Libertarian Party v. Husted

[Cite as Libertarian Party v. Husted, 2017-Ohio-7737.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Libertarian Party of Ohio, :
Plaintiff-Appellant, :
No. 16AP-496
v. : (C.P.C. No. 16CV-554)
Jon Husted et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on September 21, 2017
On brief: Mark R. Brown; Mark G. Kafantaris, for
appellant. Argued: Mark R. Brown.
On brief: Michael DeWine, Attorney General, Halli
Brownfield Watson, and Bridget E. Coontz, for appellees.
Argued: Halli Brownfield Watson.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Libertarian Party of Ohio ("LPO"), appeals the June 7,
2016 decision and entry of the Franklin County Court of Common Pleas granting
summary judgment in favor of defendants-appellees, Jon Husted, Ohio Secretary of State,
and Mike DeWine, Ohio Attorney General ("appellees"), on LPO's claims that Am.Sub.
S.B. No. 193 ("S.B. No. 193") violated the Ohio Constitution. For the following reasons,
we affirm.
I. History
{¶ 2} The case before us is the latest in a long line of challenges to Ohio's attempts
to regulate its elections with regard to ballot access for independent candidates and minor
parties, including notable challenges brought by LPO. As recently noted by the Sixth
No. 16AP-496 2
Circuit Court of Appeals, LPO " 'has struggled to become and remain a ballot-qualified
party in Ohio through frequent litigation.' " Libertarian Party of Ohio v. Husted, 831
F.3d 382, 387 (6th Cir.2016), cert. denied, 137 S. Ct. 651 (2017), quoting Libertarian Party
of Ohio v. Husted, 751 F.3d 403, 405 (6th Cir.2014). Before addressing the procedural
history of the instant matter, we begin by briefly reviewing the history of LPO's challenges
to ballot access laws in Ohio.
A. Ballot Access Challenges Prior to S.B. No. 193
{¶ 3} In Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.2006), the
court reviewed LPO's challenge to two Ohio regulations under the First and Fourteenth
Amendments to the United States Constitution. Specifically at issue were regulations that
"(1) mandate[d] that parties not meeting the five percent vote threshold in the previous
election file a petition 120 days in advance of the primary election in order to qualify; and
(2) require[d] that parties participate in the March primary in order to appear on the
general election ballot." Id. at 586. The court found the combination of requirements and
their resultant impact on LPO's ability to appear on the general election ballot severely
burdened LPO's rights. In so finding, the court observed that LPO "needed to find more
than thirty thousand Ohio residents to sign its petition to appear on the 2004 ballot more
than one year in advance of the election," a requirement that forced "minor political
parties to recruit supporters at a time when the major party candidates are not known and
when the populace is not politically energized." Id. The court also noted 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." Id. at 594. The court concluded that Ohio's interests in its primary and
early-filing requirement were not sufficient to outweigh the severe burden on LPO's
rights.
{¶ 4} Following the decision in Blackwell, "the Ohio General Assembly [took] no
action to establish ballot access standards for minor political parties, leaving no lawful,
statutory criteria to be followed by the Secretary of State or the various Boards of Election
of each county." Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006, 1009
(S.D.Ohio 2008). In the absence of legislation, in 2007, the Ohio Secretary of State issued
a directive that maintained Ohio's requirement that minor parties nominate their
No. 16AP-496 3
candidates by primary election, but altered 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 2006 general election," and to "file nominating petitions 100 days
before the primary." Id. at 1010.
{¶ 5} LPO challenged the directive in federal court, and the court granted a
preliminary injunction preventing the directive from going into effect. The court found
that "only the legislative branch has the authority, under Articles I and II of the United
States Constitution, to prescribe the manner of electing candidates for federal office." Id.
at 1011. Furthermore, the court found that "[e]ven assuming that [the Directive] was a
valid exercise of [the Ohio Secretary of State's] power to regulate elections, the Directive
itself imposes unconstitutional burdens on First Amendment rights." Id. at 1013. As a
result of the invalidity of the directive and the General Assembly's failure to set forth
applicable election regulations, the court ordered LPO be placed on the 2008 general
election ballot in Ohio.
{¶ 6} Following the decision in Brunner, the Ohio Secretary of State entered into
a consent decree agreeing not to enforce the interim requirements, and adopted
subsequent directives granting LPO continued ballot access through 2011 and beyond.
Libertarian Party of Ohio v. Husted, S.D.Ohio No. 2:11-CV-722 (Sept. 7, 2011), vacated
as moot, 497 Fed.Appx. 581 (6th Cir.2012).
{¶ 7} In 2011, the General Assembly enacted Am.Sub.H.B. No. 194 ("H.B. No.
194"), which in part, amended ballot access requirements for political parties.
Specifically, H.B. No. 194 required minor parties file petitions with the requisite number
of signatures 90 days before the primary, while maintaining the number of signatures
required. LPO again filed a challenge in federal court. Finding that H.B. No. 194 imposed
severe burdens on LPO's rights without a sufficiently weighty state interest, the court
granted a preliminary injunction preventing H.B. No. 194 from taking effect. Following
the issuance of the injunction, the General Assembly repealed H.B. No. 194. Thereafter,
in 2013, the Ohio Secretary of State issued an additional directive 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, S.D.Ohio
No. 2:13-cv-953 (Jan. 7, 2014).
No. 16AP-496 4
B. Enactment of S.B. No. 193 and Subsequent Challenges
{¶ 8} On November 6, 2013, the General Assembly enacted S.B. No. 193, which is
the subject of this appeal and will be discussed further below. The law had an effective
date of February 5, 2014.
1. Federal Proceedings
{¶ 9} Prior to the effective date of S.B. No. 193, LPO and three persons involved
with LPO, filed a complaint and a motion for a preliminary injunction against the Ohio
Secretary of State in federal district court. The court granted LPO's first motion for a
preliminary injunction. On November 8, 2013, LPO filed an amended complaint
challenging the restrictions in S.B. No. 193 on ballot access and asserting in part that S.B.
No. 193 violated Article V, Section 7 of the Ohio Constitution. On January 7, 2014, the
court granted LPO's second motion for a preliminary injunction, preventing S.B. No. 193
from taking effect for the 2014 election. However, the court declined to address the
merits of LPO's claims under the Ohio Constitution at that time.
{¶ 10} On March 7, 2014, LPO filed a second amended complaint and third motion
for preliminary injunction in the federal district court asserting that the Ohio Secretary of
State violated its First Amendment rights by disqualifying its nominating petitions,
preventing its candidates from appearing on the Ohio primary ballot in May 2014. The
Secretary of State asserted that LPO's nominating petitions were disqualified because the
paid circulators who obtained signatures for LPO's nominating petitions failed to disclose
the name and address of the entity that paid them in the employer information box on the
petitions as required by R.C. 3501.38(E)(1). The district court denied LPO's third motion,
finding that R.C. 3501.38(E)(1) placed only a minimal burden on LPO's First Amendment
rights and the requirements served a significant interest in detecting and deterring fraud
in the signature gathering process. Libertarian Party of Ohio v. Husted, S.D.Ohio No.
2:13-cv-953 (Mar. 19, 2014). On appeal, on May 1, 2014, the Sixth Circuit affirmed the
denial of a preliminary injunction. Libertarian Party of Ohio v. Husted, 751 F.3d at 405.
{¶ 11} On September 11, 2014, LPO filed a third amended complaint, asserting
among other claims that the Ohio Secretary of State selectively enforced the employer-
disclosure requirements of R.C. 3501.39(E)(1) against LPO in violation of the First and
Fourteenth Amendments. On September 15, 2014, LPO filed a fourth motion for a
No. 16AP-496 5
preliminary injunction and motion for a temporary restraining order, seeking to place its
candidates' names on the ballot for the 2014 general election. The federal district court
denied the request for a temporary restraining order and the fourth motion for a
preliminary injunction.
{¶ 12} Following denial of the fourth preliminary injunction, the parties filed
motions and cross-motions for summary judgment regarding LPO's claims that S.B. No.
193 violated the Ohio Constitution and the federal Equal Protection Clause. The federal
district court found that S.B. No. 193 did not violate the federal Equal Protection Clause,
both on its face and as applied. The court also dismissed LPO's claim that S.B. No. 193
violated the Ohio Constitution as barred by the Eleventh Amendment. On May 20, 2016,
the court granted summary judgment in favor of the defendants on LPO's selective
enforcement claim. Libertarian Party of Ohio v. Husted, 188 F. Supp. 3d 665 (S.D.Ohio
2016).
{¶ 13} On appeal, LPO asserted that: (1) the defendants selectively enforced R.C.
