Case 2:06-cv GCS-TPK Document 5 Filed 07/31/2006 Page 1 of 24 : : : : : : : : : PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION

Transcription

1 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION CHARLES R. MORRISON, et al., Plaintiffs, v. MICHAEL F. COLLEY, et al., Defendants. Case No. 206-cv GCS-TPK Judge Smith Magistrate Judge Kemp PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs hereby move this Court for a preliminary injunction enjoining the application and enforcement of section of the Ohio Revised Code by Defendants, and further ordering Defendants to certify Charles Morrison to the ballot as an independent candidate for Congress, for the reason that the Statute violates Plaintiffs rights to due process and the freedom of speech and association, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. If enforcement of the Statute is not enjoined, Plaintiffs will continue to suffer irreparable harm for which there is no adequate remedy at law. This motion is accompanied by a Memorandum in Support. Plaintiffs request that the Court waive the requirement to give security pursuant to Fed. R. Civ. P. 65(c).

2 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 2 of 24 Respectfully submitted, David R. Langdon ( ) Lead Counsel Joshua B. Bolinger ( ) LANGDON & HARTMAN LLC Reading Road, Ste. 104 Cincinnati, Ohio Telephone (513) Facsimile (513) dlangdon@langdonlaw.com Christopher P. Finney ( ) FINNEY, STAGNARO, SABA & KLUSMEIER 2623 Erie Avenue Cincinnati, Ohio Telephone (513) Facsimile (513) cfinney@fssk-law.com Attorneys for Plaintiffs Charles R. Morrison, Donald E. Eckhart and Alexander Smith - 2 -

3 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 3 of 24 CERTIFICATE OF SERVICE The undersigned does hereby certify that on this 31st day of July, 2006, the foregoing Motion was electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following Patrick J. Piccininni Franklin County Prosecutor s Office 363 South High Street, 13 th Floor Columbus, OH David R. Langdon ( ) LANGDON & HARTMAN LLC Reading Road, Ste. 104 Cincinnati, Ohio Telephone (513) Facsimile (513) dlangdon@langdonlaw.com - 3 -

4 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 4 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION CHARLES R. MORRISON, et al., Plaintiffs, v. MICHAEL F. COLLEY, et al., Defendants. Case No. 206-cv GCS-TPK Judge Smith Magistrate Judge Kemp PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION I. INTRODUCTION Historically, political figures outside the two major parties have been fertile sources of new ideas and programs; many of their challenges to the status quo have in time made their way into the political mainstream. In short, the primary values protected by the First Amendment a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen are served when election campaigns are not monopolized by the existing political parties. 1 Independent candidates, by definition, are not a uniform assemblage. They subscribe to diverse views across the political spectrum left, center, and right. Whatever those differences, independent candidates are united in the realization that if the country is to advance and evolve, something must be done about partisanship and domination of the political process by special interests. In the same vein, informed citizen voters are increasingly looking beyond the two major political parties and seeking respite from the extreme partisanship that currently grips the modern political process. Representing the largest single bloc of potential voters in the country, 1 Anderson v. Celebrezze, 460 U.S. 780, 794 (1983), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

5 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 5 of 24 independent voters are empowered with the means to inspire the outcome of crucial elections. Yet, this means can quickly be curtailed by a state s unwarranted denial of the right to vote freely and effectively for the qualified candidate of one s choosing. Indeed, the very essence of an independent candidate and voter notwithstanding the historical import afforded to their respective roles in our democratic process can be neutralized by the unchecked and often illicit action of partisan election officials untethered by vague elections statutes. This case involves a challenge to just such a statute, and to the politically-motivated construction and application of that statute by Defendants to deny ballot placement to Charlie Morrison as an independent candidate for Congress in November. II. PROCEDURAL HISTORY Plaintiffs initiated this matter a few days ago by filing a Complaint seeking declaratory and injunctive relief enjoining the application by Defendants of section of the Ohio Revised Code (the Statute ) to deny ballot access to Charlie Morrison. Plaintiffs complain that the Statute, as construed by Defendants, violates their rights to due process, the freedom of speech and association, and the equal protection of the laws. 2 III. SUMMARY OF FACTS 3 Until recently, Plaintiff Charlie Morrison considered himself a Republican. And it is likely that others considered him a Republican as well, given his history of voting in Republican primaries and running for various public and party offices as a Republican. 2 The predominant focus of this Memorandum is Plaintiffs void for vagueness claim under the Due Process Clause of the Fourteenth Amendment. Plaintiffs claim challenging the unjustified burden imposed by Defendants counter-textual interpretation of the Statute and their claim challenging Defendants discriminatory application of the Statute against Morrison are not presented in this memorandum. At the appropriate time and only to the extent necessary, those claims will be presented to the Court in a supplemental memorandum in support of Plaintiffs motion for a preliminary injunction, or in a memorandum supporting their request for permanent injunctive relief. 3 Rather than reciting verbatim each allegation that may be relevant to the Court s determination of this Motion, the following briefly summarizes the detailed factual allegations set forth in Plaintiffs Complaint, which allegations are incorporated herein by reference

