity included in division (A)(2) of section 4503.033 of the Revised Code. As used in this division, "immediate family" has the same meaning as in division (D) of section 102.01 of the Revised Code, and "entity" includes any political party and any "continuing association" as defined in division (B)(C)(4) of section 3517.01 of the Revised Code or "political action committee" as defined in division (B)(C)(8) of that section that is primarily associated with that political party. For purposes of this division, contributions to any continuing association or any political action committee that is primarily associated with a political party shall be aggregated with contributions to that political party. The contribution limitations contained in this division do not apply to any county auditor or clerk of a court of common pleas. A county auditor or clerk of a court of common pleas is not required to file the disclosure statement or pay the filing fee required under section 4503.033 of the Revised Code. The limitations of this division also do not apply to a deputy registrar who, subsequent to being awarded a deputy registrar contract, is elected to an office of a political subdivision. (2) The registrar shall not designate either of the following to act as a deputy registrar: (a) Any elected public official other than a county auditor or, as authorized by division (A)(1)(b) of this section, a clerk of a court of common pleas, acting in an official capacity, except that, the registrar shall continue and may renew a contract with any deputy registrar who, subsequent to being awarded a deputy registrar contract, is elected to an office of a political subdivision; (b) Any person holding a current, valid contract to conduct motor vehicle inspections under section 3704.14 of the Revised Code. (3) As used in division (B) of this section, "political subdivision" has the same meaning as in section 3501.01 of the Revised Code. (C)(1) Except as provided in division (C)(2) of this section, deputy registrars are independent contractors and neither they nor their employees are employees of this state, except that nothing in this section shall affect the status of county auditors or clerks of courts of common pleas as public officials, nor the status of their employees as employees of any of the counties of this state, which are political subdivisions of this state. Each deputy registrar shall be responsible for the payment of all unemployment
Exh. 2, p | 38 Am. Sub. S. B. No. 193 130th G.A. 39 compensation premiums, all workers' compensation premiums, social security contributions, and any and all taxes for which the deputy registrar is legally responsible. Each deputy registrar shall comply with all applicable federal, state, and local laws requiring the withholding of income taxes or other taxes from the compensation of the deputy registrar's employees. Each deputy registrar shall maintain during the entire term of the deputy registrar's contract a policy of business liability insurance satisfactory to the registrar and shall hold the department of public safety, the director of public safety, the bureau of motor vehicles, and the registrar harmless upon any and all claims for damages arising out of the operation of the deputy registrar agency. (2) For purposes of Chapter 4141. of the Revised Code, determinations concerning the employment of deputy registrars and their employees shall be made under Chapter 4141. of the Revised Code. (D)(1) With the approval of the director, the registrar shall adopt rules governing deputy registrars. The rules shall do all of the following: (a) Establish requirements governing the terms of the contract between the registrar and each deputy registrar and the services to be performed; (b) Establish requirements governing the amount of bond to be given as provided in this section; (c) Establish requirements governing the size and location of the deputy's office; (d) Establish requirements governing the leasing of equipment necessary to conduct the vision screenings required under section 4507.12 of the Revised Code and training in the use of the equipment; (e) Encourage every deputy registrar to inform the public of the location of the deputy registrar's office and hours of operation by means of public service announcements; (f) Allow any deputy registrar to advertise in regard to the operation of the deputy registrar's office; (g) Specify the hours the deputy's office is to be open to the public and require as a minimum that one deputy's office in each county be open to the public for at least four hours each weekend, provided that if only one deputy's office is located within the boundary of the county seat, that office is the office that shall be open for the four-hour period each weekend; (h) Specify that every deputy registrar, upon request, provide any person with information about the location and office hours of all deputy registrars in the county; (i) Allow a deputy registrar contract to be awarded to a nonprofit corporation formed under the laws of this state;
Exh. 2, p | 39 Am. Sub. S. B. No. 193 130th G.A. 40 (j) Except as provided in division (D)(2) of this section, prohibit any deputy registrar from operating more than one deputy registrar's office at any time; (k) For the duration of any deputy registrar contract, require that the deputy registrar occupy a primary residence in a location that is within a one-hour commute time from the deputy registrar's office or offices. The rules shall require the registrar to determine commute time by using multiple established internet-based mapping services. (l) Establish procedures for a deputy registrar to request the authority to collect reinstatement fees under sections 4507.1612, 4507.45, 4509.101, 4509.81, 4510.10, 4510.22, 4510.72, and 4511.191 of the Revised Code and to transmit the reinstatement fees and two dollars of the service fee collected under those sections. The registrar shall ensure that, not later than January 1, 2012, at least one deputy registrar in each county has the necessary equipment and is able to accept reinstatement fees. The registrar shall deposit the service fees received from a deputy registrar under those sections into the state bureau of motor vehicles fund created in section 4501.25 of the Revised Code and shall use the money for deputy registrar equipment necessary in connection with accepting reinstatement fees. (m) Establish such other requirements as the registrar and director consider necessary to provide a high level of service. (2) Notwithstanding division (D)(1)(j) of this section, the rules may allow both of the following: (a) The registrar to award a contract to a deputy registrar to operate more than one deputy registrar's office if determined by the registrar to be practical; (b) A nonprofit corporation formed for the purposes of providing automobile-related services to its members or the public and that provides such services from more than one location in this state to operate a deputy registrar office at any location. (3) As a daily adjustment, the bureau of motor vehicles shall credit to a deputy registrar three dollars and fifty cents for each damaged license plate or validation sticker the deputy registrar replaces as a service to a member of the public. (4)(a) With the prior approval of the registrar, each deputy registrar may conduct at the location of the deputy registrar's office any business that is consistent with the functions of a deputy registrar and that is not specifically mandated or authorized by this or another chapter of the Revised Code or by implementing rules of the registrar. (b) In accordance with guidelines the director of public safety shall
Exh. 2, p | 40 Am. Sub. S. B. No. 193 130th G.A. 41 establish, a deputy registrar may operate or contract for the operation of a vending machine at a deputy registrar location if products of the vending machine are consistent with the functions of a deputy registrar. (c) A deputy registrar may enter into an agreement with the Ohio turnpike and infrastructure commission pursuant to division (A)(11) of section 5537.04 of the Revised Code for the purpose of allowing the general public to acquire from the deputy registrar the electronic toll collection devices that are used under the multi-jurisdiction electronic toll collection agreement between the Ohio turnpike and infrastructure commission and any other entities or agencies that participate in such an agreement. The approval of the registrar is not necessary if a deputy registrar engages in this activity. (5) As used in this section and in section 4507.01 of the Revised Code, "nonprofit corporation" has the same meaning as in section 1702.01 of the Revised Code. (E)(1) Unless otherwise terminated and except for interim contracts lasting not longer than one year, contracts with deputy registrars shall be entered into through a competitive selection process and shall be limited in duration as follows: (a) For contracts entered into between July 1, 1996 and June 29, 2014, for a period of not less than two years, but not more than three years; (b) For contracts entered into on or after June 29, 2014, for a period of five years, unless the registrar determines that a shorter contract term is appropriate for a particular deputy registrar. (2) All contracts with deputy registrars shall expire on the last Saturday of June in the year of their expiration. Prior to the expiration of any deputy registrar contract, the registrar, with the approval of the director, may award a one-year contract extension to any deputy registrar who has provided exemplary service based upon objective performance evaluations. (3)(a) The auditor of state may examine the accounts, reports, systems, and other data of each deputy registrar at least every two years. The registrar, with the approval of the director, shall immediately remove a deputy who violates any provision of the Revised Code related to the duties as a deputy, any rule adopted by the registrar, or a term of the deputy's contract with the registrar. The registrar also may remove a deputy who, in the opinion of the registrar, has engaged in any conduct that is either unbecoming to one representing this state or is inconsistent with the efficient operation of the deputy's office. (b) If the registrar, with the approval of the director, determines that there is good cause to believe that a deputy registrar or a person proposing
Exh. 2, p | 41 Am. Sub. S. B. No. 193 130th G.A. 42 for a deputy registrar contract has engaged in any conduct that would require the denial or termination of the deputy registrar contract, the registrar may require the production of books, records, and papers as the registrar determines are necessary, and may take the depositions of witnesses residing within or outside the state in the same manner as is prescribed by law for the taking of depositions in civil actions in the court of common pleas, and for that purpose the registrar may issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records, or papers, directed to the sheriff of the county where the witness resides or is found. Such a subpoena shall be served and returned in the same manner as a subpoena in a criminal case is served and returned. The fees of the sheriff shall be the same as that allowed in the court of common pleas in criminal cases. Witnesses shall be paid the fees and mileage provided for under section 119.094 of the Revised Code. The fees and mileage shall be paid from the fund in the state treasury for the use of the agency in the same manner as other expenses of the agency are paid. In any case of disobedience or neglect of any subpoena served on any person or the refusal of any witness to testify to any matter regarding which the witness lawfully may be interrogated, the court of common pleas of any county where the disobedience, neglect, or refusal occurs or any judge of that court, on application by the registrar, shall compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from that court, or a refusal to testify in that court. (4) Nothing in division (E) of this section shall be construed to require a hearing of any nature prior to the termination of any deputy registrar contract by the registrar, with the approval of the director, for cause. (F) Except as provided in section 2743.03 of the Revised Code, no court, other than the court of common pleas of Franklin county, has jurisdiction of any action against the department of public safety, the director, the bureau, or the registrar to restrain the exercise of any power or authority, or to entertain any action for declaratory judgment, in the selection and appointment of, or contracting with, deputy registrars. Neither the department, the director, the bureau, nor the registrar is liable in any action at law for damages sustained by any person because of any acts of the department, the director, the bureau, or the registrar, or of any employee of the department or bureau, in the performance of official duties in the selection and appointment of, and contracting with, deputy registrars. (G) The registrar shall assign to each deputy registrar a series of numbers sufficient to supply the demand at all times in the area the deputy
Exh. 2, p | 42 Am. Sub. S. B. No. 193 130th G.A. 43 registrar serves, and the registrar shall keep a record in the registrar's office of the numbers within the series assigned. Each deputy shall be required to give bond in the amount of at least twenty-five thousand dollars, or in such higher amount as the registrar determines necessary, based on a uniform schedule of bond amounts established by the registrar and determined by the volume of registrations handled by the deputy. The form of the bond shall be prescribed by the registrar. The bonds required of deputy registrars, in the discretion of the registrar, may be individual or schedule bonds or may be included in any blanket bond coverage carried by the department. (H) Each deputy registrar shall keep a file of each application received by the deputy and shall register that motor vehicle with the name and address of its owner. (I) Upon request, a deputy registrar shall make the physical inspection of a motor vehicle and issue the physical inspection certificate required in section 4505.061 of the Revised Code. (J) Each deputy registrar shall file a report semiannually with the registrar of motor vehicles listing the number of applicants for licenses the deputy has served, the number of voter registration applications the deputy has completed and transmitted to the board of elections, and the number of voter registration applications declined. Sec. 5747.29. A nonrefundable credit is allowed against the tax imposed by section 5747.02 of the Revised Code for contributions of money made to the campaign committee of candidates for any of the following public offices: governor, lieutenant governor, secretary of state, auditor of state, treasurer of state, attorney general, member of the state board of education, chief justice of the supreme court, justice of the supreme court, or member of the general assembly. The amount of the credit for a taxable year equals the lesser of the combined total contributions made during the taxable year by each taxpayer filing a return required to be filed under section 5747.08 of the Revised Code or the amount of fifty dollars, in the case of an individual return, or one hundred dollars, in the case of a joint return. As used in this section: (A) "Candidate" has the same meaning as in division (B)(C)(3) of section 3517.01 of the Revised Code, but is limited to candidates for the public offices specified in this section. (B) "Contribution" has the same meaning as in division (B)(C)(5) of section 3517.01 of the Revised Code, but is limited to contributions of money only. The taxpayer shall claim the credit in the order required under section 5747.98 of the Revised Code. The credit for a taxable year shall not exceed
Exh. 2, p | 43 Am. Sub. S. B. No. 193 130th G.A. 44 the tax otherwise due for that year after allowing for any other credits that precede the credit under this section in that order.
SECTION 2. That existing sections 3501.01, 3501.07, 3505.03, 3505.08, 3505.10, 3506.11, 3513.01, 3513.04, 3513.05, 3513.31, 3513.311, 3513.312, 3517.01, 3517.012, 3517.02, 3517.03, 4503.03, and 5747.29 and section 3517.015 of the Revised Code are hereby repealed.
SECTION 3. Directives 2009-21, 2011-01, 2011-38, and 2013-02 issued by the Secretary of State are hereafter void and shall not be enforced or have effect on or after the effective date of this act.
SECTION 4. Notwithstanding any contrary provision of this act: (A) A group of voters who wish to form a minor political party and nominate candidates to appear on the ballot at the 2014 general election, including a group of voters who have previously been recognized as a political party by court order or a directive issued by the Secretary of State, shall submit a party formation petition that is signed by qualified electors from the state of Ohio equal in number to at least one-half of one per cent of the total vote for nominees for presidential electors at the 2012 general election and that meets all other requirements of sections 3517.01 and 3517.012 of the Revised Code, as amended by this act. (B) A political party that polls for its candidate for Governor at least two per cent but less than twenty per cent of the entire vote cast for that office at the 2014 general election remains a minor political party for a period of four years after meeting that requirement.
Exh. 2, p | 44 Am. Sub. S. B. No. 193 130th G.A.
Speaker ______of the House of Representatives.
President ______of the Senate.
Passed ______, 20____
Approved ______, 20____
Governor.
Exh. 2, p | 45 Am. Sub. S. B. No. 193 130th G.A.
The section numbering of law of a general and permanent nature is complete and in conformity with the Revised Code.
Director, Legislative Service Commission.
Filed in the office of the Secretary of State at Columbus, Ohio, on the ____ day of ______, A. D. 20____.
Secretary of State.
File No. ______Effective Date ______
Exh. 2, p | 46
EXHIBIT 3
Ohio Legislative Service Commission Final Analysis Emily E. Wendel
Am. Sub. S.B. 193 130th General Assembly (As Passed by the General Assembly)
Sens. Seitz, Eklund Reps. Buchy, Huffman, Stebelton, Wachtmann, Batchelder Effective date: February 5, 2014
ACT SUMMARY
Eliminates intermediate political parties and revises the methods and standards for determining whether an organization qualifies as a political party.
Lowers the percentage of vote required for a party to retain its status as a political party and revises the process for a new party to gain recognition by filing a party formation petition.
Specifies further reduced party formation petition and vote percentage retention requirements for a group of voters who wish to form a minor political party and nominate candidates for the 2014 general election.
Permits a new political party to be formed by filing a party formation petition not later than 125 days before a general election and permits the new political party to nominate candidates to appear on the ballot at that general election.
Requires the candidates of new political parties to file nominating petitions not later than 110 days before the general election, and specifies the circumstances under which the names of those candidates will appear on the general election ballot as the nominees of the new political party.
Permits nominees of new political parties to be designated on the ballot with the name of the new political party, exempts those candidates from the general requirement that party candidates be nominated in a primary election, and permits a new political party to fill ballot vacancies in its nominations prior to the general election.
Exh. 3, p | 1
EXHIBIT 4 IN THE SUPREME COURT OF THE UNITED STATES
LIBERTARIAN PARTY OF OHIO, KEVIN KNEDLER, CHARLES EARL and AARON HARRIS,
Petitioners,
v. Case No. A
JON HUSTED, in his Official Capacity as Ohio On Petition for Writ of Certiorari to Secretary of State, the United States Court of Appeals for the Sixth Circuit
Respondent,
STATE OF OHIO,
Intervenor-Respondent, and
GREGORY FELSOCI,
Intervenor-Respondent. ______/
APPLICATION FOR STAY AND EMERGENCY INJUNCTION ADDRESSED TO JUSTICE KAGAN
Pursuant to Supreme Court Rules 21, 22 and 23, Petitioners apply for a stay of the
United States Court of Appeals for the Sixth Circuit’s final judgment in Libertarian Party of Ohio v. Husted, No. 16-3537, slip op., (6th Cir., July 29, 2016) (hereinafter "Sixth
Circuit Decision") (Attachment 1). Petitioners also seek an emergency order directing
Respondent-Secretary to place the Libertarian Party's and Petitioner-Libertarian Party of
Ohio's (LPO) presidential ticket (Gary Johnson and Bill Weld) on Ohio's November 8,
2016 General Election ballot. See Supreme Court Rules 21, 22, and 23; 28 U.S.C. §
1
Exh. 4, p | 1 1651; McCarthy v. Briscoe, 429 U.S. 1317, 1317 n.1 (1976) (Powell, J., in chambers)
(directing that independent presidential candidate be added to ballot).
Petitioners' motion seeking a stay and emergency relief restoring LPO to Ohio's
2016 presidential ballot was denied by the District Court on June 10, 2016. See
Attachment 2. Petitioners thereafter sought this same stay and emergency relief from the
Sixth Circuit, which was rejected by the Sixth Circuit's decision on the merits on July 29,
2016. See Attachment 1. Petitioners immediately moved the Sixth Circuit on the next business day, August 1, 2016, to stay its judgment and/or award Petitioners emergency relief placing LPO's presidential ticket on Ohio's 2016 ballot pending review by this
Court. The Sixth Circuit the following day ordered a response to this motion to be filed by August 8, 2016. The Sixth Circuit denied Petitioners' motion for stay and emergency relief on August 22, 2016. See Attachment 3.
Ohio law provides that presidential ballots must be certified by the Secretary of
State 70 days before the general election. OHIO REV. CODE § 3505.01(A)(1). According to the Secretary's election calendar, this date falls on August 30, 2016. Because of this deadline, the closely approaching November 8, 2016 election, and Ohio's plan to finalize ballots well in advance,1 Petitioners ask this Court for emergency relief restoring LPO and its Johnson/Weld ticket to Ohio's presidential ballot. This emergency relief will restore the status quo ante as it existed before Ohio passed the legislation (S.B. 193) being challenged here. This relief is not available from any other court. See Supreme
Court Rule 23.3.
1 Ohio also provides for early voting, which means ballots may be cast up to 35 days in advance of the November 8, 2016 election. Overseas ballots, moreover, must be sent 45 days before the election.
2 Exh. 4, p | 2 STATEMENT OF JURISDICTION
Jurisdiction in the United States District Court for the Southern District of Ohio was proper under 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a). Jurisdiction over the final judgment of the District Court denying relief was proper in the United States Court of
Appeals for the Sixth Circuit under 28 U.S.C. § 1291. Jurisdiction over the final judgment of the Sixth Circuit is proper in this Court under 28 U.S.C. § 1254(1).
STATEMENT OF THE CASE
Gary Johnson and Bill Weld form the 2016 presidential ticket for the Libertarian
Party. The Johnson/Weld ticket has been polling between 10 and 13% in national polls.
See Josh Katz, Can Gary Johnson, the Libertarian Nominee, Swing the Election?, N.Y.
2 TIMES, Aug. 4, 2016; Ohio's disgraceful impediments to Libertarian Party and other third parties: editorial, CLEVELAND.COM, Aug. 12, 2016 (observing that Johnson was polling 12% and offering that "[t]o bar a candidate drawing that kind of interest from voters would speak volumes about the flaws and unfairness of Ohio's law on third- party ballot access").3 Many experts believe that regardless of whether the ticket prevails in particular states, it will draw significant support from both the Republican and
Democratic presidential tickets across the country. Whether the ticket’s presence on ballots will change the outcome of the election is anyone's guess. Whether the ticket’s absence from ballots will alter the outcome of the election is also unknown. What is clear
2 http://www.nytimes.com/2016/08/04/upshot/can-gary-johnson-the-libertarian-nominee- swing-the-election.html (last visited Aug. 4, 2016).
3http://www.cleveland.com/opinion/index.ssf/2016/08/ohios_disgraceful_impediments.ht ml (last visited Aug. 13, 2016).
3
Exh. 4, p | 3 is that Republicans believed that LPO’s absence from Ohio’s ballots would increase
Republican candidates’ electoral odds in future elections.
Ohio is a battleground state coveted by both major parties. Presently, the Ohio ballot will not include the LPO’s Johnson/Weld presidential ticket in November. The
Ohio Republican Party (ORP) successfully orchestrated the removal of LPO from Ohio's ballot. It did so first by dissolving LPO as a political party by passing a discriminatory ballot access law known as S.B. 193. Next, once it appeared that S.B. 193 would not suffice, ORP orchestrated the removal of LPO's top-of-the-ticket candidate (Charlie Earl) from Ohio's 2014 gubernatorial ballot. Without a gubernatorial candidate in 2014, ORP knew, LPO could not meet Ohio's vote test and would be excluded from future ballots.
See Libertarian Party of Ohio v. Husted, 751 F.3d 403, 424 (6th Cir.), stay denied, 134 S.
Ct. 2164 (2014). ORP spent hundreds of thousands of dollars to advance this political espionage.
Before its removal from Ohio's ballot, LPO participated in Ohio's electoral process as a recognized political party. LPO ran candidates for local, state-wide, and federal office (including President in 2008 and 2012) in both Ohio's primary and general elections. In the most recent non-presidential election year (2014), LPO's two state-wide candidates each won approximately 5% of the total votes cast in their respective elections.
LPO's right to ballot access was won through years of successful litigation. In
2006 the Sixth Circuit ruled that Ohio's access law for minor parties violated the First and
Fourteenth Amendments -- thus restoring LPO to the ballot. See Libertarian Party of
Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006). A second suit filed two years later,
4
Exh. 4, p | 4 Libertarian Party of Ohio v. Brunner, 462 F. Supp.2d 1006 (S.D. Ohio 2008), invalidated a 2008 measure that once again removed LPO from the ballot. A third suit commenced in 2011 invalidated yet another Ohio law that removed LPO from Ohio's ballot. See
Libertarian Party of Ohio v. Husted, 497 Fed. Appx. 581 (6th Cir. 2012). Because of these successful suits, LPO remained on Ohio's ballot between 2008 and 2013.
On November 6, 2013, Ohio once again acted to remove LPO from Ohio's ballot.
It passed legislation, S.B. 193, which (Republican) Governor Kasich immediately signed, stripping LPO of its recognized ballot status. S.B. 193 was timed to take effect on
February 5, 2014, the day LPO was otherwise required to qualify its candidates for its primary. S.B. not only immediately dissolved LPO as a party, it also stripped it of its pre-existing right to hold a primary. LPO could only re-qualify for the 2014 general election ballot by gathering over 30,000 signatures from registered voters within a five- month period. But it would still not have a primary. And by stripping LPO of its primary,
S.B. 193 denied to LPO the only mechanism Ohio offers for registering party members.
LPO is required under S.B. 193 to compete with established parties – which hold primaries and have official members – as a member-less political party.
S.B. 193 was a partisan measure passed to benefit Republicans; it was quickly signed by Governor Kasich because it helped insure his re-election. No Democrats joined the six Republicans who co-sponsored the bill, and only one Democrat in either Chamber voted for it. Republican support, in contrast, was enormous in both Chambers. In the
Ohio Senate, 20 of 23 Republicans supported it. In the Ohio House, 50 of 59 Republicans voted for it.
5 Exh. 4, p | 5 S.B. 193 made several changes to Ohio's election laws to achieve its desired effect. Sections 1 and 2 of S.B. 193 amended OHIO REV. CODE § 3517.01 to require that new political parties file with the Secretary "a party formation petition" supported by
"qualified electors equal in number to at least one percent of the total vote for governor
[or president] at the most recent election ...." Of this total, 500 must come from each of
"a minimum of one-half" of Ohio's congressional districts. Id. The petition and supporting signatures are due 125 days before the general election. Id. Should a new party (like LPO) not win 3% of the vote for Governor or President at the election following its successful petition, meanwhile, it is once again dissolved and must begin anew.
Sections 1 and 2 of S.B. 193 amended OHIO REV. CODE § 3517.012 to require that the candidates of these new political parties (including LPO) file their own nominating petitions within fifteen days of the party's formation. These nominating petitions must be supported by signatures collected from qualified electors who are not members of any other political party. Because (unlike established parties) a new party does not have official members, only unaffiliated voters (those who have not voted in a primary within two years) may sign a new party's candidate's nominating petitions. An established party's candidate, in contrast, may obtain signatures from both unaffiliated voters and that party's members (who voted in the party's primary within two years).
LPO challenged S.B. 193 on November 8, 2013, two days after it was signed by
Governor Kasich. LPO pressed two federal challenges and made one state-law argument.
Under federal law, LPO argued first that S.B. 193's tardy adoption and immediate application to the 2014 election cycle violated the Due Process Clause; next, it asserted
6
Exh. 4, p | 6 that S.B. 193's creation of two classes of recognized political parties -- those with official members and those without -- violated the Equal Protection Clause. LPO's state-law challenge proceeded under Ohio's Constitution.
LPO named the Secretary of State as a defendant under the doctrine of Ex parte
Young, 209 U.S. 123 (1908). Because the State of Ohio had by then intervened, LPO added its state-law claim against Intervenor-Ohio and the Secretary. Although both immediately claimed Eleventh Amendment immunity relative to LPO's state-law claim, neither asserted immunity to LPO's federal challenges to S.B. 193. Both the State of Ohio and the Secretary actively defended S.B. 193 under the federal Constitution.
On January 7, 2014, the District Court enjoined application of S.B. 193 to Ohio's
2014 election based on LPO's Due Process Clause claim. It reserved ruling on the validity of S.B. 193 beyond 2014. It would not issue a final decision rejecting LPO's
Equal Protection Clause challenge and dismissing LPO's state-law claim, however, until
May 20, 2016. By that time LPO had already been excluded from Ohio's 2016 primary.
Having won injunctive relief restoring it to the 2014 ballot, LPO qualified several candidates on February 5, 2014 for Ohio's 2014 primary. Not content with its setback at the hands of the District Court, however, ORP concocted a plan to remove LPO's gubernatorial candidate (Charlie Earl) from LPO's primary ballot. Without a gubernatorial candidate, ORP knew, LPO could not use the 2014 General Election to re- qualify as a political party. It would have to use S.B. 193's harsh requirements.
Using an LPO member (Gregory Felsoci), and with the assistance of Kasich's
Campaign staff, ORP "duped" Felsoci into filing an administrative protest against Earl
7
Exh. 4, p | 7 with the Secretary of State. Because of a technical violation4 of Ohio's circulator law, see
Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014), this protest proved successful. Earl was removed from LPO's primary ballot and LPO's qualified ballot status expired after the 2014 general election.
On March 7, 2014 (the day Earl was removed) LPO amended its federal
Complaint to challenge Earl's removal. Felsoci (and surreptitiously the ORP) intervened to insure that Earl's federal challenge failed. No one other than ORP and its agents knew at this time that ORP and the Kasich Campaign were behind Earl's removal. Some, like the District Court and Sixth Circuit, suspected this was the case. The District Court stated that Felsoci was likely a "guileless dupe" of Ohio Republicans, District Court Opinion and Order, RE 80, PAGEID # 2148, and the Sixth Circuit agreed that "Felsoci likely is the tool of the Republican Party." Libertarian Party of Ohio, 751 F.3d at 409. No one knew for sure, however, because ORP did not disclose to Felsoci that it was paying his lawyers.
Over the course of eighteen months, a half dozen discovery orders, see, e.g.,
Libertarian Party of Ohio v. Husted, 302 F.R.D. 472, 475 (S.D. Ohio 2014) (directing
Felsoci to sit for his first deposition); Libertarian Party of Ohio v. Husted, 2014 WL
3928293 at *4 (S.D. Ohio 2014) (directing Felsoci to produce invoices indentifying who was paying his lawyers), and what the Sixth Circuit described as a "complicated procedural history," Sixth Circuit Decision at 11 n.1 (Attachment1), LPO unraveled who
4 One of Earl's circulators, who was paid by LPO, did not identify himself as being "employed" by LPO. LPO itself had properly disclosed the payments pursuant to Ohio law, but the circulator, believing that as an independent contractor he was not an employee of LPO, did not. Even the administrative hearing officer (Smith) was confused by this distinction.
8 Exh. 4, p | 8 was behind Felsoci's protest. Without knowing who was behind it, Felsoci had been enlisted by ORP and the Kasich Campaign to challenge Earl. The bill for Felsoci's lawyer's services totaled almost $600,000 by March of 2015. ORP has now paid at least
$300,000 of this bill.
The District Court on May 20, 2016 concluded that ORP was not engaged in state action and therefore could not violate the Constitution. LPO took an immediate appeal and moved for an emergency injunction arguing that (1) S.B. 193's discrimination violated Equal Protection, (2) ORP engaged in state action and separately violated the
Constitution by orchestrating Earl's removal, and (3) the Eleventh Amendment did not deny the District Court of jurisdiction. The Sixth Circuit ordered expedited briefing. On this same day the Franklin County Court of Common Pleas, in an action that had been filed by LPO following the District Court's dismissal of LPO's state-law claim, ruled that
S.B. 193 did not violate Ohio's Constitution.
The Sixth Circuit on July 29, 2016 rejected LPO's arguments. Without addressing the Eleventh Amendment it assumed that it had jurisdiction over LPO's state-law claim and ruled res judicata precluded it. It further ruled that S.B. 193's facial discrimination was constitutional and that ORP was not engaged in state action. See Attachment 1.
ARGUMENT
In order to obtain a stay pending certiorari, "an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay." Hollingsworth v. Perry, 130 S. Ct. 705, 710 (2010) (per curiam). "In close cases
9
Exh. 4, p | 9 the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent." Id.
To win emergency relief pending certiorari, the applicant must persuade the
Circuit Justice (or Court) that "there is a fair prospect that five Justices will conclude that the case was erroneously decided below," Lucas v. Townsend, 486 U.S. 1301, 1304
(1988) (Kennedy, J., in chambers) (enjoining election), and that "irreparable harm will likely result from the denial of equitable relief." Id.
I. Petitioners Are Reasonably Likely to Obtain Review and There is a Fair Prospect a Majority Will Reverse.
"Ohio is among the most restrictive, if not the most restrictive, states in granting minor parties access to the ballot." Libertarian Party of Ohio v. Blackwell, 462 F.3d 579,
589 (6th Cir. 2006). See also Williams v. Rhodes, 393 U.S. 23 (1968) (striking down
Ohio law); Anderson v. Celebrezze, 460 U.S. 780 (1983) (striking down Ohio law).
Ohio's efforts to stifle competition have been repeated and continue to this day. S.B. 193 was passed for just this reason. Earl was removed for this reason.
A. S.B. 193 Violates the Equal Protection Clause.
While "every minor difference in the application of laws to different groups" does not violate the Constitution, Williams v. Rhodes, 393 U.S. 23, 30 (1968), this Court has
"held many times that invidious distinctions cannot be enacted without a violation of the
Equal Protection Clause." Id. This principle is today included in the framework constructed by Anderson v. Celebrezze, 460 U.S. 790, 793-94 (1983), and Burdick v.
Takushi, 504 U.S. 428, 434 (1992), to judge restrictions on ballots:
when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable,
10
Exh. 4, p | 10 nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State's important regulatory interests are generally sufficient to justify” the restrictions.
(Citations omitted and emphasis added).
In Anderson, 460 U.S. at 793, this Court described "[a] burden that falls unequally on new or small political parties or on independent candidates" as the quintessential example of discrimination requiring close scrutiny. Such a restriction "discriminates against those candidates and—of particular importance— against those voters whose political preferences lie outside the existing political parties."
Id. at 794.
As explained below, the Sixth Circuit ignored the relevance of S.B. 193's discrimination against "new [and] small political parties" and incorrectly employed deferential review. Its decision runs afoul of this Court's decisions in Williams and
Anderson. Its decision contradicts holdings in Sister Circuits.
1. S.B. 193 Supplies Established Parties With Electoral Advantages Not Made Available to New Parties.
S.B 193 discriminates against new parties in two ways: first, it "weds" voters to the established parties for two years, and second, it selectively supplies the established parties with official membership information. Neither advantage is available to the new parties that must compete against the established parties in the general election.
The Sixth Circuit judged S.B. 193's denial of official membership to new parties in a vacuum, as if it did not discriminate at all. It therefore ignored the significant political advantage provided established parties. The Sixth Circuit stated:
The Libertarian Party has not articulated ... how this framework burdens its ability to recruit members, access the general-election ballot, or engage in other modes of
11 Exh. 4, p | 11 political affiliation and expression, nor has the Libertarian Party explained how this places minor parties at a disadvantage relative to major parties.
Sixth Circuit Decision at 25 (Attachment 1). After all, it stated, "only approximately 1.3 million Ohioans cast primary ballots in 2014, out of over 7.7 million registered voters.
This leaves at least 83 percent of all registered voters' in Ohio unaffiliated and 'able to sign petitions for' other candidates." Id.
This logic ignores the fact that the established parties have the exact same access to unaffiliated voters. The established parties' and new parties' access to unaffiliated voters is identical. But because of S.B. 193, established parties have something new parties do not -- the identities of, and exclusive access to, their own "wedded" members.
They are given what this Court has agreed is a "significant subsidy," Socialist Workers
Party v. Rockefeller, 314 F. Supp. 984, 995 (S.D.N.Y.), summarily aff'd, 400 U.S. 806
(1970), one not made available to other political parties.
The Sixth Circuit asserted that LPO misunderstands and "misstates Ohio law."
Sixth Circuit Decision at 23 (Attachment 1. "As the State of Ohio and Secretary Husted argue," it explained, "'[t]hese statutes do not govern party registration or affiliation in general,' but rather refer only to 'party affiliation' for a specific purpose: establishing who may vote in a partisan primary." Id.
If LPO misunderstands Ohio law, then so does everyone else in Ohio, including
Ohio's Secretary of State. In response to the question, "Do I declare my political party affiliation when I register?", his web page states: "No. Under Ohio election law, you declare your political party affiliation by requesting the ballot of a political party in a
12
Exh. 4, p | 12 partisan primary election." See JON HUSTED, OHIO SECRETARY OF STATE, FREQUENTLY
5 ASKED QUESTIONS: GENERAL VOTING & VOTER REGISTRATION (2015).
More importantly, contrary to the Sixth Circuit's understanding, Ohio's use of primaries to register voters has less to do with "establishing who may vote in a partisan primary" than it does with (1) "wedding" voters to the established parties and (2) selectively supplying them with information. Any qualified voter in Ohio, after all, can pull any party's ticket at a primary and instantly change his or her party membership.
In terms of wedding voters to their parties, Ohio's primary membership mechanism provides that a voter who establishes party membership by voting in a primary cannot thereafter protest, OHIO REV. CODE § 3513.05, circulate, id., or sign, id., the nominating papers of another party's candidate. Nor can that voter circulate the nominating petition of a party that seeks to gain access under S.B. 193, see OHIO REV.
CODE § 3517.012(B)(2) (as amended by S.B. 193), or run as either an independent or new party's candidate. See Morrison v. Colley, 467 F.3d 503, 508 (6th Cir. 2006).
