Morrison v. Colley, No. 06-4216.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Griffin
• Citation: 467 F.3d 503
• Parties: Charles R. MORRISON, Donald E. Eckhart, and Alexander Smith, Plaintiffs-Appellants, v. Michael F. COLLEY, Carolyn C. Petree, William A. Anthony, Jr., Kimberly E. Marinello, and Franklin County Board of Elections, Defendants-Appellees.
• Decision Date: 22 September 2006
• Docket Number: No. 06-4216.

467 F.3d 503 Charles R. MORRISON, Donald E. Eckhart, and Alexander Smith, Plaintiffs-Appellants,
v.
Michael F. COLLEY, Carolyn C. Petree, William A. Anthony, Jr., Kimberly E. Marinello, and Franklin County Board of Elections, Defendants-Appellees. No. 06-4216. United States Court of Appeals, Sixth Circuit. Argued: September 20, 2006. Decided and Filed: September 22, 2006.^*

[467 F.3d 504]

ARGUED: David R. Langdon, Langdon & Hartman LLC, Cincinnati, Ohio, for Appellants. Patrick J. Piccininni, PRosecuting Attorney's office for the County of Franklin, Columbus, Ohio, for Appellees. ON BRIEF: David R. Langdon, Curt C. Hartman, Joshua B. Bolinger, Langdon & Hartman LLC, Cincinnati, Ohio, Christopher P. Finner, Finney, Stagnaro, Saba & Klusmeier Co., L.P.A., Cincinnati, Ohio, for Appellants. Patrick J. Piccininni, Nick A. Soulas, Jr., Prosecuting Attorney's Office for the County of Franklin, Columbus, Ohio, for Appellees.

Before SILER, GILMAN, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Plaintiff-appellant Charles R. Morrison sought to run as an independent candidate for the office of United States Representative in Ohio's Fifteenth Congressional District ("CD") in the November 7, 2006, election. Defendants-appellees Franklin County Board of Elections ("BOE"), et al., excluded Morrison from the ballot on the ground that, under Ohio election law, he

467 F.3d 505

did not qualify as an independent candidate because he was affiliated with a political party. Morrison filed an action in the United States District Court for the Southern District of Ohio seeking preliminary and permanent injunctions requiring the BOE to place him on the ballot. Morrison claimed that the Ohio statutory provision violated his First and Fourteenth Amendment rights and those of his would-be voters because it was allegedly overbroad, illegally discriminatory, and void for vagueness. After the district court denied Morrison all relief, Morrison appealed to this court. We granted Morrison's motion to expedite the appeal and heard oral argument on September 20, 2006. On September 22, 2006, we issued a per curiam interim opinion unanimously affirming the district court, stating, "despite any constitutional infirmities that may exist in the relevant Ohio statutes as they might apply to others, there is no reasonable basis for Morrison to claim in good faith that he is not affiliated with a political party." (Emphasis added.) Today we explain our holding in greater detail.

I.

In December 2005 and January 2006, Morrison began circulating petitions seeking placement on the May 2, 2006, ballot for the Madison County Republican Party Central Committee and the Ohio Republican Party State Central Committee. Morrison filed his petitions, was certified as a candidate in the Republican primary for the state and county committee positions, and appeared on the May 2, 2006, Republican primary ballot. He lost both races.

Morrison filed his declaration of candidacy for the county committee on a form that stated, "This petition shall be circulated only by a member of the same political party as stated above by the candidate." Morrison signed the declaration, which also required him to state, under penalty of "election falsification," that he was a member of the Republican Party. Likewise as to the state committee, Morrison signed a declaration of candidacy that required him to state, under penalty of election falsification, that he was a member of the Republican Party.

Approximately three weeks before the May 2, 2006, Republican primary, Morrison purchased local newspaper advertisements supporting his state and county committee candidacies. In his ads, Morrison stated that he was a Republican. On May 2, 2006, Morrison requested a Republican ballot and voted in the Republican primary.

