Libertarian Party of Ohio v. Husted, Case No. 2:11-CV-722
| Decision Date | 07 September 2011 |
| Docket Number | Case No. 2:11-CV-722 |
| Parties | LIBERTARIAN PARTY OF OHIO, KEVIN KNEDLER, and MICHAEL JOHNSTON, Plaintiffs, v. JON HUSTED, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION & ORDER
This matter is before the Court on the Motion of Plaintiffs Libertarian Party of Ohio ("LPO"), Kevin Knedler, and Michael Johnston for a Preliminary Injunction. (Dkt. 5.) Plaintiffs seek to enjoin Defendant Jon Husted, the Ohio Secretary of State, from enforcing H.B. 194's changes to O.R.C. §§ 3501.01 and 3517.01 and to restore the Libertarian Party of Ohio's ballot access rights. For the following reasons, the Motion is GRANTED.
This is the third time in five years that the Libertarian Party of Ohio has come before this Court to challenge Ohio's ballot access laws. In Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006), the Sixth Circuit found that the combination of Ohio's November filing deadline for new political parties and its signature requirement that new parties submit signatures from voters equal to 1% of the total vote cast in the last election for President or Governor was unconstitutional. The Ohio Legislature failed to respond to this ruling. As a result, Ohio's Secretary of State administratively adopted new ballot access rules. The Secretary changed thesignature requirement from 1% to 0.5%, and moved the filing deadline 20 days closer to election, from 120 to 100 days before the primary. The LPO challenged these rules. In Libertarian Party of Ohio v. Brunner, 462 F.Supp.2d 1006 (S.D. Ohio 2008), this Court found that the Ohio Secretary of State did not have the authority to set election rules. In the alternative, the Court found that the Secretary's interim filing deadline and interim signature requirement would likely be found unconstitutional.
Following the decision in Brunner, this Court found that the LPO had the requisite community support to merit ballot access, and ordered that the LPO, along with three other minor parties, be placed on Ohio's 2008 election ballot. The Secretary entered into a consent decree agreeing not to enforce her interim requirements, and adopted Directive 2009-21, which guaranteed that the LPO (and the three other minor parties) had continued ballot access. On January 6, 2011, the Secretary reinstated Directive 2009-21 in Directive 2011-01, which continued ballot access for the LPO in 2011 and beyond.
On July 1, 2011 Ohio Governor Kasich signed Am. Sub. H.B. 194 into law. The bill is scheduled to become effective on September 30, 2011. It makes changes to provisional ballot law, voter identification laws, absentee voting, voter eligibility, and ballot access for political parties. This litigation is focused on the changes to ballot access for political parties. In particular it focuses on amendments to O.R.C. § 3501.01(E)1 and O.R.C. § 3517.01(A)(1).2 Ineffect, these changes did little to change the rules governing ballot access. The Sixth Circuit found that the combination of the signature requirement with the early filing deadline was unconstitutional. The Legislature amended the filing requirement by a mere 30 days, and did nothing to the signature requirement. Thus, the bill requires that new parties qualify for Ohio's ballots no later than 90 days before the state's primaries which, under H.B. 194, are to take place on the first Tuesday following the first Monday in May. This date applies in both presidential and non-presidential primary cycles. Parties that did not receive 5% of the vote for Governor or President in the last election still must collect signatures from voters equal to 1% of the total vote cast in the last election for President or Governor. All that is different is that the party must file these signatures, not 120 days, but 90 days before the May primary.
As some Ohio citizens feel that these changes will restrict ballot access and contribute to voter suppression, the bill is currently the subject of a referendum effort. If referendum supporters can collect 231,147 signatures by September 29, 2011, then the bill will be stayed until it is voted on the Ohio electorate in the November 2012 election.
On August 5, 2011, the Secretary sent the LPO a letter indicating that the directives that Secretary Brunner had issued were now void. The LPO contends that this letter indicates the Secretary intends to use H.B. 194 to strip the LOP of its ballot access. Thus, the LPO posits that as of September 30, 2011, it will not be qualified for the November 2011 ballot. It challenges this removal. The evidence before the Court indicates that the LPO will be on the November 2011 ballot. The Deputy Assistant Secretary of State, Michael Damschroder, stated in an affidavit that: "HB 194 and the Secretary of State's letter of August 5, 2011 notwithstanding, Libertarian candidates for partisan municipal offices certified by a county board of elections to appear on the November 8, 2011 general election ballot on which all candidates were permitted to appear with a party affiliation (or alternate label as permitted by state law when the candidate has filed as an independent) will not have the label 'Libertarian' removed from the ballot aside those candidates' names." His testimony at the Preliminary Injunction hearing on August 30, 2011 was consistent with this statement.
The LPO also argues that H.B. 194's changes requiring the party to submit the required signatures 90 days before the primary ballot, in other words by February 8, 2012, in order to qualify for the 2012 ballot are unconstitutional.
Husted argues that the LPO's claims are not yet ripe. As a threshold matter, this Court will address the ripeness challenge before proceeding to the merits.
The State argues that the LPO's claim is not ripe. In order to determine if a claim is ripe, the Court will consider three factors: (1) the likelihood that the harm alleges by the Plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to produce a fairadjudication of the merits; and (3) the hardship to the parties if judicial relief is denied at this stage of the proceedings. Warshak v. United States, 490 F.3d 455, 467 (6th Cir. 2007).
The State argues that because the bill is not currently effective, and may not ever become effective due to the referendum effort, it is unclear if the Plaintiffs will ever suffer any harm as a result of this bill. Thus, the State asserts, the Plaintiffs cannot meet prong (1) of the three-factor test and the claim is not ripe.
This argument is not compelling. The Court makes decisions based on the realities it confronts, not on mere possibilities. As the record currently stands, the bill is to become effective in less than a month. The State has already begun taking steps to enforce the new law. In fact, it has already notified the LPO that as a result of the law, the LPO is not currently a qualified party for the 2012 election. The State cannot take actions based on the law, yet simultaneously argue that the law in not ripe for challenges. As a result of the State's actions, the Plaintiffs may be harmed. Thus, the case is ripe for consideration.
In order to obtain a preliminary injunction, this Court balances the following four factors: "(1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction." Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002).
The state's amendments to O.R.C. § 3501.01(E) and O.R.C. § 3517.01(A)(1) do little to address the concerns of the Sixth Circuit in Blackwell and of this Court in Brunner.3 The central issue before the Court is whether the Ohio election laws impermissibly burden the plaintiff's rights to free speech and association under the First Amendment. The state laws at issue burden two different, but overlapping, rights. First, they infringe upon "the right of individuals to associate for the advancement of political beliefs," and second, "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." Williams v. Rhodes, 393 U.S. 23, 30 (1968). These rights are critically important to the success of our representative democracy. See California Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (); Burdick v. Takushi, 504 U.S. 428, 433 (1992) () (internal citation omitted)).
Nevertheless, states "may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). With this in mind, the Supreme Court established an analytical framework in Anderson v. Celebrezze, 460 U.S. 780, 786 (1983) and Burdick v. Takushi, 504 U.S. 428, 433 (1992) to analyze election laws. As the Sixth Circuit explained in Blackwell:
First, the court looks at the "character and magnitude of the asserted injury" to petitioner's constitutional rights. Anderson, 460 U.S. at 789. The court must then "identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule." Id. If petitioner's rights are subjected to "severe" restrictions, "the regulation must be 'narrowly drawn to advance a...
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