Morrison v. Colley , 467 F.3d 503 ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0373p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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CHARLES R. MORRISON, DONALD E. ECKHART, and
Plaintiffs-Appellants, -
ALEXANDER SMITH,
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No. 06-4216
,
v. >
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MICHAEL F. COLLEY, CAROLYN C. PETREE,
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WILLIAM A. ANTHONY, JR., KIMBERLY E.
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MARINELLO, and FRANKLIN COUNTY BOARD OF
Defendants-Appellees. -
ELECTIONS,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 06-00644—George C. Smith, District Judge.
Argued: September 20, 2006
Decided and Filed: September 22, 2006*
Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: David R. Langdon, LANGDON & HARTMAN LLC, Cincinnati, Ohio, for Appellants.
Patrick J. Piccininni, PROSECUTING ATTORNEY’S OFFICE FOR THE COUNTY OF
FRANKLIN, Columbus, Ohio, for Appellees. ON BRIEF: David R. Langdon, Curt C. Hartman,
Joshua B. Bolinger, LANGDON & HARTMAN LLC, Cincinnati, Ohio, Christopher P. Finner,
FINNEY, STAGNARO, SABA & KLUSMEIER CO., L.P.A., Cincinnati, Ohio, for Appellants.
Patrick J. Piccininni, Nick A. Soulas, Jr., PROSECUTING ATTORNEY’S OFFICE FOR THE
COUNTY OF FRANKLIN, Columbus, Ohio, for Appellees.
*
An interim opinion was filed in this matter on September 22, 2006. The court is now filing this more detailed
opinion.
1
No. 06-4216 Morrison, et al. v. Colley, et al. Page 2
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OPINION
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GRIFFIN, Circuit Judge. Plaintiff-appellant Charles R. Morrison sought to run as an
independent candidate for the office of United States Representative in Ohio’s Fifteenth
Congressional District (“CD”) in the November 7, 2006, election. Defendants-appellees Franklin
County Board of Elections (“BOE”), et al., excluded Morrison from the ballot on the ground that,
under Ohio election law, he did not qualify as an independent candidate because he was affiliated
with a political party. Morrison filed an action in the United States District Court for the Southern
District of Ohio seeking preliminary and permanent injunctions requiring the BOE to place him on
the ballot. Morrison claimed that the Ohio statutory provision violated his First and Fourteenth
Amendment rights and those of his would-be voters because it was allegedly overbroad, illegally
discriminatory, and void for vagueness. After the district court denied Morrison all relief, Morrison
appealed to this court. We granted Morrison’s motion to expedite the appeal and heard oral
argument on September 20, 2006. On September 22, 2006, we issued a per curiam interim opinion
unanimously affirming the district court, stating, “despite any constitutional infirmities that may
exist in the relevant Ohio statutes as they might apply to others, there is no reasonable basis for
Morrison to claim in good faith that he is not affiliated with a political party.” (Emphasis added.)
Today we explain our holding in greater detail.
I.
In December 2005 and January 2006, Morrison began circulating petitions seeking
placement on the May 2, 2006, ballot for the Madison County Republican Party Central Committee
and the Ohio Republican Party State Central Committee. Morrison filed his petitions, was certified
as a candidate in the Republican primary for the state and county committee positions, and appeared
on the May 2, 2006, Republican primary ballot. He lost both races.
Morrison filed his declaration of candidacy for the county committee on a form that stated,
“This petition shall be circulated only by a member of the same political party as stated above by
the candidate.” Morrison signed the declaration, which also required him to state, under penalty of
“election falsification,” that he was a member of the Republican Party. Likewise as to the state
committee, Morrison signed a declaration of candidacy that required him to state, under penalty of
election falsification, that he was a member of the Republican Party.
Approximately three weeks before the May 2, 2006, Republican primary, Morrison
purchased local newspaper advertisements supporting his state and county committee candidacies.
In his ads, Morrison stated that he was a Republican. On May 2, 2006, Morrison requested a
Republican ballot and voted in the Republican primary.
On May 1, 2006, the day before Morrison’s name appeared on the ballot in the Republican
primary, he filed nominating petitions with the BOE to run as an independent candidate in Ohio’s
Fifteenth CD.
On May 22, 2006, three residents and qualified electors from the Fifteenth CD filed a written
protest challenging Morrison’s congressional candidacy on the ground that he was not an
independent under Ohio law, and the BOE responded by holding a protest hearing. After receiving
briefs and hearing argument at the hearing, the BOE deadlocked 2-2 on whether to certify Morrison
as an independent candidate. Pursuant to Ohio Rev. Code § 3501.05, the matter was referred to the
Ohio Secretary of State, who voted in favor of the protestors and against certification.
