Libertarian Party of Ohio v. Jon Husted

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0178p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER; ┐
AARON HARRIS; CHARLIE EARL, │
Plaintiffs-Appellants, │
│
> No. 16-3537
v. │
│
│
JON HUSTED, Secretary of State, │
Defendant-Appelle, │
│
│
STATE OF OHIO; GREGORY A. FELSOCI, │
Intervenors-Appellees. │
┘
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.
Decided and Filed: July 29, 2016
Before: MOORE, CLAY, and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Mark G. Kafantaris, Columbus, Ohio, Mark R. Brown, Columbus, Ohio, for
Appellant. Halli Brownfield Watson, Jordan S. Berman, Sarah E. Pierce, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees Husted and State of Ohio.
Steven W. Tigges, John W. Zeiger, ZEIGER, TIGGES & LITTLE LLP, Columbus, Ohio, for
Appellee Felsoci.
1
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_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. The Libertarian Party of Ohio (the
“Libertarian Party,” “the Party,” or “LPO”), together with members of its party leadership and its
2014 gubernatorial candidate, appeal from the district court’s grant of summary judgment in
favor of Ohio Secretary of State Jon Husted, the State of Ohio, and Gregory Felsoci. The
Libertarian Party raises three issues on this appeal: (1) whether state actors selectively enforced
Ohio Revised Code § 3501.38(E)(1) against Libertarian Party candidates in violation of the First
and Fourteenth Amendments; (2) whether SB 193 violates the Equal Protection Clause of the
Fourteenth Amendment in requiring newly created minor parties to nominate candidates for the
general election by petition, rather than by primary election; and (3) whether the State of Ohio
was entitled to Eleventh Amendment immunity on the Libertarian Party’s state-law claim. For
the reasons discussed below, we AFFIRM.
I. BACKGROUND
This case arises out of a long history of challenges to Ohio election laws, and specifically
challenges brought by the Libertarian Party to access the ballot in Ohio. To best understand the
current dispute, a brief foray into this background is needed.
A. A Recent History of Minor Party Ballot Access in Ohio
As our Circuit explained in a related opinion, “the LPO has struggled to become and
remain a ballot-qualified party in Ohio through frequent litigation.” Libertarian Party of Ohio v.
Husted, 751 F.3d 403, 405 (6th Cir. 2014). Throughout this struggle, “[t]he LPO has
successfully challenged Ohio laws burdening its access to the ballot,” id., including a significant
victory in 2006 in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006).
In Blackwell, we considered Ohio’s then-existing “two methods by which a party c[ould]
qualify for the primary election” and reach the general-election ballot. Id. at 582. First, “[a]ny
party that, in the preceding state election, receive[d] at least five percent of the vote for its
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 3
candidate for governor or president automatically qualife[d] for the next statewide election.” Id.at 582–83. Second, parties receiving less than the five-percent threshold needed to “file a
petition no later than 120 days prior to the date of the primary election [and 364 days prior to the
general election] that contain[ed] the number of signatures equal to one percent of the total votes
cast in the previous election.” Id. at 583. A party that failed to meet these requirements was
barred from “participat[ing] in the primary and [was] thus prevented from appearing on the
general election ballot.” Id.The Libertarian Party argued that this law violated its First and Fourteenth Amendment
rights, and we agreed. Considering the signature requirement and the extremely early petition-
filing deadline in combination, we held that the law “impose[d] a severe burden on the First
Amendment rights of the LPO,” id. at 591, and that the state failed to justify this burden with a
sufficiently weighty state interest. Id. at 591–95.
Following our decision in Blackwell, “the Ohio General Assembly [took] no action to
establish ballot access standards for minor political parties.” Libertarian Party of Ohio v.
Brunner, 567 F. Supp. 2d 1006, 1009 (S.D. Ohio 2008). In the absence of legislation, in 2007,
Ohio’s Secretary of State issued Directive 2007-09 (the “Directive”). Id. at 1010. The
Secretary’s Directive maintained Ohio’s “requirement that minor parties nominate their
candidates by primary election,” but changed the party qualification process by requiring minor
parties to “obtain petition signatures equal to one-half of one percent of the votes cast for
governor in the” last general election and to “file nominating petitions 100 days before the
primary,” still “nearly a full year before the . . . general election.” Id.The Libertarian Party challenged the Directive in federal court, and the district court
granted a preliminary injunction preventing the Directive from going into effect. First, the
district court concluded that the federal constitution mandates that “only the legislative branch”
of a state, not a state’s Secretary of State, “has the authority . . . to prescribe the manner of
electing candidates for federal office.” Id. at 1011. Moreover, the district court concluded that,
even assuming that the Secretary had the authority to issue the Directive, it was likely
unconstitutional nonetheless because the Directive still imposed impermissible burdens on minor
political parties. Id. at 1013. “[I]n the absence of constitutional, ballot access standards” in
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 4
Ohio, the district court ordered that the Libertarian Party’s candidates “be placed on the 2008
general election ballot for the state of Ohio.” Id. at 1015–16. The Secretary of State granted the
Libertarian Party ballot access through additional directives in 2011. See 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. 2012).
In 2011, Ohio enacted HB 194, which required that minor parties file petitions with the
requisite number of signatures 90 days before the primary, “a mere 30 days” earlier than the law
found unconstitutional in Blackwell. Id. at *1. At the same time, the law “did nothing” to
change the quantity of signatures required. Id. Finding that the law imposed an unconstitutional
burden on the ability of minor parties to access the ballot, a federal district court granted a
preliminary injunction and prevented Ohio from implementing the statute’s changes. Id. at *6.
HB 194 was later repealed following a referendum. Libertarian Party of Ohio, 497 F. App’x at
583. The Ohio Secretary of State subsequently issued an additional directive in 2013 that
“continued the practice of recognizing minor political parties and granting them access to the
ballot for both the primary and general elections.” Libertarian Party of Ohio v. Husted, No.
2:13-CV-953, 2014 WL 11515569, at *2 (S.D. Ohio Jan. 7, 2014).
The Libertarian Party initiated the current lawsuit against Secretary Husted on September
25, 2013, in the U.S. District Court for the Southern District of Ohio. R. 1 (Compl. at 1) (Page
ID #1). The Libertarian Party’s complaint alleged claims under the First Amendment of the U.S.
Constitution against Ohio’s law that imposed residency requirements on petition circulators. Id.at 6–7 (Page ID #6–7). The State of Ohio intervened as a defendant. R. 5 (Mot. to Intervene)
(Page ID #23). The district court preliminarily enjoined enforcement of Ohio’s circulator law on
November 13, 2013. R. 18 (11/13/13 D. Ct. Op. at 1) (Page ID #143).
B. SB 193 and the Libertarian Party’s Amended Complaint
SB 193 was signed into law on November 6, 2013, and made several changes to the
methods by which minor parties can qualify for the ballot in Ohio. Libertarian Party of Ohio,
2014 WL 11515569, at *2. SB 193 explicitly voided the Secretary’s prior directives that
qualified the Libertarian Party and other minor parties for the ballot, resulting in the requirement
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 5
that these parties would need to qualify for the ballot as new parties. Id.; see SB 193, 130th Gen.
Assemb., at § 3 (Ohio 2013). The law also amended Ohio law to create two methods by which a
political party can qualify as a “[m]inor political party” in Ohio. See Ohio Rev. Code
§ 3501.01(F)(2).
First, a political party may qualify by obtaining at least “three percent of the total vote
cast” for governor or president “at the most recent regular state election.” § 3501.01(F)(2)(a). A
party that obtains minor-party status via this vote-counting method remains qualified as a minor
party “for a period of four years.” Id. Second, for new political parties that were not on the
ballot in the preceding election or for parties that failed to meet the three-percent threshold in the
prior election, SB 193 provides that a political party may qualify as a minor party through
petition. § 3501.01(F)(2)(b). A party forming via petition must: (1) collect signatures from
“qualified electors equal in number to at least one percent of the total vote for governor or
president” at the most recent election; (2) file a petition that is signed by at least “five hundred
qualified electors from each of at least . . . one-half of the congressional districts in” Ohio; and
(3) file the petition more than 125 days before the upcoming general election.
