Susan Beiersdorfer v. Frank LaRose

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0392n.06
Case No. 20-3557
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SUSAN BEIERSDORFER, et al ) FILED
) Aug 20, 2021
Plaintiffs - Appellants, ) DEBORAH S. HUNT, Clerk
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
FRANK LAROSE, et al, )
NORTHERN DISTRICT OF OHIO
)
Defendants - Appellees. )
)
)
BEFORE: GIBBONS, WHITE, and READLER, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. The plaintiffs are environmental activists,
affiliated with various groups, who have sought to use Ohio’s citizen initiative process to pass
county charters and municipal ordinances touching on environmental issues. The “Initiative
Authority Statutes” allow county boards of elections to “prescreen” proposed initiatives to ensure
compliance with state law. For proposed county-charter initiatives, the board of elections must
ensure that the petition includes all the county positions and powers mandated by state law. For
proposed municipal-ordinance initiatives, the board must ensure that the proposal takes legislative
rather than administrative action. The plaintiffs complain that the defendants—members of
various county boards of elections and the Ohio secretary of state—have unconstitutionally applied
the Initiative Authority Statutes to prevent the plaintiffs from placing their proposed initiatives on
the ballot. The plaintiffs sought declaratory and injunctive relief, alleging violations of the First,
Fourteenth, and Ninth Amendments, as well as state law. The district court dismissed the claims
Case No. 20-3557, Beiersdorfer v. LaRose
against one of the defendant boards of elections because the plaintiffs lacked standing. The district
court also concluded that the state law claim was barred by sovereign immunity, and that the
complaint failed to allege any constitutional violations. We dismiss an additional county board of
elections for lack of standing and affirm the district court in all other respects.
I.
Ohio citizens can pass laws through the state’s initiative process, which includes the power
to enact a county charter, Ohio Const. art. X, § 3, and a municipal ordinance, id. art. II, § 1f.1 But
before a local initiative can reach the ballot, Ohio’s “Initiative Authority Statutes” direct the county
board of elections to “determine whether” the proposed county-charter or municipal-ordinance
initiative “falls within the scope of authority to enact via initiative.” Ohio Rev. Code Ann.
§ 3501.11(K)(2); see also id. §§ 3501.38(M), 3501.39(A). In other words, the county board of
elections prescreens each proposed initiative to “determine whether the petition and the signatures
on the petition meet the requirements of law.” Id. § 307.95(A). For a county charter, the board of
elections must verify that the proposed initiative “provide[s] the form of government of the
county” and details the powers and duties of county officials. Ohio Const. art. X, § 3; see also
State ex rel. Walker v. Husted, 43 N.E.3d 419, 425 (Ohio 2015) (“[S]et[ting] forth the form of
government . . . is the sine qua non of a valid charter initiative.”). For a municipal ordinance—as
opposed to a municipal charter2—the board of elections must ensure that the initiative takes
legislative, not administrative, action. Ohio Const., art. II, § 1f; State ex rel. Ebersole v. Delaware
Cnty. Bd. of Elections, 20 N.E.3d 678, 684 (Ohio 2014) (“The test for determining whether an
1
They also possess the separate power to amend municipal charters. See Ohio Const. art. XVIII, §§ 7, 9.
2
Ohioans also have the power to amend municipal charters, Ohio Const. art. XVIII, §§ 7, 9, but the Initiative Authority
Statutes at issue here do not apply to that power. See State ex rel. Maxcy v. Saferin, 122 N.E.3d 1165, 1168–69, 1171
(Ohio 2018) (“[B]oards of elections have no authority to review the substance of a proposed municipal-charter
amendment . . . [T]he duty of the board is to simply add the proposed charter amendment to the ballot.”).
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action is legislative or administrative is ‘whether the action taken is one enacting a law, ordinance,
or regulation, or executing a law, ordinance, or regulation already in existence.’” (quoting
Donnelly v. City of Fairview Park, 233 N.E.2d 500, 500 (Ohio 1968))). “[I]f any portion of the
petition is not within the initiative power,” then “[t]he petition shall be invalid.” Ohio Rev. Code
Ann. §§ 3501.11(K)(2), 3501.38(M)(1)(a), 3501.39(A)(3). If the board of elections determines
that the petition is invalid, the petition is not submitted to the electorate for consideration.
Proponents of an invalidated initiative are entitled to judicial review of the board’s
decision. The proponent of a county charter can request that the board bring an action in a common
pleas court to establish the validity of the petition. Ohio Rev. Code Ann. § 307.94. Similarly, the
proponent of a municipal ordinance can seek an injunction in a common pleas court.3 See, e.g.,
Storegard v. Bd. of Elections of Cuyahoga Cnty., 255 N.E.2d 880, 881 (Ohio Com. Pl. 1969); Ohio
Rev. Code Ann. § 2506.01. Alternatively, the proponent of a county-charter initiative can file a
written protest to the board’s decision, which the board is obligated to deliver to the Ohio secretary
of state. Ohio Rev. Code Ann. § 307.95. If the secretary agrees4 with the board’s decision
invalidating the proposed initiative, the proponent can seek a writ of mandamus from the Ohio
Supreme Court to compel placement of the charter on the ballot. See, e.g., State ex rel. Coover v.
Husted, 70 N.E.3d 587, 588–89 (Ohio 2016) (per curiam). The proponent of a municipal-
ordinance initiative can likewise seek a writ of mandamus from the Ohio Supreme Court instead
of proceeding in a common pleas court. See, e.g., State ex rel. Citizens for Responsible Green
Gov’t v. City of Green, 118 N.E.3d 236, 240–41 (Ohio 2018). The Ohio Supreme Court considers
3
It appears that this procedure is more commonly used when the board of elections certifies an ordinance for placement
on the ballot, and an opponent seeks an injunction to prevent the placement. See, e.g., State ex rel. N. Main St. Coal.
v. Webb, 835 N.E.2d 1222, 1226 (Ohio 2005); Myers v. Schiering, 271 N.E.2d 864, 864 (Ohio 1971).
4
But if the secretary determines that the proposed initiative is valid, then the proposed charter is placed on the ballot.
Ohio Rev. Code Ann. § 307.95(D).
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the validity of the proposed initiative “essentially” de novo, Schmitt v. LaRose, 933 F.3d 628, 639–
40 (6th Cir. 2019), cert. denied, 140 S. Ct. 2803 (2020), and resolves these ballot-access disputes
on an expedited timeline, see Ohio S.Ct.Prac.R. 12.08(A).
Plaintiffs Susan Beiersdorfer and Dario Hunter are members of Frackfree Mahoning
Valley, which tried to amend the Youngstown Municipal Charter in 2017. The Mahoning County
Board of Elections concluded that the proposal—the Youngstown Drinking Water Protection Bill
of Rights—exceeded Youngstown’s legislative power by creating new causes of action and
refused to place it on the ballot. The plaintiffs filed a writ of mandamus with the Ohio Supreme
Court protesting that decision. The Ohio Supreme Court denied the writ, finding that the proposed
municipal charter amendments exceeded the city’s authority to enact by initiative and were
therefore properly excluded from the ballot. State ex rel. Flak v. Betras, 95 N.E.3d 329, 333 (Ohio
2017), abrogated by State ex rel. Maxcy v. Saferin, 122 N.E.3d 1165 (Ohio 2018). The board
again refused to place the measure on the ballot the following year, and the plaintiffs sought
another writ of mandamus. The Ohio Supreme Court granted the writ, and the municipal charter
amendment was placed on the ballot, although it did not pass. State ex rel. Khumprakob v.
Mahoning Cnty. Bd. of Elections, 109 N.E.3d 1184, 1186 (Ohio 2018). Frackfree tried again later
that year and the board certified the measure for the ballot.
Plaintiffs Markie Miller and Bryan Twitchell are members of Toledoans for Safe Water
and sought to amend Toledo’s municipal charter with the Lake Erie Bill of Rights, which provided
a legal basis for citizen intervention to protect the Lake Erie watershed. The Lucas County Board
of Elections determined that the initiative was beyond Toledo’s authority to enact and refused to
place it on the ballot. The plaintiffs sought a writ of mandamus, which the Ohio Supreme Court
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denied. State ex rel. Twitchell v. Saferin, 119 N.E.3d 365, 367 (Ohio 2018) (citing Flak, 95 N.E.3d
at 332), abrogated by Maxcy, 122 N.E.3d at 1165.