No. 06-4216 Morrison, et al. v. Colley, et al. Page 3
Morrison brought suit in the district court under 42 U.S.C. § 1983, and thereafter the district
court held a hearing on the merits.
II.
Because Morrison alleged the violation of rights recognized by the First and Fourteenth
Amendments to the U.S. Constitution, the district court had federal-question jurisdiction under
28 U.S.C. § 1331. Regarding our jurisdiction, the district court consolidated the hearing on
Morrison’s preliminary injunction application with the hearing on the merits, and its order disposed
of Morrison’s complaint and request for permanent injunctive relief. Accordingly, the district
court’s order is final and immediately appealable. We review the district court’s legal conclusions
de novo and its factual findings for clear error. Planned Parenthood Cincinnati Region v. Taft, 444
F.3d 502, 507 (6th Cir. 2006) (citing Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir. 2003)).
III.
Recently, in Clingman v. Beaver, 544 U.S. 581 (2005), the Supreme Court emphasized that
not all election regulations that burden First Amendment rights are subject to a strict scrutiny
analysis. Rather, unless a state election regulation places a heavy or severe burden on a party, “a
State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory
restrictions.” Id. at 587 (quoting with approval Timmons v. Twin Cities Area New Party, 520 U.S.
351, 358 (1997)).
In holding that an Oklahoma statute allowing political parties to open their primary elections
to only their own party members and voters registered as independents did not violate the First
Amendment, the Supreme Court refused to apply a strict scrutiny analysis because the burden was
not “severe”:
[O]ur cases since Tashjian [v. Republican Party of Conn., 479 U.S. 208 (1986)] have
clarified [that] strict scrutiny is appropriate only if the burden is severe. [California
Democratic Party v.] Jones, [530 U.S. 567 (2000)], supra, at 582, 147 L. Ed. 2d 502,
120 S. Ct. 2402; Timmons, 520 U.S. at 358, 137 L. Ed. 2d 589, 117 S. Ct. 1364.
***
Many electoral regulations, including voter registration generally, require that voters
take some action to participate in the primary process. See, e.g., Rosario v.
Rockefeller, 410 U.S. 752, 760-62, 36 L. Ed. 1, 93 S. Ct. 1245 (1973) (upholding
requirement that voters change party registration 11 months in advance of the
primary election). Election laws invariably “affec[t] – at least to some degree – the
individual’s right to vote and his right to associate with others for political ends.”
Anderson v. Celebrezze, 460 U.S. 780, 788, 75 L. Ed. 2d 547, 103 S. Ct. 1564
(1983).
These minor barriers between voter and party do not compel strict scrutiny. See
Bullock v. Carter, 405 U.S. 134, 143, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972). To
deem ordinary and widespread burdens like these severe would subject virtually
every electoral regulation to strict scrutiny, hamper the ability of States to run
efficient and equitable elections, and compel federal courts to rewrite state electoral
codes. The Constitution does not require that result, for it is beyond question “that
States may, and inevitably must, enact reasonable regulations of parties, elections,
and ballots to reduce election- and campaign-related disorder.” Timmons, supra, 520
U.S. at 358, 137 L. Ed. 2d 589, 117 S. Ct. 1364; Storer v. Brown, 415 U.S. 724, 730,
No. 06-4216 Morrison, et al. v. Colley, et al. Page 4
39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974). Oklahoma’s semiclosed primary system
does not severely burden the associational rights of the state’s citizenry.
C
When a state electoral provision places no heavy burden on associational rights, “a
State’s important regulatory interests will usually be enough to justify reasonable,
nondiscriminatory restrictions.” Timmons, supra, at 358, 137 L. Ed. 2d 589, 117 S.
Ct. 1364 (internal quotation marks omitted); Anderson, supra, at 788, 75 L. Ed. 2d
547, 103 S. Ct. 1564.
Clingman, 544 U.S. at 592-93. Clingman follows, and is consistent with, Timmons, which likewise
refused to apply strict scrutiny to a challenge to a Minnesota election law prohibiting multi-party
or “fusion” candidates from appearing on the ballot. In rejecting a claim that the Minnesota
regulation violated the plaintiff’s First and Fourteenth Amendment rights, the Supreme Court stated,
[I]t is also clear that States may, and inevitably must, enact reasonable regulations
of parties, elections, and ballots to reduce election- and campaign-related disorder.