§ 3517.01(A)(1)(b). The Secretary of State must determine the sufficiency of the petition at least
95 days before the general election. § 3517.012(A)(2)(d).
SB 193 removed the requirement that all parties nominate their candidates for the general
election through a primary. Instead, a petition-formed party must nominate a candidate for the
general election by petition. § 3517.012. This candidate-nominating petition must be filed
“[n]ot later than one hundred ten days before the” general election. § 3517.012(B)(1). For
statewide office, the candidate-nominating petition must be “signed by at least fifty qualified
electors who have not voted as a member of a different political party at any primary election
within the current year or the immediately preceding two calendar years.” § 3517.012(B)(2)(a).
For local office, five qualifying signatures are required. § 3517.012(B)(2)(b).
SB 193 also established processes by which individuals can protest the filing of a party-
formation petition or a candidate-nominating petition. § 3517.012(B)(3)(b). Specifically,
written protests against candidate-nominating petitions “may be filed by any qualified elector
eligible to vote for the candidate whose nominating petition the elector objects to not later than
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 6
the seventy-fourth day before the general election,” and the protest may challenge the sufficiency
of the petition on several grounds. § 3513.263. Candidates who file “insufficient” petitions may
“not appear on the ballot in the general election.” § 3517.012(C)(2).
On November 8, 2013, the Libertarian Party amended its complaint in the Southern
District of Ohio to add counts challenging SB 193. R. 16 (Am. Compl. at 16) (Page ID #101).
Count Three alleged a due process and First Amendment challenge to SB 193 against Secretary
Husted; Count Four alleged an Equal Protection and First Amendment challenge to S.B. 193
against Secretary Husted; and Count Five alleged a challenge under the Ohio Constitution
against both Secretary Husted and the intervenor-defendant State of Ohio. Id. at 15–18 (Page ID
#101–04). The State of Ohio answered and asserted Eleventh Amendment immunity to Count
Five. R. 21 (State of Ohio Answer at 11) (Page ID #222).
On January 7, 2014, the district court preliminarily enjoined SB 193 from taking effect
for the 2014 election, finding that because the Libertarian Party expected to be ballot-qualified
for the 2014 election under the Secretary’s 2013 Directive, the retroactive application of SB 193
to that election—voiding the Secretary’s Directive and requiring that the Libertarian Party start
from scratch to qualify for the ballot—violated due process. Libertarian Party of Ohio v.
Husted, No. 2:13-CV-953, 2014 WL 11515569, at *10–11 (S.D. Ohio Jan. 7, 2014). The district
court did not address claims that related to the Ohio Constitution or the federal Equal Protection
Clause.
C. The 2014 Election and Felsoci’s Protest of LPO Candidates
As a result of the district court’s injunction, the Libertarian Party remained a recognized
political party in Ohio, and it continued its efforts to nominate candidates to appear on the ballot
for the 2014 primary election. The political drama that ensued forms a large basis of the current
appeal. In November 2013, the Libertarian Party hired Oscar Hatchett and Sara Hart to collect
signatures for the Party’s statewide candidates such as Charlie Earl, the 2014 LPO gubernatorial
candidate. Libertarian Party of Ohio, 751 F.3d at 407. Hatchett and Hart, together with other
circulators, collected a sufficient number of signatures; after the signatures were verified by the
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 7
local boards of elections, Secretary Husted certified Earl as a Libertarian candidate for the 2014
primary. Id. at 407–09.
On February 21, 2014, Earl’s certification was protested by Gregory Felsoci, an apparent
member of the Libertarian Party. Id. at 409. In a prior opinion, we described Felsoci as a likely
“tool of the Republican Party.” Id. After being shown documents from “a Republican friend,
John Musca,” Felsoci came to believe that “LPO was gathering ‘votes’ without disclosing that
those who gathered them were being paid to do so.” Id. Musca asked Felsoci to get involved
with pursuing the matter, and Felsoci agreed. “Soon afterward, the Zeiger, Tigges, and Little law
firm contacted Felsoci and offered its assistance.” Id. Felsoci did not pay legal fees to Zeiger,
nor was Felsoci aware of who was paying the attorney fees. Id. Felsoci protested Earl’s
certification on the basis of Ohio Revised Code § 3501.38(E)(1), arguing that the statute
“requires independent contractors, not just employees, to complete the employer information
box,” which certain circulators failed to do. Id.
After voluminous discovery in the district court, the Libertarian Party learned more about
the facts leading up to Felsoci’s protest. This information primarily centered on Terry Casey, an
appointed member of the Ohio Board of Personnel Review, self-employed political consultant,
and member of the Republican Party. R. 241-1 (8/28/14 Casey Dep. at 8–12) (Page ID #6215-
19). Beginning on February 14, 2014, one week before the filing of Felsoci’s protest, Casey sent
several emails to the personal email addresses of Matt Carle, Dave Luketic, and Jeff Polesovsky,
individuals associated with John Kasich’s gubernatorial campaign and with the Ohio Republican
Party. See R. 335-3 (July 6 Docs. at 2–4) (Page ID #8438–40); R. 335-2 (9/16/15 Casey Dep. at
8–10) (Page ID #8345–47). Casey discussed a conversation that he had had with his lawyer,
John Zeiger, concerning the signature-gathering efforts of Libertarian candidates and the legal
bases upon which the signatures might be challenged under Ohio law. R. 335-3 (July 6 Docs. at
3–4) (Page ID #8439–40). Casey continued to send similar emails throughout the week, noting a
“need to keep digging and digging on Oscar [Hatchett]. He could be a key ‘star’ in this future
production/show.” Id. at 6 (Page ID #8442); see also R. 240-1 (Casey Email Ex. at 7) (Page ID
#6164).
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 8
Chris Schrimpf, the Ohio Republican Party’s Communications Director, submitted a
public-records request to the Secretary of State’s Office on February 13, 2014, “for all Form 14’s
filed for all Libertarian candidates for statewide office.” R. 335-3 (July 6 Docs. at 9) (Page ID
#8445). On February 18, 2014, Luketic forwarded the forms that Schrimpf received to Casey.
Id. at 8–9 (Page ID #8444–45). Casey emailed his attorneys on February 18—with Polesovsky,
Luketic, and Carle blind copied—and noted that Hatchett and Hart’s petitions did not “ha[ve]
anything filled out to reflect that they admitted being paid for this petition work.” R. 240-1
(Casey Email Ex. at 8) (Page ID #6165). On February 19, Luketic sent the group a “validity
report” analyzing the validity of Earl’s petition signatures. Id. at 13 (Page ID #6170).
On February 19, 2014, Casey emailed Polesovsky and Luketic and indicated his ongoing
search for “a Libertarian potential client.” R. 335-3 (July 6 Docs. at 13) (Page ID #8449).
According to Casey, he “asked a number of different people around the state if they knew of any
Libertarian folks . . . who might have an interest in filing.” R. 335-2 (9/16/15 Casey Dep. at 29–
30) (Page ID #8366–67). At some point, Felsoci was identified as a potential Libertarian Party
member who would have standing to file a protest against a Libertarian candidate. See id. at 34–
35 (Page ID #8371–72). Luketic forwarded Felsoci’s voting history to Casey on February 20,
2014. R. 335-3 (July 6 Docs. at 23) (Page ID #8459). On February 21, 2014, Polesovsky gave
Casey the contact information for an attorney, and Casey sent Felsoci’s name and phone number
to the attorney to assist Felsoci in signing the documents needed for filing his protest. R. 335-3
(July 6 Docs. at 35) (Page ID #8471); R. 335-10 (Oct. 6 Docs. at 22) (Page ID #8589); see also
R. 335-2 (9/16/15 Casey Dep. at 36) (Page ID #8373).
The cast of characters relevant to this appeal also includes Matthew Damschroder, the
Director of Elections for the Ohio Secretary of State. R. 227-1 (8/26/14 Damschroder Dep. at 7)
(Page ID #5226). In December 2013, Luketic sent Damschroder a text message asking
Damschroder if there were “any petitions gathering from [] Charlie Earl the LIB candidate?” R.
