UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. Case No LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER; AARON HARRIS; CHARLIE EARL,

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1 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case No LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER; AARON HARRIS; CHARLIE EARL, Plaintiffs-Appellants, V. JON HUSTED, Secretary of State, Defendant-Appellee, STATE OF OHIO; GREGORY FELSOCI, Intervenors-Appellees. On Appeal from the United States District Court For the Southern District of Ohio REPLY BRIEF FOR APPELLANTS Mark Kafantaris Naila S. Awan Mark R. Brown 5 City Park Avenue 220 Fifth Ave. 303 E. Broad Street Columbus, Ohio Second Floor Columbus, Ohio (614) New York, NY (614) (614) (fax) (212) (614) (fax) mark@kafantaris.com (212) (fax) mbrown@law.capital.edu awan.ns@gmail.com

2 Sixth Circuit Case Number: Name of counsel: UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Disclosure of Corporate Affiliations and Financial Interest Case Name: Libertarian Party of Ohio v. Husted Pursuant to 6th Cir. R. 26.1, Libertarian Party of Ohio makes the following disclosure: Name of Party 1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party: No. Mark R. Brown 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest: No. CERTIFICATE OF SERVICE I certify that on May 23, 2016 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. s/ Mark R. Brown This statement is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R on page 2 of this form. 6CA-1 8/08 Page 1 of 2

3 6th Cir. R DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST (a) Parties Required to Make Disclosure. With the exception of the United States government or agencies thereof or a state government or agencies or political subdivisions thereof, all parties and amici curiae to a civil or bankruptcy case, agency review proceeding, or original proceedings, and all corporate defendants in a criminal case shall file a corporate affiliate/financial interest disclosure statement. A negative report is required except in the case of individual criminal defendants. (b) Financial Interest to Be Disclosed. (1) Whenever a corporation that is a party to an appeal, or which appears as amicus curiae, is a subsidiary or affiliate of any publicly owned corporation not named in the appeal, counsel for the corporation that is a party or amicus shall advise the clerk in the manner provided by subdivision (c) of this rule of the identity of the parent corporation or affiliate and the relationship between it and the corporation that is a party or amicus to the appeal. A corporation shall be considered an affiliate of a publicly owned corporation for purposes of this rule if it controls, is controlled by, or is under common control with a publicly owned corporation. (2) Whenever, by reason of insurance, a franchise agreement, or indemnity agreement, a publicly owned corporation or its affiliate, not a party to the appeal, nor an amicus, has a substantial financial interest in the outcome of litigation, counsel for the party or amicus whose interest is aligned with that of the publicly owned corporation or its affiliate shall advise the clerk in the manner provided by subdivision (c) of this rule of the identity of the publicly owned corporation and the nature of its or its affiliate's substantial financial interest in the outcome of the litigation. (c) Form and Time of Disclosure. The disclosure statement shall be made on a form provided by the clerk and filed with the brief of a party or amicus or upon filing a motion, response, petition, or answer in this Court, whichever first occurs. 6CA-1 8/08 Page 2 of 2

4 TABLE OF CONTENTS Table of Authorities... ii Argument... 1 I. Casey's Conspiracy Was the Proximate Cause of Earl's Removal... 1 II. ORP, Casey and the Kasich Campaign Engaged in State Action... 2 III. Substantial Evidence Establishes Damschroder's Involvement in Casey's Conspiracy... 4 IV. Appellees Failed to Cross-Appeal the District Court's Ruling on Selective Enforcement V. LPO Presented Substantial Evidence of Disparate Treatment VI. The Conspiracy Was Politically Motivated VII. LPO's Selective Enforcement Challenge is Not Moot VIII. S.B. 193 Inflicts a Severe and Discriminatory Burden IX. Res Judicata Does Not Defeat LPO's State-Law Claim X. Res Judicata Does Not Affect LPO's Federal Challenge to S.B Conclusion Certificate of Service Certificate of Compliance Addendum 1 (Relevant Originating District Court Documents) Addendum 2 (Unreported Cases) i

