Libertarian Party of Ohio v. Jon Husted , 751 F.3d 403 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0091p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER; ┐
AARON HARRIS; CHARLIE EARL, │
Plaintiffs-Appellants, │
│ No. 14-3230
│
v. >
│
│
JON HUSTED, Secretary of State, │
Defendant-Appellee, │
│
│
GREGORY A. FELSOCI, │
Intervenor Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus
No. 2:13-cv-00953—Michael H. Watson, District Judge.
Argued: April 22, 2014
Decided and Filed: May 1, 2014
Before: SUHRHEINRICH, GIBBONS, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Mark R. Brown, Columbus, Ohio, for Appellants. Bridget C. Coontz, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee Husted. Steven W. Tigges,
ZEIGER, TIGGES & LITTLE LLP, Columbus, Ohio, for Appellee Felsoci. ON BRIEF: Mark
R. Brown, Columbus, Ohio, Mark G. Kafantaris, Columbus, Ohio, for Appellants. Bridget C.
Coontz, Damian W. Sikora, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio
for Appellee Husted. Steven W. Tigges, John W. Zeiger, Stuart G. Parsell, ZEIGER, TIGGES &
LITTLE LLP, Columbus, Ohio, for Appellee Felsoci.
1
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 2
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellants in this case include the
Libertarian Party of Ohio (“LPO”), a ballot-qualified political party in Ohio; Kevin Knedler, the
LPO state executive committee chair; Aaron Harris, the LPO state central committee chair; and
Charlie Earl, the LPO gubernatorial candidate for Ohio in 2014 (collectively referred to as the
LPO). The LPO appeals the denial of its request for a preliminary injunction. The LPO sought
an order prohibiting defendant-appellee, the Ohio Secretary of State, Jon Husted, from enforcing
section 3501.38(E)(1) of the Ohio Revised Code and thus restoring Earl to the ballot for the May
2014 primary election. Also a party to the appeal is Gregory Felsoci, who intervened in the
litigation. Felsoci is the individual whose protest of the certification of LPO candidates resulted
in Earl’s removal from the ballot.1 On appeal, the LPO makes two challenges to the
constitutionality of section 3501.38(E)(1): (1) on its face the statute’s employer disclosure
requirement violates the First Amendment, and (2) its enforcement violates the LPO’s due
process rights. We affirm.
I.
To appear on a general election ballot in Ohio, a political party must participate in the
primary. The Ohio Constitution requires that “[a]ll nominations for elective state . . . offices
shall be made at direct primary elections or by petition as provided by law.” Ohio Const. art. V,
§ 7. Ballot-access statutes create the framework for this constitutional mandate. Those statutes
impose various requirements on minor parties seeking to appear on primary (and thus general
election) ballots. Over the last ten years, the LPO has struggled to become and remain a ballot-
qualified party in Ohio through frequent litigation. The LPO has successfully challenged Ohio
laws burdening its access to the ballot in three prior lawsuits. See Libertarian Party v.
Blackwell, 462 F.3d 579 (6th Cir. 2006); Libertarian Party of Ohio v. Husted, No. 2:11-cv-722,
2011 WL 3957259 (S.D. Ohio Sept. 7, 2011), vacated as moot, 497 F. App’x 581 (6th Cir.
1
At the outset, we deny Felsoci’s motion to dismiss and strike his attached appendix which is duplicative of
the relevant parts of the record.
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 3
2012); Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006 (S.D. Ohio 2008). As a
result of the litigation, the LPO has fielded candidates for local, state-wide, and federal offices in
primary and general elections from 2008 to 2013. In the instant lawsuit the LPO previously was
successful in obtaining injunctions barring enforcement of an Ohio residency requirement for
petition circulators and barring retroactive application of S.B. 193, which voided the Secretary’s
directives recognizing minor parties as ballot-qualified and changed the criteria for a minor party
to obtain ballot access.
The LPO’s third motion for a preliminary injunction is the subject of this appeal. Before
introducing the facts forming the basis for the LPO’s motion, however, a summary of the
relevant Ohio ballot-access statute is useful.
A candidate may gain access to a general election only if he or she participates in the
primary. See Ohio Const., art. V, § 7. To gain access to the primary, candidates must file
declarations of candidacy accompanied by petitions ninety days before the primary election.
Ohio Rev. Code § 3513.05. If a candidate declares a candidacy for state-wide nomination or
election as a candidate of a minor party, then the petition must be supported by the signatures of
at least five hundred qualified electors who are members of the same political party as the
candidate. Id. A petition consists of separate “petition papers,” each containing signatures of
electors of only one county. Id. And only one person, a circulator, can circulate each petition
paper. Section 3513.05 further notes that petition papers are governed by a distinct statutory
provision, section 3513.38 of the Ohio Revised Code. Id.
According to section 3513.38, the signatures provided for on the petition papers must be
made by electors qualified to vote on the candidacy or issue which is the subject of the petition.
The facts of qualification are determined as of the date the petition is filed. Ohio Rev. Code
§ 3501.38(A). Signatures must be in ink and include the location of the signer’s voting
residence, which is the address appearing on the registration records at the board of elections.
Ohio Rev. Code § 3501.38(B)−(C). A person shall sign only his or her name, and a person may
not authorize another to sign for him or her, so long as he or she is not unable to physically sign
because of disability. Ohio Rev. Code §§ 3501.38(D), 3501.382.
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 4
Section 3513.38 also includes a provision detailing requirements for circulators, which,
because it forms the basis for the instant appeal, is quoted at length:
On each petition paper, the circulator shall indicate the number of signatures
contained on it, and shall sign a statement made under penalty of election
falsification that the circulator witnessed the affixing of every signature, that all
signers were to the best of the circulator’s knowledge and belief qualified to sign,
and that every signature is to the best of the circulator’s knowledge and belief the
signature of the person whose signature it purports to be or of an attorney in fact
acting pursuant to section 3501.382 of the Revised Code. On the circulator’s
statement for a declaration of candidacy or nominating petition for a person
seeking to become a statewide candidate or for a statewide initiative or a
statewide referendum petition, the circulator shall identify the circulator’s name,
the address of the circulator’s permanent residence, and the name and address of
the person employing the circulator to circulate the petition, if any.
Ohio Rev. Code § 3501.38(E)(1) (emphasis added).2 Petition circulators comply with this
disclosure requirement by filling in an employer information box located on the petition paper.
Section 3501.38(E)(1) requires the disclosure of all funding sources, irrespective of whether the
circulator is working as the servant employee or as an independent contractor of the source. See
State ex. rel. Linnabary v. Husted, No. 2014-0359, 2014 WL 1317512, at *4 (Ohio Apr. 3, 2014).
Further, if a circulator knowingly permits an unqualified person to sign a petition paper or
permits a person to write another’s name on a petition paper, the petition paper itself is invalid.
Ohio Rev. Code § 3501.38(F).
After the candidate collects a number of petition papers containing a sufficient number of
signatures and files the declaration of candidacy and accompanying petition with the Secretary of
State, the Secretary then transfers the petition papers to the county boards of elections, where
they are open to public inspection. Ohio Rev. Code § 3513.05. The boards certify the validity or
invalidity of each signature and return their determinations, along with the petition papers, to the
Secretary. Id. The Secretary then aggregates the totals to determine whether the candidate
satisfied the minimum number of required valid signatures and, if the required minimum is met,
certifies the candidate to the ballot. But, according to section 3501.38(L) of the Ohio Revised
Code, the boards “shall not” invalidate a petition on the basis that the submitted petition does not
2
The employer disclosure requirement was added by Am. Sub. H.B. 1 (2004).