Shortly thereafter, the Ohio Supreme Court abrogated Flak, holding that “boards of
elections have no authority to review the substance of a proposed municipal-charter amendment.”
Maxcy, 122 N.E.3d at 1169. Maxcy explained that Flak had “mistakenly conflated” the
amendment of municipal charters with the passing of municipal ordinances via initiative. Id. If
a petition to amend a municipal charter contains enough signatures, then the municipality’s
governing body must “provide by ordinance for the submission of the proposed amendment to the
electors.” Id. at 1171. “And once the legislative body of the municipality passes an ordinance
placing the proposed charter amendment on the ballot, the duty of the board [of elections] is to
simply add the proposed charter amendment to the ballot.” Id. In other words, “in placing a
proposed amendment to a municipal charter on the ballot, the ‘board of elections has nothing but
a ministerial role under the [Ohio] Constitution.’” Id. (quoting State ex rel. Semik v. Cuyahoga
Cnty. Bd. of Elections, 617 N.E.2d 1120, 1123 (Ohio 1993) (per curiam)).
After Maxcy, the Lucas County Board of Elections placed the proposed municipal charter
amendment on the ballot, and it passed. Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d
551, 554 (N.D. Ohio 2020), appeal dismissed, No. 20-3368, 2020 WL 3619934 (6th Cir. Apr. 14,
2020), and appeal dismissed, No. 20-3361, 2020 WL 3620205 (6th Cir. May 5, 2020). A federal
district court later invalidated the law as “unconstitutionally vague and exceed[ing] the power of
municipal government in Ohio.” Id. at 558.
Plaintiffs Gregory Pace and William Lyons are members of the Columbus Community
Rights Group, which proposed a municipal ordinance titled “Community Bill of Rights for Water,
Soil and Air Protection and to Prohibit Gas and Oil Extraction and Related Activities and Projects.”
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The proposed ordinance gave Columbus citizens various environmental rights and regulated oil
and gas extraction. The Franklin County Board of Elections determined that the proposed
ordinance exceeded Columbus’s legislative authority and refused to place the measure on the
ballot. The plaintiffs sought a writ of mandamus, which the Ohio Supreme Court denied. State ex
rel. Bolzenius v. Preisse, 119 N.E.3d 358, 362 (Ohio 2018).
Plaintiffs Gwen Fischer and Damen Rae are members of the Portage Community Rights
Group, which petitioned to convert the Portage County government to a charter form. Plaintiff
Gregory Howard is a member of the Meigs County Home Rule Committee, which proposed a
county charter for Meigs County. The boards of elections in both counties concluded that the
proposed charters failed to adequately provide for county executive positions and refused to place
them on the ballot. Coover, 70 N.E.3d at 589. The plaintiffs filed protests with the secretary of
state, who concluded that the petitions were properly excluded from the ballot because they failed
to provide for all duties imposed on county officers. The plaintiffs sought writs of mandamus,
which the Ohio Supreme Court denied because the language in the proposed charters was
“insufficient” to provide for appropriate powers of county officers. Id. at 591.
Plaintiffs Saraquoia Bryant and Sally Jo Wiley are members of the Athens Community Bill
of Rights Committee, which proposed a county charter containing prohibitions on hydraulic
fracturing and waste injection. After the Athens County Board of Elections refused to place the
proposed county charter on the ballot, the plaintiffs filed a protest with the secretary of state. The
secretary upheld the board’s decision because the proposed charter failed to provide for the election
and appointment of a county executive and the state had preemptive authority to regulate oil and
gas operations. The plaintiffs sought a writ of mandamus, which the Ohio Supreme Court denied.5
5
The Ohio Supreme Court held that the secretary of state did not have the authority “to invalidate charter petitions
based upon his assessment of the legality or constitutionality of the measure if enacted,” but denied the writ of
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Walker, 43 N.E.3d at 422–23, 425. Twice more the board refused to certify the proposed charter,
and the Ohio Supreme Court denied the plaintiffs’ writs of mandamus because the proposed
charter’s “language is insufficient to provide for the exercise of all powers vested in, and the
performance of all duties imposed upon, counties and county officers.” Coover, 70 N.E.3d at 591;
see also State ex rel. McGinn v. Walker, 87 N.E.3d 204, 208 (Ohio 2017) (“The Athens County
charter petition is nearly indistinguishable from the language we rejected in Walker and Coover.”).
Plaintiffs Katharine Jones and Gerald Dolcini are members of Sustainable Medina County,
which submitted petitions to convert the Medina County government to a charter form. After the
Medina County Board of Elections certified the charters, the secretary of state determined that the
proposed charters did not provide an adequate description of the form of proposed county
government and instructed the board of elections not to place them on the ballot. The Ohio
Supreme Court denied the plaintiffs’ writ of mandamus, concluding that it was within the
secretary’s “discretion to determine that the proposed charters were invalid because they did not
set forth the form of government.” Walker, 43 N.E.3d at 425.
The next year, the Medina County Board of Elections tied over whether to certify the
proposed charter. The secretary of state rejected the charter because it did not provide for all duties
imposed on county officers. The Ohio Supreme Court denied the plaintiffs’ writ of mandamus
because they failed to pursue an appropriate remedy by either formally protesting the board’s
decision or requesting that the board bring an action in a common pleas court. State ex rel. Jones
v. Husted, 65 N.E.3d 733, 736 (Ohio 2016). The plaintiffs pursued the charter the following year,
and the board voted against certification because the proposal again failed to adequately provide
for the form of county government. The secretary of state declined to rule on the plaintiffs’ protest
mandamus because the secretary “presented an alternative basis for invalidating the charter petitions, namely, that the
charters do not satisfy the threshold requirements that define a charter initiative.” Walker, 43 N.E.3d at 425.
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“because he believed that the petitioners were precluded from protesting further by having
contemporaneously pursued the O.R.C. § 307.94 common pleas hearing option.” DE 1, Compl.,
Page ID 47. The Ohio Supreme Court again denied the plaintiffs’ writ of mandamus, concluding
that the board properly excluded the proposed charter because it did not provide for the exercise
of all powers and duties imposed on county officers. McGinn, 87 N.E.3d at 209.
In this action, the plaintiffs sued the Ohio secretary of state, Frank LaRose, in his official
capacity, and members of the seven different county boards of elections (Athens, Franklin, Lucas,
Mahoning, Medina, Meigs, and Portage counties) in their official capacities, under 42 U.S.C.
§ 1983, alleging numerous constitutional violations. The plaintiffs argue that the Initiative
Authority Statutes’ prescreening process violates the First, Fourteenth, and Ninth Amendments, as
well as the Ohio Constitution’s separation of powers. The plaintiffs sought declaratory relief and
to enjoin the defendants from carrying out the required prescreening process.
The district court dismissed the case in several decisions.6 Beiersdorfer v. LaRose, 397 F.
Supp. 3d 1037, 1053 (N.D. Ohio 2019) (Beiersdorfer I); Beiersdorfer v. LaRose, No. 4:19-CV-
260, Mem. Op. & Order, ECF 77, at Page ID 927 (N.D. Ohio Dec. 31, 2019) (Beiersdorfer II);
Beiersdorfer v. LaRose, No. 4:19-CV-260, 2020 WL 2085140, at *8 (N.D. Ohio Apr. 30, 2020)
(Beiersdorfer III). The district court held that the plaintiffs lacked standing to pursue their claims
against the Mahoning County defendants, and that the state separation of powers claim was barred
by sovereign immunity. Beiersdorfer I, 397 F. Supp. 3d at 1047–48, 1053; Beiersdorfer II, No.
4:19-CV-260, ECF 77, at Page ID 926; Beiersdorfer III, 2020 WL 2085140, at *8. The court also
held that the initiative statutes did not violate the First, Fourteenth, or Ninth Amendments.
6
LaRose and the members of the county boards of elections of Mahoning County, Portage County, Franklin County,
Athens County, and Meigs County filed motions to dismiss for lack of subject matter jurisdiction and failure to state
a claim. Fed. R. Civ. Pro. 12(b)(1), 12(b)(6). Members of the Lucas County Board of Elections and the Medina
County Board of Elections filed motions for judgment on the pleadings. Fed. R. Civ. Pro. 12(c).
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The plaintiffs appealed. LaRose petitioned for initial en banc hearing, arguing that the First
Amendment is inapplicable to laws regulating the initiative process. This court denied the petition.