5 TABLE OF AUTHORITIES Cases Adickes v. S.H. Kress Co., 398 U.S. 144 (1970) Alabama v. Pugh, 438 U.S. 781 (1978) American Civil Liberties Union v. Taft, 385 F.3d 641 (6th Cir. 2004)... 19, 20 BGB Pet Supply, Inc. v. Nutro Products, Inc., 124 F.3d 196 (6th Cir. 1997) Bishop v. Ohio Dept. of Rehab. & Corr., 529 Fed. Appx. 685 (6th Cir. 2013)... 2 Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573 (6th Cir. 1994) Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009) City of Canton v. Harris, 489 U.S. 378 (1989) Constitution Party of Pennsylvania v. Aichele, 757 F. 3d 347 (3d Cir. 2014)... 3 Davis v. Sun Oil Co., 148 F.3d 606 (6th Cir. 1998) Equal Employment Opportunity Commission v. Chicago Club, 86 F.3d 1423 (7th Cir. 1996) Ex parte Young, 209 U.S. 123 (1908) Fannin v. Norfolk & Western Railway Co., 103 F.2d 129, 1996 WL (6th Cir. 1996) Ford Motor Credit Co. v. Aetna Casualty and Surety Co., 717 F.2d 959 (6th Cir. 1983) Grava v. Parkman Township, 653 N.E.2d 226 (Ohio 1995) Jim's Steak House, Inc. v. City of Cleveland, 688 N.E.2d 506 (Ohio 1998) Lesher v. Lavrich, 784 F.2d 193 (6th Cir. 1986)... 25, 26 Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006)... 20, 23 Libertarian Party of Ohio v. Husted, 33 F. Supp.3d 914 (S.D. Ohio 2014)... 5 ii

6 Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)... 4 Nader v. McAuliffe, 593 F. Supp.2d 95 (D.D.C.), aff'd on other grounds, 2009 WL (D.C. Cir. 2009)... 2, 3 National Amusements, Inc. v. Springdale, 558 N.E.2d 1178 (Ohio 1990) Nevada Power Co. v. Watt, 711 F.2d 913 (10th Cir. 1983) Patton v. Blum, 105 F.Supp.3d 934 (E.D. Mo. 2015) Racing Guild of Ohio, Local 304 v. State Racing Commission, 503 N.E.2d 1025 (Ohio 1986) Rainbow Tours, Inc. v. Hawaii Joint Council of Teamsters, 704 F.2d 1443 (9th Cir. 1983) Romanelli v. DeWeese, 2011 WL (M.D. Pa. 2011) Romanski v. Detroit Entertainment, LLC, 428 F.3d 629 (6th Cir. 2005)... 3 Savings & Profit Sharing Fund v. Gago, 717 F.2d 1038 (7th Cir. 1983)... 25, 26 Shields v. Govt. Employees Hosp. Ass'n, 490 F.3d 511 (6th Cir. 2007) Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997) United Healthcare, Inc. v. County of Hennepin, 2014 WL (D. Minn. 2014) United States v. Correa-Gomez, 160 F. Supp.2d 748 (E.D. Ky. 2001) United States v. Neal, 95 F.3d 219 (6th Cir. 1996) Vakilian v. Shaw, 335 F.3d 509 (6th Cir. 2003)... 2 Whole Woman's Health v. Hellerstedt, 2016 WL (U.S., June 27, 2016) Will v. Michigan Department of State Police, 491 U.S. 58 (1989) 24 Williams v. City of Carl Junction, 523 F.3d 841 (8th Cir. 2008) Williams v. Pennsylvania, 136 S. Ct (2016) iii

7 Williams v. Rhodes, 393 U.S. 23 (1968) Statutes 42 U.S.C O.R.C (A) O.R.C (E) O.R.C O.R.C (A)(3) ORC , 22 S.B passim Rules Fed. R. Civ. P. 8(c) Ohio R. Civ. P. 8(C) Ohio R. Civ. P , 26 Ohio R. Civ. P Miscellaneous 18 C. WRIGHT, ET AL., FED. PRAC. & PROC (2d ed. 2016) RESTATEMENT OF JUDGMENTS (2D) (1984)... 27, 28 Secretary of State, Ohio 2014 Election Results THERESA AMATO, GRAND ILLUSION: THE MYTH OF VOTER CHOICE IN A TWO-PARTY TYRANNY (2009) Ohio Secretary of State, FAQs: Voting & Voter Registration... 20, 21 iv