3501.38(E)(1) against LPO in violation of the First and Fourteenth Amendments, and
(2) S.B. No. 193 violated the federal Equal Protection Clause by denying them the
opportunity to participate in the primary election process. The court concluded that the
district court did not err in granting summary judgment in favor of the defendants on
LPO's federal constitutional challenges. Finally, LPO asserted that the district court erred
in dismissing its state constitutional claim under Article V, Section 7 of the Ohio
Constitution. The court found that LPO was precluded from pursuing its claim under
Article V, Section 7 because, as detailed below, the Franklin County Court of Common
Pleas reached a final judgment on such claim. Libertarian Party of Ohio v. Husted, 831
F.3d at 406. Therefore, the court affirmed the granting of summary judgment in favor of
the defendants. Id.
2. Ohio Proceedings
{¶ 14} On January 19, 2016, LPO filed in the trial court a declaratory and
injunctive action challenging the constitutionality of S.B. No. 193 under Article V,
Section 7, and Article I, Section 2 of the Ohio Constitution. On the same day, LPO filed a
motion for a temporary restraining order and preliminary injunction against enforcement
of S.B. No. 193. On January 27, 2016, appellees filed a memorandum in opposition to
No. 16AP-496 6
LPO's motion for a temporary restraining order and preliminary injunction. On
February 1, 2016, LPO filed a reply. On February 2, 2016, the trial court filed an entry
denying LPO's motion for a temporary restraining order and setting a hearing on LPO's
request for a preliminary injunction.
{¶ 15} On February 19, 2016, appellees filed an answer and a motion for summary
judgment. On March 2, 2016, LPO filed a response to appellees' motion for summary
judgment and a motion under Civ.R. 56(F) to continue appellees' motion for summary
judgment. On March 9, 2016, appellees filed a memo contra LPO's Civ.R. 56(F) motion
and a reply in support of their motion for summary judgment. On March 14, 2016, LPO
filed a reply in support of its motion for a continuance pursuant to Civ.R. 56(F).
{¶ 16} On March 17, 2016, appellees filed a motion to strike LPO's March 14, 2016
reply in support of its motion for a continuance pursuant to Civ.R. 56(F). On the same
day, LPO filed a motion for leave to cure its reply in excess of seven pages and a
memorandum in opposition to appellees' motion to strike. On April 5, 2016, the trial
court granted LPO leave to cure its reply in excess of seven pages.
{¶ 17} On April 18, 2016, the trial court filed an entry denying LPO's motion under
Civ.R. 56(F) for a continuance. On June 7, 2016, the trial court filed a decision and entry
granting summary judgment in favor of appellees and rendering moot LPO's motion for a
preliminary injunction. On the same day, LPO filed a motion for new trial pursuant to
Civ.R. 59 and a motion to stay judgment pursuant to Civ.R. 62.1 On June 21, 2016,
appellees filed a memorandum in opposition to LPO's motion for new trial and motion to
stay judgment. On June 23, 2016, LPO filed a reply in support of its motion for a new
trial.
{¶ 18} On July 6, 2016, LPO filed a notice of appeal to this court from the June 7,
2016 judgment of the trial court granting summary judgment. On July 7, 2016, the trial
court ordered the matter stayed during the pendency of the appeal. On August 5, 2016,
this court remanded the matter to the trial court for the limited purpose of allowing the
trial court to resolve the pending Civ.R. 59 motion for new trial.
1We note that although the title of LPO's motion referred to Civ.R. 60, the memorandum in support of the
motion cited Civ.R. 62(A).
No. 16AP-496 7
{¶ 19} On August 8, 2016, LPO filed a notice of supplemental authority. On
August 10, 2016, appellees filed a motion to strike LPO's August 8, 2016 notice of
supplemental authority. On the same day, LPO filed a motion for leave to file a notice of
supplemental authority and a memorandum in opposition to appellees' August 10, 2016
motion to strike. On August 15, 2016, appellees filed a memorandum in opposition to
LPO's motion for leave to file notice of supplemental authority. On September 1, 2016,
the trial court filed a decision and entry denying LPO's motion for a new trial.
II. Assignments of Error
{¶ 20} LPO appeals and assigns the following six assignments of error for our
review:
[I.] The Court of Common Pleas erred by concluding that
S.B. [No.] 193, Ohio's new ballot access denying to new
political parties their previous right to hold primaries, does
not violate Article V, § 7 of Ohio's Constitution.
[II.] The Court of Common Pleas erred by concluding that
S.B. [No.] 193's violation of Article V, § 7 of Ohio's
Constitution presents a political question and is not
justiciable.
[III.] The Court of Common Pleas erred by concluding that
Ohio's guarantee of equal protection of the laws, located in
Article I, § 2 of the Ohio Constitution, is limited by federal
precedents interpreting the federal Equal Protection Clause
found in the Fourteenth Amendment to the United States
Constitution.
[IV.] The Court of Common Pleas erred by not applying the
more-protective constitutional analysis prescribed by the
Ohio Supreme Court under Article I, § 2 of Ohio's
Constitution to Appellant's claim that S.B. [No.] 193 violates
equal protection of the law.
[V.] The Court of Common Pleas erred in concluding that
S.B. [No.] 193 is constitutional under federal Equal
Protection Clause precedents and the Anderson/Burdick
analysis, which establish a floor for Ohio's constitutional
guarantee of equal protection of the law.
[VI.] The Court of Common Pleas erred by refusing to allow
Appellant to conduct discovery in order to properly respond
to Appellees' motion for summary judgment.
No. 16AP-496 8
III. Constitutionality of S.B. N0. 193
{¶ 21} In its first, second, third, fourth, and fifth assignments of error, LPO asserts
that S.B. No. 193 violates Article V, Section 7, and Article I, Section 2 of the Ohio
Constitution.
A. Applicable Law
{¶ 22} We begin by reviewing the statutes relevant to the instant matter. Prior to
the enactment of S.B. No. 193, R.C. 3501.01(F) provided:
"Political party" means any group of voters meeting the
requirements set forth in section 3517.01 of the Revised Code
for the formation and existence of a political party.
(1) "Major political party" means any political party organized
under the laws of this state whose candidate for governor or
nominees for presidential electors received no less than
twenty per cent of the total vote cast for such office at the
most recent regular state election.
(2) "Intermediate political party" means any political party
organized under the laws of this state whose candidate for
governor or nominees for presidential electors received less
than twenty per cent but not less than ten per cent of the total
vote cast for such office at the most recent regular state
election.
(3) "Minor political party" means any political party organized
under the laws of this state whose candidate for governor or
nominees for presidential electors received less than ten per
cent but not less than five per cent of the total vote cast for
such office at the most recent regular state election or which
has filed with the secretary of state, subsequent to any election
in which it received less than five per cent of such vote, a
petition signed by qualified electors equal in number to at
least one per cent of the total vote cast for such office in the
last preceding regular state election, except that a newly
formed political party shall be known as a minor political
party until the time of the first election for governor or
president which occurs not less than twelve months
subsequent to the formation of such party, after which
election the status of such party shall be determined by the
vote for the office of governor or president.
{¶ 23} As amended by S.B. No. 193, R.C. 3501.01(F) now provides:
No. 16AP-496 9
"Political party" means any group of voters meeting the
requirements set forth in section 3517.01 of the Revised Code
for the formation and existence of a political party.
(1) "Major political party" means any political party organized
under the laws of this state whose candidate for governor or
nominees for presidential electors received not less than
twenty per cent of the total vote cast for such office at the
most recent regular state election.
(2) "Minor political party" means any political party organized
under the laws of this state that meets either of the following
requirements:
(a) Except as otherwise provided in this division, the political
party's candidate for governor or nominees for presidential
electors received less than twenty per cent but not less than
three per cent of the total vote cast for such office at the most
recent regular state election. A political party that meets the
requirements of this division remains a political party for a
period of four years after meeting those requirements.
(b) The political party has filed with the secretary of state,
subsequent to its failure to meet the requirements of division
(F)(2)(a) of this section, a petition that meets the
requirements of section 3517.01 of the Revised Code.
A newly formed political party shall be known as a minor
political party until the time of the first election for governor
or president which occurs not less than twelve months
subsequent to the formation of such party, after which
election the status of such party shall be determined by the
vote for the office of governor or president.
{¶ 24} Prior to the enactment of S.B. No. 193, R.C. 3517.01 provided, in pertinent
part:
(A)
(1) A political party within the meaning of Title XXXV of the
Revised Code is any group of voters that, at the most recent
regular state election, polled for its candidate for governor in
the state or nominees for presidential electors at least five per
cent of the entire vote cast for that office or that filed with the
secretary of state, subsequent to any election in which it
received less than five per cent of that vote, a petition signed
by qualified electors equal in number to at least one per cent
of the total vote for governor or nominees for presidential
electors at the most recent election, declaring their intention
of organizing a political party, the name of which shall be
stated in the declaration, and of participating in the
No. 16AP-496 10
succeeding primary election, held in even-numbered years,
that occurs more than one hundred twenty days after the date
of filing. No such group of electors shall assume a name or
designation that is similar, in the opinion of the secretary of
state, to that of an existing political party as to confuse or
mislead the voters at an election. If any political party fails to
cast five per cent of the total vote cast at an election for the
office of governor or president, it shall cease to be a political
party.
