UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Transcription

1 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 1 of 28 PAGEID #: 3264 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., Plaintiffs, v. JON HUSTED, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:13-cv JUDGE MICHAEL H. WATSON INTERVENING PLAINTIFFS MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Intervening Plaintiffs Robert M. Hart, individually, Robert Fitrakis on behalf of the Green Party of Ohio ( GPOHIO ), Max Russell Erwin, individually, and Donald Shrader on behalf of the Constitution Party of Ohio ( CPO ) (hereinafter, collectively Intervening Plaintiffs ), move this Court, pursuant to Federal Rule of Civil Procedure 56, to enter Summary Judgment on the facial constitutional challenge made in their Complaint (Doc. No. 42), which alleges that the ballot access provisions created by Ohio Senate Bill 193 (referred to collectively as S.B. 193 ) violate the U.S. Constitution. Intervening Plaintiffs request as relief a Permanent Injunction enjoining the enforcement of S.B In the alternative, Intervening Plaintiffs move this Court to enter a Permanent Injunction enjoining Defendants from enforcing S.B. 193 in the 2015 election cycle.

2 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 2 of 28 PAGEID #: 3265 TABLE OF CONTENTS TABLE OF AUTHORITIES...iv I. INTRODUCTION...1 A. The Role of Minor Parties in the American Political Process...1 B. Minor Political Parties in Ohio...1 C. Background of this Case...3 D. Current Posture of Intervening Plaintiffs...4 II. APPLICABLE LEGAL PRINICPLES FOR SUMMARY JUDGMENT...5 III. THE BALLOT ACCESS SCHEME CREATED BY S.B. 193 IS UNCONSTITUTIONAL...5 A. The Anderson-Burdick Test Provides the Legal Framework for Determining the Constitutionality of Ohio s Ballot Access Scheme....6 B. S.B. 193 Severely Burdens the Rights of Minor Political Parties, their Candidates, and Ohio Voters S.B. 193 Prevents Minor Parties from Accessing the Primary and Eliminates the Opportunity for Voters to Affiliate with these Parties...9 a. Preventing Minor Parties from Accessing the Primary Denies Voters the Right to Associate for Political Purposes b. Preventing Minor Parties from Accessing the Primary Deprives Them of the Ability to Organize and Participate in the Political Process c. Preventing Minor Parties from Accessing the Primary Severely Restricts the Pool of Potential Signers for S.B. 193 Nominating Petitions S.B. 193 Will Completely Prevent Minor Political Parties from Forming and Fielding Candidates in 2015 and All Other Odd-Numbered Years ii

3 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 3 of 28 PAGEID #: Additional Confounding and Flawed Provisions Are Present in S.B S.B. 193, Examined in Its Totality, Places Severe Burdens on the Rights of Minor Political Parties, Their Candidates, and Ohio Voters C. The State Cannot Advance an Adequate Justification for the Burdens Imposed by S.B IV. CONCLUSION...21 iii

4 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 4 of 28 PAGEID #: 3267 Cases TABLE OF AUTHORITIES Anderson v. Celebrezze, 460 U.S. 780 (1983) , 6 Baer v. Meyer, 577 F. Supp. 838 (D. Colo. 1984) Bullock v. Carter, 405 U.S. 134 (1972). 5 Burdick v. Takushi, 504 U.S. 428 (1992)... 6 Celotex Corp. v. Catrett, 477 U.S. 317 (1986).. 5 Clingman v. Beaver, 544 U.S. 581 (2005) Kusper v. Pontikes, 414 U.S. 51 (1973) Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006)... 2, 6, 10, 11, 13, 15, 17, 19, 20, 21 Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006 (S.D. Ohio 2008)... 2 Libertarian Party of Tennessee v. Goins, 793 F. Supp. 2d 1064 (M.D. Tenn. 2010) 6 Storer v. Brown, 415 U.S. 724 (1974). 10, 19, 20 Sweezy v. State of New Hampshire, 354 U.S. 234 (1957).. 1 Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986). 15 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).. 19 Williams v. Rhodes, 393 U.S. 23 (1968) , 2, 5, 6, 10, 11, 19, 20 Directives Ohio Secretary of State Directive (Dec. 31, 2009)... 2, 20 Ohio Secretary of State Directive (Jan. 6, 2011). 2 Ohio Secretary of State Directive (Nov. 1, 2011)... 2 Ohio Secretary of State Directive (Jan. 31, 2013)... 2 iv