8 ARGUMENT Contrary to the Secretary's and Felsoci's suggestion, see Felsoci's Brief at 1; Secretary's Brief at 3, the issues raised in this appeal have not before been addressed by this Court (or any other appellate court). I. Casey's Conspiracy Was the Proximate Cause of Earl's Removal. The Secretary does not contest that Casey, the Kasich Campaign, and ORP conspired to remove Earl. Instead, the Secretary's position is that he was not involved and no one in his office "joined any conspiracy." See Secretary's Brief at 18, 22, The Secretary argues that "there is also a complete lack of proximate cause." Id. The Secretary is wrong. Damschroder testified that the Secretary has never unilaterally enforced Ohio's employer-statement rule. Damschroder Deposition, RE at PAGEID # When asked whether the "Secretary... remove[s] candidates because their circulators have not correctly filled in the employer statement box," id. at 5247, Damschroder stated that "once a candidate is certified to the ballot, the only two ways that I know of, of removing the candidates from the ballot, is either through the protest process or through a court action." Id. 1 Felsoci appears to concede that Casey and the Kasich Campaign worked together, and does not deny that ORP bankrolled the enterprise. Nor does he (apparently) contest the involvement of ORP's agent, Schrimpf. Still, he argues that "there is no evidence... that the Kasich Campaign was acting as the agent for [ORP]." Felsoci's Brief at 10. Because the Kasich Campaign conspired with Casey, who conspired with ORP, all three are agents of one another. 1

9 Damscrhoder could not identify a single instance where the Secretary, without a protest, enforced Ohio's employer-statement rule. Id. at Earl was certified to the ballot. Id. at Had the conspirators not protested him he would not have been removed. The conspirators' action was the proximate cause of his removal. 3 II. ORP, Casey and the Kasich Campaign Engaged in State Action. The Secretary and Felsoci argue that Casey, the Kasich Campaign and ORP were not engaged in state action. Neither deny, however, that major political parties (like ORP) and their agents engage in state action when they regulate (or sabotage) their own primaries. Instead, their argument is that ORP cannot engage in state action when it sabotages a minor party's primary. They primarily rely on Nader v. McAuliffe, 593 F. Supp.2d 95 (D.D.C.), aff'd on other grounds, 2009 WL (D.C. Cir. 2009), which was affirmed not because of failure of the claim, but because of the statute of limitations. The 2 This refutes Felsoci's charge that LPO presented "no evidence" of proximate cause. See Felsoci's Brief at 18. The Secretary, moreover, never conducted an independent investigation as was performed in Bishop v. Ohio Dept. of Rehab. & Corr., 529 Fed. Appx. 685, 696 (6th Cir. 2013). See Felsoci's Brief at 24. The causal connection between the protest and Earl's removal was therefore not broken. 3 Felsoci argues that the mere initiation of proceedings is insufficient; control over the decision maker is required in order to show proximate cause. Felsoci's Brief at This is true for private persons, but it is not for state actors who initiate legal proceedings. If it were, selective enforcement claims brought against police officers would always fail. As it is, the existence of probable cause does not even protect police. See Vakilian v. Shaw, 335 F.3d 509, 521 (6th Cir. 2003). 2

10 District Court's rationale in McAuliffe, moreover, is not persuasive. As LPO points out in its initial Brief, its reasoning was rejected by the Third Circuit in Constitution Party of Pennsylvania v. Aichele, 757 F. 3d 347, 367 (3d Cir. 2014), which concluded that a protest mechanism is not insulated from constitutional scrutiny just because private actors use it. This same principle has been recognized in this Circuit. That private persons can enforce trespass laws, and use Ohio's police and courts to assist them, does not mean that a private security force cannot be a state actor. Private police "may qualify as state actors under the public function test." Romanski v. Detroit Entertainment, LLC, 428 F.3d 629, 637 (6th Cir. 2005) (citations omitted). "[W]hen the state delegates a power traditionally reserved to it alone the police power to private actors in order that they may provide police services to institutions that need it, a 'plaintiff's ability to claim relief under 1983 [for abuses of that power] should be unaffected.' Id. (citation omitted and brackets original). The same principle holds here. Ohio has delegated to private persons the power to police ballots. But this does not mean that when a state actor polices ballots it is not subject to constitutional scrutiny. Parties' and candidates' "claim[s] for relief under 1983 for abuses of that power" do not evaporate simply because these private actors can also file protests. 3