6 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 6 of 24 This year, however, was different. This year, Morrison decided to run as an independent candidate for Congress. Toward that end, on May 1, 2006, Morrison filed a statement of candidacy and nominating petition with the Franklin County Board of Elections (the Board ). Morrison s petition complied in all respects with the Statute, the pertinent part of which provides [e]ach person desiring to become an independent candidate for an office for which candidates may be nominated at a primary election shall file no later than four p.m. of the day before the day of the primary election immediately preceding the general election at which such candidacy is to be voted for by the voters, a statement of candidacy and nominating petition as provided in section of the Revised Code. He used the petition form prescribed by the Ohio Secretary of State, and submitted well in excess of the required number of signatures of qualified electors in the District. The signers of his Petition included Republicans, Democrats and independents, demonstrating support across a broad ideological spectrum. 4 Shortly after Morrison filed his nominating petitions, a protest challenging his candidacy was filed with the Board (by the chairman of the Republican Party of each of the counties in the district) claiming that Morrison s history as a Republican voter and candidate automatically disqualified him from ballot placement under the Statute as an independent candidate. According to the protestors, Morrison was not an independent candidate within the meaning of that term as it used in the Statute. Pursuant to section (I), an independent candidate is any candidate who claims not to be affiliated with a political party, and whose name has been certified on the office-type ballot at a general or special election 4 Unlike its counterpart for party nomination (which requires the candidate to declare under penalty of election falsification that he is a member of the Republican or Democrat party), the petition for independent candidacy contains no space for the candidate to declare his lack of affiliation with a political party. Indeed, the only requirement is that he is a qualified elector in the applicable district, and that he desires to be a candidate for the office sought. Likewise, the signers of Morrison s petition, unlike the signers of petitions for party nomination, are not required to be a member of or affiliated with either the Republican or Democrat party. Rather, to be eligible to sign Morrison s petition, the only requirement is that the signer be a qualified elector in the district. Their voting history as a Republican or Democrat is not relevant

7 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 7 of 24 through the filing of a statement of candidacy and nominating petition, as prescribed in section of the Revised Code. 5 Taking advantage of the Statute s vagueness on this point, the protestors argued that the first part of the definition (describing an independent candidate as a candidate who claims not to be affiliated with a political party ), but not the second part (describing an independent candidate as a candidate whose name has been certified to the ballot) is a substantive requirement that an aspiring candidate is required to satisfy to be certified to the ballot as an independent candidate. As applied to Morrison, the protestors concluded that because he had voted in past Republican primaries and was a candidate for Republican central committee before and after May 1, 2006, he was not and indeed could not be an independent candidate. On June 21, 2006, the Board held a hearing on the protest. At the hearing (and in a hearing brief submitted to the Board prior to the hearing), Morrison refuted the protestors counter-textual interpretation, arguing that the definition of independent candidate is not a substantive requirement that must be satisfied before a candidate may be certified to the ballot, but is merely a description of a candidate who had satisfied the petition requirements set forth in the Statute. In the alternative, Morrison argued that even assuming that the first part of the definition is a substantive requirement under the Statute, his sworn statement (made at the protest hearing) that he is not affiliated with a political party satisfied that requirement. At the conclusion of the hearing, the Board tied 2-2 on a motion to certify Morrison to the ballot, with the two Republican members of the Board (Colley and Petree) voting against certification. Pursuant to Ohio law, the motion was submitted to the Secretary of State to break the tie. As part of the tie-breaking process, the two Republican members of the Board that voted 5 The difference in verb tenses should not go unnoticed. The first part of the definition describes an independent candidate as a candidate who claims (present tense), rather than one who has claimed (past tense), not to be affiliated with a political party. The second part of the definition, however, describes an independent candidate as a candidate whose name has been certified (past tense) to the ballot

