Libertarian Party of Ohio v. Husted
| Decision Date | 01 May 2014 |
| Docket Number | No. 14-3230,14-3230 |
| Parties | LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER; AARON HARRIS; CHARLIE EARL, Plaintiffs-Appellants, v. JON HUSTED, Secretary of State, Defendant-Appellee, GREGORY A. FELSOCI, Intervenor Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0091p.06
Appeal from the United States District Court
for the Southern District of Ohio at Columbus
No. 2:13-cv-00953—Michael H. Watson, District Judge.
Before: SUHRHEINRICH, GIBBONS, and COOK, Circuit Judges.
ARGUED: Mark R. Brown, Columbus, Ohio, for Appellants. Bridget C. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee Husted. Steven W. Tigges, ZEIGER, TIGGES & LITTLE LLP, Columbus, Ohio, for Appellee Felsoci. ON BRIEF: Mark R. Brown, Columbus, Ohio, Mark G. Kafantaris, Columbus, Ohio, for Appellants. Bridget C. Coontz, Damian W. Sikora, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee Husted. Steven W. Tigges, John W. Zeiger, Stuart G. Parsell, ZEIGER, TIGGES & LITTLE LLP, Columbus, Ohio, for Appellee Felsoci.
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellants in this case include the Libertarian Party of Ohio ("LPO"), a ballot-qualified political party in Ohio; Kevin Knedler, the LPO state executive committee chair; Aaron Harris, the LPO state central committee chair; and Charlie Earl, the LPO gubernatorial candidate for Ohio in 2014 (collectively referred to as the LPO). The LPO appeals the denial of its request for a preliminary injunction. The LPO sought an order prohibiting defendant-appellee, the Ohio Secretary of State, Jon Husted, from enforcing section 3501.38(E)(1) of the Ohio Revised Code and thus restoring Earl to the ballot for the May 2014 primary election. Also a party to the appeal is Gregory Felsoci, who intervened in the litigation. Felsoci is the individual whose protest of the certification of LPO candidates resulted in Earl's removal from the ballot.1 On appeal, the LPO makes two challenges to the constitutionality of section 3501.38(E)(1): (1) on its face the statute's employer disclosure requirement violates the First Amendment, and (2) its enforcement violates the LPO's due process rights. We affirm.
To appear on a general election ballot in Ohio, a political party must participate in the primary. The Ohio Constitution requires that "[a]ll nominations for elective state . . . offices shall be made at direct primary elections or by petition as provided by law." Ohio Const. art. V, § 7. Ballot-access statutes create the framework for this constitutional mandate. Those statutes impose various requirements on minor parties seeking to appear on primary (and thus general election) ballots. Over the last ten years, the LPO has struggled to become and remain a ballot-qualified party in Ohio through frequent litigation. The LPO has successfully challenged Ohio laws burdening its access to the ballot in three prior lawsuits. See Libertarian Party v. Blackwell, 462 F.3d 579 (6th Cir. 2006); Libertarian Party of Ohio v. Husted, No. 2:11-cv-722, 2011 WL 3957259 (S.D. Ohio Sept. 7, 2011), vacated as moot, 497 F. App'x 581 (6th Cir.2012); Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006 (S.D. Ohio 2008). As a result of the litigation, the LPO has fielded candidates for local, state-wide, and federal offices in primary and general elections from 2008 to 2013. In the instant lawsuit the LPO previously was successful in obtaining injunctions barring enforcement of an Ohio residency requirement for petition circulators and barring retroactive application of S.B. 193, which voided the Secretary's directives recognizing minor parties as ballot-qualified and changed the criteria for a minor party to obtain ballot access.
The LPO's third motion for a preliminary injunction is the subject of this appeal. Before introducing the facts forming the basis for the LPO's motion, however, a summary of the relevant Ohio ballot-access statute is useful.