227-1 (8/26/14 Damschroder Dep. at 305 (Ex. 16)) (Page ID #5524). Damschroder responded
that he had not heard anything but that he would “keep [his] ear to [the] ground.” Id. Casey
testified that, at some point around the date of February 17, he “mentioned” to Damschroder that
he “w[as] looking at doing some kind of” protest filing. R. 241-1 (8/28/14 Casey Dep. at 54–55)
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 9
(Page ID #6261–62). On February 18, 2014, Damschroder emailed members of his staff and
indicated that he “got a call tonight that a protest is likely to come by Friday against Earl,
probably from an unaffiliated voter . . . and [it] will be based on” payment disclosure
information. R. 227-1 (8/26/14 Damschroder Dep. at 257 (Ex. 3)) (Page ID #5476).
Damschroder does not remember who made the phone call that he referenced in his email,
although he testified that “[i]t could have been” Casey. R. 247 (9/29/14 H’rg Tr. Vol. 1 at 123)
(Page ID #6609).
The deadline for filing a protest was February 21, 2014, at 4:00 PM. Damschroder
emailed his staff at 3:32 PM on February 21 and stated that “[i]f any protests are filed, please let
me know as soon as they come in.” R. 227-1 (8/26/14 Damschroder Dep. at 259 (Ex. 5)) (Page
ID #5478). Damschroder also emailed his staff earlier in the afternoon and instructed them that
“if we get a protest filed with us today, even if it is after 4pm, please accept it, date/timestamp it,
and give it to Sally [Warren] to disseminate.” Id. at 260 (Ex. 6) (Page ID #5479).
Felsoci filed his protest in advance of the 4 PM deadline. The Secretary’s Office then
“referred the protest to Bradley Smith, a hearing officer, to conduct a hearing and issue a report
and recommendation as to the disposition of the protest.” Libertarian Party of Ohio, 751 F.3d at
409–10. A hearing was held on March 4, 2014, and Smith issued a report on March 7, 2014,
concluding that the circulators failed to make necessary disclosures in the employer-information
box. Id. at 410. Smith recommended that these petition papers be ruled invalid. Id. Secretary
Husted adopted Smith’s recommendation; as a result of Secretary Husted invalidating these
signatures, Earl did not have enough signatures to be eligible to appear as a candidate in the
primary election. Id.
Seeking to avoid the serious consequences of this disqualification, the Libertarian Party
filed a second amended complaint in the district court on March 7, 2014, R. 56-1 (Second Am.
Compl. at 1) (Page ID #989), in addition to a motion for a preliminary injunction and temporary
restraining order. R. 57 (Pl. Mot. for Prelim. Inj. and TRO at 1) (Page ID #1041). The
Libertarian Party’s second amended complaint brought several challenges against the employer-
disclosure requirements of § 3501.38(E)(1). Felsoci moved to intervene as a defendant, and the
district court granted his motion on March 20, 2014. R. 85 (03/20/14 D. Ct. Order at 3) (Page ID
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 10
#2189). After holding an evidentiary hearing, the district court denied the Libertarian Party’s
motion for a preliminary injunction on March 19, 2014. R. 80 (03/19/14 D. Ct. Op. at 1) (Page
ID #2146). The Libertarian Party appealed the denial of the preliminary injunction to this court,
and we affirmed on May 1, 2014, concluding that the Libertarian Party had not “establish[ed] a
substantial likelihood of success on the merits of its due process challenge” or its First
Amendment overbreadth challenge. 751 F.3d at 421, 424.
D. Third Amended Complaint and Proceedings Below
The Libertarian Party filed a third amended complaint on September 11, 2014. R. 188
(Third Am. Compl.) (Page ID #3796). Among other claims, the Libertarian Party asserted that
Felsoci, Casey, and the Secretary of State’s office selectively enforced the employer-disclosure
requirements of § 3501.38(E)(1) against the Libertarian Party in violation of the First and
Fourteenth Amendments. Id. at 50 (Page ID #3845). On September 15, 2014, the Libertarian
Party filed motions for a preliminary injunction and a temporary restraining order, seeking to
place its candidates’ names on the ballot for the 2014 general election. R. 192 (Pl. Fourth Mot.
for Prelim. Inj.) (Page ID #3877); R. 194 (Mot. for TRO) (Page ID #3911). The district court
denied the Libertarian Party’s request for a temporary restraining order on the basis of laches, R.
225 (9/24/14 D. Ct. Op. at 2) (Page ID #5142), and denied the Libertarian Party’s motion for a
preliminary injunction because the Party could not establish that Secretary Husted’s decision was
influenced by political animus or that Felsoci engaged in state action in filing his protest, R. 260
(10/17/14 D. Ct. Op. at 19, 22) (Page ID #7092, 7095).
Following the district court’s denial of a preliminary injunction, the parties filed motions
and cross-motions for summary judgment. See, e.g., R. 261-1 (Mem. in Supp. of Mot. for
Summ. J.) (Page ID #7112); R. 267 (Def. Resp. and Cross-Motion for Summ. J. at 1) (Page ID
#7191). These motions addressed the Libertarian Party’s claims that SB 193 violates the Ohio
Constitution and the Equal Protection Clause—claims that the district court did not address in its
January 7, 2014 preliminary-injunction ruling—in addition to the claim that § 3501.38(E)(1) was
selectively enforced in violation of the First and Fourteenth Amendments. See, e.g., id. at 11, 17
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 11
(Page ID #7209, 7215).1 The district court denied the Libertarian Party’s claim that SB 193
violated the Equal Protection Clause, both on its face, R. 285 (03/16/15 D. Ct. Op. at 32) (Page
ID #7516), and as applied, R. 336 (10/14/15 D. Ct. Op. at 14) (Page ID #8700). The district
court also dismissed Count Five (regarding the Ohio Constitution) as barred by the Eleventh
Amendment. Id. at 18 (Page ID #8704).
The district court permitted discovery to continue with regards to the Libertarian Party’s
selective-enforcement claim, id. at 21 (Page ID #8707), and the parties filed additional summary-
judgment motions that addressed the selective-enforcement claim alone, see R. 338 (Pl. Renewed
Mot. for Summ. J. at 1) (Page ID #8717); R. 344 (Husted Count Seven Mot. for Summ. J. at 1)
(Page ID #8747); R. 346 (Felsoci Count Seven Cross Mot. for Summ. J. at 1) (Page ID #8767).
On May 20, 2016, the district court granted summary judgment in favor of the defendants on the
selective-enforcement claim. Libertarian Party of Ohio v. Husted , --- F. Supp. 3d ----, 2016 WL
2977286, at *1 (S.D. Ohio May 20, 2016). The district court entered final judgment on the same
day, R. 370 (Judgment at 1) (Page ID #8948), and LPO timely appealed, R. 371 (Notice of
Appeal at 1) (Page ID #8957).
II. DISCUSSION
A. Federal Claims
On appeal, the Libertarian Party raises two challenges under the U.S. Constitution. First,
the Libertarian Party contends that Felsoci, Casey, the Ohio Republican Party, and Damschroder
selectively enforced Ohio Revised Code § 3501.38(E)(1) against the Libertarian Party in
violation of the First and Fourteenth Amendments. Second, the Libertarian Party argues that SB
193 violates the Equal Protection Clause because SB 193 denies the Party the opportunity to
participate in the primary election.
1
Other third parties not currently before us intervened as plaintiffs and asserted Equal Protection and First
Amendment challenges to SB 193; these intervening plaintiffs also filed motions for summary judgment, R. 165
(Intervening Pl. Mot. for Summ. J. at 1) (Page ID #3261), to which the state responded and moved for cross-
summary judgment, see, e.g., R. 185 (State Cross-Mot. for Summ. J. on Intervenor-Plaintiff Challenge at 1). LPO
joined in the intervening plaintiffs’ motion for summary judgment in filing its motion for summary judgment, and
Secretary Husted responded to LPO’s motion for summary judgment by referring to his prior cross-motion. For
simplicity, we avoid an exhaustive account of this complicated procedural history.
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 12
1. Mootness
Prior to addressing the merits, we must first determine our jurisdiction to hear this case.