(2) A campaign committee shall be legally liable for any debts,
contracts, or expenditures incurred or executed in its name.
{¶ 25} As amended by S.B. No. 193, R.C. 3517.01 now provides in pertinent part:
(A)
(1) A political party within the meaning of Title XXXV of the
Revised Code is any group of voters that meets either of the
following requirements:
(a) Except as otherwise provided in this division, at the most
recent regular state election, the group polled for its candidate
for governor in the state or nominees for presidential electors
at least three per cent of the entire vote cast for that office. A
group that meets the requirements of this division remains a
political party for a period of four years after meeting those
requirements.
(b) The group filed with the secretary of state, subsequent to
its failure to meet the requirements of division (A)(1)(a) of this
section, a party formation petition that meets all of the
following requirements:
(i) The petition is signed by qualified electors equal in number
to at least one per cent of the total vote for governor or
nominees for presidential electors at the most recent election
for such office.
(ii) The petition is signed by not fewer than five hundred
qualified electors from each of at least a minimum of one-half
of the congressional districts in this state. If an odd number of
congressional districts exists in this state, the number of
districts that results from dividing the number of
congressional districts by two shall be rounded up to the next
whole number.
(iii) The petition declares the petitioners' intention of
organizing a political party, the name of which shall be stated
in the declaration, and of participating in the succeeding
general election, held in even-numbered years, that occurs
No. 16AP-496 11
more than one hundred twenty-five days after the date of
filing.
(iv) The petition designates a committee of not less than three
nor more than five individuals of the petitioners, who shall
represent the petitioners in all matters relating to the petition.
Notice of all matters or proceedings pertaining to the petition
may be served on the committee, or any of them, either
personally or by registered mail, or by leaving such notice at
the usual place of residence of each of them.
{¶ 26} Thus, prior to the enactment of S.B. No. 193, Ohio had three categories of
political parties: major, intermediate, and minor. Following the enactment of S.B. No.
193, two categories of political party were created: major and minor. Minor political
parties are defined as those parties which meet one of the following requirements: (1) the
party's candidate for governor or nominees for presidential electors received not less than
3 percent but less than 20 percent of the total vote at the most recent regular election for
such office, in which case such party would remain a recognized minor political party for a
period of 4 years, or (2) the party filed a party formation petition meeting the
requirements of R.C. 3517.01, in which case it would remain a recognized minor political
party until the next election for governor or president occurring not less than 12 months
following the formation of the party. In order for a newly formed political party to qualify
as a minor party under R.C. 3501.01(F)(2)(b), the petition must meet the following three
requirements under R.C. 3517.01(A)(1)(b): (1) the petition must be signed by qualified
electors equal to at least 1 percent of the total vote for nominees for presidential electors
or governor at the most recent election for such office, (2) the petition must be signed by
500 qualified electors from each of at least half of the congressional districts in the state,
(3) the petition must declare the intent of forming the party named in the petition and of
participating in the next general election held in even-numbered years that occurs more
than 125 days after the date of filing, and (4) the petition must designate a committee of 3
to 5 petitioners to represent the petitioners.
{¶ 27} R.C. 3501.01(E), which was unchanged by S.B. No. 193, provides:
(1) "Primary" or "primary election" means an election held for
the purpose of nominating persons as candidates of political
parties for election to offices, and for the purpose of electing
persons as members of the controlling committees of political
parties and as delegates and alternates to the conventions of
No. 16AP-496 12
political parties. Primary elections shall be held on the first
Tuesday after the first Monday in May of each year except in
years in which a presidential primary election is held.
(2) "Presidential primary election" means a primary election
as defined by division (E)(1) of this section at which an
election is held for the purpose of choosing delegates and
alternates to the national conventions of the major political
parties pursuant to section 3513.12 of the Revised Code.
Unless otherwise specified, presidential primary elections are
included in references to primary elections. In years in which
a presidential primary election is held, all primary elections
shall be held on the first Tuesday after the first Monday in
March except as otherwise authorized by a municipal or
county charter.
{¶ 28} Prior to the enactment of S.B. No. 193, R.C. 3517.012 provided:
When a petition meeting the requirements of section 3517.01
of the Revised Code declaring the intention to organize a
political party is filed with the secretary of state, the new party
comes into legal existence on the date of filing and is entitled
to hold a primary election as set out in section 3513.01 of the
Revised Code, at the primary election, held in even-numbered
years that occurs more than one hundred twenty days after
the date of filing.
{¶ 29} As amended by S.B. No. 193, R.C. 3517.012 now provides:
(A)
(1) When a party formation petition meeting the requirements
of section 3517.01 of the Revised Code declaring the intention
to organize a political party is filed with the secretary of state,
the new party comes into legal existence on the date of filing
and is entitled to nominate candidates to appear on the ballot
at the general election held in even-numbered years that
occurs more than one hundred twenty-five days after the date
of filing.
(2)
(a) Upon receiving a party formation petition filed under
division (A)(1) of this section, the secretary of state shall
promptly transmit to each board of elections the separate
petition papers that purport to contain signatures of electors
of that board's county.
(b) Not later than the one hundred eighteenth day before the
day of the general election, each board shall examine and
determine the sufficiency of the signatures on the petition
No. 16AP-496 13
papers and shall return them to the secretary of state, together
with the board's certification of its determination as to the
validity or invalidity of the signatures on the petition.
(c) Any qualified elector may file a written protest against the
petition with the secretary of state not later than the one
hundred fourteenth day before the day of the general election.
Any such protest shall be resolved in the manner specified
under section 3501.39 of the Revised Code.
(d) Not later than the ninety-fifth day before the day of the
general election, the secretary of state shall determine
whether the party formation petition is sufficient and shall
notify the committee designated in the petition of that
determination.
(B)
(1) Not later than one hundred ten days before the day of that
general election and not earlier than the day the applicable
party formation petition is filed, each candidate or pair of
joint candidates wishing to appear on the ballot at the general
election as the nominee or nominees of the party that filed the
party formation petition shall file a nominating petition, on a
form prescribed by the secretary of state, that includes the
name of the political party that submitted the party formation
petition. Except as otherwise provided in this section and
sections 3505.03, 3505.08, 3506.11, 3513.31, 3513.311, and
3513.312 of the Revised Code, the provisions of the Revised
Code concerning independent candidates who file nominating
petitions apply to candidates who file nominating petitions
under this section.
(2)
(a) If the candidacy is to be submitted to electors throughout
the entire state, the nominating petition, including a petition
for joint candidates for the offices of governor and lieutenant
governor, shall 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.
(b) Except as otherwise provided in this division, if the
candidacy is to be submitted only to electors within a district,
political subdivision, or portion thereof, the nominating
petition shall be signed by not less than five 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.
No. 16AP-496 14
(3)
(a) Each board of elections that is responsible to verify
signatures on the nominating petition shall examine and
determine the sufficiency of those signatures not later than
the one hundred fifth day before the day of the general
election and shall be resolved as specified in that section.
(b) Written protests against the petition may be filed in the
manner specified under section 3513.263 of the Revised Code
not later than the one hundredth day before the general
election and shall be resolved as specified in that section.
(c) Not later than the ninety-fifth day before the day of the
general election, the secretary of state or the board of
elections, as applicable, shall determine whether the
nominating petition is sufficient and shall notify the candidate
and the committee designated in the party formation petition
of that determination.
(C)
(1) After being notified that the political party has submitted a
sufficient party formation petition under division (A) of this
section, the committee designated in a party formation
petition shall, not later than the seventy-fifth day before the
day of the general election, certify to the secretary of state a
slate of candidates consisting of candidates or joint candidates
who submitted sufficient nominating petitions under division
(B) of this section. The slate certifying the candidates shall be
on a form prescribed by the secretary of state and signed by all
of the individuals of the committee designated in the party
formation petition. In no event shall the slate of candidates
include more than one candidate for any public office or more
than one set of joint candidates for the offices of governor and
lieutenant governor. The names of the candidates or joint
candidates so certified shall appear on the ballot at the general
election as that party's nominees for those offices. For
purposes of this division, "joint candidates" means the joint
candidates for the offices of governor and lieutenant governor.
(2) If a candidate's nominating petition is insufficient or if the
committee does not certify the candidate's name under
division (C)(1) of this section, the candidate shall not appear
on the ballot in the general election.
(3) If a party formation petition is insufficient, no candidate
shall appear on the ballot in the general election as that
political party's nominee, regardless of whether any
candidate's nominating petition is sufficient.