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 5
satisfy petition requirements. Rather, the Secretary has the power to determine “all other
matters” involving the validity or invalidity of the petition papers. Ohio Rev. Code § 3513.05.
Section 3501.39 of the Ohio Revised Code provides that the “secretary of state . . . shall
accept any petition described in section 3501.38 of the Ohio Revised Code unless . . . [a] written
protest against the petition or candidacy, naming specific objections, is filed, a hearing is held,
and a determination is made by the election officials with whom the protest is filed that the
petition is invalid, in accordance with any section of the Revised Code providing a protest
procedure.” Section 3513.05 provides a procedure for protests of violations of its requirements.
Any qualified elector who is a member of the same political party as the candidate and who is
eligible to vote at the primary election in which the candidate seeks nomination may protest the
candidacy of any person filing a declaration of candidacy for party nomination or for election.
Id. Protests must be filed at least seventy-four days before the primary, in writing, and with the
election officials with whom the declaration of candidacy and petition were filed—normally, for
state-wide elections, the Secretary of State. Id. A protest triggers a hearing before the Secretary
(or another election official with whom the declaration of candidacy was filed), who fixes a time
and provides notice to the candidate and protester. Id. The Secretary (or, again, another election
official with whom the declaration of candidacy was filed) hears the protest and makes a final
determination as to the validity of the declaration for candidacy and accompanying petition. Id.
If the Secretary “find[s] that such candidate . . . has not fully complied with [the requirements set
forth in] this chapter, the candidate’s declaration of candidacy and petition shall be determined to
be invalid and shall be rejected.” Id.
II.
While the LPO was attempting to enjoin Husted’s enforcement of S.B. 193, it was also
engaged in the preparation of its declarations of candidacy and accompanying petitions to be
filed by the February 5, 2014 deadline. In November 2013, Oscar Hatchett, a professional
petition circulator, contacted Robert Bridges, the vice-chair of the executive committee and
political director for the LPO. Hatchett offered the LPO his services to assist LPO candidates to
qualify for the 2014 primary ballot. Bridges hired Hatchett, dba Easy Access Petitions, to collect
signatures for its candidates, including Earl, Steven Linnabary, who sought to file a declaration
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 6
of candidacy on behalf of the LPO for attorney general, and Sherry Clark, who sought to file a
declaration of candidacy on behalf of the LPO for lieutenant governor.
Hatchett collected 636 signatures for candidates Earl and Clark and 743 signatures for
Linnabary. Hatchett billed the LPO for his services as Easy Access Petitions, receiving payment
and reimbursements of approximately $1,785 for signatures for Earl and $500 or more for
signatures for Linnabary. Hatchett shipped his completed petition papers to Bridges without
completing the employer information box. Hatchett asked Bridges whether he wanted that
portion of the petition papers filled out. Bridges did not give Hatchett any instructions as to
whether to fill out the employee information box, although Bridges believed that it was not
necessary to do so because Hatchet was an independent contractor. Indeed, at all times, Hatchett
was an independent contractor, and not an employee of the LPO.
Like Bridges, Hatchett also believed it was unnecessary to fill in the employee
information box. Hatchett had been a professional circulator circulating petitions in Ohio for
approximately ten years. During that time, he circulated at least 10,000 petition papers and never
completed the employer statement box on any petition paper. He was unaware of any of his
signatures being invalidated for failure to complete the employer statement box. In mid-January,
the LPO terminated its contractual relationship with Hatchett due to a lack of funds and,
presumably, because he had gathered well more than the requisite 500 signatures for the
prospective LPO candidates.
Hatchett was not the only circulator circulating petitions in support of the LPO
candidates. On January 8, 2014, the LPO found itself, in Knedler’s words, in “crisis mode.” The
district court had just issued a preliminarily injunction, ordering Husted to provide the LPO and
its candidates access to the 2014 primary and general elections. The LPO had little more than a
month until the February 5 filing deadline to collect the requisite signatures for its candidacy
petitions, and it confronted the worst weather in 60 years. So the LPO reached out to “some
folks outside of the party in the shadows”—including “Tea Party people,” “Ron Paul people,”
independents, and members of the Ohio Democratic Party. Others were reaching out too. Ian
James, the owner of The Strategy Network, “a grassroots consultancy and advocacy firm,” spoke
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 7
with Chris Redfern, the chairman of the Ohio Democratic Party about collecting signatures for
the Libertarian candidates.
And additional petitions began to be circulated, but not only by the LPO or its affiliates.
For example, Sara Hart collected approximately 241 signatures for Earl and Clark and submitted
them to Bridges. She also did not complete the employer information box. The LPO did not pay
Hart for her services. Nor did Hatchett, although Hatchett did know Hart from previous petition
circulation efforts. Thus, Hart was likely working as an independent contractor for some
unspecified third party. Furthermore, on January 28, 2014, an organization, Ohioans for Liberty,
paid $12,000 to The Strategy Network to supervise, manage, and organize efforts to collect
signatures for Earl and other Libertarian candidates. The Strategy Network directed four of its
employees and interns to collect signatures on behalf of LPO candidates. But neither Ohioans
for Liberty nor The Strategy Network is affiliated with the LPO. Ohioans for Liberty is a
501(c)(4) organization, and the vast majority of its funding comes from the Ohio Democratic
Party—to the tune of $828,000. Although James avowedly did not know the affiliation between
Ohioans for Liberty and the Ohio Democratic Party, it is reasonable to infer that the Democratic
Party was financing the circulation of petitions for LPO candidates.
These efforts, particularly Hatchett’s, garnered enough signatures to confidently place the
LPO candidates on the primary ballot. On December 30, 2013, Linnabary filed with Husted,
pursuant to section 3513.05 of the Ohio Revised Code, a declaration of candidacy and
nominating petition for attorney general, consisting of 94 separate petition papers and
968 signatures. And on February 4, 2014, one day before the filing deadline, Earl and Clark
filed with Husted a declaration of candidacy and nominating petition for governor and lieutenant
governor, consisting of 191 separate petition papers and 1,478 signatures.
On February 6, 2014, these petition papers were transmitted to local boards of elections
to determine the validity of the signatures. For Linnabary, the local boards returned 92 valid
part-petitions containing 591 valid signatures. For Earl and Clark, the local boards returned 190
valid part-petitions containing 830 valid signatures, well in excess of the 500 required by section
3513.05 of the Ohio Revised Code. On February 18, after Husted received the part-petitions and
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 8
determinations of validity from the local boards of election, he certified Linnabary, Earl, and
Clark as LPO candidates for the May 6 primary ballot.