New parties do not have these same wedded members. During the election cycle in which they first qualify under S.B. 193, therefore, they suffer a terrible disadvantage.
True, they can approach unaffiliated voters for support, but they do not have what the established parties have -- access both to unaffiliated voters and official members. New parties are thus placed at a state-created disadvantage. They cannot use the registered members of the established parties to circulate their party petitions under the terms of
S.B. 193, and once formed their candidates cannot use the members of the established
5 http://www.sos.state.oh.us/sos/elections/Voters/FAQ/genFAQs.aspx#declare (last visited Aug. 8, 2016).
13
Exh. 4, p | 13 parties to circulate or sign their nominating petitions. The established parties' candidates, meanwhile, may use both the pool of unaffiliated voters and official party members.
In addition to providing established parties with official members, S.B. 193 provides the established parties an additional, critical informational advantage. Because of S.B.193, established parties have official membership lists that are created and provided to it by the State. New parties do not. This information is a "significant subsidy" to the established parties. Its discriminatory denial severely burdens political newcomers (like LPO).
Membership lists are extremely important in American politics. They can even be sold in Ohio. See OHIO REV. CODE § 3517.19. Contrary to the Sixth Circuit's claim that
LPO "ha[d] not identified any provision of Ohio law that provides information on a differential basis to major and minor parties," Sixth Circuit Decision at 26 (Attachment
1), S.B. 193 does just that. Following enactment of S.B. 193, only established parties have official members and only established parties are provided official membership lists.
2. Discriminatory Restrictions Against Minor Parties and Candidates Violate Equal Protection.
Because of the protection Anderson/Burdick offers "new or small political parties," lower courts have applied searching scrutiny to invalidate restrictions that discriminate against minor parties -- even when the same restrictions, if neutral, would pass constitutional scrutiny. In Reform Party of Allegheny County v. Allegheny County
Department of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc), for example, the Third
Circuit addressed whether an anti-fusion rule, which is constitutional under Timmons v.
Twin Cities Area New Party, 520 U.S. 351 (1997), could be discriminatorily applied to
14
Exh. 4, p | 14 minor parties. Applying intermediate scrutiny, 174 F.3d at 314, the Third Circuit ruled it was not:
because of the discriminatory aspects of the Pennsylvania statutes, the burdens imposed by them on voters and on political parties are more onerous than those involved in Timmons. In Timmons, the asserted burdens existed in the context of an across-the-board ban on fusion. In the instant case, the burden is exacerbated because Pennsylvania has allowed the major parties to cross-nominate but has disallowed minor parties from doing the same.
Id. at 315 (emphasis added).
In Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992), Florida required that minor party candidates for President submit signatures in order to access the ballot and also required that they pay signature-verification fees. The signature collection requirement and fee had both been previously upheld. Id. at 1540. Still, Florida's discriminatorily allowing major-party candidates to obtain fee-waivers led the Eleventh
Circuit to invalidate the discriminatory treatment. In doing so, the Eleventh Circuit effectively employed intermediate scrutiny; it demanded that "important" state interests, id. at 1546, be served by the discriminatory treatment. Further, the discriminatory treatment must be necessary: "We are not persuaded that the unequal availability of the fee-waiver provision is at all necessary to advance the boilerplate interests put forward by the state." Id. at 1547.
In contrast to the searching scrutiny taken by the Third and Eleventh Circuits, the
Sixth Circuit here ignored S.B. 193's discrimination, trivialized the discriminatory burdens it places on LPO, embraced Ohio's claim to "legitimate" ends, and never inquired whether S.B. 193's discrimination was necessary. See Sixth Circuit Decision at 26-28. It employed the same measure of scrutiny used by the District Court -- deferential rational basis review. The Sixth Circuit's deferential approach conflicts with this Court's
15
Exh. 4, p | 15 Anderson/Burdick formula and the analyses employed by the Third and Eleventh
Circuits. Certiorari is proper and emergency relief warranted.
3. The Second and Tenth Circuits Have Recognized that Discriminatory Membership Laws Severely Burden First Amendment Rights.
The Sixth Circuit's decision conflicts with decisions of the Second and Tenth
Circuits. It is also at odds with this Court's decision in Socialist Workers Party v.
Rockefeller, 314 F. Supp. 984 (S.D.N.Y.), summarily aff'd, 400 U.S. 806 (1970), which sustained the lower court's invalidation of New York's discriminatory membership law.
There, a three-judge District Court invalidated New York's free supply of membership lists to established political parties (which had won more than 50,000 votes for governor) but not others. 314 F. Supp. at 995. Minor parties had to pay. The District Court concluded:
the effect of these provisions, when considered with other sections of the Election Law, is to deny independent or minority parties which have succeeded in gaining a position on the ballot but which have not polled 50,000 votes for governor in the last preceding gubernatorial election an equal opportunity to win the votes of the electorate.
Id. "The State has shown no compelling state interest nor even a justifiable purpose for granting what, in effect, is a significant subsidy only to those parties which have least need therefor." Id. (citation omitted).
The Second Circuit reached this same result a generation later in Schulz v.
Williams, 44 F.3d 48 (2d Cir. 1994), after New York re-passed essentially the same law:
[t]he reasons why the courts found the provision invalid in 1970 remain true today and apparently require repeating: It is clear that the effect of these provisions ... is to deny independent or minority parties ... an equal opportunity to win the votes of the electorate.
Id. at 60 (citation omitted).
16 Exh. 4, p | 16 Applying these precedents, the Second Circuit in Green Party of New York State v. New York State Board of Elections, 389 F.3d 411 (2d Cir. 2004), blocked enforcement of a New York membership law that distinguished between "political parties" which won at least 50,000 votes in the last gubernatorial election, and "political organizations" which had not. Both could run candidates, but "[a] number of unique benefits accrue[d] to a
Party [that had won more than 50,000 votes]." Id. at 415. Among the benefits:
only a [Political] Party can automatically place a candidate on the ballot for statewide election without first undertaking the burden of a special petition drive in order to do so. Further, a [Political] Party may choose their statewide candidate in a closed primary election, while an independent organization may not. ... New York's enrollment scheme allows registered voters to enroll in [Political] Parties, and requires the publication of voter enrollment information to facilitate such identification.
Id. at 415-16 (citations omitted).
Like Ohio now, New York argued that it relied on voter registration merely to conduct its closed primaries. Voters would check the appropriate political party box on voter registration forms and then participate in that party's primary. "There was no box labeled 'other,' or any other way for a voter to enroll in or express an affiliation with another political organization." Id. at 416.
Although recognizing that New York's schemed facilitated its use of primaries, the Second Circuit disagreed that it did nothing else: "Parties use these enrollment lists to conduct closed primaries, but they also use the lists for many other purposes, such as identifying new voters, processing voter information, organizing and mobilizing Party members, fundraising, and other activities that influence the political process." Id. It continued:
We think the burdens imposed on plaintiffs' associational rights are severe. ... [W]hile the enrollment lists at issue here may have originally been intended solely
17 Exh. 4, p | 17 for use in facilitating closed primary elections, we are required to look at the totality of the voter enrollment scheme in its present form. Currently, [Political] Parties use these lists for a number of different activities essential to their exercise of First Amendment rights
389 F.3d at 420.
The Second Circuit emphasized how important this state-supplied information is:
“access to minimal information about political party affiliation is the key to successful political organization and campaigning.” Id. (citation omitted). "If an independent body does not have access to other information concerning who is affiliated with its party," the
Second Circuit stated, "it will be unable to determine from the word 'unaffiliated' whether a particular unaffiliated voter is or is not a supporter of its organization." 389 F.3d at 421.
Because "they are smaller, less developed—and hence less financially established parties," the Court explained, "their situation [is] even more difficult." Id.
"As Anderson instructs, such limitation of opportunity for independent voters reduces diversity and competition in the marketplace of ideas." Id. (citing Anderson, 460 U.S. at
794).
Green Party is virtually indistinguishable from the present case. The only difference is that New York uses voter registration forms to link voters with political parties; Ohio uses primaries. Although New York's membership preference was put in place to facilitate primaries, it still placed minor parties at an unconstitutional political disadvantage. The same is true in Ohio.
This same result was reached in Baer v. Meyer, 728 F.2d 471, 475 (10th Cir.
1984), where the Tenth Circuit invalidated a Colorado law that "prevented persons other than those affiliated with the two major political parties from obtaining and using such information in a manner similar to that of the major parties." This discrimination flowed
18
Exh. 4, p | 18 from Colorado's refusal to allow qualified minor political parties to register members:
"[t]he electors of the Democrats and Republicans can designate their party affiliation by name on the voter registration form. Plaintiffs [the Citizens and Libertarian Parties] are required to register as 'unaffiliated.'" Id. The Tenth Circuit observed that "while the
Citizens and Libertarian parties are permitted the same access to voter registration lists, they are unable to determine from the welter of 'unaffiliateds' which of those unaffiliated voters are in fact supporters of their political organizations." Id. The discriminatory advantage violated the First and Fourteenth Amendments.
The Sixth Circuit's decision cannot be squared with the Second and Tenth
Circuits' decisions in Green Party and Baer. Denying to competing parties the information that is created for and supplied to established parties constitutes a severe burden. Forcing new parties to rummage through lists of unaffiliated voters for support, while providing established parties official lists of their members, violates Equal
Protection.
Contrary to the Sixth Circuit's conclusion, official party membership is extremely important. Both the Second and Tenth Circuits have made this clear. This Court in
Rockefeller affirmed that these lists provide "significant subsidies" to established parties.
Even though unaffiliated voters remain options, having to sort through them to identify which voters are sympathetic presents a herculean task. See Baer. Ohio's discriminatory denial of this "significant subsidy" constitutes a severe burden as a matter of law.
B. ORP Engaged in State Action.
The Sixth Circuit concluded that ORP -- the dominant political party in Ohio -- does not play an "integral part" in Ohio's primary process. "Here, the Ohio Republican
19
Exh. 4, p | 19 Party has not been 'assigned an ‘integral part’ in the election process' that is usually performed by the state." Sixth Circuit Decision at 15 (citations omitted) (Attachment 1).
ORP was therefore not engaged in state action when it clandestinely recruited and funded an unwitting LPO member to protest LPO's top-of-the-ticket candidate.
The Sixth Circuit's conclusion contradicts this Court's precedents and conflicts with decisions of state and federal courts. Ohio, no less than Texas in Smith v. Allwright,
321 U.S. 649 (1944), and Virginia in Morse v. Republican Party of Virginia, 517 U.S.
186 (1996) (plurality), has assigned to the two established parties (including the dominant
ORP) an "integral role" in the primary process. Just like Texas in Allwright, Ohio affords its two major parties primaries. ORP benefits immensely from this -- even more so following enactment of S.B. 193. Its successful primary candidates are automatically included on the general election ballot. It is provided free of charge official, wedded membership. It has access to official membership lists. Its successful primary candidates have a disproportionate chance of winning the general election.
In Allwright, where the Democratic Party of Texas had forbade African-
Americans from voting in its primaries, facts like these proved controlling:
If the state requires a certain electoral procedure, prescribes a general election ballot made up of party nominees so chosen and limits the choice of the electorate in general elections for state offices, ... it endorses, adopts and enforces the discrimination against Negroes, practiced by a party entrusted by Texas law with the determination of the qualifications of participants in the primary.
Id. at 664. "This grant to the people of the opportunity for choice is not to be nullified by a state," the Court ruled, "through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied." Id.
20
Exh. 4, p | 20 Terry v. Adams, 345 U.S. 461, 469 (1953) (plurality), which invalidated the Texas
Jaybirds' racial discrimination in voting, expanded on this logic: "It violates the Fifteenth
Amendment for a state, by such circumvention, to permit within its borders the use of any device that produces an equivalent of the prohibited election." The Court observed that
"[t]he only election that has counted in this Texas county for more than fifty years has been that held by the Jaybirds from which Negroes were excluded." Id. Further, "[i]t is immaterial that the state does not control that part of this elective process which it leaves for the Jaybirds to manage." Id. "The Jaybird primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern in the county." Id.
Ohio now is no different from Texas then. ORP has been granted the same political perks that were afforded the Democratic Party in Texas. Its candidates enjoy automatic ballot access and disproportionately win general elections. As in Allwright,
321 U.S. at 664, Ohio's "grant to the people of the opportunity for choice is not to be nullified ... through casting its electoral process in a form which permits a private organization" to violate constitutional norms. Had ORP targeted Earl because of his race, no one would doubt that its actions violated the Fifteenth Amendment. That ORP violated the First Amendment instead does not change its "integral part" in Ohio's election machinery.
This Court most recently endorsed this understanding in Morse. Borrowing from
Allwright and Terry, Morse held that section 5 of the Voting Rights Act applies to major party conventions as well as their primaries. Justice Stevens, writing for a plurality, first rejected the notion that Allwright and Terry only apply to racial disenfranchisement. Id. at
21 Exh. 4, p | 21 218. Next, Justice Stevens focused on the "host of special privileges [Virginia gave] to the major parties ...." Id. at 224 n.36. "It is perfectly natural, therefore, to hold that
[Virginia] seeks to advance the ends of both the major parties." Id.
Justice Breyer, together with Justices O'Connor and Souter, joined Justice
Stevens' judgment to form a majority. Id. at 235 (Breyer, J., concurring). Justice Breyer agreed that because the Republican Party used “a nominating convention that resembles a primary about as closely as one could imagine,” id., and “avail[ed] itself of special state- law preferences, in terms of ballot access and position,” it was a state actor. Id.
In terms of Ohio's primary, there can be little doubt that ORP plays an "integral" role under Justices Stevens' and Breyer's analyses. Its successful candidates automatically appear on Ohio's general ballot -- and usually win. ORP has been awarded a host of
"special state-law privileges." Its members control the Ohio General Assembly, hold the
Governor's Mansion, and in 2014 won every state-wide office. Republicans passed S.B.
193 and Republicans removed Earl from the 2014 ballot.
Lower courts have routinely ruled that a major party's selection or removal of a candidate from its primary ballot -- even if accidental -- constitutes state action. In Texas
Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006), for example, the Texas
Republican Party attempted to remove its candidate (who had won its primary) from the general election ballot. Tom DeLay, incumbent Representative in the House, had moved to Washington, it claimed, and was therefore no longer eligible for the seat under Article
I, § 2 of the Constitution. Id. at 585.
The threshold question in this dispute, of course, was whether the Constitution even limited the Texas Republican Party's decision. The Fifth Circuit noted that "[t]here
22
Exh. 4, p | 22 is no dispute that when Benkiser [the Texas Republican Party chair] applied the ineligibility statute to DeLay she did so as a state actor." Id. at 589 n.9 (citing Allwright,
321 U.S. at 663). The Fifth Circuit was plainly correct. Selections and removals of candidates by major parties have long been considered state action. See, e.g., Rice v.
Elmore, 165 F.2d 387, 391 (4th Cir. 1947) ("When these [party] officials participate in what is a part of the state's election machinery, they are election officers of the state");
Bentman v. Seventh Ward Democratic Executive Committee, 421 Pa. 188, 203, 218 A.2d
261, 269 (1966) (holding that party's conduct was state action).
In Wilson v. Hosemann, 185 So.3d 370 (Miss. 2016), to cite a more recent example, a Democratic Party candidate (Wilson) for President filed qualifying papers with the Mississippi Democratic Party in order to run in its 2016 primary. The Party mistakenly rejected his papers and failed to inform him of his rejection. Id. at 371, 373.
The Mississippi Supreme Court ruled that this mistake violated the federal Due Process
Clause:
the Party's failure to timely inform Dr. Wilson that it found his petition insufficient and to timely respond to his attorney's request to reconsider, coupled with the ... statutory deadlines ..., denied Dr. Wilson a meaningful opportunity to be heard by the Party and deprived him of due process of law.
Id. at 375. See also Constitution Party of Pennsylvania v. Aichele, 757 F. 3d 347, 367
(3d Cir. 2014) ("The Commonwealth cannot hide behind the behavior of third parties when its officials are responsible for administering the election code that empowers those third parties to have the pernicious influence alleged in the Complaint.").
Were ORP to have excluded, removed or sabotaged one of its own candidates
(overtly or clandestinely), there can be little doubt that its action would be judged by the
Constitution. ORP is just as "integral" to Ohio's election machinery and just as much a
23
Exh. 4, p | 23 state actor when it directs its espionage at another party's primary candidate. Its misbehavior is still state action.
The Sixth Circuit relied on a District Court opinion, Nader v. McAuliffe, 593 F.
Supp.2d 95 (D.D.C.), aff'd on other grounds, 2009 WL 4250615 *1 (D.C. Cir. 2009), to bolster its conclusion. See Sixth Circuit Decision at 15 (Attachment 1). In Nader the
District Court concluded that because private actors could use protest procedures a political party's doing so could not be considered state action. Allwright, Terry and
Morse all prove that such a proposition is unsound. Those cases, after all, involved major parties. No court has ruled that the Socialist, Green, Libertarian or Constitution Parties engage in state action under similar circumstances. See Bode v. National Democratic
Party: Apportionment of Delegates to National Political Conventions, 88 HARV. L. REV.
1460, 1463 (1972) ("several lower courts have agreed ... that the limitation of effective choice resulting from nomination by a major party is such a significant part of the election process that constitutional standards should apply") (emphasis added). That any of these minor parties might do what a major party does without engaging in state action hardly means that major parties must be considered private.
The question is not who could have removed a candidate or held a convention; it is who did remove the candidate or minor party. The Sixth Circuit's analysis contradicts these many precedents. Certiorari is proper and emergency relief warranted.
C. Whether Courts Must First Resolve Eleventh Amendment Immunity Before Addressing the Merits of a Case Has Created a Circuit Split.
The District Court on October 14, 2015 ruled (in a decision that became final on
May 20, 2016) that the Eleventh Amendment denied it jurisdiction over LPO's state-law challenge to S.B. 193. LPO's attempt to take an immediate appeal from this non-final
24
Exh. 4, p | 24 decision was dismissed by the Sixth Circuit. See Libertarian Party of Ohio v. Husted, 808
F.3d 279 (6th Cir. 2015). LPO then in January 2016 filed the same state-law challenge in state court. The state court on June 7, 2016, the day the Sixth Circuit expedited review, rejected LPO's state-law claim.
LPO included in its appeal to the Sixth Circuit a challenge to the District Court's dismissal under the Eleventh Amendment. The question LPO presented was whether
Ohio's intervention and subsequent litigation conduct waived the Eleventh Amendment immunity it enjoyed under Pennhurst State School & Hospital v. Halderman, 465 U.S.
89, 120 (1984). See Lapides v. Board of Regents, 535 U.S. 613, 619 (2002). The
Secretary and Ohio following the state court's action invoked res judicata as an affirmative defense. The Sixth Circuit, following Circuit precedent, avoided the Eleventh
Amendment and resolved Respondents' affirmative defense in their favor. See Sixth
Circuit Decision at 29-30 (Attachment 1).
The Circuits are split over whether the approach taken by the Sixth Circuit is proper. At least three Circuits have ruled under Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 101 (1998), that Eleventh Amendment issues are jurisdictional and must be decided before the merits of a case. See United States v. Texas Tech
University, 171 F.3d 279, 285-86 (5th Cir. 1999); Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133 (9th Cir. 2012); Thompson v. Colorado, 278 F.3d 1020,
1024 (10th Cir. 2001). At least five Circuits have ruled to the contrary. See United States ex rel. Long v. SCS Business & Technical Institute, 173 F.3d 890, 898 (D.C. Cir. 1999);
Parella v. Retirement Board of Rhode Island Employee Retirement System, 173 F.3d 46,
53 (1st Cir. 1999); In re Hechinger Investment Co. of Delaware, 335 F.3d 243, 250 (3d
25 Exh. 4, p | 25 Cir. 2003); Strawser v. Atkins, 290 F.3d 720, 730 (4th Cir. 2002); Floyd v. Thompson,
227 F.3d 1029, 1035 (7th Cir. 2000); Gordon v. City of Kansas City, 241 F.3d 997, 1005 n.7 (8th Cir. 2001).
Both the Second and Eleventh Circuits appear to have reached internal splits.
Compare Ret. Sys. of Alabama v. J.P. Morgan Chase & Co., 386 F.3d 419, 431 (2d
Cir.2004) (addressing Eleventh Amendment first), with Dotson v. Griesa, 398 F.3d 156,
177 (2d Cir.2005) (addressing statutes first); contrast Seaborn v. Florida Department of
Corrections, 143 F.3d 1405, 1407 (11th Cir. 1998) (stating that Eleventh Amendment must be addressed first), with McClendon v. Georgia Department of Community Health,
261 F.3d 1252, 1258 (11th Cir. 2001) (stating Court has discretion).
The Sixth Circuit, for its part, has professed a middle ground; where a State alternatively invokes the Eleventh Amendment a federal court may proceed directly to address the merits, see Nair v. Oakland County Community Mental Health Authority, 443
F.3d 469, 476 (6th Cir. 2006), including a State's affirmative defenses. See National
Parks Conservation Ass'n v. Tennessee Valley Authority, 480 F.3d 410, 416 (6th Cir.
2007).
Because this jurisdictional problem has confounded the Circuits, certiorari is proper. A stay is in order to preserve the status quo ante while this jurisdictional question is resolved. Petitioners were effectively forced to split their state and federal challenges to S.B. 193 by the District Court's erroneous invocation of the Eleventh Amendment.
That split then, through claim preclusion, prevented the Sixth Circuit under its own precedents from addressing the propriety of the District Court's decision. The state court, meanwhile, relied heavily on the District Court's rejection of Petitioners’ federal
26 Exh. 4, p | 26 challenge to S.B. 193 to support its judgment under state law. Petitioners have moved for a new trial in the state court and have filed a protective appeal in the Ohio Court of
Appeals. A stay of the Sixth Circuit's judgment will facilitate an orderly disposition of these split claims.
II. LPO and the Johnson/Weld Ticket Risk Irreparable Injury.
LPO and the Johnson/Weld Campaign for President are threatened with irreparable injury. Without a top-of-the-ticket candidate,6 LPO cannot satisfy Ohio's vote test and recover its status as a qualified political party. It will not be able to compete in
Ohio's electoral process in the future. See Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). The Johnson/Weld Campaign, meanwhile, will forfeit its right to compete as a political party's on equal terms for the presidency in one of the most important battleground states.7
When a ballot access law is declared unconstitutional, proper relief includes directing that the wronged party be added to the ballot. See, e.g., McCarthy v. Briscoe,
6 Ohio recognizes that winning 3% of the vote for either Governor or President guarantees a political party continuing qualified status for four years. See OHIO REV. CODE § 3517.01(A)(1)(a).
7 Ohio law provides a separate procedure (which is not being challenged here) for independent presidential tickets. The Johnson/Weld campaign (after being denied recognized LPO status) on August 10, 2016 submitted the papers and signatures needed to qualify as an independent presidential ticket in Ohio. Certification of independent candidacies is expected the week of August 22, 2016. Assuming Johnson/Weld were to be certified as an independent ticket and survive official protests, it (unlike the established parties' presidential tickets) will still not represent LPO as a political party, will not be listed as the "Libertarian" ticket on Ohio's ballot, and cannot meet Ohio's 3% vote test on behalf of LPO in order to win for it qualified political party status in Ohio in future elections.
27
Exh. 4, p | 27 429 U.S. 1317, 1323 (1976) (Powell, J., in chambers); Williams v. Rhodes, 89 S. Ct. 1, 2
(1968) (Stewart, J., in chambers); Goldman-Frankie v. Austin, 727 F.2d 603, 607 (6th
Cir. 1984); Anderson v. Celebrezze, 499 F. Supp. 121 (S.D. Ohio), reversed, 664 F.2d
554 (6th Cir. 1980), reversed, 460 U.S. 780 (1983). “In determining whether to order a candidate's name added to the ballot as a remedy for a State's denial of access, … a court may properly look to available evidence or to matters subject to judicial notice to determine whether there is reason to assume the requisite community support.” McCarthy v. Briscoe, 429 U.S. at 1323 (Powell, J., in chambers). The available evidence here demonstrates that LPO is the third most popular political party in Ohio. Its state-wide candidates frequently win close to 5% of the vote. The Johnson/Weld ticket is presently polling between 10% and 13% in national polls. LPO and its ticket both have the requisite community support. They should be restored to the position they would have occupied but for S.B.193 and ORP’s political espionage.
III. Ohio Will Suffer No Harm.
Ohio requires that nominating petitions for presidential tickets be filed 90 days before the general election, which for this election cycle translates into August 10, 2016.
See OHIO REV. CODE § 3505.10(B)(2). Ohio law further provides that state-wide ballots must be certified by the Secretary of State 70 days before the general election, or August
30, 2016. OHIO REV. CODE § 3505.01(A)(1). Ohio, however, accepts major-party presidential nominations as late as September for the general election ballot. In 2012, for example, when both major parties held late-summer conventions, enacted emergency legislation to allow the major parties to nominate their candidates just 60 days before the election. See OHIO GENERAL ASSEMBLY ARCHIVES 1997-2014, H.B. 509, § 4 (2012)
28 Exh. 4, p | 28 ("The major political parties shall certify to the Secretary of State the names of the candidates for president and vice-president nominated at their national conventions as soon as possible, but in no case later than the sixtieth day before the 2012 general election.").8 No impediment prevents Ohio from doing the same with minor parties.
The Ohio Supreme Court, moreover, has ruled that Ohio's election ballots may be corrected at any time before an election. See State ex rel. Scott v. Franklin County Board of Elections, 139 Ohio St. 3d 171, 10 N.E.3d 697 (2014). Ohio risks no harm should this
Court order it to restore LPO's presidential ticket to Ohio's ballot.
IV. The Public Will Benefit.
Placing LPO's presidential ticket on Ohio's ballot will benefit the public. "There is no right more basic in our democracy than the right to participate in electing our political leaders." McCutcheon v. Federal Election Commission, 134 S. Ct. 1434, 1440-41 (2014).
The Johnson/Weld ticket polled 13% in May, see Fox News Poll: 2016 national release,
9 FOX NEWS, May 18, 2016, 11% in June, see 2016 by the Numbers: Will Gary Johnson
10 disrupt Clinton vs. Trump Race?, CBS NEWS, June 15, 2016, and 10% nationally in
11 August of 2016. See U.S. Politics & Policy, PEW RESEARCH CENTER, Aug. 18, 2016.
The Johnson/Weld ticket will appear on the ballots of every other state and the District of
Columbia. Inclusion in Ohio benefits democracy.
8 http://archives.legislature.state.oh.us/bills.cfm?ID=129_HB_509 (last visited Aug. 12, 2016).
9 http://www.foxnews.com/politics/interactive/2016/05/18/fox-news-poll-2016-national- release-may-18/ (last visited Aug. 1, 2016).
10 http://www.cbsnews.com/news/2016-by-the-numbers-will-gary-johnson-disrupt- clinton-vs-trump-race/ (last visited Aug. 1, 2016).
11 http://www.people-press.org/2016/08/18/1-voters-general-election-preferences/ (last visited Aug. 20, 2016)
29
Exh. 4, p | 29 Exh. 4, p | 30
ATTACHMENT 1
Libertarian Party of Ohio v. Husted, No. 16-3537, slip op., (6th Cir., July 29, 2016).
Exh. 4, p | 31 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 1
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0178p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ______
LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER; ┐ AARON HARRIS; CHARLIE EARL, │ Plaintiffs-Appellants, │ │ > No. 16-3537 │ v. │ │ JON HUSTED, Secretary of State, │ Defendant-Appelle, │ │
│ STATE OF OHIO; GREGORY A. FELSOCI, │ Intervenors-Appellees. │ ┘ Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:13-cv-00953—Michael H. Watson, District Judge.
Decided and Filed: July 29, 2016
Before: MOORE, CLAY, and DONALD, Circuit Judges.
______
COUNSEL
ON BRIEF: Mark G. Kafantaris, Columbus, Ohio, Mark R. Brown, Columbus, Ohio, for Appellant. Halli Brownfield Watson, Jordan S. Berman, Sarah E. Pierce, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees Husted and State of Ohio. Steven W. Tigges, John W. Zeiger, ZEIGER, TIGGES & LITTLE LLP, Columbus, Ohio, for Appellee Felsoci.
1 Exh. 4, p | 32 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 2
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 2
______
OPINION ______
KAREN NELSON MOORE, Circuit Judge. The Libertarian Party of Ohio (the “Libertarian Party,” “the Party,” or “LPO”), together with members of its party leadership and its 2014 gubernatorial candidate, appeal from the district court’s grant of summary judgment in favor of Ohio Secretary of State Jon Husted, the State of Ohio, and Gregory Felsoci. The Libertarian Party raises three issues on this appeal: (1) whether state actors selectively enforced Ohio Revised Code § 3501.38(E)(1) against Libertarian Party candidates in violation of the First and Fourteenth Amendments; (2) whether SB 193 violates the Equal Protection Clause of the Fourteenth Amendment in requiring newly created minor parties to nominate candidates for the general election by petition, rather than by primary election; and (3) whether the State of Ohio was entitled to Eleventh Amendment immunity on the Libertarian Party’s state-law claim. For the reasons discussed below, we AFFIRM.
I. BACKGROUND
This case arises out of a long history of challenges to Ohio election laws, and specifically challenges brought by the Libertarian Party to access the ballot in Ohio. To best understand the current dispute, a brief foray into this background is needed.
A. A Recent History of Minor Party Ballot Access in Ohio
As our Circuit explained in a related opinion, “the LPO has struggled to become and remain a ballot-qualified party in Ohio through frequent litigation.” Libertarian Party of Ohio v. Husted, 751 F.3d 403, 405 (6th Cir. 2014). Throughout this struggle, “[t]he LPO has successfully challenged Ohio laws burdening its access to the ballot,” id., including a significant victory in 2006 in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006).
In Blackwell, we considered Ohio’s then-existing “two methods by which a party c[ould] qualify for the primary election” and reach the general-election ballot. Id. at 582. First, “[a]ny party that, in the preceding state election, receive[d] at least five percent of the vote for its Exh. 4, p | 33 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 3
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 3 candidate for governor or president automatically qualife[d] for the next statewide election.” Id. at 582–83. Second, parties receiving less than the five-percent threshold needed to “file a petition no later than 120 days prior to the date of the primary election [and 364 days prior to the general election] that contain[ed] the number of signatures equal to one percent of the total votes cast in the previous election.” Id. at 583. A party that failed to meet these requirements was barred from “participat[ing] in the primary and [was] thus prevented from appearing on the general election ballot.” Id.
The Libertarian Party argued that this law violated its First and Fourteenth Amendment rights, and we agreed. Considering the signature requirement and the extremely early petition- filing deadline in combination, we held that the law “impose[d] a severe burden on the First Amendment rights of the LPO,” id. at 591, and that the state failed to justify this burden with a sufficiently weighty state interest. Id. at 591–95.
Following our decision in Blackwell, “the Ohio General Assembly [took] no action to establish ballot access standards for minor political parties.” Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006, 1009 (S.D. Ohio 2008). In the absence of legislation, in 2007, Ohio’s Secretary of State issued Directive 2007-09 (the “Directive”). Id. at 1010. The Secretary’s Directive maintained Ohio’s “requirement that minor parties nominate their candidates by primary election,” but changed the party qualification process by requiring minor parties to “obtain petition signatures equal to one-half of one percent of the votes cast for governor in the” last general election and to “file nominating petitions 100 days before the primary,” still “nearly a full year before the . . . general election.” Id.
The Libertarian Party challenged the Directive in federal court, and the district court granted a preliminary injunction preventing the Directive from going into effect. First, the district court concluded that the federal constitution mandates that “only the legislative branch” of a state, not a state’s Secretary of State, “has the authority . . . to prescribe the manner of electing candidates for federal office.” Id. at 1011. Moreover, the district court concluded that, even assuming that the Secretary had the authority to issue the Directive, it was likely unconstitutional nonetheless because the Directive still imposed impermissible burdens on minor political parties. Id. at 1013. “[I]n the absence of constitutional, ballot access standards” in Exh. 4, p | 34 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 4
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 4
Ohio, the district court ordered that the Libertarian Party’s candidates “be placed on the 2008 general election ballot for the state of Ohio.” Id. at 1015–16. The Secretary of State granted the Libertarian Party ballot access through additional directives in 2011. See Libertarian Party of Ohio v. Husted, No. 2:11-CV-722, 2011 WL 3957259 (S.D. Ohio Sept. 7, 2011), vacated as moot, 497 F. App’x 581 (6th Cir. 2012).
In 2011, Ohio enacted HB 194, which required that minor parties file petitions with the requisite number of signatures 90 days before the primary, “a mere 30 days” earlier than the law found unconstitutional in Blackwell. Id. at *1. At the same time, the law “did nothing” to change the quantity of signatures required. Id. Finding that the law imposed an unconstitutional burden on the ability of minor parties to access the ballot, a federal district court granted a preliminary injunction and prevented Ohio from implementing the statute’s changes. Id. at *6. HB 194 was later repealed following a referendum. Libertarian Party of Ohio, 497 F. App’x at 583. The Ohio Secretary of State subsequently issued an additional directive in 2013 that “continued the practice of recognizing minor political parties and granting them access to the ballot for both the primary and general elections.” Libertarian Party of Ohio v. Husted, No. 2:13-CV-953, 2014 WL 11515569, at *2 (S.D. Ohio Jan. 7, 2014).
The Libertarian Party initiated the current lawsuit against Secretary Husted on September 25, 2013, in the U.S. District Court for the Southern District of Ohio. R. 1 (Compl. at 1) (Page ID #1). The Libertarian Party’s complaint alleged claims under the First Amendment of the U.S. Constitution against Ohio’s law that imposed residency requirements on petition circulators. Id. at 6–7 (Page ID #6–7). The State of Ohio intervened as a defendant. R. 5 (Mot. to Intervene) (Page ID #23). The district court preliminarily enjoined enforcement of Ohio’s circulator law on November 13, 2013. R. 18 (11/13/13 D. Ct. Op. at 1) (Page ID #143).
B. SB 193 and the Libertarian Party’s Amended Complaint
SB 193 was signed into law on November 6, 2013, and made several changes to the methods by which minor parties can qualify for the ballot in Ohio. Libertarian Party of Ohio, 2014 WL 11515569, at *2. SB 193 explicitly voided the Secretary’s prior directives that qualified the Libertarian Party and other minor parties for the ballot, resulting in the requirement Exh. 4, p | 35 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 5
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 5 that these parties would need to qualify for the ballot as new parties. Id.; see SB 193, 130th Gen. Assemb., at § 3 (Ohio 2013). The law also amended Ohio law to create two methods by which a political party can qualify as a “[m]inor political party” in Ohio. See Ohio Rev. Code § 3501.01(F)(2).