8 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 8 of 24 against certification submitted a letter to the Secretary which contained their interpretation of the Statute and the reasons they voted against certification. 6 In a letter to the Board of Elections dated July 14, 2006, Assistant Secretary of State Monty Lobb (the Secretary ) broke the tie in favor of his fellow Republicans, voting against certification. The letter set forth the Secretary s interpretation and construction of the Statute, and his rationale for voting to deny ballot placement to Morrison. (See Complaint, at Ex. A.) As a result of Defendants and the Secretary s construction and application of the Statute 7, Morrison will not appear on the ballot on November 7, 2006 as a candidate for election to Congress. IV. ARGUMENT A. Standard for Issuance of Preliminary Injunction When considering whether a preliminary injunction is proper, this Court is to consider four factors (1) whether the movants have a strong likelihood of success on the merits; (2) whether the movants would suffer irreparable injury if a preliminary injunction is not granted; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of preliminary injunction. McPherson v. Michigan High Sch. Athletic Ass n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc). These factors are to be balanced against one another and should not be considered prerequisites to the issuance of a preliminary injunction. See United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg l Transit Auth., 163 F.3d 341, 347 (6th Cir. 1998). 6 The two Democrat members who voted in favor of the motion also submitted a letter to the Secretary explaining their reasoning for voting in favor of certification. 7 Hereafter, unless otherwise indicated, references to Defendants construction of the Statute include the Secretary s construction

9 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 9 of 24 B. Plaintiffs satisfy each of the elements for the issuance of a preliminary injunction enjoining application of the Statute to deny ballot placement to Morrison. As construed, the Statute violates Plaintiffs rights to due process and the freedom of speech and association as guaranteed by the First and Fourteenth Amendments. To stop the irreparable harm Plaintiffs are presently suffering and to prevent future harm, Plaintiffs petition this Court to issue a preliminary injunction enjoining Defendants from enforcing the Statute to deny ballot access to Morrison. Each of the four elements necessary for this Court to issue that injunction is addressed in turn below. 1. Plaintiffs have a strong likelihood of success on the merits of their challenge to the Statute, for the reason that the Statute is unconstitutionally vague in violation of Plaintiffs First and Fourteenth Amendment rights to due process and free association. Plaintiffs strong likelihood of prevailing on the merits in this action is attributable to the manifest unconstitutionality of the Statute. Statutes regulating ballot access by their very nature encroach not only upon the fundamental rights of citizens to associate with and cast a meaningful and effective vote for the qualified candidates of their choosing, but likewise encroach upon the due process and associational rights of candidates to run for elected office. In light of the restrictive nature of ballot access statutes and the important constitutional rights implicated thereby, it is imperative that such statutes be drawn with the utmost precision. As elaborated below, the Statute herein challenged misses that mark, employing unconstitutionally vague terminology which (i) fails to give fair notice of expected conduct to aspiring independent candidates, and (ii) affords unfettered and unreviewable discretion to election officials to grant or deny ballot access to those candidates

10 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 10 of 24 a. Nature of the constitutional rights implicated by the Statute. Several fundamental rights are implicated by Defendants denial of ballot placement to Morrison 8, including the rights to freedom of speech and to associate for the advancement of political beliefs 9, the right of candidates to run for office 10, and the right of citizens to vote freely, effectively, and for the candidates of their choice. 11 Indeed, any restriction on ballot access by candidates necessarily burdens not just the rights of the candidate, but the rights of voters and, more specifically, the candidate s supporters. Anderson, 460 U.S. at 786, citing Williams v. Rhodes, 393 U.S. 23, 31 (1968); Bullock v. Carter, 405 U.S. 134, 143 ( [T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters ); Kay v. Mills, 490 F. Supp. 844 (E.D. Ky 1980) ( Any regulation of access to the ballot must conform to the principles of equal protection and due process ). In Rhodes, the Supreme Court stated In the present situation the state laws place burdens on 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. Both of these rights, of course, rank among our most precious freedoms. 393 U.S. at (emphasis added). Moreover, that this case involves an independent candidate and his supporters only strengthens the importance of protecting these rights. To be sure, the Supreme Court has 8 See Anderson, 460 U.S. at 786 ( The impact of candidate eligibility requirements on voters implicates basic constitutional rights. ) 9 See, e.g., Kusper v. Pontikes, 414 U.S. 51, (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. ). 10 See, e.g., Lippitt v. Cipollone, 404 U.S. 1032, 1033 (1972) (right to run for public office is fundamental). 11 See, e.g., Wesberry v. Sanders, 376 U.S. 1, 17 (1964) ( no right is more precious in a free country than that of having a voice in the election of those who make the laws under which as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. ) - 7 -