5 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 5 of 28 PAGEID #: 3268 Rules Fed. R. Civ. P Statutes O.R.C (E).. 8, 9 O.R.C (F)(2).... 4, 7, 8, 9, 16 O.R.C O.R.C O.R.C (A).. 7, 8, 9, 12, 14 O.R.C O.R.C (A) , 8, 9, 14, 15, 16 O.R.C (B) 7, 8, 9, 13, 17 S.B , 9 Other Authorities Allen County Board of Elections, 2013 Filing Deadlines, available at ohio.com/boe/candidates_issues/2013/2013_filingdeadlines.pdf Cuyahoga County Board of Elections, 2013 Election Calendar, available at county.us/pdf_boe/en-us/2013/2013_election_calendar.pdf Cuyahoga County Board of Elections, How Do I Declare or Change Political Party Affiliation, (last visited Aug. 15, 2014). 10 Election 2010, THE NEW YORK TIMES, (last visited Aug. 15, 2014).. 5 Franklin County Board of Elections, 2013 Primary Election Schedule, available at franklincountyohio.gov/assets/pdf/candidate-publications/primary-election-schedule-andcandidate-requirements-2013.pdf Husted to Certify Ohio s 2012 Presidential Election Results, NORWALK REFLECTOR, Dec , available at 5 v

6 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 6 of 28 PAGEID #: 3269 Jim Siegel, Kasich Signs Bill on Ballot Access for Minor Parties, THE COLUMBUS DISPATCH, Nov. 7, 2013, available at 3 Joe Vardon, Ruling Opens Path for Libertarian Challenger to Kasich, THE COLUMBUS DISPATCH, Jan. 8, 2014, available at libertarian-earl-ballot-access-injunction.html.. 3 Ohio Legislative Service Commission, S.B. 193 Status Report of Legislation, us/coderev/sen130.nsf/senate+bill+number/0193?opendocument (last visited Aug. 15, 2014) 2, 3 The Ohio House of Representatives, Reps. Clyde, Foley Call on Gov. Kasich to Sign SB 193 Next Week, Nov. 7, 2013, available at 3 Ohio Secretary of State, Frequently Asked Questions About General Voting and Voter Registration, (last visited Aug. 15, 2014).. 10, 11 Richland County Board of Elections, Candidate List & Questions/Issues, available at %20ELECTION%20Candidate%20List%20&%20Question%20and%20Issues.pdf STEVEN J. ROSENSTONE, ROY L. BEHR & EDWARD H. LAZARUS, THIRD PARTIES IN AMERICA (2d ed. 1984).. 1 vi

7 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 7 of 28 PAGEID #: 3270 I. INTRODUCTION A. The Role of Minor Parties in the American Political Process Minor parties play a vital role in the American political system. As the Supreme Court has repeatedly recognized, minor parties have served as the incubators of and impetus for important reforms, many of which were initially resisted by the major parties that dominate the system. See, e.g., Williams v. Rhodes, 393 U.S. 23, 39 (1968) ( In our political life, third parties are often important channels through which political dissent is aired: All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, which innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. The absence of such voices would be a symptom of grave illness in our society. ) (citing Sweezy v. State of New Hampshire, 354 U.S. 234, (1957)); Anderson v. Celebrezze, 460 U.S. 780, 794 (1983) ( Historically political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream. ). Such reforms include: the abolition of slavery, the eight-hour workday, child labor laws, women s suffrage, and the graduated income tax. STEVEN J. ROSENSTONE, ROY L. BEHR & EDWARD H. LAZARUS, THIRD PARTIES IN AMERICA (2d ed. 1984). B. Minor Political Parties in Ohio Despite their value, minor parties in Ohio have continually struggled to achieve access to the ballot. In fact, Ohio was the battleground for the first U.S. Supreme Court ballot access case. See Williams, 393 U.S. 23. In Williams, the U.S. Supreme Court found that Ohio s then-existing ballot access scheme was unconstitutional because it had the effect of providing two particular 1

8 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 8 of 28 PAGEID #: 3271 parties the Republicans and the Democrats a complete [political] monopoly. Id. at 32. However, the Williams case did not end the struggle, as Ohio s minor parties have continued to face challenges in obtaining ballot access. See, e.g., Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 589 (6th Cir. 2006) (noting that [t]he evidence in the record shows that in Ohio, elections have indeed been monopolized by two parties ). In 2006, the Sixth Circuit Court of Appeals held that Ohio s then-existing ballot access laws violated the First Amendment rights of minor political parties and voters. Blackwell, 462 F.3d 579. In spite of the 2006 determination that the laws regulating Ohio s minor parties were unconstitutional, the State failed to enact a new ballot access scheme until November 6, 2013, when S.B. 193 was passed by the General Assembly and immediately signed into law later that same day. See Ohio Legislative Service Commission, S.B. 193 Status Report of Legislation, (last visited Aug. 15, 2014). For the more than seven years that elapsed between the Blackwell decision and the passage of S.B. 193, minor political parties in Ohio operated based on directives issued by the Secretary of State and through federal court orders. See, e.g., Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006, (S.D. Ohio 2008); Ohio Secretary of State Directive (Dec. 31, 2009); Ohio Secretary of State Directive (Jan. 6, 2011); Ohio Secretary of State Directive (Nov. 1, 2011); Ohio Secretary of State Directive (Jan. 31, 2013). These Directives provided GPOHIO and CPO, as well as the Libertarian Party of Ohio ( LPO ) and the Socialist Party of Ohio ( SPO ) status as minor political parties in Ohio and permitted them access to both primary and general election ballots. 2

