Libertarian Party of Ohio v. Brunner, No. C2-08-555.

• Decision Date: 17 July 2008
• Docket Number: No. C2-08-555.
• Citation: 567 F.Supp.2d 1006
• Parties: LIBERTARIAN PARTY OF OHIO, et al., Plaintiffs, v. Jennifer BRUNNER, in her Official Capacity as Ohio Secretary of State, Defendant.
• Court: U.S. District Court — Southern District of Ohio

567 F.Supp.2d 1006

LIBERTARIAN PARTY OF OHIO, et al., Plaintiffs, v. Jennifer BRUNNER, in her Official Capacity as Ohio Secretary of State, Defendant.

No. C2-08-555.

United States District Court, S.D. Ohio, Eastern Division.

July 17, 2008.

COPYRIGHT MATERIAL OMITTED

Mark R. Brown, Columbus, OH, Gary Sinawski, Brooklyn, NY, for Plaintiffs.

Richard Nicholas Coglianese, Ohio Attorney General, Damian W. Sikora, Pearl Chin, Ohio Attorney General's Office, Columbus, OH, for Defendant.

OPINION AND ORDER

EDMUND A. SARGUS, JR., District Judge.

This matter came before the Court on Plaintiffs', The Libertarian Party of Ohio, Kevin Knedler, Bob Barr, Wayne A. Root, Mark Noble and Margaret A. Leech (collectively, the "Libertarian Party"), Motion for Preliminary Injunction. (Doc. # 6). Plaintiffs are an alternative political party and its candidates for public office in the November, 2008 general election. Defendant is the Ohio Secretary of State. Plaintiffs seek an order directing Defendant to place the Libertarian Party and its candidates on the 2008 general election ballot for the state of Ohio. For the reasons that follow, Plaintiffs' Motion is GRANTED.

I. SUMMARY

The Libertarian Party of Ohio seeks to have its candidates for President, Vice President, United States House of Representatives and the Ohio General Assembly on the general election ballot in Ohio on November 4, 2008. Two years ago, the Ohio statutes defining the methods of ballot access for minor or third parties were declared unconstitutional in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.2006), a decision which is binding precedent on both the state of Ohio and this Court. Since this decision was issued, the Ohio General Assembly has taken 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.

The Ohio Secretary of State, having sought new legislation in vain, has attempted to remedy those features of Ohio law declared unconstitutional in Blackwell, supra. The state of Ohio undoubtedly has the authority to require party candidates for public office to file petitions sufficient in number to demonstrate a modicum of public support; the State also has the authority to require that such petitions are filed well in advance of an election so as to insure an orderly, reliable election. At the same time, the First Amendment to the United States Constitution guarantees a right of association which is violated by onerous access statutes which prevent third parties and candidates from appearing on the ballot.

The Ohio Constitution requires that parties nominate candidates through primaries. Various Ohio statutes establish the dates of primary elections and the time to file candidacy petitions. Within these limited strictures, the Secretary of State of Ohio has attempted to modify the ballot access structure. As described below, under the Blackwell analysis, those modifications are still unconstitutional. Further, as to the federal offices of President, Vice President, and the United States House of Representatives, the Constitution requires the state legislatures, not executive officers such as a Secretary of State, to determine the method of elections.

This Court notes that the Secretary of State, within the limited confines of her authority, attempted to bring Ohio election law into compliance with the Constitution, which cannot be said of the Ohio General Assembly. For the reasons that follow, however, the Directive issued by the Secretary of State suffers from the same deficiencies found in Blackwell and, as to the federal offices, is in conflict with Articles I and II of the Constitution.

II.

The facts are not in dispute. Prior to the Sixth Circuit Court of Appeals' decision in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.2006), a party could qualify for the 2008 general election ballot in either one of the two methods. The first method was satisfied if the party candidate for President or Governor received at least five percent of the vote in the preceding election. If the party could not meet this threshold, it could nonetheless qualify if it did the following: 1) obtained valid signatures of Ohio electors equal to at least one percent of the votes cast for governor in the 2006 general election (40,227); 2) filed the signatures and petition on November 5, 2007, 120 days before the March 4, 2008 primary election and 364 days before the November 4, 2008 general election; 3) nominated their candidates at the March 4, 2008 primary election. Ohio Rev.Code §§ 3501.01(F)(3), 3517.021, 3501.01(E).