11 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 11 of 24 carefully guarded the free speech and associational rights of third parties and independent candidates, frequently noting their important role in contributing to the national discourse. See, e.g., Rhodes, 393 U.S. at 39 ( 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. ). b. The Statute is void for vagueness in violation of the Due Process clause of the Fourteenth Amendment. (1) Vagueness standard in general A law is void for vagueness under the due process clause of the Fourteenth Amendment if its prohibitive terms are not clearly defined such that a person of ordinary intelligence can readily identify the applicable standard for inclusion and exclusion. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The vagueness doctrine ensures that all be informed as to what the State commands or forbids. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). As the Supreme Court stated in Grayned, if arbitrary and discriminatory enforcement is to be prevented, the law must provide explicit standards for those who enforce it. Id., 408 U.S. at 108. Not only do vague laws... trap the innocent by not providing fair warning, but laws that fail to provide explicit standards guiding their enforcement impermissibly delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Id. at The absence of clear standards guiding the discretion of the public official vested with the authority to enforce the enactment invites abuse by enabling the official to administer the policy on the basis of impermissible factors. United Food, 163 F.3d at 359. The standard of review for vagueness is especially strict where, as here, constitutionally protected freedoms are involved. Indeed, [p]recision of regulation must be the touchstone in an - 8 -

12 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 12 of 24 area so closely touching our most precious freedoms. NAACP v. Button, 371 U.S. 415, 438 (1963). As the Supreme Court stated in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, (1982) The degree of vagueness that the Constitution tolerates as well as the relative importance of fair notice and fair enforcement depend in part on the nature of the enactment... Perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or association, a more stringent vagueness test should apply. (Emphasis added.) (2) Vagueness standard for ballot access statutes In light of the constitutional rights at stake, a state statute governing ballot access must be precisely drawn, so that (i) the applicable coverage of the statute is clear, (ii) the statute specifies what those within its reach are required to do in order to comply, and (iii) the statute contains well-defined standards to guide elections officials in their application and enforcement of the statute. See Hynes v. Mayor of Oradell, 425 U.S. 610, (1976). If the statute fails any of these requirements, it is void for vagueness in violation of the due process rights of aspiring candidates and their supporters. Several courts have applied the three Hynes criteria in invalidating ballot access statutes on due process grounds. For example, in Kay v. Mills, 490 F. Supp. 844 (E.D. Ky. 1980), a candidate for the Democratic presidential nomination sought to have his name appear on the Kentucky presidential primary ballot. The statute regulating ballot access provided that the state board of elections would nominate all those generally advocated and nationally recognized as candidates of the political parties for the presidential nomination process. Id. at 846. After Kay s name was not chosen for the primary ballot by the state elections board, he filed suit in federal district court challenging the statute as unconstitutionally vague

13 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 13 of 24 The district court invalidated the statute, applying the three vagueness criteria articulated in Hynes. The court held that since the statute did not specify the criteria for qualifying a candidate as generally advocated and nationally recognized, it was unconstitutionally vague, for no candidate could know whether he would be sufficiently well-recognized to be placed on the ballot. Kay, 490 F.Supp. at 846. The court also found that the statute lacked objective enforcement standards to guide the elections board, and prevent politically-influenced ballot access decisions. Of particular significance to the court was the composition of the elections board, which included partisan elected officials and political appointees, whose decisions whether to place candidates on the ballot were described by the court as so fraught with potential for abuse as to render the statute void. Id. at In a similar case in North Carolina, an unaffiliated candidate seeking ballot placement as a candidate for election to the U.S. Senate challenged a statute providing that petitions for unaffiliated candidates running for state office must be signed by qualified voters of the State equal in number to two percent (2%) of the total number of registered voters in the State as reflected by the most recent statistical report issued by the State Board of Elections. Delaney v. Bartlett, 370 F.Supp.2d 373, 375 (M.D.N.C. 2004) (emphasis added). Applying the three Hynes factors, the court invalidated the statute as unconstitutionally vague for failing to define a statistical report and for failing to specify the time frame for the most recent statistical report. Id. at 384. Noting the possible consequences of the necessary guesswork that was required of candidates in filing petitions, the court stated that a candidate could submit far more or far fewer signatures than the Board s requirement without knowing his efforts have been misdirected. Id. Addressing the third Hynes factor, the court noted that a signature requirement that was difficult to determine could lead to arbitrary, nonreviewable enforcement by partisan