9 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 9 of 28 PAGEID #: 3272 C. Background of this Case Based on the pattern of recognition that they had come to expect post-blackwell, Ohio s minor political parties and their candidates had begun efforts to obtain a position on the 2014 ballot prior to S.B. 193 being suddenly fast-tracked through the Ohio legislature. (See, e.g., Intervening Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 30) at Part IV(A)(1)(d)-(e)). When S.B. 193 was passed at the last possible moment in order for it to have effect in the 2014 election cycle it brought the efforts that minor parties and their candidates had undertaken to secure ballot access in 2014 to a screeching halt. 1 See, e.g., id. 2 In response to the enactment of S.B. 193, GPOHIO and CPO intervened in a case that had been brought by the LPO challenging S.B. 193 and other Ohio voting laws. (Doc. No. 19). Intervening Plaintiffs challenged S.B. 193 both as applied to the 2014 election cycle and facially. (Doc. No. 42). On December 3, 2013, Intervening Plaintiffs filed their motion for a Temporary Restraining Order and Preliminary Injunction seeking, inter alia, to prohibit Defendant Husted from blocking their participation in Ohio s 2014 primary and general elections. (Doc. No. 30). On January 7, 2014, this court issued its Opinion and Order, which enjoined Defendants from retroactively applying S.B. 193 to Ohio s 2014 primary and general 1 The speed with which S.B. 193 was passed, and the hasty drafting of the bill, have been attributed by some to concerns that Ohio s Republican Governor, John Kasich, who is up for re-election, would lose votes to the Libertarian gubernatorial candidate in the November 2014 General Election. See, e.g., Joe Vardon, Ruling Opens Path for Libertarian Challenger to Kasich, THE COLUMBUS DISPATCH, Jan. 8, 2014, available at These concerns arose following Kasich s support for the expansion of Medicaid in Ohio, which had angered some of his supporters, id., and resulted in critics dubbing the bill the Kasich Re-election Protection Act. Jim Siegel, Kasich Signs Bill on Ballot Access for Minor Parties, THE COLUMBUS DISPATCH, Nov. 7, 2013, available at 2 See also Ohio Legislative Service Commission, S.B. 193 Status Report of Legislation, coderev/sen130.nsf/senate+bill+number/0193?opendocument (last visited Aug. 15, 2014) (displaying that the bill was both passed and signed into law by Governor Kasich on November 6, 2013); The Ohio House of Representatives, Reps. Clyde, Foley Call on Gov. Kasich to Sign SB 193 Next Week, Nov. 7, 2013, available at (noting that if S.B. 193 had been signed into law two days later it would not have applied to the 2014 election). 3

10 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 10 of 28 PAGEID #: 3273 elections and [ordered] Defendants to provide Plaintiffs [(including Intervening Plaintiffs)] and their candidates access to the 2014 primary and general elections[.] (Doc. No. 47). Having prevailed on their as applied challenge, Intervening Plaintiffs now move on their facial challenge to S.B D. Current Posture of Intervening Plaintiffs As noted above, GPOHIO and CPO received recognition for the 2014 election cycle through court order. Now, in order for GPOHIO and CPO to remain in existence after the November 2014 General Election, pursuant to S.B. 193, the parties must pass a vote test. This test requires a minor party s gubernatorial candidate to obtain either two or three percent 3 of the entire vote cast. O.R.C (F)(2)(a). It is certain that CPO will be dissolved under either the two percent or the three percent standard because it does not have a candidate running in the 2014 gubernatorial race. (Declaration of Donald R. Shrader in Support of Motion for Summary Judgment ( Shrader Decl. ) (Ex. A) 17). And, while GPOHIO does have a candidate running in the 2014 gubernatorial race, that candidate is unlikely to win the necessary percentage of the vote, because, historically, neither GPOHIO or CPO have fielded gubernatorial or presidential candidates who have attained the percentage of votes that S.B. 193 requires to maintain party 3 The percentage of the vote that a GPOHIO or CPO gubernatorial candidate must receive to remain in existence following the 2014 election is not clear. S.B. 193 provides, with respect to the 2014 general election, that a political party whose candidate for governor polls at least two percent but less than twenty percent of the entire vote cast in the 2014 general election will remain[] a minor political party for a period of four years... S.B In subsequent years, however, S.B. 193 provides that a minor party presidential or gubernatorial candidate must receive at least 3 percent of the total vote cast in the general election. O.R.C (F)(2)(a). Because this Court s Order of January 7, 2014 enjoined the application of S.B. 193 to Ohio s 2014 elections, it is not clear that the special 2014 provision applies. Therefore, throughout this Memorandum, the 2014 vote test is assumed to be two or three percent. 4

