Rosen v. Brown, 90-4100

• Citation: 970 F.2d 169
• Decision Date: 22 July 1992
• Docket Number: No. 90-4100,90-4100
• Parties: Russell S. ROSEN; Michael N. Ungar; Common Cause/Ohio, Plaintiffs-Appellees, v. Sherrod BROWN, Secretary of State, Defendant-Appellant, Cuyahoga County Board of Elections, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 169

970 F.2d 169

61 USLW 2068

Russell S. ROSEN; Michael N. Ungar; Common Cause/Ohio, Plaintiffs-Appellees, v. Sherrod BROWN, Secretary of State, Defendant-Appellant, Cuyahoga County Board of Elections, Defendant.

No. 90-4100.

United States Court of Appeals,

Sixth Circuit.

Argued June 18, 1992.

Decided July 22, 1992.

Gordon Beggs, Cleveland, Ohio (argued and briefed), for plaintiffs-appellees.

Catherine M. Cola, Asst. Atty. Gen., Patrick A. Devine (argued and briefed), Office of Atty. Gen., Columbus, Ohio, for defendant-appellant and defendant.

Before: MILBURN and SILER, Circuit Judges; and PECK, Senior Circuit Judge.

MILBURN, Circuit Judge.

Robert Taft ¹ appeals the district court's grant of summary judgment for plaintiffs in this action seeking to enjoin enforcement of an Ohio election statute, Ohio Revised Code § 3505.03, which prohibits nonparty candidates for elective office from having the designation Independent or Independent candidate placed on the ballot next to their name. On appeal, the sole issue is whether Ohio's refusal, pursuant to Ohio Rev.Code § 3505.03, to place the designation Independent below the name of a candidate whose name appears on the general election ballot as a result of a nominating petition violates the First and Fourteenth Amendments of the United States Constitution. For the reasons that follow, we affirm.

I.

A.

The following facts were stipulated by the parties in the district court: Plaintiff Russell Rosen was a candidate for election to the Ohio House of Representatives for the 15th District in the November 8, 1988, general election. Rosen was not affiliated with any political party and secured a place on the general election ballot by filing a statement of candidacy accompanied by nominating petitions containing a sufficient number of valid signatures as required by Ohio Revised Code § 3513.257. After securing a place on the ballot, Rosen requested that the designation Independent or Independent candidate appear below his name on the ballot. On August 4, 1988, Rosen was informed by the Ohio Secretary of State's office that such a designation was not permitted under Ohio Revised Code § 3505.03.

Plaintiff Michael Ungar is an active registered voter in the 15th House District of Ohio. Plaintiff Common Cause/Ohio has members residing in the 15th House District of Ohio. Common Cause/Ohio is a nonprofit, nonpartisan organization; it is a chapter of Common Cause, a national organization committed to improving the democratic operation of the state and federal governments.

Defendant Sherrod Brown was the Ohio Secretary of State. Pursuant to Ohio Rev.Code § 3501.01, the Secretary of State is the chief elections officer of the state. As such, his duties include: advising the boards of elections as to the proper methods of conducting elections, preparing election rules and instructions, determining the form of ballots and election related materials, and compelling compliance with election law requirements by election officials.

Defendant Cuyahoga County Board of Elections is the board of elections for Cuyahoga County, Ohio, pursuant to Ohio Rev.Code § 3501.11. The board's duties include: organizing polling places, reviewing petitions and nomination papers, and maintaining ballots and other election related material for the county. Pursuant to Ohio Rev.Code § 3505.01, the Board certifies the form of the official ballots to be used at the general elections for the 15th Ohio House District.

B.

On August 8, 1988, plaintiffs commenced this action pursuant to 42 U.S.C. § 1983. They sought injunctive relief against the enforcement of Ohio Rev.Code § 3505.03 and declaratory relief that the statute was unconstitutional.

On August 31, 1988, pursuant to a preliminary injunction issued by the district court, the Cuyahoga Board of Elections certified the designation Independent by Petition to appear beneath Rosen's name on the November 1988 general election ballot. Rosen lost the election. However, plaintiffs sought a permanent injunction against enforcement of Ohio Rev.Code § 3505.03 on the ground that Rosen planned to run in future elections.