First, a political party may qualify by obtaining at least “three percent of the total vote cast” for governor or president “at the most recent regular state election.” § 3501.01(F)(2)(a). A party that obtains minor-party status via this vote-counting method remains qualified as a minor party “for a period of four years.” Id. Second, for new political parties that were not on the ballot in the preceding election or for parties that failed to meet the three-percent threshold in the prior election, SB 193 provides that a political party may qualify as a minor party through petition. § 3501.01(F)(2)(b). A party forming via petition must: (1) collect signatures from “qualified electors equal in number to at least one percent of the total vote for governor or president” at the most recent election; (2) file a petition that is signed by at least “five hundred qualified electors from each of at least . . . one-half of the congressional districts in” Ohio; and (3) file the petition more than 125 days before the upcoming general election. § 3517.01(A)(1)(b). The Secretary of State must determine the sufficiency of the petition at least 95 days before the general election. § 3517.012(A)(2)(d).
SB 193 removed the requirement that all parties nominate their candidates for the general election through a primary. Instead, a petition-formed party must nominate a candidate for the general election by petition. § 3517.012. This candidate-nominating petition must be filed “[n]ot later than one hundred ten days before the” general election. § 3517.012(B)(1). For statewide office, the candidate-nominating petition must be “signed by at least fifty qualified electors who have not voted as a member of a different political party at any primary election within the current year or the immediately preceding two calendar years.” § 3517.012(B)(2)(a). For local office, five qualifying signatures are required. § 3517.012(B)(2)(b).
SB 193 also established processes by which individuals can protest the filing of a party- formation petition or a candidate-nominating petition. § 3517.012(B)(3)(b). Specifically, written protests against candidate-nominating petitions “may be filed by any qualified elector eligible to vote for the candidate whose nominating petition the elector objects to not later than Exh. 4, p | 36 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 6
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 6 the seventy-fourth day before the general election,” and the protest may challenge the sufficiency of the petition on several grounds. § 3513.263. Candidates who file “insufficient” petitions may “not appear on the ballot in the general election.” § 3517.012(C)(2).
On November 8, 2013, the Libertarian Party amended its complaint in the Southern District of Ohio to add counts challenging SB 193. R. 16 (Am. Compl. at 16) (Page ID #101). Count Three alleged a due process and First Amendment challenge to SB 193 against Secretary Husted; Count Four alleged an Equal Protection and First Amendment challenge to S.B. 193 against Secretary Husted; and Count Five alleged a challenge under the Ohio Constitution against both Secretary Husted and the intervenor-defendant State of Ohio. Id. at 15–18 (Page ID #101–04). The State of Ohio answered and asserted Eleventh Amendment immunity to Count Five. R. 21 (State of Ohio Answer at 11) (Page ID #222).
On January 7, 2014, the district court preliminarily enjoined SB 193 from taking effect for the 2014 election, finding that because the Libertarian Party expected to be ballot-qualified for the 2014 election under the Secretary’s 2013 Directive, the retroactive application of SB 193 to that election—voiding the Secretary’s Directive and requiring that the Libertarian Party start from scratch to qualify for the ballot—violated due process. Libertarian Party of Ohio v. Husted, No. 2:13-CV-953, 2014 WL 11515569, at *10–11 (S.D. Ohio Jan. 7, 2014). The district court did not address claims that related to the Ohio Constitution or the federal Equal Protection Clause.
C. The 2014 Election and Felsoci’s Protest of LPO Candidates
As a result of the district court’s injunction, the Libertarian Party remained a recognized political party in Ohio, and it continued its efforts to nominate candidates to appear on the ballot for the 2014 primary election. The political drama that ensued forms a large basis of the current appeal. In November 2013, the Libertarian Party hired Oscar Hatchett and Sara Hart to collect signatures for the Party’s statewide candidates such as Charlie Earl, the 2014 LPO gubernatorial candidate. Libertarian Party of Ohio, 751 F.3d at 407. Hatchett and Hart, together with other circulators, collected a sufficient number of signatures; after the signatures were verified by the
Exh. 4, p | 37 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 7
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 7 local boards of elections, Secretary Husted certified Earl as a Libertarian candidate for the 2014 primary. Id. at 407–09.
On February 21, 2014, Earl’s certification was protested by Gregory Felsoci, an apparent member of the Libertarian Party. Id. at 409. In a prior opinion, we described Felsoci as a likely “tool of the Republican Party.” Id. After being shown documents from “a Republican friend, John Musca,” Felsoci came to believe that “LPO was gathering ‘votes’ without disclosing that those who gathered them were being paid to do so.” Id. Musca asked Felsoci to get involved with pursuing the matter, and Felsoci agreed. “Soon afterward, the Zeiger, Tigges, and Little law firm contacted Felsoci and offered its assistance.” Id. Felsoci did not pay legal fees to Zeiger, nor was Felsoci aware of who was paying the attorney fees. Id. Felsoci protested Earl’s certification on the basis of Ohio Revised Code § 3501.38(E)(1), arguing that the statute “requires independent contractors, not just employees, to complete the employer information box,” which certain circulators failed to do. Id.
After voluminous discovery in the district court, the Libertarian Party learned more about the facts leading up to Felsoci’s protest. This information primarily centered on Terry Casey, an appointed member of the Ohio Board of Personnel Review, self-employed political consultant, and member of the Republican Party. R. 241-1 (8/28/14 Casey Dep. at 8–12) (Page ID #6215- 19). Beginning on February 14, 2014, one week before the filing of Felsoci’s protest, Casey sent several emails to the personal email addresses of Matt Carle, Dave Luketic, and Jeff Polesovsky, individuals associated with John Kasich’s gubernatorial campaign and with the Ohio Republican Party. See R. 335-3 (July 6 Docs. at 2–4) (Page ID #8438–40); R. 335-2 (9/16/15 Casey Dep. at 8–10) (Page ID #8345–47). Casey discussed a conversation that he had had with his lawyer, John Zeiger, concerning the signature-gathering efforts of Libertarian candidates and the legal bases upon which the signatures might be challenged under Ohio law. R. 335-3 (July 6 Docs. at 3–4) (Page ID #8439–40). Casey continued to send similar emails throughout the week, noting a “need to keep digging and digging on Oscar [Hatchett]. He could be a key ‘star’ in this future production/show.” Id. at 6 (Page ID #8442); see also R. 240-1 (Casey Email Ex. at 7) (Page ID #6164).
Exh. 4, p | 38 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 8
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 8
Chris Schrimpf, the Ohio Republican Party’s Communications Director, submitted a public-records request to the Secretary of State’s Office on February 13, 2014, “for all Form 14’s filed for all Libertarian candidates for statewide office.” R. 335-3 (July 6 Docs. at 9) (Page ID #8445). On February 18, 2014, Luketic forwarded the forms that Schrimpf received to Casey. Id. at 8–9 (Page ID #8444–45). Casey emailed his attorneys on February 18—with Polesovsky, Luketic, and Carle blind copied—and noted that Hatchett and Hart’s petitions did not “ha[ve] anything filled out to reflect that they admitted being paid for this petition work.” R. 240-1 (Casey Email Ex. at 8) (Page ID #6165). On February 19, Luketic sent the group a “validity report” analyzing the validity of Earl’s petition signatures. Id. at 13 (Page ID #6170).
On February 19, 2014, Casey emailed Polesovsky and Luketic and indicated his ongoing search for “a Libertarian potential client.” R. 335-3 (July 6 Docs. at 13) (Page ID #8449). According to Casey, he “asked a number of different people around the state if they knew of any Libertarian folks . . . who might have an interest in filing.” R. 335-2 (9/16/15 Casey Dep. at 29– 30) (Page ID #8366–67). At some point, Felsoci was identified as a potential Libertarian Party member who would have standing to file a protest against a Libertarian candidate. See id. at 34– 35 (Page ID #8371–72). Luketic forwarded Felsoci’s voting history to Casey on February 20, 2014. R. 335-3 (July 6 Docs. at 23) (Page ID #8459). On February 21, 2014, Polesovsky gave Casey the contact information for an attorney, and Casey sent Felsoci’s name and phone number to the attorney to assist Felsoci in signing the documents needed for filing his protest. R. 335-3 (July 6 Docs. at 35) (Page ID #8471); R. 335-10 (Oct. 6 Docs. at 22) (Page ID #8589); see also R. 335-2 (9/16/15 Casey Dep. at 36) (Page ID #8373).
The cast of characters relevant to this appeal also includes Matthew Damschroder, the Director of Elections for the Ohio Secretary of State. R. 227-1 (8/26/14 Damschroder Dep. at 7) (Page ID #5226). In December 2013, Luketic sent Damschroder a text message asking Damschroder if there were “any petitions gathering from [] Charlie Earl the LIB candidate?” R. 227-1 (8/26/14 Damschroder Dep. at 305 (Ex. 16)) (Page ID #5524). Damschroder responded that he had not heard anything but that he would “keep [his] ear to [the] ground.” Id. Casey testified that, at some point around the date of February 17, he “mentioned” to Damschroder that he “w[as] looking at doing some kind of” protest filing. R. 241-1 (8/28/14 Casey Dep. at 54–55) Exh. 4, p | 39 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 9
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 9
(Page ID #6261–62). On February 18, 2014, Damschroder emailed members of his staff and indicated that he “got a call tonight that a protest is likely to come by Friday against Earl, probably from an unaffiliated voter . . . and [it] will be based on” payment disclosure information. R. 227-1 (8/26/14 Damschroder Dep. at 257 (Ex. 3)) (Page ID #5476). Damschroder does not remember who made the phone call that he referenced in his email, although he testified that “[i]t could have been” Casey. R. 247 (9/29/14 H’rg Tr. Vol. 1 at 123) (Page ID #6609).
The deadline for filing a protest was February 21, 2014, at 4:00 PM. Damschroder emailed his staff at 3:32 PM on February 21 and stated that “[i]f any protests are filed, please let me know as soon as they come in.” R. 227-1 (8/26/14 Damschroder Dep. at 259 (Ex. 5)) (Page ID #5478). Damschroder also emailed his staff earlier in the afternoon and instructed them that “if we get a protest filed with us today, even if it is after 4pm, please accept it, date/timestamp it, and give it to Sally [Warren] to disseminate.” Id. at 260 (Ex. 6) (Page ID #5479).
Felsoci filed his protest in advance of the 4 PM deadline. The Secretary’s Office then “referred the protest to Bradley Smith, a hearing officer, to conduct a hearing and issue a report and recommendation as to the disposition of the protest.” Libertarian Party of Ohio, 751 F.3d at 409–10. A hearing was held on March 4, 2014, and Smith issued a report on March 7, 2014, concluding that the circulators failed to make necessary disclosures in the employer-information box. Id. at 410. Smith recommended that these petition papers be ruled invalid. Id. Secretary Husted adopted Smith’s recommendation; as a result of Secretary Husted invalidating these signatures, Earl did not have enough signatures to be eligible to appear as a candidate in the primary election. Id.
Seeking to avoid the serious consequences of this disqualification, the Libertarian Party filed a second amended complaint in the district court on March 7, 2014, R. 56-1 (Second Am. Compl. at 1) (Page ID #989), in addition to a motion for a preliminary injunction and temporary restraining order. R. 57 (Pl. Mot. for Prelim. Inj. and TRO at 1) (Page ID #1041). The Libertarian Party’s second amended complaint brought several challenges against the employer- disclosure requirements of § 3501.38(E)(1). Felsoci moved to intervene as a defendant, and the district court granted his motion on March 20, 2014. R. 85 (03/20/14 D. Ct. Order at 3) (Page ID Exh. 4, p | 40 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 10
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 10
#2189). After holding an evidentiary hearing, the district court denied the Libertarian Party’s motion for a preliminary injunction on March 19, 2014. R. 80 (03/19/14 D. Ct. Op. at 1) (Page ID #2146). The Libertarian Party appealed the denial of the preliminary injunction to this court, and we affirmed on May 1, 2014, concluding that the Libertarian Party had not “establish[ed] a substantial likelihood of success on the merits of its due process challenge” or its First Amendment overbreadth challenge. 751 F.3d at 421, 424.
D. Third Amended Complaint and Proceedings Below
The Libertarian Party filed a third amended complaint on September 11, 2014. R. 188 (Third Am. Compl.) (Page ID #3796). Among other claims, the Libertarian Party asserted that Felsoci, Casey, and the Secretary of State’s office selectively enforced the employer-disclosure requirements of § 3501.38(E)(1) against the Libertarian Party in violation of the First and Fourteenth Amendments. Id. at 50 (Page ID #3845). On September 15, 2014, the Libertarian Party filed motions for a preliminary injunction and a temporary restraining order, seeking to place its candidates’ names on the ballot for the 2014 general election. R. 192 (Pl. Fourth Mot. for Prelim. Inj.) (Page ID #3877); R. 194 (Mot. for TRO) (Page ID #3911). The district court denied the Libertarian Party’s request for a temporary restraining order on the basis of laches, R. 225 (9/24/14 D. Ct. Op. at 2) (Page ID #5142), and denied the Libertarian Party’s motion for a preliminary injunction because the Party could not establish that Secretary Husted’s decision was influenced by political animus or that Felsoci engaged in state action in filing his protest, R. 260 (10/17/14 D. Ct. Op. at 19, 22) (Page ID #7092, 7095).
Following the district court’s denial of a preliminary injunction, the parties filed motions and cross-motions for summary judgment. See, e.g., R. 261-1 (Mem. in Supp. of Mot. for Summ. J.) (Page ID #7112); R. 267 (Def. Resp. and Cross-Motion for Summ. J. at 1) (Page ID #7191). These motions addressed the Libertarian Party’s claims that SB 193 violates the Ohio Constitution and the Equal Protection Clause—claims that the district court did not address in its January 7, 2014 preliminary-injunction ruling—in addition to the claim that § 3501.38(E)(1) was selectively enforced in violation of the First and Fourteenth Amendments. See, e.g., id. at 11, 17
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(Page ID #7209, 7215).1 The district court denied the Libertarian Party’s claim that SB 193 violated the Equal Protection Clause, both on its face, R. 285 (03/16/15 D. Ct. Op. at 32) (Page ID #7516), and as applied, R. 336 (10/14/15 D. Ct. Op. at 14) (Page ID #8700). The district court also dismissed Count Five (regarding the Ohio Constitution) as barred by the Eleventh Amendment. Id. at 18 (Page ID #8704).
The district court permitted discovery to continue with regards to the Libertarian Party’s selective-enforcement claim, id. at 21 (Page ID #8707), and the parties filed additional summary- judgment motions that addressed the selective-enforcement claim alone, see R. 338 (Pl. Renewed Mot. for Summ. J. at 1) (Page ID #8717); R. 344 (Husted Count Seven Mot. for Summ. J. at 1) (Page ID #8747); R. 346 (Felsoci Count Seven Cross Mot. for Summ. J. at 1) (Page ID #8767). On May 20, 2016, the district court granted summary judgment in favor of the defendants on the selective-enforcement claim. Libertarian Party of Ohio v. Husted , --- F. Supp. 3d ----, 2016 WL 2977286, at *1 (S.D. Ohio May 20, 2016). The district court entered final judgment on the same day, R. 370 (Judgment at 1) (Page ID #8948), and LPO timely appealed, R. 371 (Notice of Appeal at 1) (Page ID #8957).
II. DISCUSSION
A. Federal Claims
On appeal, the Libertarian Party raises two challenges under the U.S. Constitution. First, the Libertarian Party contends that Felsoci, Casey, the Ohio Republican Party, and Damschroder selectively enforced Ohio Revised Code § 3501.38(E)(1) against the Libertarian Party in violation of the First and Fourteenth Amendments. Second, the Libertarian Party argues that SB 193 violates the Equal Protection Clause because SB 193 denies the Party the opportunity to participate in the primary election.
1Other third parties not currently before us intervened as plaintiffs and asserted Equal Protection and First Amendment challenges to SB 193; these intervening plaintiffs also filed motions for summary judgment, R. 165 (Intervening Pl. Mot. for Summ. J. at 1) (Page ID #3261), to which the state responded and moved for cross- summary judgment, see, e.g., R. 185 (State Cross-Mot. for Summ. J. on Intervenor-Plaintiff Challenge at 1). LPO joined in the intervening plaintiffs’ motion for summary judgment in filing its motion for summary judgment, and Secretary Husted responded to LPO’s motion for summary judgment by referring to his prior cross-motion. For simplicity, we avoid an exhaustive account of this complicated procedural history. Exh. 4, p | 42 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 12
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1. Mootness
Prior to addressing the merits, we must first determine our jurisdiction to hear this case. “[A] federal court has a continuing duty to ensure that it adjudicates only genuine disputes between adverse parties, where the relief requested would have a real impact on the legal interests of those parties.” Blackwell, 462 F.3d at 584. “If ‘the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome,’ then the case is moot and the court has no jurisdiction.” Id. (quoting Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979)). Here, LPO’s claims arose in advance of the 2014 election, an election that has already occurred. There is an exception to the mootness doctrine, however, for “disputes capable of repetition, yet evading review.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). “The exception applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Id. (internal quotation marks omitted).
Secretary Husted and the State of Ohio do not assert that the Equal Protection challenge to SB 193 is moot, and for good reason. Courts have repeatedly emphasized that “[l]egal disputes involving election laws almost always take more time to resolve than the election cycle permits,” and thus election-law challenges typically satisfy the first prong of the exception “easily.” Blackwell, 462 F.3d at 584. Moreover, parties that assert challenges to ballot-access laws frequently satisfy the second prong as well because it is “likely that the [party] will once again seek to place candidates” on the ballot and these parties will once again “face the requirements” imposed by a still-existent election law when they do. Id. at 584–85; see also Lawrence v. Blackwell, 430 F.3d 368, 371–72 (6th Cir. 2005). LPO’s constitutional challenge to SB 193’s requirements is not moot.
Secretary Husted and the State of Ohio do contend, however, that the conclusion of the 2014 election has mooted the Libertarian Party’s’ selective-enforcement claim. Husted Appellee Br. at 13. We disagree. As stated above, the Libertarian Party intends to run candidates in the future. Reply Br. at 19. The Libertarian Party asserts that members of the Ohio Republican Party and Ohio state government have conspired and will continue to conspire to selectively Exh. 4, p | 43 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 13
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 13 enforce election laws against it in order to remove its candidates from the ballot. See id. at 19– 20. “The Supreme Court has stated that the purpose of the second prong [of the capable-of- repetition exception] is to determine ‘whether the controversy was capable of repetition and not . . . whether the claimant had demonstrated that a recurrence of the dispute was more probable than not.” Lawrence, 430 F.3d at 371 (quoting Honig v. Doe, 484 U.S. 305, 319 n.6 (1988)). The selective-enforcement controversy alleged by the Libertarian Party is capable of recurring, particularly given the “‘somewhat relaxed’ repetition standard” that our Circuit recognizes in election cases. Blackwell, 462 F.3d at 585 (quoting Lawrence, 430 F.3d at 372). We thus turn to the merits.
2. Selective-Enforcement Claim
The Libertarian Party first argues that the district court erred in granting summary judgment in favor of the defendants on the Libertarian Party’s selective-enforcement claim. We review the district court’s grant of summary judgment de novo. Green Party of Tenn. v. Hargett, 767 F.3d 533, 542 (6th Cir. 2014). Summary judgment is appropriate only “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(a). “Credibility determinations, the weighing of the evidence and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Libertarian Party argues that Felsoci, Casey, Damschroder, and others conspired to selectively enforce Ohio Revised Code § 3501.38(E)(1) in violation of the Libertarian Party’s First and Fourteenth Amendment rights. The Libertarian Party brought this action under 42 U.S.C. § 1983. “Section 1983 makes liable only those who, while acting under color of state law, deprive another of a right secured by the Constitution or federal law.” Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 636 (6th Cir. 2005). A selective-enforcement claim requires the plaintiff to demonstrate the following elements:
First, [the state actor] must single out a person belonging to an identifiable group, such as . . . a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, he must initiate the prosecution with a discriminatory Exh. 4, p | 44 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 14
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purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.
Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997) (internal quotation marks omitted). The district court entered summary judgment in favor of the defendants because the Libertarian Party could not establish state action. Libertarian Party of Ohio, 2016 WL 2977286, at *7. We agree with the district court.
The Libertarian Party does not contend that Secretary Husted himself selectively enforced or applied Ohio Revised Code § 3501.38(E)(1). See Appellant Br. at 31. The Libertarian Party also acknowledges that Felsoci is a private individual and not a state actor. Id. at 32. The Libertarian Party argues, however, that it can establish state action because the Ohio Republican Party, members of the Kasich Campaign, and Casey are state actors, and that these individuals also conspired with Damschroder, a state official in Secretary Husted’s office, to selectively enforce the law against only Libertarian candidates. Id. at 31.
a. The Libertarian Party Has Not Demonstrated that the Ohio Republican Party or the Kasich Campaign Engaged in State Action Here
The Libertarian Party contends that the Ohio Republican Party, together with Casey and members of the Kasich Campaign, selectively enforced § 3501.38(E)(1) by using Felsoci as an “innocent agent” to protest only Libertarian candidates. Appellant Br. at 32. The Libertarian Party asserts that the Ohio Republican Party is a state actor because “[c]ourts across the country have ruled that the two major parties’ state affiliates . . . are governmental actors when they regulate the electoral process.” Id. The cases upon which the Libertarian Party relies, however, are meaningfully different from the case at hand.
In Smith v. Allwright, 321 U.S. 649, 663–64 (1944), the Supreme Court held that the Democratic Party of Texas’s whites-only primary violated the Constitution. The Court held that Texas state law “entrusted” the party “with the determination of the qualifications of participants in the primary,” id. at 664, and “this statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary Exh. 4, p | 45 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 15
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 15 election,” id. at 663. Similarly, in Terry v. Adams, 345 U.S. 461 (1953), a plurality of the Court held that the “Jaybird Association,” a private “Democratic ‘Club[]’” that held a primary, id. at 466, was a state actor for purposes of its primary because “[t]he Jaybird primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern in the county,” id. at 469–70.
In considering these precedents, our Circuit has explained that the Court in Terry “did not assert that the Jaybirds had become a state actor for every purpose,” but rather the Court held that the private club was a state actor “insofar as they had been assigned an ‘integral part’ in the election process, a governmental function,” by the state. Banchy v. Repub. Party of Hamilton Cty., 898 F.2d 1192, 1196 (6th Cir. 1990) (quoting Terry, 345 U.S. at 470). “The primary election cases do not hold that a political party is part of the state, or that any action by a political party other than conducting an election is state action.” Id. (internal quotation marks omitted). “The doctrine does not reach to all forms of private political activity, but encompasses only state- regulated elections or elections conducted by organizations which in practice produce ‘the uncontested choice of public officials.’” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978) (quoting Terry, 345 U.S. at 484) (Clark, J., concurring)).
Here, the Ohio Republican Party has not been “assigned an ‘integral part’ in the election process” that is usually performed by the state. Banchy, 898 F.2d at 1196; see also Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003) (“Under the public function test, a private party is deemed a state actor if he or she exercised powers traditionally reserved exclusively to the state,” such as “holding elections.”). By filing a protest against a nomination petition under this statute—or having an agent file a protest—the Ohio Republican Party is not engaging in state action. To the contrary, any private citizen with standing is authorized by Ohio law to file a protest against a candidate’s nominating petition. Ohio Rev. Code §§ 3517.012(B)(3)(b) & 3513.263; see also Nader v. McAuliffe, 593 F. Supp. 2d 95, 102 (D.D.C. 2009) (“[T]he fact that private citizens may file challenges under the ballot access statutes is antithetical to the assertion that doing so is a function traditionally exclusively reserved to the States.”).
The Libertarian Party also asserts that members of the Kasich Campaign engaged in state action, but the Libertarian Party’s opening brief does not argue why this is so apart from stating Exh. 4, p | 46 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 16
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 16 conclusively that the Kasich Campaign acted as an agent of the Ohio Republican Party. See Appellant Br. at 32. To the extent that individuals involved with the Kasich Campaign were involved in text and email exchanges with Casey, the Libertarian Party has not demonstrated that these individuals acted on behalf of the Kasich Campaign team in their discussions with Casey, let alone that they acted on behalf of the governor’s office. See Federer v. Gephardt, 363 F.3d 754, 759 (8th Cir. 2004) (dismissing complaint for failing to allege state action because the complaint alleged only “that the defendants acted on behalf of [a Congressman] as a political candidate and private person,” not as a government official). The Libertarian Party has not presented evidence that establishes that members of the Kasich Campaign were state actors here.
b. The Libertarian Party Has Not Demonstrated That Casey Engaged in State Action
The Libertarian Party contends that Casey “was a state official” as a member of “Ohio’s Personnel Board of Review.” Appellant Br. at 36. However, “not every action undertaken by a person who happens to be a state actor is attributable to the state.” Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir. 2001). “For the purposes of a state-action analysis, there can be no pretense of acting under color of state law if the challenged conduct is not related in some meaningful way either to the actor’s governmental status or to the performance of his duties.” Id. The Libertarian Party acknowledges that Casey’s petition-protest involvement was not within the scope of Casey’s duties as a member of Ohio’s Board of Personnel Review; the Libertarian Party contends, however, that Casey’s actions nonetheless constitute state action taken under color of state law because Casey’s job “carried a large measure of cachet with [the Ohio Republican Party], the Kasich Campaign, Damschroder, and others,” and thus Casey “was able to do what ordinary citizens cannot” in coordinating Felsoci’s challenge of Earl. Appellant Br. at 37.
The record does not support the Libertarian Party’s argument. The communications that the Libertarian Party identifies were sent by Casey from his personal email address and they do not contain any reference, either implicitly or explicitly, to Casey’s state-government role. Casey undoubtedly spent a great deal of time in coordinating Felsoci’s protest, but he did so through speaking to attorneys, exploring election laws, and reviewing public records obtained via Exh. 4, p | 47 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 17
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 17 public-record requests. Damschroder testified that he provided Casey with the same information that he would have provided to any other individual that asked him. See R. 247 (9/29/14 H’rg Tr. Vol. 1 at 187) (Page ID #6673). The record accordingly demonstrates that Casey was acting out of his “private interest[]” in protesting Earl, and that Casey “would have been in the same position [to coordinate Felsoci’s protest of Earl] even if he had not been a” member of Ohio’s Board of Personnel Review. Waters, 242 F.3d at 359. Casey did not act under color of state law here for purposes of § 1983.
c. The Libertarian Party Has Not Demonstrated that Damschroder Was Involved in a Civil Conspiracy
Finally, the Libertarian Party contends that, even though Casey and the Ohio Republican Party may not be state actors here themselves, these actors conspired with election officials within the Secretary of State’s office such as Damschroder, and thus they are state actors for purposes of § 1983. “Private persons may be held liable under § 1983 if they willfully participate in joint action with state agents.” Memphis, Tenn. Area Local v. City of Memphis, 361 F.3d 898, 905 (6th Cir. 2004). In order to establish a civil conspiracy, the plaintiff must show:
[A]n agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant.
Id. (quoting Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985)). The Libertarian Party has not established here that Damschroder was involved in a conspiracy with Casey and the Ohio Republican Party.
The Libertarian Party cites communications between Damschroder, Casey, and other members of the Ohio Republican Party in which Casey and others asked Damschroder for information on candidate petitions and protest filings. See, e.g., R. 227-1 (8/26/14 Damschroder Dep. at 305–09 (Ex. 16)) (Page ID #5524–28). As discussed above, however, Damschroder testified that in his role at the Secretary of State’s office, it was “not uncommon for [him] to get Exh. 4, p | 48 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 18
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 18 questions from all kinds of people affiliated with parties, not affiliated with parties, candidates, whomever,” and that Damschroder would “give them the information if [he had] it.” R. 247 (9/29/14 H’rg Tr. Vol. 1 at 187) (Page ID #6673). Damschroder had known Casey for a long time, Damschroder knew that Casey was “a political gadfly,” and Damschroder would frequently answer Casey’s questions. Id. at 186 (Page ID #6672). The Libertarian Party has not identified anything in the record that indicates that Damschroder gave information to Casey that he would not have given to anyone else, or that Damschroder told Casey anything that was improper. Accordingly, these communications do not establish that Damschroder “shared in the general conspiratorial objective” to remove Earl, see Memphis, Tenn. Area Local, 361 F.3d at 905, by responding to questions from Casey and other members of the Ohio Republican Party.
The Libertarian Party emphasizes the fact that Damschroder knew ahead of time that a protest would be filed against Earl, and that Damschroder instructed his staff to accept protests that were filed after 4 PM. Appellant Br. at 19. The Libertarian Party states that this establishes that Damschroder knew to expect a protest from Felsoci on the day of the protest deadline, and that Damschroder wanted his office to “accept the protest even if filed late.” Id. at 40. Damschroder testified, however, that he instructed his staff to accept all late protests for filing purposes “so [that] a determination could be made whether it’s timely or not” and that “unless [he has] been instructed to not accept something that comes in, then we would accept it.” R. 227-1 (8/26/14 Damschroder Dep. at 80) (Page ID #5299); see also id. at 78 (Page ID #5297). The Libertarian Party has not provided any evidence that establishes that Damschroder instructed his staff to accept late protest filings for the purpose of the conspiracy, or that Damschroder intended to approve of Felsoci’s protest even if it were filed late (which it was not).
The Libertarian Party further claims that Damschroder was involved in “hav[ing] the hearing officer (Smith) change his mind” about the outcome of the case. Appellant Br. at 40. This argument relates to documents that show that Smith initially intended to rule in favor of the Libertarian Party in interpreting Ohio’s employer-information law. See R. 252 (10/01/14 H’rg Tr. Vol. 2 at 233) (Page ID #6730). Smith’s final recommendation came out the other way, however, after Smith reevaluated his interpretation of an Ohio state-court decision. Id. at 236 (Page ID #6733). The Libertarian Party cites a phone call between Smith and Jack Christopher, Exh. 4, p | 49 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 19
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 19 general counsel for Secretary Husted, who called Smith from Damschroder’s office before Smith altered his decision. Id. at 244 (Page ID #6741). Smith testified that he did “not recall any particular conversation” with Christopher, but that he and Christopher “did not have a substantive discussion” of the cases. Id. at 244–45 (Page ID #6741–42). Christopher did send Smith an email discussing Christopher’s legal interpretation of the Ohio decision at issue, but Smith testified that “by that point in time . . . I had already decided that I was going to have to be rewriting the report.” Id. at 254–55 (Page ID #6751–52). Smith testified that no one at the Secretary’s Office tried to “tell [him] how to decide th[e] case” and that no one at the Secretary’s Office attempted to influence his decision. Id. at 253 (Page ID #6750). To the contrary, Smith remarked on the “scrupulosity of the folks in the Secretary of State’s Office.” Id. The record does not demonstrate beyond speculation that Damschroder or his co-workers exerted any improper influence on Smith, or that Smith changed his recommendation as a result of the acknowledged conversations that he had with Christopher while Smith was reaching his final determination.
The Libertarian Party cites two additional pieces of evidence to establish that Damschroder was involved in a conspiracy to remove Earl from the ballot. First, the Libertarian Party states that Damschroder “cheer[ed] with Christopher for Zeiger at the [] administrative hearing” and that this demonstrates that Damschroder “shared the general conspiratorial objective.” Appellant Br. at 42. This argument refers to text messages exchanged between Damschroder and Christopher during the administrative hearing before Smith. Referring to Zeiger’s advocacy during the hearing, Christopher told Damschroder “Zeiger just won’t bend, will he?!” and Damschroder responded “I like unbending.” R. 227-1 (8/26/14 Damschroder Dep. at 319 Ex. 16) (Page ID #5538). Christopher also stated “I hope nobody asks Zeiger who is paying them to do this!! ;).” Id. at 321 (Page ID #5540). Damschroder responded, “It’s a pretty penny I’m sure.” Id. Damschroder testified that he was impressed by Zeiger’s advocacy during the hearing and that he was remarking on the likely cost of Zeiger’s fees, given that he knew that Zeiger was an experienced attorney. R. 247 (9/29/14 H’rg Tr. Vol. 1 at 161–62) (Page ID #6647–48). This “cheer[ing]” does not establish Damschroder’s involvement or actions in a conspiracy to remove Earl from the ballot.
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Lastly, the Libertarian Party states that Damschroder’s investigation of petition circulator Hatchett demonstrates that Damschroder was involved in the conspiracy. Appellant Br. at 40. According to the Libertarian Party, “Casey asked Damschroder to investigate Hatchett,” and Brandi Seskes in the Secretary of State’s office performed this investigation. Id. at 20. This is not supported by the record. The portion of Casey’s testimony which the Libertarian Party cites states only that Casey may have asked Damschroder “the question of whether there was anything statutorily that prohibited a registered sex offender from being a circulator of petitions.” R. 241- 1 (8/28/14 Casey Dep. at 53) (Page ID #6260). Seskes did Google Hatchett’s name in order to find out his criminal background after Felsoci submitted his protest, R. 221-1 (Seskes Dep. at 14, 22) (Page ID #4820, 4828), but Seskes testified that no one in the Secretary of State’s office asked her to do so. Id. at 14–15 (Page ID #4820–21). Seskes testified that she did so out of “[c]uriosity. Trying to get a handle on who the players were and what was going on.” Id. at 15 (Page ID #4821).
In sum, the Libertarian Party has not presented evidence here to establish that Damschroder or anyone in the Secretary of State’s Office shared in a conspiratorial objective with Casey and the Ohio Republican Party, or that Damschroder committed any act in furtherance of this conspiracy. Because Casey and the Ohio Republican Party are not state actors here, the Libertarian Party has failed to establish state action. The district court did not err in granting summary judgment to defendants on the selective-enforcement claim.
3. Equal Protection Clause Claim
The Libertarian Party also asserts that SB 193 violates the Equal Protection Clause. We evaluate this claim under the framework established by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983), and Burdick v. Takushi, 504 U.S. 428, 434 (1992). See Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012). “Under the Anderson-Burdick test, the court must first ‘consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.’” Hargett, 791 F.3d at 693 (quoting Anderson, 460 U.S. at 789). Second, the court “must ‘identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.’” Id. (quoting Anderson, 460 U.S. at 789). Lastly, the court “must Exh. 4, p | 51 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 21
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‘determine the legitimacy and strength of each of those interests’ and ‘consider the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Id. (quoting Anderson, 460 U.S. at 789).
The severity of the burden imposed on an individual by the state’s election law determines the level of scrutiny that we apply and thus the degree to which the state must justify its regulations. See Burdick, 504 U.S. at 434. If a state’s law imposes “severe” burdens on the plaintiff’s constitutional rights, “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’” Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). By contrast, if the state law imposes “‘reasonable’ and ‘nondiscriminatory’” burdens, “the statute will be subject to rational basis [review].” Green Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th Cir. 2015) (quoting Burdick, 504 U.S. at 434). “If the burden lies somewhere in between, courts will weigh the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.” Id. (internal quotation marks omitted).
a. Burden on LPO
Our analysis thus begins by assessing the “character and magnitude of the asserted injury” that the Libertarian Party alleges. Anderson, 460 U.S. at 789. In evaluating the burden imposed by an election law, we must consider “the combined effect of the applicable election regulations,” not simply each law in isolation. Blackwell, 462 F.3d at 586. “In determining the magnitude of the burden imposed by a state’s election laws, the Supreme Court has looked to the associational rights at issue, including whether alternative means are available to exercise those rights; the effect of the regulations on the voters, the parties and the candidates; evidence of the real impact the restriction has on the process; and the interests of the state relative to the scope of the election.” Id. at 587. We keep these factors in mind as we turn to the Libertarian Party’s claims.