11 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 11 of 28 PAGEID #: 3274 status. 4 (Memorandum of Law in Support of Motion by Intervener-Applicants to Intervene as Plaintiffs (Doc. 19-1) at 6). After GPOHIO and CPO are thus dissolved, the only way for them to come back into existence will be via the ballot access scheme created by S.B This process, which is discussed below, not only inflicts a host of heavy burdens upon GPOHIO and CPO (as well as upon their candidates and the voters wishing to affiliate with them), but it also imposes an outright ban on entry in II. APPLICABLE LEGAL PRINICPLES FOR SUMMARY JUDGMENT This case hinges on the construction of a statutory scheme. There being no genuine dispute as to any material fact, Intervening Plaintiffs move this court for Summary Judgment on their facial federal constitutional challenge to S.B. 193 pursuant to Fed. R. Civ. P. 56. Summary judgment is appropriate when the Court is satisfied that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). III. THE BALLOT ACCESS SCHEME CREATED BY S.B. 193 IS UNCONSTITUTIONAL Ballot access schemes necessarily affect two different, although overlapping kinds of rights the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion to cast their votes effectively. Williams v. Rhodes, 393 U.S. 23, 30 (1968); see also Bullock v. Carter, 405 U.S. 134, 143 (1972) (noting that the rights of voters and the rights of candidates do not lend themselves to neat 4 This is true regardless of whether GPOHIO and CPO gubernatorial candidates are required to obtain 2% or 3% of the vote this year. See, e.g., Election 2010, THE NEW YORK TIMES, (last visited Aug. 15, 2014); see also Husted to Certify Ohio s 2012 Presidential Election Results, NORWALK REFLECTOR, Dec , available at (showing that the parties have not received the necessary percentage of the vote in presidential election years). 5

12 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 12 of 28 PAGEID #: 3275 separation ); Libertarian Party of Tennessee v. Goins, 793 F. Supp. 2d 1064, 1079 (M.D. Tenn. 2010). Both of these rights rank among our most precious freedoms. Williams, 393 U.S. at 30; see also Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 585 (6th Cir. 2006) (noting that [t]he right to cast an effective vote is of the most fundamental significance under our constitutional structure and that rights of political association and free speech occupy a similarly hallowed place in the constitutional pantheon ) (internal citations omitted). A. The Anderson-Burdick Test Provides the Legal Framework for Determining the Constitutionality of Ohio s Ballot Access Scheme. As recognized by the Sixth Circuit, [t]here is an inherent constitutional tension between the rights of states to conduct and regulate elections and the rights of political parties and voters to exercise their [constitutional] rights. Blackwell, 462 F.3d at 595. In Anderson v. Celebreeze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992), the U.S. Supreme Court established the analytical framework for balancing these rights and determining whether a ballot access law impermissibly infringes on the constitutional rights of minor parties, their candidates, and their supporters. Thereafter, the Sixth Circuit summarized the steps that a court must undertake when applying the Anderson-Burdick test: First, the court looks at the character and magnitude of the asserted injury to petitioner s constitutional rights. The court must then identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. If petitioner s rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. Blackwell, 462 F.3d at 585 (internal citations omitted). B. S.B. 193 Severely Burdens the Rights of Minor Political Parties, their Candidates, and Ohio Voters. The ballot access scheme created by S.B. 193 severely burdens the First and Fourteenth Amendment rights of GPOHIO, CPO, their would-be candidates, and the qualified voters who 6

13 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 13 of 28 PAGEID #: 3276 wish to affiliate with these parties and vote for their candidates. S.B. 193 creates a virtually insurmountable series of hurdles that minor political parties must overcome to access the ballot. Moreover, in 2015 and all other odd-numbered years, S.B. 193 completely precludes minor parties from forming and fielding candidates. Finally, S.B. 193 includes a whole host of other confounding and flawed provisions that leave minor parties and their candidates in a state of perpetual uncertainty. S.B. 193 creates a two-part petition process that parties must follow in order to obtain ballot access if they are either forming for the first time or seeking to re-form after having been dissolved. See, e.g., O.R.C (F)(2) & (A). In order to obtain ballot access, such parties must submit a party formation petition that meets the requirements outlined in O.R.C (A), which entitles the party to nominate candidates to appear on the ballot at the general election held in [an] even-numbered year[.] O.R.C (A)(1) (emphasis added). After a party s formation petition has been filed with the Secretary of State, the minor party s candidates must each submit a nominating petition that meets the requirements set forth in O.R.C (B). The particular mechanics of this two-part petition process place severe burdens on the rights of minor parties, including GPOHIO and CPO, their would-be candidates, and qualified Ohio voters in a number of ways. These burdens are briefly listed below, with some burdens explained in greater detail in subsequent sections of this memorandum: (i) S.B. 193 prevents parties forming via petition from participating in primary elections. O.R.C (A)(1)(b)(iii) & (A)(1). Because primary elections are the only time that Ohio voters can select or change their party affiliation, see, e.g., O.R.C & , S.B. 193 denies Ohio voters the ability to associate with parties formed through the petition process. See Part III(B)(1)(a), infra. (ii) Despite the fact that voters have no method or ability to affiliate with parties formed via petition, and, in fact, automatically affiliate with different parties when they vote in a 7