At that point Gregory Felsoci, the intervenor-defendant-appellee in this case, entered the
picture. Felsoci resides in Akron, Ohio, works as a carpenter, and considers himself a member of
the LPO. Felsoci’s interest in Ohio ballot-access law apparently began after a Republican friend,
John Musca, showed him an unidentified document which Musca claimed to have found in a
local coffee shop. In the evidentiary hearing before the district court, Felsoci could not describe
the nature of the document Musca showed him and was unable to explain why he believed the
truth of the assertions the document contained. He said he believed it because he read it. As far
as Felsoci understands, what he read and consequently believed was that the LPO was gathering
“votes” without disclosing that those who gathered them were being paid to do so. Musca then
asked Felsoci whether he would be willing to stand by his conviction that wrongdoing had
occurred and agree to be contacted by someone to discuss pursuing the matter further. Felsoci
acquiesced. Soon afterward, the Zeiger, Tigges, and Little law firm contacted Felsoci and
offered its assistance. Felsoci is not paying for his representation by the Zeiger law firm; he is
unaware who is paying for it. Characterized as a “guileless dupe” by the district court, Felsoci
likely is the tool of the Republican Party.3
On February 21, three days after Husted certified Linnabary, Earl and Clark as LPO
candidates for the primary ballot, Felsoci filed a protest against the certification of Earl and
Clark.4 Felsoci argued that section 3501.38(E)(1) of the Ohio Revised Code requires
independent contractors, not just employees, to complete the employer information box and thus
the LPO candidates failed to comply with the employer disclosure requirement. He also asserted
that the circulators were not members of the LPO as required by section 3513.05 of the Ohio
Revised Code. Husted referred the protest to Bradley Smith, a hearing officer, to conduct a
3
The district court came to this conclusion: “[I]t seems fair to acknowledge the inference, especially in light
of the fact that Felsoci’s attorneys elicited evidence demonstrating that the Ohio Democratic Party, or its operatives
or supporters, provided assistance to Plaintiffs in their efforts to gather petition signatures to qualify for the Ohio
May 2014 primary ballot.”
4
Two other individuals filed protests which are not of instant concern: Tyler King also filed a protest
against the certification of these three candidates but withdrew his protest fairly quickly. And Carl Akers filed a
protest against Linnabary only.
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 9
hearing and issue a report and recommendation as to the disposition of the protest. Smith
conducted the hearing on March 4, 2014. Persons associated with the LPO, Ohioans for Liberty,
and The Strategy Network testified. Smith issued his report on March 7, 2014.
In that report, Smith concluded that all of the challenged petition circulators—Hatchett,
Hart, and others—satisfied the requirement of section 3513.05 of the Ohio Revised Code of
being members of the same political party as the candidate for whom they were circulating
petitions because they had not voted in any primary for the last two years. Smith also concluded
that because Hatchett and Hart failed to provide the name and address of the person or entity
who compensated them in the employer information box on the petition papers, the signatures
gathered for Earl and Clark failed to comply with section 3501.38(E)(1) of the Ohio Revised
Code. Accordingly, Smith recommended that all the petition papers submitted by Hatchett and
Hart be ruled invalid.
Husted adopted Smith’s report and recommendation the same day it was made. Pursuant
to his power under section 3513.05 of the Ohio Revised Code, Husted held that the signatures
gathered for Linnabary by Hatchett and the signatures gathered for Earl and Clark by Hatchett
and Hart were invalid, and, as a result, neither Linnabary nor Earl and Clark had the requisite
five hundred valid signatures to be eligible for nomination at the May 6, 2014 primary election
as LPO candidates for the offices of attorney general, governor, and lieutenant governor,
respectively.
This was the first occasion on which enforcement of the employer disclosure requirement
had resulted in the disqualification of a statewide candidate. In the absence of a protest, Husted’s
practice had been not to check petitions to see whether the employer name and address were
omitted.
Husted’s invalidation of the signatures and disqualification of the candidates from the
ballot has serious consequences for the LPO, which go beyond the May primary. First, having
failed to qualify for the primary ballot, Earl, Clark, and Linnabary cannot appear on the ballot for
the November 2014 general election. Therefore, it is extremely unlikely that the LPO will
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 10
receive two percent of the votes cast in the 2014 gubernatorial race.5 Owing to amendments to
Ohio’s ballot-access statute enacted in S.B. 193, the LPO will very likely lose its recognition as a
political party in Ohio. And to requalify as a political party, the LPO would have to file with the
Secretary a party formation petition that is (1) supported by a number of signatures equaling one
percent of the total vote at the 2014 gubernatorial election (amounting to more than 38,500
signatures, assuming no change in voting numbers from the 2010 gubernatorial election);
(2) signed by not fewer than five hundred qualified electors hailing from each of at least a
minimum of one-half of the congressional districts in the state (currently eight); and (3) filed at
least one hundred and twenty-five (125) days before the general election the party plans to
contest. See Ohio Rev. Code § 3517.01(A)(1)(b). Furthermore, the LPO would also have to
meet the petition requirements imposed by section 3501.38 of the Ohio Revised Code—which it
failed to meet for 500 signatures—for more than 38,500 signatures.
To avoid this result, the LPO again sought the interposition of the courts. Linnabary filed
suit in the Supreme Court of Ohio, seeking a writ of mandamus to compel Husted to certify his
candidacy as LPO candidate for attorney general and restore his name to the ballot. See
Linnabary, 2014 WL 1317512, at *1. The court concluded that Husted’s interpretation of
“employing” in section 3501.38(E)(1) of the Ohio Revised Code to cover employment
relationships with independent contractors did not clearly disregard applicable law. Id. at *5.
The court also held that section 3501.38(E)(1) does not comprehend a substantial-compliance
standard and that strict compliance is therefore required. Id. at *7. Accordingly, the court
denied the writ of mandamus. Id.
The LPO and Earl, by contrast, looked again to the federal district court. On March 7,
2014, the same day as Husted disqualified the LPO from the May primary ballot, the LPO filed a
second amended complaint, a third motion for a preliminary injunction, and a motion for a
temporary restraining order. In its second amended complaint, the LPO lodged three additional
constitutional claims under 42 U.S.C. § 1983. First, in count six, the LPO alleged that the
requirement under section 3501.38(E)(1) of the Ohio Revised Code that circulators disclose their
5
See Ohio Am. Sub. S.B. 193 § 4(B), 130th G.A. (2013) (“A political party that polls for its candidate for
Governor at least two per cent but less than twenty per cent of the entire vote cast for that office at the 2014 general
election remains a minor political party for a period of four years after meeting that requirement.”)
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 11
employers facially violates the First Amendment. Second, in count seven, the LPO alleged that
Husted’s enforcement of that requirement by declaring their previously certified petition papers
invalid violates the First Amendment as-applied. Third, in count eight, the LPO alleged that a
retroactive application and enforcement of section 3501.38(E)(1) of the Ohio Revised Code
violates its rights under the Due Process Clause of the Fourteenth Amendment. The LPO sought
a declaration that section 3501.38(E)(1) is unconstitutional, both facially and as-applied, and a
preliminary and permanent injunction prohibiting Husted from enforcing the statute as
interpreted by him against the LPO with respect to the 2014 primary election. Shortly thereafter,
Felsoci moved to intervene.
The district court conducted a preliminary conference and an evidentiary hearing on the
LPO’s third motion for a preliminary injunction. At the March 13, 2014 evidentiary hearing, the
court heard the testimony of live witnesses, subject to cross examination. The court heard
additional testimony on March 14 and 17, 2014.
On March 19, the district court issued an opinion and order denying the LPO’s third
motion for a preliminary injunction. The district court held that the LPO abandoned its due
process claim and, moreover, that the claim lacked merit. The court also found that the LPO was
unlikely to succeed on the merits of its facial and as-applied First Amendment challenges. After
a summary analysis of the other factors to be considered in a motion for a preliminary injunction,
see Williamson v. Recovery Ltd. P’ship, 731 F.3d 608, 627 (6th Cir. 2013), the district court
concluded that each of them weighed against granting injunctive relief. The LPO gave notice of
appeal.
The following day, on March 20, 2014, the LPO filed a motion with this court for an
expedited appeal and an immediate injunction pending appeal providing that (1) Husted place
Earl’s name on the 2014 LPO primary ballot; (2) Husted be enjoined from printing the LPO
primary ballots until the motion for an injunction pending appeal is resolved; and (3) Husted be
directed to seek a waiver to the requirement that the ballots to be mailed to absent military
personnel and overseas voters by March 22, 2014. The LPO concomitantly filed in the district
court a motion to stay its ruling pending the outcome of the emergency appeal and to enjoin
Husted from printing paper ballots for the May 2014 primary election until after their appeal had
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 12
been determined and the Ohio Supreme Court had issued its decision in State ex rel. Linnabary.