Ballot-access laws such as SB 193 “place burdens on two different, although overlapping, kinds of rights—the rights of individuals to associate for the advancement of political beliefs and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Id. at 585 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)). The Libertarian Exh. 4, p | 52 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 22
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Party contends that these rights are burdened because SB 193 “den[ies] minor parties primaries,” “the only mechanism available for officially registering members” under Ohio law. Appellant Br. at 41. The Libertarian Party does not contest the number of signatures required by SB 193 to form a minor political party or nominate a candidate, nor does the Libertarian Party argue that SB 193’s petition deadlines violate the First Amendment. Accordingly, our decision is limited to the aspect of SB 193 that LPO addresses—its requirement that minor political parties such as the Libertarian Party proceed outside of Ohio’s primary framework—and we do not address the constitutionality of the provisions of SB 193 that are not presented in this appeal.
To best understand the Libertarian Party’s asserted burden, we briefly recount the ballot- access framework established by SB 193. As discussed above, SB 193 creates two methods by which a political party may obtain state recognition as a “[m]inor political party” and thereby access the ballot: the party may meet a three-percent-vote requirement in the immediately preceding election, or the party may form via petition. Ohio Rev. Code § 3501.01(F)(2). A minor party that forms by petition—either a party that did not meet the three-percent-vote threshold in the last election or a newly created party that did not participate in the last election—must nominate their candidates to appear in the general election by filing a nominating petition, rather than by participating in the Ohio primary. § 3517.012. This nominating petition must be filed at least 110 days before the general election. § 3517.012(B)(1). If the candidate is running for statewide office, the candidate must obtain the signatures of “at least fifty qualified electors who have not voted as a member of a different political party at any primary election within the current year or the immediately preceding two calendar years.” § 3517.012(B)(2)(a).
Major political parties, by contrast, nominate candidates for the general election through a primary election, as do minor parties that achieved the requisite three-percent-vote threshold in the prior election. See § 3513.05. In order to appear on the primary ballot, a major-party candidate for statewide office must submit a petition containing signatures from “at least one thousand qualified electors who are members of the same political party as the candidate.” Id. Minor-party candidates appearing in the primary election need only half of that number. Id.
Because the Libertarian Party has to form by petition, and because it accordingly has to nominate its candidates via petition, SB 193 excludes the Libertarian Party from the primary, at Exh. 4, p | 53 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 23
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 23 least until it meets the three-percent-vote requirement in an election. See Appellant Br. at 41. The Libertarian Party acknowledges that the Constitution does not guarantee a party a right to nominate candidates by primary, as opposed to other means. Reply Br. at 23. The Supreme Court established this principle in American Party of Texas v. White, 415 U.S. 767, 781 (1974), where the Court refused to invalidate a statute that required “small parties [to] proceed by convention when major parties [could] choose their candidates by primary election.” The Court explained that “[t]he procedures are different, but the Equal Protection Clause does not necessarily forbid the one in preference to the other.” Id. at 781–82. The Libertarian Party contends, however, that although it does not have a constitutional right to a primary, excluding it from the primary process violates the Equal Protection Clause because the primary system in Ohio grants a benefit to major parties that is denied to minor parties. According to the Libertarian Party, “Ohio officially registers voters’ political affiliations through primaries” and, in the absence of a primary, individuals cannot affiliate with the Libertarian Party and the Party is deprived of the political advantages of party membership that primary-participating parties enjoy. Appellant Br. at 41–42.
The Libertarian Party misstates Ohio law. Ohio operates a version of a “closed” primary system, see California Democratic Party v. Jones, 530 U.S. 567, 570 (2000), in that Ohio places some limits on an individual’s ability to vote in a party’s primary or sign a party’s nominating petition if an individual is not a “member” of that political party. See, e.g., Ohio Rev. Code §§ 3513.05 & 3513.19(A)(3). Ohioans do not affiliate with a party upon registering to vote. Rather, for the purpose of designating who can vote in a primary or to sign a nominating petition, Ohio law defines party membership by an individual’s primary-voting record. Specifically, for major parties nominating their candidates by primary, Ohio law provides that “[f]or purposes of signing or circulating a petition of candidacy for party nomination or election, an elector is considered to be a member of a political party if the elector voted in that party’s primary election within the preceding two calendar years, or if the elector did not vote in any other party’s primary election within the preceding two calendar years.” § 3513.05. Similarly, an individual’s eligibility to vote in a primary election may be challenged on the basis of that individual not being a “member of the political party whose ballot the person desires to vote,” where “membership” is defined by the same two-calendar year metric. § 3513.19(A)(3); see also Exh. 4, p | 54 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 24
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 24
§ 3513.20.2 If “the right of a person to vote” in a party primary “is challenged upon the ground” that the person is not a party member, “membership in or political affiliation with a political party shall be determined by the person’s statement, made under penalty of election falsification, that the person desires to be affiliated with” the “party whose primary ballot the person desires to vote.” § 3513.19(B).
As the State of Ohio and Secretary Husted argue, “[t]hese statutes do not govern party registration or affiliation in general,” but rather refer only to “party affiliation” for a specific purpose: establishing who may vote in a partisan primary. Husted Appellee Br. at 36. Ohio insists that SB 193 places no restrictions on the Libertarian Party’s ability, as a private entity, to define its membership.
The Libertarian Party emphasizes the enormous significance to political parties of having a membership, including a party member’s ability to “develop” the party, recruit additional members, contribute money, and more. Appellant Br. at 42. The fundamental importance of these activities is beyond dispute. But the Libertarian Party has not explained how Ohio’s definition of “member of a political party” for the limited purpose discussed above, see Ohio Rev. Code § 3513.05, restricts the Party’s ability to have members that perform these core political activities.
We are aware that, as the Libertarian Party asserts, there are some “legal ramifications” to requesting a party’s ballot in a primary election, Appellant Br. at 42, because Ohio operates a primary system that is “closed” to non-party members to some degree. As discussed above, for example, an individual who affiliates with a party in a primary election may not vote for a different party’s candidate for a period of two years. If challenged on this basis, however, the voter may provide a statement declaring an intention to affiliate with and support the principles of a different party. Ohio Rev. Code § 3513.19(B). According to the Libertarian Party, Ohio law does not provide it with a base of people that are “wedded” to it in a similar way. Reply Br. at 22–23.
2Notably, in the first primary in which the new political party participates—a party that has met the three- percent-vote threshold in a prior election—“any qualified elector who desires to vote the new party primary ballot . . . shall be allowed to vote the new party primary ballot regardless of prior political party affiliation.” Ohio Rev. Code § 3517.016. Exh. 4, p | 55 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 25
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 25
The Libertarian Party has not articulated, however, how this framework burdens its ability to recruit members, access the general-election ballot, or engage in other modes of political affiliation and expression, nor has the Libertarian Party explained how this places minor parties at a disadvantage relative to major parties. It is true that, in order to place a candidate on the ballot, the Libertarian Party must obtain the signatures of at least “fifty qualified electors who have not voted as a member of a different political party at any primary election within the current year or the immediately preceding two calendar years.” § 3517.012(B)(2)(a). But the Libertarian Party does not contend that the number of signatures required is unduly burdensome. Moreover, as Secretary Husted and the State of Ohio assert, only approximately 1.3 million Ohioans cast primary ballots in 2014, out of over 7.7 million registered voters. Husted Appellee Br. at 38–39. This leaves at least “83 percent of all registered voters” in Ohio unaffiliated and “able to sign petitions for” other candidates. Id. The Libertarian Party has not demonstrated that this aspect of SB 193 imposes a severe burden.
Finally, the Libertarian Party cites Green Party of Michigan v. Land, 541 F. Supp. 2d 912 (E.D. Mich. 2008), in support of its argument that the denial of a primary process to minor parties imposes a severe burden. The district court in Land considered a Michigan statute that provided certain voter information exclusively to the two major parties participating in the primary election. Land, 541 F. Supp. 2d at 914. The Michigan primary was restricted to parties that “received more than 20% of the total presidential vote cast in Michigan in the last presidential election,” and thus “only the Democratic and Republican parties were eligible to participate.” Id. Primary voters indicated their party preference at the primary election, and because this information was not recorded at the time of registration, “the party preference designations from the primary election are the best source of information about the party affiliation of a large group of Michigan voters.” Id. Michigan law directed that voter information be kept confidential and exempt from disclosure “to any person for any reason.” Id. Nonetheless, the statute required the Michigan Secretary of State “to provide these records” to political parties participating in the primary: the Democratic and Republican parties. Id. The district court recognized that minor parties could benefit from the party-preference information of voters that voted in the primary, such as by using it to “direct [their] campaign efforts . . . to voters who are more likely to be responsive to [their] issue positions and candidates.” Id. at 919. Exh. 4, p | 56 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 26
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 26
By prohibiting minor parties from accessing this information given exclusively to major parties, the Michigan statute severely burdened minor parties’ associational rights. Id. at 919–20.
Land is meaningfully different from the situation here. The minor parties in Land wanted access to the party-preference information of individuals who participated in the primary; they did not seek to participate in the primary or have the affiliation of their party members registered at the primary. The harm in Land was that minor parties had “no other way to obtain the party preference information” that was given to major parties exclusively. Id. at 923. The Libertarian Party has not identified any provision of Ohio law that provides information on a differential basis to major and minor parties. The Libertarian Party’s argument based on Land is not persuasive.
Because the Libertarian Party has not demonstrated that Ohio law deprives it of membership or affiliation in a general sense, and because the Libertarian Party does not challenge any other aspect of SB 193’s requirements on appeal, we conclude that the Libertarian Party is not severely burdened by SB 193’s requirement that it select candidates for the general- election ballot via petition, rather than by primary. Nonetheless, as discussed above, affiliating with a party at a primary does have some “legal ramifications,” and so SB 193’s burdens, although not severe, are also not non-existent. Moreover, we also acknowledge that, because Ohio law allows voters to become a “member” of a party under Ohio law by casting a party ballot during a primary, there may be some expressionist value to voting in a partisan primary and thus “affiliating” with a party, even if this does not mean membership or affiliation in a general sense. We will thus turn to consider the state’s asserted interests, and balance the strength of this interest against the burdens that we have identified.
b. Ohio’s Asserted Interest
Secretary Husted and the State of Ohio argue that SB 193’s requirements relate to its interest in “ensur[ing] that new or minor parties ‘have a significant modicum of support’ before they appear on the ballot.” Husted Appellee Br. at 44 (quoting Jenness v. Fortson, 403 U.S. 431, 441–42 (1971)). The Supreme Court has long recognized this state interest as “important.” Jenness, 403 U.S. at 442. According to Ohio, the state “had to make a choice” in pursuing this Exh. 4, p | 57 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 27
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 27 state interest following our decision in Blackwell. R. 185 (Intervenor Def. Cross Mot. for Summ. J. at 6) (Page ID #3613); see also Husted Appellee Br. at 44.
In Blackwell, we found that Ohio’s requirement that a minor party file its registration petition 120 days in advance of the primary election—an election in which minor-party candidates had to participate in order to appear on the general-election ballot—imposed a severe burden on minor parties because the parties needed to gather “more than thirty thousand” signatures “more than one year in advance of the [general] election,” “a time when the major party candidates are not known and when the populace is not politically energized.” Blackwell, 462 F.3d at 586. In the face of this severe burden, we indicated that Ohio had failed to advance a significant state interest in its primary and early-filing requirement, indicating that “[f]orty-eight states have filing deadlines for minor parties later in the election cycle, and forty-three states allow minor parties to nominate candidates in a manner other than the primary election.” Blackwell, 462 F.3d at 594.
Ohio claims that SB 193 is an attempt to comply with Blackwell while also ensuring that minor parties garner a sufficient amount of support prior to appearing on the general-election ballot. See R. 185 (Intervenor Def. Cross Mot. for Summ. J. at 6) (Page ID #2613); Husted Appellee Br. at 44. According to Ohio, in the face of Blackwell, it chose to eliminate its primary requirement for newly established parties and instead require that “only established political parties . . . hold primaries, while allowing new political parties to determine their nominees through” petition. R. 185 (Intervenor Def. Cross Mot. for Summ. J. at 6) (Page ID #2613). By eliminating the primary requirement, Ohio now requires that minor-party candidates file paperwork 110 days before the general election, rather than over a year in advance. Ohio Rev. Code § 3517.012(B)(1).
As discussed above, the Libertarian Party does not argue on appeal that a filing requirement 110 days prior to the general election is unduly burdensome, and we accordingly do not decide this issue. We do, however, credit Ohio’s interest in having minor parties garner “a significant modicum of support,” Jenness, 403 U.S. at 442, and Ohio’s rationale for having minor parties “nominate candidates in a manner other than the primary election,” Blackwell, 462 F.3d at 594, in order to align better its ballot-access laws with our decision in Blackwell. Exh. 4, p | 58 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 28
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 28
c. Weighing LPO’s Burden Against Ohio’s Interest
Having determined the burden that SB 193 places on the Libertarian Party in deterring it from nominating candidates by primary, and having addressed the state’s interest for the law, we now consider the extent to which the state’s asserted interests “make it necessary to burden the plaintiff’s rights” and whether the weight of the state’s interest is sufficient to justify the magnitude of the burden imposed. Anderson, 460 U.S. at 789. As discussed above, the Libertarian Party has not demonstrated that the aspect of SB 193 that it challenges poses a severe burden on its First or Fourteenth Amendment rights. At the same time, the state has articulated a legitimate interest in its law, and this interest is sufficient in light of the Libertarian Party’s claimed burdens. In so deciding, we echo our statement from an earlier decision in this same dispute: “[w]e note that the LPO has struggled to become and remain a ballot-qualified party in Ohio, and we acknowledge that this decision entails that their efforts must continue still[, b]ut we also note that we decide one case at a time.” Libertarian Party of Ohio, 751 F.3d at 424. On the basis of this record and challenge before us, we agree with the district court that summary judgment is appropriate in favor of the State of Ohio and Secretary Husted on the Equal Protection challenge to SB 193.
B. LPO’s State Constitutional Challenge
Lastly, the Libertarian Party contends that the district court erred in dismissing its state- constitutional claim. Article V, § 7 of the Ohio Constitution provides that “[a]ll nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law . . . .” Ohio Const. art. V, § 7. The Libertarian Party alleged that SB 193 was in conflict with this provision, but the district court dismissed this claim as barred by the Eleventh Amendment of the U.S. Constitution. R. 336 (10/14/15 D. Ct. Op. at 19) (Page ID #8705).
Whether or not the district court was correct, an Ohio state court has already decided the Libertarian Party’s state-constitutional issue. “Pursuant to the doctrine of res judicata, ‘a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.’” Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009) (quoting Montana v. Exh. 4, p | 59 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 29
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 29
United States, 440 U.S. 147, 153 (1979)). “[T]he law is well-settled that federal courts must give prior state court judgments the same preclusive effect they would have in the courts of that state.” Lesher v. Lavrich, 784 F.2d 193, 195 (6th Cir. 1986). Secretary Husted and the State of Ohio argue that the Libertarian Party’s claim under Article V, § 7 of the Ohio Constitution is barred because the Libertarian Party “litigated that claim to final judgment in Ohio state court” after the district court dismissed the claim. Husted Appellee Br. at 50. Specifically, the Franklin County Court of Common Pleas granted summary judgment to Secretary Husted and Ohio Attorney General Mike DeWine, holding on June 7, 2016, that S.B. 193 does not violate Article V, § 7 of the Ohio Constitution. Libertarian Party of Ohio v. Husted, No. 16CV554 (Franklin Cty. Ct. Common Pleas June 7, 2016); Appellant Addendum 3.
The Libertarian Party advances two arguments for why we should not decide that its state-constitutional claim is barred by res judicata. First, the Libertarian Party contends that the state court’s judgment is not final. Reply Br. at 25. According to the Libertarian Party, it filed a motion for a new trial and for relief from judgment under Rules 59 and 60 of the Ohio Rules of Civil Procedure and, after the state court did not rule on that motion, it filed an appeal in state court on July 6, 2016. Reply Br. at 24–25. The Libertarian Party asserts that because the Rule 59 motion has been stayed in state court and because the state-court decision may be reversed, res judicata does not apply to the Franklin County Common Pleas court’s decision. This is not persuasive. A motion for a new trial does not alter the preclusive nature of an otherwise final judgment. Restatement (Second) of Judgments § 13 cmt. f (“A judgment otherwise final for purposes of the law of res judicata is not deprived of such finality by the fact that time still permits commencement of proceedings in the trial court to set aside the judgment and grant a new trial or the like; nor does the fact that a party has made such a motion render the judgment nonfinal.”). And under Ohio law, “[t]he pendency of an appeal . . . does not prohibit application of claim preclusion. The prior state court judgment remains ‘final’ for preclusion purposes, unless or until overturned by the appellate court.” United States ex rel. Sheldon v. Kettering Health Network, 816 F.3d 399, 415 (6th Cir. 2016) (internal quotation marks omitted) (citing Cully v. Lutheran Med. Ctr., 523 N.E.2d 531, 532 (Ohio Ct. App. 1987)). The state-court decision is final here for purposes of res judicata.
Exh. 4, p | 60 Case: 16-3537 Document: 32-2 Filed: 07/29/2016 Page: 30
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 30
Second, the Libertarian Party argues that we should not decide this issue of the preclusive effect of the state-court judgment because Secretary Husted and the State of Ohio raised this issue for the first time on this appeal. Reply Br. at 26. Instead, “res judicata should be left to the District Court on remand (if necessary).” Reply Br. at 26. As the Libertarian Party recognizes, our cases acknowledge that there are circumstances where res judicata may be appropriately entertained for the first time on appeal. Lesher, 784 F.2d at 195. Here, the Libertarian Party filed its claim in state court on January 19, 2016, see Husted, No. 16CV554, at 1, after the district court dismissed the Party’s state-law Article V, § 7 claim on October 14, 2015 on the basis of Eleventh Amendment immunity. R. 336 (10/14/15 D. Ct. Op. at 19) (Page ID #8705). Accordingly, the state-court judgment did not become preclusive until after the district court dismissed the claim, and thus there was no opportunity for a res judicata defense to be presented to the district court. Under these circumstances, it is appropriate to consider res judicata for the first time on appeal. See Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 418–19 (6th Cir. 2012) (“[T]he defense of res judicata was not available before the district court because the [state-court class-action] settlement had neither been certified nor made final by the Arkansas Supreme Court. Now that the state decision has become final, it is appropriate for this Court to respect its conclusions.” (internal quotations and citations omitted)). We do not believe that “[t]he better course here is to leave res judicata to the District Court on remand.” Reply Br. at 27. Our consideration of this preclusion argument “requires us to consider a purely legal issue that is presented ‘with sufficient clarity and completeness’ in the parties’ briefs.” Gooch, 672 F.3d at 419 (internal quotation marks omitted). Because the Ohio state court reached a final judgment on the Libertarian Party’s state-law Article V, § 7 claim, the Libertarian Party is precluded from pursuing this claim further in this court.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Exh. 4, p | 61
ATTACHMENT 2
Libertarian Party of Ohio v. Husted, No. 13-953 (S.D. Ohio, June 10, 2016) (Order denying stay and emergency relief pending appeal)
Exh. 4, p | 62
ATTACHMENT 3
Libertarian Party of Ohio v. Husted, No. 16-3537 (6th Cir., Aug. 22, 2016) (Order denying stay and emergency relief pending certiorari)
Exh. 4, p | 66 Case: 16-3537 Document: 38-2 Filed: 08/22/2016 Page: 1
Case No. 16-3537
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
ORDER
LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER; AARON HARRIS; CHARLIE EARL
Plaintiffs - Appellants v.
JON HUSTED, Secretary of State
Defendant - Appellee
STATE OF OHIO; GREGORY A. FELSOCI
Intervenors - Appellees
BEFORE: MOORE, CLAY and DONALD, Circuit Judges.
Upon consideration of the appellants’ motion to stay the mandate,
And further considering the responses in opposition thereto,
It is therefore ORDERED that the motion be and it hereby is DENIED.
ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk
Issued: August 22, 2016 ______
Exh. 4, p | 67 303 E. Broad Street Columbus, OH 43215
August 22, 2016
Mara Silver Emergency Applications Attorney Clerk of Court Supreme Court of the United States One First Street NE Washington, DC 20543
Dear Ms. Silver,
Per our previous phone conversations, you will find enclosed an Application for Stay and Emergency Relief in the matter of Libertarian Party of Ohio v. Husted, No. 14-3230 (6th Cir., July 29, 2016), directed to Justice Kagan.
The Sixth Circuit’s decision sustaining Ohio’s removal of the Libertarian Party of Ohio and its presidential ticket from the 2016 election ballot is attached to the Application as Attachment 1. The Order of the District Court denying Petitioners' motion for stay and accompanying emergency relief is attached as Attachment 2. The Order of the Sixth Circuit denying a stay and accompanying emergency relief on August 22, 2016 is attached as Attachment 3.
The Application includes a Statement of Jurisdiction and describes Petitioners' efforts to win the relief it now requests from the District Court and the Court of Appeals. In a nutshell, Petitioners moved for preliminary relief in the District Court which was denied. They then moved to stay that decision and be awarded emergency relief while they appealed to the Sixth Circuit. That was denied. Petitioners moved for emergency relief in the Sixth Circuit, which was denied while the appeal was expedited. Following the Sixth Circuit’s adverse decision, Petitioners immediately asked that it stay its judgment and enter emergency relief pending Supreme Court review. The Sixth Circuit denied that motion on August 22, 2016. Because the election is scheduled for November 8, 2016, Ohio law directs that ballots be certified on August 30, 2016, and Ohio has early voting allowing electors to cast ballots 35 days before the November 8, 2016 election day, Petitioners have filed this Application for emergency relief with the Supreme Court.
Sincerely yours,
/s/ Mark
Mark R. Brown
Exh. 4, p | 68
EXHIBIT 5 No. 16A181 In the Supreme Court of the United States ______
LIBERTARIAN PARTY OF OHIO, KEVIN KNEDLER, CHARLES EARL, AND AARON HARRIS, Petitioners, v.
JON HUSTED, OHIO SECRETARY OF STATE, Respondent, v.
STATE OF OHIO AND GREGORY FELSOCI, Intervenor-Respondents. ______
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______
OPPOSITION TO APPLICATION FOR STAY AND EMERGENCY INJUNCTION ______MICHAEL DEWINE Ohio Attorney General ERIC E. MURPHY* State Solicitor *Counsel of Record MICHAEL HENDERSHOT Chief Deputy Solicitor HANNAH C. WILSON Deputy Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 [email protected] Counsel for Respondent Jon Husted, Ohio Secretary of State, and Intervenor- Respondent State of Ohio
Exh. 5, p | 1 TABLE OF CONTENTS
Page
TABLE OF CONTENTS ...... i
TABLE OF AUTHORITIES ...... iii
INTRODUCTION ...... 1
STATEMENT ...... 3
A. The Ballot-Access Law Made Various Changes To The Rules For Gaining Ballot Access In Ohio ...... 3
B. The Libertarian Party Candidate For Governor, Charlie Earl, Was Disqualified From The 2014 Primary Ballot For Failure To Obtain A Sufficient Number of Valid Signatures ...... 7
C. After The 2014 Election, The District Court And The Sixth Circuit Rejected All Of The Libertarian Party’s Challenges In Final Judgments ...... 9
ARGUMENT ...... 13
I. CONTRARY TO THE LIBERTARIAN PARTY’S CLAIM, IT MUST MEET A MORE DEMANDING TEST TO OBTAIN AN INJUNCTION RATHER THAN A STAY ...... 13
II. THE LIBERTARIAN PARTY HAS NOT EVEN ALLEGED, LET ALONE SHOWN, THAT AN INJUNCTION IS NECESSARY TO AID THIS COURT’S JURISDICTION ...... 16
III. THE LIBERTARIAN PARTY HAS NOT SHOWN THAT IT HAS AN “INDISPUTABLY CLEAR” RIGHT TO AN INJUNCTION ...... 17
A. It Is Not Indisputably Clear That The Challenged Provisions Of The Ballot-Access Law Violate The Fourteenth Amendment ...... 17
B. It Is Not Indisputably Clear that the Ohio Republican Party Was A State Actor That Selectively Enforced An Ohio Statute In Violation Of The Constitution ...... 26
C. The Libertarian Party’s Argument That The Sixth Circuit Should Have Considered Sovereign Immunity Before Res Judicata Does Not Show That The Party Is Indisputably Entitled To Relief On Its State-Law Claim ...... 30
i
Exh. 5, p | 2 IV. THE BALANCE OF EQUITIES TIP AGAINST THE REQUESTED INJUNCTION ...... 33
CONCLUSION ...... 36
ii
Exh. 5, p | 3 TABLE OF AUTHORITIES
Cases Page(s)
American Party of Texas v. White, 415 U.S. 767 (1974) ...... 2, 18, 19, 24
Anderson v. Celebrezze, 460 U.S. 780 (1983) ...... 6, 18
Baer v. Meyer, 577 F. Supp. 838 (D. Colo. 1984) ...... 24, 25
Brown v. Gilmore, 533 U.S. 1301 (2001) (Rehnquist, C.J., in chambers) ...... 13, 14, 15, 28
Burdick v. Takushi, 504 U.S. 428 (1992) ...... 6, 18
Coll. Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) ...... 32
Constitution Party of Pa. v. Aichele, 757 F.3d 347 (3d Cir.2014) ...... 29
Cooper v. Muldoon, No. 05-4780, 2006 WL 1117870 (E.D. Pa. Apr. 26, 2006) ...... 28
Cully v. Lutheran Med. Ctr., 523 N.E.2d 531 (Ohio Ct. App. 1987)...... 31
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) ...... 31
Fitzgerald v. Cleveland, 103 N.E. 512 (Ohio 1913) (Wanamaker, J., concurring) ...... 32
Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992) ...... 23
Green Party of Arkansas v. Martin, 649 F.3d 675 (8th Cir. 2011) ...... 19
Green Party of New York State v. New York State Board of Elections, 389 F.3d 411 (2d Cir. 2004) ...... 24, 25
iii
Exh. 5, p | 4 Green Party of Tennessee v. Hargett, 953 F. Supp. 2d 816 (M.D. Tenn. 2013) ...... 22, 23
Green v. Mortham, 989 F. Supp. 1451 (M.D. Fla. 1998) ...... 23
Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) (Sotomayor, Jr., in chambers)...... passim
In re Protest of Evans, No. 06AP-539, 2006-Ohio-4690 (Ohio Ct. App.) ...... 27
Jenness v. Forston, 403 U.S. 431 (1971) ...... 21, 24
Jolivette v. Husted, 694 F.3d 760 (6th Cir. 2012) ...... 24
Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) ...... 3, 21
Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014) ...... passim
Libertarian Party of Ohio v. Husted, 808 F.3d 279 (6th Cir. 2015) ...... 10
Libertarian Party of Ohio v. Husted, No. 15A725 (U.S. Jan. 14, 2016) (Kagan, J., in chambers) ...... 10
Libertarian Party v. Husted, 134 S. Ct. 2164 (2014) ...... 8
Lucas v. Townsend, 486 U.S. 1301 (1988) (Kennedy, J., in chambers) ...... 15
Lux v. Judd, 842 F.Supp.2d 895 (E.D. Va. 2012) ...... 36
Lux v. Rodrigues, 131 S. Ct. 5 (2010) (Roberts, C.J., in chambers) ...... 15, 33, 36
Maryland v. King, 133 S. Ct. 1 (2012) (Roberts, C.J., in chambers) ...... 33
Morse v. Republican Party of Va., 517 U.S. 186 (1996) ...... 29
iv
Exh. 5, p | 5 New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) (Rehnquist, J., in chambers) ...... 33
Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312 (1986) (Scalia, J., in chambers) ...... 14, 15, 16
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ...... 31
Purcell v. Gonzalez, 549 U.S. 1 (2006) ...... 35
Rainbow Coalition of Oklahoma v. Oklahoma State Election Bd., 844 F.2d 740 (10th Cir. 1988) ...... 19
Reform Party of Allegheny County v. Allegheny County Dept. of Elections, 174 F.3d 305 (3d Cir. 1999) ...... 23, 24
Respect Maine PAC v. McKee, 562 U.S. 996 (2010) ...... 1, 13, 14, 15
Rogers v. Corbett, 468 F.3d 188 (3d Cir. 2006) ...... 19
Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994) ...... 26
Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) ...... 33
Smith v. Allwright, 321 U.S. 649 (1944) ...... 29
Socialists Workers Party v. Rockefeller, 314 F. Supp. 984 (S.D.N.Y. 1970), summarily aff’d, 400 U.S. 806 (1970) ...... 25, 26
Spriestma v. Mercury Marine, 537 U.S. 51 (2002) ...... 33
State ex rel. Linnabary v. Husted, 8 N.E.3d 940 (Ohio 2014) ...... 9
State v. Jackson, 811 N.E.2d 68 (Ohio 2004) ...... 32
Terry v. Adams, 345 U.S. 461 (1953) ...... 29
v
Exh. 5, p | 6 Tex. Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) ...... 29
United States v. Armstrong, 517 U.S. 456 (1996) ...... 26, 27
Wayte v. United States, 470 U.S. 598 (1985) ...... 26, 27
Wis. Right to Life, Inc. v. Fed. Election Comm’n, 542 U.S. 1305 (2004) (Rehnquist, C.J., in chambers) ...... 14, 15
Woods v. Etherton, 136 S. Ct. 1149 (2016) ...... 27
Wyatt v. Cole, 504 U.S. 158 (1992) ...... 29
Statutes, Rules, and Constitutional Provisions
28 U.S.C. § 1651 ...... 13
28 U.S.C. § 1651(a) ...... 13, 14
28 U.S.C. § 1738 ...... 31
28 U.S.C. § 2101(f) ...... 13, 15
Ohio Const. art. V, § 7 ...... 6, 10, 30, 32
Ohio Rev. Code § 3501.01(C) ...... 4
Ohio Rev. Code § 3501.01(F)(1) ...... 4
Ohio Rev. Code § 3501.01(F)(2)(a) ...... 3, 4
Ohio Rev. Code § 3501.01(F)(2)(b) ...... 3, 4
Ohio Rev. Code § 3501.38(E)(1) ...... 7, 8, 9
Ohio Rev. Code § 3513.05 ...... 4, 5, 20, 21
Ohio Rev. Code § 3513.13 ...... 23
Ohio Rev. Code § 3513.19 ...... 5, 20
Ohio Rev. Code § 3513.19(A)(3) ...... 5
vi
Exh. 5, p | 7 Ohio Rev. Code § 3513.20 ...... 5, 20
Ohio Rev. Code § 3513.31(F) ...... 12
Ohio Rev. Code § 3513.257 ...... 12
Ohio Rev. Code § 3513.262 ...... 7
Ohio Rev. Code § 3513.263 ...... 12
Ohio Rev. Code § 3517.01(A)(1)(b)(i) ...... 3
Ohio Rev. Code § 3517.01(A)(1)(b)(ii) ...... 4
Ohio Rev. Code § 3517.01(A)(1)(b)(iii) ...... 4
Ohio Rev. Code § 3517.012(A)(1) ...... 4
Ohio Rev. Code § 3517.012(B)(2)(a) ...... 4, 20, 21
Ohio Rev. Code § 3517.012(B)(2)(b) ...... 4
Ohio Rev. Code § 3517.016 ...... 5
S. Ct. R. 20.1 ...... 14
Other Authorities
Stephen M. Shapiro et al., Supreme Court Practice 879 (10th ed. 2013) ...... 15
vii
Exh. 5, p | 8 INTRODUCTION
This case concerns (1) S.B. 193 (the “Ballot-Access Law”), which made changes to the Ohio election laws regulating the ability of political parties to obtain
(and keep) ballot access, and (2) the 2014 primary election in which the Libertarian
Party candidate for governor was disqualified from the ballot because of violations of state requirements for petition circulators. Petitioners (collectively, the
“Libertarian Party”) seek an emergency injunction pending certiorari, apparently to change the now certified designation of the Johnson-Weld presidential ticket from
“Independent” to “Libertarian” on Ohio ballots. The request should fail.
To begin with, the Libertarian Party cites the wrong standard. The Party asks not merely that judicially ordered action be stayed while it pursues certiorari, but that this Court—contrary to every other court to look at these questions—grant affirmative injunctive relief. Such extraordinary relief “‘demands a significantly higher justification’ than a request for a stay, because unlike a stay, an injunction
‘does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.’” Respect Maine PAC v.
McKee, 562 U.S. 996, 996 (2010) (citation omitted). The Party must show that its right to the injunction is “‘indisputably clear.’” Hobby Lobby Stores, Inc. v. Sebelius,
133 S. Ct. 641, 643 (2012) (Sotomayor, J., in chambers) (citation omitted).
The Libertarian Party has not shown an indisputably clear right to an injunction on any of the three theories it advances. First, its constitutional challenge under the “Anderson-Burdick” framework suggests that it has a right to a primary election. That is foreclosed by precedent and rests on a misunderstanding
Exh. 5, p | 9 of Ohio law. This Court’s decision in American Party of Texas v. White, 415 U.S. 767
(1974), rejects any argument that a minor party has a constitutional right to a primary. And, contrary to the Party’s argument, Ohio law does not use primaries to assign party affiliation to voters for anything beyond the limited purpose of who may vote in primary elections and sign petitions. Rather, Ohio law allows political parties and potential members to associate in any other way.
Second, the Libertarian Party’s right to relief on its selective-enforcement claim is far from indisputably clear because the Party does not even address two elements of that claim. Nor does the Party explain how an injunction against the
State and the Secretary of State is proper when the Party admits that the Secretary did not selectively enforce Ohio election law. The idea that actions by the Ohio
Republican Party are state action such that it would trigger an injunction against the State and the Secretary are novel, not indisputably clear.
Third, the Libertarian Party’s state-law claim involves only an argument about the order of operations in the lower courts, not an outcome-dispositive argument that would justify injunctive relief. Indeed, the Party makes no argument in this Court that it should prevail on this claim on the merits (or that it can avoid the res-judicata bar after a state court rejected the identical claim).
Finally, equitable factors run against the Libertarian Party. It is grounded in arguments that have been on the table since 2014, yet is filed days ahead of a ballot-finalization deadline. And it asks this Court to trump Ohio law not for ballot access, but for changing the label on a presidential ticket currently on the ballot.
