Libertarian Party of Ohio v. Husted

• Decision Date: 21 September 2017
• Docket Number: No. 16AP–496,16AP–496
• Citation: 2017 Ohio 7737,97 N.E.3d 1083
• Parties: LIBERTARIAN PARTY OF OHIO, Plaintiff–Appellant, v. Jon HUSTED et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

97 N.E.3d 1083

2017 Ohio 7737

LIBERTARIAN PARTY OF OHIO, Plaintiff–Appellant,

v.Jon HUSTED et al., Defendants–Appellees.

No. 16AP–496

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on September 21, 2017

On brief: Mark R. Brown; Mark G. Kafantaris, Columbus, for appellant. Argued: Mark R. Brown.

On brief: Michael DeWine, Attorney General, Halli Brownfield Watson, Dayton, and Bridget E. Coontz, for appellees. Argued: Halli Brownfield Watson.

DECISION

DORRIAN, J.

{¶ 1} Plaintiff-appellant, Libertarian Party of Ohio ("LPO"), appeals the June 7, 2016 decision and entry of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Jon Husted, Ohio Secretary of State, and Mike DeWine, Ohio Attorney General ("appellees"), on LPO's claims that Am.Sub. S.B. No. 193 ("S.B. No. 193") violated the Ohio Constitution. For the following reasons, we affirm.

I. History

{¶ 2} The case before us is the latest in a long line of challenges to Ohio's attempts to regulate its elections with regard to ballot access for independent candidates and minor parties, including notable challenges brought by LPO. As recently noted by the Sixth Circuit Court of Appeals, LPO " ‘has struggled to become and remain a ballot-qualified party in Ohio through frequent litigation.’ " Libertarian Party of Ohio v. Husted , 831 F.3d 382, 387 (6th Cir. 2016), cert . denied , ––– U.S. ––––, 137 S.Ct. 651, 196 L.Ed.2d 523 (2017), quoting Libertarian Party of Ohio v. Husted , 751 F.3d 403, 405 (6th Cir. 2014). Before addressing the procedural history of the instant matter, we begin by briefly reviewing the history of LPO's challenges to ballot access laws in Ohio.

A. Ballot Access Challenges Prior to S.B. No. 193

{¶ 3} In Libertarian Party of Ohio v. Blackwell , 462 F.3d 579 (6th Cir.2006), the court reviewed LPO's challenge to two Ohio regulations under the First and Fourteenth Amendments to the United States Constitution. Specifically at issue were regulations that "(1) mandate[d] that parties not meeting the five percent vote threshold in the previous election file a petition 120 days in advance of the primary election in order to qualify; and (2) require[d] that parties participate in the March primary in order to appear on the general election ballot." Id. at 586. The court found the combination of requirements and their resultant impact on LPO's ability to appear on the general election ballot severely burdened LPO's rights. In so finding, the court observed that LPO "needed to find more than thirty thousand Ohio residents to sign its petition to appear on the 2004 ballot more than one year in advance of the election," a requirement that forced "minor political parties to recruit supporters at a time when the major party candidates are not known and when the populace is not politically energized." Id. The court also noted 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." Id. at 594. The court concluded that Ohio's interests in its primary and early-filing requirement were not sufficient to outweigh the severe burden on LPO's rights.

{¶ 4} Following the decision in Blackwell , "the Ohio General Assembly [took] no action to establish ballot access standards for minor political parties, leaving no lawful, statutory criteria to be followed by the Secretary of State or the various Boards of Election of each county." Libertarian Party of Ohio v. Brunner , 567 F.Supp.2d 1006, 1009 (S.D.Ohio 2008). In the absence of legislation, in 2007, the Ohio Secretary of State issued a directive that maintained Ohio's requirement that minor parties nominate their candidates by primary election, but altered 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 2006 general election," and to "file nominating petitions 100 days before the primary." Id. at 1010.

{¶ 5} LPO challenged the directive in federal court, and the court granted a preliminary injunction preventing the directive from going into effect. The court found that "only the legislative branch has the authority, under Articles I and II of the United States Constitution, to prescribe the manner of electing candidates for federal office." Id. at 1011. Furthermore, the court found that "[e]ven assuming that [the Directive] was a valid exercise of [the Ohio Secretary of State's] power to regulate elections, the Directive itself imposes unconstitutional burdens on First Amendment rights." Id. at 1013. As a result of the invalidity of the directive and the General Assembly's failure to set forth applicable election regulations, the court ordered LPO be placed on the 2008 general election ballot in Ohio.