II.
We review the denial of a motion to dismiss for lack of subject matter jurisdiction de novo.
Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016). “Motions to dismiss for lack of
subject matter jurisdiction fall into two general categories: facial attacks and factual attacks.”
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). When, as here, the defendants make a
facial “challenge to the sufficiency of the pleading itself,” we “must take the material allegations
of the petition as true and construed in the light most favorable to the nonmoving party.” Id.We also review the district court’s order granting a Rule 12(b)(6) motion to dismiss de
novo. Solo v. United Parcel Serv. Co., 819 F.3d 788, 793 (6th Cir. 2016). We use the same
standard of review for a judgment on the pleadings granted pursuant to Rule 12(c). JPMorgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). “We construe the complaint in
the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and
examine whether the complaint contains ‘sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.’” Solo, 819 F.3d at 793 (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation omitted)).
We may also “consider matters of public record in deciding a motion to dismiss without
converting the motion to one for summary judgment.” Com. Money Ctr., Inc. v. Illinois Union
Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007); see also United States v. Harris, 331 F.2d 600, 601
(6th Cir. 1964) (appellate court can take judicial notice sua sponte). We may “take judicial notice
of developments in related ‘proceedings in other courts of record.’” Chase Bank USA, N.A. v. City
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of Cleveland, 695 F.3d 548, 553 n.2 (6th Cir. 2012) (quoting Walburn v. Lockheed Martin Corp.,
431 F.3d 966, 972 n.5 (6th Cir. 2005)).
III.
The plaintiffs do not challenge the dismissal of the claims against the Mahoning County
defendants for lack of standing, so the issue is abandoned. United States v. Johnson, 440 F.3d 832,
845–46 (6th Cir. 2006) (“[A]n appellant abandons all issues not raised and argued in its initial brief
on appeal.” (quoting United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996))). Therefore, we
also dismiss plaintiffs Beiersdorfer and Hunter for lack of standing.7 Hollingsworth v. Perry, 570
U.S. 693, 705, 707 (2013) (“To have standing, a litigant must . . . possess a direct stake in the
outcome of the case . . . that is distinguishable from the general interest.” (internal citations and
quotations omitted)). Beiersdorfer and Hunter have not alleged that they are involved in the pursuit
of initiatives in the other defendant counties and thus fail to allege a concrete and personalized
injury-in-fact necessary to sustain standing against the remaining defendants.
IV.
Neither the district court nor the parties addressed whether the plaintiffs have standing to
sue the Lucas County defendants. However, “we are required in every case to determine—sua
sponte if the parties do not raise the issue—whether we are authorized by Article III to adjudicate
the dispute.” Chapman v. Tristar Prod., Inc., 940 F.3d 299, 304 (6th Cir. 2019). “Standing is ‘the
threshold question in every federal case,’” Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir.
1999) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), and “[w]e may not decide the merits
of a claim for relief unless some party pressing the claim has standing to bring it.” Chapman, 940
F.3d at 304. The plaintiffs lack standing to sue the Lucas County defendants because the initiative
7
Beiersdorfer and Hunter did not have standing when they commenced the case. See Arizonans for Off. Eng. v.
Arizona, 520 U.S. 43, 68 n.22 (1997); Graveline v. Benson, 992 F.3d 524, 532 (6th Cir. 2021).
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statutes do not apply to the process to amend municipal charters, and the plaintiffs do not allege
that they have ever pursued or intend to pursue the forms of initiative in Lucas County to which
the prescreening process does apply.
A plaintiff must satisfy three elements for standing: “(1) that he has suffered an ‘injury in
fact,’ (2) that there is a ‘causal connection between the injury and the conduct complained of,’ and
(3) that it is ‘likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.’” Kiser v. Reitz, 765 F.3d 601, 607 (6th Cir. 2014) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)). To establish injury in fact, the plaintiff must demonstrate
that “he personally has suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the defendant.” Coyne, 183 F.3d at 494 (internal quotations omitted).
When seeking “declaratory and injunctive relief, a pre-enforcement challenge may be made
before the actual completion of an injury in fact.” Grendell v. Ohio Supreme Ct., 252 F.3d 828,
832 (6th Cir. 2001). But the “plaintiff must show actual present harm or a significant possibility
of future harm in order to demonstrate the need for pre-enforcement review.” Id. (quoting Nat’l
Rifle Assoc. of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997)). “Past exposure to illegal conduct
does not in itself show a present case or controversy . . . if unaccompanied by any continuing,
present adverse effects.” Lujan, 504 U.S. at 564 (quoting City of Los Angeles v. Lyons, 461 U.S.
95, 102 (1983)).
The plaintiffs allege that the Lucas County Board of Elections “improperly reviewed the
substance” of their proposed municipal charter amendment—the Lake Erie Bill of Rights—when
the board refused to place the measure on the ballot in 2018. DE 1, Compl., Page ID 36. But the
plaintiffs were successful in placing the Lake Erie Bill of Rights on the ballot the following year,
and the charter amendment passed with sixty percent of the vote. Drewes Farms P’ship, 441 F.
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Supp. 3d at 554.8 Therefore, any injury arising from board’s refusal to place the proposed charter
amendment on the ballot had already been redressed when the plaintiffs commenced this case.9
That refusal cannot alone serve as a valid basis for standing.
Nor have the plaintiffs demonstrated the existence of “continuing, present adverse effects”
necessary to confer standing as to their claims for prospective relief. Lujan, 504 U.S. at 564(quoting Lyons, 461 U.S. at 102). In the district court, the Mahoning County plaintiffs said that
the board’s actions “have a severe deterrent effect” and that the plaintiffs’ “core political speech
rights [are] chilled, when . . . forced to put even more resources toward defending proposed ballot
measures in court in an effort to get them on the ballot.” DE 48, Opp. to Mahoning Cnty. Mot. to
Dismiss, Page ID 463. Assuming that the plaintiffs would make the same argument as to the Lucas
County defendants, “the mere fact” that they “feel[] inhibited” “does not objectively establish an
imminent threat that chills protected activity.” Grendell, 252 F.3d at 835. The plaintiffs do not
argue that the Lucas County defendants have prescreened any charter amendments after Maxcy or
that the defendants have threatened to exclude any measure from the ballot.
The Ohio Supreme Court made clear in Maxcy that “boards of elections have no authority
to review the substance of a proposed municipal-charter amendment.” Maxcy, 122 N.E.3d at 1169.
If a petition to amend a municipal charter gains enough signatures, then the municipality’s
governing body passes an ordinance ordering the board of elections to place the charter amendment
8
A federal district court later invalidated the law as “unconstitutionally vague and exceed[ing] the power of municipal
government in Ohio.” Id. at 558.
9
The Lucas County Board of Elections certified the Lake Erie Bill of Rights for placement on the ballot on December
20, 2018, more than a month before the plaintiffs filed their complaint. See State ex rel. Abernathy v. Lucas Cty. Bd.
of Elections, 125 N.E.3d 832, 834 (Ohio 2019) (per curiam); Relator’s Evidence at 1, Abernathy, 125 N.E.3d 832 (No.
2018-1824), available online at http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=859135.pdf. Plaintiff
Twitchell motioned to intervene as respondent in Abernathy, which the Ohio Supreme Court granted. Mot. to
Intervene, Abernathy, 125 N.E.3d 832 (No. 2018-1824) (Dec. 27, 2018), available online at
http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=858982.pdf; Order Granting Mot. to Intervene,
Abernathy, 125 N.E.3d 832 (No. 2018-1824) (Dec. 31, 2018), available online at
https://supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-ohio-5310.pdf.
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on the ballot. Id. at 1171. At that point, “the board of elections has nothing but a ministerial role”
and must “simply add the proposed charter amendment to the ballot.” Id. (quoting Semik,
617 N.E.2d at 1123). The Ohio Supreme Court has since reiterated that the Lucas County “[B]oard
[of Elections] had no power to keep the proposed charter amendment off the ballot for any reason.”
State ex rel. Abernathy v. Lucas Cnty. Bd. of Elections, 125 N.E.3d 832, 836 (Ohio 2019).