A candidate may gain access to a general election only if he or she participates in the primary. See Ohio Const., art. V, § 7. To gain access to the primary, candidates must file declarations of candidacy accompanied by petitions ninety days before the primary election. Ohio Rev. Code § 3513.05. If a candidate declares a candidacy for state-wide nomination or election as a candidate of a minor party, then the petition must be supported by the signatures of at least five hundred qualified electors who are members of the same political party as the candidate. Id. A petition consists of separate "petition papers," each containing signatures of electors of only one county. Id. And only one person, a circulator, can circulate each petition paper. Section 3513.05 further notes that petition papers are governed by a distinct statutory provision, section 3513.38 of the Ohio Revised Code. Id.
According to section 3513.38, the signatures provided for on the petition papers must be made by electors qualified to vote on the candidacy or issue which is the subject of the petition. The facts of qualification are determined as of the date the petition is filed. Ohio Rev. Code § 3501.38(A). Signatures must be in ink and include the location of the signer's voting residence, which is the address appearing on the registration records at the board of elections. Ohio Rev. Code § 3501.38(B)-(C). A person shall sign only his or her name, and a person may not authorize another to sign for him or her, so long as he or she is not unable to physically sign because of disability. Ohio Rev. Code §§ 3501.38(D), 3501.382.
Section 3513.38 also includes a provision detailing requirements for circulators, which, because it forms the basis for the instant appeal, is quoted at length:
On each petition paper, the circulator shall indicate the number of signatures contained on it, and shall sign a statement made under penalty of election falsification that the circulator witnessed the affixing of every signature, that all signers were to the best of the circulator's knowledge and belief qualified to sign, and that every signature is to the best of the circulator's knowledge and belief the signature of the person whose signature it purports to be or of an attorney in fact acting pursuant to section 3501.382 of the Revised Code. On the circulator's statement for a declaration of candidacy or nominating petition for a person seeking to become a statewide candidate or for a statewide initiative or a statewide referendum petition, the circulator shall identify the circulator's name, the address of the circulator's permanent residence, and the name and address of the person employing the circulator to circulate the petition, if any.
Ohio Rev. Code § 3501.38(E)(1) (emphasis added).2 Petition circulators comply with this disclosure requirement by filling in an employer information box located on the petition paper. Section 3501.38(E)(1) requires the disclosure of all funding sources, irrespective of whether the circulator is working as the servant employee or as an independent contractor of the source. See State ex. rel. Linnabary v. Husted, No. 2014-0359, 2014 WL 1317512, at *4 (Ohio Apr. 3, 2014). Further, if a circulator knowingly permits an unqualified person to sign a petition paper or permits a person to write another's name on a petition paper, the petition paper itself is invalid. Ohio Rev. Code § 3501.38(F).
After the candidate collects a number of petition papers containing a sufficient number of signatures and files the declaration of candidacy and accompanying petition with the Secretary of State, the Secretary then transfers the petition papers to the county boards of elections, where they are open to public inspection. Ohio Rev. Code § 3513.05. The boards certify the validity or invalidity of each signature and return their determinations, along with the petition papers, to the Secretary. Id. The Secretary then aggregates the totals to determine whether the candidate satisfied the minimum number of required valid signatures and, if the required minimum is met, certifies the candidate to the ballot. But, according to section 3501.38(L) of the Ohio Revised Code, the boards "shall not" invalidate a petition on the basis that the submitted petition does notsatisfy petition requirements. Rather, the Secretary has the power to determine "all other matters" involving the validity or invalidity of the petition papers. Ohio Rev. Code § 3513.05.
Section 3501.39 of the Ohio Revised Code provides that the "secretary of state . . . shall accept any petition described in section 3501.38 of the Ohio Revised Code unless . . . [a] written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition is invalid, in accordance with any section of the Revised Code providing a protest procedure." Section 3513.05 provides a procedure for protests of violations of its requirements. Any qualified elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election in which the candidate seeks nomination may protest the candidacy of any person filing a declaration of candidacy for party nomination or for election. Id. Protests must be filed at least seventy-four days before the primary, in writing, and with the election officials with whom the declaration of candidacy and petition were filed—normally, for state-wide elections, the Secretary of State. Id. A protest triggers a hearing before the Secretary (or another election official with whom the declaration of candidacy was filed), who fixes a time and provides notice to the candidate and protester. Id. The Secretary (or, again, another election official with whom the declaration of candidacy was filed) hears the...
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