“[A] federal court has a continuing duty to ensure that it adjudicates only genuine disputes
between adverse parties, where the relief requested would have a real impact on the legal
interests of those parties.” Blackwell, 462 F.3d at 584. “If ‘the issues presented are no longer
live or the parties lack a legally cognizable interest in the outcome,’ then the case is moot and the
court has no jurisdiction.” Id. (quoting Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979)).
Here, LPO’s claims arose in advance of the 2014 election, an election that has already occurred.
There is an exception to the mootness doctrine, however, for “disputes capable of repetition, yet
evading review.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007).
“The exception applies where (1) the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.” Id. (internal quotation marks
omitted).
Secretary Husted and the State of Ohio do not assert that the Equal Protection challenge
to SB 193 is moot, and for good reason. Courts have repeatedly emphasized that “[l]egal
disputes involving election laws almost always take more time to resolve than the election cycle
permits,” and thus election-law challenges typically satisfy the first prong of the exception
“easily.” Blackwell, 462 F.3d at 584. Moreover, parties that assert challenges to ballot-access
laws frequently satisfy the second prong as well because it is “likely that the [party] will once
again seek to place candidates” on the ballot and these parties will once again “face the
requirements” imposed by a still-existent election law when they do. Id. at 584–85; see also
Lawrence v. Blackwell, 430 F.3d 368, 371–72 (6th Cir. 2005). LPO’s constitutional challenge to
SB 193’s requirements is not moot.
Secretary Husted and the State of Ohio do contend, however, that the conclusion of the
2014 election has mooted the Libertarian Party’s’ selective-enforcement claim. Husted Appellee
Br. at 13. We disagree. As stated above, the Libertarian Party intends to run candidates in the
future. Reply Br. at 19. The Libertarian Party asserts that members of the Ohio Republican
Party and Ohio state government have conspired and will continue to conspire to selectively
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 13
enforce election laws against it in order to remove its candidates from the ballot. See id. at 19–
20. “The Supreme Court has stated that the purpose of the second prong [of the capable-of-
repetition exception] is to determine ‘whether the controversy was capable of repetition and not
. . . whether the claimant had demonstrated that a recurrence of the dispute was more probable
than not.” Lawrence, 430 F.3d at 371 (quoting Honig v. Doe, 484 U.S. 305, 319 n.6 (1988)).
The selective-enforcement controversy alleged by the Libertarian Party is capable of recurring,
particularly given the “‘somewhat relaxed’ repetition standard” that our Circuit recognizes in
election cases. Blackwell, 462 F.3d at 585 (quoting Lawrence, 430 F.3d at 372). We thus turn to
the merits.
2. Selective-Enforcement Claim
The Libertarian Party first argues that the district court erred in granting summary
judgment in favor of the defendants on the Libertarian Party’s selective-enforcement claim. We
review the district court’s grant of summary judgment de novo. Green Party of Tenn. v. Hargett,
767 F.3d 533, 542 (6th Cir. 2014). Summary judgment is appropriate only “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Credibility determinations, the weighing of the evidence
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Libertarian Party argues that Felsoci, Casey, Damschroder, and others conspired to
selectively enforce Ohio Revised Code § 3501.38(E)(1) in violation of the Libertarian Party’s
First and Fourteenth Amendment rights. The Libertarian Party brought this action under
42 U.S.C. § 1983. “Section 1983 makes liable only those who, while acting under color of state
law, deprive another of a right secured by the Constitution or federal law.” Romanski v. Detroit
Entm’t, L.L.C., 428 F.3d 629, 636 (6th Cir. 2005). A selective-enforcement claim requires the
plaintiff to demonstrate the following elements:
First, [the state actor] must single out a person belonging to an identifiable group,
such as . . . a group exercising constitutional rights, for prosecution even though
he has decided not to prosecute persons not belonging to that group in similar
situations. Second, he must initiate the prosecution with a discriminatory
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 14
purpose. Finally, the prosecution must have a discriminatory effect on the group
which the defendant belongs to.
Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997) (internal quotation marks
omitted). The district court entered summary judgment in favor of the defendants because the
Libertarian Party could not establish state action. Libertarian Party of Ohio, 2016 WL 2977286,
at *7. We agree with the district court.
The Libertarian Party does not contend that Secretary Husted himself selectively
enforced or applied Ohio Revised Code § 3501.38(E)(1). See Appellant Br. at 31. The
Libertarian Party also acknowledges that Felsoci is a private individual and not a state actor. Id.
at 32. The Libertarian Party argues, however, that it can establish state action because the Ohio
Republican Party, members of the Kasich Campaign, and Casey are state actors, and that these
individuals also conspired with Damschroder, a state official in Secretary Husted’s office, to
selectively enforce the law against only Libertarian candidates. Id. at 31.
a. The Libertarian Party Has Not Demonstrated that the Ohio
Republican Party or the Kasich Campaign Engaged in State
Action Here
The Libertarian Party contends that the Ohio Republican Party, together with Casey and
members of the Kasich Campaign, selectively enforced § 3501.38(E)(1) by using Felsoci as an
“innocent agent” to protest only Libertarian candidates. Appellant Br. at 32. The Libertarian
Party asserts that the Ohio Republican Party is a state actor because “[c]ourts across the country
have ruled that the two major parties’ state affiliates . . . are governmental actors when they
regulate the electoral process.” Id. The cases upon which the Libertarian Party relies, however,
are meaningfully different from the case at hand.
In Smith v. Allwright, 321 U.S. 649, 663–64 (1944), the Supreme Court held that the
Democratic Party of Texas’s whites-only primary violated the Constitution. The Court held that
Texas state law “entrusted” the party “with the determination of the qualifications of participants
in the primary,” id. at 664, and “this statutory system for the selection of party nominees for
inclusion on the general election ballot makes the party which is required to follow these
legislative directions an agency of the state in so far as it determines the participants in a primary
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 15
election,” id. at 663. Similarly, in Terry v. Adams, 345 U.S. 461 (1953), a plurality of the Court
held that the “Jaybird Association,” a private “Democratic ‘Club[]’” that held a primary, id. at
466, was a state actor for purposes of its primary because “[t]he Jaybird primary has become an
integral part, indeed the only effective part, of the elective process that determines who shall rule
and govern in the county,” id. at 469–70.
In considering these precedents, our Circuit has explained that the Court in Terry “did not
assert that the Jaybirds had become a state actor for every purpose,” but rather the Court held that
the private club was a state actor “insofar as they had been assigned an ‘integral part’ in the
election process, a governmental function,” by the state. Banchy v. Repub. Party of Hamilton
Cty., 898 F.2d 1192, 1196 (6th Cir. 1990) (quoting Terry, 345 U.S. at 470). “The primary
election cases do not hold that a political party is part of the state, or that any action by a political
party other than conducting an election is state action.” Id. (internal quotation marks omitted).
“The doctrine does not reach to all forms of private political activity, but encompasses only state-
regulated elections or elections conducted by organizations which in practice produce ‘the
uncontested choice of public officials.’” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978)
(quoting Terry, 345 U.S. at 484) (Clark, J., concurring)).
Here, the Ohio Republican Party has not been “assigned an ‘integral part’ in the election
process” that is usually performed by the state. Banchy, 898 F.2d at 1196; see also Chapman v.
Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003) (“Under the public function test, a private party is
deemed a state actor if he or she exercised powers traditionally reserved exclusively to the state,”
such as “holding elections.”). By filing a protest against a nomination petition under this
statute—or having an agent file a protest—the Ohio Republican Party is not engaging in state
action. To the contrary, any private citizen with standing is authorized by Ohio law to file a
protest against a candidate’s nominating petition. Ohio Rev. Code §§ 3517.012(B)(3)(b) &
3513.263; see also Nader v. McAuliffe, 593 F. Supp. 2d 95, 102 (D.D.C. 2009) (“[T]he fact that
private citizens may file challenges under the ballot access statutes is antithetical to the assertion
that doing so is a function traditionally exclusively reserved to the States.”).