14 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 14 of 24 election officials with the authority to determine the most recent statistical report. Id. at (3) Application of the Hynes criteria to the Statute As construed by Defendants, the Statute requires guesswork by aspiring candidates and the exercise of subjective judgment by election officials, without the aid of any objective norms as to its meaning and scope of application. This is evident in at least two (if not all three) of the potential areas of infirmity cited by the Supreme Court in Hynes, as discussed below. (a) The Statute fails to specify what a person desiring to become an independent candidate must do to be certified to the ballot. Both on its face and as construed, the Statute does not adequately specify what a person must do to become an independent candidate. According to Defendants, rather than merely describing a person who has satisfied the requirements set forth in the Statute, the definition of independent candidate found in Section (I) operates as a substantive requirement that must be fulfilled by a person desiring to become an independent candidate. 13 In other words, to become an independent candidate, a person must first be an independent candidate. And to be what they aspire to become, it is unclear from Defendants interpretation whether the aspiring candidates must merely have claim[ed] not to be affiliated with a political party, or 12 For additional cases in which courts have invalidated election statutes on vagueness grounds, see Citizens to Establish A Reform Party in Arkansas v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996) (Arkansas election statutes governing ballot access for new political party void for vagueness and therefore unconstitutionally applied ); DeLaney v. Bartlett, 370 F. Supp.2d 373 (M.D.N.C. 2004) (statute imposing certain eligibility requirements on unaffiliated candidates unconstitutionally vague); LaRouche v. Kezer, 787 F. Supp. 298, 304 (D. Conn. 1982) (Connecticut ballot access statute unconstitutionally vague); Duke v. Connell, 790 F. Supp. 50 (D. R.I. 1992) (Rhode Island statute governing selection to primary ballot unconstitutionally vague and thus not reasonably necessary to achieve the legitimate state interest of regulating ballot access ); American Party of Arkansas v. Jernigan, 424 F. Supp. 943 (E.D. Ark. 1977) (Arkansas statute with filing deadlines and petition requirements for new political parties too vague and indefinite to be enforced ). 13 Apparently recognizing the proverbial chicken and the egg conundrum created by their interpretation (i.e., that to be certified as an independent candidate you must already be a certified candidate), Defendants and the Assistant Secretary conveniently have construed the Statute such that only the first portion of the definition of independent candidate must be satisfied prior to ballot certification

15 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 15 of 24 whether they must truly be unaffiliated with a political party. That and several other difficult questions that arise from Defendants construction are discussed below, preceded by a brief discussion of the Statute s facial vagueness. While Plaintiffs maintain (as they did before the Board) that Defendants interpretation of the Statute is wrong, Plaintiffs would not be so bold as to suggest that the meaning of the Statute is clear. It is not. Indeed, when the respective meanings of the defined terms (i.e., independent candidate and candidate ) are inserted, the Statute is utterly nonsensical Each person desiring to become a [[qualified person certified in accordance with the provisions of the Revised Code for placement on the official ballot of a primary, general, or special election to be held in this state, or any qualified person who claims to be a write-in candidate, or who knowingly assents to being represented as a write-in candidate by another at either a primary, general, or special election to be held in this state] who claims not to be affiliated with a political party, and whose name has been certified on the office-type ballot at a general or special election through the filing of a statement of candidacy and nominating petition, as prescribed in section [ ] of the Revised Code] for an office for which candidates may be nominated at a primary election shall file no later than four p.m. of the day before the day of the primary election immediately preceding the general election at which such candidacy is to be voted for by the voters, a statement of candidacy and nominating petition as provided in section [ ] of the Revised Code. Indubitably, the Statute on its face fails to provide fair notice to aspiring independent candidates of what they must do to be certified to the ballot pursuant to the Statute. Nonetheless, the greater concern (and thus the primary focus of this memorandum) is the vagueness that derives from Defendants construction of the Statute. While as a general proposition state and local officials charged with enforcement of statutes may authoritatively construe unconstitutionally vague statutes to render them constitutional, in this instance, neither the Defendants (who are charged with enforcement of the Statute) nor the Secretary (who is Ohio s chief elections official charged with instructing Defendants as to the proper interpretation