Burdick [v. Takushi, 504 U.S. 428 (1992)], supra, at 433 (“‘[A]s a practical matter,
there must be a substantial regulation of elections if they are to be fair and honest and
if some sort of order, rather than chaos, is to accompany the democratic process’”)
(quoting Storer v. Brown, 415 U.S. 724, 730 (1974)); Tashjian, supra, at 217 (The
Constitution grants States “broad power to prescribe the ‘Time, Places and Manner
of holding elections for Senators and Representatives’, Art. I, § 4, cl. 1, which power
is matched by state control over the election process for state offices”).
When deciding whether a state election law violates First and Fourteenth
Amendment associational rights, we weigh the “‘character and magnitude’” of the
burden the State’s rule imposes on those rights against the interests the State
contends justify that burden, and consider the extent to which the State’s concerns
make the burden necessary. Burdick, supra, at 434 (quoting Anderson v. Celebrezze,
460 U.S. 780, 789 (1983)). Regulations imposing severe burdens on plaintiffs’ rights
must be narrowly tailored and advance a compelling state interest. Lesser burdens,
however, trigger less exacting review, and a State’s “‘important regulatory interests’”
will usually be enough to justify “‘reasonable, nondiscriminatory restrictions.’”
Burdick, supra, at 434 (quoting Anderson, supra, at 788); Norman [v. Reed, 502 U.S.
279 (1992)], supra, at 288-289 (requiring “corresponding interest sufficiently
weighty to justify the limitation”). No bright line separates permissible election-
related regulation from unconstitutional infringements on First Amendment
freedoms. Storer, supra, at 730 (“[N]o litmus-paper test . . . separat[es] those
restrictions that are valid from those that are invidious . . . . The rule is not self-
executing and is no substitute for the hard judgments that must be made.”).
Timmons, 520 U.S. at 358-59.
The district court concluded correctly that Ohio Rev. Code § 3513.257 does not impose a
severe restriction on the First and Fourteenth Amendment rights of Morrison or other potential
independent candidates or voters. See Lawrence v. Blackwell, 430 F.3d 368 (6th Cir.) (Ohio statute
requiring independent congressional candidates to file statement of candidacy and nominating
petition on the day preceding the primary election did not impose a severe burden on independent
candidates’ or voters’ constitutional rights, so strict scrutiny was not warranted), cert. denied, __
U.S. __, 126 S. Ct. 2352 (2006). The election regulation at issue is merely a reasonable,
nondiscriminatory regulation to require would-be independent candidates to claim, no later than 4:00
No. 06-4216 Morrison, et al. v. Colley, et al. Page 5
p.m. of the day before the primary elections, that they are free of affiliation with any political party.
Therefore, Ohio need only show that this requirement advances an important state interest, not a
compelling state interest. Id. For the reasons stated by the district court, the non-affiliation
requirement passes muster under this deferential standard. In addition, the statute itself specifies the
following important state interests furthered by the election regulation:
The purpose of establishing a filing deadline for independent candidates prior to the
primary election immediately preceding the general election at which the candidacy
is to be voted on by the voters is to recognize that the state has a substantial and
compelling interest in protecting its electoral process by encouraging political
stability, ensuring that the winner of the election will represent a majority of the
community, providing the electorate with an understandable ballot, and enhancing
voter education, thus fostering informed and educated expressions of the popular will
in a general election. The filing deadline for independent candidates required in this
section prevents splintered parties and unrestrained factionalism, avoids political
fragmentation, and maintains the integrity of the ballot. The deadline, one day prior
to the primary election, is the least drastic or restrictive means of protecting these
state interests. The general assembly finds that the filing deadline for independent
candidates in primary elections required in this section is reasonably related to the
state’s purpose of ensuring fair and honest elections while leaving unimpaired the
political, voting, and associational rights secured by the first and fourteenth
amendments to the United States Constitution.
OHIO REV. CODE § 3513.257.
As the Supreme Court recognized in Timmons, a state may, consistent with the First
Amendment, ban “fusion” or multi-party candidates in order to reduce election disorder. Cf.
Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006).
In summary, we hold that the First and Fourteenth Amendments do not prohibit the Ohio
General Assembly from requiring independent candidates to claim on the day before the primary
that they are not affiliated with any political party.
IV.