In Blackwell, the Court of Appeals considered the Libertarian Party's challenge to Ohio's ballot access requirements, and held that collectively the statutes created an unconstitutional burden on First Amendment rights. The early filing deadline requiring minor parties to gather 40,227 signatures one year in advance of a general election imposed a "severe burden" that was not "narrowly drawn to advance a state interest of compelling importance." Blackwell, 462 F.3d at 593. The Court of Appeals discussed ballot restrictions in other states at length, finding no other states as restrictive as Ohio. Of the seven other states that require political parties to nominate candidates through the primary process, Ohio imposed the most stringent requirements. For example, while California and Mississippi had October and January filing deadlines, respectively, neither state had a signature requirement in presidential election years. Id. at 589. The four other primary states have filing deadlines of April or later. Id. at n. 10.

Considering the entire statutory scheme, the Court held:

Ohio is well within its authority to mandate primary elections, to limit all parties to one primary date, or to require filing a petition in advance of the primary for administrative purposes. Viewed individually, each of these requirements may only impose a reasonable burden on constitutional rights. In practice, however, the combination of these laws imposes a severe burden on the associational rights of the LPO, its members, and its potential voter-supporters. As the state has not shown that these laws are narrowly tailored to protect a compelling state interest, we find that the Ohio system for minor party qualification violates the First Amendment of the Constitution.

Blackwell, 462 F.3d at 595.

Following the Court of Appeals' decision, in the absence of legislation from the Ohio General Assembly enacting new constitutional ballot access procedures, the Ohio Secretary of State issued a Directive dated May 21, 2007. (Directive 2007-09, Doc. # 5, Ex. B). The Directive requires a minor political party to: 1) obtain petition signatures equal to one-half of one percent of the votes cast for governor in the 2006 general election (20,114); 2) file nominating petitions 100 days before the primary. For 2008, that date is November 26, 2007, nearly a full year before the November 4, 2008 general election. The Directive left unchanged the requirement that minor parties nominate their candidates by primary election. The Directive contains an additional provision, allowing political parties that do not participate in the primary to be granted party status for the purposes of certifying presidential and vice presidential candidates only, by filing a petition with 20,113 valid signatures by August 18, 2008. (Directive 2007-09).

On March 3, 2008, the Libertarian Party filed with the Secretary of State a petition containing 6,545 signatures. Defendant rejected the petition for failure to comply with the Directive. Plaintiffs filed a Complaint on June 6, 2008, seeking preliminary injunctive relief prohibiting enforcement of Directive 2007-09 and granting the Libertarian Party access to the November, 2008 ballot. Plaintiffs filed a motion for preliminary injunction on June 16. Following completion of the briefing, the Court held oral argument on Plaintiffs' motion on July 14, 2008.

III.

In considering a request for preliminary injunction, the district court is to consider the following: (1) the likelihood that the movant will succeed on the merits, (2) whether the movant will suffer irreparable harm without the injunction, (3) the probability that granting the injunction will cause substantial harm to others and (4) whether the public interest will be advanced by issuing the injunction. Lorillard Tobacco Co. v. Amouri's Grand Foods, Inc., 453 F.3d 377, 380 (6th Cir. 2006), citing Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir.1997). "In making its determination, the district court is required to make specific findings concerning each of the four factors, unless fewer factors are dispositive of the issue." Id. The foregoing are "factors to be balanced, not prerequisites that must be met. Accordingly, the degree of likelihood of success required may depend on the strength of the other factors." In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985).

A. Likelihood of Success on the Merits

The Court finds that it is likely that Plaintiffs will prevail on the merits of their Constitutional claims. Plaintiffs correctly contend 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. As to the House of Representatives, Article I, Section 4 states that "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...." As to members of the Electoral College who determine the President, Article II, Section 1 states: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors."

To be sure, there is a dearth of precedent regarding the...