14 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 14 of 28 PAGEID #: 3277 partisan primary, S.B. 193 requires that the nominating petitions for the candidates of these parties be signed by qualified electors who have not voted as a member of a different political party at any primary election within the current year 5 or the immediately preceding two calendar years. O.R.C (B)(2) (emphasis added). Thus, any voter who cast a ballot in a partisan primary is precluded from signing the nominating petition for any candidate from a newly-forming political party for a period of three years. See Part III(B)(1)(c), infra. (iii) S.B. 193 s petition process allows minor parties to form and field candidates only in General Elections that are held in an even-numbered year. O.R.C (A)(1)(b)(iii) & (A)(1); see also Part III(B)(2), infra. (iv) S.B. 193 imposes party formation petition requirements that demand a high degree of state-wide presence and support regardless of whether a party is seeking to run a candidate for a statewide or a local office. O.R.C (A)(1)(b). Thus, a political party that only wishes to field candidates in local elections must still file a party formation petition that 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. O.R.C (A)(1)(b)(i). Furthermore, the party formation petition must be signed by not fewer than five hundred qualified electors from each of at least a minimum of one-half of Ohio s congressional districts. O.R.C (A)(1)(b)(ii) (emphasis added). (v) S.B. 193 requires minor parties to field candidates for the offices of governor or president in order to even attempt to be eligible to maintain party status, even if the party wishes to build from the ground up and its current aspirations do not include fielding candidates for these specific offices. See, e.g., O.R.C (F)(2)(a) & (A)(1)(a); see also (Shrader Decl. (Ex. A) 9-12). (vi) Party formation petitions are due more than one hundred twenty-five days before an even-numbered year general election in which the party is seeking to field a candidate. O.R.C (A)(1). However, S.B. 193 states that the election which will determine if a party that formed by petition qualifies to maintain its status for a period of four years will be the first election for governor or president which occurs not less than twelve months subsequent to the formation of such [a] party. O.R.C (F)(2)(b). Thus, S.B. 193 s ballot access scheme essentially requires that parties commit to running a candidate in an election that is to be held two years in the future. Id.; see also Part III(B)(3), infra. (vii) S.B. 193 precludes minor parties and their candidates from the opportunity to compete with major parties until the very last point in the campaign season because parties forming via the petition process need not be notified of their eligibility and the eligibility of their candidates until 95 days before the General Election. O.R.C. 5 Candidate nominating petitions are not due until one hundred ten days before the day of th[e November] general election[.] O.R.C (B)(1). This deadline falls well after the March and May primaries held in presidential and gubernatorial election years. O.R.C (E)(1)-(2). 8

15 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 15 of 28 PAGEID #: (A)(2)(d) & (B)(3)(c). This severe limitation restricts the ability of minor parties and their candidates to build a brand, make their platforms known, raise money, and recruit campaign workers. Further, because minor parties are required to obtain three percent of the vote in gubernatorial and presidential elections if they wish to avoid dissolution, this burden significantly reduces the party s chance of obtaining the number of votes necessary to survive. (See, e.g., Shrader Decl. (Ex. A) 23, 25). (viii) S.B. 193 does not contain any provisions for minor parties or their candidates to appeal determinations that their petitions are insufficient, and there is no window for correcting any petition errors, regardless of how minor such errors may be. See, e.g., O.R.C S.B. 193 Prevents Minor Parties from Accessing the Primary and Eliminates the Opportunity for Voters to Affiliate with these Parties. As stated, GPOHIO and CPO will be immediately dissolved post-election if they do not field a candidate for governor who receives two or three percent of the vote in the November 2014 General Election. See, e.g., S.B (B); O.R.C (F)(2). Upon dissolution, voters and elected officials affiliated with GPOHIO and CPO will cease to be officially affiliated with these parties. According to S.B. 193, if the parties wish to re-form and field candidates in future elections, GPOHIO and CPO will have to submit party formation petitions and their would-be candidates will have to submit nominating petitions. See, e.g., O.R.C (A) & Assuming that GPOHIO and CPO are able to re-form by petition, both parties will be prevented from participating in the primary election. S.B. 193 bans all parties forming via petition from participating in the primary election, O.R.C (A)(1)(b)(iii) & (A)(1), and provides no mechanism for minor political parties to receive recognition prior to the time of the primary. 6 O.R.C (A)(2)(d) (noting that the Secretary of State 6 Presidential Primary Elections take place in March and Gubernatorial Primary Elections take place in May. O.R.C (E)(1)-(2). However, nominating petitions need not be signed and submitted until July, and the sufficiency of party formation petitions and nominating petitions are not determined until August. See O.R.C Thus, at the time of the primary election voters will not know whether a minor party will receive recognition and may not know who the candidates of these parties will be. There is, therefore, no reason to think that 9