The district court denied the LPO’s motion to stay pending appeal, as did this court. We did,
however, direct the clerk to expedite the appeal of the district court’s denial of the LPO’s third
motion for a preliminary injunction. Ohio’s primary election is scheduled for Tuesday, May 6,
2014. See Ohio Rev. Code § 3501.01(E)(1).
III.
“This court reviews the denial of a preliminary injunction for an abuse of discretion,
examining findings of fact for clear error and legal conclusions de novo.” Autocam Corp. v.
Sebelius, 730 F.3d 618, 624 (6th Cir. 2013). “The reviewing court looks to the same four factors
the district court considered: likelihood of success on the merits, irreparable harm to the movant
in the injunction’s absence, harm to others as a result of the injunction’s issuance, and the public
interest.” Id. “When a party seeks a preliminary injunction on the basis of the potential violation
of the First Amendment, the likelihood of success on the merits often will be the determinative
factor.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). “With regard to the
factor of irreparable injury, for example, it is well-settled that ‘loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Id.
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality)); see also Newsom v. Norris,
888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even
minimal infringement upon First Amendment values constitutes irreparable injury sufficient to
justify injunctive relief.”). Thus, to the extent that the LPO can establish a substantial likelihood
of success on the merits of its First Amendment claims, it also has established irreparable harm.
See Reno, 154 F.3d at 288.
“Likewise, the determination of where the public interest lies also is dependent on a
determination of the likelihood of success on the merits of the First Amendment challenge
because ‘it is always in the public interest to prevent the violation of a party’s constitutional
rights.’” Id. (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079
(6th Cir. 1994)); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474,
1490 (6th Cir. 1995) (“[T]he public as a whole has a significant interest in . . . protection of First
Amendment liberties.”). “Accordingly, because the questions of harm to the parties and the
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 13
public interest generally cannot be addressed properly in the First Amendment context without
first determining if there is a constitutional violation, the crucial inquiry often is, and will be in
this case, whether the state action at issue is likely to be found constitutional.” Reno, 154 F.3d at
288. And “[s]ince ‘likelihood of success’ is a legal question that this court reviews de novo, the
effective standard of review for a denial of a preliminary injunction in this posture is also de
novo.” Autocam, 730 F.3d at 624 (citing Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir.
2012)).
IV.
Before this court, the LPO makes only one First Amendment claim—that section
3501.38(E)(1) is unconstitutional on its face. The as-applied challenge pursued in the district
court has thus been abandoned. See Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998)
(“Issues which were raised in the district court, yet not raised on appeal, are considered
abandoned and not reviewable on appeal.”).
We recognize that the LPO’s facial challenge is one of overbreadth. In the First
Amendment context, the overbreadth doctrine permits a litigant to assert that a statute is facially
invalid because the impermissible applications of the law are substantial when compared against
the statute’s plainly legitimate sweep. Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 450 n.6 (2008); see also Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)
(“Litigants, therefore, are permitted to challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction or assumption that the statute’s very
existence may cause others not before the court to refrain from constitutionally protected speech
or expression.”). The LPO obviously would suffer a burden if it could not hire circulators to
circulate petitions for its candidates attempting to qualify for the Ohio ballot. But the First
Amendment speech that the LPO alleges is unconstitutionally burdened by section 3501.38(E)(1)
is the petition circulation of paid circulators who are not before this court. The LPO maintains
that the employer disclosure requirement chills the First Amendment activity of many paid
petition circulators and cannot withstand judicial scrutiny.
We also note that the LPO’s facial challenge focuses on the employer disclosure
requirement’s impact on paid circulators with respect to candidacy nominating petitions for
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 14
minor political parties, a subset of those circulators to whom the requirement applies. Therefore,
we review only the part of section 3501.38(E)(1) that requires circulators of candidacy or
nomination petitions to disclose the name and address of the person employing them, if any.
The Supreme Court has repeatedly said that disclosure requirements do not impose a
ceiling on speech. See, e.g., McCutcheon v. Fed Election Comm’n, 134 S. Ct. 1434, 1459 (2014)
(plurality); Citizens United v. Fed Election Comm’n, 558 U.S. 310, 366 (2010). Although they
may burden the ability to speak, disclosure requirements do not prevent anyone from speaking.
Citizens United, 558 U.S. at 366 (internal citations and quotation marks omitted). In the election
context, disclosure requirements serve the important function of transparency, which is essential
to the fair contestation for political office. Disclosure requirements provide “the electorate with
information about the sources of election-related spending” and “help citizens make informed
choices in the political marketplace.” Id. at 367 (internal citations and quotation marks omitted).
Thus, in the election context, although disclosure requirements may burden speech protected by
the First Amendment, they are not automatically subject to strict judicial scrutiny. Rather, the
Supreme Court has reviewed First Amendment challenges to disclosure requirements in the
electoral context under what it has termed “exacting scrutiny.” John Doe No. 1 v. Reed, 130 S.
Ct. 2811, 2818 (2010) (citing Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam) (“Since
NAACP v. Alabama, we have required that the subordinating interests of the State [offered to
justify compelled disclosure] survive exacting scrutiny”) (alteration in original) (internal citation
omitted); Citizens United, 558 U.S. at 366 (“The Court has subjected [disclosure] requirements
to ‘exacting scrutiny. . . .’” (quoting Buckley, 424 U.S. at 64)); Davis v. FEC, 554 U.S. 724, 744
(2008) (governmental interest in disclosure “‘must survive exacting scrutiny’” (quoting Buckley,
424 U.S. at 64)); Buckley v. American Constitutional Law Foundation, Inc. (ACLF), 525 U.S.
182, 204 (1999) (finding that disclosure rules “fail[ed] exacting scrutiny”)). “That standard
‘requires a substantial relation between the disclosure requirement and a sufficiently important
governmental interest.’” Reed, 130 S. Ct. at 2818 (quoting Citizens United, 558 U.S. at 366−67)
(internal quotation marks omitted).
“Exacting scrutiny,” despite the name, does not necessarily require that kind of searching
analysis that is normally called strict judicial scrutiny; although it may. To withstand “exacting
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 15
scrutiny,” the Supreme Court has explained, “‘the strength of the governmental interest must
reflect the seriousness of the actual burden on First Amendment rights.’” Id. (quoting Davis, 554
U.S. at 744). The burden a ballot-access disclosure requirement imposes on a First Amendment
right may be sufficiently serious as to require strict scrutiny. See ACLF, 525 U.S. at 192 n.12
(explaining that the standard of review applied to paid circulator requirements “is entirely in
keeping with the now-settled approach that state regulations impos[ing] severe burdens on
speech . . . [must] be narrowly tailored to serve a compelling state interest.” (citing ACLF, 525
U.S. at 206 (Thomas, J., concurring in judgment) (alterations in original) (internal quotation
marks omitted)). However, it may not be. See, e.g., Reed, 130 S. Ct. at 2820 n.2 (explaining that
the standard of review applied differs from strict scrutiny). If a disclosure requirement in a
ballot-access provision chills First Amendment speech, the level of scrutiny to be applied
depends on the severity of the burden. Compare ACLF, 525 U.S. 192 n.12, 194−95, 200, and
Meyer v. Grant, 486 U.S. 414, 420−23 (1988), with Reed, 130 S. Ct. at 2821; see also Citizens for
Tax Reform v. Deters, 518 F.3d 375, 383 (6th Cir. 2008) (recognizing the “sliding-scale”
analysis).