2
Exh. 5, p | 10 STATEMENT
A. The Ballot-Access Law Made Various Changes To The Rules For Gaining Ballot Access In Ohio
In 2006, the Sixth Circuit struck down Ohio’s previous ballot-access laws for minor parties in a split decision. See Libertarian Party of Ohio v. Blackwell, 462
F.3d 579 (6th Cir. 2006). Secretaries of State thereafter repeatedly issued directives (to implement court orders) that recognized minor parties as qualified for primary and general elections. See Libertarian Party of Ohio v. Husted, No. 16-
3537, Slip Op. 3-4 (6th Cir. July 29, 2016) (hereinafter “App. Op.”). The Ballot-
Access Law repealed those directives, and created two general methods by which a political party can obtain minor-party recognition and qualify for the ballot.
First, a minor party that is already on the ballot may qualify for future years by receiving three percent of the total vote cast in a gubernatorial or presidential election. See Ohio Rev. Code § 3501.01(F)(2)(a). If a minor party surpasses this three-percent threshold, the minor party retains minor-party status and ballot access for the next four years. Id. For each election that it meets this threshold, the party continues to obtain this four-year access period. Id.
Second, any new party, or a minor party whose gubernatorial or presidential candidate fails to meet the 3% threshold may file a party formation petition. See id.
§ 3501.01(F)(2)(b). Formation by petition requires the party to obtain qualified signatures equal in number to one percent of the total vote for governor or president at the most recent election for either. Id. § 3517.01(A)(1)(b)(i). The signatures must include 500 qualified electors from each of at least half of the sixteen Ohio
3
Exh. 5, p | 11 congressional districts. Id. § 3517.01(A)(1)(b)(ii). This formation petition must be submitted no later than 126 days before the November general election that the party wishes to be on the ballot. Id. § 3517.01(A)(1)(b)(iii). A minor party that files a successful formation petition will earn recognized party status for at least twelve months, and will retain that party status by passing the three-percent vote threshold at the first election for governor or president that occurs at least twelve months after it forms. Id. § 3501.01(F)(2)(b).
The Ballot-Access Law also establishes the method through which minor parties nominate their candidates for the general-election ballot. On the one hand, minor parties that achieve this status by the vote-counting method may hold primary elections to nominate their candidates to appear on the general-election ballot. Id. § 3501.01(F)(2)(a). On the other hand, minor parties that achieve this status by the petition method determine their general-election candidates through nominating petitions. Id. § 3517.012(A)(1). A new party’s candidate for statewide office must submit a petition signed by a mere 50 qualified electors. Id.
§ 3517.012(B)(2)(a). A new party’s candidate for local office need only be signed by 5 qualified electors. Id. § 3517.012(B)(2)(b).
In contrast, major parties select their general-election candidates solely via primaries. Id. § 3513.05. To be a “major political party,” the party’s candidate for governor or president must receive “not less than twenty per cent of the total vote cast for such office at the most recent regular state election.” Id. § 3501.01(F)(1).
Thus, a major political party must pass the applicable vote test every two years. Id.
4
Exh. 5, p | 12 § 3501.01(C). A person wishing to become a candidate for major-party nomination at a primary must file a declaration of candidacy and petition. Id. § 3513.05.
Major-party candidates must obtain 1,000 signatures for statewide office and 50 for local office. Id. They may obtain those signatures only from those who have not voted in another party’s primary in the last two years. Id.
For purposes of eligibility to vote in a primary and to sign party candidate petitions, Ohioans may affiliate with a party by casting that party’s ballot at a primary election. Id. §§ 3513.05, 3513.19, 3513.20. Ohio Rev. Code § 3513.19 sets forth the framework for challenging whether a person is legally entitled to vote in a party’s primary. One of the bases upon which a person may be challenged is that
“the person is not affiliated with or is not a member of the political party whose ballot the person desires to vote.” Id. § 3513.19(A)(3). A person is considered affiliated with a party if the person has voted in that party’s primary or has not voted in any other party’s primary during the last two years. Id. § 3513.05. Section
3513.19’s limitations, however, do not apply to the first primary in which a new party participates after it has formed via petition. Ohio Rev. Code § 3517.016 provides that “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.” Other than set limits on who may participate in political-party primaries and sign petitions,
Ohio law does not govern party membership in general.
5
Exh. 5, p | 13 In November 2013, soon after Ohio passed this Ballot-Access Law, the
Libertarian Party filed an amended complaint to challenge it in a pending lawsuit addressing another matter. First Am. Compl., R.16, PageID#87. The Party alleged three claims against the Ballot-Access Law. First, the Party alleged that the Ballot-
Access Law’s elimination of the prior Secretary of State directives violated due process as applied to the upcoming 2014 election by retroactively depriving the
Party of access to the ballot too soon before that election. Id., PageID#101. Second, the Party alleged that the Ballot-Access Law violated Equal Protection and the
First Amendment under the “Anderson-Burdick” line of cases by denying the Party
(but not major parties) the ability to hold a primary (and gain access to the party- membership privileges that allegedly came with a primary). Id., PageID#101-02; see Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780
(1983). Third, the Party alleged that the Ballot-Access Law violated Article V, § 7 of the Ohio Constitution—which the Party interpreted to require all parties to nominate their candidates via primaries—because the Ballot-Access Law required newly formed parties to nominate their candidates via petitions rather than primaries. First Am. Compl., R.16, PageID#103-04.
The district court preliminarily enjoined the Ballot-Access Law’s enforcement for the 2014 election cycle based on the Libertarian Party’s retroactivity claim. It concluded that applying the Ballot-Access Law retroactively to the 2014 election cycle would be unconstitutional. Order, R.47, PageID#819-834. It ordered that the
Libertarian Party be granted access to the 2014 primary and general ballots in
6
Exh. 5, p | 14 accordance with the requirements of Secretary of State Directive 2013-02, which recognized it as a minor party. Id., PageID#811. Pursuant to that prior Secretary of State Directive, therefore, the Libertarian Party candidates submitted nominating petitions in order to qualify for Ohio’s 2014 primary ballot.
B. The Libertarian Party Candidate For Governor, Charlie Earl, Was Disqualified From The 2014 Primary Ballot For Failure To Obtain A Sufficient Number of Valid Signatures
After Secretary of State Husted certified Charlie Earl as the Libertarian
Party’s gubernatorial candidate, Intervener-Defendant Gregory Felsoci filed a protest against Earl’s candidacy. See Libertarian Party of Ohio v. Husted, 751 F.3d
403, 405-12 (6th Cir. 2014). Ohio law provides that “[u]pon the filing of such protest, the election officials with whom it is filed shall promptly fix the time and place for hearing it[.]” Ohio Rev. Code § 3513.262. At the hearing, the election official “shall hear the protest and determine the validity or invalidity of the petition.” Id. Accordingly, once the protest was filed, Ohio law required the
Secretary to hold a hearing and determine the validity of the petition.
Law Professor Bradley A. Smith, a former Chairman of the Federal Elections
Commission serving as Hearing Officer, conducted the required protest hearing. He issued a report recommending that the protest be upheld because signatures for
Earl were obtained by circulators who had been paid but who had failed to disclose who paid them on their petition forms, in violation of Ohio Rev. Code §
3501.38(E)(1). Libertarian Party, 751 F.3d at 409. The main issue presented by the protest was a legal one: whether independent contractors are statutorily required
7
Exh. 5, p | 15 to disclose those who pay them under Ohio Rev. Code § 3501.38(E)(1). Id. at 410.
Professor Smith concluded that they are. Id.
Secretary Husted adopted the Hearing Officer’s report and recommendation.
Id. Ultimately, the Secretary was the sole decisionmaker regarding the validity of the protest and the removal of Earl from the ballot. Husted Depo., R.203-1,
PageID#4181, 4206, 4222, 4225. And the Libertarian Party’s own lawyer conceded that the Party was “not attempting to cast any shadow of a doubt on [Secretary
Husted’s] particular decision.” Id., PageID#4250. Secretary Husted was indifferent as to the outcome of the protest hearing. Id., PageID#4222. He simply expected everyone—the petition circulators, his staff, and the Hearing Officer—to follow the law. Id., PageID#4222, 4224-25, 4249. Due to the Secretary’s decision, the signatures obtained in violation of § 3501.38(E)(1) were invalidated and Earl lacked a sufficient number of signatures to qualify as the Libertarian Party candidate for the primary ballot. Libertarian Party, 751 F.3d at 410.
In March 2014, the Libertarian Party filed another amended complaint challenging Earl’s removal from the ballot. It sought a preliminary injunction on the ground that Ohio Rev. Code § 3501.38(E)(1)’s disclosure requirements violated the First Amendment and the Due Process Clause’s void-for-vagueness doctrine.
Libertarian Party, 751 F.3d at 411. The district court denied a preliminary injunction, id., and the Sixth Circuit affirmed, id. at 412-24. The Libertarian Party sought relief in this Court, which Justice Kagan and later the full Court denied.
Libertarian Party v. Husted, 134 S. Ct. 2164 (2014). (In addition, the Libertarian
8
Exh. 5, p | 16 Party candidate for Attorney General had filed a writ of mandamus in the Ohio
Supreme Court challenging Secretary of State Husted’s interpretation of Ohio Rev.
Code § 3501.38(E)(1), but the Ohio Supreme Court upheld his interpretation. State ex rel. Linnabary v. Husted, 8 N.E.3d 940 (Ohio 2014).)
Ahead of the 2014 general election, the Libertarian Party added a “selective- enforcement” claim arising from the enforcement of the disclosure requirements in
Ohio Rev. Code § 3501.38(E)(1) during the 2014 primary election. It moved for a preliminary injunction to give it ballot access on this ground, but the district court denied the request. Order, R.260, PageID#7074. The Party did not appeal that loss to the Sixth Circuit or this Court in an effort to get on the general ballot.
C. After The 2014 Election, The District Court And The Sixth Circuit Rejected All Of The Libertarian Party’s Challenges In Final Judgments
After further discovery and the addition of a “selective-enforcement” claim by the Libertarian Party arising from the enforcement of Ohio Rev. Code
§ 3501.38(E)(1)’s disclosure requirements for the 2014 primary election, the district court issued two opinions resolving all remaining claims.
The first opinion, issued in October 2015, addressed (as relevant here) the
Libertarian Party’s Anderson-Burdick and state-law challenges to the Ballot-Access
Law (but left unresolved the selective-enforcement claim). Order, R.336,
PageID#8696-8700. The court granted summary judgment to the State on the merits of the Anderson-Burdick claim. Id., PageID#8705. And it dismissed the
Party’s challenge to the Ballot-Access Law under the Ohio Constitution on sovereign-immunity grounds (because the Libertarian Party sought an injunction 9
Exh. 5, p | 17 against the State for allegedly violating state law). Id., PageID#8705. The
Libertarian Party filed an untimely notice of appeal from this decision, which the
Sixth Circuit dismissed for lack of jurisdiction. Libertarian Party of Ohio v. Husted,
808 F.3d 279, 280-81 (6th Cir. 2015). Justice Kagan denied an application for relief from that decision. Libertarian Party of Ohio v. Husted, No. 15A725 (U.S. Jan. 14,
2016) (Kagan, J., in chambers).
After that appellate cycle, the only claim left unresolved was the Libertarian
Party’s selective-enforcement claim arising from Earl’s disqualification for the 2014 primary. On May 20, 2016, the district court granted summary judgment in favor of the State on this claim and entered a final judgment. Order, R.369,
PageID#8931. The Libertarian Party appealed. In the meantime, the Party sought a stay and emergency injunction pending appeal from the district court, which the court denied on June 10. Order, R.374, PageID#8971. On May 23, the Party filed a motion for emergency relief pending appeal and /or to expedite briefing in the Sixth
Circuit. On June 7, 2016, the Sixth Circuit ordered expedited briefing.
Around the same time, in January 2016, the Libertarian Party also filed a lawsuit against the Ballot-Access Law in state court raising both a state-law claim under Article V, § 7 of the Ohio Constitution and an equal-protection claim under the state constitution similar to the Libertarian Party’s Anderson-Burdick claim in federal court. On June 7, 2016, the state court granted summary judgment to the
State on both of these claims. It held, among other things, that Article V, § 7 of the
Ohio Constitution does not require the State to allow all parties to nominate their
10
Exh. 5, p | 18 candidates via primaries rather than petitions. See Libertarian Party of Ohio v.
Husted, No. 16-cv-554, Slip. Op. at 25 (Ohio Ct. Com. Pl. June 7, 2016) (available at
Appellant’s Br., R.21, Addendum 3 (6th Cir. June 21, 2016)).
On July 29, 2016, the Sixth Circuit affirmed the district court on all claims.
App. Op. 11-30. As for its challenge to the Ballot-Access Law under Anderson-
Burdick, the Sixth Circuit explained that the Libertarian Party “misstate[d] Ohio law” when it argued that Ohio officially registers voters’ political affiliations through primaries, thereby “grant[ing] a benefit to major parties that is denied to minor parties” (which cannot use primaries when they form via petition). App. Op.
23. The Sixth Circuit explained that Ohio law does not “govern party registration or affiliation in general,” but rather refers only to “‘party affiliation’ for a specific purpose: establishing who may vote in a partisan primary.” Id. at 24 (internal quotation marks omitted). Because the Libertarian Party had “not demonstrated that Ohio law deprives it of membership or affiliation in a general sense,” the Sixth
Circuit concluded that the Ballot-Access Law’s requirement that the Party nominate candidates by petition, rather than by primary, was not a severe burden, but also was “not [a] non-existent” one. Id. at 26. The court then concluded that
Ohio’s legitimate interest in ensuring that candidates have sufficient support before appearing on any ballot justified this burden, and affirmed the district court’s summary judgment on the Anderson-Burdick claim. Id. at 26-28.
In next affirming dismissal of the Libertarian Party’s selective-enforcement claim, the Sixth Circuit noted that the Party did not “contend that Secretary Husted
11
Exh. 5, p | 19 himself selectively enforced or applied” the law and rejected its arguments that the
Ohio Republican Party engaged in state action by protesting the Party’s candidates.
Id. at 14-16. The Ohio Republican Party, said the Circuit, had not been assigned an
“integral part” of Ohio’s election process related to candidate protests. Id. at 15.
Finally, as for the Libertarian Party’s state constitutional challenge, the
Sixth Circuit concluded that the Party’s litigation of that claim to final judgment in state court barred any appeal from the district court’s dismissal of it. Id. at 28-30.
On August 1, 2016, the Party sought a stay and an emergency injunction from the Sixth Circuit, which the Sixth Circuit denied on August 22, 2016.
Since then, Secretary Husted has certified the Libertarian Party’s presidential ticket—Gary Johnson and William Weld—for the November 2016 Ohio ballot as independents rather than as the candidates for the Libertarian Party.
That happened in two steps. First, petitions were submitted for the independent candidacy of Charlie Earl and Kenneth Moellman. See Ohio Rev. Code § 3513.257.
Then, Earl and Moellman withdrew and Johnson and Weld were substituted for them. See Ohio Rev. Code § 3513.31(F). On August 24, 2016, Secretary Husted certified Johnson and Weld as independent presidential candidates to the
November 2016 ballot. The deadline for protests to be filed against Johnson’s independent candidacy is August 26—tomorrow. Ohio Rev. Code § 3513.263. No protests are pending.
12
Exh. 5, p | 20 ARGUMENT
I. CONTRARY TO THE LIBERTARIAN PARTY’S CLAIM, IT MUST MEET A MORE DEMANDING TEST TO OBTAIN AN INJUNCTION RATHER THAN A STAY
To obtain the relief it seeks, the Libertarian Party must satisfy the test for an injunction pending the filing of a writ of certiorari—a standard it has not identified. The Party purports to pursue both a stay of the Sixth Circuit’s judgment and an emergency injunction directing the Secretary to “restor[e]” its presidential ticket to Ohio’s 2016 general-election ballot. See Application for Stay and
Emergency Injunction Addressed to Justice Kagan (“Appl.”) 1-2. Yet because the
Sixth Circuit affirmed the district court’s rejection of the Party’s claims, a stay would simply maintain the status quo in which the Ballot-Access Law governs minor parties in Ohio. In other words, a stay could not “restore” the Party to a ballot that it is not on and has no right to be on under state law. Thus, the governing standard for the requested relief is not the more lenient rule for a stay pending certiorari, see 28 U.S.C. § 2101(f), but rather the more difficult one for an injunction pending certiorari, see Respect Maine PAC v. McKee, 562 U.S. 996 (2010);
28 U.S.C. § 1651.
A. The “only source of this Court’s authority” to grant an injunction pending further appellate review is the All Writs Act, 28 U.S.C. § 1651(a). See
Brown v. Gilmore, 533 U.S. 1301, 1303 (2001) (Rehnquist, C.J., in chambers)
(denying request for an injunction pending writ of certiorari); Hobby Lobby Stores,
Inc. v. Sebelius, 133 S. Ct. 641, 642 (2012) (Sotomayor, J., in chambers) (denying request for an injunction pending appeal). Such a request “‘demands a significantly
13
Exh. 5, p | 21 higher justification’ than a request for a stay, because unlike a stay, an injunction
‘does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.’” McKee, 562 U.S. at 996
(quoting Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n,
479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers)). This Court’s “own rules require[] that injunctive relief under the All Writs Act is to be used ‘sparingly and only in the most critical and exigent circumstances.’” Brown, 533 U.S. at 1303
(Rehnquist, C.J., in chambers) (quoting Ohio Citizens, 479 U.S. at 1313 (Scalia, J., in chambers); see also S. Ct. R. 20.1 (“Issuance by the Court of an extraordinary writ authorized by 28 U.S.C. § 1651(a) is not a matter of right, but of discretion sparingly exercised.”).
This Court employs a two-factor test to determine whether an injunction pending certiorari or appeal should issue. “[A] Circuit Justice may issue an injunction only when [1] it is ‘necessary or appropriate in aid of our jurisdiction’ and
[2] ‘the legal rights at issue are indisputably clear.’” Hobby Lobby, 133 S. Ct. at
642-43 (Sotomayor, J., in chambers) (quoting Wis. Right to Life, Inc. v. Fed. Election
Comm’n, 542 U.S. 1305, 1306 (2004) (Rehnquist, C.J., in chambers)) (alteration deleted); see also Brown, 533 U.S. at 1303-04 (Rehnquist, C.J., in chambers)
(declining to issue an injunction pending certiorari because the applicants’ “position
[was] less than indisputable”); 28 U.S.C. § 1651(a).
B. The Libertarian Party nowhere cites these standards. It instead incorrectly recites a test allegedly for “emergency relief pending certiorari” that
14
Exh. 5, p | 22 closely tracks the test for a stay of a lower court’s actions. See Appl. 10 (citing Lucas v. Townsend, 486 U.S. 1301 (1988) (Kennedy, J., in chambers)). For both precedential and logical reasons, however, the Party has mistakenly identified a more lenient standard for obtaining the injunctive relief that it seeks here.
Relying on the in-chambers opinion in Lucas, the Party suggests a two-part test that tracks the test for a stay—a showing that there is “‘a fair prospect that five
Justices will’” reverse and that “‘irreparable harm will likely result from the denial of equitable relief.’” See Appl. 10 (quoting Lucas, 486 U.S. at 1304). “Recently,” however, “the full Court”—in a binding decision—“has stated that an injunction is more difficult to justify than a stay.” Stephen M. Shapiro et al., Supreme Court
Practice 879 (10th ed. 2013); see McKee, 562 U.S. 996. Since then, moreover, more recent opinions ruling on requests for injunctions pending appeal have applied this heightened standard. See, e.g., Hobby Lobby, 133 S. Ct. at 642-43; Lux v. Rodrigues,
131 S. Ct. 5, 6 (2010) (Roberts, C.J., in chambers) (“To obtain injunctive relief from a Circuit Justice, an applicant must demonstrate that ‘the legal rights at issue are
‘indisputably clear.’” (citation omitted)); Brown, 533 U.S. at 1303-04; Wis. Right to
Life, 542 U.S. at 1306 (injunction pending appeal “appropriate[]” only where
“‘necessary or appropriate to aid our jurisdiction’” and “the legal rights at issue are
‘indisputably clear’” (citations omitted)).
Requiring “a significantly higher justification than that described in the
§ 2101(f) stay cases” makes sense given the procedural posture. See Ohio Citizens,
479 U.S. at 1313. The Libertarian Party does not merely seek a pause in the
15
Exh. 5, p | 23 judicial proceedings while its rights are adjudicated. It seeks, on an emergency basis while facing discretionary review, irreversible relief that every judge in these proceedings has withheld from it. More than a “fair prospect” of harm is required to justify such extraordinary intervention at this late stage. See id.
II. THE LIBERTARIAN PARTY HAS NOT EVEN ALLEGED, LET ALONE SHOWN, THAT AN INJUNCTION IS NECESSARY TO AID THIS COURT’S JURISDICTION
The Libertarian Party does not cite § 1651’s requirement that an injunction be “necessary or appropriate in aid of [the Court’s] jurisdiction[],” nor has it met it.
The Libertarian Party’s presence or absence on Ohio’s 2016 general-election ballot has no bearing on this Court’s power to consider the Party’s petition for a writ of certiorari from the Sixth Circuit’s final judgment. See Hobby Lobby, 133 S. Ct. at
643. Indeed, Petitioner Charlie Earl did not qualify for the 2014 general-election ballot, see App. Op. 10-11, yet the lower courts have maintained jurisdiction over the Libertarian Party’s various claims arising solely from that election, see id. at 12-
13. (Ohio and the Secretary continue to believe that the conclusion of the 2014 election mooted the Libertarian Party’s selective-enforcement claim, but an injunction in the form of 2016 ballot access would in no way “aid” this Court’s jurisdiction with respect to that claim.) In any event, the Court need “not consider
[the Libertarian Party’s] counsel to have asked for such extraordinary relief where, as here, he has” not “addressed the peculiar requirements for its issuance.” Ohio
Citizens, 479 U.S. at 1314.
16
Exh. 5, p | 24 III. THE LIBERTARIAN PARTY HAS NOT SHOWN THAT IT HAS AN “INDISPUTABLY CLEAR” RIGHT TO AN INJUNCTION
On the merits, the Libertarian Party argues that it is reasonably likely to obtain review and reversal on three grounds: (1) because the Ballot-Access Law violates the Anderson-Burdick line of cases; (2) because the Ohio Republican Party engaged in state action; and (3) because the Sixth Circuit mistakenly addressed
Ohio’s argument that res judicata barred the Libertarian Party’s state-law claim before resolving whether Ohio was entitled to sovereign immunity on that claim.
Appl. 10-27. None of these arguments proves that the Libertarian Party’s rights to an injunction are “‘indisputably clear,’” Hobby Lobby, 133 S. Ct. at 643 (Sotomayor,
J., in chambers) (citation omitted), or, indeed, meets the lower standards for a stay pending certiorari.
A. It Is Not Indisputably Clear That The Challenged Provisions Of The Ballot-Access Law Violate The Fourteenth Amendment
The legal rights at issue here under Anderson-Burdick are indisputably clear, but to the detriment of the Libertarian Party. All four judges to have considered this challenge below have correctly rejected it. Likewise, an Ohio state court granted summary judgment against the Party on a similar equal-protection challenge under state law. Libertarian Party, No. 16-cv-554, Slip Op. at 13-25.
The Anderson-Burdick 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
17
Exh. 5, p | 25 make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434
(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.” Id. (quoting Anderson,
460 U.S. at 788).
The Ballot-Access Law readily satisfies this Anderson-Burdick analysis and is similar to other ballot-access regulations that have passed constitutional muster.
It is a reasonable, nondiscriminatory law that does not severely burden the
Libertarian Party and is more than amply justified by legitimate state interests.
1. Burdens. The Libertarian Party claims that a minor party forming via petition is burdened by the lack of a primary because primaries in Ohio “wed” members to the parties with whom they vote. Appl. 11-12. This argument both conflicts with this Court’s precedent and misconstrues state law.
Start with precedent. This Court’s decision in White forecloses the argument that requiring a minor party to nominate candidates by petition, rather than primary, violates the Anderson-Burdick framework. 415 U.S. at 781-82. Indeed, the Court went so far as to suggest that it cannot “take seriously the suggestion made here that the State has invidiously discriminated against the smaller parties by insisting that their nominations be by convention, rather than by primary election.” Id. at 781. “The procedures are different, but the Equal Protection
Clause does not necessarily forbid the one in preference to the other.” Id. at 781-82.
18
Exh. 5, p | 26 Under White, a State need not provide minor parties a primary. Yet the Libertarian
Party does not even cite White, which makes “indisputably clear” that their claim fails.
Indeed, several circuits have upheld more onerous ballot-access laws after
White. Green Party of Ark. v. Martin, 649 F.3d 675, 677-78 (8th Cir. 2011)
(Arkansas law defining “political party” as a group with at least 3% of vote in most recent gubernatorial election or allowing minor parties access to the ballot via petition with 10,000 signatures collected over 90 days); Rogers v. Corbett, 468 F.3d
188, 190-91 (3d Cir. 2006) (Pennsylvania statute requiring minor-party candidate to gather signatures of at least 2% of the vote total of the candidate who obtained highest number of votes for statewide office over a five month period of time paired with condition that one of the minor party’s candidates have polled 2% of vote total of highest-polling candidate in previous election); Rainbow Coalition of Oklahoma v.
Oklahoma State Election Bd., 844 F.2d 740, 744-46 (10th Cir. 1988) (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).
Turn to state law. The Libertarian Party’s argument that Ohioans affiliate with political parties at partisan primaries misconstrues Ohio’s election laws. For purposes of eligibility to vote in a primary or signing candidate petitions, Ohioans may affiliate with a party by casting that party’s ballot at a primary election or by
19
Exh. 5, p | 27 signing a new-party candidate’s petition. See Ohio Rev. Code §§ 3513.05; 3513.19;
3513.20. These statutes do not govern registration or affiliation in general. Rather, they address party affiliation for limited purposes.
In addition, the Libertarian Party makes no arguments that the Ballot-
Access Law’s provisions regarding party formation and ballot access are themselves unconstitutional. It does not, for example, contend that the number of signatures required to form or for candidates to get on the ballot are too burdensome. Rather, the Party contends it is disadvantaged because voters who voted in another parties’ primary cannot sign its candidate-nomination petitions. Under the Ballot-Access
Law, any registered Ohio voter who requests an “issues-only” primary ballot (one without partisan candidates) or who does not vote in the primary during the preceding two years 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. Certified Records, R.40-1, PageID#609-
612 (S.D. Ohio). Of those, only approximately 1.9 million people voted in that primary election, just over twenty-five percent. Id., PageID#612. In 2010, Ohio had
8,013,558 registered voters. Certified Records, R.40-1, PageID#613-616. Only
1,814,244 of those, or approximately 23%, cast a ballot in the May primary. Id.,
PageID#616. Even assuming that every single one of those individuals cast a partisan primary ballot (as opposed to an issues-only ballot), that would have left at least 75 percent of all registered voters able to sign petitions for Libertarian Party candidates in 2010, 2012, and 2014, respectively. This is hardly a small pool.
20
Exh. 5, p | 28 Moreover, considering the minimal signature requirements a candidate needs to qualify for the ballot, it is hard to fathom how the Party suffers any disadvantage. A newly formed minor party’s statewide candidates need only 50 signatures, and its district-wide candidates need only 5 signatures to qualify for the ballot. Ohio Rev. Code § 3517.012(B)(2)(a)-(b). Yet major party candidates need
1,000 signatures for statewide office and 50 for district-wide office. Id. § 3513.05.
And once a minor party passes the three-percent threshold, its candidates need only half of the signatures required of major-party candidates to appear on the primary ballot. Id.
2. State Interests. The Ballot-Access Law’s modest requirements ensure that new or minor parties have significant support before they appear on the ballot.
Indeed, this Court has already recognized the “important state interest in requiring some preliminary showing of a significant modicum of support—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.” Jenness v. Forston, 403 U.S. 431, 442 (1971). And there is an “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.” Id. at 441. Furthermore, the
Sixth Circuit invalidated an earlier state law that required minor parties to have primaries, Libertarian Party, 462 F.3d at 582-83, 589-90, so it made sense for the
State to limit new parties’ participation in primary elections.
21
Exh. 5, p | 29 This is particularly so because, as the district court found, “minor party primaries are typically uncontested” and experience low voter turnout. Order, R.
285, PageID#7520. Indeed, the Libertarian Party’s own expert, Richard Winger, testified that he does not believe it is good public policy to require minor parties to participate in primaries. Winger Depo., R. 38-1, PageID#424-426. Even when their primaries are contested, minor-party voters tend to be uninformed about the minor parties’ candidates. Id., PageID#425. Winger acknowledged that Ohio’s law is not outside the mainstream. He agrees that it is not unusual for a State to decide that newly qualified political parties do not get to participate in a state-run primary, and endorsed that decision as a preferable, logical choice. Id., PageID#424-26. As
Winger testified in Green Party of Tennessee v. Hargett, 953 F. Supp. 2d 816, 829
(M.D. Tenn. 2013), “‘[m]inor parties in the United States almost never have contested primaries, so providing them with their own is wasteful.’”
Ohio’s experience with minor-party primary elections bears out Winger’s testimony that Ohio’s system is a good and rational policy choice. During the 2012 primary, the Libertarian Party had only 337 individuals across the entire state cast a ballot for its senatorial candidate. http://goo.gl/y9h7Kz (last visited August 25,
2016). In 2012, the Libertarian Party fielded one State Senate candidate and only six candidates for the Ohio House. http://goo.gl/TFKOPm (last visited August 25,
2016); http://goo.gl/aG62Oa (last visited August 25, 2016). In 2010, only 5,476 people requested a Libertarian Party primary ballot. See http://goo.gl/DEuyF2 at
Primary Election: May 4, 2010 (“Voter Turnout by Party” (last visited August 25,
22
Exh. 5, p | 30 2016)). Such low minor-party turnout and candidate participation shows that it is unnecessary for such parties to have a primary.
These low-turnout primaries came at considerable cost to the counties. At a primary election, every precinct has to have a primary ballot prepared for every party running a candidate statewide. See Ohio Rev. Code § 3513.13. The expenditure of such resources in the face of such low turnout substantiates the view of Libertarian Party expert Winger that it is “wasteful” to demand minor-party participation in primary elections. Green Party, 953 F. Supp. 2d at 829. The interest of “defray[ing] election costs” has been approved by the courts as “worthy of advancement.” Green v. Mortham, 989 F. Supp. 1451, 1459 (M.D. Fla. 1998).
3. Libertarian Party’s Cases. The Party’s cases are all far afield. Reform
Party of Allegheny County v. Allegheny County Dept. of Elections, 174 F.3d 305 (3d
Cir. 1999) (en banc), and Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992), have no bearing on the issues presented here. In Fulani, the plaintiffs challenged a
Florida statute that allowed candidates qualifying for the ballot by petition to avoid paying signature-verification fees by submitting a written oath of inability to pay.
The statute, however, provided that minor-party candidates could not provide an oath in lieu of payment of the fees. Applying the applicable Anderson-Burdick analysis, the court invalidated the law because Florida did not identify any interest justifying that facially discriminatory treatment of certain parties. 973 F.2d at
1544. Reform Party of Allegheny County likewise involved a law that denied a benefit to minor parties that was available to others. In that case, state law allowed
23
Exh. 5, p | 31 major parties to cross nominate candidates for local office, but prohibited minor parties from doing the same. The court found the law “facially discriminatory” and a violation of equal protection. See 174 F.3d at 318.
Here, by comparison, the Ballot-Access Law does not deny minor parties such benefits that are provided to others. It creates alternative methods to obtain recognized minor-party status and sets forth the process for minor-party candidates to access the ballot. As White recognized, States may constitutionally create procedures that are different for different classes of candidates. 415 U.S. at 781.
Access to the ballot through a primary and access to the ballot through a petition are two distinct paths to the ballot, “‘neither of which [could] be assumed to be inherently more burdensome than the other.’” Jolivette v. Husted, 694 F.3d 760,
771 (6th Cir. 2012) (quoting Jenness, 403 U.S. at 441).
The Party’s other cases are equally unhelpful to it. Green Party of New York
State v. New York State Board of Elections, 389 F.3d 411 (2d Cir. 2004), involved a challenge to a New York registration law under which voters enrolled as party members when registering. New York law does not use the terms “major party” and
“minor party.” Rather, in New York, a political organization is either a “party” or an “independent body” depending on whether the organization’s gubernatorial candidate received at least 50,000 votes during the last election. Those who achieved 50,000 votes were “parties” and those who did not were “independent bodies.” Id. at 415. Upon registration, New York voters could only enroll as a member of a “party” and not an “independent body.” Id. at 416. Baer v. Meyer, 577
24
Exh. 5, p | 32 F. Supp. 838, 843 (D. Colo. 1984), involved a challenge to a law providing that voters register party affiliation on voter registration forms that provided boxes only for “Democratic,” “Republican,” and “Unaffiliated.” Voters could only affiliate with other parties on a portion of the form labeled “Remarks” and were frequently misinformed that they could not affiliate with other parties. Id. Party membership lists could be generated for Republicans and Democrats from the information provided on the registration forms. Id.
Unlike in Baer and Green Party of New York State, Ohio voters do not declare a party upon registering to vote and they may affiliate with any recognized party at a partisan primary election. As the Sixth Circuit below found, Ohio’s statutes “‘do not govern party registration or affiliation in general,’ but rather refer only to ‘party affiliation’ for a specific purpose: establishing who may vote in a partisan primary.”
App. Op. 24 (citation omitted). These cases do not support the Libertarian Party’s claims, let alone establish that the law is indisputably clear in its favor.
Socialists Workers Party v. Rockefeller, 314 F. Supp. 984 (S.D.N.Y. 1970), summarily aff’d, 400 U.S. 806 (1970), is also inapposite. The Party relies upon the portion of that case invalidating a New York law that called for providing free lists of registered voters to county chairmen of certain political parties but required minor parties to pay for such lists. The Court explained the effect of the provisions
“is to deny independent or minority parties . . . an equal opportunity to win the votes of the electorate” and that there was “no compelling state interest nor even a justifiable purpose for granting what, in effect, is a significant subsidy only to those
25
Exh. 5, p | 33 parties which have least need therefor.” Id. at 995. The Party’s last case, Schulz v.
Williams, 44 F.3d 48, 60 (2d Cir. 1994), involved essentially the same law struck down in Rockefeller. Rockefeller and Schulz have no bearing here as the Ballot-
Access Law does not deny minor parties any benefit available to major parties and, to the extent it imposes any burden, those burdens are justified by State interests.
The Party has failed to offer any authority demonstrating the “indisputable clarity” of its rights, or even a strong likelihood of success. The Sixth Circuit correctly concluded that the Ballot-Access Law does not severely burden the Party.
There is no basis for an emergency injunction on this claim.
B. It Is Not Indisputably Clear that the Ohio Republican Party Was A State Actor That Selectively Enforced An Ohio Statute In Violation Of The Constitution
1. The Libertarian Party also has no “indisputably clear” right to an injunction as to the selective-enforcement claim. That is so for four reasons.