No. 16AP-496 15
{¶ 30} Thus, prior to S.B. No. 193, a newly formed political party was able to
participate in the primary election process. However, as amended by S.B. No. 193,
candidates of a newly formed political party are no longer able to participate in the
primary election process. Instead, candidates of a newly formed political party must
submit: (1) if the candidacy is for a statewide office, a nominating petition signed by at
least 50 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 2 calendar
years, or (2) if the candidacy is to be submitted only to electors within a district, political
subdivision, or portion thereof, a nominating petition signed by not less than 5 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 2 calendar years. Then, the
committee designated in the party formation petition must certify a slate of candidates
who submitted sufficient nominating petitions.
B. Standard of Review
{¶ 31} When reviewing the constitutionality of statutes, we are guided by the
presumption that enactments of the General Assembly are constitutional. State v. Mole,
149 Ohio St. 3d 215, 2016-Ohio-5124, ¶ 10. See Haight v. Minchak, 146 Ohio St. 3d 481,
2016-Ohio-1053, ¶ 11, quoting State ex rel. Jackman v. Cuyahoga Cty. Court of Common
Pleas, 9 Ohio St. 2d 159, 162 (1967) (" '[T]he state Constitution is primarily a limitation on
legislative power of the General Assembly. It follows that the General Assembly may pass
any law unless it is specifically prohibited by the state or federal Constitutions.' ").
(Emphasis sic.) The party challenging the constitutionality of the statute bears the burden
of demonstrating beyond a reasonable doubt that the statute and the constitutional
provisions are clearly incompatible. Haight at ¶ 11, citing Univ. Hts. v. O'Leary, 68 Ohio
St.2d 130, 135 (1981). In determining whether a statute conflicts with a constitutional
provision, courts must liberally construe the statute "to save [it] from constitutional
infirmity." Id., citing Desenco, Inc. v. Akron, 84 Ohio St. 3d 535, 538 (1999).
Nevertheless, where the incompatibility between a statute and a constitutional provision
is clear, a court has a duty to declare the statute unconstitutional. Mole at ¶ 11, citing
Cincinnati City School Dist. Bd. of Edn. v. Walter, 58 Ohio St. 2d 368, 383 (1979).
No. 16AP-496 16
C. Article V, Section 7 of the Ohio Constitution
{¶ 32} We next address LPO's arguments in its first and second assignments of
error that S.B. No. 193 violates Article V, Section 7 of the Ohio Constitution. Article V,
Section 7 provides:
All nominations for elective state, district, county and
municipal offices shall be made at direct primary elections or
by petition as provided by law, and provision shall be made by
law for a preferential vote for United States senator; but direct
primaries shall not be held for the nomination of township
officers or for the officers of municipalities of less than two
thousand population, unless petitioned for by a majority of
the electors of such township or municipality. All delegates
from this state to the national conventions of political parties
shall be chosen by direct vote of the electors in a manner
provided by law. Each candidate for such delegate shall state
his first and second choices for the presidency, but the name
of no candidate for the presidency shall be so used without his
written authority.
{¶ 33} LPO contends that Article V, Section 7 only permits the nomination of party
candidates by primary election, and, therefore, S.B. No. 193 violates such provision
because it provides for the nomination of party candidates by both primary election and
petition. Appellees respond that Article V, Section 7 of the Ohio Constitution cannot serve
as a basis for LPO's claim because it is not a self-executing source of independent
protection. "A constitutional provision is self-executing when it is complete in itself and
becomes operative without the aid of supplemental or enabling legislation." State v.
Williams, 88 Ohio St. 3d 513, 521 (2000), citing In re Protest Filed by Citizens for the
Merit Selection of Judges, Inc., 49 Ohio St. 3d 102, 104 (1990). Thus, "the words of a
constitutional provision must be sufficiently precise in order to provide clear guidance to
courts with respect to their application if the provision is to be deemed self-executing."
Williams at 521.
{¶ 34} Here, Article V, Section 7 explicitly provides for two methods for "[a]ll
nominations for elective state, district, county and municipal offices" to be made:
(1) "direct primary elections," or (2) "by petition as provided by law." However, it does
not provide the method by which petitions are to be submitted or approved. Indeed, by
stating that petitions are to be made "as provided by law," the provision explicitly reserves
the proper construction of such petitions to subsequent enactments by the General
No. 16AP-496 17
Assembly. Although the plain language of this provision suggests that it is not self-
executing because nominations by petition cannot be operative without the aid of
legislation, we need not so decide in order to resolve LPO's claim.
{¶ 35} Indeed, assuming, arguendo, that Article V, Section 7 is self-executing,
LPO's contention that S.B. No. 193 violates the provision nevertheless fails. In support of
its contention that Article V, Section 7 permits the nomination of candidates by primary
election alone, LPO points to the Sixth Circuit's decision in Blackwell in which the court
stated that Ohio's "Constitution requires that all political parties, including minor parties,
nominate their candidates at primary elections." Blackwell at 582.
{¶ 36} As the trial court correctly observed, at the time the Sixth Circuit decided
Blackwell there was no provision in Ohio statutory law allowing for a nomination by
petition for a candidate affiliated with a political party. However, as we have previously
stated, the plain language of Article V, Section 7 provides for two methods for
nominations to be made: by direct primary election or nomination by petition. The fact
that the General Assembly did not pass legislation enabling nomination by petition for
party candidates as provided by Article V, Section 7 until the enactment of S.B. No. 193
does not deprive such provision of its force and meaning. State ex rel. Carmean v. Bd. of
Edn., 170 Ohio St. 415, 422 (1960) ("It is axiomatic in statutory construction that words
are not inserted into an act without some purpose."); State ex rel. Maurer v. Sheward, 71
Ohio St. 3d 513, 521 (1994) (stating "if possible we must give meaning to every word in a
provision"); Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St. 3d 493, 2008-Ohio-
6323, ¶ 16. Furthermore, we are not bound by a federal court's statement in interpreting
the Ohio Constitution. Mole at ¶ 21, citing Doe v. State, 189 P.3d 999, 1007 (Alaska 2008)
("Federal opinions do not control our independent analyses in interpreting the Ohio
Constitution, even when we look to federal precedent for guidance."); Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) ("As a number of recent State Supreme
Court decisions demonstrate, a state court is entirely free to read its own State's
constitution more broadly than this Court reads the Federal Constitution, or to reject the
mode of analysis used by this Court in favor of a different analysis of its corresponding
constitutional guarantee."). Therefore, we find LPO's contentions regarding Blackwell to
be without merit.
No. 16AP-496 18
{¶ 37} Next, LPO points to the Ohio Supreme Court's decision in State ex rel.
Gottlieb v. Sulligan, 175 Ohio St. 238 (1963), to support its position that Article V,
Section 7 does not allow for nomination of candidates by petition. Specifically, LPO
contends that Sulligan stands for the proposition that Article V, Section 7 requires
"political parties [to] select their candidates through direct primaries." (LPO's Brief at
19.)
{¶ 38} In Sulligan, the court examined the question of "whether a person selected
as a party candidate for an office in a primary election who withdraws his candidacy for
that office is eligible for selection as a party candidate by the party committee to fill a
vacancy in the nomination for another office created by the withdrawal of the candidate
originally nominated." Id. at 239. The court found that "Section 7, Article V of the Ohio
Constitution, provides that all nominations must be by direct primary or by petition." Id.
at 241. Furthermore, the court stated that "[a]n examination of the election laws indicates
that the phrase, 'nominating petition,' has a specific meaning." Id. at 240. In determining
the meaning of the phrase "nominating petition," the court explained:
Under our statutes the candidates for public office may gain
nomination by two methods: One, by filing a declaration of
candidacy accompanied by a petition entitling one to be a
participant in the direct party primary wherein candidates
from all political parties seek their nomination; or, two, by
what is designated as a nominating petition, the method by
which the independent candidate may seek his place on the
elective ballot. In other words, the nominating petition is the
method by which the independent candidate seeks his place
on the elective ballot.
(Emphasis added.) Id. at 240-41, citing former R.C. 3513.252.
{¶ 39} Thus, the court's interpretation of the phrase "nominating petition" in
Sulligan was based upon then-existing statutory provisions, not the constitutional
framework of Article V, Section 7. Because Article V, Section 7 provides that "[a]ll
nominations * * * shall be made at direct primary elections or by petition as provided by
law," the General Assembly possesses constitutional authority to legislate the scope of a
nominating petition. (Emphasis added.) Therefore, Article V, Section 7 does not prohibit
the General Assembly from enacting statutes providing for nomination by petition for
candidates regardless of whether the candidate is affiliated with a political party. See
No. 16AP-496 19
Sulligan at 242, quoting Mullholand v. Batt, 164 Ohio St. 362 (1955), paragraph one of
the syllabus (" 'Under the provisions of Section 27 of Article II of the Constitution of Ohio
relating to the legislative powers of the General Assembly, the election and appointment
of all officers, and the filling of all vacancies, not otherwise provided for by such
Constitution or the Constitution of the United States, shall be made in such manner as
may be directed by law.' "). Accordingly, we do not find LPO's contentions regarding
Sulligan to be persuasive.