The plaintiffs allege that after Maxcy, “using Ohio’s unconstitutional ballot access scheme
. . . a single individual filed a protest to keep the [Lake Erie Bill of Rights] off of the ballot, thereby
subjecting Plaintiffs to more costly and time consuming litigation in an effort to place the [Lake
Erie Bill of Rights] on the ballot.” DE 1, Compl., Page ID 37. But the plaintiffs do not allege that
the Lucas County Board of Elections actually prescreened the charter amendment. In fact, the
board rejected the protest to placing the amendment on ballot, despite the board’s professed belief
that the measure was “unconstitutional and unenforceable,” because Maxcy “obliged [the board]
to vote to place the measure on the ballot.” Abernathy, 125 N.E.3d at 834. The Ohio Supreme
Court subsequently denied a writ of mandamus to the opponent of the charter amendment because
he was “not entitled to a writ of prohibition to undo” the board’s “perform[ance] [of] its ministerial
duty” of placing the amendment on the ballot. Id. at 836. The Lake Erie Bill of Rights was
submitted to the electorate in 2019 and passed with sixty percent of the vote. Drewes Farms
P’ship, 441 F. Supp. 3d at 554. The plaintiffs cannot show that an injury is “certainly impending,”
particularly “when, as here, the plaintiff[s] allege[] only an injury at some indefinite future time,
and the acts necessary to make the injury happen are at least partly within the plaintiff[s’] own
control.” Lujan, 504 U.S. at 564 n.2. In sum, there is no live case or controversy pertaining to the
board’s prescreening of municipal charter amendments.
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The plaintiffs also do not raise the possibility that they have ever pursued county-charter
or municipal-ordinance initiatives (to which the initiative statues apply) in Lucas County, or that
they ever plan to pursue those forms of initiative in the future. The Supreme Court has made clear
that generalized statements of future intent do not suffice to ground standing. See Carney v.
Adams, 141 S. Ct. 493, 502–03 (2020); Lujan, 504 U.S. at 564 (“Such ‘some day’ intentions—
without any description of concrete plans, or indeed even any specification of when the some day
will be—do not support a finding of the ‘actual or imminent’ injury that our cases require.”
(citation omitted)). Plaintiffs allege no such future intent, let alone a concrete one.
Without more, the plaintiffs have not shown a particularized interest against the Lucas
County Board of Elections defendants “that is distinguishable from the general interest” of every
eligible voter in the county. Hollingsworth, 570 U.S. at 707. Instead, the complaint against the
Lucas County defendants amounts to a “‘generalized grievance’ . . . insufficient to confer
standing.” Id. at 706. Therefore, we dismiss the plaintiffs’ claims against the Lucas County
defendants for lack of standing. Because plaintiffs Miller and Twitchell have not alleged that they
seek to pursue initiative efforts in any county other than Lucas County, they must also be dismissed
for lack of standing.
Nine plaintiffs (Bryant, Wiley, Jones, Dolcini, Fischer, Rae, Howard, Lyons, and Pace),
five defendant county boards of elections (Athens, Franklin, Medina, Meigs, and Portage), and the
secretary of state remain.
V.
The plaintiffs argue that the Initiative Authority statutes impose a prior restraint and
alternatively fail Anderson-Burdick scrutiny. Because the laws do neither, the plaintiffs have failed
to make out a plausible First Amendment violation.
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A.
The plaintiffs argue that the Initiative Authority Statutes constitute a “prior restraint
forbidden by the First Amendment.” CA6 R. 42, Appellants’ Br., at 27. We have previously
rejected the argument that the Initiative Authority Statutes impose a prior restraint on political
speech. Schmitt, 933 F.3d at 637–39.
In Schmitt, the plaintiffs sought to place municipal-ordinance initiatives on the ballot that
effectively decriminalized marijuana possession. Id. at 635. The Portage County of Board of
Elections declined to certify the measure for placement on the ballot because the board concluded
that it was administrative rather than legislative. Id. Instead of seeking mandamus, the plaintiffs
sought and obtained an injunction in federal district court. Id. at 634. We reversed, concluding
that the initiative process did not violate the United States Constitution. Id. at 634, 642.
Importantly, Schmitt held that “the ballot-initiative process . . . is not a prior restraint.” Id.
at 638. “The fundamental objection to systems of prior restraint is that they create a risk of
government censorship of expressive activity,” but “Ohio’s ballot-initiative laws, in contrast, do
not directly restrict core expressive conduct.” Id. Instead, “the laws regulate the process by which
initiative legislation is put before the electorate, which has, at most, a second-order effect on
protected speech.” Id. We concluded that “[r]egulations like these are ‘a step removed from the
communicative aspect’ of core political speech, and therefore do not involve the same risk of
censorship inherent in prior-restraint cases.” Id. (quoting John Doe No. 1 v. Reed, 561 U.S. 186,
213 (2010) (Sotomayor, J., concurring)). “[B]allots serve primarily to elect candidates, not as
forums for political expression.” Id. (quoting Timmons v. Twin Cities Area New Party, 520 U.S.
351, 363 (1997)).
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The plaintiffs argue that this case is distinguishable because the Schmitt plaintiffs did not
challenge the boards of elections’ authority to prescreen proposed initiatives, but the plaintiffs here
challenge “the discretion accorded election officials to veto a proposal based on its substance.”
CA6 R. 42, Appellants’ Br., at 29–30. It is true that the Schmitt plaintiffs did “not challenge Ohio’s
ability to limit the subject matter of its initiatives” and instead focused on “the asserted inadequacy
of the review afforded to the boards’ discretionary judgments.” Schmitt, 933 F.3d at 640 n.3. But
the Schmitt plaintiffs asserted that the initiative statutes “amount[ed] to a prior restraint . . . because
the ballot-initiative statutes delegate authority to boards of elections to review proposed initiatives
prior to the election.” Id. at 638. The Schmitt plaintiffs thus made the same argument that the
plaintiffs are making here: that the initiative statutes are a prior restraint because the boards of
elections may review proposed initiatives before an election. We already decided in Schmitt that
the statutes did not impose a prior restraint and thus come to the same conclusion here.10
B.
“[O]ur precedent dictates that we evaluate First Amendment challenges to
nondiscriminatory, content-neutral ballot initiative requirements under the Anderson-Burdick
framework.”11 Thompson v. Dewine, 959 F.3d 804, 808 (6th Cir. 2020); see also Schmitt, 933 F.3d
at 639 (applying Anderson-Burdick when reviewing challenge to same Ohio initiative laws). We
recognize that our sister circuits are divided on the issue of whether the First Amendment applies
to laws governing the process by which legislation is enacted. See Schmitt, 933 F.3d at 646–48
(Bush, J., concurring in part) (collecting cases). But “until this court sitting en banc takes up the
10
Although the plaintiffs do not raise this point, only municipal-ordinance initiatives were at issue in Schmitt, not
county-charter initiatives. But the plaintiffs’ argument in Schmitt that the prescreening process itself constitutes a
prior restraint—and our rejection of that argument—apply with equal measure to county-charter initiatives.
11
See, infra, Section V.C (concluding that the statutory scheme is not content based).
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question of Anderson-Burdick’s reach, we will apply that framework in cases like this.” Dewine,
959 F.3d at 808 n.2.
Under the Anderson-Burdick framework, we “weigh the character and magnitude of the
burden” that the rule imposes on the plaintiff’s First Amendment rights “against the interests the
[s]tate contends justify that burden, and consider the extent to which the [s]tate’s concerns make
the burden necessary.” Schmitt, 933 F.3d at 639 (quoting Timmons, 520 U.S. at 358). First, we
“consider the severity of the restriction.” Id. We subject laws imposing “severe burdens” to strict
scrutiny, while “lesser burdens . . . trigger less exacting review,” and the state’s “important
regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.”
Id. (omission in original). “Regulations that fall in the middle ‘warrant a flexible analysis that
weighs the state’s interests and chosen means of pursuing them against the burden of the
restriction.’” Id. (quoting Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016)).
Second, “we identify and evaluate the state’s interests in and justifications for the regulation.” Id.And third, “we assess the legitimacy and strength of those interests and determine whether the
restrictions are constitutional.” Id. (citation and internal quotation marks omitted).
The plaintiffs argue that the Initiative Authority Statues should be subject to strict scrutiny
because the laws impose a “severe burden” by “exclud[ing] proposed initiatives from the ballot.”