16 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 16 of 24 of election statutes) has construed the Statute so as to eliminate the inherent vagueness from which it otherwise suffers. If anything, they have only made it worse. Indeed, innumerable uncertainties arise from Defendants construction of the Statute, leaving aspiring candidates in the dark as to what conduct is required of them for ballot certification. These uncertainties are not resolved from the text of the Statute, and are only exacerbated by the conflicting constructions of the Statute offered by Defendants and the Secretary, as discussed below. 14 (i) Defendants construction of the Statute In their post-hearing letter to the Secretary, Republican board members Colley and Petree state that the plain reading of section (I) of the Revised Code clearly requires an independent to be unfettered by membership in or affiliation with a political party (Complaint, at Ex. B.) They further state While Mr. Morrison may presently wish to disassociate himself from the Republican Party for purpose of running as an independent candidate for Congress this November, he cannot do so simply on a whim (Mr. Morrison stated at the June 21, 2006 protest hearing that as of May 3 [2006] I have no party affiliation. ) but only through an affirmative act (State ex rel. Bouse v. Cickelli (1954), 97 Ohio App. 43). While neither act is applicable to Mr. Morrison, the only affirmative acts contemplated by statute are found in Sections and.191 of the Revised Code. (Id.) Construed in this manner, the Statute leaves aspiring candidates with no guidance as to what they must do (or not do) to comply with its terms. A few examples of the numerous uncertainties that abound are discussed below. According to Defendants, the Statute requires the aspiring candidate to take some kind of (non-whimsical) affirmative act of disassociation to become unfettered by membership in 14 Of course, to the extent the Secretary s interpretation conflicts with that of the Defendants, the Secretary s interpretation controls. See generally R.C (E); Maschari v. Tone, 103 Ohio St.3d 411, 416, 816 N.E.2d 579 (2004)

17 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 17 of 24 or affiliation with a political party? At the risk of stating the obvious, when this statement is unpacked, it leaves a mess of unanswered questions scattered about. For starters, what affirmative act of disassociation is required to comply with this requirement? 15 And when must it occur? Is the candidate required to complete his affirmative act of disassociation before he files his nominating petition, or can it be completed after the petition is filed? (And if the latter, how long after? Is within a week acceptable? Two weeks?) Who must witness the affirmative act of disassociation? Is the candidate required to take this affirmative act in the presence of an elections official, or is some other setting appropriate? Neither the Statute on its face nor Defendants letter provides an answer to any of these important questions. Additional uncertainty stems from the requirement that to be independent the person must be unfettered by membership in or affiliation with a political party. What does it mean to be a member[] of a political party? 16 What does it mean to be affiliated with a political party? (By the use of the disjunctive or, both must be satisfied.) The Statute and Section provide no guidance as to the meaning of these phrases, nor does the letter from Defendant We know from Defendants letter that of the two affirmative acts contemplated by statute, neither is applicable to Morrison. 16 The definition of independent candidate makes no mention of membership in a political party. An independent candidate is one who claims not to be affiliated with a political party. Defendants interpretation adds a second requirement. The person desiring to become an independent candidate, in addition to being a person who claims non-affiliation, must also be a person who claims not to be a member of a political party. 17 To the extent that the court attempts to assign meaning to the phrase from other sections in Title 35 of the Revised Code which contain the same or a similar phrase, the uncertainty of its meaning will only be exacerbated. For example, Section , which governs challenges to the right of an elector to vote in a party primary, provides in division (A)(3) that the right of a person to vote at a primary election may be challenged on the basis [t]hat the person is not affiliated with or is not a member of the political party whose ballot the person desires to vote. Such party affiliation shall be determined by examining the elector s voting record for the current year and the immediately preceding two calendar years as shown on the voter s registration card, using the standards of affiliation specified in the seventh paragraph of section of the Revised Code. *** (B) When the right of a person to vote is challenged upon the ground set forth in division (A)(3) of this section, membership in or political affiliation with a political party shall be determined by the person s statement, made under penalty of election falsification, that the

18 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 18 of 24 A final example of the vagueness problems created by Defendants construction involves the requirement that a would-be candidate must actually be independent, rather than merely claim it (as the plain text of the definition would suggest). The question is, what does it mean to be independent (i.e., not to be affiliated with a political party)? And what is required of the candidate to demonstrate it? Arguably, to claim independence would only require a subjective representation or declaration of non-affiliation. But to actually be independent, however, would presumably require the presentation of evidence to prove non-affiliation with a political party 18, and an objective evaluation of that evidence by (partisan) election officials. These are, needless to say, two very different standards, and aspiring candidates have a constitutional right to know in advance which standard applies. From the foregoing it is plainly evident that the Statute, as construed by Defendants, leaves far too many questions unanswered and thus falls short of the standard of precision that is required for ballot access statutes under the Due Process Clause. (ii) The Secretary s construction of the Statute Unfortunately, the Secretary s construction of the Statute provides no helpful answers to the many questions raised by Defendants interpretation. In fact, it only raises more questions. According to the Secretary, person desires to be affiliated with and supports the principles of the political party whose primary ballot the person desires to vote. (Emphasis added.) Certainly the respective meanings of member of and affiliated with cannot be ascertained by any ordinary person from this nonsense. Is affiliation with a political party under this statute determined based on the prospective voter s previous voting record (and if so which years?), or is it based on the assertion, made under penalty of election falsification, that the voter desires to be affiliated with that political party and that he supports the principles of that political party? Whatever the proper interpretation, no guidance (as to what it means to be unfettered by membership in or affiliation with a political party ) is provided by section Similarly vague terminology and internal inconsistency also plagues section of the Revised Code, concerning challenges to write-in candidacies. 18 In other words, the candidate must prove a negative