{¶ 40} Finally, LPO states that the adoption of S.B. No. 193 "marks the first
occasion since Article V, [Section] 7 of Ohio's Constitution was adopted and implemented
that Ohio law has had any procedure for any qualified political parties to nominate
candidates for federal, state and local office without primaries." (LPO's Brief at 27.) For
the foregoing reasons, we are not persuaded by LPO's contention that the history of the
nomination process in Ohio is controlling over the express terms of the constitutional
provision. Therefore, assuming, arguendo, that Article V, Section 7 is self-executing, we
conclude that LPO has failed to overcome the presumption of constitutionality by
demonstrating beyond a reasonable doubt that the challenged provisions of S.B. No. 193
violate Article V, Section 7 of the Ohio Constitution. Mole at ¶ 10-11.
{¶ 41} Accordingly, we overrule LPO's first assignment of error. Having reached
the merits of LPO's first assignment of error in finding that S.B. No. 193 does not violate
Article V, Section 7 of the Ohio Constitution, we need not address LPO's contentions
regarding whether Article V, Section 7 is justiciable. Accordingly, LPO's second
assignment of error is rendered moot.
D. Article I, Section 2 of the Ohio Constitution
{¶ 42} In its third, fourth, and fifth assignments of error, LPO contends that S.B.
No. 193 violates the guarantee of equal protection provided in Article I, Section 2 of the
Ohio Constitution. Specifically, LPO contends the trial court erred in its analysis of LPO's
claim under Ohio's constitutional guarantee of equal protection by applying federal
precedent interpreting the Equal Protection Clause in the Fourteenth Amendment to the
United States Constitution.
No. 16AP-496 20
1. Constitutional Protections
{¶ 43} Article I, Section 2 provides in pertinent part: "All political power is
inherent in the people. Government is instituted for their equal protection and benefit."
The Fourteenth Amendment, Section 1 to the United States Constitution provides in
pertinent part that "[n]o State shall * * * deny to any person within its jurisdiction the
equal protection of the laws."
{¶ 44} "An equal-protection analysis of any law centers upon the law's
classification of persons and whether the classification relates to a legitimate government
interest." Mole at ¶ 24, citing State ex rel. Doersam v. Indus. Comm., 45 Ohio St. 3d 115,
119-20 (1989). The federal guarantee of equal protection does not deny the government
the power to treat different classes of persons in different ways, but rather denies the
power to provide that "different treatment be accorded to persons placed by a statute into
different classes on the basis of criteria wholly unrelated to the objective of that statute."
(Quotations and citation omitted.) Johnson v. Robison, 415 U.S. 361, 374 (1974). See
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (stating that the Equal
Protection Clause is "essentially a direction that all persons similarly situated should be
treated alike").
{¶ 45} Historically, Ohio courts have construed and analyzed the Equal Protection
Clauses of the United States Constitution and the Ohio Constitution identically. Mole at
¶ 14, quoting Am. Assn. of Univ. Professors v. Cent. State Univ., 87 Ohio St. 3d 55, 60
(1999) (noting that in prior analyses the court had held that " 'the federal and Ohio Equal
Protection Clauses are to be construed and analyzed identically' "). However, recently, the
Ohio Supreme Court has reaffirmed its holding that "the Ohio Constitution is a document
of independent force." Id., citing Arnold v. Cleveland, 67 Ohio St. 3d 35, 42 (1993). See
State v. Robinette, 80 Ohio St. 3d 234, 238 (1997) (recognizing that states may "rely on
their own constitutions to provide broader protection for individual rights, independent of
protections afforded by the United States Constitution"). Thus, the Ohio Supreme Court
has stated that interpretation of the Ohio Constitution is "not confined by the federal
courts' interpretations of similar provisions in the federal Constitution." Mole at ¶ 21.
Instead, Ohio courts "can and should borrow from well-reasoned and persuasive
precedent from other states and the federal courts," but also "may, and should, consider
No. 16AP-496 21
Ohio's conditions and traditions in interpreting our own state's constitutional guarantees
* * * particularly * * * whenever the United States Supreme Court's decisions dilute or
underenforce important individual rights and protections." Id. at ¶ 22. In accordance
with these principles, the Ohio Supreme Court has found that the guarantee of equal
protection in Article I, Section 2 of the Ohio Constitution is independent from its federal
counterpart. Id. at ¶ 23. With this in mind, we will consider precedent from the federal
courts as well as Ohio's own precedent in interpreting Article I, Section 2.
2. The Anderson-Burdick Test
{¶ 46} Courts reviewing a challenge under the First and Fourteenth Amendments
to the United States Constitution in voting and ballot access cases apply the balancing test
articulated by the United States Supreme Court in Anderson v. Celebrezze, 460 U.S. 780
(1983), and restated in Burdick v. Takushi, 504 U.S. 428 (1992), together commonly
referred to as the "Anderson-Burdick test." Under the Anderson-Burdick test, the court
must: (1) "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,"
and (2) "identify and evaluate the precise interests put forward by the state as
justifications for the burden imposed by its rule." Anderson at 789. See State ex rel.
Watson v. Hamilton Cty. Bd. of Elections, 88 Ohio St. 3d 239, 259 (2000). In evaluating
the interests identified by the state as justifications for the restriction, a court must also
"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."
Anderson at 789.
{¶ 47} The extent to which the challenged law burdens First and Fourteenth
Amendment rights determines the level of scrutiny that a court applies when reviewing
the state's justification for the burden. When the challenged law subjects those rights to a
severe burden, we apply strict scrutiny in determining whether the law is narrowly
tailored to serve a compelling state interest. Burdick at 434. See Watson at 259, citing
Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir.1988) (noting that "a
law severely burdens voting rights if it discriminates based on political content instead of
neutral factors or if there are few alternative means of access to the ballot"). However,
when a law imposes a lesser burden, we apply "a more flexible standard" in which "the
No. 16AP-496 22
state's important regulatory interests" are generally sufficient to justify " 'reasonable,
nondiscriminatory restrictions.' " Burdick at 434, quoting Anderson at 788. See Timmons
v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Obama for Am. v. Husted, 697
F.3d 423, 429 (6th Cir.2012); Watson at 259, citing State ex rel. Purdy v. Clermont Cty.
Bd. of Elections, 77 Ohio St. 3d 338, 342-43 (1996) (stating that "not every statutory
restriction limiting the field of candidates need advance a compelling state interest").
Additionally, we must consider the combined effect of any burden created by the
challenged election regulations, rather than the burden of each individual law. See
Blackwell at 586 (stating that "[o]ur inquiry is not whether each law individually creates
an impermissible burden but rather whether the combined effect of the applicable
election regulations creates an unconstitutional burden"). Thus, "[r]ather than applying
any 'litmus test' that would neatly separate valid from invalid restrictions, * * * a court
must identify and evaluate the interests put forward by the State as justifications for the
burden imposed by its rule, and then make the 'hard judgment' that our adversary system
demands." Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008).
3. Applicable Test
{¶ 48} We next consider LPO's argument that the trial court erred in applying the
Anderson-Burdick test in its analysis of LPO's challenge to S.B. No. 193. LPO contends
the Anderson-Burdick test is inapplicable because its equal protection claim under Article
I, Section 2 of the Ohio Constitution was not coupled with a corresponding claim under
the First Amendment to the United States Constitution. Instead, LPO asserts that its
"pure state law claim" under Article I, Section 2 "uses Article V, [Section] 7 as the
underlying right." (LPO's Brief at 34.) On review, we conclude the Anderson-Burdick test
applies to LPO's claim under Ohio's Equal Protection Clause. In reaching this conclusion,
we are guided by both federal and Ohio caselaw.
{¶ 49} In Green Party of Tennessee v. Hargett, 791 F.3d 684 (6th Cir.2015), the
court considered whether the Anderson-Burdick test applied in the context of an equal
protection challenge to a ballot retention statute. The court explained:
While the Supreme Court has not yet applied this test to
ballot-access challenges on pure equal-protection grounds,
our cases hold that the Anderson-Burdick test serves as "a
single standard for evaluating challenges to voting
restrictions." Obama for Am. [v.] Husted, 697 F.3d 423, 430
No. 16AP-496 23
(6th Cir.2012). Further, many federal courts of appeals have
applied the Anderson-Burdick balancing test to both First
Amendment and Equal Protection Clause challenges to ballot-
access laws. See e.g., Rogers v. Corbett, 468 F.3d 188, 193-94
(3d Cir.2006) (abandoning traditional tiers of equal-
protection scrutiny and applying Anderson); Republican
Party of Ark. v. Faulkner Cty., Ark., 49 F.3d 1289, 1293 n.2
(8th Cir.1995) ("In election cases, equal protection challenges
essentially constitute a branch of the associational rights
tree."); Fulani v. Krivanek, 973 F.2d 1539, 1543 (11th
Cir.1992) (applying the Anderson balancing test).