{¶ 6} Following the decision in Brunner , the Ohio Secretary of State entered into a consent decree agreeing not to enforce the interim requirements, and adopted subsequent directives granting LPO continued ballot access through 2011 and beyond. Libertarian Party of Ohio v. Husted , S.D.Ohio No. 2:11–CV–722, 2011 WL 3957259 (Sept. 7, 2011), vacated as moot , 497 Fed.Appx. 581 (6th Cir. 2012).

{¶ 7} In 2011, the General Assembly enacted Am.Sub.H.B. No. 194 ("H.B. No. 194"), which in part, amended ballot access requirements for political parties. Specifically, H.B. No. 194 required minor parties file petitions with the requisite number of signatures 90 days before the primary, while maintaining the number of signatures required. LPO again filed a challenge in federal court. Finding that H.B. No. 194 imposed severe burdens on LPO's rights without a sufficiently weighty state interest, the court granted a preliminary injunction preventing H.B. No. 194 from taking effect. Following the issuance of the injunction, the General Assembly repealed H.B. No. 194. Thereafter, in 2013, the Ohio Secretary of State issued an additional directive 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 , S.D.Ohio No. 2:13–cv–953, 2014 WL 11515569 (Jan. 7, 2014).

B. Enactment of S.B. No. 193 and Subsequent Challenges

{¶ 8} On November 6, 2013, the General Assembly enacted S.B. No. 193, which is the subject of this appeal and will be discussed further below. The law had an effective date of February 5, 2014.

1. Federal Proceedings

{¶ 9} Prior to the effective date of S.B. No. 193, LPO and three persons involved with LPO, filed a complaint and a motion for a preliminary injunction against the Ohio Secretary of State in federal district court. The court granted LPO's first motion for a preliminary injunction. On November 8, 2013, LPO filed an amended complaint challenging the restrictions in S.B. No. 193 on ballot access and asserting in part that S.B. No. 193 violated Article V, Section 7 of the Ohio Constitution. On January 7, 2014, the court granted LPO's second motion for a preliminary injunction, preventing S.B. No. 193 from taking effect for the 2014 election. However, the court declined to address the merits of LPO's claims under the Ohio Constitution at that time.

{¶ 10} On March 7, 2014, LPO filed a second amended complaint and third motion for preliminary injunction in the federal district court asserting that the Ohio Secretary of State violated its First Amendment rights by disqualifying its nominating petitions, preventing its candidates from appearing on the Ohio primary ballot in May 2014. The Secretary of State asserted that LPO's nominating petitions were disqualified because the paid circulators who obtained signatures for LPO's nominating petitions failed to disclose the name and address of the entity that paid them in the employer information box on the petitions as required by R.C. 3501.38(E)(1). The district court denied LPO's third motion, finding that R.C. 3501.38(E)(1) placed only a minimal burden on LPO's First Amendment rights and the requirements served a significant interest in detecting and deterring fraud in the signature gathering process. Libertarian Party of Ohio v. Husted , S.D.Ohio No. 2:13–cv–953, 2014 WL 11515570 (Mar. 19, 2014). On appeal, on May 1, 2014, the Sixth Circuit affirmed the denial of a preliminary injunction. Libertarian Party of Ohio v. Husted , 751 F.3d at 405.

{¶ 11} On September 11, 2014, LPO filed a third amended complaint, asserting among other claims that the Ohio Secretary of State selectively enforced the employer-disclosure requirements of R.C. 3501.39(E)(1) against LPO in violation of the First and Fourteenth Amendments. On September 15, 2014, LPO filed a fourth motion for a preliminary injunction and motion for a temporary restraining order, seeking to place its candidates' names on the ballot for the 2014 general election. The federal district court denied the request for a temporary restraining order and the fourth motion for a preliminary injunction.

{¶ 12} Following denial of the fourth preliminary injunction, the parties filed motions and cross-motions for summary judgment regarding LPO's claims that S.B. No. 193 violated the Ohio Constitution and the federal Equal Protection Clause. The federal district court found that S.B. No. 193 did not violate the federal Equal Protection Clause, both on its face and as applied. The court also dismissed LPO's claim that S.B. No. 193 violated the Ohio Constitution as barred by the Eleventh Amendment. On May 20, 2016, the court granted summary judgment in favor of the defendants on LPO's selective enforcement claim. Libertarian Party of Ohio v. Husted , 188 F.Supp.3d 665 (S.D.Ohio 2016).

{¶ 13} On appeal, LPO asserted that: (1) the defendants selectively enforced R.C. 3501.38(E)(1) against LPO in violation of the First and Fourteenth Amendments, and (2) S.B. No. 193 violated the federal Equal Protection...