19 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 19 of 24 Morrison never made any affirmative declaration or representation of nonaffiliation with the Republican Party at any point prior to, during, or immediately after circulating his two nominating petitions, attestation of affiliation to said party [sic], or requesting and then casting a Republican ballot in the recent Primary Election. R.C (I) requires more. It requires that the candidate claim not to be affiliated with a political party. (Complaint, at Ex. A.) Although less than a model of clarity, this statement suggests that had Morrison made an affirmative declaration of non-affiliation with the Republican Party immediately after requesting and casting a Republican ballot on May 2, 2006 (the day after he submitted his Petition), he would have been in the clear. The problem is, the Statute does not specify when the claim of independence must be made, and neither does the Secretary s interpretation. Granted, the Secretary indicates that if Morrison had made an affirmative declaration of non-affiliation at any point prior to, during, or immediately after circulating his nominating petitions 19 or requesting and casting a Republican ballot, he would have satisfied the definition. But what is meant by immediately? Was Morrison required to have made his declaration of non-affiliation before he left the polling place, or would in the car on the way home have been sufficient? What about the day after the primary? What about two days? (One thing we do know is that June 21, 2006 the day of the protest hearing at which Morrison declared that he was not affiliated with the Republican Party is too late to satisfy the Secretary s undefined timeliness requirement.) Additional uncertainty results when the where and to whom questions are asked. For example, where must the person s affirmative declaration of non-affiliation be made? Must it be made at the board of elections when the petitions are submitted, or somewhere else? And to whom must the declaration be made? Is it required to be made in the presence of an elections 19 What if he had made a declaration of non-affiliation immediately after circulating his nominating petitions, but still voted a Republican ballot on May 2, 2006? Although it doesn t make much sense, it would seem from the Secretary s letter that that would have been sufficient

20 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 20 of 24 official, or would a simple declaration to anyone suffice? (Imagine, if Morrison had simply declared to his wife that he was not affiliated with the Republican Party, he could have avoided all of the hassle and expense of a protest hearing and a federal lawsuit.) Must the declaration be made in writing under penalty of election falsification, as is required of candidates for party nomination pursuant to section ? 20 Ultimately, these are just a smattering of the many unanswered questions which are certain to plague future would-be independent candidates, all of whom will be left confused and angst-ridden in their hopeless attempts to ascertain what the Statute requires of them as they contemplate their path to ballot certification. Fortunately for these Plaintiffs, the Constitution requires more, and the Court should therefore invalidate the Statute and order Defendants to certify Morrison to the ballot. (b) The Statute lacks objective standards for enforcement, thereby affording unbridled discretion to partisan election officials to deny ballot placement. The Statute should be invalidated as unconstitutionally vague for the additional reason that it affords unfettered and unreviewable discretion to election officials to deny ballot placement to a person desiring to become an independent candidate. This discretion derives from the lack of any definitive standards to guide Defendants in deciding whether a person who has submitted a statement of candidacy and nominating petition pursuant to the Statute has satisfied the Statute s requirements. Indeed, both on its face and as construed the Statute fails to 20 Adding to the muddle, the Secretary s construction is inherently contradictory. While the abovequoted portion of the letter suggests that an affirmative declaration or representation of non-affiliation (if made at the right time to the right person in the right manner, etc.) would be sufficient, in the very next paragraph the Secretary states that the facts show Mr. Morrison was never truly independent at any point relevant to this matter. (Complaint, at Ex. A (emphasis sic).) Aside from the internal inconsistency, this construction presents the same interpretative problems presented by Defendants construction, as discussed in subsection (i), above