CA6 R. 42, Appellants’ Br., at 14–15. “The hallmark of a severe burden is exclusion or virtual
exclusion from the ballot.” Grimes, 835 F.3d at 574.12 But the plaintiffs are not faced with
exclusion from the ballot, virtual or otherwise. The proposed county-charter initiatives were
rejected because they failed to list the required county positions. And the only proposed municipal-
12
Also relevant in determining the severity of the burden is an assessment of whether the law is content neutral or
provides alternate means of access. Daunt v. Benson, 956 F.3d 396, 407–08 (6th Cir. 2020); Citizens for Legislative
Choice v. Miller, 144 F.3d 916, 921 (6th Cir. 1998) (citing Burdick v. Takushi, 504 U.S. 428, 437–38 (1992)). For
the reasons explained in Section V.C infra, the Initiative Authority Statutes are content neutral.
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ordinance initiative at issue—that advanced by plaintiffs Pace and Lyons in Franklin County—
was rejected because it was not legislative action. See Bolzenius, 119 N.E.3d at 362. The plaintiffs
remain free to exercise the initiative power in compliance with Ohio’s Initiative Authority Statutes.
And the plaintiffs do not provide a coherent explanation of how the moderate requirements for
initiatives prevent them from accessing the ballot.
The plaintiffs argue that they are excluded from the ballot because the boards of elections,
secretary of state, and Ohio Supreme Court continuously shift the standards on the requirements
for proposed initiatives, “consign[ing] the people to an endless and egregious guessing game of
what proposal, if any, could possibly please enough BOE members and the Secretary of State to
get on the ballot.” CA6 R. 42, Appellants’ Br., at 22. Specifically, the plaintiffs allege that their
petitions were rejected for failing to propose a unitary executive, which they assert Ohio law does
not require, and “because of arbitrarily shifting views of whether Ohio ‘general law’ could be
incorporated by reference into charter proposals to define county governmental officers’ duties.”
Id. at 20–21. The plaintiffs also allege that the proposed charters in Athens and Medina were
repudiated “for opposite ways of representing the duties of public officials.” Id. at 20. These
allegations misread Ohio law and decisions of the Ohio Supreme Court.13
The plaintiffs offer no citation to Ohio law for their claim that a county charter does not
require an executive position. Nor could they, because Ohio law requires that “[a]n alternative
form of county government shall include either an elective county executive . . . or an appointive
county executive.” Ohio Rev. Code Ann. § 302.02; see also Ohio Const. art. X, § 3 (“Every
13
See Iqbal, 556 U.S. at 678 (“Although for the purposes of a motion to dismiss we must take all of the factual
allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))); Morgan v. Church’s Fried Chicken,
829 F.2d 10, 12 (6th Cir. 1987) (“[W]e need not accept as true legal conclusions or unwarranted factual inferences.”).
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[county] charter shall provide the form of government of the county and shall determine which of
its officers shall be elected and the manner of their election.”); Walker, 43 N.E.3d at 425.
The plaintiffs allege that the Ohio Supreme Court “irrational[ly]” refused to grant
mandamus to the Medina County plaintiffs because the proposed charter did not include a “catch-
all” provision that incorporated Ohio general law by reference into the proposed charter, which
was “directly contrary” to its past decisions holding that the charter “must contain everything
within its four corners.” DE 1, Compl., Page ID 48. Those allegations are contradicted by the
decisions of the Ohio Supreme Court. The proposed charters in Medina and Athens County were
first rejected because they did “not ‘provide the form of government of the county’ or ‘determine
which of its officers shall be elected and the manner of their election.’” Walker, 43 N.E.3d at 425
(quoting Ohio Const. art X, § 3). The proposed charters included only the following statement:
The offices and duties of those offices, as well as the manner of election to and
removal from County offices, and every other aspect of county government not
prescribed by this Charter, or by amendments to it, shall be continued without
interruption or change in accord with the Ohio Constitution and the laws of Ohio
that are in force at the time of the adoption of this Charter and as they may
subsequently be modified or amended.
Id. The Ohio Supreme Court held that the statement was insufficient because it required one to
“look to sources outside the proposed charters to determine the form of government they purport
to establish.” Id.
The proposed charters in Athens, Meigs, and Portage Counties contained similar language:
The County . . . is responsible within its boundaries for the exercise of all powers
vested in, and the performance of all duties imposed upon, counties and County
officers by general law. . . . When not prescribed by the Charter or by amendment
to this Charter, by local law enacted by the County Commissioners, or by local law
enacted by the people, such powers shall be exercised in the manner prescribed by
the Constitution of Ohio or by general law.
Coover, 70 N.E.3d at 590 (omission in original). The Ohio Supreme Court likewise concluded
that, “[a]s in Walker, the powers and duties are not individually delineated, forcing one to ‘look to
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sources outside the proposed charters to determine the form of government they purport to
establish, and therefore they do not satisfy the legal prerequisites.’” Id. at 591 (quoting Walker,
43 N.E.3d at 425).
The next attempt to pass a county charter in Athens County failed because it contained “the
same language [the Ohio Supreme Court] deemed inadequate in Coover.” McGinn, 87 N.E.3d at
208. The subsequent proposed charter for Medina County came “close,” but likewise failed to
“provide for the exercise of all powers, and the performance of all duties, imposed on counties
and county officers by law.” Id. at 209. While the proposal correctly listed all the positions, it
failed to provide for all the powers of the county prosecuting attorney required by state law.14 Id.
The McGinn plaintiffs attempted to rectify that oversight through a “catch-all provision”
similar to the language that the Ohio Supreme Court had rejected in Coover.15 Id. The Ohio
Supreme Court did not, contrary to the plaintiffs’ assertions, state that such a catch-all provision
was necessary to save the charter. Rather, the Ohio Supreme Court merely pointed out that such
a provision was not in Medina’s proposed charter at all; instead, the provision was in the proposed
charter for Athens County. The Ohio Supreme Court did not say that had the Medina charter
included the provision, it would have sufficed to provide for the missing county attorney powers.
So, contrary to the plaintiffs’ assertions, the Ohio Supreme Court in McGinn did not reverse its
conclusion in Walker and Coover that “[p]roposed charters do not satisfy Article X, Section 3 of
14
Ohio law requires that county prosecuting attorneys serve as the legal advisor to various county officers, Ohio Rev.
Code Ann. § 309.09(A), but the proposed charter did not impose that duty and did not “identif[y] another official to
whom these responsibilities have been transferred.” McGinn, 87 N.E.3d at 209. Likewise, Ohio law authorizes
prosecuting attorneys to pay rewards to informants who supply drug-related tips, Ohio Rev. Code Ann. § 309.08(B),
and to bring suit on behalf of the state to prevent the misappropriation of public funds, id. § 309.12, but “[t]he proposed
charter for Medina County contain[ed] no equivalent grant of authority.” McGinn, 87 N.E.3d at 209.
15
“When not prescribed by the Charter or by amendment to this Charter, by local law enacted by the County
Commissioners, or by local law enacted by the people, [all powers exercised by the people through their county
government] shall be exercised in the manner prescribed by the Constitution of Ohio or by general law.” Id. (alteration
in original).
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the Ohio Constitution if ‘[o]ne must look to sources outside the proposed charters to determine the
form of government they purport to establish.’” Id. at 208 (quoting Walker, 43 N.E.3d at 425).
Finally, decisions of the Ohio Supreme Court refute the plaintiffs’ assertion that the
proposed charters in Athens and Medina County were repudiated “for opposite ways of
representing the duties of public officials.” CA6 R. 42, Appellants’ Br., at 20. The plaintiffs’ first
attempt at charters in both counties contained identical language that the Ohio Supreme Court
concluded failed to provide for any duties of county officials. Walker, 43 N.E.3d at 425. The
subsequent Athens and Medina charters were certainly different in McGinn, but not “opposite.”
The Ohio Supreme Court rejected the Athens County charter because while it provided for the
election of eight county officials, it did not specify the powers and duties of those officials.
McGinn, 87 N.E.3d at 208. And, as already discussed, the Ohio Supreme Court rejected the
Medina County charter because it failed to provide for all the powers of the county attorney, even
though it contained much more detail than the proposed Athens County charter. Id. at 209. Thus,
both charters failed because they did not include all the powers and positions required by state law.
In short, the plaintiffs failed to succeed in placing their measures on the ballot not because
of “shifting standards,” but because they failed to comply with the basic requirements of Ohio law.