16 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 16 of 28 PAGEID #: 3279 need only tell parties whether their petitions are sufficient 95 days before the general election). This impediment poses a serious problem for GPOHIO and CPO because primary elections are the only occasion for Ohio voters to select or change their party affiliation. 7 (This is accomplished by requesting the ballot of a political party in a partisan primary election. Ohio Secretary of State, Frequently Asked Questions About General Voting and Voter Registration, (last visited Aug. 15, 2014); see also Cuyahoga County Board of Elections, How Do I Declare or Change Political Party Affiliation, (last visited Aug. 15, 2014).) a. Preventing Minor Parties from Accessing the Primary Denies Voters the Right to Associate for Political Purposes. When CPO (and likely GPOHIO) is dissolved following the November 2014 General Election, voters affiliated with the party will be stripped of their party affiliation. Because S.B. 193 will then prevent CPO and other dissolved parties from re-forming and fielding candidates until 2016, and because these parties will be denied access to the 2016 Primary Election, voters will be barred from affiliating with these parties until at least Denying a voter the right to associate with a minor party is an infringement of the voter s right to associate for the advancement of political beliefs. Williams, 393 U.S. at 30; Blackwell, 462 F.3d at 585 (same); see also Storer v. Brown, 415 U.S. 724, 729 (1974) (recognizing the right to associate for political purposes ); Kusper v. Pontikes, 414 U.S. 51, 56- voters will decide to forego the opportunity to vote in a partisan primary based on the possibility that a minor party candidate whose platform appeals to them may choose to run. 7 See, e.g., O.R.C & ; Ohio Secretary of State, Frequently Asked Questions About General Voting and Voter Registration, (last visited Aug. 15, 2014) (noting that Ohio voters affiliate with parties by requesting the ballot of a political party in a partisan primary election ); Cuyahoga County Board of Elections, How Do I Declare or Change Political Party Affiliation, (last visited Aug. 15, 2014) ( Under Ohio election law, you can change your political party at a Primary Election only. ) (emphasis added). 10

17 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 17 of 28 PAGEID #: (1973) ( There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of orderly group activity protected by the First and Fourteenth Amendments. The right to associate with the political party of one s choice is an integral part of this basic constitutional freedom. ) (internal citations omitted). b. Preventing Minor Parties from Accessing the Primary Deprives Them of the Ability to Organize and Participate in the Political Process. S.B. 193 places minor parties including GPOHIO and CPO, which already operate under significantly greater financial constraints than major political parties, at a substantial disadvantage by unjustifiably interfering with the ability of these parties to organize and severely burdening their attempts to participate in the political process. See, e.g., Williams, 393 U.S. at 32 (noting that [n]ew parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as old parties have had in the past ) (emphasis added); see also Blackwell, 462 F.3d at 587 & 590 (noting that burdens imposed on a party are severe when they affect the political party s ability to perform its primary functions organizing and developing, recruiting supporters, choosing a candidate, and placing that candidate on the general election ballot in hopes of winning votes and ultimately, the right to govern ). The immediate harm of being excluded from a primary under S.B. 193 manifests in at least two ways: First, by dissolving minor parties and preventing them from competing in partisan primary elections upon re-formation, S.B. 193 handicaps these parties by preventing them from adding new members, or even retaining their current ones. 8 When a minor party is dissolved, its 8 As already noted, the only manner by which Ohio voters can select or change their party affiliation is by requesting the ballot of a political party in a partisan primary election. Ohio Secretary of State, Frequently Asked Questions About General Voting and Voter Registration. 11

18 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 18 of 28 PAGEID #: 3281 members will be stripped of their affiliation and denied the ability to re-affiliate with their party for at the next two-and-a-half years. 9 See, e.g., O.R.C (A). During this lengthy span of time, all of the minor party s members, if and when they vote in a party primary, will be converted to members of different parties. Thus, the dominant parties will cannibalize and absorb all of the voters who previously were minor party members. Second, being excluded from primaries deprives minor parties of the benefits that flow from primary participation, such as the ability to obtain party membership lists and build name recognition. Party membership lists are valuable tools for parties to identify voters who support their candidates and platforms and would be likely to volunteer time or donate funds. See, e.g., Baer v. Meyer, 577 F. Supp. 838, 843 (D. Colo. 1984) (recognizing that party membership lists are invaluable in organizing campaigns, enlisting party workers and raising funds ). Additionally, participation in the primary election informs voters of a minor party s existence and helps these parties build name recognition. (See, e.g., Shrader Decl. (Ex. A) ( Name recognition is especially valuable to us because some people would not know that our party existed without seeing us listed on primary election ballots. Sometimes voters see our name on the primary ballot, look up what our party is about on the internet, and then decide to affiliate with us or donate to our party. )). Even beyond the harms described above, there are other injuries that minor parties will suffer as a result of being excluded from primary participation. See Part III(B)(1)(c), immediately below. 9 For example, when CPO (and likely GPOHIO) is dissolved in November 2014, S.B. 193 will prevent the party from reforming and placing candidates on the ballot in 2015 and also prevent the party from accessing the primary ballot in Thus, the earliest time that CPO (or GPOHIO) candidates would be able to access a partisan ballot would be the May primaries in This is a nearly 2.5 year gap in time. 12

