In the 2006 case of Libertarian Party of Ohio v. Blackwell, the Sixth Circuit Court of Appeals ruled that the scheme of Ohio voting laws regulating minor political parties was unconstitutional. The Blackwell decision invalidating Ohio voting laws was based on the fact that Ohio law placed severe burdens on the First Amendment rights to free speech and association of the Libertarian Party of Ohio (“LPO”), its members, and potential voters-supporters, and that it was not narrowly tailored and did not serve a compelling state interest. For seven years following the Blackwell decision, the State Legislature failed to enact minor party legislation in spite of requests from the Secretary of State.
On November 6, 2013, the Ohio Legislature passed and the Governor signed, S.B. 193 to be effective on February 5, 2014, the deadline for submitting petition signatures for the 2014 election. S.B. 193 expressly voided the Secretary’s previous directives that had recognized minor parties as ballot qualified for both the primary and general elections. The bill thus required minor parties to start from scratch to qualify for ballot access. S.B. 193 also eliminated the right of minor parties to participate in the primary election. This meant that all nominating petitions that had been filed by minor party candidates to appear on the 2014 primary election ballot were nullified, and the time and resources expended on those petitions was wasted.
S.B. 193 did establish the following two methods by which a minor party could qualify for ballot access:
1) A minor party could qualify by receiving 3% of the votes cast in the previous election (2% of the votes cast in 2014). Qualifying in this manner would provide recognition for four years.
2) A minor party could also qualify by submitting a party formation petition:
a. Signed by Ohio voters equal in number to at least .5% of the total vote for nominees for presidential electors at the 2012 general election--approximately 28,166 signatures (After 2014 the number of required signatures will increase to 1%).
b. Containing signatures of at least 500 voters from each of at least one half of the congressional districts in Ohio.
c. Submitted no later than 126 days before the general election.
Already pending at the time that S.B. 193 was signed was a lawsuit filed by LPO in the U. S. District Court for the Southern District of Ohio against the Secretary of State and the intervening Defendant, the State of Ohio, challenging the requirement that petition circulators be residents of the State of Ohio. On November 8, 2013, the LPO amended its lawsuit to include a complaint challenging S.B. 193 and a motion for a preliminary injunction asking the trial court to enjoin the enforcement of S.B. 193 for the 2014 election cycle.
Legal Theory
Since the 2006 decision in the Blackwell case, minor political parties have been operating pursuant to directives issued by the Secretary of State for each calendar year. Operating as a recognized minor political party in 2013 and functioning under the assumption that the pattern for the issuance of directives established in prior years would continue in 2014, since no new ballot access law had been passed, the Green Party of Ohio (“GPO”) and Constitution Party of Ohio (“CPO”) and their candidates expended time and resources to secure a place on the 2014 primary ballot. The provisions of S.B. 193 created an unconstitutional burden for minor political parties in violation of their constitutional right to access the ballot, and it retroactively deprived them of their opportunity to compete against larger, more established political parties.
Status Update
On November 27, 2013 the ACLU, on behalf of the GPO and the CPO, filed a motion to intervene in the LPO litigation and, on December 3, 2013, a motion for a temporary restraining order and preliminary injunction. On December 4, 2013, the trial court granted the ACLU’s motion to intervene and set January 6, 2014 as a hearing date for oral arguments on the motions for injunctive relief. On December 23, 2013, the ACLU’s clients filed their intervening complaint, contending that S.B. 193 was unduly burdensome to minor political parties including the GPO and the CPO, as well as its candidates and supporters.
On January 7, 2014, the trial Court issued an Opinion and Order granting both the Plaintiffs’ and Intervening Plaintiffs’ motion for preliminary injunction, enjoining the Secretary of State and State of Ohio from retroactively applying S.B. 193 to the 2014 primary and general elections and ordering the Secretary of State to provide the Plaintiffs and Intervening Plaintiffs access to the 2014 primary and general elections in accordance with the 2013 Directive from the Secretary of State.
On January 10, 2014, the Secretary of State filed a Notice of Appeal and Motion to Expedite the Appeal. The Motion to Expedite the Appeal requested a shortened briefing schedule and a decision prior to February 5, 2014, the date on which S.B. 193 was scheduled to go into effect and the date by which minor political parties would be required to file their petitions in order to participate in the May 2014 primary election. The LPO and the ACLU’s clients filed briefs opposing the Motion to Expedite the Appeal. We argued that it was the Secretary of State and the State of Ohio that created the current situation by passing S.B. 193 on November 6, 2013. This was the last possible date on which the bill could be signed into law to take effect in the 2014 election cycle, because nominating petitions for partisan political candidates are due by February 5, 2014, the day that the bill was scheduled to take effect.