Preventing initiatives that do not comply with the state-law requirements involved here from
reaching the ballot is not a severe burden on the plaintiffs’ First Amendment rights. As the Court
stated in Burdick, the “assumption that an election system that imposes any restraint on voter
choice is unconstitutional . . . is simply wrong.” Burdick v. Takushi, 504 U.S. 428, 440 n.10
(1992); see also id. (“[L]imiting the choice of candidates to those who have complied with state
election law requirements is the prototypical example of a regulation that, while it affects the right
to vote, is eminently reasonable.”); Anderson v. Celebrezze, 460 U.S. 780, 792 n.12 (1983)
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(“Although a disaffiliation provision may preclude such voters from supporting a particular
ineligible candidate, they remain free to support and promote other candidates who satisfy the
State’s disaffiliation requirements.”).
While the burden is not severe, we concluded in Schmitt that the burden imposed by the
Ohio initiative statutes “is not so minimal as to warrant rational-basis review” because the “boards
of elections wield the discretionary authority to decline to certify initiatives, and the burden thus
falls on the aggrieved proponent to obtain mandamus relief in order to vindicate his or her interest.”
Schmitt, 933 F.3d at 641. The same point applies here. The burden is “moderate.” Almost all of
the defendants do not contest that “the burden imposed by the Ohio ballot-initiative process is
somewhere between minimal and severe,” requiring this court to “engage in a flexible analysis in
which we weigh the ‘burden of the restriction’ against the ‘state’s interests and chosen means of
pursuing them.’” Id. (quoting Grimes, 835 F.3d at 574).
Given the moderate burden, the second step of Anderson-Burdick considers “the state’s
interests in and justifications for the regulation.” Id. at 639. In Schmitt, we recognized that “[t]he
Supreme Court has explained that, in structuring elections, ‘States may, and inevitably must, enact
reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related
disorder.’” Id. at 641 (quoting Timmons, 520 U.S. at 358); see also id. (quoting John Doe No. 1,
561 U.S. at 186 (“The State’s interest in preserving the integrity of the electoral process is
undoubtedly important.”); Buckley v. Am. Const. Law Found., 525 U.S. 182, 191 (1999) (“States
allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the
initiative process.”)). We have recognized strong state interests in “ensuring that its elections are
run fairly and honestly,” “maintaining the integrity of its initiative process,” Schmitt, 933 F.3d at
641 (quoting Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 297 (6th Cir. 1993)),
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“avoid[ing] overcrowded ballots,” and “protect[ing] the integrity of its political processes from
frivolous or fraudulent candidacies,” id. (quoting Jolivette v. Husted, 694 F.3d 760, 769 (6th Cir.
2012)). Schmitt specifically recognized Ohio’s “legitimate and substantial” interests “in ensur[ing]
that only ballot-eligible initiatives go to the voters because [k]eeping unauthorized issues off the
ballot reduces the odds that an initiative is later held invalid on the ground that the voters exceeded
their authority to enact it,” as well as Ohio’s “interest in maintaining voter confidence in the
electoral process.” Id. (alterations in original) (internal quotations omitted).
The third step of Anderson-Burdick considers “whether the State’s restrictions are
constitutionally valid given the strength of its proffered interests.” Id. “[W]hen a state election
law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and
Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally
sufficient to justify’ the restrictions.”16 Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at
788). In Schmitt, we concluded that the “the absence of a statutory de novo appeal of right does
not impose a significant or unjustified burden on initiative proponents’ First Amendment rights”
because the Ohio Supreme Court “performs what is essentially a de novo review of the legal issue.”
Schmitt, 933 F.3d at 642. We held that “[a]lthough the State’s chosen method for screening ballot
initiatives may not be the least restrictive means available, it is not unreasonable given the
significance of the interests it has in regulating elections.” Id. That the plaintiffs now specifically
challenge the prescreening process does not require a different result.
Including initiatives that purport to adopt a county charter (but do not because the proposal
failed to designate the required county positions) and a municipal ordinance (but do not because
16
As discussed below, the plaintiffs challenge the fact that Ohio has a prescreening process but not the substantive
requirements of that process—that county-charter petitions list all the required county positions and that
municipal-ordinance initiatives take legislative action.
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the proposal failed to take legislative action) undermines Ohio’s asserted interests. Ballots could
be flooded with initiatives, any number of which may be defective from the start, and overwhelm
voters. As the Seventh Circuit has recognized, “[l]imiting the number of referenda improves the
chance that each will receive enough attention, from enough voters, to promote a well-considered
outcome.” Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 938 (7th Cir. 2018).
The extensive judicial review process afforded by Ohio law also lessens any chance that
an initiative will be wrongfully excluded. In addition to review by a court of common pleas and
the secretary of state (for county-charter initiatives), the Supreme Court of Ohio regularly
considers ballot-access disputes and does so on an expedited timeline. Given the relatively low
burden on the plaintiffs, important state interests, and the small risk of injury to First Amendment
rights, the Initiative Authority Statutes survive Anderson-Burdick scrutiny.
C.
The plaintiffs also appear to argue that strict scrutiny is warranted because the Initiative
Authority Statues are content-based restrictions. The plaintiffs assert in passing that the defendants
are “enforcing content-based restrictions on the initiative right.” CA6 R. 42, Appellants’ Br., at
13. In the portion of their brief advocating for strict scrutiny, they make repeated—though often
conclusory—assertions that the challenged laws are content based, allow for “substantive” review,
and give board of elections officials unfettered discretion to decide what kind of ideas may reach
the voting public via ballot initiatives. But much of this section takes a misplaced focus by arguing
that the challenged laws are inconsistent with 100 years of Ohio law purportedly forbidding
pre-election review of the substance of a ballot initiative. As to the First Amendment, the
plaintiffs’ opening brief cites no federal cases describing the relevant distinction between content
based and content neutral laws under the First Amendment, nor explains how, under those cases,
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the laws discriminate based on content. The plaintiffs also address content discrimination in reply,
where they allege “content problems rang[ing] from petitioners’ supposed dereliction in failing to
delineate all statutory powers county officials [have] under a charter system” to “inclusion of
petition language that prohibits oil and gas extraction, supposedly unenforceable because of
pre-emptive state law.”17 CA6 R. 81, Reply, at 9–10. Though conclusory and presented in a
misguided way, we nonetheless now address the plaintiffs’ argument—to the extent they make
one—that the laws are content based.
The prescreening process—requiring county-charter petitions to include all required
county positions and municipal-ordinance petitions to take legislative, not administrative action—
is content neutral. In Schmitt, we declined to consider the plaintiffs’ “attempt to invoke strict
scrutiny on the ground that the ballot-initiative statutes are content-based restrictions” because the
plaintiffs failed to raise the argument before the district court. Schmitt, 933 F.3d at 640 n.3. But
we also said that “the mere fact that the legislative-administrative distinction is directed to the
content of an initiative does not necessarily make it content based such that it triggers strict
scrutiny” and noted that “[t]he rule applies without regard to the subject matter or viewpoint of the
initiative.” Id. We agree with that assessment.
In another case, we upheld an Ohio law preventing initiative petitions from containing
more than one proposal. Comm. to Impose Term Limits on Ohio Supreme Ct. & to Preclude
Special Legal Status for Members & Emps. of Ohio Gen. Assembly v. Ohio Ballot Bd., 885 F.3d
17This second example of supposed content discrimination flies in the face of the complaint and the Ohio Supreme
Court cases cited therein. True, the secretary of state upheld the Athens County Board of Election’s invalidation of
the proposed charter in part because the state had preemptive authority to regulate oil and gas. But the Ohio Supreme
Court clarified that the secretary did not have the authority “to invalidate charter petitions based upon his assessment
of the legality or constitutionality of the measure if enacted.” Walker, 43 N.E.3d at 425. Mandamus was ultimately
not warranted because the secretary “presented an alternative basis for invalidating the charter petitions:” that the
proposed charter failed to provide for a county executive. Id. Thus, the state judicial review process has already
confirmed that this supposed content discrimination was improper, and the plaintiffs do not allege that the county
boards of elections or the secretary of state have continued to improperly consider preemptive authority.
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443, 445 (6th Cir. 2018). The rule was “not content based” because it applied “to all initiative
petitions, no matter the topic discussed or idea or message expressed” and was not “adopted by
the government because of disagreement with the message of any initiative petition.” Id. at 447.
Moreover, the rule could “be justified without reference to the content of any initiative petitions”
because it “afford[ed] the voters freedom of choice and prevent[ed] ‘logrolling.’” Id. (quoting
State ex rel. Ohio Liberty Council v. Brunner, 928 N.E.2d 410, 418 (Ohio 2010)).