A.
We turn then to an examination of the burden placed upon paid circulators for minor
parties by the disclosure requirement. Initially, we note that circulating petitions is core political
activity. See Meyer, 486 U.S. at 422. And we look to the LPO’s description of the chill it asserts
the disclosure requirement places on paid circulators: “[R]equiring disclosure of funding sources
makes speech and association risky for those who want to support minor parties and unpopular
causes.” From there the LPO’s brief moves on to an examination of the evidentiary record in
this case. We do the same.
The evidentiary record in the district court included the full transcript of the
administrative hearing on Felsoci’s protest. Three items in the administrative record have
relevance. First, Hatchett was asked the following by counsel for Felsoci:
Q. Sir, you’ve always understood that you could circulate petitions only as long as
you did not affiliate with a particular political party? A. Yes. Q. All right. And
you always understood that an affiliation with a particular political party would
substantially restrict the opportunities you would have to make money circulating
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 16
petitions. A. Yes, sir. Q. So it’s fair to say you have never been a member of a
political party. A. I am unaffiliated, yes.”
Second, during the administrative hearing, an attorney appeared on behalf of The
Strategy Network to state the objections of its employees and volunteered the following proffer
on behalf of Ian James:
Specifically, if [James] were asked these questions he would give
these answers: . . . Were you involved in organizing, managing, and supervising
the circulators of signatures for the – of petitions for signatures of the Earl and
Clark campaign? He would give the answer yes. Would being compelled to
disclose the identities of persons with whom you communicated regarding the
management, organization, and supervision of the signature-gathering for the
Earl/Clark campaign alter how you communicate in the future? He would answer
yes. . . . Would compelled disclosure of identities of such persons and your
communications with them make them less likely to become involved—make
you, rather, less likely to become involved in such activities in the future? He
would answer yes. Would compelled disclosure of the identities of such persons
and your communications with them make it less likely that others would ask you
to become involved in such activities in the future? He would answer yes. As
part of your work in political campaigns, do you depend on your ability to attract
like-minded associates willing to engage with you in such political activities? He
would answer yes. Would compelled disclosure of the identities of such persons
and your communications with them . . . negatively affect your ability to attract
such associations and form such associations in the future. He would answer
yes.”
All employees of The Strategy Network disclosed their employment on the petitions they
submitted.
Third, despite the attorney’s lodging of objections on his behalf, James did indeed appear
at the administrative hearing and was called to testify by Felsoci. His testimony recounted his
status as a proud Democrat and his discussion with Democratic Party officials about how
obtaining signatures for Earl would harm the Republican candidate. And he described his efforts
to obtain signatures for the LPO. Counsel for LPO asked James no questions relating to the
earlier proffer, and he gave no testimony relevant to any burden on paid circulators.
Prior to the district court’s evidentiary hearing, the LPO submitted the affidavit of Paul
Frankel. Frankel is both a Libertarian party official living in Alabama and a self-described
independent ballot-access contractor. He avers that he has directed and participated in hundreds
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 17
of signature drives for candidates and initiatives. Frankel offers his opinion that hiring paid
circulators is more difficult when states require that they disclose the source of their payments.
He notes that paid circulators work for different candidates and causes and want to preserve
anonymity of the sources “to insure future business.” And he indicates that funding sources like
to remain anonymous and do not like to pay circulators who must disclose their funding sources.
He particularly mentions that funding sources with Democratic or Republican ties do not want
their funding of Libertarian Party circulators known and are less likely to pay circulators for
Libertarian Party candidates if they know the information will be disclosed. From this, he
concludes: “Forcing candidates, parties and circulators to disclose their funding sources places a
significant and severe burden on parties’ and candidates’ abilities to retain circulators.”
At the evidentiary hearing in the district court, the Secretary presented the testimony of
Brandon Lynaugh, co-owner of the public affairs firm Strategic Public Partners. Lynaugh’s
testimony related both to whether the disclosure requirement chilled the work of paid circulators
and the governmental interest in preventing fraud, which we discuss later. The district court
relied heavily on his testimony. With respect to the disclosure requirement, the district court
accurately described it as follows:
SPP has run nine statewide issue campaigns and has coordinated efforts to collect
signatures for campaign petitions in Ohio. SPP has participated in the collection
of more than one million signatures. . . . Lynaugh also testified that, in the
industry, there is no ambiguity as to whether a paid circulator was required to
complete the employer information box on part petitions. He was not aware of
any instance of a paid petition circulator refusing to provide the information and
stated that the disclosure requirement did not prevent him from obtaining the
circulators he needed for his petition efforts. Further, Lynaugh indicated he had
never heard of harassment of the companies he hired to circulate petitions as a
result of the disclosures. Similarly, no commercial petition-circulating firms ever
expressed to him that the disclosure requirement impaired their ability to hire
individual petition circulators.
In addition, Lynaugh testified that in his experience, commercial petition-
circulating firms are not concerned about which side of an issue they work on and
opined the ability to obtain signatures for a variety of issues is an indication of
talent. He gave an example. Specifically, during one petition drive, one half of
SPP worked for one candidate and the other half worked for his opponent.
Lynaugh also expressed that transparency as to who is paying for petition
circulation is advantageous because both the press and public expect it in this day
and age.
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 18
Hatchett’s testimony at the administrative hearing indicated his willingness to fill out the
part of the petition form indicating his employment. No other evidence at the hearing before the
district court bears on the issue of chill to circulators who must disclose their employment.
Reviewing the state administrative hearing and the evidentiary hearing before the district
court, the relevant evidence of chill—whether to paid circulators generally or to those who
circulate on behalf of minor party candidates—can best be described as scant. There is no record
of any harassment or other efforts to dissuade circulators from circulating petitions. The proffer
by James’s attorney is not evidence, and James was not questioned about the issue when he in
fact did testify. Hatchett’s fleeting testimony about his understanding with respect to whether
affiliation with a political party would restrict his employment opportunities says more about the
attorney’s leading questions than it does about what Hatchett himself thought. And Hatchett
indicated to Bridges his willingness to fill in the disclosure information. The Frankel affidavit is
conclusory and general. It is not based on Ohio’s particular employer disclosure requirement
and does not include any assurance that the activity of paid circulating is the same throughout the
country. Lynaugh’s specific knowledge and his experience, which includes experience in Ohio,
speak directly to the issue and support a finding that there is no chill to circulator activity arising
from the employer disclosure requirement.
Furthermore, when we assess the chill apt to flow from Ohio’s employer disclosure
requirement, we note that the disclosure is not made by the circulator to the voter. Rather, the
disclosure is made by the circulator when the petition is filed, after the signatures are gathered.
So while the core First Amendment activity of communicating with voters is occurring, the
disclosure requirement plays no part. The circulator does not directly lose anonymity with the
voter whose signature is being solicited. Also, the requirement itself is for an employer name
and address only. Unless the political organization directly employs circulators, the employer
will probably be a firm with no obvious political affiliation. No payment amounts are included.