Id. at 692. The court noted that in a prior case, it had applied the "framework of
Anderson-Burdick to a ballot-ordering equal-protection claim because 'the plaintiffs'
claim draws not only on the Equal Protection Clause, but also on the First Amendment:
essentially, the plaintiffs argue that they have been denied an equal opportunity to
exercise their rights to association and political expression.' " Id. at 692-93. The court
ultimately concluded that because the plaintiffs argued that "the ballot-retention statute
denies them an equal opportunity to exercise their rights to association and political
expression," the Anderson-Burdick test applied. Id. at 693.
{¶ 50} The Ohio Supreme Court has considered application of the Anderson-
Burdick test in a mandamus action contesting the constitutionality of a ballot access
restriction. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 142 Ohio St. 3d 370,
2014-Ohio-4022.2 The plurality opinion found that the "standards articulated by the
Supreme Court in Anderson and Burdick * * * apply in civil litigation challenging the
constitutionality of ballot restrictions." Id. at ¶ 22. However, the plurality declined to
apply the Anderson-Burdick test in that case, finding that while Anderson and Burdick
"inform[ed] our analysis, * * * those cases are not writ actions and do not involve the
unique burdens that control the adjudication of original actions in this court." Id.
{¶ 51} In her opinion concurring in judgment in Brown, Chief Justice O'Connor
discussed the application of the Anderson-Burdick test in equal protection cases:
Equal protection applies not just to the initial allocation of the
franchise, but also to the manner of its exercise. Bush v. Gore,
531 U.S. 98, 104 (2000). The court made clear in Crawford
[v. Marion Cty. Elections Bd., 553 U.S. 181 (2008)] that
2 We note that the relators in Brown raised claims under both federal and state constitutional provisions,
including both the federal and Ohio's Equal Protection Clauses.
No. 16AP-496 24
equal-protection election challenges are subject to the same
Anderson/Burdick analysis as are First Amendment ballot-
access challenges. See Northeast Ohio Coalition for the
Homeless v. Husted, 696 F.3d 580, 592 (6th Cir.2012).
The state argues that rational-basis review should apply
because the classifications at issue are neutral. The state's
position misconstrues the law. Rational-basis review applies
to laws that draw nondiscriminatory classifications and
impose no burden on the right to vote. McDonald v. Bd. of
Election Commrs. of Chicago, 394 U.S. 802, 807-09 (1969).
But where a plaintiff alleges that the state has burdened
voting rights through disparate treatment, the
Anderson/Burdick balancing test is applicable. Obama for
Am. v. Husted, 697 F.3d 423, 429 (6th Cir.2012).
(Emphasis sic.) Id. at ¶ 34-35. We find Chief Justice O'Connor's concurrence to be
informative in this case. Thus, although the plurality did not apply the Anderson-Burdick
test in the context of a mandamus action, a majority of the court agreed that the
Anderson-Burdick test applied in civil cases challenging the constitutionality of ballot
restrictions, as in the present matter.
{¶ 52} Here, LPO claims it is denied equal protection of law because the provisions
of S.B. No. 193 differentiate between major and minor parties. As in Hargett, such claim
necessarily involves the rights of association and political expression. Therefore,
considering the foregoing, we find that the Anderson-Burdick test controls our analysis of
LPO's equal protection claim.
{¶ 53} LPO also contends that, because "Ohio's guarantee of equal protection is not
limited by the reach of the federal Equal Protection Clause," the trial court should have
applied an analytical framework specific to challenges made under Article I, Section 2 of
the Ohio Constitution. (LPO's Brief at 35.) LPO advances two standards for our
consideration. First, citing to State v. Thompson, 95 Ohio St. 3d 264, 2002-Ohio-2124,
LPO contends that "[t]o the extent Article V, [Section] 7 reflects a fundamental right to a
primary, strict scrutiny is * * * required." (LPO's Brief at 36.) We have already
determined that Article V, Section 7 provides for nomination at direct primary elections or
by petition as provided by law. Therefore, we find LPO's contention to be without merit.
Furthermore, LPO advances no authority or reasons in support of its contention that we
should consider the right to a primary a fundamental right under the Ohio Constitution.
No. 16AP-496 25
In the absence of any citation to legal authority or reasons in support of such contention,
we decline to consider it. App.R. 16(A)(7). See Paranthaman v. State Auto Prop. & Cas.
Ins. Co., 10th Dist. No. 14AP-221, 2014-Ohio-4948, ¶ 48, citing Legacy Academy for
Leaders v. Mt. Calvary Pentecostal Church, 10th Dist. No. 13AP-203, 2013-Ohio-4214,
¶ 20 ("An appellate court may reject an argument on appeal when the appellant fails to
cite any legal authority in support of that argument."); Cook v. Ohio Dept. of Job &
Family Servs., 10th Dist. No. 14AP-852, 2015-Ohio-4966, ¶ 40, quoting Bond v. Canal
Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945, ¶ 16 (" 'It is the duty of the
appellant, not the appellate court, to construct the legal arguments necessary to support
the appellant's assignments of error.' ").
{¶ 54} Second, LPO contends that even if the right to a primary is not a
fundamental right, the Ohio Supreme Court's analysis in Mole should control our analysis
here.3 Specifically, LPO contends that Mole identified a more-protective test to apply in
equal protection challenges under the Ohio Constitution. However, contrary to LPO's
contentions, the court in Mole applied the rational basis standard of review common to
both federal and state equal protection challenges.4 See Mole at ¶ 26 (stating that "the
standard of review in this case is the 'rational basis' test, which requires that the statute be
upheld if it is rationally related to a legitimate governmental purpose"). The court in Mole
defined the rational basis standard of review under the Ohio Constitution as follows:
"The rational-basis test involves a two-step analysis. We must
first identify a valid state interest. Second, we must determine
whether the method or means by which the state has chosen
to advance that interest is rational." McCrone v. Bank One
Corp., 107 Ohio St. 3d 272, 2005-Ohio-6505, ¶ 9, citing
Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73
Ohio St. 3d 260, 267 (1995).
"Under the rational-basis standard, a state has no obligation
to produce evidence to sustain the rationality of a statutory
3 We note appellees' argument that LPO waived this argument because it never advanced a separate test
below for equal protection analysis. LPO, however, did argue that Ohio's constitutional protections are
different from those under the federal constitution. Furthermore, Mole was released following LPO's
response to the motion for summary judgment. Therefore, for the foregoing reasons and in the interest of
justice, we consider LPO's arguments related to Mole.
4 We note that the court in Mole considered an equal protection challenge in the context of a statute
prohibiting sexual conduct between a minor and a peace officer, where the peace officer was more than two
years older than the minor. The court did not consider an equal protection analysis in the context of a ballot
access restriction, as is the case here.
No. 16AP-496 26
classification." Columbia Gas Transm. Corp. v. Levin, 117
Ohio St. 3d 122, 2008-Ohio-511, ¶ 91, citing Am. Assn. of Univ.
Professors, Cent. State Univ. Chapter, 87 Ohio St. 3d at 58,
60. "[S]tatutes are presumed to be constitutional and * * *
courts have a duty to liberally construe statutes in order to
save them from constitutional infirmities." Eppley [v. Tri-
Valley Local School Dist. Bd. of Edn.], 122 Ohio St. 3d 56,
2009-Ohio-1970, ¶ 12, citing Desenco, Inc. v. Akron, 84 Ohio
St.3d 535, 538 (1999). The party challenging the
constitutionality of a statute "bears the burden to negate every
conceivable basis that might support the legislation."
Columbia Gas Transm. Corp. at ¶ 91, citing Lyons v.
Limbach, 40 Ohio St. 3d 92, 94 (1988).
Mole at ¶ 27, quoting Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St. 3d
104, 2010-Ohio-4908, ¶ 19-20. Furthermore, the court stated:
Although the legislature has no obligation to justify or even
state its reasons for making a particular classification,
rational-basis review, whether under Ohio constitutional
principles or federal ones, does not mean toothless scrutiny.
Mathews v. Lucas, 427 U.S. 495, 510 (1976). And the rational-
basis test requires that the classification must bear a rational
relationship to a legitimate government interest or that
reasonable grounds must exist for drawing the distinction.
Holeton v. Crouse Cartage Co., 92 Ohio St. 3d 115, 131 (2001).