First, the Libertarian Party raises arguments about only a single element of the claim, so even crediting those arguments would not merit overriding the Sixth
Circuit’s judgment. The Party spends its entire argument on this point discussing whether the Ohio Republican Party was a state actor. Even if the Party were right on this point, it has said nothing about the remaining elements—whether enforcement of the Ohio election law here (1) had a discriminatory effect and (2) was motivated by a discriminatory purpose. Wayte v. United States, 470 U.S. 598, 608
(1985). The Party has failed to even argue these elements, let alone satisfy them.
The Party cannot show discriminatory effect because it has not shown that the law was unenforced against “similarly situated individuals.” United States v. 26
Exh. 5, p | 34 Armstrong, 517 U.S. 456, 465 (1996). Indeed, the opposite is the case. An Ohio appellate decision describes a successful protest based on the same Ohio statute that the Party challenges as selectively enforced. See In re Protest of Evans, No.
06AP-539, 2006-Ohio-4690 ¶¶ 4-5 (Ohio Ct. App.); see also Order, R.369,
PageID#8946 (describing additional instance of enforcement); see Libertarian Party,
751 F.3d at 405 (describing Party’s challenge to the same statute).
Nor can the Party show that the enforcement here had a discriminatory purpose. “[T]he decisionmaker”—Ohio’s Secretary of State—did not enforce the law
“‘because of[]’ . . . its adverse effects upon an identifiable group.” Wayte, 470 U.S. at
610 (1985) (citation and some quotation marks omitted). The Party concedes that the Secretary did not selectively enforce the statute in 2014. See App. Op. 14.
The Libertarian Party would thus fail to prevail on its selective-enforcement claim under these required elements. This Court has “taken great pains to explain” that the standard for proving selective enforcement “is a demanding one.”
Armstrong, 517 U.S. at 463. Yet the Libertarian Party is utterly silent about two of the three elements. Silence does not satisfy this “demanding” standard as a de novo matter, let alone when filtered through the “indisputably clear” requirement. Cf.
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (two layers of deference require reviewing court to resolve doubt against party seeking relief).
Second, the Libertarian Party has bypassed multiple opportunities to seek an injunction to restore its party status in Ohio on this ground. The claimed selective enforcement arose in March 2014. See Libertarian Party, 751 F.3d at 407-412.
27
Exh. 5, p | 35 Since then, the Party has twice sought an injunction in this Court to restore its party status. See No. 13A-1089 (May 1, 2014) (denied by Justice Kagan), on further application, (May 5, 2014) (denied by Court after referral by Justice Thomas); No.
15A-725 (January 14, 2016) (denied by Justice Kagan). In those Applications, the
Party could have argued that the alleged selective enforcement required an injunction putting it on the ballot for the 2014 primary election, the 2014 general election, or the 2016 primary election. Yet it did not. Nor did it appeal in late 2014 after the district court rejected a requested preliminary injunction where the Party argued that it should be placed on the general 2014 ballot because of selective enforcement. The distance between the winter of 2014 and today weakens the claim that this Court should put two candidates on the ballot under the Libertarian banner who (1) are not parties to the case, (2) during the events of 2014, were not even a gleam in the Party’s eye, and (3) are now certified as independents.
Forgoing these multiple prior opportunities to seek relief on this basis is
“inconsistent with the urgency [the Party] now assert[s].” Brown, 533 U.S. at 1305
(Rehnquist, C.J., in chambers) (denying injunction pending certiorari).
Third, the Ohio Republican Party is not a state actor in this case. The Ohio
Republican party allegedly triggered the protest. See App. Op. 7. But even
“furnishing” information to authorities about a legal violation does not transform a private actor into a state actor. See, e.g., Cooper v. Muldoon, No. 05-4780, 2006 WL
1117870, at *2 (E.D. Pa. Apr. 26, 2006) (collecting cases). The Ohio Republican
Party’s action here no more makes it a state actor than does a witness reporting a
28
Exh. 5, p | 36 crime to the police or a whistleblower reporting a violation to authorities. The enforcement here was entirely the product of the Secretary, an actor that the
Libertarian Party concedes did not selectively enforce the law. App. Op. 14.
Fourth, the Libertarian Party’s request for relief does not match its theory.
Rather than argue that the Secretary selectively enforced Ohio election law, it argues that the Ohio Republican Party did so. Appl. 19. But even if that is so, the remedy would lie against the Republican Party, not the Secretary. Cf. Wyatt v.
Cole, 504 U.S. 158 (1992) (private actor using unconstitutional state statute did not enjoy qualified immunity under § 1983). It is far from “indisputably clear” that a remedy against Ohio and its Secretary is appropriate here, even if the Libertarian
Party could show all the elements of selective enforcement.
2. Nothing in the Libertarian Party’s application refutes these points.
The Party’s entire argument on selective enforcement relies on “meaningfully different” cases holding that a political party may be a state actor for certain purposes. App. Op. 14. No case that the Party cites holds that a political party is a state actor for reporting an election-law violation. Unlike the Party’s cases, the
Ohio Republican Party did not “determin[e]” candidate qualification, Smith v.
Allwright, 321 U.S. 649, 664 (1944), “determine[] who shall . . . govern,” Terry v.
Adams, 345 U.S. 461, 469 (1953), or “appl[y]” a state statute, Tex. Democratic Party v. Benkiser, 459 F.3d 582, 589 n.9 (5th Cir. 2006). Nor is this case anything like
Morse v. Republican Party of Va., 517 U.S. 186 (1996)—which interpreted a statute, not the Constitution—id. at 195 (Stevens, J., op.), or Constitution Party of Pa. v.
29
Exh. 5, p | 37 Aichele, 757 F.3d 347 (3d Cir.2014)—which involved a question of standing in a facial attack on an election statute. Easily distinguishable cases do not equal indisputably clear rights.
C. The Libertarian Party’s Argument That The Sixth Circuit Should Have Considered Sovereign Immunity Before Res Judicata Does Not Show That The Party Is Indisputably Entitled To Relief On Its State-Law Claim
The Libertarian Party lastly seeks an injunction on the ground that this
Court should consider whether the Sixth Circuit could resolve its state-law claim on res-judicata grounds before addressing whether the State was entitled to sovereign immunity. For many reasons, this issue provides no basis for an injunction.
First, no matter who is right on this procedural debate—whether courts can sidestep a sovereign-immunity issue when it is clear that a plaintiff’s claim fails on the merits—the question is not outcome dispositive. This procedural question thus offers no support for the conclusion that the Libertarian Party has an “‘indisputably clear’” right to be on the November ballot based on an alleged violation of Article V,
§ 7 of the Ohio Constitution. To be entitled to an injunction on that state-law ground, the Libertarian Party would have to show: (1) that the Sixth Circuit indisputably erred in relying on res judicata to find this claim barred; (2) that the district court indisputably erred in relying on sovereign immunity to find this claim barred; and (3) that the state court indisputably erred in finding this claim meritless under the Ohio Constitution’s plain text. But the Libertarian Party does not even attempt to make any of these showings.
30
Exh. 5, p | 38 Second, the Libertarian Party lacks an indisputably clear right to an injunction on the basis of this state-law claim because the Sixth Circuit correctly found the claim barred by res judicata. As the Libertarian Party itself admits, a state court rejected this state-law claim on the merits when it granted summary judgment to the State and dismissed the claim in a final order. Libertarian Party,
No. 16-cv-554, Slip Op. at 25. “The Full Faith and Credit Act, 28 U.S.C. § 1738, originally enacted in 1790, . . . , requires [a] federal court to ‘give the same preclusive effect to a state-court judgment as another court of that State would give.’” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005)
(citation omitted). Under Ohio law, moreover, “[i]t is well-settled that the pendency of an appeal does not prevent the judgment’s effect as res judicata in a subsequent action.” Cully v. Lutheran Med. Ctr., 523 N.E.2d 531, 532 (Ohio Ct. App. 1987).
Third, the Libertarian Party lacks an indisputably clear right to an injunction on the basis of this state-law claim because the district court correctly held that sovereign immunity barred the claim. Order, R.336, PageID#8700-05. It is black-letter law that sovereign immunity bars plaintiffs from seeking injunctive relief in federal court against a State or its officials on claims arising under state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). The
Libertarian Party’s only defense to this argument was that Ohio had somehow waived the sovereign-immunity defense to this state-law claim by intervening to co- defend this litigation before the Libertarian Party had even raised this state-law claim in federal court. But the district court rightly noted that this intervention did
31
Exh. 5, p | 39 not unequivocally illustrate Ohio’s consent to suit on the state-law claim—the standard that the Party must meet. Order, R.336, PageID#8703-05; Coll. Savings
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680-83 (1999).
Fourth, the Libertarian Party lacks an indisputably clear right to an injunction on the basis of this state-law claim because the state court correctly held that the Libertarian Party misinterpreted Article V, § 7 of the Ohio Constitution.
Libertarian Party, No. 16-cv-554, Slip Op. at 7-13. This section provides that “[a]ll nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law . . . .” Ohio Const. art.
V, § 7 (emphasis added). Nowhere does this language grant any party a constitutional right to a primary election despite state law to the contrary. Instead, it directs political parties to state “law” adopted by the General Assembly.
“Manifestly this provision of the constitutional amendment is not self-executing.
Legislation in some form is needed.” Fitzgerald v. Cleveland, 103 N.E. 512, 521
(Ohio 1913) (Wanamaker, J., concurring); cf. State v. Jackson, 811 N.E.2d 68, 72-73
(Ohio 2004) (holding that a similar provision of was not self-executing).
Fifth, even if the Libertarian Party’s right to relief did hinge on the answer to the procedural question that it has presented, the Libertarian Party has alleged only a circuit split on that question. Appl. 25-26. That allegation dooms its request for an injunction. A right to injunctive relief is not indisputably clear when “lower courts have diverged on” the question on which relief depends. Hobby Lobby, 133
S. Ct. at 643 (Sotomayor, J., in chambers). In other words, when “the courts of
32
Exh. 5, p | 40 appeals appear to be reaching divergent results in [the relevant] area,” that conflict disproves (rather than proves) the propriety of an injunction pending further appellate review. Lux, 131 S. Ct. at 7 (Roberts, C.J., in chambers).
Sixth, perhaps for all of these reasons, the Libertarian Party did not even assert this claim as a basis for emergency relief in the Sixth Circuit following that court’s judgment against it. See Mot. to Stay, R. 34, at 2-17 (6th Cir.). By failing to present this argument below, the Party has waived its ability to rely on this ground here. Cf. Spriestma v. Mercury Marine, 537 U.S. 51, 56 n.4 (2002).
IV. THE BALANCE OF EQUITIES TIP AGAINST THE REQUESTED INJUNCTION
Aside from the usual factors, the Court should decline to issue an injunction because the overall equities support the status quo.
Irreparable Injury. An injunction would irreparably injure Ohio. “‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’” Maryland v. King, 133 S. Ct. 1,
3 (2012) (granting stay) (Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). Suspending Ohio’s law is more significant here as “the Framers of the
Constitution intended the States to keep for themselves . . . the power to regulate elections.” Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2623 (2013) (internal quotation marks omitted). The harm is especially pronounced in this case because any harm to the Libertarian Party is self-inflicted. Rather than litigate and exhaustively appeal failure after failure in the courts since 2014, the Libertarian Party could have directed that extensive energy to gathering the signatures necessary to form a 33
Exh. 5, p | 41 recognized minor party under Ohio law. The Party’s choice to litigate rather than persuade Ohio citizens to support it should foreclose an emergency injunction.
By contrast the Libertarian Party suffers no irreparable harm because it loses only a chance to get enough votes for its candidates in this election to qualify as a minor party in Ohio for future elections. It has already bypassed the Ohio 2014 gubernatorial election without gaining an injunction from any court, including this one, to put the Party on the ballot. If the Party’s arguments turn out to be right
(they are not “indisputably clear” now), an injunction can place the Party on any future Ohio ballot. Nothing is irretrievably lost if the Party sits out one more election, especially one where its preferred candidates may very well already be on the ballot as independents anyway.
Mismatch of Remedy and Theory. None of the Libertarian Party’s three legal theories—equal protection, selective enforcement, or state-law violations—match their requested relief: to change the current label on the independent candidacy of
Johnson and Weld to “Libertarian.” It would be odd to award that relief when
Johnson and Weld are not even parties to the case. Further, each claim is incongruent with that requested injunction. If Ohio election law disadvantages minor political parties because they do not automatically get to hold primaries, the remedy is a court-ordered primary after certiorari and full-merits review, not a specific injunction about the non-party candidates Johnson and Weld. If the Ohio
Republican Party selectively enforced a statute in 2014, the remedy should run against the party, but, at best, would mean access to a primary after certiorari and
34
Exh. 5, p | 42 full-merits review, not the specific injunction requested here. If the district court should have heard the Party’s state-law claim (after sidestepping immunity and excusing the res-judicata bar), the remedy would be, once again, a primary down the road, not an injunction renaming candidates likely already on the ballot.
Timing. The timing of this request cuts against the Libertarian Party as well. This Court has rejected last-minute election changes because “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.” Purcell v.
Gonzalez, 549 U.S. 1, 4-5 (2006). Ohio’s deadline to certify the ballot is days away
(August 30). If this Court issues an injunction, it will conflict with both lower federal and state courts’ refusals to find merit in the Party’s arguments and countermand Ohio law, at best, on the eve of that deadline. Johnson and Weld are already on Ohio’s ballot, but are there because Ohio citizens signed petitions for
“Independent” candidates, not “Libertarian” ones.
In response, the Libertarian party touts the supposed harm to the Johnson-
Weld ticket, doubts the harm to Ohio, and speculates that the public will benefit.
Appl. 27-29. It is hard to see how the Johnson-Weld ticket will be harmed (or the public benefited) by changing the name of that ticket. (Conversely, it is possible that Johnson-Weld will be advantaged at the ballot box in Ohio without the
“Libertarian” party label.) The national poll numbers the Party cites have all arisen despite the absence of that ticket gaining official status as “Libertarian” in Ohio.
35
Exh. 5, p | 43
EXHIBIT 6 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 1
No. 16-3537 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______LIBERTARIAN PARTY OF OHIO, ET AL., : On Appeal from the United States Plaintiffs-Appellants, : District Court for the v. : Southern District of Ohio JON HUSTED, IN HIS OFFICIAL : CAPACITY AS OHIO SECRETARY OF : District Court Case No. 2:13-cv-00953 STATE, : Defendant-Appellee, : v. : THE STATE OF OHIO; : GREGORY FELSOCI, : Intervener Defendants- : Appellees. : : :
BRIEF OF APPELLEES-DEFENDANTS JON HUSTED AND STATE OF OHIO
MICHAEL DEWINE (0009181) Ohio Attorney General
HALLI BROWNFIELD WATSON (0082466)* *Lead Counsel JORDAN S. BERMAN (0093075) SARAH E. PIERCE (0087799) Assistant Attorneys General Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872; Fax: 614-728-7592 [email protected] [email protected]
Counsel for Appellee-Defendants Jon Husted and State of Ohio Exh. 6, p | 1
Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 2
TABLE OF CONTENTS
Table of Authorities ...... v
Statement Regarding Oral Argument ...... 1
Statement Of The Issues ...... 1
Statement Of The Case And Facts ...... 2
I. Introduction...... 2
II. S.B. 193’s structure for minor party ballot access...... 3
III. The disqualification of the Party’s 2014 gubernatorial candidate...... 6
IV. Relevant procedural history...... 11
Summary Of The Argument ...... 11
Argument...... 12
I. Standard of review...... 12
II. The Party’s challenge to the disqualification of its gubernatorial candidate from the 2014 ballot fails as a matter of law...... 13
A. The Party’s claim is moot...... 13 B. The Party cannot show that the Secretary or any state actor selectively enforced the law when the Party’s 2014 gubernatorial candidate was disqualified from the 2014 ballot...... 14 1. The Party has not identified a similarly situated entity or individual against whom the law was not applied...... 16 2. It is undisputed that Secretary Husted did not enforce the law with a discriminatory purpose...... 18 3. The Party offers no evidence or argument to satisfy the third element of its claim, discriminatory effect...... 23
i Exh. 6, p | 2 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 3
4. There is no evidence that anyone in the Secretary’s office joined any conspiracy...... 24 5. Terry Casey, the Ohio Republican Party, and the Kasich campaign are not state actors...... 31 III. The Party’s equal protection challenge to S.B. 193 fails as a matter of law...... 34
A. The applicable Anderson/Burdick analysis...... 34 B. The Party does not have a constitutional right to a primary and cannot be severely burdened by the lack of one...... 36 C. Primary access itself imposes burdens...... 42 D. Any burden imposed by S.B. 193 is justified by legitimate state interests...... 43 E. Amici cannot raise new arguments against S.B. 193...... 47 IV. The Party’s Ohio Constitutional Claim ...... 50
A. The Party is barred by res judicata from appealing the dismissal of its Ohio constitutional challenge to S.B. 193...... 50 B. Even if not barred, Eleventh Amendment immunity precludes the Party’s Ohio constitutional claim...... 52 C. The Party’s Ohio constitutional claim fails on the merits...... 57 V. Appellate success would not automatically provide the Party’s presidential candidate ballot access...... 58 Conclusion ...... 59
Certificate Of Compliance ...... 60
Certificate of Service ...... 61
Appendix: Designation Of Relevant District Court Documents ...... 62
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TABLE OF AUTHORITIES
Cases Page(s) American Party of Texas v. White 415 U.S. 767 (1974) ...... 35
Ameripride Services, Inc. v. Valley Industrial Service, Inc., 2008 WL 5068672 (E.D. Cal. 2008) ...... 56, 57
Anderson v. Celebrezze, 460 U.S. 780 (1983) ...... 34 Baer v. Meyer, 577 F.Supp. 838 (D. Colo. 1984) ...... 36 Bd. of Regents v. Phoenix Int’l Software, Inc., 653 F.3d 448 (7th Cir. 2011) ...... 56 Bekcham v. National R.R. Passenger Corp., 569 F.Supp.2d 542 (D. Maryland 2008) ...... 56 Biomedical Patent Mgmt. Corp. v. California, Dept. of Health Servs., 505 F.3d 1328 (Fed. Cir. 2007) ...... 56 Bishop v. Ohio Dep’t of Rehab. and Corr., 529 F. App’x 685 (6th Cir. 2013) ...... 22, 23 Burdick v. Takushi, 504 U.S. 428 (1992) ...... 34 Carty v. State Office of Risk Management, 733 F.3d 550 (5th Cir. 2013) ...... 55, 56
Cellnet Communications, Inc. v. F.C.C., 149 F.3d 429 (6th Cir. 1998) ...... 47
Chakan v. City of Detroit, 998 F.Supp. 779 (E.D. Mich. 1998) ...... 51
Chattam v. Toho Tenax America, 686 F.3d 339 (6th Cir. 2012) ...... 21
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Cases Page(s) Clark v. Barnard, 108 U.S. 436 (1883) (Rhode Island could not assert immunity after appearing and prosecuting claim) ...... 56
Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347 (3d Cir. 2014) ...... 32
Council of Alternative Political Parties v. State of New Jersey Division of Elections, 781 A.2d 1041 (N.J. App. 2001) ...... 41
Cully v. Lutheran Med. Ctr., 37 Ohio App. 3d 64, 523 N.E.2d 531 (1987) ...... 52 Daubenmire v. City of Columbus, 507 F.3d 383 (6th Cir. 2007) ...... 17 DeNoma v. Hamilton Cty. Ct. of Comm. Pleas, 626 F.App’x 101 (6th Cir. 2015) ...... 22 Embury v. King, 361 F.3d 562 (9th Cir. 2004) ...... 55
Faghri v. Univ. of Conn., Case No. 3:06-cv-01957, 2010 WL 2232690 (D. Conn. June 3, 2010) ...... 53, 54 Farm Labor Organizing Committee v. Ohio State Highway Patrol, 308 F.3d 523 (6th Cir. 2002) ...... 23
Galassini v. Town of Fountain Hlls, 2013 WL 5445483 (D. Az. 2013) ...... 55, 56
Gardenhire v. Schubert, 205 F.3d 303 (6th Cir. 2000) ...... 15, 17, 18
Green Party of Arkansas v. Martin, 649 F.3d 675 (8th Cir. 2011) ...... 35 Green Party of Michigan v. Land, 541 F.Supp.2d 912 (E.D. Mich. 2008) ...... 41, 42
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Cases Page(s) Green Party of Pennsylvania v. Aichele, 89 F.Supp.3d 723 (E.D. Pa. 2015) ...... 41
Green Party of Tennessee v. Hargett, 791 F.3d 684 (6th Cir. 2015) ...... 43, 48
Green Party of Tennessee v. Hargett, 953 F.Supp.2d 816 (M.D. Tenn. June 18, 2013) ...... 44, 45, 46, 48
Green v. Mortham, 989 F. Supp. 1451 (M.D. Fla. 1998) ...... 46 Harajli v. Huron Twp., 365 F.3d 501 (6th Cir. 2004) ...... 17 Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985) ...... 25 Jenness v. Forston, 403 U.S. 431 (1971) ...... 38, 44, 46 Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010) ...... 43
Ku v. State of Tennessee, 322 F.3d 431 (6th Cir. 2003) ...... 55 Lansing v. City of Memphis, 202 F.3d 821 (6th Cir. 2000) ...... 31
Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002) ...... 54, 55
Lesher v. Lavrich, 784 F.2d 193 (6th Cir. 1986) ...... 50, 52
Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) ...... passim Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014) ...... passim
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Cases Page(s) Libertarian Party of Ohio v. Husted, Franklin County C.P. No. 16CV554 (June 7, 2016)...... 50
State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417 ...... 30
Lombardo v. Pennsylvania Dep’t of Public Welfare, 540 F.3d 190 (3d Cir. 2008) ...... 55
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982) ...... 15 Medical Mut. Of Ohio v. K. Amalia Enterprises Inc., 548 F.3d 383 (6th Cir. 2008) ...... 12 Memphis Tenn. Area Local, Am. Postal Workers Union, AFL-CIO v. City of Memphis, 361 F.3d 898 (6th Cir. 2004) ...... 33 Moore v. City of Paducah, 890 F.2d 831 (6th Cir. 1989) ...... 24 Moore v. Philip Morris Cos., Inc., 8 F.3d 335 (6th Cir. 1993) ...... 13 Morse v. Republican Party of Virginia, 517 U.S. 186 (1996) ...... 32, 33 Nader v. McAuliffe, 593 F. Supp. 2d 95 (D.D.C. 2009) ...... 31, 32
Ohio Council 8 American Federation of State v. Husted, 814 F.3d 329 (6th Cir. 2016) ...... 35
Ohio Inns, Inc. v. Nye, 542 F.2d 673 (6th Cir. 1976) ...... 53
Osborn v. Knights of Columbus, 401 F. Supp. 2d 830 (N.D. Ohio 2005) ...... 51
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Cases Page(s) Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ...... 52, 53
Rainbow Coalition of Oklahoma v. Oklahoma State Election Bd., 844 F.2d 740 (10th Cir. 1988) ...... 36
Reeder v. Carroll, No. 09–CV–4013–LRR, 2010 WL 797136 (N.D. Iowa 2010) ...... 56
Reform Party of Allegheny County v. Allegheny County Deptartment of Elections, 174 F.3d 305 (3d Cir. 1999) ...... 41
Rogers v. Corbett, 468 F.3d 188 (3d Cir. 2006) ...... 35 State ex rel. Rust v. Lucas Cty. Bd. of Elections, 100 Ohio St.3d 214, 2003-Ohio-5643, 797 N.E.2d 1254 ...... 51 Skelton v. Henry, 390 F.3d 614 (8th Cir. 2004) ...... 54 Smith v. Allwright, 321 U.S. 649 (1944) ...... 32 State v. Jackson, 102 Ohio St.3d 380 (2004) ...... 57 Staub v. Proctor Hospital, 562 U.S. 411 (2011) ...... 20, 21, 23
Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997) ...... 15, 17
Storer v. Brown, 415 U.S. 724 (1974) ...... 41, 49
Stroud v. McIntosh, 722 F.3d 1294 (11th Cir. 2013) ...... 55
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Cases Page(s) Terry v. Adams, 345 U.S. 461 (1953) ...... 32
Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) ...... 32
United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 (1981) ...... 47
United States v. Anderson, 923 F.2d 450 (6th Cir. 1991) ...... 15 United States v. Armstrong, 517 U.S. 456 (1996) ...... 14, 17 United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) ...... 18 VIBO Corp., Inc. v. Conway, 669 F.3d 675 (6th Cir. 2012) ...... 53 Voltz v. Erie County, 617 Fed. Appx. 417 (6th Cir. 2015) ...... 21
Wayte v. United States, 470 U.S. 598 (1985) ...... 17, 18 Wilkerson v. Warner, 545 F. App’x 413 (6th Cir. 2013) ...... 15, 16, 24
Wilson v. Hosemann, 185 So.3d 370 (Miss. 2016) ...... 32
Statutes Page(s) 42 U.S.C. § 1983 ...... 15, 20, 33
Ohio Rev. Code § 149.43 ...... 26 Ohio Rev. Code § 2505.02(B)(1) ...... 52 Ohio Rev. Code § 3501.01(C) ...... 5, 48 viii Exh. 6, p | 9 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 10
Statutes Page(s) Ohio Rev. Code § 3501.01(E)(1) ...... 40
Ohio Rev. Code § 3501.01(F)(1) ...... 5, 48
Ohio Rev. Code § 3501.01(F)(2)(a) ...... 4, 5, 48
Ohio Rev. Code § 3501.01(F)(2)(b) ...... 4, 48
Ohio Rev. Code § 3501.04 ...... 57
Ohio Rev. Code § 3501.38(E) ...... 49 Ohio Rev. Code § 3501.38(E)(1) ...... 8, 18 Ohio Rev. Code § 3503.06(c)(1)(a) ...... 53 Ohio Rev. Code § 3513.05 ...... passim
Ohio Rev. Code § 3513.19 ...... 6 Ohio Rev. Code § 3513.19(A)(3) ...... 6 Ohio Rev. Code § 3513.262 ...... 7, 19, 21 Ohio Rev. Code § 3517.01(A)(1)(b)(ii) ...... 4 Ohio Rev. Code § 3517.01(A)(1)(b)(iii) ...... 4 Ohio Rev. Code § 3517.012(A)(1) ...... 5 Ohio Rev. Code § 3517.012(B)(2)(a) ...... passim
Ohio Rev. Code § 3517.012(B)(2)(b) ...... 5
Ohio Rev. Code § 3517.016 ...... 6
Other Authorities Page(s) Federal Rules of Civil Procedure Rule 56(a) ...... 12 Ohio Am. Sub. S.B. 193 §4(B), 130th G.A. (2013) ...... 4 Ohio Constitution Art. V, Section 7 ...... 50, 57, 58
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Other Authorities Page(s) U.S. Const., First Amendment ...... 15
U.S. Const., Eleventh Amendment ...... passim
U.S. Const., Fourteenth Amendment ...... 34, 35
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STATEMENT REGARDING ORAL ARGUMENT Defendants-Appellees do not believe that oral argument would further assist this Court in deciding the issues presented.
STATEMENT OF THE ISSUES
1. Whether the Secretary unconstitutionally selectively enforced Ohio law
when the unrefuted evidence establishes that he was the sole decision-maker,
he acted without any improper animus, and his decision was not influenced
by anyone.
2. Whether S.B. 193’s creation of an alternative to primary elections for minor
political parties to obtain ballot access imposes minimal burdens justified by
state interests.
3. Whether a plaintiff is barred from appealing a federal court’s dismissal of a
state law claim after the plaintiff has litigated the same claim in state court to
final judgment.
4. Whether Ohio waived its Eleventh Amendment immunity against claims
completely unrelated to the claims it intervened to defend.
5. Whether Article 5, Section 7 of the Ohio Constitution can serve as a basis
for a claim and, if it can, whether it expressly contemplates legislation like
S.B. 193 to allow candidates to reach the ballot by petition.
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STATEMENT OF THE CASE AND FACTS
I. Introduction. This case concerns Ohio’s ballot-access laws for minor political parties, and how Ohio election law was applied to the 2014 gubernatorial candidate fielded by the Libertarian Party of Ohio (“Party”). To gain access to Ohio’s 2014 ballot, the
Party’s gubernatorial candidate, Charlie Earl, needed a minimum of 500 valid signatures on his nominating petition. Libertarian Party of Ohio v. Husted, 751
F.3d 403, 409 (6th Cir. 2014). After Earl filed his declaration of candidacy and nominating petition, a member of the Party filed a protest against Mr. Earl with the
Secretary of State. According to the protest, some of Earl’s petition circulators were paid to circulate his petitions but failed to disclose that fact on their petition papers, as required by law. Id. As a result, the illegal signatures were invalidated, leaving Earl with less than the requisite 500 signatures, and causing his disqualification from the ballot. Id. at 410. Because the Party had no 2014 gubernatorial candidate and S.B. 193 required a minor party’s 2014 gubernatorial candidate to receive at least two percent of the vote to retain party status, the Party ceased being a recognized minor political party in Ohio after the 2014 general election.
Since Earl’s disqualification, the Party has attempted to avoid the consequences of its own failure to submit adequate and proper petition papers for
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Earl. It has pursued many theories, claims, and procedures. More than two years later, and after two preliminary injunction motions, a motion for temporary restraining order, two summary judgment motions, two prior appeals to this Court, and an unsuccessful attempt to seek intervention from the United States Supreme
Court, the result remains the same. The District Court properly concluded that
Ohio law was not selectively applied in violation of the Constitution and that S.B.
193 is constitutional.
II. S.B. 193’s structure for minor party ballot access. Effective in 2014, S.B. 193 reformed Ohio’s system for determining political party status and establishing new political parties. As relevant here, the Bill voided previous Secretary of State directives (issued pursuant to court order) recognizing minor parties as qualified for primary and general elections issued after Libertarian
Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006), struck down Ohio’s previous minor-party ballot-access law. S.B. 193 repealed those directives, which provided minor party status to the Party and others, and created two methods by which a political group could obtain minor-party recognition and qualify for the ballot: by receiving three percent of the total vote in a gubernatorial election or
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presidential election, see Ohio Rev. Code § 3501.01(F)(2)(a), or by filing a formation petition, see id. § 3501.01(F)(2)(b).1
Formation by petition requires signatures equal in number to one percent of the total vote for Governor or President at the State’s most recent election. Id. §§
3513.05; 3517.01(A)(1)(b)(i). The signatures must include 500 qualified electors from each of at least half of the congressional districts in Ohio. Id. §
3517.01(A)(1)(b)(ii). This petition must be submitted no later than 126 days before the November general election. Id. § 3517.01(A)(1)(b)(iii).2
A minor party that files a successful formation petition will earn recognized party status for at least twelve months, and will henceforth retain party status by passing the three percent vote threshold at the first election for governor or president that occurs at least twelve months after it forms. Id. § 3501.01(F)(2)(b).
If a minor party obtains at least three percent of the vote for either governor or president, the minor party retains minor-party status and ballot access for four years. Ohio Rev. Code § 3501.01(F)(2)(a).
1 In 2014, a minor political party only had to obtain two percent of the vote for governor to retain party status for the next four years. Ohio Am. Sub. S.B. 193 §4(B), 130th G.A. (2013). As the Green Party’s gubernatorial candidate received two percent of the vote in 2014, the Green Party is a recognized minor political party. See Secretary of State’s Website, 2014 Election results, http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2014Results. aspx (last visited June 30, 2016). 2 In 2016, the party formation petition deadline was July 5, 2016. The Party did not submit a formation petition by this date. 4 Exh. 6, p | 15 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 16
Minor parties who achieve status by the vote-counting method may hold primary elections to nominate their candidates to appear on the general election ballot. Id. § 3501.01(F)(2)(a). On the other hand, minor parties that achieve status by petition determine their general election candidates through nominating petitions. Id. § 3517.012(A)(1). A new party’s candidate for statewide office must submit a petition signed by at least 50 qualified electors. Id. § 3517.012(B)(2)(a).
A new party’s candidate for local office need only be signed by five qualified electors. Id. § 3517.012(B)(2)(b).
In contrast, major parties select their general election candidates solely via primary. Ohio Rev. Code § 3513.05. To be a “major political party,” the party’s candidate for governor or nominees for presidential electors must receive “not less than twenty percent of the total vote cast for such office at the most recent regular state election.” Id. § 3501.01(F)(1). Thus, a major political party must pass the applicable vote test every two years. Id. § 3501.01(C). A person wishing to become a candidate for major party nomination at a primary must file a declaration of candidacy and petition. Id. § 3513.05. Major-party candidates must obtain
1,000 signatures for statewide office and fifty for local office. Id. § 3513.05. They may obtain those signatures only from those who have not voted in another party’s primary in the last two years. Id.
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For purposes of eligibility to vote in a primary and to sign party candidate petitions, Ohioans may affiliate with a party by casting that party’s ballot at a primary election. Ohio Rev. Code §§ 3513.05; 3513.19; 3513.20. Ohio Rev. Code
§ 3513.19 sets forth the process to challenge whether a person is legally entitled to vote in a primary. One of the bases upon which a person may be challenged is that
“the person is not affiliated with or is not a member of the political party whose ballot the person desires to vote.” Id. § 3513.19(A)(3). A person is considered affiliated with a party if he or she voted in that party’s primary or did not vote in any primary during the last two years. Id. § 3513.05. Section 3513.19, however, does not apply to new-party voters. Ohio Rev. Code § 3517.016 provides that “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 law does not govern party membership in general.
III. The disqualification of the Party’s 2014 gubernatorial candidate. While ultimately upholding S.B. 193, the District Court preliminarily enjoined its enforcement for the 2014 election cycle and ordered that the Party and
Intervener-Plaintiffs, the Green and Constitution Parties, be granted access to the
2014 primary and general ballots in accordance with the requirements of Secretary of State Directive 2013-02, which recognized them as minor political parties.
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(Order, R. 47, PageID # 811). The District Court concluded that applying S.B. 193 to the 2014 election cycle would constitute an unconstitutional retroactive application of the law. (Id., PageID# 819-834). Pursuant to Directive 2013-02,
Party candidates submitted nominating petitions in order to qualify for Ohio’s 2014 primary ballot.
This Court has already discussed in detail the protest that led to the disqualification of the Party’s 2014 gubernatorial candidate, Charlie Earl, from the ballot. Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014).
Appellees will briefly herein review for the Court, however, the facts of the protest.
After the Secretary certified Charlie Earl as the Party’s gubernatorial candidate, Intervener-Defendant Gregory Felsoci filed a protest against Earl’s candidacy. Id. at 404-11. Ohio law provides that “[u]pon the filing of such protest, the election officials with whom it is filed shall promptly fix the time and place for hearing it[.]” Ohio Rev. Code § 3513.262 (emphasis added). At the hearing, the election official “shall hear the protest and determine the validity or invalidity of the petition.” Id. (emphasis added). Accordingly, once the protest was filed, Ohio law required the Secretary to hold a hearing and determine the validity of the petition.
