Duncan v. Husted
| Decision Date | 26 August 2015 |
| Docket Number | Case No. 2:13-CV-01157 |
| Citation | 125 F.Supp.3d 674 |
| Parties | Richard Duncan, Plaintiff, v. Jon A. Husted, in his official capacity as Secretary of State of Ohio, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Richard Duncan, Aurora, OH, pro se.
Damian W. Sikora, Halli Brownfield Watson, Ryan L. Richardson, Ohio Attorney General's Office, Holly Wilson Wallinger, Bailey Cavalieri, LLC, Columbus, OH, for Defendant.
This matter is before the Court on Defendant Secretary Husted's Motion for Summary Judgment, (Doc. 64), as well as pro se Plaintiff Richard Duncan's Cross-Motion for Summary Judgment, (Doc. 80); both motions are brought pursuant to Fed. R. Civ. P. 56. This case concerns the constitutionality of S.B. 47, effective June 21, 2013, which, in pertinent part, amended Ohio Revised Code §§ 3513.262 and .263 to impose a one-year time-limit for independent candidates to obtain requisite nominating petition signatures in order to appear on the ballot in Ohio, whereas, before, no time-limit existed. For the reasons stated herein, Defendant's motion is GRANTED, and Plaintiff's motion is DENIED.
Plaintiff, a resident of Aurora, Ohio, desires to be an independent candidate for President of the United States in the upcoming 2016 election, and has run in the last three presidential elections as an independent candidate. (Compl., Doc. 2, ¶¶ 2, 10). As part of his political philosophy, Plaintiff funds his campaigns himself, spending less than $5,000 on each campaign, and personally collects all of the signatures necessary for his name to appear on the ballot. (Id. , ¶ 10). In the 2008 and 2012 election seasons, Plaintiff collected over 13,000 signatures to ensure he got the required 5,000 valid signatures. (Id. ). In 2012, he received 12,557 votes in Ohio, Kentucky, Maryland, and Florida. (Id. ). In the past two elections, he spent three years gathering signatures for his nominating petition.
Plaintiff intentionally interweaves his campaign message into the signature-collection process, introducing himself to as many voters as possible. (Plaintiff Declaration, Doc. 81, ¶ 4). In 2008 and 2012, Plaintiff took three years to complete the signature-collection process. (Id. ¶ 5). A "major theme" of his campaign is his "low cost self funded endeavor." (Id. ). Due to his limited finances, he knows he cannot compete with wealthy Presidential candidates, which he thinks is especially true after the Citizens United case. (Id. ) Duncan asserts that he has a First Amendment right to spend as little on his campaign and possible, and he promoted the low-cost aspect of his campaign to voters when petitioning them for their signatures. (Id. at ¶ 7).
On June 6, 2013, Plaintiff began collecting signatures for the 2016 President election. (Compl., Doc 2, ¶ 16). Via a letter from Defendant dated June 21, 2013, however, Plaintiff was notified of the passage of S.B. 47, which amended Ohio Revised Code §§ 3513.262 & .263 to include a one-year limitations period on nomination-petition signatures for independent candidates. (Id., ¶ 17; see also Doc. 2-1). Prior to S.B. 47, Ohio law contained a deadline in which to submit the 5,000 required signatures for the nomination of independent candidates for president, but did not include a period of limitations in which an independent candidate had to collect nominating-petition signatures.
Sections 262 and 263 define the filing and processing requirements, respectively, of nominating petitions for candidates in Ohio elections. Section 262 sets forth certain procedures that the Secretary of State and the county boards of election must follow once they have received a nominating petition. In particular, each board of election must "examine and determine the sufficiency of the signatures on the petition papers." O.R.C. § 3513.262. Under the amended statute, a signature on a nominating petition "is not valid if it is dated more than one year before the date the nominating petition was filed." (Id. ). All other matters of validity of a petition "shall be determined by the secretary of state or the board with whom such petition papers were filed." (Id. ). Section 263 details the processing procedure for nominating petitions, and again requires that each board "examine and determine the sufficiency of the signatures on the petition papers transmitted to or filed with it," and that "[a] signature on a nominating petition is not valid if it is dated more than one year before the date the nominating petition was filed." O.R.C. § 3513.263. Under Section 263, county boards of election have until the seventy-eighth day before the general election to determine the sufficiency of nominating petitions, including the validity of the signatures.