In other words, the Equal Protection Clause requires that "in
defining a class subject to legislation, the distinctions that are
drawn have 'some relevance to the purpose for which the
classification is made.' " Rinaldi v. Yeager, 384 U.S. 305, 309
(1966), quoting Baxstrom v. Herold, 383 U.S. 107, 111 (1966).
Thus, although we respect that the General Assembly has the
power to classify, we insist that its classifications must have a
reasonable basis and may not "subject individuals to an
arbitrary exercise of power." Conley v. Shearer, 64 Ohio St. 3d
284, 288 (1992). "[E]ven in the ordinary equal protection case
calling for the most deferential of standards, we insist on
knowing the relation between the classification adopted and
the object to be attained." Romer v. Evans, 517 U.S. 620, 632
(1996).
Mole at ¶ 28. Thus, we cannot agree with LPO that the court in Mole created a more
protective standard to employ when reviewing state equal protection challenges.
However, even if we were to accept that this standard applied, as addressed below in our
analysis of the Anderson-Burdick test, we find that S.B. No. 193 satisfies this standard of
review.
No. 16AP-496 27
4. Analysis
{¶ 55} Having determined that the Anderson-Burdick test applies to this matter,
we review the trial court's application of such standard. LPO contends that even if the
trial court was correct that the Anderson-Burdick test was the proper test to apply, it
erred in concluding that S.B. No. 193 did not violate Article I, Section 2.
{¶ 56} We begin by considering "the character and magnitude of the asserted
injury to the rights * * * that the plaintiff seeks to vindicate." Anderson at 789. When
determining the magnitude of the burden imposed by state 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 regulation 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." Blackwell at 587. Furthermore,
"[r]estrictions that do not affect a political party's ability to perform its primary
functions—organizing and developing, recruiting supporters, choosing a candidate, and
voting for that candidate in a general election—have not been held to impose a severe
burden." Id. LPO contends the trial court erred in finding that S.B. No. 193 placed only a
minor burden on its rights because S.B. No. 193 "prevents new parties from registering
members" and in so doing "denies [LPO] recognized membership and the resulting
official membership lists that are provided to the established political parties." (LPO's
Brief at 44; 40.)
{¶ 57} In Ohio, party affiliation is recognized based on a voter's request for the
ballot of a political party in a partisan primary election. This is demonstrated by R.C.
3513.05 which 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." Similarly, R.C. 3513.19(A)(3), which describes the
process for challenges by precinct election officials to the right of a person to vote at a
primary election, provides that "party affiliation shall be determined by examining the
elector's voting record for the current year and the immediately preceding two calendar
years as shown on the voter's registration card, using the standards of affiliation specified
No. 16AP-496 28
in the seventh paragraph of section 3513.05 of the Revised Code." Thus, Ohio law
describes party affiliation only in terms of voting in primary elections.
{¶ 58} S.B. No. 193 does not operate to restrict party affiliation to only major party
voters. Instead, upon meeting the 3 percent vote requirement in the immediately
preceding election necessary to retain its status as a minor party, a minor party may
participate in the primary election process and thereby have affiliated voters. Thus, it is
true that Ohio's election law scheme places some burden on minor political parties by
requiring them to establish a modicum of political support before they can participate in
the primary process and thereby have voters declare affiliation with their party. However,
we find that LPO has not demonstrated how this amounts to a severe burden on its rights.
{¶ 59} As stated by the Sixth Circuit in its discussion of LPO's contentions:
[LPO] 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. * * * The fundamental
importance of these activities is beyond dispute. But [LPO]
has not explained how Ohio's definition of "member of a
political party" for the limited purpose discussed above, see
Ohio Rev. Code [Section] 3513.05, restricts [LPO's] ability to
have members that perform these core political activities.
Husted 831 F.3d at 402. Furthermore, the Sixth Circuit found that LPO "has not
articulated * * * 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 LPO "explained how this places minor parties at a disadvantage relative to major
parties." Id. We agree with the Sixth Circuit's analysis and find that S.B. No. 193 places
only a minor burden on LPO.
{¶ 60} LPO cites several cases that purportedly support its argument. In Socialist
Workers Party v. Rockefeller, 314 F. Supp. 984, 987 (S.D.N.Y.1970), aff'd, 400 U.S. 806,
the plaintiffs challenged under the federal Equal Protection Clause a New York state
election law that required the provision, free of charge, of lists of registered voters to the
county chairpersons of political parties polling at least 50,000 votes for governor in the
immediately preceding gubernatorial election. However, anyone else who wished to
obtain a copy of such lists would be required to pay a charge. The court found:
No. 16AP-496 29
It is clear that the effect of these provisions, when considered
with other sections of the Election Law, is to deny
independent or minority parties which have succeeded in
gaining a position on the ballot but which have not polled
50,000 votes for governor in the last preceding gubernatorial
election an equal opportunity to win the votes of the
electorate. The State has shown no compelling state interest
nor even a justifiable purpose for granting what, in effect, is a
significant subsidy only to those parties which have least need
therefor.
Id. at 995. Further, the court found that "[t]he State is not required to provide such lists
free of charge, but when it does so it may not provide them only for the large political
parties and deny them to those parties which can least afford to purchase them." Id. at
996.
{¶ 61} In Schulz v. Williams, 44 F.3d 48 (2d Cir.1994), a court again struck down a
New York state law that was identical in "all material, unlawful respects" to the law that
was found unconstitutional in Rockefeller. Id. at 60.
{¶ 62} In Green Party v. New York State Bd. of Elections, 389 F.3d 411 (2d
Cir.2004), the election regulation at issue provided that persons filling out a voter
registration form could enroll as a member of a qualified party. Only those voters who
enrolled in a party were permitted to vote in a primary election. If a party failed to receive
50,000 votes for its gubernatorial candidate in an election, it was required to be treated as
an independent body, not a party, in the next election. Following this change in
designation, the local boards of election were required to erase the enrollment
information of any member of a former party and change that person's status to non-
affiliated.
{¶ 63} The plaintiffs in that case alleged that these requirements deprived them of
the ability to use the enrollment list information to conduct party building activities and
deprived voters of the ability to publicly declare their political affiliation. The court found
the burden on these laws on the plaintiffs' associational rights was severe. In affirming
the grant of a preliminary injunction against enforcement of these regulations, the court
noted that "[p]arties use these enrollment lists to conduct closed primaries, but they also
use the lists for many other purposes, such as identifying new voters, processing voter
No. 16AP-496 30
information, organizing and mobilizing Party members, fundraising, and other activities
that influence the political process." Id. at 416.
{¶ 64} In Baer v. Meyer, 728 F.2d 471, 475 (10th Cir.1984), the court reviewed a
challenge to Colorado election law. Under the Colorado law, a political party was a
political organization whose gubernatorial candidate received at least 10 percent of the
total gubernatorial vote in the last such election, whereas any other group that did not
meet this requirement was a "political organization." Under this system, only the two
major parties qualified as political parties. Persons filling out a voter registration form
were permitted to designate their affiliation with a political party, if such party qualified
for political party designation under Colorado law. Otherwise, the person was required to
register as unaffiliated.
{¶ 65} The plaintiffs claimed that the law unreasonably burdened the ability of
their supporters to note their support for their parties on voter registration forms. In
concluding that the Colorado law unnecessarily and unfairly burdened the plaintiffs, the
court found that the law "prevented persons other than those affiliated with the two major
political parties from obtaining and using such information in a manner similar to that of
the major parties." Id. at 475. The court noted further that "under today's political
realities, access to minimal information about political party affiliation is the key to
successful political organization and campaigning." Id. However, the court also held that
its decision was confined to the plaintiffs in that case based on the specificities of
Colorado law.
{¶ 66} In Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir.2012),
the court rejected the plaintiffs' argument that Baer required Kansas to treat the plaintiff
as a recognized political party and track voters' affiliation with it. Specifically, the court
found that Baer was limited to the circumstances of the case and "was never intended to
establish per se criteria outside [its] state-specific context." Kobach at 1149.
{¶ 67} Having reviewed the cases cited by LPO, we disagree that they are
dispositive over the instant matter. Unlike in Rockefeller and Schulz, in which party
membership lists were provided free of charge to major parties but minor parties were
required to pay, LPO does not contend that the restrictions at issue favor only major
parties. By achieving a lower percentage of the vote than major parties, minor parties are
No. 16AP-496 31
also able to participate in the primary election process and thereby have affiliated voters
under Ohio law. Additionally, unlike in Baer and Green Party v. New York State Bd. of
Elections, Ohio provides for the affiliation of voters through the primary process, instead
of through voter registration forms. These cases do not address the limited circumstances
for which Ohio considers party affiliation. Furthermore, as noted by Kobach, Baer was
limited to the specific circumstances of that case. Therefore, the cases cited by LPO are
distinguishable from the present matter.
