Nader v. Blackwell

• Decision Date: 29 October 2008
• Docket Number: No. 07-4350.,07-4350.
• Citation: 545 F.3d 459
• Parties: Ralph NADER, Plaintiff-Appellant, v. J. Kenneth BLACKWELL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

545 F.3d 459

Ralph NADER, Plaintiff-Appellant, v. J. Kenneth BLACKWELL, Defendant-Appellee.

No. 07-4350.

United States Court of Appeals, Sixth Circuit.

Argued: July 22, 2008.

Decided and Filed: October 29, 2008.

ARGUED: Mark R. Brown, Capital University Law School, Columbus, Ohio, for Appellant. Pearl M. Chin, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Mark R. Brown, Capital University Law School, Columbus, Ohio, for Appellant. Richard N. Coglianese, Daniel C. Roth, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; and MOORE and CLAY, Circuit Judges.

BOGGS, C.J., delivered the lead opinion. MOORE, J. (p. 478), and CLAY, J. (p. 478-79), delivered the opinion of the Court inasmuch as MOORE, J., joined the opinion of Judge CLAY, and CLAY, J., joined the opinion of Judge MOORE.

OPINION

BOGGS, Chief Judge.

As my colleagues' opinions for the court appear to me to be a bit succinct, I write to provide some additional facts and reasoning in support of the same result.

Ralph Nader ran for President of the United States in 2004. Under Ohio law, he needed to collect 5000 signatures on his nominating petition to be placed on the Ohio general-election ballot. Circulators of Nader nominating petitions collected over 14,000 signatures, but local election boards invalidated approximately 8000 of them, leaving 6464 signatures. J. Kenneth Blackwell, then Ohio's Secretary of State, certified Nader for placement on the ballot. However, a group of Ohio Democratic voters challenged Nader's signatures, and Blackwell directed an attorney in his office to hold a hearing regarding the validity of the remaining 6464 signatures. After considering testimony and other evidence, the staff attorney invalidated 2700 more signatures. After these invalidations, Nader had fewer than 5000 valid signatures, and Blackwell removed him from the ballot on September 28, 2004. In October 2004, a federal district court denied Nader's request for injunctive relief, the state courts denied his request for mandamus relief, and this court denied his emergency appeal. In November 2005, we dismissed his regular appeal as moot.

In this § 1983 case, filed in September 2006, Nader sued Blackwell in his personal capacity for allegedly violating Nader's First Amendment rights. According to Nader, Blackwell violated his rights when he applied Ohio Revised Code § 3503.06, which requires that petition circulators reside and be registered to vote in Ohio, to Nader's nominating petitions. The district court dismissed Nader's suit, holding that Nader lacked standing and, alternatively, that Blackwell enjoyed both qualified and absolute immunity. We hold that Nader has standing to bring this suit, but we affirm the district court's holding that Blackwell enjoys qualified immunity.

I

A

On August 18, 2004, Nader and his vice-presidential running mate, Peter Camejo, filed a Joint Statement of Candidacy and Nominating Petition with the Ohio Secretary of State's Election Division. See Ohio Rev.Code Ann. § 3513.263 (West 2004). Under Ohio law, 5000 signatures are required for an independent candidate to be placed on the ballot. Ohio Rev.Code Ann. § 3513.257(A) (West 2004). The Nader-Camejo nominating petition appeared to have 14,473 signatures.

The Secretary of State's Election Division processed the nominating petition and directed the individual Ohio county boards of elections to determine the validity of a petition, part-petitions (the individual petition sheets that are circulated for signatures), and signatures. On September 8, 2004, after reviewing the findings of the county boards, the Elections Division determined that only 6464 signatures on the petition were valid. That day, then-Secretary of State Blackwell certified Nader's candidacy for President, meaning that Nader's name would appear on the Ohio ballot. On August 30, 2004, thirteen Ohio electors ("the protestors") filed a protest with the Secretary of State challenging the validity of many of the remaining 6464 signatures. See Ohio Rev.Code Ann. § 3513.263 (West 2004) ("Written protests against such nominating petitions may be filed by any qualified elector eligible to vote for the candidate whose nominating petition he objects to....").