To be sure, seeking any information about a circulator has some potential, however small, to
reduce willingness to engage in circulating. But other than that general observation, little else
suggests that chill has occurred or is likely to occur as a result of the requirement. It is also
worth noting that the disclosure requirement has been in effect for almost ten years. Yet the
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 19
record suggests that paid circulator activity is apparently common and that a variety of sources in
Ohio provide the service. The only piece of evidence suggesting that the situation is different for
minor parties is the Frankel affidavit, which, as previously noted, is general, conclusory, and
does not relate specifically to Ohio. The LPO itself experienced no difficulty in obtaining paid
circulators on short notice during a harsh winter. Overall, the LPO has provided “scant
evidence” that Ohio’s employer disclosure requirement for paid circulator places any burden
whatsoever on circulators of petitions for candidacy nominations. Cf. Reed, 130 S. Ct. at 2821
(finding “scant evidence” that a state public records act allowing disclosure of signatories to
referendum petitions would chill First Amendment speech).
B.
We turn to the state’s interest in the requirement at issue. Section 3501.38(E)(1) was
enacted in 2004 after Ralph Nader’s disqualification from the presidential ballot that year. The
disqualification was accompanied by findings of substantial fraud among paid circulators, and
the record here includes the hearing examiner’s extensive factual determinations. The fraudulent
activity of Nader circulators was a major factor in the disclosure requirement’s enactment.
Evidence before the district court on the state’s interest also included the testimony of
Matthew Damshroder, Deputy Assistant Secretary of State and Director of Elections since 2011.
According to Damshroder, the employer information requirement helps deter fraud and also to
detect it. It encourages employers of circulators to educate the circulators about applicable law
and to hire individuals who will not reflect negatively on them. The information also helps if
followup is necessary, because employers are often easier to contact than circulators. The
information enables the Secretary of State’s Office to cross-check with campaign expenditure
reports and thus contributes to overall reporting compliance. Damshroder explained that the
Secretary of State lacks resources to examine part petitions for compliance with the requirement.
Thus, it relies on protests to uncover noncompliance. This practice accounts for the fact that the
disqualification of LPO candidates is the first time the requirement had been enforced resulting
in disqualification of a statewide candidate.
Testimony bearing on the governmental interest also came from Lynaugh. Lynaugh
described instance of cheating by circulators and recalled circulator frauds detected by law
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 20
enforcement in 2006 and 2009. He testified that circulators can commit fraud by obtaining
names and addresses from a phone book, and he was aware of one instance where a circulator
was caught doing that in the last year. He was unaware of any instance in which a volunteer
circulator committed fraud and called the difference of risk of volunteer fraud versus paid
circulator fraud “night and day.”
Taking all this testimony together, it appears that the employer disclosure requirement
serves substantial and legitimate state interests. The governmental interest is far more than
theoretical since Ohio has experienced fraud by paid circulators. The most notable instance of
fraud occurred during the circulation of petitions for a minor party candidate, Ralph Nader. The
requirement serves an ongoing function of deterring fraud and facilitating its detection.
C.
When we fit this case within the analytical framework established by Supreme Court
precedent, we see that the burden imposed on core First Amendment activity is largely
theoretical and speculative. And evidence exists suggesting that there is no significant burden at
all. Cf. Reed, 130 S. Ct. at 2821 (noting “scant evidence” that “only modest burdens” attended
disclosure). The burden is thus insufficiently serious to require strict scrutiny of the statutory
provision. See id. at 2820 (concluding that the disclosure requirement “is substantially related to
the important interest of preserving the integrity of the electoral process”). Here, the state
interest is substantial, legitimate, and supported by evidence of actual fraud. The record also
includes evidence of the contribution the statute makes on an ongoing basis to serving the
legitimate state interest. Under “exacting scrutiny” then there is a small burden on First
Amendment activity coupled with an important and well-established governmental interest to
which the disclosure requirement is substantially related. Therefore, application of “exacting
scrutiny” does not render the employer disclosure requirement unconstitutional. See id. at
2820−21.
Before leaving the First Amendment issue, we consider how the principal authorities
relied on by the LPO relate to and inform our conclusions. Perhaps the most helpful case for
LPO is ACLF, which involved a facial challenge to a Colorado statute that required that
proponents of initiatives report at the time of petition filing names, addresses, and county of
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 21
voter registration of all circulators, the amount paid to each circulator, and the amount paid per
petition signature. 525 U.S. at 189. Proponents were required to file on a monthly basis the
names and addresses of each paid circulator and the amount of money paid and owed to each
circulator during the month. Id. The circulator disclosure provision was challenged along with
requirements that all circulators be registered voters and that circulators wear identification
badges stating their names and whether they were volunteers or paid. Id. at 188−89. If they
were paid, the badge also had to include the name and phone number of their employer. Id. at
188. The Supreme Court ruled that the registration and badge requirements violated the First
Amendment and also invalidated the provisions of the final and monthly report requirements that
related to disclosures about individual circulators. See id. at 197−204. With respect to paid
circulators, the Supreme Court said, “[W]e agree with the Court of Appeals appraisal: Listing
paid circulators and their income from circulation forc[es] paid circulators to surrender the
anonymity enjoyed by their volunteer counterparts, no more than tenuously related to the
substantial interests disclosure serves, Colorado’s reporting requirements, to the extent they
target paid circulators, fai[l] exacting scrutiny.” Id. at 204 (alterations in original) (internal
citations and quotation marks omitted).
The result in ACLF certainly requires a very close look at the LPO’s First Amendment
challenge. Indeed, we must be vigilant in scrutinizing all First Amendment challenges. But
ultimately ACLF is not controlling, nor does the LPO suggest that it is. Instead, differences exist
between the two cases that dictate a different result here. No single distinction is determinative,
but together they point to upholding Ohio’s employer disclosure requirement. The context of
ACLF is an initiative campaign, and the Court itself noted that ballot initiatives do not pose the
same risk of corruption that paying money on behalf of candidates does. Id. at 203 (“We note,
furthermore, that ballot initiatives do not involve the risk of ‘quid pro quo’ corruption present
when money is paid to, or for, candidates.”); see also Meyer, 486 U.S. at 427−28 (citing First
Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of corruption perceived in
cases involving candidate elections . . . simply is not present in a popular vote on a public
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 22
issue.”)).6 While Ohio’s disclosure requirement also applies to paid circulators circulating
petitions for ballot initiatives, that is neither our context nor the object of the LPO’s overbreadth
challenge, and so we do not consider that aspect of the statute. See Yazoo & M.V.R. Co. v.
Jackson Vinegar Co., 226 U.S. 217, 219−20 (1912) (“Of course, the argument to sustain the
contention is that, if the statute embraces cases such as are supposed, it is void as to them, and, if
so void, is void in toto. But this court must deal with the case in hand, and not with imaginary
ones. It suffices, therefore, to hold that, as applied to cases like the present, the statute is
valid.”).
Moreover, the record in ACLF contained no evidence that paid circulators we more apt to
commit fraud than volunteer circulators, and the Court was unwilling to assume the fact “absent
evidence to the contrary.” 525 U.S. at 203. The record here, however, includes not only such
evidence but also evidence of actual fraud involving paid circulators. And the ACLF disclosure
itself—in monthly and final reports—both contained more information than is required here
(payment amounts) and, there, the information disclosed was more visible to the public than a
part-petition submitted on behalf of a candidate. Finally, an important part of the Supreme
Court’s analysis in ACLF relates to other measures by which Colorado seeks to deter fraud and
diminish corruption. See id. at 203−04. The LPO does not suggest that other measures
employed by Ohio figure in the analysis.
We note too that facts are not insignificant in determining the outcomes of First
Amendment cases. So the entire record here plays a role in differentiating this case from ACLF.