The Libertarian Party also asserts that members of the Kasich Campaign engaged in state
action, but the Libertarian Party’s opening brief does not argue why this is so apart from stating
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 16
conclusively that the Kasich Campaign acted as an agent of the Ohio Republican Party. See
Appellant Br. at 32. To the extent that individuals involved with the Kasich Campaign were
involved in text and email exchanges with Casey, the Libertarian Party has not demonstrated that
these individuals acted on behalf of the Kasich Campaign team in their discussions with Casey,
let alone that they acted on behalf of the governor’s office. See Federer v. Gephardt, 363 F.3d
754, 759 (8th Cir. 2004) (dismissing complaint for failing to allege state action because the
complaint alleged only “that the defendants acted on behalf of [a Congressman] as a political
candidate and private person,” not as a government official). The Libertarian Party has not
presented evidence that establishes that members of the Kasich Campaign were state actors here.
b. The Libertarian Party Has Not Demonstrated That Casey Engaged
in State Action
The Libertarian Party contends that Casey “was a state official” as a member of “Ohio’s
Personnel Board of Review.” Appellant Br. at 36. However, “not every action undertaken by a
person who happens to be a state actor is attributable to the state.” Waters v. City of Morristown,
242 F.3d 353, 359 (6th Cir. 2001). “For the purposes of a state-action analysis, there can be no
pretense of acting under color of state law if the challenged conduct is not related in some
meaningful way either to the actor’s governmental status or to the performance of his duties.”
Id. The Libertarian Party acknowledges that Casey’s petition-protest involvement was not
within the scope of Casey’s duties as a member of Ohio’s Board of Personnel Review; the
Libertarian Party contends, however, that Casey’s actions nonetheless constitute state action
taken under color of state law because Casey’s job “carried a large measure of cachet with [the
Ohio Republican Party], the Kasich Campaign, Damschroder, and others,” and thus Casey “was
able to do what ordinary citizens cannot” in coordinating Felsoci’s challenge of Earl. Appellant
Br. at 37.
The record does not support the Libertarian Party’s argument. The communications that
the Libertarian Party identifies were sent by Casey from his personal email address and they do
not contain any reference, either implicitly or explicitly, to Casey’s state-government role.
Casey undoubtedly spent a great deal of time in coordinating Felsoci’s protest, but he did so
through speaking to attorneys, exploring election laws, and reviewing public records obtained via
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 17
public-record requests. Damschroder testified that he provided Casey with the same information
that he would have provided to any other individual that asked him. See R. 247 (9/29/14 H’rg
Tr. Vol. 1 at 187) (Page ID #6673). The record accordingly demonstrates that Casey was acting
out of his “private interest[]” in protesting Earl, and that Casey “would have been in the same
position [to coordinate Felsoci’s protest of Earl] even if he had not been a” member of Ohio’s
Board of Personnel Review. Waters, 242 F.3d at 359. Casey did not act under color of state law
here for purposes of § 1983.
c. The Libertarian Party Has Not Demonstrated that Damschroder
Was Involved in a Civil Conspiracy
Finally, the Libertarian Party contends that, even though Casey and the Ohio Republican
Party may not be state actors here themselves, these actors conspired with election officials
within the Secretary of State’s office such as Damschroder, and thus they are state actors for
purposes of § 1983. “Private persons may be held liable under § 1983 if they willfully
participate in joint action with state agents.” Memphis, Tenn. Area Local v. City of Memphis,
361 F.3d 898, 905 (6th Cir. 2004). In order to establish a civil conspiracy, the plaintiff must
show:
[A]n agreement between two or more persons to injure another by unlawful
action. Express agreement among all the conspirators is not necessary to find the
existence of a civil conspiracy. Each conspirator need not have known all of the
details of the illegal plan or all of the participants involved. All that must be
shown is that there was a single plan, that the alleged coconspirator shared in the
general conspiratorial objective, and that an overt act was committed in
furtherance of the conspiracy that caused injury to the complainant.
Id. (quoting Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985)). The Libertarian Party has
not established here that Damschroder was involved in a conspiracy with Casey and the Ohio
Republican Party.
The Libertarian Party cites communications between Damschroder, Casey, and other
members of the Ohio Republican Party in which Casey and others asked Damschroder for
information on candidate petitions and protest filings. See, e.g., R. 227-1 (8/26/14 Damschroder
Dep. at 305–09 (Ex. 16)) (Page ID #5524–28). As discussed above, however, Damschroder
testified that in his role at the Secretary of State’s office, it was “not uncommon for [him] to get
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 18
questions from all kinds of people affiliated with parties, not affiliated with parties, candidates,
whomever,” and that Damschroder would “give them the information if [he had] it.” R. 247
(9/29/14 H’rg Tr. Vol. 1 at 187) (Page ID #6673). Damschroder had known Casey for a long
time, Damschroder knew that Casey was “a political gadfly,” and Damschroder would frequently
answer Casey’s questions. Id. at 186 (Page ID #6672). The Libertarian Party has not identified
anything in the record that indicates that Damschroder gave information to Casey that he would
not have given to anyone else, or that Damschroder told Casey anything that was improper.
Accordingly, these communications do not establish that Damschroder “shared in the general
conspiratorial objective” to remove Earl, see Memphis, Tenn. Area Local, 361 F.3d at 905, by
responding to questions from Casey and other members of the Ohio Republican Party.
The Libertarian Party emphasizes the fact that Damschroder knew ahead of time that a
protest would be filed against Earl, and that Damschroder instructed his staff to accept protests
that were filed after 4 PM. Appellant Br. at 19. The Libertarian Party states that this establishes
that Damschroder knew to expect a protest from Felsoci on the day of the protest deadline, and
that Damschroder wanted his office to “accept the protest even if filed late.” Id. at 40.
Damschroder testified, however, that he instructed his staff to accept all late protests for filing
purposes “so [that] a determination could be made whether it’s timely or not” and that “unless
[he has] been instructed to not accept something that comes in, then we would accept it.”
R. 227-1 (8/26/14 Damschroder Dep. at 80) (Page ID #5299); see also id. at 78 (Page ID #5297).
The Libertarian Party has not provided any evidence that establishes that Damschroder instructed
his staff to accept late protest filings for the purpose of the conspiracy, or that Damschroder
intended to approve of Felsoci’s protest even if it were filed late (which it was not).
The Libertarian Party further claims that Damschroder was involved in “hav[ing] the
hearing officer (Smith) change his mind” about the outcome of the case. Appellant Br. at 40.
This argument relates to documents that show that Smith initially intended to rule in favor of the
Libertarian Party in interpreting Ohio’s employer-information law. See R. 252 (10/01/14 H’rg
Tr. Vol. 2 at 233) (Page ID #6730). Smith’s final recommendation came out the other way,
however, after Smith reevaluated his interpretation of an Ohio state-court decision. Id. at 236
(Page ID #6733). The Libertarian Party cites a phone call between Smith and Jack Christopher,
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 19
general counsel for Secretary Husted, who called Smith from Damschroder’s office before Smith
altered his decision. Id. at 244 (Page ID #6741). Smith testified that he did “not recall any
particular conversation” with Christopher, but that he and Christopher “did not have a
substantive discussion” of the cases. Id. at 244–45 (Page ID #6741–42). Christopher did send
Smith an email discussing Christopher’s legal interpretation of the Ohio decision at issue, but
Smith testified that “by that point in time . . . I had already decided that I was going to have to be
rewriting the report.” Id. at 254–55 (Page ID #6751–52). Smith testified that no one at the
Secretary’s Office tried to “tell [him] how to decide th[e] case” and that no one at the Secretary’s
Office attempted to influence his decision. Id. at 253 (Page ID #6750). To the contrary, Smith
remarked on the “scrupulosity of the folks in the Secretary of State’s Office.” Id. The record
does not demonstrate beyond speculation that Damschroder or his co-workers exerted any
improper influence on Smith, or that Smith changed his recommendation as a result of the
acknowledged conversations that he had with Christopher while Smith was reaching his final
determination.