On January 15, 2014, the Sixth Circuit Court of Appeals denied the Motion to Expedite the Appeal and scheduled a telephone mediation conference for February 11, 2014 and a briefing schedule. At the beginning of the telephone mediation conference, the Defendants stated that they would voluntarily dismiss their appeal. (Although they did not state the reason, it was because the Circuit Court’s denial of the motion for an expedited briefing schedule had rendered the appeal effectively moot.) Accordingly, the appeal was dismissed by stipulation on February 18, 2014.
On February 25, we filed our petition for attorneys’ fees on the ground that we were prevailing parties and entitled to a fee award under 42 USC §1988. Defendants filed their response to our petition on April 4, and we filed our reply on April 22. On Sept 9, 2014, the judge denied our motion “in the interest of judicial economy and to avoid piecemeal litigation on fees,” without prejudice to re-filing our motion after final judgment is entered in this case.
Meanwhile, the Secretary of State rejected the primary ballot nominating petitions of LPO’s candidate for governor, Charlie Earl, on the grounds that the circulator failed to comply with Ohio’s employer identification requirements for circulators. In response, on March 7, 2014, LPO filed another complaint in the same district court proceeding, this time challenging the Ohio statute that governs petition circulator identification requirements, and moved to obtain a TRO blocking enforcement of the statute. After several days of hearings, on March 19, the court denied LPO’s motion for a TRO. Within the hour, LPO filed a motion for a stay of the court’s order. The court denied the motion for a stay of the court’s order on March 20, 2014.
The pending dispute over circulator identification requirements did not involve our clients. We proceeded with the portions of our challenge to SB 193 which had not been addressed by the court: the facial challenge to the constitutionality of the statute.
On August 15, 2014, we filed a motion for summary judgment. Intervenor Defendant the State of Ohio responded to our motion September 8, 2014 and also filed a cross-motion for summary judgment.
After a court order upheld the disqualification of LPO’s statewide candidates from the 2014 general election, on October 23, 2014, LPO filed its own Motion for Summary Judgment, expressly adopting the ACLU’s arguments in support of Count IV of its Complaint (which is the portion of its Complaint that challenges SB 193 on the same grounds upon which we challenge it.) On November 13, 2014, Intervenor Defendant Gregory A. Felsoci filed a Response to LPO’s Motion for Summary Judgment and filed a Cross-Motion for Summary Judgment against LPO, but Felsoci’s filing did not address LPO’s Count IV claim, focusing solely on claims to which our clients were not party.
On February 27, 2015, LPO filed a motion requesting the court to order Secretary Husted not to disqualify LPO from the 2015 election ballot pending a final ruling in the case.
On March 15, the judge denied our Motion for Summary Judgment and granted the Cross Motion for Summary Judgment filed by the State of Ohio. At that time, the judge did not rule on LPO’s Motion for Summary Judgment or on Intervenor Defendant Felsoci’s Motion for Summary Judgment against LPO. On March 30, 2015, we filed a Renewed Motion for Attorneys’ Fees and Costs on the ground that we had prevailed in our Motion for Preliminary Injunction. On April 22, 2015, our fee motion was denied without prejudice to refiling after final judgment is entered in the case.
On October 14, 2015, the judge decided the other cross motions for Summary Judgement, ruling in favor of the Defendants on every issue except (1) the out-of-state circulator issue, upon which it ruled in favor of LPO, and (2) the claim by LPO that the Secretary of State had selectively applied the law (that independent contractor-petition-circulators must fill in the employer statement box on candidate petitions) – which issue is fully briefed as of November 9, 2015.
On November 19, 2015, LPO appealed the October 14, 2015 decision to the Sixth Circuit Court of Appeals. However, on December 9, 2015 the Sixth Circuit rejected LPO’s appeal on the basis that it was untimely filed. On May 23, 2016, the District Court granted summary judgment on behalf of the Defendants on the last remaining issue, selective enforcement. On June 29, 2016, we filed our Second Renewed Motion for Attorneys’ Fees and Costs on the ground that we had prevailed in our Motion for Preliminary Injunction. On May 23, 2016, LPO appealed the trial court’s decision, but on July 29, 2016, the Sixth Circuit affirmed. On October 26, 2016, LPO petitioned for a writ of certiorari.
On January 10, 2017, LPO’s petition for certiorari was denied. On January 25, 2017, the Magistrate held a status conference regarding the outstanding fee petitions and suspended further briefing on the petitions pending efforts at resolution, including mediation. There were then two more status conferences, on February 28 and March 7, 2017.
On April 10, 2017, Intervenor Defendant Felsoci filed a Memo in Opposition to LPO’s Renewed Motion for Attorneys’ Fees. On April 21, Plaintiffs filed their reply. On April 24, Mark Brown, counsel for LPO, settled his three fee petitions for a total amount of $42,500.
