Libertarian Party of Ohio v. Wilhem

• Decision Date: 10 February 2021
• Docket Number: No. 20-3585,20-3585
• Citation: 988 F.3d 274
• Parties: LIBERTARIAN PARTY OF OHIO and Harold Thomas, Plaintiffs-Appellants, v. Degee WILHEM, Helen E. Balcolm, Otto Beatty, III, Dennis Brommer, Don Michael Crites, Catherine A. Cunningham, and A. Scott Norman, in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

988 F.3d 274

LIBERTARIAN PARTY OF OHIO and Harold Thomas, Plaintiffs-Appellants,

v.Degee WILHEM, Helen E. Balcolm, Otto Beatty, III, Dennis Brommer, Don Michael Crites, Catherine A. Cunningham, and A. Scott Norman, in their official capacities, Defendants-Appellees.

No. 20-3585

United States Court of Appeals, Sixth Circuit.

Argued: August 24, 2020

Decided and Filed: February 10, 2021

Rehearing En Banc Denied March 19, 2021

ARGUED: Mark R. Brown, Columbus, Ohio, for Appellants. Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Mark R. Brown, Columbus, Ohio, for Appellants. Michael J. Hendershot, Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

Before: GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.

GRIFFIN, Circuit Judge.

Ohio law mandates that the Ohio Elections Commission (OEC) be composed of three members from each of the top two political parties in the state, and an additional seventh member who cannot have any political affiliation. See Ohio Rev. Code § 3517.152(A)(1). The Libertarian Party of Ohio (LPO) and its former chairman, Harold Thomas, contend this law violates their First Amendment right to associate for political purposes. The district court disagreed, and we affirm.

I.

A.

Plaintiff Harold Thomas is the former chairman of the Libertarian Party of Ohio and a current member of the LPO.¹ During the 2020 election season, the LPO was a minor political party recognized in Ohio, but it lost its status by not receiving a sufficient share of the vote in the 2020 general election. Defendants are the appointed members of the Ohio Elections Commission (OEC or the Commission) and have been sued in their official capacities.

"[T]he Commission is an independent agency consisting of seven members, six of whom are appointed by the governor on the recommendation of the combined state House and Senate caucuses of the major political parties. Three members are appointed from each of the two major political parties and the seventh is an unaffiliated elector appointed by the other six members." Project Veritas v. Ohio Election Comm'n , 418 F. Supp. 3d 232, 236–37 (S.D. Ohio 2019). All members of the OEC serve five-year terms. The OEC enforces Ohio's campaigning and election laws. It may investigate complaints, issue fines, and publish advisory opinions on matters of Ohio election law. See id. It is also empowered to refer criminal violations of Ohio's election law to county prosecutors. See Ohio Admin. Code § 3517-1-14-(B)(3) and (C).

The procedure for selecting OEC Commissioners is set forth in Ohio Revised Code § 3517.152(A)(1) :

There is hereby created the Ohio elections commission consisting of seven members.

... [T]he speaker of the house of representatives and the leader in the senate of the political party of which the speaker is a member shall jointly submit to the governor a list of five persons who are affiliated with that political party. ... [T]he two legislative leaders in the two houses of the general assembly of the major political party of which the speaker is not a member shall jointly submit to the governor a list of five persons who are affiliated with the major political party of which the speaker is not a member. Not later than fifteen days after receiving each list, the governor shall appoint three persons from each list to the commission.

* * *

Not later than thirty days after the governor appoints these six members, they shall, by a majority vote, appoint to the commission a seventh member, who shall not be affiliated with a political party. If the six members fail to appoint the seventh member within this thirty-day period, the chief justice of the supreme court, not later than thirty days after the end of the period during which the six members were required to appoint a member, shall appoint the seventh member, who shall not be affiliated with a political party.

As defendants observe, § 3517.152(A)(1) does not restrict the partisan seats to any specific party. Instead,

three members will be selected from any party that wins enough seats in the legislature to qualify as one of the State's two major parties. Thus, the parties to this appeal do not dispute that, if "a minor party" builds "its base and become[s] one of the two major parties in the state," it would secure "an avenue for its members to serve on the Elections Commission." Rightly so: though the statute does not say so expressly, it is implicit in the statute's party-neutral design that a political party, upon losing its major-party status, loses to the new major party its ability to nominate members to fill seats for which the term has expired.