11 In terms of ballots, the two major parties have been awarded a host of privileges by Ohio; their privileged position carries with it an obligation to act constitutionally (and responsibly). When they don't, they are responsible as state actors. As explained in Morse v. Republican Party of Virginia, 517 U.S. 186, 224 n.36 (1996) (plurality), Ohio "gives a host of special privileges to the major parties..." "It is perfectly natural, therefore, to hold that [the state] seeks to advance the ends of both the major parties." Id. 4 III. Substantial Evidence Establishes Damschroder's Involvement in Casey's Conspiracy. Contrary to the Secretary's claim that LPO "takes great liberties with the record," Secretary's Brief at 28, and Felsoci's assertion that LPO "mischaracter[izes]" the evidence, Felosi's Brief at 15, LPO's recitation of the record evidence is accurate. Its inferences are fully supported by testimony and documents. For example, the Secretary asserts that "[t]he unrefuted evidence is that none of the Secretary's employees had any involvement with the alleged conspiracy..." Secretary's Brief at 22. Relying on Damschroder's August 26, 2014 deposition, the Secretary supports this charge by claiming that "the record evidence demonstrates 4 LPO does not claim a candidate's campaign organization (even for an incumbent) is always a state actor. But when a campaign organization for an incumbent governor conspires with its major party benefactor to remove a nettlesome competitor from a primary ballot, that campaign is an agent of the major party and is a state actor. 4

12 that Mr. Damschroder was not even aware of Casey's plan... until August " Id. at 24. Damschroder's deposition testimony, however, was disproved by documented evidence, Casey's testimony, and Damschroder's subsequent testimony at the preliminary injunction hearing. Contrary to his deposition testimony, Damschroder knew on February 17, 2014 that Earl would be protested under Ohio's employer-statement rule. 5 Contrary to his deposition testimony, Casey was his source. And contrary to his deposition testimony, he knew long before August of 2014 that Casey was involved in the protest. Damschroder testified at his deposition that he did not know before the protest was filed (on February 21, 2014) that it involved Earl; he did not know "the specifics at the time" even though he was questioned in detail: Q. Did you know before the protest was filed against Charlie Earl by Gregory Felsoci that a protest was going to be filed against Charlie Earl? A. I think we had information that protests were going to be filed, but I don't recall specifics. Q. So is your answer yes, you did know before the protest was filed against Charlie Earl by Gregory Felsoci that it was going to be filed? A. No. 5 Damschroder was not a willing witness. Nor were Seskes, Christopher and Smith. LPO had to obtain a court order to depose them. See Libertarian Party of Ohio v. Husted, 33 F. Supp.3d 914, 927 (S.D. Ohio 2014) ("Plaintiffs' motion to compel the depositions of Bradley Smith and Jack Christopher is granted"). 5

13 Q. Is that your answer? A. No. Because I don't know that I knew the specifics at the time of who the protestor was going to be or those things. Q. Putting aside who it was going to be, I'm just asking whether you knew that a protest was going to be filed against Charlie Earl by someone, before it was actually filed. A. I think we had -- I think I had a general understanding that something was going to be filed against somebody. I don't know if I remember that it was going to be filed against any particular candidate. Q. How would you have known? A. You hear things on Capitol Square. Q. Did anyone in particular tell you? A. Not specifically that I recall. Q. Did you know as early as four days before the protest was filed that it was going to be filed? A. Not specifically that I recall right now. Damschroder Deposition, RE 227-1, PAGEID # Contrary to this testimony, documents produced by the Secretary prove that Damschroder knew on February 17, 2014 that the protest against Earl was going to be filed under Ohio's employer-statement rule. Late on the night of February 17, 2014, Damschroder ed Halle Pelger, Assistant Secretary of State, that he "got a call tonight that a protest is likely to come by Friday against Earl, probably 6