Our court stressed this point in Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008):
“[T]he question is fact-intensive, given the ‘sliding scale’ analysis outlined by the Supreme
Court in Meyer, Buckley and other decisions.” Id. at 383 (citing Lee v. Keith, 463 F.3d 763, 768
(7th Cir. 2006) (describing the Supreme Court’s flexible approach in similar First Amendment
cases as a “sliding scale”)). A determination that a challenged disclosure requirement
unconstitutionally burdens speech protected by the First Amendment on one record does not
compel us to conclude the same of a different disclosure requirement on another record. The
6
While recognizing the differing contexts between ballot initiatives and candidacy nominations, we do not
suggest that ACLF’s principles are wholly inapplicable to candidate petitions. See Nader v. Blackwell, 545 F.3d
459, 476 (6th Cir. 2008).
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 23
Supreme Court has cautioned several times that there is “no litmus-paper” test separating valid
ballot-access provisions from invalid interactive speech restrictions, ACLF, 525 U.S. at 192, and
that there is “no substitute for the hard judgments that must be made,” id. (quoting Storer v.
Brown, 415 U.S. 724, 730 (1974)). And in making those hard judgments, we must look to the
record before us.
Perhaps the case that the LPO urges us most strongly to follow is our own Deters
precedent, in which this court invalidated Ohio’s prohibition of compensation for circulators on a
per-signature or per-volume basis. 518 F.3d at 388. Yet Deters provides little help to the LPO.
Instead Deters demonstrates the exact approach we employ here: an intensive examination of the
record to determine the weight of the burden on petition circulation. While the Deters court
concluded that the Ohio statutory requirement at issue in that case would diminish petition
circulation because the “requirement would make proposing and qualifying initiatives more
expensive . . . and . . . professional coordinators and circulators would likely not work under a
per-time-only system,” id. at 385, the LPO offers no convincing evidence that the employer
disclosure requirement at issue in this case would significantly diminish petition circulation, if at
all.
The LPO’s reliance on McIntyre v. Ohio Elections Commission, 514 U.S. 335 (1995), is
also unavailing. In McIntyre, the Supreme Court invalidated an Ohio statute prohibiting the
distribution of campaign literature that did not contain the name and address of the person or
campaign official issuing the literature. Id. at 357. But McIntyre is not controlling. There, the
Supreme Court concluded that Ohio sought to “indiscriminately outlaw[] a category of
speech”—namely, anonymous political speech. Id.; see also id. at 338 n.3. Here, by contrast,
Ohio’s employer disclosure requirement for paid circulators of candidacy nomination petitions
does not prohibit a category of speech. See McCutcheon, 134 S. Ct. at 1459 (noting disclosure
requirements “do not impose a ceiling on speech”); Citizens United, 558 U.S. at 366 (disclosure
requirements do not prevent anyone from speaking). If the disclosure requirement burdens any
speech protected by the First Amendment—a burden for which the LPO has adduced scant
evidence—then that burden is only indirect and far less severe than the burden imposed by the
statute considered in McIntyre. And it is precisely along these lines that the McIntyre Court
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 24
distinguished its holding from Buckley, 424 U.S. at 75−76, in which the Supreme Court upheld
disclosure requirements of independent expenditures in excess of a certain threshold to the
Federal Election Commission:
Though such mandatory reporting [in Buckley] undeniably impedes protected
First Amendment activity, the intrusion is a far cry from compelled self-
identification on all election-related writings. A written election-related
document—particularly a leaflet—is often a personally crafted statement of a
political viewpoint. Mrs. McIntyre’s handbills surely fit that description. As
such, identification of the author against her will is particularly intrusive; it
reveals unmistakably the content of her thoughts on a controversial issue.
Disclosure of an expenditure and its use, without more, reveals far less
information. It may be information that a person prefers to keep secret, and
undoubtedly it often gives away something about the spender’s political views.
Nonetheless, even though money may “talk,” its speech is less specific, less
personal, and less provocative than a handbill—and as a result, when money
supports an unpopular viewpoint it is less likely to precipitate retaliation.
McIntyre, 514 U.S. at 355. Like the disclosure requirement upheld in Buckley, the employer
disclosure requirement is a “far cry” from a blanket prohibition on all anonymous campaign
literature. While we recognize that the employer disclosure requirement necessarily negates the
total anonymity of paid circulators of candidacy nomination petitions, the requirement’s chill of
speech protected by the First Amendment is far less than the freeze-out which the McIntyre
Court confronted. Absent record evidence suggesting otherwise, we do not see that McIntyre
provides the guidance the LPO believes it does.
Accordingly, we hold that the LPO is not likely to succeed on the merits of its First
Amendment overbreadth challenge to section 3501.38(E)(1).
V.
The LPO also lodges a due process claim against the enforcement of section
3501.38(E)(1). As with its First Amendment claim, the LPO fails to establish a substantial
likelihood of success on the merits of its due process challenge. The LPO submits that section
3501.38(E)(1)’s disclosure requirement is void for vagueness because it failed to provide
adequate notice of what conduct it prohibited. “[I]mprecise laws can be attacked on their face
under two different doctrines.” City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (plurality).
First, is the overbreadth doctrine, which is the basis of the LPO’s First Amendment facial
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 25
challenge. “Second, even if an enactment does not reach a substantial amount of constitutionally
protected conduct, it may be impermissibly vague because it fails to establish standards . . . that
are sufficient to guard against the arbitrary deprivation of liberty interests.” Id. “A fundamental
principle in our legal system is that laws which regulate persons or entities must give fair notice
of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307,
2317 (2012) (citing Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972)). “A conviction or
punishment fails to comply with due process if the statute or regulation under which it is
obtained ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is
so standardless that it authorizes or encourages seriously discriminatory enforcement.’” Id.
(quoting United States v. Williams, 553 U.S. 285, 304 (2008)). A rule or regulation is
unconstitutionally vague if it misleads the individuals it regulates into thinking that their conduct
is not proscribed. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1048 (1991). “The question
is not whether discriminatory enforcement occurred here, as we assume it did not, but whether
the Rule is so imprecise that discriminatory enforcement is a real possibility.” Id. at 1051.
The void-for-vagueness doctrine is concerned with “two connected but discrete due
process concerns: first, that regulated parties should know what is required of them so they may
act accordingly; second, precision and guidance are necessary so that those enforcing the law do
not act in an arbitrary or discriminatory way.” Fox, 132 S. Ct. at 2317 (citing Grayned v. City of
Rockford, 408 U.S. 104, 108–09 (1972)). The strictness of our vagueness scrutiny is
proportionate to the burden that the law imposes on those whom it regulates. See Morales, 527
U.S. at 55 (plurality); see also Fox, 132 S. Ct. at 2318 (stating that the abrupt regulatory change
was especially concerning because the regulations at issue in that case “touch upon ‘sensitive
areas of basic First Amendment freedoms’” (quoting Baggett v. Bullitt, 377 U.S. 360, 372
(1964))); id. at 2319 (noting that lack of fair notice is especially troubling when the regulatory
agency imposes a $1 million fine for the violation). “When speech is involved, rigorous
adherence to [the fair-notice] requirements is necessary to ensure that ambiguity does not chill
protected speech.” Fox, 132 S. Ct. at 2317.
The LPO’s void-for-vagueness challenge centers on the term “employing” in section
3501.38(E)(1). The provision requires disclosure of the “name and address of the person
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 26
employing the circulator.” Ohio Rev. Code § 3501.38(E)(1) (emphasis added). The LPO
maintains that term “employing” is vague because it connotes the common-law master-servant
relationship and therefore did not provide adequate notice that “employing” could be applied to
independent contractors. This argument is unconvincing. “Employ,” as the term is commonly
used in this context, means simply “to use or engage the services of,” which covers both
common law master-servant relationships and independent-contractor-client relationships.