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Capital University Law School Professor Brad Smith, serving as Hearing
Officer, conducted the required protest hearing and issued a report and recommendation that the protest be upheld because signatures for Earl were obtained by circulators who were paid but had failed to disclose who paid them on their petition forms, in violation of Ohio Rev. Code § 3501.38(E)(1). Libertarian
Party of Ohio, 751 F.3d at 409; Smith Depo. R. 222-1, PageID # 4854. The main issue presented by the protest was a legal one: whether independent contractors are statutorily required to disclose who pays them. Id. at 410. The Hearing Officer concluded that they are. Id. Secretary Husted adopted the Hearing Officer’s report and recommendation. Id. As a result, the signatures obtained in violation of
Section 3501.38(E)(1) were invalidated, leaving Earl with an insufficient number of signatures to qualify for the ballot. Id.
Secretary of State Husted was the sole decision-maker regarding the validity of the protest and the removal of Mr. Earl from the ballot. (Husted Depo., R. 203-
1, PageID # 4181, 4206, 4215, 4222, 4225). And the Party is clear that it is “not attempting to cast any shadow of a doubt on [Secretary Husted’s] particular decision.” (Id., PageID # 4250). Secretary Husted was indifferent as to the outcome of the protest hearings. (Id., PageID # 4222). He did not care who won or lost. He simply expected everyone-- the petition circulators, his staff, and the
Hearing Officer-- to follow the law. (Id., PageID # 4222, 4224-25, 4249).
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Terry Casey was the impetus behind the protest filed by Mr. Felsoci against
Earl. (Order, R. 260, PageID # 7078). Mr. Casey “is widely recognized as a
Republican political strategist.” (Id.) When Secretary Husted was deciding the protest in March of 2014, he had no idea that Terry Casey was involved. (Husted
Depo., R. 203-1, PageID # 4204-05). The Secretary only learned of Mr. Casey’s involvement a few days before his September 4, 2014 deposition , and even then he did not know the nature of his involvement. (Id). Mr. Casey corroborated this and testified that he had no contact with the Secretary when his office was considering the protest. (Hrg. Transcript, R. 247, PageID # 6581). The Secretary also never talked to Governor Kasich about the protest, and he could not recall speaking with anyone from the Kasich campaign since January 1, 2014 through the date of his deposition. (Husted Depo., R. 203-1, PageID # 4243).
The record evidence similarly establishes that Matthew Damschroder,
Director of Elections at the Secretary of State’s Office, was not aware of Casey’s involvement while the Secretary was deciding the protest. (Damschroder Depo.,
R. 227-1, PageID # 5343-5348, 5418). It was not until August of 2014 that Mr.
Damschroder learned that Mr. Casey was behind the protest. (Id., PageID # 5347-
5348).
Mr. Casey communicated with Mr. Damschroder during the protest process.
Mr. Damschroder is a “go-to” person at the Secretary’s Office for Democrats,
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Republicans, and unaffiliated people alike. (Hrg. Transcript, R. 247, PageID
# 6674). Mr. Damschroder and Mr. Casey had been friends for years, and
Damschroder knew that Casey had a general interest in things like the protests.
(Damschroder Depo., R. 227-1, PageID # 5371, 5373). There was nothing unusual about Mr. Casey’s interest in the protests. (Id., PageID # 5371). Thus, Mr.
Damschroder did not think it was odd for Mr. Casey to contact him seeking otherwise public information related to the protest. (Hrg. Transcript, R. 247,
PageID # 6672).
Mr. Damschroder provided public information to Mr. Casey about the protests that he would have provided to anyone else who asked. Mr.
Damschroder’s communications with Mr. Casey were on “technical details,” (id.,
PageID # 6501) and “procedural process questions” related to filing and hearing the protests (id., PageID # 6509, 6514-6515). Mr. Damschroder explained that he communicates with many different people, including Democrats, Republicans, and unaffiliated people. (Id., PageID # 6674). He explained: “If I know the information, I tell them.” (Id.). Mr. Damschroder has responded to public records requests from Bob Bridges, the Party’s political director, the same way he has responded to requests for public information from Mr. Casey. (Id.,PageID # 6695-
6697).
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IV. Relevant procedural history. On October 14, 2015, the District Court issued an Opinion and Order in which it addressed the Party’s equal protection challenge to S.B. 193 (Count Four).
(Order, R. 336, PageID # 8696-8700). The District Court denied the Party’s motion for summary judgment on Count Four and granted summary judgment to the State. (Id., PageID # 8700). The District Court also dismissed the Party’s challenge to S.B. 193 under the Ohio Constitution (Count Five) for lack of jurisdiction on the basis of Eleventh Amendment immunity. (Id., PageID # 8705).
The only claim left unresolved by the District Court’s October 2015 Order was
Count Seven, the Party’s selective enforcement claim arising from Earl’s disqualification. On May 20, 2016, the District Court granted summary judgment in favor of Defendants and denied the Party’s summary judgment motion on Count
Seven. (Order, R. 369, PageID # 8931).
SUMMARY OF THE ARGUMENT The Party’s selective enforcement claim fails on many levels. The Party has not offered any evidence to establish the essential elements of its claim. It attempts to base its claim on the conduct of private actors, who are not state actors as a matter of law. There is no evidence to demonstrate that a conspiracy existed between the Secretary and those private actors. The Party’s selective enforcement claim was properly dismissed on summary judgment.
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S.B. 193 is constitutional under the applicable Anderson-Burdick analysis. It is a reasonable ballot access law that imposes minimal burdens on minor parties.
The Party’s arguments regarding its ability to register members misconstrues Ohio law, and the Party has failed to proffer any evidence demonstrating that S.B. 193 severely burdens it. The Party also ignores the benefits of not having a primary and the important state interests underlying the law, which include ensuring that minor parties have a sufficient showing of support and not wasting resources on unnecessary primaries.
Finally, As for its Ohio constitutional challenge to S.B. 193, the Party has litigated that claim to final judgment in state court and is barred by res judicata from continuing to pursue it in federal court. That claim fails on its merits in any event, as the state court has already determined.
ARGUMENT
I. Standard of review. This Court reviews a district court’s grant of summary judgment de novo.
Medical Mut. Of Ohio v. K. Amalia Enterprises Inc., 548 F.3d 383, 389 (6th Cir.
2008). Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate if the evidence in the record demonstrates that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. “Once the moving party has met its burden of production, the
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nonmoving party then must. . . designate specific facts showing that there is a genuine issue for trial.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th
Cir. 1993) (quotation omitted).
II. The Party’s challenge to the disqualification of its gubernatorial candidate from the 2014 ballot fails as a matter of law.
A. The Party’s claim is moot. The Party’s selective enforcement claim (Count Seven of its Third Amended
Complaint) challenged the exclusion of its gubernatorial candidate from the May
2014 primary and the November 2014 general election ballots. (Third Am. Compl.
¶ 380, R. 188, PageID # 3845-56). Those elections are now over, and this claim is moot. Blackwell, 462 F.3d at 584 (deeming challenge to Ohio requirement of strict compliance with election laws moot due to the completion of the election).
Blackwell demonstrates that the capable-of-repetition-yet-evading-review exception cannot be applied to the Party’s selective-enforcement claim. In order for this exception to apply, there must be “a reasonable expectation or a demonstrated probability that the controversy will recur.” Id. In Blackwell, then-
Secretary of State Blackwell invalidated the Party’s formation petitions for their failure to use the prescribed election falsification notification required by Ohio.
The Party challenged Ohio’s requirement of strict compliance with election laws, and justified its failure to use the mandated language because legislation changed the required notice after the Party had begun the petition process. After the
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election, the Sixth Circuit found the claim moot, explaining: “Outside of this unique factual situation, there is not a reasonable expectation or demonstrated probability that the LPO or any other political group will be injured by Ohio’s requirement of strict compliance with election laws.” Id. Even more so than in
Blackwell, there can be no reasonable expectation or demonstrated probability that the very fact-specific controversies in this case will recur.
The absence of a remedy on this claim underscores it mootness. The emergency injunctive relief required to put the Party’s presidential candidate on the
November ballot is not an appropriate remedy.
B. The Party cannot show that the Secretary or any state actor selectively enforced the law when the Party’s 2014 gubernatorial candidate was disqualified from the 2014 ballot. The district court properly entered summary judgment against the Party on its selective-enforcement claim. A selective-enforcement claim is an equal protection claim. The Equal Protection Clause prohibits decisions to prosecute based on unjustifiable standards “such as race, religion, or other arbitrary classifications. “ United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotation omitted). The Sixth Circuit has established a three-part test for determining if selective enforcement has occurred:
First, [an official] must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in 14 Exh. 6, p | 25 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 26
similar situations. Second, [the official] must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.
United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991) (citation omitted).
With respect to the first element, “it is an absolute requirement that the plaintiff make at least a prima facie showing that similarly situated persons outside her category were not prosecuted.” Stemler v. City of Florence, 126 F.3d 856, 873 (6th
Cir. 1997). “Furthermore, there is a strong presumption that the state actors have properly discharged their official duties, and to overcome that presumption the plaintiff must present clear evidence to the contrary; the standard is a demanding one.” Id. (internal quotation omitted); Gardenhire v. Schubert, 205 F.3d 303, 320
(6th Cir. 2000).
In addition, “the party charged with the deprivation [of a right secured by the
Constitution] must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). “A private entity or individual acting alone cannot deprive an individual of her First Amendment rights.” Wilkerson v. Warner, 545 F. App’x 413, 420 (6th Cir. 2013), citing
Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000). However,
“[p]rivate persons jointly engaged with state officials in a deprivation of civil rights are acting under color of law for purposes of § 1983.” Id. at 421, quoting
Hooks v. Hooks, 771 F.2d 935, 943 (6th Cir. 1985).
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The Court has explained the standard to establish a civil conspiracy such that joint conduct can make private conduct state action:
A civil conspiracy is an agreement between two or more persons to injure another by unlawful action. Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused the injury to the complainant.
Id., citing Hooks, 771 F.2d at 943-44.
The Party has not proffered any evidence to establish essential elements of its claim. It points to the conduct of private actors, but there is no evidence that a conspiracy existed between the Secretary and those private actors. Because those private actors are not state actors as a matter of law, the Party’s selective- enforcement claim was properly dismissed on summary judgment.
1. The Party has not identified a similarly situated entity or individual against whom the law was not applied. The Party failed to identify any similarly situated person against whom the law was not enforced and therefore failed to satisfy the first—and essential— element of their claim. To satisfy “an absolute requirement” of their claim, the
Party had to present evidence that similarly situated candidates used paid circulators, that those candidates failed to disclose that fact on part-petitions, that the Secretary knew that they failed to disclose that fact, and that the Secretary
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opted not to enforce the law against them. See Stemler, 126 F.3d at 873. Their failure to do so dooms their claim. Daubenmire v. City of Columbus, 507 F.3d
383, 390 (6th Cir. 2007) (dismissing selective enforcement claim when the plaintiff failed to allege that the City of Columbus (the enforcer) knew of other violations); see also Armstrong, 517 U.S. at 469 (holding that a defendant alleging selective prosecution must produce some evidence that similarly situated defendants not in protected class could have been prosecuted but were not); Harajli v. Huron Twp.,
365 F.3d 501, 508 (6th Cir. 2004) (“[A]ccording to Gardenhire, it is an absolute requirement that the plaintiff make at least a prima facie showing that similarly situated persons outside [his or] her category were treated differently.”) (quotation omitted); Stemler, 126 F.3d at 873 (same).
Moreover, the record evidence shows that the Secretary has enforced the law in the past. Brandi Seskes, an attorney in the Secretary of State’s office, testified that the Secretary advised boards of elections to invalidate initiative petitions if paid circulators failed to fill out the entire employer disclosure box. (Hrg.
Transcript, R. 247, PageID # 6602-6605; see also Order, R. 369, PageID # 8946).
In addition, enforcing the law against only persons whose violations are reported to the Secretary does not give rise to an equal protection claim. In Wayte v. United States, 470 U.S. 598 (1985), the government’s policy of prosecuting only those draft violators who informed the government of their intent not to register did
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not violate the Equal Protection Clause. This Court has similarly concluded that a passive enforcement policy (one that prosecutes only those who report themselves or were reported by others) does not constitute purposeful discrimination or give rise to a selective enforcement claim. United States v. Schmucker, 815 F.2d 413
(6th Cir. 1987). Much like in Wayte and Schmucker, the Secretary constitutionally enforces Ohio Rev. Code § 3501.38(E)(1) against those whose violations are reported to him through protests. (Hrg. Transcript, R. 79, PageID # 2082). Under the Party’s theory, the Constitution requires the Secretary to review every petition it receives and independently investigate whether every circulator who leaves the employer disclosure box blank was actually paid. The case law clearly rejects such a notion.
2. It is undisputed that Secretary Husted did not enforce the law with a discriminatory purpose. The Party cannot show that the Secretary—the sole decision maker— enforced the law with a discriminatory purpose, and therefore cannot satisfy the second element of its claim. “Discrimination is ‘purposeful’ if it is intended to accomplish some ‘forbidden aim’” like “intentional selective enforcement because of race, nationality, religion, gender or ‘other arbitrary classification.’”
Gardenhire, 205 F.3d at 319 (internal citation omitted). There is simply no evidence of such a “forbidden aim.”
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The undisputed evidence in this case is that Secretary Husted had only one purpose in enforcing Ohio’s payor disclosure law: to do what the law required.
(Husted Depo., R. 203-1, PageID # 4249). The Party has not presented any evidence to the contrary. It has theories as to why Terry Casey and other private persons did what they did, but that has nothing to do with discriminatory purpose on the part of the enforcer. The Secretary had no knowledge of Casey’s involvement in the protest until a few days before his deposition in September of
2014. (Id., PageID # 4203-05). And he had no contact with the Governor or his campaign about the protest. (Id., PageID # 4181, 4203-05, 4206, 4215, 4248,
4222, 4243). The Secretary was the enforcer. And the Party concedes that they are not questioning his decision. (Id., PageID # 4250).
Importantly, as a matter of Ohio law, the Secretary could not have handled the protest any differently. The Secretary was statutorily required to hold a hearing on the protest and determine the validity of Earl’s petition. Ohio Rev. Code
§ 3513.262. He did just that. The Secretary’s sole purpose throughout the protest process was to fulfill his statutory obligations as Ohio’s chief elections officer.
The Party has adduced no evidence to the contrary. The Party points to various communications between Terry Casey and others in an effort to demonstrate a conspiracy, but there is no evidence that any of these communications stretched to the Secretary himself.
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Left with the unrefuted evidence that the Secretary did not act with any discriminatory purpose, the Party attempts to base its claim on the actions of others and Staub v. Proctor Hospital, 562 U.S. 411 (2011). Its reliance on Staub has no legal or factual basis.
Staub was an employment discrimination case where the plaintiff alleged that he was fired because of his membership in the United States Army Reserve, in violation of the Uniformed Services Employment and Reemployment Rights Act
(USERRA). The United States Supreme Court framed the issue in Staub as follows: “We consider the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.”
Id. at 413. The Court held “that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Id. at 422. That holding was based upon an interpretation of pertinent provisions of USERRA and agency principles.
The Party asserts that the Sixth Circuit has applied Staub “to differing federal civil rights challenges, including those arising under § 1983.” (Appellants’
Br. at p. 38, citing Chattam v. Toho Tenax America, 686 F.3d 339, 351 (6th Cir.
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2012); Voltz v. Erie County, 617 Fed. Appx. 417, 423 (6th Cir. 2015)). Chattam and Voltz are employment cases. The Party does not cite a single selective enforcement claim where Staub has been applied.
But, even if Staub could theoretically be applied to a selective enforcement claim, the facts of this case do not permit its application here. Staub liability attaches if an agent of a final decision-maker acts with discriminatory animus to influence the final decision. Id. at 419, 422. There is no evidence that any agent of the Secretary acted with discriminatory animus intended to cause Earl’s disqualification. Neither Terry Casey, the ORP, nor the Kasich Campaign are agents of the Secretary. The Party does not contend otherwise. But, even if they were, there is no evidence they had any influence on the Secretary’s decision.
Moreover, unlike an employer who has discretion in making employment decisions, the Secretary had no discretion to not hear the protest and decide the petition’s validity. Ohio Rev. Code § 3513.262. Finally, Staub involves a subordinate providing erroneous information to a decision maker, not a subordinate—no matter how motivated—providing accurate information. Here, there is no claim that the substance of the protest—that Earl’s circulators failed to disclose who paid them on part-petitions—was inaccurate.
There is also a complete lack of evidence of proximate cause. As this Court explained: “In a traditional cat’s paw case, ‘a biased subordinate, who lacks
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decisionmaking power, uses the formal decisionmaker [the cat or cat's paw] as a dupe in a deliberate scheme to trigger a discriminatory employment action.’”
DeNoma v. Hamilton Cty. Ct. of Comm. Pleas, 626 F.App’x 101, *4 (6th Cir.
2015), quoting Thrash v. Miami Univ., 549 F. App'x 511, 522 (6th Cir. 2014). To succeed on a cat’s-paw theory, a plaintiff must produce evidence of a “causal nexus” between the ultimate decisionmaker’s decision and the subordinate’s discriminatory animus. Bishop v. Ohio Dep’t of Rehab. and Corr., 529 F. App’x
685, 696 (6th Cir. 2013). That is, a plaintiff “must show that, by relying on this discriminatory information flow, the ultimate decisionmakers acted as the conduit of the supervisor’s prejudice—his cat’s paw.” Id. (internal quotation and citation omitted).
The unrefuted evidence is that none of the Secretary’s employees had any involvement with the alleged conspiracy, harbored any improper animus, or had any influence over the Secretary’s decision and, therefore, could not be a proximate cause of that decision.
The Party focuses on Mr. Damschroder, the Secretary’s Director of
Elections. But, Mr. Damschroder had a very limited role with respect to the protest and no input on its outcome. His role was to receive the filings, give them to the legal department, and gather copies of petitions and forms that have been filed as requested by the legal department. (Hrg. Transcript, R. 247, PageID # 6671-72).
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With respect to this protest, he also provided names of possible hearing officers.
(Id., PageID # 6671). He did not communicate with the Secretary from the time the protest was filed until after it was decided. (Id., PageID # 6693). He made no recommendations as to its outcome. (Id.). He had no decision-making role. (Id.).
The Party claims that Mr. Damschroder succeeded in changing the Hearing
Officer’s ruling on the protest. (Appellants’ Br. at p. 40). But, as explained in greater detail infra, nobody influenced the Hearing Officer’s decision. (Hrg.
Transcipt, R. 252, PageID # 6750-6751, 6755).
The cat’s paw theory contemplates a discriminatory information flow,
Bishop, 529 F. App’x at 696, but here there was no flow of information from Mr.
Damschroder to the Secretary. Nor was there any influence on the Hearing
Officer’s decision, which the Secretary adopted using his own independent judgment. Staub simply has no application legally or factually.
3. The Party offers no evidence or argument to satisfy the third element of its claim, discriminatory effect. The Party offers no evidence or argument as to the third element of its claim, discriminatory effect. “A claimant can demonstrate discriminatory effect by naming a similarly situated individual who was not investigated or through the use of statistical or other evidence which addresses the crucial question of whether one class is being treated differently from another class that is otherwise similarly situated.” Farm Labor Organizing Committee v. Ohio State Highway Patrol, 308 23 Exh. 6, p | 34 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 35
F.3d 523, 534 (6th Cir. 2002) (quotation omitted). The Party offers nothing on this element of its claim.
4. There is no evidence that anyone in the Secretary’s office joined any conspiracy. The Party has failed to establish a genuine issue of material fact on any of the required elements of its civil conspiracy claim. To establish a civil conspiracy, it “must be shown . . . that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused the injury to complainant.” Wilkerson,
545 F. App’x at 421 (quotation omitted). There is no evidence to suggest that any member of the Secretary’s office joined the alleged conspiracy.
The Party alleges that Mr. Damschroder joined the alleged conspiracy, but the record evidence demonstrates that Mr. Damschroder was not even aware of
Casey’s plan and, therefore, could not have “shared in the general conspiratorial objective.” (Damschroder Depo., R. 227-1, PageID # 5342-5348, 5418). It was not until August 2014, well after the Secretary decided the protest in March, that
Mr. Damschroder learned that Mr. Casey was behind the protest. (Id., PageID #
5347-5348). Mr. Damschroder could not have agreed to assist with a plan he did not know about. See Moore v. City of Paducah, 890 F.2d 831, 835 (6th Cir. 1989)
(“The evidence proffered in this case could not reasonably support a finding that an agreement existed. Absent such a finding, there can be no conspiracy.”). While a 24 Exh. 6, p | 35 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 36
coconspirator need not know “all of the details of the illegal plan,” there still must be a plan and the alleged coconspirator must have “shared in the general conspiratorial objective.” Hooks, 771 F.2d at 944. There is no evidence whatsoever that there was any plan shared by Mr. Damschroder and anyone else the Party alleges to be part of the conspiracy.
The evidence does not support the Party’s argument that Mr. Damschroder was aware of Casey’s involvement. It claims: “On or about February 17, 2014,
Casey contacted Damschroder ‘about filing a protest’ against Earl.” (Appellants’
Br. at p. 17). The actual testimony is that Mr. Casey contacted Mr. Damschroder about filing a protest, not about filing a protest against Earl. (Casey Depo., R.
241-1, PageID # 6261). This is the type of procedural issue Mr. Damschroder regularly addresses with anyone who asks.
There is also no evidence that Mr. Damschroder committed any overt act in furtherance of the alleged conspiracy, let alone one that injured the Party. The
Party makes much of Mr. Damschroder’s email to employees within the Secretary of State’s Office reminding them that if a protest is filed, even after 4:00 p.m., to time-stamp and disseminate it. (Hrg. Transcipt, R. 247, PageID # 6612-6613).
Mr. Damschroder explained this instruction: “[W]e had knowledge that a protest was going to be filed and so based on that and because it was the day of the filing deadline I instructed my staff to make sure that if something was filed that we time
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stamped it and that it was given to legal.” (Id., PageID # 6613). He also explained at his deposition that he instructed staff to accept and time stamp a protest even if it is filed after 4 pm “so a determination could be made whether it’s timely or not.”
(Damschroder Depo., R. 227-1, PageID # 5299). Mr. Damschroder explained that he knew protests were coming, but did not know who was bringing them. (Id.)
Moreover, it is undisputed that the protest was timely filed. And, there is no evidence that Mr. Casey or anyone else had concerns that Felsoci’s protest would not be timely filed or that any such concern was communicated to Mr.
Damschroder.
The Party makes much of public records requests submitted to the
Secretary’s office, but Mr. Damschroder explained that it is not unusual for campaigns to make public records requests for their opponents’ petitions. (Hrg.
Transcript, R. 247, PageID # 6615, 6618). Moreover, the Secretary’s office is required by Ohio’s Public Records Act to provide public records to those who request them. Ohio Rev. Code § 149.43.
As the District Court summarized: “[W]hile Damschroder was helpful to
Casey during the protest process, there is no indication that he would not have been equally helpful to anyone seeking information about election related procedures, including Plaintiffs.” (Order, R. 260, PageID # 7091). The District Court specifically noted that Mr. Bridges contacted Mr. Damschroder for his assistance
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and that his experience working with Secretary Husted’s office has been “[f]or the most part pleasurable.” (Id., citing Bridges Depo., R. 201-1, PageID #3997).
The Party repeatedly misrepresents the record in arguing that employees of the Secretary’s office assisted Casey and attempted to influence the outcome of the protest hearing.
The evidence does not support the Party’s claim that “Casey asked
Damschroder to investigate Hatchett.” (Appellants Br. at p. 20). Mr. Casey testified that he did some “Googling” and discovered that Mr. Hatchett was a registered sex offender and a professional petition circulator for hire, which raised
“red flags” to him. (Casey Depo., R. 241-1, PageID # 6247-58). Mr. Casey testified that he “asked a number of people the question of whether there was anything statutorily that prohibited a registered sex offender from being a circulator of petitions” and that he “might have indicated there was a question” to
Mr. Damschroder, but that he did not know if he asked Mr. Damschroder because
“he’s obviously not an attorney.” (Id. , Page ID # 6260). There is no evidence that
Mr. Casey asked anyone at the Secretary’s office to investigate Mr. Hatchett.
There is also no evidentiary basis for the Party’s assertion that Brandi
Seskes, Elections Counsel in the Secretary of State’s Office, “performed a criminal background check on Hatchett,” one of Earl’s circulators, at Mr. Damschroder’s request. (Appellants’ Br. at p. 20). Ms. Seskes testified she was not asked to
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investigate Mr. Hatchett. (Seskes Depo., R. 221-1, PageID #4822). Although she
“probably Googled his name to figure out who he was,” she “wasn’t interested in his criminal background per se,” but rather “was trying to get a handle on who was mentioned in the protest.” (Id). She “Googled quite a bit of names.” (Hrg.
Transcript, R. 247, PageID # 6597). As Ms. Seskes explained, whether Hatchett had a criminal record was potentially relevant because felons cannot circulate petitions under certain circumstances. (Seskes Depo., R. 221-1, PageID # 4824).
The only other effort the Party makes to tie anyone in the Secretary’s office to the alleged conspiracy against them is to claim that Mr. Damschroder and Jack
Christopher, General Counsel in the Secretary’s office, succeeded in changing the
Hearing Officer’s mind to rule against Earl. (Appellants’ Br. at p. 40). But
Hearing Officer Smith testified that no one at the Secretary’s office told him how to decide the case or tried to influence his decision. (Hrg. Transcript, R. 252,
PageID # 6750-6751). Outside of the advocacy at the actual protest hearing, no one, including Mr. Casey, attempted to influence Hearing Officer Smith’s decision.
(Id., PageID # 6755).
Left with the unrefuted evidence that no one attempted to influence Hearing
Officer Smith’s decision, the Party takes great liberties with the record evidence to argue otherwise. The Party references a thirty-three minute phone call to Hearing
Officer Smith initiated by Mr. Christopher from Mr. Damschroder’s office.
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(Appellants’ Br. at p. 21-22). But Hearing Officer Smith testified that he does not remember what the phone conversation was about. (Hrg. Transcript, R. 252,
PageID # 6741). Mr. Christopher remembered having a telephone conversation with Hearing Officer Smith about having a transcript delivered to him. (Id.,
PageID # 6817-6819). He also testified that he had conversations with Smith about things other than the protest hearing, including hockey and the fact that they owned the same breed of dog. (Id., PageID # 6833).
The Party also makes much of an email exchange between Hearing Officer
Smith and Mr. Christopher, in which the Hearing Officer initially indicated he was ruling in Earl’s favor. (Hrg. Transcript, R. 252, PageID # 6728-6729). Mr.
Christopher responded with an analysis of one of the primary cases governing the legal issue involved. (Id., PageID # 6733, 6822-6824). Before he received Mr.
Christopher’s email, the Hearing Officer had already decided to change his decision. (Id., PageID #6751-6752). He did not give much thought to Mr.
Christopher’s email and it did not factor into his ultimate decision. (Id.) As the
District Court found:
Professor Smith[, a law school professor and former chair of the Federal Elections Commission,] is unquestionably capable of properly interpreting the scope of the Evans decision without anyone else’s assistance. That Professor Smith reached a different conclusion earlier while under the pressure to promptly issue his report does nothing to detract from the Court’s conclusion that his final recommendation was the result of his own, independent analysis.
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(Order, R. 260, PageID # 7090, citing Smith Depo., R 222-1, PageID # 4867-
4869).
There is also no evidence or authority to suggest that Mr. Christopher’s email was in any way improper or motivated by any political animus. Mr.
Christopher testified that he was neutral and detached from the outcome of the proceeding, but “was an advocate for what [he] thought to be the state of the law.”
(Christopher Depo., R. 223-1, PageID # 4969). Notably, Mr. Christopher’s analysis and Hearing Officer’s Smith’s final interpretation of the law, adopted by the Secretary, have been upheld by every court to review it. State ex rel.
Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, ¶ 22 (“We find that
Secretary Husted has set forth a reasonable interpretation of R.C. 3501.38(E)(1) based on common usage of the term ‘employ.’”); Order, R. 80, PageID # 2170
(“The notion that independent contractors are exempt from the disclosure requirement appears to be little more than urban legend . . . .”); Libertarian Party of Ohio, 751 F.3d at 422 (rejecting the Party’s argument that the term “employing” is vague as “unconvincing”).
In short, Mr. Damschroder could not join a conspiracy he did not know about, and he could not have possibly committed an overt act to further a conspiracy of which he was not aware. The District Court properly concluded:
“Plaintiffs fail to identify any facts that are suggestive enough to back its
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allegations of a civil conspiracy, let alone able to withstand Secretary’s Husted’s and Felsoci’s motions for summary judgment.” (Order, R. 369, PageID # 8946).
5. Terry Casey, the Ohio Republican Party, and the Kasich campaign are not state actors. Terry Casey’s conduct in initiating the protest as well as the conduct of other private actors who may have assisted him may not be imputed to the Secretary or used to attack a decision only the Secretary had the authority to make.
The Party seeks to rely upon the public function test to claim that these private actors’ conduct constitutes state action. Under the public function test, private conduct is attributable to the state if “the private entity exercise[s] powers which are traditionally exclusively reserved to the state, such as holding elections or eminent domain.” Lansing, 202 F.3d at 828 (internal citations omitted).
Nothing about the protest process invoked by Felsoci assigns state power to a private party. Statutory law provides Felsoci, as a qualified elector, with the ability to file a protest against a candidate of his party. Ohio Rev. Code § 3513.05.
The law does not grant him or any other private entity the authority to decide the protest or determine whether the protested candidate will appear on the ballot. In
Nader v. McAuliffe, 593 F. Supp. 2d 95, 102 (D.D.C. 2009), the court concluded that filing a ballot access challenge does not constitute state action: “[T]he fact that private citizens may file challenges under the ballot access statutes is
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antithetical to the assertion that doing so is a function traditionally exclusively reserved to the States.”
The Party claims that Constitution Party of Pennsylvania v. Aichele, 757
F.3d 347 (3d Cir. 2014), “refute[s]” Nader. (Appellants’ Br. at p. 35). But,
Aichele addressed only the issue of standing and does nothing to call into question the Nader decision.
As the District Court recognized, the cases the Party relies upon, Smith v.
Allwright, 321 U.S. 649 (1944), and Terry v. Adams, 345 U.S. 461 (1953), “are limited to circumstances where a political party has been assigned an integral part of the elections process such that the party is performing a governmental function.”
(R. 260, PageID# 7094, citing Banchy v. Republican Party of Hamilton Cnty., 898
F.2d 1192, 1195-96 (6th Cir. 1990)). Here, no part of the electoral process has been assigned to any private actor. Other cases relied upon by the Party involve dissimilar situations where political parties or their officers were empowered with the ability to determine a candidate’s eligibility. See Texas Democratic Party v.
Benkiser, 459 F.3d 582, 589 n. 9 (5th Cir. 2006); Wilson v. Hosemann, 185 So.3d
370, 375 (Miss. 2016). Here, however, only the Secretary had such authority.
Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), another of the
Party’s cases, is legally and factually inapposite. Morse concluded only that the pre-clearance requirement of the Voting Rights Act applied to a major party’s
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nominating convention where the party was “delegated the power to determine part of the field of candidates from which the voters must choose.” Id. at 198. Again, no such delegation of governmental power to a private actor has occurred.
The Party also contends that Mr. Casey is a state actor because he chairs
Ohio’s Personnel Board of Review. (Appellants’ Br. at 37). But “acting under color of state law requires that a defendant in a § 1983 action have exercised the power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed by the authority of state law.’” Memphis Tenn. Area Local,
Am. Postal Workers Union, AFL-CIO v. City of Memphis, 361 F.3d 898, 903 (6th
Cir. 2004), quoting West v. Atkins, 487 U.S. 42, 48 (1988). Nothing about Mr.
Casey’s role as chair of the Personnel Board of Review had anything to do with this protest or provided him with the ability to do what he did. As the District
Court found, “Plaintiffs do not submit any evidence that indicates that Casey was acting in his official capacity, that Casey used his role as chairperson to facilitate his actions, or that Casey’s position relates to any of the acts Plaintiffs cite.”
(Order, R. 369, PageID # 8941). That Mr. Casey has a completely unrelated state position does not make him a state actor for purposes of this case.
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III. The Party’s equal protection challenge to S.B. 193 fails as a matter of law.
A. The applicable Anderson/Burdick analysis. The challenged provisions of S.B. 193 are constitutional under the 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 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
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Amendment rights of voters ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions[],” and it is constitutional. Id., quoting Anderson, 460 U.S. at 788; Ohio Council 8 American Federation of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016) (“If. . . the regulations are minimally burdensome and nondiscriminatory, a less-searching examination closer to rational basis applies.”).
S.B. 193 readily satisfies Anderson/Burdick analysis and is similar to other ballot-access regulations that have passed constitutional muster. It is a reasonable, nondiscriminatory law that does not severely burden the Party and is more than amply justified by legitimate state interests. The Supreme Court’s decision in
American Party of Texas v. White forecloses the argument that requiring a minor party to nominate candidates by petition, not primary, violates equal protection.
415 U.S. 767, 781-82 (1974) (“The procedures are different, but the Equal
Protection Clause does not necessarily forbid the one in preference to the other.”).
Under White, a state need not provide minor parties a primary. And several circuits have upheld more onerous ballot access laws. Green Party of Arkansas v.
Martin, 649 F.3d 675, 677-78 (8th Cir. 2011) (Arkansas law defining “political party” as a group with at least 3% of vote in most recent gubernatorial election or allowing minor party ballot access via petition with 10,000 signatures collected over 90 days); Rogers v. Corbett, 468 F.3d 188, 190-91 (3d Cir. 2006)
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(Pennsylvania statute requiring minor party candidate to gather signatures of at least 2% of the vote total of the candidate who obtained highest number of votes for statewide office over a five month period of time paired with condition that one of the minor party’s candidates polled 2% of vote total of highest-polling candidate in previous election); Rainbow Coalition of Oklahoma v. Oklahoma State Election
Bd., 844 F.2d 740, 747 (10th Cir. 1988) (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).
B. The Party does not have a constitutional right to a primary and cannot be severely burdened by the lack of one. The Party’s argument—that Ohioans affiliate with parties at partisan primaries—does not trump White or establish a severe burden, and it misconstrues
Ohio law. For purposes of eligibility to vote in a primary or signing candidate petitions, Ohioans may affiliate with a party by casting that party’s ballot at a primary election or by signing a new-party candidate’s petition. Ohio Rev. Code
§§ 3513.05; 3513.19; 3513.20. These statutes do not govern party registration or affiliation in general. Rather, they address party affiliation for limited purposes.
Parties, as private entities, decide who their members are.