Under O.R.C. § 3513.257, persons desiring to become independent candidates for President of the United States "shall file, not later than four p.m. of the ninetieth day before the day of the general election at which the president and vice-president are to be elected, one statement of candidacy and one nominating petition" with the Secretary of State. It also requires that the petition be signed by no fewer than 5,000 qualified electors and no more than 15,000. Id.
In sum, under Ohio law, any person desiring to be an independent candidate for president has 365 days to collect the necessary 5,000 signatures for a required nominating petition. While all signatures must be dated within a year of the date the candidate turns in the petition, the candidate is free to submit the petition earlier than the cut-off date. If the petition is submitted on the deadline, the county boards of election have 12 days to certify the validity of between 5,000 and 15,000 signatures.
In response to the passage of S.B. 47, Plaintiff stopped his signature gathering campaign because he feared he would not be able to get the 5,000 signatures within a one-year period. (Doc. 81, ¶ 15). He testifies that he cannot afford to hire people to gather signatures and he questions their accuracy. He also asserts that he will be forced to spend extra money on his campaign as a result of the law, which will "dilute [his] low cost message and as a result it will lose its effectiveness in drawing supporters." He predicts he will now have to make extended multi-day trips to collect signatures, leading to increased hotel costs, where, before, he could make many single day trips over a three year period. He worries that he will be rushed when speaking with potential voters, and may appear "rude" and "drained," especially because the practical total time a candidate has to collect signatures is diminished by the 5 winter months in Ohio.
Matthew M. Damschroder, Chief Election Officer and Director of the Elections Division for Secretary Husted, attests that, based on his elections experience and training, the requirement that all signatures must be collected within a year of filing does not impose a significant obstacle to independent candidates' ballot access. He notes census data showing that approximately 12% of individuals move in a single year, and thus the one-year time limit makes it more likely that legitimate signatures may be accurately and quickly verified. He also testifies that for the 2008 presidential election, Duncan submitted 13,716 signatures and more than 6,370 were invalidated by the boards of elections; similarly, for the 2012 election Duncan submitted 12,480 signatures, of which 4,561 were invalidated.
Plaintiff filed suit on November 18, 2013, alleging that §§ 262 and 263 are a "severe burden" on Plaintiff, which will force him to change his campaign, increase his spending, and "obliterate" his message. (Id., ¶¶ 18-19). Plaintiff seeks relief under 42 U.S.C. § 1983, for violations of the First and Fourteenth Amendments of the United States Constitution, on the grounds that §§ 262 and 263 impermissibly burden Plaintiff's rights to free speech, free association, and right to petition the government, violate the Fourteenth Amendment's guarantee of equal protection, and place an unconstitutional burden on the voting rights of Plaintiff's supporters. (Id., ¶¶ 22-24). Plaintiff seeks a declaration that §§ 262 and 263 are unconstitutional, and that Defendant be preliminarily and permanently enjoined from enforcing them. (Id. at 8).
On January 22, 2014, Plaintiff filed a Motion for Preliminary Injunction. (Doc. 7). On March 20, 2014, after a hearing, this Court denied Plaintiff's motion for a preliminary injunction. Duncan v. Husted, No. 2:2–13–cv–1157, 2014 WL 1123538 (S.D.Ohio March 20, 2014). The Court found that Duncan's constitutional challenge to §§ 262 and 263 was unlikely to succeed on the merits because the "Supreme Court has upheld election schemes setting signature and filing requirements for independent candidates, often with a much more compressed timeline than the one at issue here." Id. at *4 (citing Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) ). The Court also found that under Jenness, Plaintiff's equal protection challenge could not stand, because the Supreme Court has determined that the party-primary process for major party nominees, and the signature gathering process for independent nominees, are "two alternative paths" to the ballot, "neither of which can be assumed to be inherently more burdensome than the other." Id. ().
Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue...
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