Jolivette v. Husted

• Decision Date: 26 September 2012
• Docket Number: No. 12–3998.,12–3998.
• Citation: 694 F.3d 760
• Parties: Greg JOLIVETTE, Plaintiff–Appellant, v. Jon HUSTED; Frank Cloud; Tom Ellis; Judith Shelton; Bruce Carter, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

694 F.3d 760

Greg JOLIVETTE, Plaintiff–Appellant,

v.Jon HUSTED; Frank Cloud; Tom Ellis; Judith Shelton; Bruce Carter, Defendants–Appellees.

No. 12–3998.

United States Court of Appeals, Sixth Circuit.

Argued: Sept. 11, 2012.

Decided and Filed: Sept. 14, 2012.

Rehearing and Rehearing En Banc Denied Sept. 26, 2012.^*

ARGUED:Donald J. McTigue, McTigue & McGuinnis LLC, Columbus, Ohio, for Appellant. Aaron D. Epstein, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Donald J. McTigue, J. Corey Colombo, Mark A. McGinnis, McTigue & McGuinnis LLC, Columbus, Ohio, for Appellant. Aaron D. Epstein, Michael J. Schuler, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which McKEAGUE, J., joined. MERRITT, J. (pp. 772–74), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff–Appellant Greg Jolivette (“Jolivette”) appeals the district court's denial of his request for declaratory relief and for a preliminary and a permanent injunction that would allow him to run as an independent candidate for the Office of State Representative for Ohio's 51st House District in the upcoming November 6, 2012 general election. Jolivette seeks to prevent members of the Butler County, Ohio Board of Elections and Ohio's Secretary of State, Jon Husted (together, “Defendants”), from blocking his access to the ballot as an independent candidate. Jolivette claims that the defendants' denial of his petition for candidacy as an independent violated his rights to free speech and association guaranteed by the First and Fourteenth Amendments. Jolivette also challenges differences in Ohio election statutes regulating independent versus partisan candidates, arguing that these portions of Ohio's statutory election framework violate the Equal Protection Clause. Jolivette brings his constitutional claims to federal court pursuant to 42 U.S.C. § 1983. The United States District Court for the Southern District of Ohio denied preliminary and permanent injunctive relief, as well as declaratory relief, finding no merit to any of Jolivette's constitutional claims. See Jolivette v. Husted, No. 2:12–cv–603, ––– F.Supp.2d ––––, ––––, 2012 WL 3527733, at *16 (S.D.Ohio Aug. 15, 2012). For the reasons discussed below, we AFFIRM the district court's judgment.

I. BACKGROUND

Plaintiff Greg Jolivette desires to appear on the ballot at the upcoming November 6, 2012 general election as an independent candidate for the Office of State Representative for Ohio's 51st House District in Butler County, Ohio. From approximately 1997 to 2010, prior to his current attempted independent candidacy, Jolivette served as a Republican State Legislator and a Republican Butler County Commissioner. R. 11–3 (Transcript of Bd. of Elections Protest Hearing, May 30, 2012 at 22:8–11) (Page ID # 143). Jolivette was also elected to, and served on, the Butler County Republican Party's Central Committee from 2008 until mid-December 2011, when he resigned from the position. Id. at 22:12–16 (Page ID # 143).

On November 29, 2011, Jolivette filed a Declaration of Candidacy to run as a Republican for the Office of State Representative for Ohio's 51st House District. R. 18–4 (Joint Ex. 13 at 1–9) (Page ID # 337–45). Ohio law requires that candidates seeking to run in a party primary accompany their Declaration of Candidacy with at least fifty signatures from members of the same political party. Ohio Rev.Code § 3513.05. As part of his Declaration of Candidacy, Jolivette submitted four part-petitions containing seventy-two signatures. However, Jolivette failed to sign one of the part-petitions containing seventeen signatures, and another six signatures on the other signed petitions were of “questionable validity.” Jolivette, ––– F.Supp.2d at ––––, 2012 WL 3527733, at *2. The unsigned part-petition and the possible invalid signatures meant that Jolivette was possibly ineligible to run as a Republican. SeeOhio Rev.Code § 3513.05.