On May 1, 2006, the day before Morrison's name appeared on the ballot in the Republican primary, he filed nominating petitions with the BOE to run as an independent candidate in Ohio's Fifteenth CD.

On May 22, 2006, three residents and qualified electors from the Fifteenth CD filed a written protest challenging Morrison's congressional candidacy on the ground that he was not an independent under Ohio law, and the BOE responded by holding a protest hearing. After receiving briefs and hearing argument at the hearing, the BOE deadlocked 2-2 on whether to certify Morrison as an independent candidate. Pursuant to Ohio Rev. Code § 3501.05, the matter was referred to the Ohio Secretary of State, who voted in favor of the protestors and against certification.

Morrison brought suit in the district court under 42 U.S.C. § 1983, and thereafter the district court held a hearing on the merits.

II.

Because Morrison alleged the violation of rights recognized by the First and

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Fourteenth Amendments to the U.S. Constitution, the district court had federal-question jurisdiction under 28 U.S.C. § 1331. Regarding our jurisdiction, the district court consolidated the hearing on Morrison's preliminary injunction application with the hearing on the merits, and its order disposed of Morrison's complaint and request for permanent injunctive relief. Accordingly, the district court's order is final and immediately appealable. We review the district court's legal conclusions de novo and its factual findings for clear error. Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 507 (6th Cir.2006) (citing Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir.2003)).

III.

Recently, in Clingman v. Beaver, 544 U.S. 581, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005), the Supreme Court emphasized that not all election regulations that burden First Amendment rights are subject to a strict scrutiny analysis. Rather, unless a state election regulation places a heavy or severe burden on a party, "a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." Id. at 587, 125 S.Ct. 2029 (quoting with approval Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997)).

In holding that an Oklahoma statute allowing political parties to open their primary elections to only their own party members and voters registered as independents did not violate the First Amendment, the Supreme Court refused to apply a strict scrutiny analysis because the burden was not "severe":

[O]ur cases since Tashjian [v. Republican Party of Conn., 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986)] have clarified [that] strict scrutiny is appropriate only if the burden is severe. [California Democratic Party v.] Jones, [530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000)], supra, at 582, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502; Timmons, 520 U.S. at 358, 117 S.Ct. 1364, 137 L.Ed.2d 589.

* * *

Many electoral regulations, including voter registration generally, require that voters take some action to participate in the primary process. See, e.g., Rosario v. Rockefeller, 410 U.S. 752, 760-62, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973) (upholding requirement that voters change party registration 11 months in advance of the primary election). Election laws invariably "affec [t] — at least to some degree — the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).

These minor barriers between voter and party do not compel strict scrutiny. See Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes. The Constitution does not require that result, for it is beyond question "that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder." Timmons, supra, 520 U.S. at 358, 117 S.Ct. 1364, 137 L.Ed.2d 589; Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). Oklahoma's semiclosed primary system does

467 F.3d 507

not severely burden the associational rights of the state's citizenry.

C

When a state electoral provision places no heavy burden on associational rights, "a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." Timmons, supra, at 358, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (internal quotation marks omitted); Anderson, supra, at 788, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547.

Clingman, 544 U.S. at 592-93, 125 S.Ct. 2029. Clingman follows, and is consistent with, Timmons, which likewise refused to apply strict scrutiny to a challenge to a Minnesota election law prohibiting multi-party or "fusion" candidates from appearing on the ballot. In rejecting a claim that the Minnesota regulation violated the plaintiff's First and Fourteenth Amendment rights, the Supreme Court stated,

[I]t is also clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder. Burdick [v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)], supra, at 433, 112 S.Ct. 2059 ("`[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process'") (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)); Tashjian, supra, at 217, 107 S.Ct. 544 (The Constitution grants States "broad power to prescribe the `Time, Places and Manner of holding elections for Senators and Representatives', Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices").

When deciding whether...