Record citations omitted. Based on this procedure and Ohio's election results, there are presently three Republican commissioners, three Democrat commissioners, and one commissioner with no party affiliation. See Ohio Elections Commission, Members/Staff, available at https://elc.ohio.gov/wps/portal/gov/elc/about-us/membership-staff (last visited Feb. 4, 2021).

B.

In the lead-up to Ohio's 2018 gubernatorial election, three organizations hosted televised debates between the nominees chosen by the Democratic Party and the Republican Party, to the exclusion of other candidates, including the ballot-qualified nominee of the LPO. In September 2018, the LPO filed administrative complaints with the OEC, alleging that each of the organizations hosting those debates had violated Ohio's campaign-finance laws because the exclusive debates between major-party candidates were illegal, in-kind campaign contributions. See Ohio Rev. Code § 3599.03. But in December 2018, the OEC found no violation and dismissed the administrative complaints.

The LPO and Thomas then sued the individual commissioners of the OEC in their official capacities, alleging violations of their First and Fourteenth Amendment rights. As relevant here, plaintiffs alleged that § 3517.152(A)(1) violated their First Amendment associational rights because it rendered LPO members ineligible for service on the OEC.² The district court entered summary judgment in defendants’ favor, reasoning § 3517.152(A)(1) withstood constitutional scrutiny under either of two potential frameworks. This timely appeal followed.

II.

We review the district court's summary judgment determination de novo. Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP , 759 F.3d 522, 526 (6th Cir. 2014). Summary judgment is appropriate only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

III.

Initially, we must address defendants’ assertion, first raised on appeal, that plaintiffs lack standing. The "irreducible constitutional minimum" of standing consists of three elements. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id. at 560–561, 112 S.Ct. 2130. Absent these three elements, a plaintiff has failed to show a present "case or controversy" that we are authorized to adjudicate under Article III of the Constitution. Id. at 560, 112 S.Ct. 2130 ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III."). Therefore, even though the failure to raise an issue before the district court usually renders it forfeited on appeal, see, e.g. , F.T.C. v. E.M.A. Nationwide, Inc. , 767 F.3d 611, 630 (6th Cir. 2014), we must consider plaintiffs’ standing because it implicates our subject-matter jurisdiction, see Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), and such defects cannot be forfeited, see United States v. Cotton , 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) ("[D]efects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court.").

The OEC offers several reasons why plaintiffs have not demonstrated their standing to challenge § 3517.152(a). First, it says that Thomas, as LPO chairman, was not eligible for membership on the Commission at the time the lawsuit was filed under a separate provision of § 3517.152. Specifically, defendants point out that Ohio law prohibits political party officers from serving on the OEC. See Ohio Rev. Code § 3517.152(F)(1)(c) ("No member of the Ohio elections commission shall ... [b]e an officer of the state central committee, a county central committee, or a district, city, township, or other committee of a political party or an officer of the executive committee of the state central committee, a county central committee, or a district, city, township, or other committee of a political party[.]"). While Thomas is no longer the chairman of the LPO, standing must exist from the outset of the suit, so if Thomas lacked Article III standing at the time the complaint was filed, his resignation of the chairmanship cannot cure the defect. See Smith v. Jefferson Cty. Bd. of Sch. Comm'rs , 641 F.3d 197, 206 (6th Cir. 2011).

But Thomas had standing at the outset of the suit. As the OEC concedes, Thomas "has introduced evidence that he would like to be on the Ohio Elections Commission[,]" but his membership in the Libertarian Party prevents him from being considered for the seventh commission seat. Under these circumstances, "a plaintiff need not translate his or her desire for a job into a formal application" because "that application would be merely a futile gesture." Carney v. Adams , ––– U.S. ––––, 141 S. Ct. 493, 503, 208 L.Ed.2d 305 (2020) (internal quotation marks, brackets, and citation omitted).³ Further, the separate provision § 3517.152 poses no obstacle to Thomas's eligibility because it prohibits a person only from simultaneously holding public office as an OEC...