Next, Morrison argues that the statute is void for vagueness because it allegedly fails to
specify what a putative independent candidate must do to get on the ballot, and because it does not
provide objective standards for enforcement. His argument is wholly unpersuasive under the facts
of this case.
Under Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), a statute must “give the
person of ordinary intelligence a reasonable opportunity to know what is prohibited” or, in this case,
what is required. In addition, the statute “must provide explicit standards for those who apply
them.” Id. Cf. Risbridger v. Connelly, 275 F.3d 565, 572 (6th Cir. 2002) (“[T]he void-for-
vagueness doctrine requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.”) (quoting Kolender v. Lawson, 461
U.S. 352, 357 (1983)).
The district court rejected Morrison’s argument that the statute “creates confusion as to . . .
whether a person desiring to become an independent candidate can merely claim not to be affiliated
with a political party or whether they must truly be unaffiliated with a political party.” The district
court reasoned, “a person of ordinary intelligence, when considering O.R.C. § 3513.257 [which
requires the candidate to claim independence] and O.R.C. § 3501.01(I) [which defines an
No. 06-4216 Morrison, et al. v. Colley, et al. Page 6
‘independent’ candidate as one ‘who claims not to be affiliated with any political party’] in the
whole legislative scheme, would understand that an aspiring independent candidate ‘must actually
be independent, rather than merely claim it.’” A candidate possessing ordinary intelligence and
common sense would readily understand that the claim of independence must be made in good faith
– otherwise there would be no reason for having the claim requirement, and none of the state
interests animating the claim requirement would be served. See United States v. Gjieli, 717 F.2d
968, 972 (6th Cir. 1983).
In addition to the common-sense meaning of “claim” in Ohio Rev. Code § 3513.257, other
sections of the Ohio election code put Morrison on notice that his actions were incompatible with
his contemporaneous claim that he was not affiliated with any political party. Provisions of the Ohio
election code other than § 3513.257 discuss political party affiliation and specify how it may be
determined when challenged. This is significant, because typically “identical words used in different
parts of the same act are intended to have the same meaning.” OfficeMax, Inc. v. United States, 4281
F.3d 583, 591 (6th Cir. 2005) (quoting Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995)).
First, Ohio Rev. Code § 3513.19(A)(3) provides that a person’s right to vote in a party’s
primary can be challenged on the basis that he “is not affiliated with or is not a member of” that
party. That section also states, in pertinent part, that “[s]uch party affiliation shall be determined
by examining the elector’s voting record for the current year and the immediately preceding two
calendar years as shown on the voter’s registration card, using the standards of affiliation specified
in the seventh paragraph of section 3513.05 of the Revised Code.” OHIO REV. CODE.
§ 3513.19(A)(3). In turn, § 3513.05 ¶ 7 considers a voter to be affiliated with a party if he was
registered with that party and voted in that party’s primaries during the current year and the two
preceding years. Morrison has never denied that he was registered as a Republican and voted in the
May 2, 2006, Republican primary, nor has he claimed that he was ever registered as something other
than a Republican or that he voted in non-Republican primaries during the preceding two calendar
years.
Moreover, the next subsection of the statute, Ohio Rev. Code § 3513.19(B), provides:
When the right of a person to vote is challenged upon the ground set forth in division
(A)(3) of this section, membership in or political affiliation with a political party
shall be determined by the person’s statement, made under penalty of election
falsification, that the person desires to be affiliated with and supports the principles
of the political party whose primary ballot the person desires to vote.
(Emphasis added.) By registering as a Republican and then affirmatively requesting and voting the
Republican Party primary ballot on May 2, 2006, Morrison necessarily evinced a desire to be
affiliated with the Republican Party at that time. Indeed, when Morrison presented himself as
eligible to vote in the Republican primary on May 2, 2006, Ohio law required him to be prepared
to prove, under penalty of punishment for false statement, that he was affiliated with the Republican
Party:
Before any challenged person shall be allowed to vote at a primary election, the
person shall make a statement, under penalty of election falsification, before one of
1
See also Lewis v. Philip Morris, Inc., 355 F.3d 515, 536 (6th Cir.) (Moore, J., for the court, joined in pertinent
part by Katz, U.S.D.J.) (referring to “[t]he usual presumption that ‘the same words used twice in the same act have the
same meaning’”) (quoting 2A NORMAN J. SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION, § 46.06,
at 193 (6th ed. 2000)), cert. denied, 543 U.S. 821 (2004); Lake Cumberland Trust, Inc. v. EPA, 954 F.2d 1218, 1222 (6th
Cir. 1994) (“We must presume that words used more than once in the same statute have the same meaning.”) (citation
omitted).