19 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 19 of 28 PAGEID #: 3282 c. Preventing Minor Parties from Accessing the Primary Severely Restricts the Pool of Potential Signers for S.B. 193 Nominating Petitions. Despite the fact that voters have no method or ability to affiliate with parties formed via petition, and are considered to be automatically affiliated with different parties when they vote in a partisan primary, S.B. 193 requires that the nominating petitions for minor party candidates be signed by 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. O.R.C (B)(2) (emphasis added). Thus, any voter who cast a ballot in a partisan primary is precluded from signing the nominating petition for any candidate from a newlyforming political party for a period of three years. Since regular voters are barred, the pool of likely signatories is very small. In essence, the only voters from whom minor party candidates will be able to obtain signatures will be: (1) brand new voters 10 or (2) individuals who are too apathetic to have voted in any of the previous three primaries. (See, e.g., Shrader Decl. (Ex. A) 24). S.B. 193 thus constructs a barrier that severely limits the ability of minor party candidates to obtain sufficient signatures on their nominating petitions to access to the general election ballot. See Blackwell, 462 F.3d at 590 (describing fundamental political activities to include the ability of a party to place candidates on the general election ballot). 2. S.B. 193 Will Completely Prevent Minor Political Parties from Forming and Fielding Candidates in 2015 and All Other Odd-Numbered Years. S.B. 193 completely prevents minor parties from forming and fielding candidates in oddnumbered years. Though unbelievable, the existence of this insurmountable barrier is clear: 10 New voters would encompass those individuals who became eligible to vote in the short span of time between the primary election and the date by which nominating petitions must be submitted. 13

20 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 20 of 28 PAGEID #: 3283 First, Section (A)(1)(b) of the Ohio Revised Code outlines the requirements for party formation petitions. As outlined in this section, party formation petitions must declare[] 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 more than one hundred twenty-five days after the date of filing. O.R.C (A)(1)(b)(iii) (emphasis added). Second, Section (A) of the Ohio Revised Code outlines the process for filing, processing, and challenging party formation petitions. O.R.C (A)(1) states: When a party formation petition meeting the requirements of section 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. ORC (A)(1) (emphasis added). These sections of the Ohio Revised Code make it clear that parties forming via petition can only nominate candidates for the general election ballot in even-numbered years. If GPOHIO is dissolved, and because CPO will unquestionably be dissolved immediately following the November 2014 election, GPOHIO and CPO will be prohibited from fielding candidates in any 2015 partisan election. 11 (See, e.g., Shrader Decl. (Ex. A) 15-18). This complete ban on minor party entry in 2015 is manifestly unconstitutional. 11 While the majority of elections held in odd-numbered years are non-partisan in nature, many local elections throughout the state are partisan. For a sampling of partisan elections held in 2013, see Richland County Board of Elections, Candidate List & Questions/Issues, available at 20Elections/Docs/2013/ %20PRIMARY%20ELECTION%20Candidate%20List%20&%20Question%20 and%20issues.pdf; Cuyahoga County Board of Elections, 2013 Election Calendar, available at Allen County Board of Elections, 2013 Filing Deadlines, available at Deadlines.pdf; Franklin County Board of Elections, 2013 Primary Election Schedule, available at 14

21 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 21 of 28 PAGEID #: 3284 Adding to the obvious harm inflicted by being flatly shut out of an entire election cycle, the inability to receive recognition in 2015 also threatens the future viability of both GPOHIO and CPO. Shut out of existence, GPOHIO and CPO will be unable to continue building their brand as a party and will be incapable of fielding candidates. This will reduce their viability in the following election cycle (2016) when they will -- at last -- be permitted to access the ballot. (Shrader Decl. (Ex. A) 19-20). Of course, at this time, when they do reemerge out of oblivion, no one who voted in the 2015 or 2016 partisan primaries will be able to sign any of their candidates petitions. These infringements on the rights of the minor parties also constitute infringements on the rights of 2015 and 2016 voters. Blackwell, 462 F.3d at 588 ( The ability of a political party to appear on the general election ballot affects not only the party s rights but also the First Amendment rights of voters. ) (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986)). It is hard to imagine a more complete or blatant burden than this total prohibition. 3. Additional Confounding and Flawed Provisions Are Present in S.B Possibly as an artifact of the haste with which it was enacted, S.B. 193 contains several additional confusing and flawed provisions. As noted, supra, party formation petitions must be submitted more than one hundred twenty-five days before an even-numbered year general election, in which a party is seeking to field a candidate. O.R.C (A)(1). (This deadline will fall in the July directly preceding a General Election.) S.B. 193 also provides, however, that when a party has formed by petition, the election that is to determine whether it can maintain its status for a period of four years will 15