On December 14, 2011, the Board of Elections met and considered Jolivette's candidacy as a Republican. Jolivette, who was present at this meeting, argued in favor of certifying his petition to run in the Republican primary. See Jolivette, ––– F.Supp.2d at ––––, 2012 WL 3527733, at *2. At the meeting, the Board decided to give Jolivette extra time to gather additional evidence and arguments to support his position. Id. At this time, the district court found that Jolivette “still intended to run as a Republican, but was contemplating his option to run as an independent.” Id.; see R. 11–3 (Transcript of Bd. of Elections Protest Hearing, May 30, 2012 at 26:6–12) (Page ID # 147). The following day, December 15, 2011, Jolivette met with Husted regarding his candidacy and the possible invalidity of his Republican petition. The district court concluded that after this meeting, approval of Jolivette's candidacy as a Republican by the Board of Elections “remained uncertain.” Jolivette, ––– F.Supp.2d at ––––, 2012 WL 3527733, at *2. On December 19, 2011, Jolivette withdrew his candidacy as a Republican and resigned from the Butler County Republican Party Central Committee. R. 2 (Compl.¶¶ 8–9) (Page ID # 4). Jolivette alleges that at this time, he “left the Republican Party in good faith” and “no longer wish[ed] to be affiliated with the Republican Party.” Id. ¶ 10 (Page ID # 4). Jolivette testified that his relationship with the Republican Party had been deteriorating since 2008, and that the party refused to support him after “tough” budgetary votes he made as County Commissioner. See R. 27 (August 6, 2012 Evidentiary Hearing Transcript at 10:18–11:6) (Page ID # 504–05); Appellant Br. at 13–14. Jolivette subsequently lost the Republican endorsement for County Commissioner in 2010 and was defeated in the Republican primary that year. Appellant Br. at 13–14.

On February 22, 2012, Jolivette prepared a nominating petition and Statement of Candidacy to run as an independent candidate for the same office as his Republican petition, State Representative for Ohio's 51st House District. Jolivette, ––– F.Supp.2d at ––––, 2012 WL 3527733, at *3. The petition and Statement of Candidacy were filed on March 5, 2012. Id.Jolivette did not vote in any party primary the following day, March 6, 2012. As of the time Jolivette submitted his petition for candidacy as an independent, Jolivette had on file with the Board of Elections a “Designation of Treasurer” which indicated that he was affiliated with the Republican Party. Id. This Designation of Treasurer had been filed with the Board of Elections on July 15, 2008, but was not amended until May 4, 2012, when Jolivette filed an amended form identifying himself as an independent. R. 11–1 (Joint Evid. Ex. I) (Page ID # 82–86). Additionally, as of March 5, 2011, when the independent petition was filed, Jolivette's campaign committee maintained a website which indicated he would “be a vote for strong Republican leadership.” R. 11–3 (Transcript of Bd. of Elections Protest Hearing, May 30, 2012 at 29:10–24) (Page ID # 150).

On April 19, 2012, a protest was filed by three members of the Republican Party challenging Jolivette's candidacy as an independent on the basis that he was not unaffiliated from the Republican Party. See R. 2 (Compl. ¶ 14) (Page ID # 5); Ohio Rev.Code § 3513.262. On May 16, 2012, the Butler County Board of Elections approved Jolivette's petition, certified him to be on the ballot, and scheduled the protest hearing. Jolivette, ––– F.Supp.2d at ––––, 2012 WL 3527733, at *4. The protest hearing, held on May 30, 2012, resulted in a tie vote with respect to whether to grant or deny the protest, with the two Democratic board members voting to deny the protest, and the two Republican board members voting to grant the protest. The matter was then referred to Husted. Husted voted on June 26, 2012 to grant the protest, thereby breaking the tie, concluding that Jolivette is “not unaffiliated and cannot run as an independent candidate for this election.” R. 11 (Joint Evid. Ex. 1, at 2) (Page ID # 50). To support his decision, Husted cited Jolivette's past voting history in Republican Party primary elections, his prior service as a Republican legislator and Republican County Commissioner from 1997 to 2010, and his filing of a petition to run for the same office in the same cycle as a Republican. Id.

On July 9, 2012, Jolivette filed this action in the U.S. District Court for the Southern District of Ohio seeking declaratory and injunctive relief, on the grounds that Defendants' refusal to permit him to appear on the ballot as an independent candidate violated his constitutional rights. R. 2 (Compl.¶¶ 31, 33, 37) (Page ID # 9–10). Jolivette argues that the decision to block his access to the ballot as an independent candidate because he was affiliated with a political party violated his First, Fifth, and Fourteenth Amendment rights, and that the Ohio election framework governing disaffiliation from a political party violates the Equal Protection Clause. The district court found that neither preliminary nor permanent injunctive relief was warranted, based on a finding that none of Jolivette's constitutional claims had merit, and as a result dismissed the case. Jolivette, ––– F.Supp.2d at ––––, ––––, 2012 WL 3527733, at *13, *16. Jolivette timely appealed the order denying relief to this Court. R. 26 (Notice of Appeal at 1) (Page ID # 493).

Because Jolivette's complaint raises constitutional claims, the district court had jurisdiction under 28 U.S.C. § 1331. See Morrison v. Colley, 467 F.3d 503, 505–06 (6th Cir.2006). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

II. STANDARD OF REVIEW

We review the district court's denial of preliminary and permanent injunctive relief for abuse of discretion. See ACLU of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th...