No. 06-4216 Morrison, et al. v. Colley, et al. Page 7
the precinct officials . . . stating that the person desires to be affiliated with and
supports the principles of the political party whose ballot the person desires to vote;
and giving all other facts necessary to determine whether the person is entitled to
vote in that primary election. The statement shall be returned to the office of the
board with the pollbooks and tally sheets.
OHIO REV. CODE § 3513.20.
If there were any doubt whether registering Republican, running as a Republican in the
primary, and voting in the Republican primary precluded a good faith claim to be unaffiliated with
any party, Morrison’s own Federal Election Commission (“FEC”) filing dispels it. Morrison
conceded that his own congressional campaign committee’s statement of organization, FEC Form 1,
listed him as affiliated with the Republican Party.
Morrison cannot complain if his own campaign committee’s express statement of his party
affiliation is considered and used to rule against him. Cf. In re El-Amin, 252 B.R. 652, 659 (Bankr.
E.D. Va. 2000) (“The party who made the admission cannot complain that they [sic] were prejudiced
by their own words.”); Levy v. United States, 1858 WL 4645, at *27 (Ct. Cl. May 4, 1858) (“The
petitioner cannot object to this conclusion, because it is in exact accordance with his own export
manifest, rendered on his own oath.”).2
Most importantly, under Ohio law, if Morrison was unaffiliated with any political party on
May 1, 2006, as he contends, he could not also claim in good faith to be a Republican at the same
time without risking consequences more serious than exclusion from the ballot. Specifically, Ohio
Rev. Code § 3599.11(A) provides the following criminal penalties for false swearing: “No person
shall knowingly swear or affirm falsely upon a lawful examination by or before any registering
officer; or make, print, or issue, any false . . . certificate of registration . . . . No person shall
. . . knowingly make any false statement on any form for registration or change of registration . . . .
Whoever violates this division is guilty of a felony of the fifth degree.”
A person of ordinary intelligence in the position of Morrison is put on notice that “claims”
of party affiliation or non-affiliation must be made in good faith; otherwise the person is subject to
criminal prosecution.
We conclude that the statutes at issue gave Morrison sufficient notice that his claims of party
affiliation or non-affiliation had to be made in good faith when he filed his independent
congressional candidacy petition on May 1, 2006. Further, under the undisputed facts of this case,
Morrison’s claim of unaffiliation with a political party was not made in good faith.
For these reasons, we hold that, under the facts of this case, Ohio Rev. Code § 3513.257 is
not void for vagueness. Cf. McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1333-34 (Fed. Cir.),
2
Cf. also United States v. Beal, 940 F.2d 1159, 1162 (8th Cir. 1991) (“[D]efendant cannot complain if his own
admissions . . . [are] received in evidence against him.”);
United States v. Alvarez, 810 F.2d 879, 889 (9th Cir. 1987) (“The defendant cannot complain when his own
testimony fixes the time of his arrest.”);
Courtney v. United States, 518 F.2d 514, 517 (4th Cir. 1975) (“[T]he defendant cannot be heard to complain
that he was convicted on the basis of his own testimony.”);
United States v. Bates, 141 F.2d 436, 439 (7th Cir.) (“Defendant cannot complain if the jury accepted at their
face value his own statements . . . .”), vac’d on other grounds, 323 U.S. 15 (1944);
The Eroe, 9 Ben. 191, 8 F. Cas. 774, 775 (E.D.N.Y. 1877) (No. 4,521) (“[T]he respondents can resort to this
bill rendered . . . there being no other proof, it must be taken of evidence of the amount of such difference. Of this the
consignees cannot complain, as it is their own bill.”), aff’d, 17 Blatchf. 16, 8 F. Cas. 775 (C.C.S.D.N.Y. 1879) (No.
4,522).
No. 06-4216 Morrison, et al. v. Colley, et al. Page 8
cert. denied, __ U.S. __, 126 S. Ct. 381 (2005). In addition, for the reasons stated by the district
court, we hold that Ohio Rev. Code § 3513.257 is not overbroad, nor was it applied in a manner that
illegally discriminated against Morrison.
V.
In conclusion, we affirm the district court’s denial of Morrison’s application for preliminary
and permanent injunctive relief. Morrison has not provided grounds to enjoin defendants from
excluding him from the November 2006 congressional ballot due to his non-compliance with Ohio
Rev. Code § 3513.257.
Affirmed.