{¶ 68} Next, we must "identify and evaluate the precise interests put forward by
the State as justifications for the burden imposed by its rule." Anderson at 789. In
evaluating appellees' asserted interests, we must "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. The Ohio Supreme Court has listed some of
the justifications that have been recognized to uphold the constitutionality of election
provisions:
(1) having orderly, fair, and honest elections instead of chaos,
(2) maintaining the integrity of the political process by
preventing interparty raids and intraparty feuds,
(3) maintaining the integrity of various routes to the ballot,
(4) avoiding voter confusion, ballot overcrowding, or frivolous
candidacies, (5) ensuring that elections are operated equitably
and efficiently, (6) preventing candidacies that are prompted
by short-range political goals, pique, or personal quarrel, and
(7) preventing parties from fielding an independent candidate
to capture and bleed off votes in a general election that might
otherwise go to another party.
Purdy at 344.
{¶ 69} Here, appellees assert that the state has an interest in ensuring that parties
have significant support before allowing access to the ballot in order to prevent confusion.
In support of this argument, appellees cite Jenness v. Fortson, 403 U.S. 431, 434 (1971),
for the proposition that "[t]here is surely an important state interest in requiring some
preliminary showing of a significant modicum of support before printing the name of a
political organization's candidate on the ballot[—]the interest, if no other, in avoiding
confusion, deception, and even frustration of the democratic process at the general
election." This interest was also recognized by the United States Supreme Court in
Anderson: "The State has the undoubted right to require candidates to make a
No. 16AP-496 32
preliminary showing of substantial support in order to qualify for a place on the ballot,
because it is both wasteful and confusing to encumber the ballot with the names of
frivolous candidates." Anderson at 788, fn. 9.
{¶ 70} Appellees also argue that it is good public policy to not require new parties
to participate in a primary system. Appellees supported this interest with the deposition
testimony of Richard Winger, LPO's witness who had testified as an expert on ballot
access issues in ten states. Winger stated that his area of expertise was in the "history of
ballot access laws in the United States and election returns, especially with focus on how
well minor parties have done." (Winger Depo. at 9.) Winger testified in his deposition as
follows:
[Appellees' Counsel]: So it's not unusual for a state to make a
policy choice that newly qualified political parties do not get to
participate in the state run primary election; is that fair?
[Winger]: Yes.
[Appellees' Counsel]: In your mind why would a state make
that kind of a policy choice?
[Winger]: Well, I have communicated with Ohio government
officials for many years to make them aware that the nation's
leading election administration expert wrote in 1951 -- Dr.
Joseph P. Harris -- and he wrote a model direct primary
system for the National Civic League, which back then was
called the National Municipal League, and he said states
should not provide primaries to small parties. It's a waste of
money. They seldom have primary contests. And that's one
reason.
Another reason is it makes it very difficult for states to have a
reasonable qualifying deadline if it's going to insist that new
parties nominate by primary.
[Appellees' Counsel]: Any other reasons?
[Winger]: When there is a contested minor party primary,
frequently the voters in that primary are not well-informed.
* * * I just feel when minor parties nominate by convention,
the people can talk to the nominees and make an informed
choice, so just as a policy matter, I favor convention
nomination for small parties.
(Winger Depo. at 59-61.)
No. 16AP-496 33
{¶ 71} Appellees also offered statistics demonstrating a low rate of participation in
primary elections in Ohio. Specifically, appellees pointed out that "[d]uring the 2012
Primary election, [LPO] had only 337 individuals across the entire state cast a ballot for its
Senatorial candidate." (Appellees' Brief at 49.) In 2010, Ohio had 8,013,558 registered
voters, 1,814,244 of whom cast a ballot in the May primary. Of those voters who voted in
the primary, 5,476 requested a Libertarian Party ballot. Based on this statistical
information in addition to Winger's deposition testimony, we find that the state has
demonstrated a legitimate and sufficient interest in ensuring the efficient operation of
elections by limiting access to primary elections to those parties that have demonstrated a
modicum of support.
{¶ 72} Therefore, weighing the limited burden imposed by S.B. No. 193 on LPO
against the legitimate and sufficient interests asserted by appellees, we conclude that LPO
has not established beyond a reasonable doubt that S.B. No. 193 violates the guarantee of
equal protection in Article I, Section 2 of the Ohio Constitution. Burdick at 434.
Accordingly, we overrule LPO's third, fourth, and fifth assignments of error.
IV. Civ.R. 56(F) Motion for Continuance
{¶ 73} In its sixth assignment of error, LPO asserts the trial court erred by denying
its motion for a continuance pursuant to Civ.R. 56(F). In its decision denying LPO's
motion for a continuance, the trial court found LPO failed to provide a particularized
factual basis explaining why discovery was necessary.
{¶ 74} Civ.R. 56(F) provides:
Should it appear from the affidavits of a party opposing the
motion for summary judgment that the party cannot for
sufficient reasons stated present by affidavit facts essential to
justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or discovery to be had or may
make such other order as is just.
Thus, "Civ.R. 56(F) allows a party the opportunity to request additional time to obtain,
through discovery, the facts necessary to adequately oppose a motion for summary
judgment." Morantz v. Ortiz, 10th Dist. No. 07AP-597, 2008-Ohio-1046, ¶ 20.
{¶ 75} A party seeking a Civ.R. 56(F) continuance bears the burden of establishing
through reasons presented in an affidavit why the party cannot present sufficient facts to
No. 16AP-496 34
justify its opposition to a motion for summary judgment without a continuance. Fields v.
Buehrer, 10th Dist. No. 13AP-724, 2014-Ohio-1382, ¶ 12. " 'Simply requesting a
continuance in order to conduct discovery is not a sufficient explanation for why a party
cannot present affidavits in opposition to the motion for summary judgment.' " Id.,
quoting Brown v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-891, 2013-Ohio-
4207, ¶ 16, citing ABN AMRO Mtge. Group, Inc. v. Roush, 10th Dist. No. 04AP-457,
2005-Ohio-1763, ¶ 22.
{¶ 76} As the provisions of Civ.R. 56(F) are discretionary, we review the trial
court's determination for an abuse of discretion. Perpetual Fed. Sav. Bank v. TDS2 Prop.
Mgt., LLC, 10th Dist. No. 09AP-285, 2009-Ohio-6774, ¶ 11. An abuse of discretion occurs
when a court's judgment is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶ 77} In support of its motion for a continuance, LPO submitted an affidavit from
Robert Bridges, the chair of the Libertarian Party of Ohio. Bridges asserted in his affidavit
that LPO could not present facts essential to their opposition to appellees' motion for
summary judgment because discovery had not yet commenced and LPO would "need to
conduct formal discovery in order to be able to adequately respond to [appellees'] many
denials of allegations contained in [LPO's complaint]" and "to be able to adequately
respond to [appellees'] factual assertions in their Motion for Summary Judgment."
(Bridges' Affidavit at 2.) In its motion for a continuance, LPO specifically contended:
"[S.B. No.] 193 lacks any legitimate justification. [LPO] believes it cannot pass the test
proposed by [appellees]. In order to prove this, discovery will likely be required." (LPO's
Mot. for Cont. at 7.) On appeal, LPO contends that it "was entitled to discover why S.B.
No. 193 was passed." (LPO's Brief at 48.) Furthermore, LPO states that it "does not and
cannot know why S.B. No. 193 was passed. It does not and cannot know S.B. No. 193's
objective or what motivated its passage. LPO believes that S.B. No. 193 was a partisan
measure designed to benefit the Republican Party at the expense of LPO, but LPO needs
discovery to explore that theory." (LPO's Brief at 49.)
{¶ 78} However, the issue in evaluating LPO's equal protection challenge is not the
actual reason for the passage of S.B. No. 193. Instead, the Anderson-Burdick test
requires a court to "identify and evaluate the precise interests put forward by the State as
No. 16AP-496 35
justifications for the burden imposed by its rule." Anderson at 789. Thus, a court need
not inquire into the actual reasons motivating passage of a law, but instead the "legitimacy
and strength" of the reasons articulated by the state as well as the "extent to which those
interests make it necessary to burden the plaintiff's rights." Id. See Crawford at 191
(examining the legitimacy of the interests identified by the state despite petitioners'
argument that the statute at issue was actually motivated by partisan concerns);
Libertarian Party of New Hampshire v. Gardner, 126 F. Supp. 3d 194, 209 (D.N.H.2015).
LPO's motion for a continuance fails to address why it needed additional discovery or
time to respond to this issue. Therefore, we find that the trial court did not abuse its
discretion in denying LPO's motion for a continuance under Civ.R. 56(F). Perpetual Fed.
Sav. Bank at ¶ 14.
{¶ 79} Accordingly, we overrule LPO's sixth assignment of error.
V. Conclusion
{¶ 80} Having overruled LPO's first, third, fourth, fifth, and sixth assignments of
error and having found LPO's second assignment of error to be moot, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK, P.J., and SADLER, J., concur.