The Libertarian Party cites two additional pieces of evidence to establish that
Damschroder was involved in a conspiracy to remove Earl from the ballot. First, the Libertarian
Party states that Damschroder “cheer[ed] with Christopher for Zeiger at the [] administrative
hearing” and that this demonstrates that Damschroder “shared the general conspiratorial
objective.” Appellant Br. at 42. This argument refers to text messages exchanged between
Damschroder and Christopher during the administrative hearing before Smith. Referring to
Zeiger’s advocacy during the hearing, Christopher told Damschroder “Zeiger just won’t bend,
will he?!” and Damschroder responded “I like unbending.” R. 227-1 (8/26/14 Damschroder
Dep. at 319 Ex. 16) (Page ID #5538). Christopher also stated “I hope nobody asks Zeiger who is
paying them to do this!! ;).” Id. at 321 (Page ID #5540). Damschroder responded, “It’s a pretty
penny I’m sure.” Id. Damschroder testified that he was impressed by Zeiger’s advocacy during
the hearing and that he was remarking on the likely cost of Zeiger’s fees, given that he knew that
Zeiger was an experienced attorney. R. 247 (9/29/14 H’rg Tr. Vol. 1 at 161–62) (Page ID
#6647–48). This “cheer[ing]” does not establish Damschroder’s involvement or actions in a
conspiracy to remove Earl from the ballot.
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 20
Lastly, the Libertarian Party states that Damschroder’s investigation of petition circulator
Hatchett demonstrates that Damschroder was involved in the conspiracy. Appellant Br. at 40.
According to the Libertarian Party, “Casey asked Damschroder to investigate Hatchett,” and
Brandi Seskes in the Secretary of State’s office performed this investigation. Id. at 20. This is
not supported by the record. The portion of Casey’s testimony which the Libertarian Party cites
states only that Casey may have asked Damschroder “the question of whether there was anything
statutorily that prohibited a registered sex offender from being a circulator of petitions.” R. 241-
1 (8/28/14 Casey Dep. at 53) (Page ID #6260). Seskes did Google Hatchett’s name in order to
find out his criminal background after Felsoci submitted his protest, R. 221-1 (Seskes Dep. at 14,
22) (Page ID #4820, 4828), but Seskes testified that no one in the Secretary of State’s office
asked her to do so. Id. at 14–15 (Page ID #4820–21). Seskes testified that she did so out of
“[c]uriosity. Trying to get a handle on who the players were and what was going on.” Id. at 15
(Page ID #4821).
In sum, the Libertarian Party has not presented evidence here to establish that
Damschroder or anyone in the Secretary of State’s Office shared in a conspiratorial objective
with Casey and the Ohio Republican Party, or that Damschroder committed any act in
furtherance of this conspiracy. Because Casey and the Ohio Republican Party are not state actors
here, the Libertarian Party has failed to establish state action. The district court did not err in
granting summary judgment to defendants on the selective-enforcement claim.
3. Equal Protection Clause Claim
The Libertarian Party also asserts that SB 193 violates the Equal Protection Clause. We
evaluate this claim under the framework established by the Supreme Court in Anderson v.
Celebrezze, 460 U.S. 780, 788–89 (1983), and Burdick v. Takushi, 504 U.S. 428, 434 (1992).
See Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir. 2012). “Under the Anderson-Burdick
test, the court must first ‘consider the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.’”
Hargett, 791 F.3d at 693 (quoting Anderson, 460 U.S. at 789). Second, the court “must ‘identify
and evaluate the precise interests put forward by the State as justifications for the burden
imposed by its rule.’” Id. (quoting Anderson, 460 U.S. at 789). Lastly, the court “must
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 21
‘determine the legitimacy and strength of each of those interests’ and ‘consider the extent to
which those interests make it necessary to burden the plaintiff’s rights.’” Id. (quoting Anderson,
460 U.S. at 789).
The severity of the burden imposed on an individual by the state’s election law
determines the level of scrutiny that we apply and thus the degree to which the state must justify
its regulations. See Burdick, 504 U.S. at 434. If a state’s law imposes “severe” burdens on the
plaintiff’s constitutional rights, “the regulation must be ‘narrowly drawn to advance a state
interest of compelling importance.’” Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
By contrast, if the state law imposes “‘reasonable’ and ‘nondiscriminatory’” burdens, “the statute
will be subject to rational basis [review].” Green Party of Tenn. v. Hargett, 791 F.3d 684, 693
(6th Cir. 2015) (quoting Burdick, 504 U.S. at 434). “If the burden lies somewhere in between,
courts will weigh the burden on the plaintiffs against the state’s asserted interest and chosen
means of pursuing it.” Id. (internal quotation marks omitted).
a. Burden on LPO
Our analysis thus begins by assessing the “character and magnitude of the asserted
injury” that the Libertarian Party alleges. Anderson, 460 U.S. at 789. In evaluating the burden
imposed by an election law, we must consider “the combined effect of the applicable election
regulations,” not simply each law in isolation. Blackwell, 462 F.3d at 586. “In determining the
magnitude of the burden imposed by a state’s election laws, the Supreme Court has looked to the
associational rights at issue, including whether alternative means are available to exercise those
rights; the effect of the regulations on the voters, the parties and the candidates; evidence of the
real impact the restriction has on the process; and the interests of the state relative to the scope of
the election.” Id. at 587. We keep these factors in mind as we turn to the Libertarian Party’s
claims.
Ballot-access laws such as SB 193 “place burdens on two different, although overlapping,
kinds of rights—the rights of individuals to associate for the advancement of political beliefs and
the right of qualified voters, regardless of their political persuasion, to cast their votes
effectively.” Id. at 585 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)). The Libertarian
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 22
Party contends that these rights are burdened because SB 193 “den[ies] minor parties primaries,”
“the only mechanism available for officially registering members” under Ohio law. Appellant
Br. at 41. The Libertarian Party does not contest the number of signatures required by SB 193 to
form a minor political party or nominate a candidate, nor does the Libertarian Party argue that
SB 193’s petition deadlines violate the First Amendment. Accordingly, our decision is limited to
the aspect of SB 193 that LPO addresses—its requirement that minor political parties such as the
Libertarian Party proceed outside of Ohio’s primary framework—and we do not address the
constitutionality of the provisions of SB 193 that are not presented in this appeal.
To best understand the Libertarian Party’s asserted burden, we briefly recount the ballot-
access framework established by SB 193. As discussed above, SB 193 creates two methods by
which a political party may obtain state recognition as a “[m]inor political party” and thereby
access the ballot: the party may meet a three-percent-vote requirement in the immediately
preceding election, or the party may form via petition. Ohio Rev. Code § 3501.01(F)(2). A
minor party that forms by petition—either a party that did not meet the three-percent-vote
threshold in the last election or a newly created party that did not participate in the last
election—must nominate their candidates to appear in the general election by filing a nominating
petition, rather than by participating in the Ohio primary. § 3517.012. This nominating petition
must be filed at least 110 days before the general election. § 3517.012(B)(1). If the candidate is
running for statewide office, the candidate must obtain the signatures of “at least fifty qualified
electors who have not voted as a member of a different political party at any primary election
within the current year or the immediately preceding two calendar years.” § 3517.012(B)(2)(a).
Major political parties, by contrast, nominate candidates for the general election through
a primary election, as do minor parties that achieved the requisite three-percent-vote threshold in
the prior election. See § 3513.05. In order to appear on the primary ballot, a major-party
candidate for statewide office must submit a petition containing signatures from “at least one
thousand qualified electors who are members of the same political party as the candidate.” Id.
Minor-party candidates appearing in the primary election need only half of that number. Id.
Because the Libertarian Party has to form by petition, and because it accordingly has to
nominate its candidates via petition, SB 193 excludes the Libertarian Party from the primary, at
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 23
least until it meets the three-percent-vote requirement in an election. See Appellant Br. at 41.
The Libertarian Party acknowledges that the Constitution does not guarantee a party a right to
nominate candidates by primary, as opposed to other means. Reply Br. at 23. The Supreme
Court established this principle in American Party of Texas v. White, 415 U.S. 767, 781 (1974),
where the Court refused to invalidate a statute that required “small parties [to] proceed by
convention when major parties [could] choose their candidates by primary election.” The Court
explained that “[t]he procedures are different, but the Equal Protection Clause does not
necessarily forbid the one in preference to the other.” Id. at 781–82. The Libertarian Party
contends, however, that although it does not have a constitutional right to a primary, excluding it
from the primary process violates the Equal Protection Clause because the primary system in
Ohio grants a benefit to major parties that is denied to minor parties. According to the
Libertarian Party, “Ohio officially registers voters’ political affiliations through primaries” and,
in the absence of a primary, individuals cannot affiliate with the Libertarian Party and the Party
is deprived of the political advantages of party membership that primary-participating parties
enjoy. Appellant Br. at 41–42.