Webster’s Ninth New Collegiate Dictionary 408 (9th ed. 1991).
Perhaps vagueness would have been a serious issue had the Secretary interpreted
“employing” in any statutory provision to cover some broader range of conduct not associated
with use of services. But the LPO offers no evidence of such an interpretation. “[A] statute will
be struck down as facially vague only if the plaintiff has demonstrate[d] that the law is
impermissibly vague in all of its applications.” Green Party of Tenn. v. Hargett, 700 F.3d 816,
825 (6th Cir. 2012) (alteration in original) (internal quotation marks omitted). The LPO has not
made such a demonstration. Accordingly, the LPO’s vagueness challenge predicated on the term
“employing” fails.7
Separately, the LPO argues that the Secretary’s enforcement of the disclosure
requirement violated due process because the LPO lacked sufficient notice that the Secretary
would enforce the disclosure requirement against it. The LPO stresses that section
3501.38(E)(1) had not been previously enforced and that in 2006 and 2007 the Secretary issued
two directives instructing local boards of elections not to invalidate part-petitions when the
employer identification box was left incomplete. The LPO’s insufficient-notice argument could
be construed in two ways; both collapse.
If, on the one hand, the LPO contends that it had insufficient notice that its petition
signatures would be invalidated as a consequence of Hatchett’s failure to comply with the
disclosure requirement, then that argument fails. The due process concern of notice goes to “fair
notice of conduct that is forbidden or required.” Fox, 132 S. Ct. at 2317 (emphasis added). That
7
We note that the Ohio Supreme Court recently put this question of vagueness to rest when it interpreted
the term to “appl[y] to all paid circulators, regardless of whether they are employees or independent contractors.”
Linnabary, 2014 WL 1317512, at *4.
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 27
the LPO was surprised by the enforcement does not necessarily show that the LPO did not know
what was required.
On the other hand, the LPO’s principal suggestion may be that the Secretary adopted a
policy of non-enforcement that assured it that Hatchett and Hart’s failure to complete the
employer information box was not, in fact, unlawful. This argument relies almost exclusively on
the Supreme Court’s 2012 decision in FCC v. Fox Television Stations—a case we have yet to
consider. Fox concerned the FCC’s treatment of television broadcasts containing expletives and
nudity. Title 18, section 1464 of the United States Code prohibits broadcasts of expletives and
nudity and specifies the applicable penalties. Id. at 2312. From the 1970s until 2004, FCC
guidance explicitly stated that passing or fleeting expletives or nudity would not be punished.
Then, in 2004, the FCC issued a decision sanctioning NBC for singer Bono’s use of the word
“f***ing” during the 2003 Golden Globe Awards, thereby breaking from its previous
enforcement position. It declared that “any use” of the “F-word” would be considered explicit
and therefore indecent. The FCC then applied the new policy to other broadcasts by Fox and
ABC, despite the fact that these broadcasts had aired well before the issuance of the Golden
Globes order. The FCC declined to fine Fox, but fined 45 ABC affiliates $27,500 each for the
broadcast it aired. Id. at 2315−17. Fox and ABC sued. The Supreme Court analyzed Fox and
ABC’s challenges to the enforcement under the void-for-vagueness doctrine. It held:
The Commission’s lack of notice to Fox and ABC that its interpretation had
changed so the fleeting moments of indecency contained in their broadcasts were
a violation of § 1464 as interpreted and enforced by the agency fail[ed] to provide
a person of ordinary intelligence fair notice of what is prohibited. This would be
true with respect to a regulatory change this abrupt on any subject, but it is surely
the case when applied to the regulations in question, regulations that touch upon
sensitive areas of basic First Amendment freedoms.
Id. at 2318 (alteration in original) (internal citation and quotation marks omitted). The LPO
suggests that the Secretary committed a regulatory change as abrupt as that at issue in Fox and
that the Secretary cannot show that “a person of ordinary intelligence” would have understood
that circulators operating as independent contractors were required to disclose their clients.
The LPO cannot build its due process claim on Fox. Unlike in Fox, the LPO cannot
demonstrate a formal policy change equivalent to the FCC’s policy change. Here, there was no
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 28
policy change; it was always the case that under Ohio law paid candidacy nomination petition
circulators were required to disclose their employers. The LPO adverts to two directives from
Husted’s predecessors to suggest there was a change of enforcement policy. In 2006, the
Secretary issued a directive instructing the board of elections: “Do not invalidate a part-petition
if the employer information statement . . . is blank or incomplete . . . .” Ohio Secretary of State
Directive 2006-58 (Aug. 21, 2006). And in 2007, the Secretary issued a directive containing this
exact same language in context of a referendum on a state senate bill. Ohio Secretary of State
Directive 2007-14 (Sept. 10, 2007). But these directives do not establish a policy change; rather,
they are entirely consistent with the statutory framework at baseline. Section 3501.38(L) of the
Ohio Revised Code instructs that the boards “shall not” invalidate a petition on the basis that the
petition form does not satisfy petition requirements. And section 3513.05 makes clear that, apart
from the petition signatures, the Secretary has the power to determine all questions regarding the
validity of the petition papers. The Secretary’s directives therefore did little more than restate
the applicable law to the boards of elections. They made no statement regarding the Secretary’s
own enforcement policy as to section 3501.38(E)(1). Much less do they prove that the Secretary
had adopted a policy of non-enforcement of the requirements of section 3501.38(E)(1) prior to
the events leading up to this case. And, furthermore, the LPO points to no record evidence that
they actually relied on these directives in the decision not to complete the employer information
box.
Thus, the LPO can establish no analogue to the FCC’s pre-Golden Globes enforcement
policy. In contrast to the fleeting expletives doctrine and the FCC’s abrupt change in Fox, the
LPO does not point to any non-enforcement policy of the Secretary’s office from which the
Secretary’s enforcement of section 3501.38(E)(1) marks an abrupt change. Thus, the LPO
simply cannot establish that they lacked notice as to what conduct was forbidden. Cf. Fox, 132
S. Ct. at 2317. The forbidden conduct was clear; that it would be enforced against them was
surprising. But the history of non-enforcement of section 3501.38(E)(1) and the LPO’s surprise
at its enforcement against them do not establish the basis for a due process vagueness claim.
What matters is the LPO cannot convincingly maintain that it lacked notice of what conduct was
required. (In fact, their First Amendment overbreadth challenge is predicated on paid circulators
No. 14-3230 Libertarian Party of Ohio, et al. v. Husted, et al. Page 29
being well aware of the requirement.) Accordingly, the LPO fails to demonstrate a substantial
likelihood of success on the merits of its due process claim.
VI.
We recognize that absent injunctive relief, the disqualification of the LPO from the 2014
Ohio primary ballot and general election ballots represents a severe and irreparable injury to the
LPO. Without a gubernatorial candidate on the general election ballot, given the effect of S.B.
193, the LPO in all likelihood will lose its status as a ballot-qualified party in Ohio. We note that
the LPO has struggled to become and remain a ballot-qualified party in Ohio, and we
acknowledge that this decision entails that their efforts must continue still. But we also note that
we decide one case at a time, on the record before us. In so doing, we preserve the First
Amendment’s primary place in our democracy over the long run.
“When a party seeks a preliminary injunction on the basis of the potential violation of the
First Amendment, the likelihood of success on the merits often will be the determinative factor.”
Reno, 154 F.3d at 288. It is also the determinative factor here. Because the LPO has failed to
establish a likelihood of success on the merits of its constitutional claims, we affirm the denial of
its third motion for preliminary injunction.