Libertarian Party of Ohio v. Blackwell, 04-4215.

Citation462 F.3d 579
Decision Date06 September 2006
Docket NumberNo. 04-4215.,04-4215.
PartiesLIBERTARIAN PARTY OF OHIO; Jason Hallmark; Dena Bruedigam; Patrick J. Friedrich, Plaintiffs-Appellants, v. J. Kenneth BLACKWELL, in His Official Capacity as Ohio Secretary of State, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: Gary Sinawski, New York, New York, for Appellants. Arthur James Marziale, Jr., Office of the Attorney General of Ohio, Columbus, Ohio, for Appellee. ON BRIEF: Gary Sinawski, New York, New York, Donald J. McTigue, Columbus, Ohio, for Appellants. Arthur James Marziale, Jr., Office of the Attorney General of Ohio, Columbus, Ohio, for Appellee.

Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.

GIBBONS, J., delivered the opinion of the court. CLAY, J. (pp. 595-601), delivered a separate opinion concurring in part and dissenting in part. GRIFFIN, J. (pp. 601-609), delivered a separate dissenting opinion.



The Libertarian Party of Ohio ("LPO"), its chairperson, vice-chairperson, and a member who sought to be listed as a candidate appeal the district court's order denying their motion for summary judgment and granting summary judgment in favor of defendant J. Kenneth Blackwell, the Secretary of State of Ohio ("Secretary" or "State"). The LPO's first claim is that Ohio's policy mandating strict compliance with election laws violates the Constitution. As we find this claim to be moot, we do not have jurisdiction to address it. The LPO's second claim, which is not moot, is that the combination of two Ohio election regulations — the requirement that all political parties nominate their candidates via primary election and the requirement that all minor political parties file a petition with the Secretary 120 days in advance of the primary — imposes an unconstitutional burden on its First and Fourteenth Amendment rights of free association, by effectively preventing it from gaining access to the general election ballot in the twelve months preceding a presidential election. Following the analytical framework set forth by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and its progeny, we find that the combination of these two requirements imposes a severe burden on the constitutional rights of the LPO, its members, and its potential voter-supporters. As the regulations are not narrowly tailored and do not advance a compelling state interest, Ohio's system for registering new political parties violates the Constitution. Thus, we reverse the ruling of the district court.


This case presents a conflict between the constitutional rights of minor political parties and the authority of a state to regulate its elections and ensure the state's relevance in the modern presidential election cycle. As the nominees of the "major" political parties1 become known earlier in the election year, states have pushed back the dates of their primary elections to the beginning of the primary election cycle. Over the last twenty-five years, the primary date in Ohio in presidential election years has moved from the first Tuesday in June to the first Tuesday in March. Compare Ohio Rev.Code § 3501.01(E)(2) with Anderson, 460 U.S. at 783 n. 1, 103 S.Ct. 1564 (citing the code section in effect in 1980). As a result, the date by which a political party must file to qualify for the primary also has moved, from the end of March in the year of the election to the beginning of November in the preceding year. See Ohio Rev.Code § 3517.012. The issue in this case is whether the move to accommodate the major parties has placed an impermissible burden on the constitutional rights of minor parties, including the LPO, and the supporters of these minor parties.

The Ohio Constitution requires that all political parties, including minor parties, nominate their candidates at primary elections. Ohio Const. Art. V, § 7. By statute, primaries are held the first Tuesday after the first Monday in May, except in presidential election years, when the primaries are held the first Tuesday after the first Monday in March. Ohio Rev.Code § 3501.01(E)(1)-(2). The 2004 primaries were held on March 2 of that year.

Ohio law provides two methods by which a party can qualify for the primary election. Any party that, in the preceding state election, receives at least five percent of the vote for its candidate for governor or president automatically qualifies for the next statewide election.2 Ohio Rev.Code § 3517.01(A)(1). All other parties must file a petition no later than 120 days prior to the date of the primary election that contains the number of signatures equal to one percent of the total votes cast in the previous election — 32,290 in 2004. Id. A party that does not file a petition by this date cannot participate in the primary and is thus prevented from appearing on the general election ballot. To be on the ballot for the November 2, 2004 general election, minor parties like the LPO were required to submit a petition no later than November 3, 2003.

On October 30, 2003, the LPO filed a Petition to Form a Political Party, containing the requisite number of signatures, with the Secretary. In a letter dated November 24, 2003, the Secretary informed the party that the petition was invalid because it did not include the correct election falsification notice. The required notice had been changed by state statute in August 2001, but the LPO continued to use an older form, with the previous version of the notice.3 When the Secretary rejected the petition, the LPO had no time to obtain signatures on the proper form in advance of the filing deadline. The LPO thus failed to qualify as a political party and was unable to participate in the March 2, 2004, primary election. As a result, the party and its candidates were prohibited from appearing on the ballot for the 2004 general election.

On January 6, 2004, the LPO filed suit under 42 U.S.C. § 1983, claiming a violation of the rights guaranteed under the First and Fourteenth Amendments and seeking declaratory and injunctive relief. On January 15,the LPO moved for a preliminary injunction that would (1) direct the state to accept the party's petition, (2) invalidate the state's early filing deadline so that the LPO could file a new petition, or (3) invalidate Ohio's requirement that the LPO nominate its candidates by primary and permit it to nominate through party caucus or convention. On February 5, the district court denied the motion by reason of laches but did not rule on the constitutional claims. On June 1, the LPO and the State filed cross-motions for summary judgment. The court granted the State's motion and denied the LPO's motion. The LPO filed a timely appeal.4 We review a district court's grant of summary judgment de novo. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996).


Our first duty is to determine whether the completion of the election has deprived this court of jurisdiction. Though neither party raises the issue of mootness, 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. See Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992); McPherson v. Mich. High School Athletic Ass'n, 119 F.3d 453, 458 (6th Cir.1997) (en banc). 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. Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). "The mootness inquiry must be made at every stage of a case; thus, if a case becomes moot during an appeal, the judgment below must be vacated and the case remanded with instructions to dismiss." McPherson, 119 F.3d at 458.

An exception to the mootness doctrine exists for wrongs that are "capable of repetition, yet evading review." See Rosen v. Brown, 970 F.2d 169, 173 (6th Cir.1992) (quoting Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 514, 31 S.Ct. 279, 55 L.Ed. 310 (1911)). This doctrine applies when (1) the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and (2) there is a reasonable expectation or a demonstrated probability that the controversy will recur. See Honig v. Doe, 484 U.S. 305, 318-19 n. 6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The first prong of this test is easily satisfied. Legal disputes involving election laws almost always take more time to resolve than the election cycle permits. See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005). In the present case, less than eleven months elapsed between the filing of the lawsuit and the occurrence of the election, and future challenges will face the same problem.

Whether the issues in this case satisfy the second prong, however, is a more complex question that requires separating the two categories of claims brought by the LPO. The first challenges the Ohio requirement that election laws must be strictly complied with, unless the statute expressly states otherwise. See State ex rel. Vickers v. Summit County Council, 97 Ohio St.3d 204, 777 N.E.2d 830, 835 (Ohio 2002); State ex rel. Comm. for the Referendum of Lorain Ordinance, 96 Ohio St.3d 308, 774 N.E.2d 239, 249 (Ohio 2002); see also Ohio Rev.Code § 3517.011. This dispute arose because the election falsification notification contained on the LPO's petition did not follow the exact wording required by Ohio law. The attempted justification for the LPO's non-compliance, however, does not lead this court to reasonably expect that the LPO or other political parties will encounter this same...

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