22 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 22 of 28 PAGEID #: 3285 be the first election for governor or president which occurs not less than twelve months subsequent to the formation of such [a] party. O.R.C (F)(2)(b) (emphasis added). Thus, if a party forms via petition, the election that will determine whether it avoids dissolution will not be the upcoming gubernatorial or presidential election to which it seeks access, but rather, the gubernatorial or presidential election that will take place two years in the future. 12 applied: The following example helps demonstrate how O.R.C (F)(2)(b) may be Minor Party wishes to place a gubernatorial candidate on the ballot in Election Year Y. It submits its petition in Election Year Y, more than 125 days before the General Election. Minor Party receives more than three percent of the vote in the General Election, which would normally secure its status as a political party in Ohio for a period of four years. O.R.C (F)(2)(a) & (A)(1)(a). However, according to O.R.C (F)(2)(b), because it is a new party, Minor Party s performance in the gubernatorial election will not matter. Rather, Minor Party will be required to field a candidate for President in 2 years (Election Year Y+2). Assume that Minor Party, like GPOHIO and CPO, historically receives a higher percentage of the vote in gubernatorial elections than in presidential elections, and that, when the Presidential General Election comes around (in Election Year Y+2), Minor Party s candidate is unable to secure three percent of the vote. As a result, Minor Party is dissolved and its members lose their political affiliation. Minor Party is unable to re-form the following year, and can only obtain recognition through the S.B. 193 petition process in the next Gubernatorial Election (Election Year Y+4). Because it could not compete in the primary in Election Year Y+4, Minor Party has no affiliated members. Additionally, even if Minor Party is able to find individuals to sign its candidate petition and secures three percent of the vote, the election that will determine whether or not it can maintain party status for a period of 4 years will be the Presidential Election in Year Y+6. Defendants may point to the fact that, even though the state need not determine the sufficiency of a party formation petition until 95 days before the general election, O.R.C (A)(2)(d), S.B. 193 also states that a new party comes into legal existence on the date 12 As noted above, both GPOHIO and CPO were recognized this year, not by petition, but via court order. Thus, because O.R.C (F)(2)(b) applies to parties that have formed by petition, it does not apply to either GPOHIO or CPO this year. 16

23 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 23 of 28 PAGEID #: 3286 of filing. O.R.C (A)(1). Thus, nothing in S.B. 193 would prevent a party from submitting its formation petition more than a year in advance of the upcoming gubernatorial or presidential election in order for the qualifying election to be the election to which the party is seeking immediate access. However, forcing a party forming by petition to have to submit its party formation petition more than a year in advance of an election runs afoul of the very constitutional infirmities that were seen in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579. In Blackwell, the Sixth Circuit determined that a ballot access scheme that required a party to submit its formation petition more than a year before the election in which they wish to run impacted a party s ability to appear on the general election ballot because [d]eadlines early in the election cycle require 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. Blackwell, 462 F.3d at 586 & 594. Another area of confusion in the statute is that, while parties forming via petition may only seek to place candidates on the ballot in even-numbered years, see Part III(B)(2), Ohio has no deadline on how early candidates may seek to have their nominating petitions signed. As mentioned in Part III(B)(1)(c), supra, S.B. 193 limits who may sign a candidate s nominating petition to 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. O.R.C (B)(2). Therefore, while candidates could, under S.B. 193, seek to obtain signatures prior to the primary election being held immediately preceding the general election in which they are seeking to compete, a cluster of questions would then arise: 17

24 Case: 2:13-cv MHW-TPK Doc #: Filed: 08/15/14 Page: 24 of 28 PAGEID #: 3287 If a candidate collects signatures in the preceding odd-numbered year, what year will be considered the current year under O.R.C (B)(2)? The year in which the petition is signed or the year in which the candidate is seeking to access the ballot? Presumably, individuals who sign a candidate s nominating petition prior to the primary would be ineligible to cast a partisan vote in the primary election. How would this be policed (particularly given the fact that a candidate s petition need not be submitted or reviewed prior to the primary election)? If an individual who was qualified to sign a candidate s nominating petition did so before the primary and then subsequently cast a partisan ballot in the primary election, would that individual s signature (and others like it) be deemed invalid? If so, this could result in a determination that a candidate s petition is not sufficient despite the fact that the petition signatures were sufficient at the time that they were gathered. This tangle of confounding and flawed provisions places minor parties and their candidates in a state of perpetual uncertainty. 4. S.B. 193, Examined in Its Totality, Places Severe Burdens on the Rights of Minor Political Parties, Their Candidates, and Ohio Voters. Clearly, the ballot access rules outlined in Parts III(B)(1) and (2) raise serious constitutional concerns in and of themselves. For instance, Intervening Plaintiffs face dissolution immediately following November 4, 2014 the date of the General Election. When dissolved, these parties will be prevented from re-forming and fielding candidates until This means that the earliest possible year in which Ohioans will be able to affiliate with GPOHIO and CPO will be Meanwhile, GPOHIO and CPO will be completely precluded from fielding candidates in partisan elections in 2015, will be prevented from building momentum and their brand name, will have no affiliated members who can be identified to sign nominating petitions for candidates wishing to participate in the 2016 General Election, and will be unable to identify voters who would be most willing to donate time or money in support of GPOHIO, CPO, and their candidates. 18