The Libertarian Party misstates Ohio law. Ohio operates a version of a “closed” primary
system, see California Democratic Party v. Jones, 530 U.S. 567, 570 (2000), in that Ohio places
some limits on an individual’s ability to vote in a party’s primary or sign a party’s nominating
petition if an individual is not a “member” of that political party. See, e.g., Ohio Rev. Code
§§ 3513.05 & 3513.19(A)(3). Ohioans do not affiliate with a party upon registering to vote.
Rather, for the purpose of designating who can vote in a primary or to sign a nominating petition,
Ohio law defines party membership by an individual’s primary-voting record. Specifically, for
major parties nominating their candidates by primary, Ohio law provides that “[f]or purposes of
signing or circulating a petition of candidacy for party nomination or election, an elector is
considered to be a member of a political party if the elector voted in that party’s primary election
within the preceding two calendar years, or if the elector did not vote in any other party’s
primary election within the preceding two calendar years.” § 3513.05. Similarly, an individual’s
eligibility to vote in a primary election may be challenged on the basis of that individual not
being a “member of the political party whose ballot the person desires to vote,” where
“membership” is defined by the same two-calendar year metric. § 3513.19(A)(3); see also
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 24
§ 3513.20.2 If “the right of a person to vote” in a party primary “is challenged upon the ground”
that the person is not a party member, “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” the “party whose primary ballot the person desires to
vote.” § 3513.19(B).
As the State of Ohio and Secretary Husted argue, “[t]hese statutes do not govern party
registration or affiliation in general,” but rather refer only to “party affiliation” for a specific
purpose: establishing who may vote in a partisan primary. Husted Appellee Br. at 36. Ohio
insists that SB 193 places no restrictions on the Libertarian Party’s ability, as a private entity, to
define its membership.
The Libertarian Party emphasizes the enormous significance to political parties of having
a membership, including a party member’s ability to “develop” the party, recruit additional
members, contribute money, and more. Appellant Br. at 42. The fundamental importance of
these activities is beyond dispute. But the Libertarian Party has not explained how Ohio’s
definition of “member of a political party” for the limited purpose discussed above, see Ohio
Rev. Code § 3513.05, restricts the Party’s ability to have members that perform these core
political activities.
We are aware that, as the Libertarian Party asserts, there are some “legal ramifications” to
requesting a party’s ballot in a primary election, Appellant Br. at 42, because Ohio operates a
primary system that is “closed” to non-party members to some degree. As discussed above, for
example, an individual who affiliates with a party in a primary election may not vote for a
different party’s candidate for a period of two years. If challenged on this basis, however, the
voter may provide a statement declaring an intention to affiliate with and support the principles
of a different party. Ohio Rev. Code § 3513.19(B). According to the Libertarian Party, Ohio
law does not provide it with a base of people that are “wedded” to it in a similar way. Reply Br.
at 22–23.
2
Notably, in the first primary in which the new political party participates—a party that has met the three-
percent-vote threshold in a prior election—“any qualified elector who desires to vote the new party primary ballot
. . . shall be allowed to vote the new party primary ballot regardless of prior political party affiliation.” Ohio Rev.
Code § 3517.016.
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 25
The Libertarian Party has not articulated, however, how this framework burdens its
ability to recruit members, access the general-election ballot, or engage in other modes of
political affiliation and expression, nor has the Libertarian Party explained how this places minor
parties at a disadvantage relative to major parties. It is true that, in order to place a candidate on
the ballot, the Libertarian Party must obtain the signatures of at least “fifty qualified electors who
have not voted as a member of a different political party at any primary election within the
current year or the immediately preceding two calendar years.” § 3517.012(B)(2)(a). But the
Libertarian Party does not contend that the number of signatures required is unduly burdensome.
Moreover, as Secretary Husted and the State of Ohio assert, only approximately 1.3 million
Ohioans cast primary ballots in 2014, out of over 7.7 million registered voters. Husted Appellee
Br. at 38–39. This leaves at least “83 percent of all registered voters” in Ohio unaffiliated and
“able to sign petitions for” other candidates. Id. The Libertarian Party has not demonstrated that
this aspect of SB 193 imposes a severe burden.
Finally, the Libertarian Party cites Green Party of Michigan v. Land, 541 F. Supp. 2d 912(E.D. Mich. 2008), in support of its argument that the denial of a primary process to minor
parties imposes a severe burden. The district court in Land considered a Michigan statute that
provided certain voter information exclusively to the two major parties participating in the
primary election. Land, 541 F. Supp. 2d at 914. The Michigan primary was restricted to parties
that “received more than 20% of the total presidential vote cast in Michigan in the last
presidential election,” and thus “only the Democratic and Republican parties were eligible to
participate.” Id. Primary voters indicated their party preference at the primary election, and
because this information was not recorded at the time of registration, “the party preference
designations from the primary election are the best source of information about the party
affiliation of a large group of Michigan voters.” Id. Michigan law directed that voter
information be kept confidential and exempt from disclosure “to any person for any reason.” Id.Nonetheless, the statute required the Michigan Secretary of State “to provide these records” to
political parties participating in the primary: the Democratic and Republican parties. Id. The
district court recognized that minor parties could benefit from the party-preference information
of voters that voted in the primary, such as by using it to “direct [their] campaign efforts . . . to
voters who are more likely to be responsive to [their] issue positions and candidates.” Id. at 919.
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 26
By prohibiting minor parties from accessing this information given exclusively to major parties,
the Michigan statute severely burdened minor parties’ associational rights. Id. at 919–20.
Land is meaningfully different from the situation here. The minor parties in Land wanted
access to the party-preference information of individuals who participated in the primary; they
did not seek to participate in the primary or have the affiliation of their party members registered
at the primary. The harm in Land was that minor parties had “no other way to obtain the party
preference information” that was given to major parties exclusively. Id. at 923. The Libertarian
Party has not identified any provision of Ohio law that provides information on a differential
basis to major and minor parties. The Libertarian Party’s argument based on Land is not
persuasive.
Because the Libertarian Party has not demonstrated that Ohio law deprives it of
membership or affiliation in a general sense, and because the Libertarian Party does not
challenge any other aspect of SB 193’s requirements on appeal, we conclude that the Libertarian
Party is not severely burdened by SB 193’s requirement that it select candidates for the general-
election ballot via petition, rather than by primary. Nonetheless, as discussed above, affiliating
with a party at a primary does have some “legal ramifications,” and so SB 193’s burdens,
although not severe, are also not non-existent. Moreover, we also acknowledge that, because
Ohio law allows voters to become a “member” of a party under Ohio law by casting a party
ballot during a primary, there may be some expressionist value to voting in a partisan primary
and thus “affiliating” with a party, even if this does not mean membership or affiliation in a
general sense. We will thus turn to consider the state’s asserted interests, and balance the
strength of this interest against the burdens that we have identified.
b. Ohio’s Asserted Interest
Secretary Husted and the State of Ohio argue that SB 193’s requirements relate to its
interest in “ensur[ing] that new or minor parties ‘have a significant modicum of support’ before
they appear on the ballot.” Husted Appellee Br. at 44 (quoting Jenness v. Fortson, 403 U.S. 431,
441–42 (1971)). The Supreme Court has long recognized this state interest as “important.”
Jenness, 403 U.S. at 442. According to Ohio, the state “had to make a choice” in pursuing this
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 27
state interest following our decision in Blackwell. R. 185 (Intervenor Def. Cross Mot. for Summ.