21 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 21 of 24 specify any of the necessary details (i.e., the who, what, when, where and how ) to allow compliance with its terms, thereby inviting discriminatory enforcement by election officials. To make matters worse, pursuant to the Statute and other Ohio election laws, a decision to grant or deny independent candidate status is determined by a partisan board of elections. 21 And if a tie vote is reached by that board on any particular motion (such as a motion to certify, as occurred here), that tie vote is broken by a partisan Secretary of State. In other words, all of the decision makers are, in the words of the Kentucky district court, political people who, given their substantial partisan interest in the outcome of the election, may not act in a neutral fashion when dealing with ballot access. Kay, 970 F. Supp. at 852. Ultimately, the Statute s absence of objective standards to guide and restrain these partisan officials presents a situation where decisions whether to place candidates on the ballot are so fraught with the potential for abuse that the Statute must be declared void. Id. at 853. (4) Conclusion From the foregoing it is beyond debate that the Statute, both on its face and as construed, fails to demonstrate the exactitude that is necessary of laws governing ballot access. All of the uncertainties that loom over those who desire to be an independent candidate, combined with the overwhelming breadth of discretion enjoyed by election officials (thereby cracking open the door for political motivations to influence ballot certification decisions), serve to deprive would-be candidates and their supporters of their rights to due process, freedom of speech and association, and to vote freely and effectively for the candidate of their choice. As for Morrison, while it is too late for him to know what was expected under the Statute (the only thing he knows is that his whim[sical] claim not to be affiliated with the Republican 21 Each board of elections in Ohio is comprised of four members appointed by the Secretary of State. Two of the members are recommended to the Secretary by the Republican Party, and two are recommended by the Democrat Party. See O.R.C

22 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 22 of 24 Party was not enough), his only hope is for a favorable decision from this Court recognizing the constitutional injustice he has suffered and ordering Defendants to remedy that injustice by certifying him to the ballot. 2. Plaintiffs will suffer irreparable harm if a preliminary injunction is not granted. The Supreme Court has repeatedly held that [t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). Thus, satisfaction of the first prong of the preliminary injunction standard demonstrating a strong likelihood of success on the merits also satisfies the irreparable injury standard. See Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) ( [W]hen a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor ). Plaintiffs have demonstrated a substantial likelihood of success on the merits of their claim that Defendants have violated their due process and associational rights in their application of the Statute to deny ballot placement to Charlie Morrison, and have thereby suffered irreparable harm. 3. Defendants will not suffer harm, and the public interest will be served, if a preliminary injunction is issued enjoining Defendants from applying the Statute against Plaintiffs to deny ballot access. Defendants will not suffer any harm if they are temporarily enjoined from enforcing the unconstitutional Statute and ordered to certify Morrison to the ballot. While the unconstitutional character of the Statute leaves Defendants with no legitimate interest in its continued application, Plaintiffs will suffer irreparable harm if the Statute is not immediately enjoined. Further, it is in the public interest to enjoin Defendants from applying the Statute, as the protection of constitutional rights and particularly First Amendment rights is always in the public interest

23 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 23 of 24 See G & V Lounge, Inc. v. Michigan Liquor Control Comm n, 23 F.3d 1071, 1079 (6th Cir. 1994) ( it is always in the public interest to prevent the violation of a party s constitutional rights ). IV. CONCLUSION For the foregoing reasons, Plaintiffs request that the Court issue a Preliminary Injunction enjoining application of R.C , and further ordering Defendants to certify Morrison to the ballot as an independent candidate for Congress. Respectfully submitted, David R. Langdon ( ) Lead Counsel Joshua B. Bolinger ( ) LANGDON & HARTMAN LLC Reading Road, Ste. 104 Cincinnati, Ohio Telephone (513) Facsimile (513) dlangdon@langdonlaw.com Christopher P. Finney ( ) FINNEY, STAGNARO, SABA & KLUSMEIER 2623 Erie Avenue Cincinnati, Ohio Telephone (513) Facsimile (513) cfinney@fssk-law.com Attorneys for Plaintiffs Charles R. Morrison, Don Eckhart and Alexander Smith

24 Case 206-cv GCS-TPK Document 5 Filed 07/31/2006 Page 24 of 24 CERTIFICATE OF SERVICE The undersigned does hereby certify that on this 31st day of July, 2006, the foregoing Memorandum was electronically filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following Patrick J. Piccininni Franklin County Prosecutor s Office 363 South High Street, 13 th Floor Columbus, OH David R. Langdon Ohio Bar No LANGDON & HARTMAN LLC Reading Road, Ste. 104 Cincinnati, Ohio Telephone (513) Facsimile (513) dlangdon@langdonlaw.com