In support of their motion for summary judgment, plaintiffs presented the affidavits of three experts. The first expert, Jack L. Noragon, has a Ph.D. in Political Science from Ohio State University. He is a Senior Research Consultant in Columbus, Ohio. Noragon is also an adjunct professor in the Department of History, Political Science, and Criminal Justice at Ohio Dominican College; he has held previous teaching assignments at other colleges and universities in Ohio. Noragon also served as a Senior Research Associate with the Ohio Legislative Service Commission and on the Ohio Secretary of State's Ad Hoc Committee on Election Reform.

In his affidavit, Noragon stated that Ohio Rev.Code § 3505.03 is one of various provisions in state law that have historically disadvantaged Independent candidates. Noragon stated that some political scientists have concluded that such statutes are the result of the near monopoly that Republicans and Democrats have in controlling ballot access via the legislative process.

Noragon further stated that the available evidence indicates that it does make a difference that some candidates have symbols after their names on the ballot while others do not. Voting studies conducted since 1940 indicated that party identification is the single most important influence on political opinions and voting. Almost two-thirds of the electorate has some form of party loyalty, and the tendency to vote according to party loyalty increases as the voter moves down the ballot to lesser known candidates seeking lesser known offices at the state and local level. Without a designation next to an Independent's name on the ballot, the voter has no clue as to what the candidate stands for. Thus, the state affords a crucial advantage to party candidates by allowing them to use a designation, while denying the Independent the crucial opportunity to communicate a designation of their candidacy.

Plaintiffs' second expert, Jack DeSario, was an Assistant Professor of Political Science at Case Western Reserve University in Cleveland, Ohio, from 1981-1988. He has a Ph.D. in Political Science from the State University of New York at Binghamton. DeSario has also served as an advisor on voting behavior to local and statewide election campaigns in Ohio.

In his affidavit, DeSario stated that Independents compose an increasingly large segment of the electorate, with approximately 34 percent of eligible voters identifying themselves as Independents. According to DeSario, Independent candidates are handicapped by their inability to communicate a political designation on the ballot. However, party candidates are afforded a "voting cue" on the ballot in the form of a party label which research indicates is the most significant determinant of voting behavior. Many voters do not know who the candidates are or who they will vote for until they enter the voting booth. Without a label, voters cannot identify the nonparty candidates or know what they represent. DeSario states that this effect is so substantial that Ohio dooms Independent candidates to failure by its means of structuring the ballot.

Plaintiffs' third expert, George Sapin, has been a marketing and communications professional for more than thirty years. He is currently the executive vice-president of an advertising firm in Cleveland, Ohio, and has many well-known corporate clients. In his affidavit, Sapin stated that based upon generally accepted communications and advertising principles, the denial of a ballot designation to Independent candidates causes substantial prejudice. Sapin stated that Ohio's ballot scheme is the equivalent of putting an unlabeled product on a shelf next to brand name products in a supermarket. Consumers would not choose the unlabeled product, because they have been conditioned by advertising to perceive quality in brand name products. Similarly, the absence of a label for a candidate gives rise to mistrust and negative inferences.

Sapin further stated that he reviewed plaintiff Rosen's 1988 campaign materials. Rosen had certain points and positions and used several means of publicity to identify the term Independent with his platform. This use of a name and a label allowed people to make a connection between the candidate and his platform and to create an identification in the voter's mind. A ballot without the Independent designation would have denied Rosen the identification he had worked to establish at the crucial moment of choice in the election campaign.

Plaintiffs also submitted two interrogatories to defendant in an effort to determine what interests the State of Ohio asserted to support the denial of ballot designations to Independent candidates. The State responded that it has a strong, compelling state interest in minimizing ballot-generated voter confusion and in producing a manageable ballot. The state also asserted that such state interest is common knowledge in election law and that no witnesses were necessary to establish the State's compelling interest. It further stated that it has not considered or utilized any alternative provision for limiting ballot designations which would not exclude the designation Independent or Independent candidate.

Subsequently, on November 11, 1990, the district court granted plaintiffs' motion for summary judgment, declaring Ohio Rev.Code § 3505.03 unconstitutional. Defendant, the Ohio Secretary of State, timely appealed.

II.

A.

This court reviews a district court's grant of summary judgment de novo. See Faughender v. City of North Olmsted, Ohio, 927 F.2d 909, 911 (6th Cir.1991). Summary judgment is proper if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals,...