J. at 6) (Page ID #3613); see also Husted Appellee Br. at 44.
In Blackwell, we found that Ohio’s requirement that a minor party file its registration
petition 120 days in advance of the primary election—an election in which minor-party
candidates had to participate in order to appear on the general-election ballot—imposed a severe
burden on minor parties because the parties needed to gather “more than thirty thousand”
signatures “more than one year in advance of the [general] election,” “a time when the major
party candidates are not known and when the populace is not politically energized.” Blackwell,
462 F.3d at 586. In the face of this severe burden, we indicated that Ohio had failed to advance a
significant state interest in its primary and early-filing requirement, indicating that “[f]orty-eight
states have filing deadlines for minor parties later in the election cycle, and forty-three states
allow minor parties to nominate candidates in a manner other than the primary election.”
Blackwell, 462 F.3d at 594.
Ohio claims that SB 193 is an attempt to comply with Blackwell while also ensuring that
minor parties garner a sufficient amount of support prior to appearing on the general-election
ballot. See R. 185 (Intervenor Def. Cross Mot. for Summ. J. at 6) (Page ID #2613); Husted
Appellee Br. at 44. According to Ohio, in the face of Blackwell, it chose to eliminate its primary
requirement for newly established parties and instead require that “only established political
parties . . . hold primaries, while allowing new political parties to determine their nominees
through” petition. R. 185 (Intervenor Def. Cross Mot. for Summ. J. at 6) (Page ID #2613). By
eliminating the primary requirement, Ohio now requires that minor-party candidates file
paperwork 110 days before the general election, rather than over a year in advance. Ohio Rev.
Code § 3517.012(B)(1).
As discussed above, the Libertarian Party does not argue on appeal that a filing
requirement 110 days prior to the general election is unduly burdensome, and we accordingly do
not decide this issue. We do, however, credit Ohio’s interest in having minor parties garner “a
significant modicum of support,” Jenness, 403 U.S. at 442, and Ohio’s rationale for having
minor parties “nominate candidates in a manner other than the primary election,” Blackwell,
462 F.3d at 594, in order to align better its ballot-access laws with our decision in Blackwell.
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 28
c. Weighing LPO’s Burden Against Ohio’s Interest
Having determined the burden that SB 193 places on the Libertarian Party in deterring it
from nominating candidates by primary, and having addressed the state’s interest for the law, we
now consider the extent to which the state’s asserted interests “make it necessary to burden the
plaintiff’s rights” and whether the weight of the state’s interest is sufficient to justify the
magnitude of the burden imposed. Anderson, 460 U.S. at 789. As discussed above, the
Libertarian Party has not demonstrated that the aspect of SB 193 that it challenges poses a severe
burden on its First or Fourteenth Amendment rights. At the same time, the state has articulated a
legitimate interest in its law, and this interest is sufficient in light of the Libertarian Party’s
claimed burdens. In so deciding, we echo our statement from an earlier decision in this same
dispute: “[w]e 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[, b]ut we
also note that we decide one case at a time.” Libertarian Party of Ohio, 751 F.3d at 424. On the
basis of this record and challenge before us, we agree with the district court that summary
judgment is appropriate in favor of the State of Ohio and Secretary Husted on the Equal
Protection challenge to SB 193.
B. LPO’s State Constitutional Challenge
Lastly, the Libertarian Party contends that the district court erred in dismissing its state-
constitutional claim. Article V, § 7 of the Ohio Constitution provides that “[a]ll nominations for
elective state, district, county and municipal offices shall be made at direct primary elections or
by petition as provided by law . . . .” Ohio Const. art. V, § 7. The Libertarian Party alleged that
SB 193 was in conflict with this provision, but the district court dismissed this claim as barred by
the Eleventh Amendment of the U.S. Constitution. R. 336 (10/14/15 D. Ct. Op. at 19) (Page ID
#8705).
Whether or not the district court was correct, an Ohio state court has already decided the
Libertarian Party’s state-constitutional issue. “Pursuant to the doctrine of res judicata, ‘a final
judgment on the merits bars further claims by parties or their privies based on the same cause of
action.’” Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009) (quoting Montana v.
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 29
United States, 440 U.S. 147, 153 (1979)). “[T]he law is well-settled that federal courts must give
prior state court judgments the same preclusive effect they would have in the courts of that
state.” Lesher v. Lavrich, 784 F.2d 193, 195 (6th Cir. 1986). Secretary Husted and the State of
Ohio argue that the Libertarian Party’s claim under Article V, § 7 of the Ohio Constitution is
barred because the Libertarian Party “litigated that claim to final judgment in Ohio state court”
after the district court dismissed the claim. Husted Appellee Br. at 50. Specifically, the Franklin
County Court of Common Pleas granted summary judgment to Secretary Husted and Ohio
Attorney General Mike DeWine, holding on June 7, 2016, that S.B. 193 does not violate Article
V, § 7 of the Ohio Constitution. Libertarian Party of Ohio v. Husted, No. 16CV554 (Franklin
Cty. Ct. Common Pleas June 7, 2016); Appellant Addendum 3.
The Libertarian Party advances two arguments for why we should not decide that its
state-constitutional claim is barred by res judicata. First, the Libertarian Party contends that the
state court’s judgment is not final. Reply Br. at 25. According to the Libertarian Party, it filed a
motion for a new trial and for relief from judgment under Rules 59 and 60 of the Ohio Rules of
Civil Procedure and, after the state court did not rule on that motion, it filed an appeal in state
court on July 6, 2016. Reply Br. at 24–25. The Libertarian Party asserts that because the Rule
59 motion has been stayed in state court and because the state-court decision may be reversed,
res judicata does not apply to the Franklin County Common Pleas court’s decision. This is not
persuasive. A motion for a new trial does not alter the preclusive nature of an otherwise final
judgment. Restatement (Second) of Judgments § 13 cmt. f (“A judgment otherwise final for
purposes of the law of res judicata is not deprived of such finality by the fact that time still
permits commencement of proceedings in the trial court to set aside the judgment and grant a
new trial or the like; nor does the fact that a party has made such a motion render the judgment
nonfinal.”). And under Ohio law, “[t]he pendency of an appeal . . . does not prohibit application
of claim preclusion. The prior state court judgment remains ‘final’ for preclusion purposes,
unless or until overturned by the appellate court.” United States ex rel. Sheldon v. Kettering
Health Network, 816 F.3d 399, 415 (6th Cir. 2016) (internal quotation marks omitted) (citing
Cully v. Lutheran Med. Ctr., 523 N.E.2d 531, 532 (Ohio Ct. App. 1987)). The state-court
decision is final here for purposes of res judicata.
No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 30
Second, the Libertarian Party argues that we should not decide this issue of the preclusive
effect of the state-court judgment because Secretary Husted and the State of Ohio raised this
issue for the first time on this appeal. Reply Br. at 26. Instead, “res judicata should be left to the
District Court on remand (if necessary).” Reply Br. at 26. As the Libertarian Party recognizes,
our cases acknowledge that there are circumstances where res judicata may be appropriately
entertained for the first time on appeal. Lesher, 784 F.2d at 195. Here, the Libertarian Party
filed its claim in state court on January 19, 2016, see Husted, No. 16CV554, at 1, after the
district court dismissed the Party’s state-law Article V, § 7 claim on October 14, 2015 on the
basis of Eleventh Amendment immunity. R. 336 (10/14/15 D. Ct. Op. at 19) (Page ID #8705).
Accordingly, the state-court judgment did not become preclusive until after the district court
dismissed the claim, and thus there was no opportunity for a res judicata defense to be presented
to the district court. Under these circumstances, it is appropriate to consider res judicata for the
first time on appeal. See Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 418–19 (6th Cir.
2012) (“[T]he defense of res judicata was not available before the district court because the
[state-court class-action] settlement had neither been certified nor made final by the Arkansas
Supreme Court. Now that the state decision has become final, it is appropriate for this Court to
respect its conclusions.” (internal quotations and citations omitted)). We do not believe that
“[t]he better course here is to leave res judicata to the District Court on remand.” Reply Br. at
27. Our consideration of this preclusion argument “requires us to consider a purely legal issue
that is presented ‘with sufficient clarity and completeness’ in the parties’ briefs.” Gooch,
672 F.3d at 419 (internal quotation marks omitted). Because the Ohio state court reached a final
judgment on the Libertarian Party’s state-law Article V, § 7 claim, the Libertarian Party is
precluded from pursuing this claim further in this court.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.