In response to the protest, a hearing was held at the Office of the Secretary of State on September 21-24, 2004. See ibid. ("Upon the filing of such protests, the election officials with whom it is filed shall promptly fix the time and place for hearing it ...."); ibid. ("At the time and place fixed, such election officials shall hear the protest and determine the validty [sic] or invalidity of the petition."). Blackwell designated Gretchen A. Quinn, a staff attorney in his office, as the hearing officer, and she conducted the hearing. Both the protestors and Nader and Camejo were represented by counsel at the hearing. Both were given the opportunity to offer evidence (including affidavits and documents) and make statements. Testimony was limited to information about the 6464 signatures validated by the boards of elections. The protestors challenged signatures gathered by fourteen petition circulators, based on various alleged violations of Ohio law that would invalidate the signatures that they had collected.

On September 28, Quinn issued and sent to Blackwell a thirty-one page memo of "Findings of Fact and Conclusions of Law." Quinn concluded that there were "a number of significant problems relating to the petition, particularly in regard to the people who purportedly had circulated many of the part-petitions that were subject to the protest." We now detail Quinn's findings, moving in order from the uncontroversial findings to those findings that are the basis of this lawsuit.

First, Nader has never challenged Quinn's invalidation of 17 signatures because they were not dated. Neither has he challenged Quinn's finding that the election board of Hamilton County made an arithmetic error, the correction of which reduced the number of signatures by 13. Accordingly, excluding these 30 signatures reduced Nader's 6464 signatures to 6434.

Second, Quinn made several findings that prompted the parties to stipulate to the invalidation of many signatures. Those findings were:

Jill Lane allegedly circulated 43 part-petitions with 295 signatures. Lane testified that she had signed some of the circulator statements on some of the 43 part-petitions, that her signature on others had been forged, and that she could not tell if her signature was forged on yet others of the 43 part-petitions. She also testified that never personally circulated any Nader part-petitions and that she never witnessed the affixing of any signatures to the part-petitions. In fact, Lane testified that her cousin, who was not an Ohio resident, had told her he was circulating petitions against same-sex marriage and asked her to sign the circulator statements. Ohio Revised Code § 3501.38(E) states that petition circulators must personally witness the affixing of every signature, otherwise an entire part-petition is invalid. The parties stipulated that the 295 signatures on part-petitions bearing Lane's name as circulator would be invalid.

Michael Cottrell testified that he never actually circulated five part-petitions bearing 32 signatures. The parties stipulated that those 32 signatures were invalid.

Melody Hudson, Jill Lane's daughter, testified that she never circulated 12 part-petitions bearing her name and containing 33 signatures. The parties stipulated that those 33 signatures were invalid.

Richard Hudson, Jill Lane's son, testified that he signed the statements on six part-petitions containing 45 signatures, but that he had not acted as a circulator and had not witnessed any signatures. The parties stipulated that those 45 signatures were invalid.

One part-petition bearing one signature was allegedly circulated by a Michael Dowham, but a Michael Bonham testified that he, not any Michael Dowham lived at the address given for Dowham. The hearing officer concluded that there was no such person as Michael Dowham, and the parties stipulated the signature was invalid.

In total, the parties stipulated that 406 signatures were invalid. Excluding those signatures from the tally of 6434 signatures, Nader still had 6028 signatures.

Third, Quinn invalidated other signatures based on findings that are not being challenged here. Those findings were:

Greg Reese testified that he personally circulated and witnessed only eight of the 22 part-petitions bearing his name. Reese was unable to distinguish which part-petitions he had or had not actually circulated. Accordingly, Quinn invalidated the 81 signatures on the part-petitions from Reese that the local election boards had found valid.

Antoine Jackson allegedly circulated 36 part-petitions containing 268 signatures. Jackson testified that he did not personally circulate, and thus did not witness the signatures on, 25 to 30 of the petitions bearing his name. Jackson could not distinguish between the part-petitions he circulated and those he did not. Accordingly, Quinn invalidated the 268 signatures.

Ronald Waller allegedly circulated 58 part-petitions containing 366 signatures. He attested under penalty of election falsification that he resided in Cincinnati. Waller's mother swore in an affidavit that he had not lived at the given address since March 2004. One individual whose name was on the petition swore that he signed a petition circulated by a white man and a white woman. Waller is a black man. Quinn found that the evidence did not show that Waller was not an Ohio resident, merely that he was not resident at the address listed on the part-petitions. Quinn found that the evidence supported a finding of election falsification on two part-petitions because they were circulated by persons other than Waller, see Ohio Rev.Code Ann. § 3501.38 (West 2004), and invalidated 15...