Ohio’s statutes differ from those at issue in Baer v. Meyer, 577 F.Supp. 838,
843 (D. Colo. 1984). In Baer, the challenged law provided that voters register 36 Exh. 6, p | 47 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 48
party affiliation on voter registration forms that provided boxes only for
“Democratic,” “Republican,” and “Unaffiliated.” Voters could only affiliate with other parties on a portion of the form labeled “Remarks” and were frequently misinformed that they could not affiliate with other parties. Party membership lists could be generated for Republicans and Democrats from the information provided on the registration forms. In Ohio, however, voters do not declare a party upon registering to vote and they may affiliate with any recognized party.
As the District Court reasoned in ruling on the Intervener Plaintiffs’ challenge to S.B. 193, there is “no merit” in the “assertion that the denial of access to primaries deprives [minor parties] of the ability to reach potential supporters.”
(Order, R. 285, PageID # 7500). The District Court noted other available means for minor parties to reach voters, including the internet and traditional methods like
“commercials, signs, speeches, debates, town-hall meetings, endorsements, canvassing, social networking, websites, newsletters, bumper stickers, handshaking, baby-kissing, robodialing, leafleting, good-old-fashioned stumping, etc.” (Id. at 7500-01, quoting Stein v. Alabama v. Secretary of State, 774 F.3d 689,
695 n.7 (11th Cir. 2014) (quotation omitted)).
Like the Intervener-Plaintiffs, the Party “seem[s] to suggest that primaries are the only means for minor parties to drum up support” but “fail[s] to explain why that is so, or why other means of identifying supporters are insufficient.” (Id.
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at 7501). It argues that “[o]fficial Party membership . . . carries many practical benefits,” (Appellants’ Br. at 41), but fails to explain what particular benefit the
Ohio laws governing affiliation provide. The Party’s arguments mean that Ohio must recognize and provide a primary to any political group seeking party status, but that is plainly not what United State Supreme Court precedent contemplates.
Jenness v. Forston, 403 U.S. 431, 442 (1971) (recognizing “an important state interest in requiring some preliminary showing of a significant modicum of support—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election”).
The Party makes no arguments that S.B. 193’s provisions regarding party formation and ballot access are themselves unconstitutional. For example, it does not contend that the number of signatures required to form or for candidates to get on the ballot are too burdensome. Rather, the Party contends it is disadvantaged because voters who voted in another parties’ primary cannot sign its candidate- nomination petitions. (Appellants’ Br. at 42). Under S.B. 193, any registered Ohio voter who requests an “issues-only” primary ballot (one without partisan candidates) or who does not vote in the primary during the preceding two years 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. (Certified Records, R. 40-1, PageID # 609-612). Of those, only
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approximately 1.9 million people voted in that primary election, just over twenty- five percent. (Id.) In 2014, Ohio had 7,715,103 registered voters and, of those,
1,307,351, approximately 17%, cast a primary ballot.3 In 2010, Ohio had
8,013,558 registered voters. (Certified Records, R. 40-1, PageID # 613-616).
Only 1,814,244 of those, or approximately 23%, cast a ballot in the May primary.
(Id.) 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 approximately 77 percent, 75 percent, and 83 percent of all registered voters able to sign petitions for Party candidates in 2010, 2012, and 2014 respectively. This is hardly a small pool of Ohioans.
Moreover, considering the minimal signature requirements a candidate needs to qualify for the ballot, it is hard to fathom how the Party suffers any disadvantage. A minor party’s statewide candidates need only fifty signatures, and its district-wide candidates need only five signatures to qualify for the ballot. Ohio
Rev. Code § 3517.012(B)(2)(a)-(b). Major party candidates need 1,000 signatures for statewide office and fifty for district-wide office (far more than the minor parties need). Id. § 3513.05.
As the District Court said, “the burdens S.B. 193 imposes, even in the aggregate, are minimal.” (Order, R. 285 at 35, PageID # 7519.) The District Court
3 See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/ 2014Results.aspx (last visited July 6, 2016) at primary election results. 39 Exh. 6, p | 50 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 51
termed S.B. 193’s signature requirements “modest.” (Id., PageID # 7514). The
District Court also examined the option for parties to form by petition. The court looked to the “relatively late petition deadline” and concluded that this alternate route to the ballot “places these provisions. . . in the same ballpark as similar statutes that have been upheld.” (Id., PageID # 7514, citing Martin, 649 F.3d at
686-87). Any argument that S.B. 193 politically disadvantages minor parties simply does not hold water.
In light of these conclusions, the Party fails to explain why a primary is “the only means for minor parties to drum up support” generally or in its particular case. (Order, R. 285, PageID # 7501). Indeed, the Party has adduced no
“evidentiary basis” for its “bare” allegations that S.B. 193 impeded associational rights. (Order, R. 336, PageID # 8698). S.B. 193 is simply not a severe burden.
(Order, R. 285, PageID # 7517-7519). In some respects, like the different signature requirements for major and minor party candidates for statewide office,
Ohio law treats minor parties better than major parties. See, e.g., Ohio Rev. Code
§§ 3517.012(B)(2)(a)-(b); 3513.05. And, S.B. 193 in fact allows primary participation for minor parties that pass the vote test. Id. § 3501.01(E)(1) and
(F)(2)(a).
The Party’s cases are distinguishable. The statutes in those cases awarded major parties a specific benefit denied to minor parties, as opposed to merely
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creating alternate procedures. In Reform Party of Allegheny County v. Allegheny
County Deptartment of Elections, 174 F.3d 305 (3d Cir. 1999), state law allowed major parties to cross nominate candidates for local office, but prohibited minor parties from doing the same. The court found the law “facially discriminatory” and a violation of equal protection. Id. at 318. Green Party of Pennsylvania v.
Aichele, 89 F.Supp.3d 723 (E.D. Pa. 2015), likewise involved a discriminatory law that left “major political party members free to sign nomination papers for one candidate while voting for another in primaries but prevents minor party members from doing so.” Id. at 749. Council of Alternative Political Parties v. State of New
Jersey Division of Elections, 781 A.2d 1041 (N.J. App. 2001), involved a state law that permitted voters to register only as Republican, Democrat or Independent.
Id. at 1049. Unlike the Party’s cases, S.B. 193 does not facially discriminate against minor parties or deny them benefits provided to major parties. It creates alternative methods to obtain recognized minor-party status and sets forth the process for minor party candidates to access the ballot. As White recognized, states may constitutionally create procedures that are different for different classes of candidates. White, 415 U.S. at 781.
The Party extensively relies on Green Party of Michigan v. Land, 541
F.Supp.2d 912 (E.D. Mich. 2008), but Land is not a ballot-access case and has no bearing here. Land addressed a challenge to a Michigan statute requiring the
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Secretary of State to provide voters’ party-preference records to the major political parties, while forbidding disclosure of such records to anyone else. Again, unlike in Land, Ohio has not foreclosed new parties from any benefit available to other parties.
In short, any burden imposed by S.B. 193 is minimal. There is simply no evidence that it affects a minor party’s “ability to perform its primary functions— organizing and developing, recruiting supports, choosing a candidate, and voting for that candidate in a general election,” and, therefore, does not impose a “severe burden.” Blackwell, 462 F.3d at 587.
C. Primary access itself imposes burdens. The District Court properly observed that “to the extent lack of primary access imposes some burden, that burden should be viewed with the understanding that providing primary access also poses potential downsides for minor parties.”
(Order, R. 285, PageID # 7503). “[P]rimary participation, mandated or otherwise, imposes an inherent disadvantage to minor parties given their limited resources.”
(Id., PageID # 7506). The ballot-access law in Blackwell was struck down in part because minor parties had to file their party-formation petitions so far in advance of the election, at a point when the public was not yet politically engaged. “[T]he disadvantage to minor parties identified in Blackwell would exist to some if not to the same degree regardless of how close a petition deadline is to the primary
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election.” (Id., PageID # 7505-06, citing Stein, 774 F.3d at 696-98 (minor party formation by petition after the primary is less burdensome than requiring primary participation)). Because the purpose of a primary is for a party to select its candidate for a general election, it does not make sense to impose any of the burdens inherent in primary participation on minor parties whose primaries are rarely contested. See infra at 45-46.
D. Any burden imposed by S.B. 193 is justified by legitimate state interests. Given the minimal burden imposed by S.B. 193 and its non-discriminatory nature, rational basis is the applicable standard of review. (Order, R. 285, PageID
# 7519). Under this deferential standard, the Party could prevail only by negating
“‘every conceivable basis which might support the government action[.]’” Johnson v. Bredesen, 624 F.3d 742, 747 (6th Cir. 2010). The state has more than ample justification for S.B. 193. As the District Court found: “S.B. 193 represents a rational means to advance important state interests.” (Order, R. 285, PageID #
7520). The Party’s own expert finds Ohio’s policy choice rational. The Party cannot meet its burden to negate every conceivable basis for S.B. 193. Even under strict scrutiny, the State can show that the law is “‘narrowly tailored and advance[s] a compelling state interest.’” See Hargett, 791 F.3d at 693(citation omitted).
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S.B. 193’s modest requirements ensure that new or minor parties “have a significant modicum of support” before they appear on the ballot. See Jenness,
403 U.S. at 441 (recognizing “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”). And given constraints on the State to afford primaries to minor parties, see, e.g., Blackwell,
(striking down, at the Party’s request, a primary requirement for minor parties), it makes sense for the State to limit new parties’ participation in primary elections.
This is particularly so because, as the District Court found, “minor party primaries are typically uncontested” and experience low voter turnout. (Order, R. 285,
PageID # 7520.)
Indeed, the Party’s own expert, Richard Winger, testified that he does not believe it is good public policy to require minor parties to participate in primaries.
(Winger Depo., R. 38-1, PageID #424-426). Even when their primaries are contested, minor party voters tend to be uninformed about the minor parties’ candidates. (Id., PageID # 425). Mr. Winger acknowledged that Ohio’s law is not outside the mainstream. He agrees that it is not unusual for a state to decide that newly-qualified political parties do not get to participate in a state-run primary, and endorsed that decision as a preferable, logical choice. (Id., PageID #424-426). As
Mr. Winger testified in Green Party of Tennessee v. Hargett, 953 F.Supp.2d 816,
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829 (M.D. Tenn. June 18, 2013), “[m]inor parties in the United States almost never have contested primaries, so providing them with their own is wasteful.”
Ohio’s experience with minor-party primary elections bears out Mr.
Winger’s testimony that Ohio’s system is a good and rational public policy choice.
During the 2012 Primary election, the Libertarian Party had only 337 individuals across the entire state cast a ballot for its Senatorial candidate.4 In 2010, 5,476 individuals requested a Libertarian Party primary ballot.5 In four counties no one requested a Libertarian Party primary ballot, and in thirty-two counties no more than ten individuals requested one. Id. And when granted automatic ballot access by then-Secretary Brunner’s Directives, only a small number of minor-party candidates appeared on the general election ballot. See Directive Nos. 2009-21 and 2011-01.6 In the 2010 general election, the Libertarian Party only ran Ohio
Senate candidates in three of Ohio’s thirty-three districts, 7 and Ohio House
4 See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/ 2012Results/20120306libertarianussenator.aspx (last visited July 6, 2016). 5 See http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2010results.as px at Primary Election: May 4, 2010 (“Voter Turnout by Party” (last visited July 6, 2016). 6 These Directives are available at http://www.sos.state.oh.us/SOS/elections/electionsofficials/Rules/archive.aspx#20 09 (last visited July 6, 2016). 7 See http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2010results/ 20100504OHsenate-L.aspx (last visited July 6, 2016). 45 Exh. 6, p | 56 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 57
candidates in twenty of Ohio’s ninety-nine districts.8 In 2012, the Libertarian
Party fielded one State Senate candidate9 and only six candidates for the Ohio
Statehouse.10 Such low minor-party turnout and candidate participation demonstrates that it is unnecessary for such parties to actually participate in the primary.
These low-turnout primaries came at considerable cost to the counties. At a primary election, every precinct has to have a primary ballot prepared for every party running a candidate statewide. The expenditure of such resources in the face of such low minor-party turnout substantiates the view of Mr. Winger that it is
“wasteful” to demand minor-party participation in primary elections. Green Party of Tennessee, 953 F.Supp.2d at 829. The interest of “defray[ing] election costs” has been approved by the Supreme Court as “worthy of advancement.” Green v.
Mortham, 989 F. Supp. 1451, 1458 (M.D. Fla. 1998).
Under the Party’s logic, any group wanting a primary must be accommodated. But, this would frustrate the state’s interests recognized in Jenness of providing primaries to those with a significant modicum of support and is a
8 See http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2010results/20 101102ohouse.aspx (last visited July 6, 2016). 9 See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/ 2012Results/20120306libertarianohsen.aspx (last visited July 6, 2014). 10 See http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2012Results.as px at “Official Results for 2012 General Election (last visited July 6, 2016). 46 Exh. 6, p | 57 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 58
waste of resources. Taken together, S.B. 193 advances the State’s interests while imposing minimal burdens.
E. Amici cannot raise new arguments against S.B. 193. Amici curiae, the Libertarian National Committee and the Libertarian Party of Kentucky, present new theories not raised by the Party on the claim that S.B.
193 violates the Equal Protection Clause. These new arguments are improper and should not be considered. As this Court has explained: “While an amicus may offer assistance in resolving issues properly before a court, it may not raise additional issues or arguments not raised by the parties. To the extent that the amicus raises issues or makes arguments that exceed those properly raised by the parties, we may not consider such issues.” Cellnet Communications, Inc. v.
F.C.C., 149 F.3d 429, 443 (6th Cir. 1998) (internal citation omitted). See also
United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60, n. 2 (1981) (declining to consider an amicus’ argument “since it was not raised by either of the parties here or below”).
Even if the Amici’s new arguments are considered, they are without merit.
The Amici inaccurately assert: “S.B. 193 gives minor parties that qualify by petition less time to achieve equal electoral success than the major parties.”
(Corrected Amici Br. at 13). A minor party that newly forms by petition has recognized party status for at least twelve months and then retains party status by
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passing the three percent vote test at the election that occurs at least twelve months after it forms. Ohio Rev. Code § 3501.01(F)(2)(b). If a minor party passes the vote test, it retains party status and ballot access for four years. Id. §
3501.01(F)(2)(a). But, to be a “major political party,” the party’s candidate for governor or nominees for presidential electors must receive “not less than twenty percent of the total vote cast for such office at the most recent regular state election.” Id. § 3501.01(F)(1). Thus, a major political party must pass the applicable vote test every two years. Id. § 3501.01(C). Thus, major parties must pass a more stringent vote test more frequently that minor parties.
S.B. 193 is nothing like Tennessee’s ballot access scheme in Green Party of
Tennessee v. Hargett, 791 F.3d 684 (6th Cir. 2015), where major parties were given more time to obtain the same level of electoral success as minor parties in order to retain ballot access. As Hargett explained, “the differences between these two types of parties justify having less onerous burdens on recognized minor parties.” Id. at 694. This less onerous burden is exactly what S.B. 193 imposes.
Amici also complain that the combined effect of the petition submission deadline and signature requirements violate equal protection. (Corrected Amici Br. at 12-13, 18-19). But, as discussed above, Ohio’s scheme is similar or less onerous than others that have been upheld. The Amici argue that the deadline for candidates to submit nominating petitions (fifteen days after the party-formation
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petition deadline) has the practical effect of moving up the formation-petition filing deadline so that candidates can have more than fifteen days to gather signatures.
But Ohio law does not prohibit minor-party candidates from circulating their nominating petitions before a party-formation petition is filed. And the amount of signatures a minor-party candidate needs to obtain are minimal: fifty for statewide office and five for local office. Ohio Rev. Code § 3517.012(B)(2)(a) and (b). Any non-frivolous candidate would easily be able to obtain the requisite number of signatures. White, 415 U.S. at 786-787, n. 18 (1974) (requiring candidates to obtain 22,000 signatures in 55-days was neither “unreasonable” nor “unduly burdensome”); Storer v. Brown, 415 U.S. 724, 740 (1974) (“Standing alone, gathering 325,000 signatures in 24 days would not appear to be an impossible burden.”).
Finally, the Amici attempt to resurrect the Party’s failed challenge to Ohio
Rev. Code § 3501.38(E) by complaining that it is vague and not supported by a state interest. But, this Court has already upheld Section 3501.38(E) against similar arguments brought by the Party. Libertarian Party of Ohio v. Husted, 751
F.3d 403 (6th Cir. 2014). Amici cannot re-litigate that issue when the Party does not raise it.
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IV. The Party’s Ohio Constitutional Claim
A. The Party is barred by res judicata from appealing the dismissal of its Ohio constitutional challenge to S.B. 193. The Party alleged that “S.B. 193 violates Article V, § 7, of the Ohio
Constitution.” (Third Amended Complaint, Doc. 188, ¶ 353, PAGEID # 3844).
The District Court dismissed that count (Count Five) for lack of jurisdiction on the basis of Eleventh Amendment immunity. (Order, Doc. 336, PageID # 8705).
Following that dismissal, the Party litigated that claim to final judgment in Ohio state court. On Jun 7, 2016, Ohio’s Franklin County Court of Common Pleas held that S.B. 193 does not violate the Ohio Constitution. Libertarian Party of Ohio v.
Husted, Franklin County C.P. No. 16CV554 (June 7, 2016) (hereinafter State
Court Decision), available at Appellant’s Br., Addendum 3. The state court rejected the Party’s claim, finding that Article V, Section 7 is not self-executing and therefore cannot serve as the basis of a claim. Id. at 8-11. And, even if it is self-executing, it held that “S.B. 193 complies with the plain language of that provision.” Id. at 13.
Res judicata bars the Party from litigating in federal court the very same
Ohio constitutional claim it lost in state court. “[T]he law is well-settled that federal courts must give prior state court judgments the same preclusive effect they would have in the courts of that state.” Lesher v. Lavrich, 784 F.2d 193, 195 (6th
Cir. 1986), citing Migra v. Warren City School District, 465 U.S. 75 (1984). In
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Ohio courts, “[r]es judicata bars the litigation of all claims that either were or might have been litigated in a first lawsuit.” State ex rel. Rust v. Lucas Cty. Bd. of
Elections, 100 Ohio St.3d 214, 2003-Ohio-5643, 797 N.E.2d 1254, ¶ 9 (quotation omitted).
This case is similar to others in this Circuit where a state court’s summary judgment decision had preclusive effect in federal court. In Chakan v. City of
Detroit, 998 F.Supp. 779 (E.D. Mich. 1998), the district court dismissed state law claims without prejudice, which the plaintiff then re-filed in state court. After the state court granted summary judgment to defendants, the district court held that the state court decision was final and “that res judicata precludes plaintiff from litigating his case in this court.” Id. at 783. In Osborn v. Knights of Columbus, 401
F. Supp. 2d 830 (N.D. Ohio 2005), the district court similarly held that both claim and issue preclusion barred any attempt to relitigate claims in federal court after the state court had granted summary judgment on the merits: “I must give full faith and credit to the state court decision. That means [plaintiff] is now precluded from relitigating before me the issues raised in the state court proceeding.” Id. at 833.
Because the Party did not file its Ohio constitutional claim in state court until after the District Court dismissed the claim for lack of jurisdiction, Appellees did not and could not raise res judicata as a defense in the lower court. Appellees could not waive a defense that did not exist, and it is appropriate for this Court to
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consider res judicata for the first time on appeal. Lesher, 784 F.2d at 196 (no waiver of res judicata defense where, at the time of the district court’s decision,
Ohio appellate judgment upon which defendants relied had not been issued and
“both sides considered the judgment sufficiently ‘final’ only after the decision of the intermediate state appeals court”).11
B. Even if not barred, Eleventh Amendment immunity precludes the Party’s Ohio constitutional claim. Federal courts do not have jurisdiction to hear claims that state laws allegedly violated state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 116 (1984) (“[A] federal suit against state officials on the basis of state law contravenes the Eleventh Amendment. . . .”). The Party’s challenge to S.B. 193 under the Ohio Constitution is a question of state, not federal law, and was properly dismissed. Although the Party recognizes that the Eleventh Amendment bars their state law claims, (Appellants’ Br. at 51), it incorrectly argues that the
State has waived its immunity.
Courts are reluctant to find a waiver of sovereign immunity other than in very clear cases, and this is not one of those cases. “Waiver occurs if the state
11 The Franklin County Court of Common Pleas decision granting summary judgment plainly meets the definition of a final order that may be appealed under Ohio law. Ohio Rev. Code § 2505.02(B)(1). The Party appealed that decision on July 6, 2016. “It is well-settled that the pendency of an appeal does not prevent a judgment's effect as res judicata in a subsequent action.” Cully v. Lutheran Med. Ctr., 37 Ohio App. 3d 64, 65, 523 N.E.2d 531, 532 (1987). 52 Exh. 6, p | 63 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 64
voluntarily invokes federal jurisdiction, or else if the state makes a clear declaration that it intends to submit itself to federal jurisdiction.” VIBO Corp., Inc. v. Conway, 669 F.3d 675, 691 (6th Cir. 2012) (citations, quotation, and punctuation omitted). “[W]aiver cannot be implied but must be unequivocally expressed.” Id.
As the Sixth Circuit has stated, “waiver will not be lightly inferred.” Ohio Inns,
Inc. v. Nye, 542 F.2d 673, 680 (6th Cir. 1976). And, “[a] federal court must examine each claim in a case to see if the court’s jurisdiction over that claim is barred by the Eleventh Amendment.” Pennhurst, 465 U.S. at 121 (emphases added).
Before S.B. 193 was passed, the State of Ohio intervened for the sole purpose of defending the Party’s challenge to Ohio’s out-of-state circulator law,
Ohio Rev. Code § 3503.06(c)(1)(a). (State’s Motion to Intervene, R. 5, PageID
#23). It did not, and could not, “unequivocally express,” the intent to waive its immunity as to the Party’s Ohio Constitutional claim against a law that did not exist at the time it intervened. VIBO Corp., Inc., 669 F.3d at 691. Thus, that claim is jurisdictionally barred.
Under similar facts, immunity was not waived. In Faghri v. Univ. of Conn.,
Case No. 3:06-cv-01957, 2010 WL 2232690, *9-10 (D. Conn. June 3, 2010), the plaintiff, a professor at a state university, sued the university asserting federal claims. The state defendant removed the case to federal court. Id. at *1. After the
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removal, the plaintiff sought to amend the complaint to assert a state law claim. Id. at *2. The court denied leave to amend on the ground of futility, holding that while
“UConn clearly waived its Eleventh Amendment immunity with respect to the underlying complaint by removing the case from state to federal court,” but “has not waived its Eleventh Amendment immunity as to the Plaintiff’s new retaliation claim. . . because the claim relates to a set of factual circumstances distinct from the underlying suit.” Id. at *9-10 (emphasis added).
Skelton v. Henry, 390 F.3d 614, 618 (8th Cir. 2004), a case relied on by the
Party, actually undercuts its arguments. In Skelton, the defendants asserted
Eleventh Amendment immunity against a claim brought via an amended complaint. Id. at 617. The defendants raised Eleventh Amendment immunity in their answer and also included a counterclaim. Id. Skelton found no waiver. Here too, Appellees assert Eleventh Amendment immunity against claims raised in an amended complaint in their answers and, therefore, did not waive it. (Secretary’s
Answer, R. 20, PageID # 209; State’s Answer, R. 21, PageID # 222)
The Party relies heavily on Lapides v. Board of Regents of the University
System of Georgia, 535 U.S. 613 (2002). As the District Court found, that reliance
“is misplaced.” (Order, R. 336, PageID # 8704). Lapides held that “[a] state waives its Eleventh Amendment immunity when it removes a case from state court to federal court.” Id. at 613. Lapides dealt only with the waiver of the claims that
54 Exh. 6, p | 65 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 66
the defendant removed; it did not hold that a defendant who removes or intervenes in a case waives immunity with respect to new claims arising out of different facts asserted after the intervention or removal. Embury v. King, 361 F.3d 562, 566 (9th
Cir. 2004), and Lombardo v. Pennsylvania Dep’t of Public Welfare, 540 F.3d 190,
197 (3d Cir. 2008), likewise do not involve new claims arising from new facts asserted after removal and are similarly distinguishable. The Party’s citation to
Stroud v. McIntosh, 722 F.3d 1294 (11th Cir. 2013), does not add to the analysis as it concluded, like Lapides, that removal waived immunity from suit in federal court.
The Party’s other cases similarly do not establish waiver. In Ku v. State of
Tennessee, 322 F.3d 431, 435 (6th Cir. 2003), Tennessee waived immunity when it raised it as a defense for the first time in its motion for a stay pending appeal.
Similarly, in Galassini v. Town of Fountain Hlls, 2013 WL 5445483, *28-29 (D.
Az. 2013), the state waived its immunity by raising it as a defense for the first time
“in a footnote in response to Plaintiff’s Motion for Summary Judgment.”
Likewise, in Carty v. State Office of Risk Management, 733 F.3d 550, 555 (5th Cir.
2013), immunity was waived where it was never invoked in the district court.
Here, Eleventh Amendment immunity was raised in the Appellees’ answers
(Secretary’s Answer, R. 20, PageID # 209; State’s Answer, R. 21, PageID # 222) and again repeatedly throughout the course of the litigation. (Secretary’s Memo
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Contra 2nd PI Motion, R. 32, PageID # 299-300; State’s Memo Contra 2nd PI
Motion, R. 32, PageID # 303-306; Defendants’ Mot. for Sum. J., R. 267, PageID #
7209-7212). Therefore, Ku, Galassini, and Carty have no application. Other cases the Party relies on are similarly unhelpful to it. Clark v. Barnard, 108 U.S. 436,
448 (1883) (Rhode Island could not assert immunity after appearing and prosecuting claim); Bekcham v. National R.R. Passenger Corp., 569 F.Supp.2d
542, 554 (D. Maryland 2008) (state did not waive immunity by first filing a motion to transfer and then a motion raising Eleventh Amendment immunity and other defenses).
The Party’s own cases do not support the broad waiver it advocates here.
Bd. of Regents v. Phoenix Int’l Software, Inc., 653 F.3d 448, 470 (7th Cir. 2011)
(holding that waiver opens to door for “compulsory” counterclaims, and expressly declining to address whether waiver extends “more broadly”); Biomedical Patent
Mgmt. Corp. v. California, Dept. of Health Servs., 505 F.3d 1328, 1341 (Fed. Cir.
2007) (finding state entity could assert sovereign immunity even after waiving immunity in a separate lawsuit, and “that any waiver, including one effected by litigation conduct, must be ‘clear’”).
Its reliance on Reeder v. Carroll, No. 09–CV–4013–LRR, 2010 WL
797136, *2 (N.D. Iowa 2010), and Ameripride Services, Inc. v. Valley Industrial
Service, Inc., 2008 WL 5068672, *6 (E.D. Cal. 2008) is perplexing as Reeder
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found that immunity had not been waived and the Eleventh Amendment was not even an issue in Ameripride.
Equally meritless is the Party’s argument that the State’s defense of
Intervener-Plaintiffs’ federal constitutional challenges to S.B. 193 constitutes a waiver of sovereign immunity for all other claims. (Appellants’ Brief at 57). The
Secretary is the state officer charged with enforcing Ohio election law. Ohio Rev.
Code § 3501.04. The State does not waive the Secretary’s immunity to state law claims by defending an entirely different federal constitutional challenge to a different statute.
C. The Party’s Ohio constitutional claim fails on the merits. Res judicata and Eleventh Amendment aside, the Party’s Ohio constitutional claim fails on the merits for two reasons, as the Franklin County Court of Common
Pleas has already concluded.
First, Ohio Constitution Art. V, Section 7 is not a self-executing source of independent protection and cannot serve as the basis for a claim. (State Court
Decision, Appellants’ Br., Addendum 3, citing State v. Williams, 88 Ohio St.3d
513, 521 (2000); State v. Jackson, 102 Ohio St.3d 380, 384 (2004)). As the state court found, Art. V § 7 is analogous to Art. V § 2, a provision that the Ohio
Supreme Court has already found not to be self-executing. (Id. at p. 9, citing State v. Jackson, 102 Ohio St.3d 380, 384 (2004)).
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Second, even if it could be the basis for a claim, S.B. 193 fully complies with Art. V, Section 7. This section provides that “[a]ll nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law….” (emphasis added). It expressly contemplates that a candidate can be nominated by petition or primary, which is exactly what S.B. 193 does. (State Court Decision, Appellants’ Br., Addendum 3 at p. 11).
V. Appellate success would not automatically provide the Party’s presidential candidate ballot access. The Party has sought an expedited appeal “so that it may be fully resolved before August 10, 2016, when presidential nominations are due in Ohio.”
(Appellants’ Motion for Emergency Relief and/or to Expedite Appeal at 2). But, should this Court reverse, that does not mean that S.B. 193 will be enjoined. The
Party argues that summary judgment should not have been entered against it on its equal protection challenge to S.B. 193, but does not articulate why summary judgment should have been granted to it. The best the Party can hope for is remand to the District Court. As for the Party’s selective enforcement claim, even if this Court were to find that summary judgment should be entered in the Party’s favor, ballot access for the 2016 general election is not an appropriate remedy for the disqualification of a candidate from the 2014 ballot. At a minimum, remand for a determination of the appropriate remedy on Count Seven would be necessary. 58 Exh. 6, p | 69 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 70
CONCLUSION For all the foregoing reasons, the District Court’s Orders should be affirmed.
The Party has failed to offer any evidence to establish a genuine issue of material fact on its selective enforcement claim. As for S.B. 193, it is constitutional under the applicable Anderson/Burdick analysis. The District Court also properly dismissed the Party’s Ohio constitutional challenge to S.B. 193 under the Eleventh
Amendment. And, the Party’s subsequent litigation of that claim to a final decision on the merits in state court bars it from continuing to litigate the claim in the federal courts.
Respectfully submitted, MICHAEL DEWINE Ohio Attorney General
s/Halli Brownfield Watson HALLI BROWNFIELD WATSON (0082466)* *Lead Counsel JORDAN S. BERMAN (0093075) SARAH E. PIERCE (0087799) Assistant Attorneys General Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872; Fax: 614-728-7592 [email protected] [email protected]
Counsel for Appellee-Defendants Jon Husted and State of Ohio
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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 13,923 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(A)(7)(B)(iii) and 6th Cir. R. 32(b). This brief also complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 36(a)(6) because this brief has been prepared in proportionally spaced typeface (Times New Roman 14-point type) using
Microsoft Word 2010.
s/Halli Brownfield Watson HALLI BROWNFIELD WATSON (0082466) Assistant Attorney General
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CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served by operation of this Court’s CM/ECF system on July 7, 2016. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Halli Brownfield Watson HALLI BROWNFIELD WATSON (0082466) Assistant Attorney General
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APPENDIX: DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS Appellees-Defendants, pursuant to Sixth Circuit Rule 28(b)(1)(A)(i), hereby designates the following filings form the district court’s electronic record:
Document No. Description of Document Page ID#
R. 1 Complaint 1-7
R. 5 State’s Motion to Intervene 23-29
R. 16 Amended Complaint 87-107
Second Preliminary Injunction Motion against R. 17 122-141 S.B. 193
R. 18 Opinion and Order and Preliminary Injunction 143-169
R. 20 Secretary’s Answer to Amended Complaint 200-211
R. 21 State’s Answer to Amended Complaint 212-224
Secretary’s Memo Contra Second Motion for R. 31 292-302 Preliminary Injunction
State’s Memo Contra Second Motion for R. 32 303-316 Preliminary Injunction
R. 38-1 Winger Depo. 366-429
State’s Memo Contra Intervener-Plaintiffs’ R. 39 580-602 Preliminary Injunction Motion
R. 40 State’s Notice of Filing Evidentiary Attachment 603-604
R. 40-1 Evidentiary Attachment. 605-651
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Document No. Description of Document Page ID#
R. 40-2 Evidentiary Attachment 653-717
R. 40-3 Evidentiary Attachment 718-760
R. 47 Opinion and Order and Preliminary Injunction 811-838
R. 57 Third Motion for Preliminary Injunction 1041-1060
R. 79 Hearing Transcript 2073-2145
R. 80 Opinion and Order 2146-2173
R. 94 Second Amended Complaint 2304-2355
Secretary’s Answer to Second Amended R. 98 2423-2437 Complaint
R. 99 State’s Answer to Second Amended Complaint 2438-2452
Intervener-Plaintiffs’ Memo in Support of R. 165-1 3264-3291 Summary Judgment
State’s Memo Contra Intervener-Plaintiffs’ R. 185 Motion for Summary Judgment and Cross- 3602-3632 Motion for Summary Judgment
R. 188 Third Amended Complaint 3796-3854
Plaintiffs’ Fourth Motion for Preliminary R. 192 3877-3879 Injunction
Plaintiffs’ First Motion for Temporary R. 194-0 3911-3913 Restraining Order
R. 203-1 Husted Depo. 4174-4256
R. 201-1 Bridges Depo. 3952-4111
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Document No. Description of Document Page ID#
R. 221-1 Seskes Depo. 4807-4846
R. 222-1 Smith Depo. 4849-4930
R. 223-1 Christopher Depo. 4933-5035
R. 227-1 Damschroder Depo. 5220-5627
R. 232 State’s Answer to Third Amended Complaint 5654-5657
R. 233 Secretary’s Answer to Third Amended Complaint 5658-5689
R. 241-1 Casey Depo. 6208-6436
R. 247 Transcript of Preliminary Injunction Hearing 6487-6715
R. 252 Transcript of Preliminary Injunction Hearing 6727-6885
R. 260 Opinion and Order 7074-7109
Memo in Support of Plaintiffs’ Motion for R. 261-1 7112-7131 Summary Judgment
Felsoci’s Consolidated Memo in Opposition to R. 265-0 Motion for Summary Judgment and in Support of 7144-7161 Cross-Motion
Secretary’s and State’s Opposition to Plaintiffs’ R. 267 Motion for Summary Judgment and Cross- 7191-7221 Motion
R. 285 Opinion and Order 7485-7521
R. 335-2 Second Casey Depo. 8338-8436
R. 336 Opinion and Order 8687-8714
R. 338-1 Plaintiffs’ Memo in Support of Renewed Motion 8719-8728 64 Exh. 6, p | 75 Case: 16-3537 Document: 27 Filed: 07/07/2016 Page: 76
Document No. Description of Document Page ID# for Summary Judgment Under Count Seven
Secretary’s Combined Memo in Opposition to R. 344 Plaintiffs’ Renewed Motion for Summary 8747-8764 Judgment and Cross-Motion
Felsoci’s Memo in Opposition to Renewed R. 346-0 Motion for Summary Judgment and in Support of 8767-8786 Cross-Motion
R. 369 Opinion and Order 8931-8947
R. 370 Judgment Entry 8948
R. 372 Notice of Appeal 8956-8957
s/Halli Brownfield Watson HALLI BROWNFIELD WATSON (0082466) Assistant Attorney General
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