Likewise, the Initiative Authority Statutes are not content based because they apply “to all
initiative petitions, no matter the topic discussed or idea or message expressed,” and the laws were
clearly not “adopted by the government because of disagreement with the message of any initiative
petition.” Id. at 447. The statutes can “be justified without reference to the content of any initiative
petitions,” id., because they “ensur[e] that only ballot-eligible initiatives go to the voters” and
“maintain[] voter confidence in the electoral process.” Schmitt, 933 F.3d at 641. The Ohio courts
have provided a clear delineation between legislative and administrative action,18 and the plaintiffs
do not allege that officials have failed to apply that standard or that the standard is unclear. And
we have already stated—albeit, in dictum—that this precise legislative-administrative distinction
is not content based because it “does not involve core expressive conduct” and “applies without
regard to the subject matter or viewpoint of the initiative.” Id. at 640 n.3.19
18
Legislative action “enact[s] a law, ordinance, or regulation,” while administrative action “execut[es] a law,
ordinance, or regulation already in existence.” Ebersole, 20 N.E.3d at 684 (quoting Donnelly, 233 N.E.2d at 500).
19
And while it is true that county boards of elections must examine the petition to determine if it complies with
relevant state law, the same was true for the challenged scheme in Ohio Ballot Board, where an official had to examine
each proposal to determine if it contained one or two subjects. 885 F.3d at 445, 447. Additionally, the fact that Ohio
provides clear criteria for the relevant determinations lessens the concern that the review process involves the sort of
subjective evaluations that might raise First Amendment concerns. The requirement that county charters include
county positions, for instance, entails no subjective judgment. And as noted, Ohio provides a clear delineation between
“legislative” and “administrative” action that also does not require extensive subjective judgment or discretion.
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VI.
The remaining claims are easy to resolve. The district court dismissed the plaintiffs’ state
separation of powers claim as barred by sovereign immunity. Beiersdorfer I, 397 F.Supp.3d at
1053; Beiersdorfer II, No. 4:19-CV-260, ECF 77, at Page ID 926; Beiersdorfer III, 2020 WL
2085140, at *8. Although the plaintiffs list that decision as one of the issues on appeal, the
plaintiffs do not discuss state separation of powers in the argument section of their brief. See
FRAP 28(a)(8) (appellant’s argument section of opening brief must contain “appellant’s
contentions and the reasons for them, with citations to the authorities and parts of the record on
which the appellant relies”). We have previously “cautioned that ‘[i]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived,’ and that ‘[i]t is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its bones.’” Robinson, 390 F.3d at 886 (quoting
McPherson, 125 F.3d at 995–96).
In any event, sovereign immunity clearly bars the state law claim. The plaintiffs sued the
secretary of state and the members of the boards of elections in their official capacities, seeking an
injunction to enforce state law.20 Eleventh Amendment immunity does not attach to suits “filed
against a state official for purely injunctive relief enjoining the official from violating federal law.”
Ernst v. Rising, 427 F.3d 351, 358–59 (6th Cir. 2005) (emphasis added) (citing Ex parte Young,
209 U.S. 123, 155–56 (1908)). But “pendent state law claims against state officials in their official
capacity are barred by the Eleventh Amendment.” Experimental Holdings, Inc. v. Farris, 503 F.3d
514, 521 (6th Cir. 2007) (emphasis added) (citing Pennhurst State Sch. v. Halderman, 465 U.S.
89, 117–21 (1984)). “The federal courts are simply not open to such state law challenges to official
20
See Semik, 617 N.E.2d at 1122 (“The board of elections is not in any sense a municipal functionary. It is strictly a
board and an arm of the state government.”).
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state action, absent explicit state waiver of the federal court immunity found in the Eleventh
Amendment,” which the plaintiffs do not allege here. Id. The district court correctly dismissed
the state law claim without prejudice. See id. at 521 & n.5 (“An Eleventh Amendment dismissal
of pendent state law claims is properly ‘with prejudice’ to subsequent federal court suit, but it does
not by itself preclude a state court suit from raising the same claims . . . subject to such state law
defenses as might be applicable.”).21
VII.
The plaintiffs also argue that the Initiative Authority statutes violate “the right of local
community self-government,” which they say is a fundamental right protected by the substantive
due process clause of the Fourteenth Amendment. CA6 R. 42, Appellants’ Br., at 33.22 But the
plaintiffs cite cases addressing only the fundamental right to vote, which is not “the right of local
community self-government” that the plaintiffs have identified here. In any event, Supreme Court
precedent is clear that “municipalities have no inherent right of self-government which is beyond
the legislative control of the state.” Trenton v. New Jersey, 262 U.S. 182, 187 (1923). Localities
are “creature[s] of the state exercising and holding powers and privileges subject to the sovereign
will,” and “the state may withhold, grant or withdraw powers and privileges as it sees fit.” Id. We
have likewise been clear that “the right to initiative is created by state law and is not a right
guaranteed by the federal Constitution.” Austin, 994 F.2d at 294.
21
At oral argument, plaintiffs’ counsel argued for the first time that the Initiative Authority Statutes also violate the
separation of powers embodied in the U.S. Constitution. Oral Argument at 12:25–14:23. In addition to being
untimely, this argument is wholly without merit. “[D]isputed state laws d[o] not implicate federal separation of powers
principles.” Johnson v. Voinovich, 49 F. App’x 1, 3 (6th Cir. 2002); see also Dreyer v. People of State of Illinois, 187
U.S. 71, 84 (1902) (“Whether the legislative, executive, and judicial powers of a state shall be kept altogether distinct
and separate . . . is for the determination of the state.”); Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 255 (1957)
(“[T]he concept of separation of powers embodied in the United States Constitution is not mandatory in state
governments.”).
22
The plaintiffs also argued before the district court that enforcement of the initiative statutes constituted “actions that
shock the conscience,” but the plaintiffs forfeited that argument by failing to pursue it on appeal.
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Case No. 20-3557, Beiersdorfer v. LaRose
If a state chooses to create an initiative procedure, the state may not “place restrictions on
its use that violate the federal Constitution.” Id. at 295. But the initiative statutes do not violate
the First or Ninth Amendments, nor did the plaintiffs assert any other violation of the Fourteenth
Amendment. And the plaintiffs’ argument that Ohio has long recognized a right to local
government is irrelevant to whether the U.S. Constitution protects such a right. The district court
correctly dismissed this claim.
VIII.
The plaintiffs also assert that the Initiative Authority Statutes violate the Ninth
Amendment, which they say protects “the right of local, community self-government.” CA6 R.
42, Appellants’ Br., at 37. We have already held that “the ninth amendment does not confer
substantive rights in addition to those conferred by other portions of our governing law.” Gibson
v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991). And, as discussed above, there is no substantive
“right of local, community self-government” that the courts may enforce against the states. The
district court properly dismissed this claim.
IX.
We dismiss the claims against the Lucas County defendants for lack of standing. We affirm
the dismissal of the state law claim as barred by sovereign immunity, and we affirm the dismissal
of the remaining claims because the Initiative Authority Statutes do not violate the First,
Fourteenth, or Ninth Amendments.
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Case No. 20-3557, Beiersdorfer v. LaRose
CHAD A. READLER, Circuit Judge, concurring in part and concurring in the judgment.
I concur in full in all but Part V of the thoughtful majority opinion. Simply put, plaintiffs’ claims
are either nonjusticiable or falter badly on the merits.
As to Part V, while I concur in the majority opinion’s bottom-line conclusion that plaintiffs’
claims fail, we should not be employing Anderson-Burdick’s balancing analysis to apply
heightened scrutiny toward content-neutral laws governing the procedural mechanics for state
ballot initiatives (sometimes known as “gatekeeper provisions”). We did so just two years ago in
Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019). But our doing so, in retrospect, appears somewhat
reflexive. Following a more robust explanation as to why Ohio’s rules regarding ballot initiatives
are not prior restraints on political speech, the majority opinion in Schmitt summarily proceeded
to measure Ohio’s ballot initiative regime through the lens of the Anderson-Burdick framework.
Id. at 639. Despite the unique contours of the initiative process (as compared to more traditional
rules governing a candidate’s access to the ballot), the majority opinion justified its approach in
just one sentence—observing that “we generally evaluate First Amendment challenges to state
election regulations under the three-step Anderson-Burdick framework”—accompanied by just
one case citation (to a decision that did not concern a ballot initiative). Id. (citing Timmons v. Twin
City Area New Party, 520 U.S. 351, 358 (1997)). To be sure, we have previously referenced the
Anderson-Burdick framework in employing rational basis review to measure “minimally
burdensome and nondiscriminatory” ballot initiative regulations. Comm. to Impose Term Limits
on the Ohio Supreme Court & to Preclude Special Legal Status for Members & Employees of the
Ohio General Assembly v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018); see also Taxpayers
United for Assessment Cuts v. Austin, 994 F.2d 291, 297 (6th Cir. 1993). Without elaboration,
however, the Schmitt majority opinion treated the initiative rule at issue (both there and here) as a
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typical “state election regulation[]” subject to heightened scrutiny under a general Anderson-
Burdick balancing test. 933 F.3d at 639. In doing so, the majority opinion paid no heed to the
lengthy concurring opinion urging a different path. See id. at 642–51 (Bush, J., concurring in part
and in the judgment). And it failed to explain why we parted ways with the majority of our sister
circuits to consider the issue—the Second, Seventh, Eighth, Tenth, and D.C. Circuits among
them—all of whom reject Anderson-Burdick’s heightened scrutiny as the appropriate test for
challenges to ballot initiative laws, with only the Ninth Circuit having decided otherwise.
Compare Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 938 (7th Cir. 2018), Molinari v.
Bloomberg, 564 F.3d 587, 600 (2d Cir. 2009), Initiative & Referendum Inst. v. Walker, 450 F.3d
1082, 1099–1100 (10th Cir. 2006) (en banc), Marijuana Pol’y Project v. United States, 304 F.3d
82, 84 (D.C. Cir. 2002), and Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997), with
Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir. 2012); cf. Wirzburger v. Galvin, 412 F.3d 271, 277
(1st Cir. 2005) (applying intermediate scrutiny to gatekeeper provisions). Nonetheless, Anderson-
Burdick’s balancing framework is now the standard by which we assess a state’s regulation of its
initiative process. See Thompson v. DeWine, 959 F.3d 804, 808 n.2 (6th Cir. 2020) (per curiam)
(explaining that Schmitt’s adoption of Anderson-Burdick balancing binds future panels addressing
ballot initiative regulations absent en banc or Supreme Court intervention).
To my mind, applying a heightened standard of review in this setting is misguided.
Because content-neutral regulations governing state ballot initiatives do not touch upon the right
to vote, we should apply rational-basis scrutiny in this setting, not Anderson-Burdick’s general
balancing framework. I understand the Supreme Court’s Anderson-Burdick jurisprudence to rest
on the principle that the First and Fourteenth Amendments grant associational rights to individual
candidates and their supporters, which together protect access to the ballot. See Burdick v. Takushi,
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504 U.S. 428, 433 (1992); Anderson v. Celebrezze, 460 U.S. 780, 787 (1983). With that principle
in mind, the Supreme Court traditionally has deployed Anderson-Burdick in two categories of
cases: cases that concern ballot access for political candidates, see, e.g., Anderson, 460 U.S. 780(filing deadlines to appear on a presidential ballot); Burdick, 504 U.S. 428 (prohibition on write-
in voting); Timmons, 520 U.S. 351 (antifusion rule prohibiting candidates from appearing on a
ballot as a candidate for multiple parties); and, at Anderson-Burdick’s broadest application, cases
that concern voting access for individuals, see Crawford v. Marion Cnty. Election Bd., 553 U.S.
181 (2008) (plurality opinion) (voter-identification requirements).
Today’s case, however, fits neither category, making Anderson-Burdick a particularly poor
guide. This case does not concern ballot access for a particular candidate. Nor does it implicate
the right to vote. Whatever the contours of that right, nothing in the Constitution requires a state
to provide a right to legislate by ballot initiative. Taxpayers United, 994 F.2d at 295. Rather, the
initiative process is a “wholly state-created right,” leaving it subject to whatever
“nondiscriminatory, content-neutral limitations” a state wishes to place upon it. Id. at 297. Federal
courts accordingly “must be mindful of the character of initiatives and referenda. These
mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up
to the people of each State, acting in their sovereign capacity, to decide whether and how to permit
legislation by popular action.” John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J.,
concurring).
Constitutional considerations, including the First Amendment, typically will not stand in a
state’s way when it employs content-neutral procedural rules to structure its elections. As Judge
Bush explained in his well-reasoned concurring opinion in Schmitt, “[s]tates are free to fashion
rules of election mechanics that are content-neutral and do not discriminate against any particular
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point of view, including rules that affect the types of matters that may be subject to popular
initiatives, without running afoul of the First Amendment.” 933 F.3d at 643 (Bush, J., concurring
in part and in the judgment). To be sure, laws “that regulate or restrict the communicative conduct
of persons advocating a position” in an initiative implicate the First Amendment. Walker, 450
F.3d at 1099–1100. But laws (like those at issue here) that merely “determine the process by which
legislation is enacted” do not. Id.; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,
345 (1995) (differentiating measures that “control the mechanics of the electoral process” from the
“regulation of pure speech”). As opposed to one’s speech addressing an initiative’s merits, in other
words, the First Amendment has little to say about how initiative processes should be structured.
Even if one deems the interests at stake here as touching on some aspect of the right to
vote, utilizing Anderson-Burdick’s unmoored legal framework to assess a state’s ballot initiative
process is problematic. See generally Daunt v. Benson (Daunt I), 956 F.3d 396, 422–31 (6th Cir.
2020) (Readler, J., concurring in the judgment); Daunt v. Benson (Daunt II), 999 F.3d 299, 322–
33 (6th Cir. 2021) (Readler, J., concurring in the judgment). That framework directs judges to
pick two nebulous variables—“interests” and “burdens”—and then weigh them, with unbridled
discretion in doing so. Daunt II, 999 F.3d at 323–25. By employing such “standardless standards,”
Anderson-Burdick all but invites a judge’s personal policy preferences to inform her weighing and
balancing. Id.; Daunt I, 956 F.3d at 424 (Readler, J., concurring in the judgment). That we utilize
such an ill-defined framework in cases involving core ballot-access issues is worrisome enough.
That our circuit regularly exacerbates that concern by deploying Anderson-Burdick in new
frontiers far removed from ballot access is doubly concerning. Daunt I, 956 F.3d at 423 (Readler,
J., concurring in the judgment); Daunt II, 999 F.3d at 325–26 (Readler, J., concurring in the
judgment) (“Extending the Anderson-Burdick framework to any law that ostensibly touches on
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‘democratic principles’ or the ‘democratic system’ would license unrestrained judicial scrutiny of
an endless list of public laws . . . .”). Indeed, we stand alone in our vigorous embrace of Anderson-
Burdick. Daunt II, 999 F.3d at 329–30 (Readler, J., concurring in the judgment) (collecting cases
reflecting our outlier status among circuits in the application of Anderson-Burdick).
Supreme Court tea leaves suggest we have charted the wrong course, both in Schmitt and
elsewhere. Last year, the Supreme Court stayed a district court’s decision applying Anderson-
Burdick to declare unconstitutional Idaho’s signature requirement law for ballot initiatives. Little
v. Reclaim Idaho, 140 S. Ct. 2616 (2020); see also Clarno v. People Not Politicians Or., 141 S.
Ct. 206 (Aug. 11, 2020) (mem.) (summarily staying district court judgment on a similar question).
In issuing the stay, Chief Justice Roberts, writing for three other Justices, indicated that the
Supreme Court “is reasonably likely to grant certiorari to resolve the split presented by this case
on an important issue of election administration.” Little, 140 S. Ct. at 2616 (Roberts, C.J.,
concurring in the grant of stay). The Chief Justice described the question presented in Little as
“not a case about the right to vote, but about how items are placed on the ballot in the first place.
Nothing in the Constitution requires Idaho or any other State to provide for ballot initiatives.” Id.
at 2617. That conclusion stands in stark contrast with our own. See Schmitt, 933 F.3d at 639
(holding that Anderson-Burdick’s balancing framework, not rational-basis scrutiny, governs how
a state organizes its initiative process).
If Little is any indicator, the Supreme Court will soon take up the opportunity to resolve
the deep circuit split over the framework for measuring challenges to state ballot initiatives. When
it does, the Supreme Court would be wise to correct our error.
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