14 from an unaffiliated voter 6... and will be based on Form 14 stuff (alleging a circulator was compensated but no Form 14 was filed and the special box on the p- petitions was not completed)." Documents, RE 227-1, PAGEID # 5476 (emphasis added). Damschroder knew Earl was targeted and knew specifics on February 17, Damschroder testified at this deposition that he did not remember who phoned him on February 17, Damschroder Deposition, RE at PAGEID # One month later, however, Damschroder admitted that the phone call was likely from Casey. Damschroder Testimony, RE 247, PAGEID # Casey testified at his deposition on August 28, 2014 that on or about February 17, 2014 he contacted Damschroder "about filing a protest." Casey Deposition, RE 241-1, PAGEID # 6261.The phone call Damschroder received on February 17, 2014 was from Casey. Further, Casey copied and/or blind-copied Damschroder on a half dozen e- mails between March 4, 2014 (the day of the administrative hearing) and March 21, 2014 that he (Casey) had sent to his fellow conspirators (Carle, Luketic, Poleosovsky, and Borges) regarding the protest. See Documents, RE 335-3, PAGEID # 8479; RE , PAGEID # 8638, 8645, 8650, 8652, Two of these also copied Zeiger, Casey's lawyer. See id. at 8650, Casey's March 21, 6 Casey initially planned on using an unaffiliated voter to protest Earl. Felsoci was not located until February 21,

15 2014 , which was sent directly to Damschroder and copied the other conspirators stated, "Fortunately, Zeiger put on a case." Id. at Even if he could credibly claim that he did not know before February 21, 2014, Damschroder knew no later than March 21, 2014 that Casey was coordinating with the Kasich Campaign (and Zeiger). The Secretary also asserts that "evidence does not support [LPO's] claim that 'Casey asked Damschroder to investigate Hatchett." Secretary's Brief at 27. Casey, however, did not deny that he asked Damschroder to do a criminal background check on Hatchett. He responded at his deposition, "I don't know whether I used that term or not," Casey Deposition, RE 241-1, PAGEID # 6259, and offered that he did not "remember exactly what I said to him." Id. Casey then admitted he "might" have asked Damschroder to do an investigation: Q. Did you communicate with Matthew Damschroder about Oscar Hatchett? A. He could have been one of the persons I sent a copy of those documents to. Q. Did you ask Mr. Damschroder to do a background check on Mr. Hatchett? A. I don't know whether I used that term or not, but... Q. But you did ask him to do some kind of check on Oscar Hatchett; is that correct? A. I don't remember exactly what I said to him, either in or verbally, but Oscar Hatchett Jr., as I said, was a big red flag of why this guy was involved and doing what he was doing. 8

16 Q. Did you ask or instruct anybody at the Secretary of State's office to do a background check on Oscar Hatchett?... A. I don't think I asked anybody to do a background check. Q. Did you ask anyone to do any kind of check on Oscar Hatchett? A. I think I might have asked the question, in Matt's recollection, I also ask of our attorneys, whether or not somebody being a registered sex offender would prohibit them from circulating petitions or being a paid circulator. Q. I'm sorry. I'm deaf in one ear. Did you say you asked Matt to do that? A. No. I asked a number of people the question of whether there was anything statutorily that prohibited a registered sex offender from being a circulator of petitions. Q. Did you ask Matthew Damschroder that? A. I might have indicated that was a question. Id. at Getting straight answers from a hostile client like Casey is a difficult task, so his conceding that he "might" have asked Damschroder to research Hatchett is significant. 7 When coupled with Brandi Seskes's criminal background check on 7 Casey continued to obfuscate at his second deposition, which followed another round of document production. When asked about a file marked "Earl Form 14s ," which had been forwarded to him by Luketic (who obtained it from Schrimpf), see Documents, RE 335-3, PAGEID # , Casey denied knowing that the file was even about Charlie Earl: "I don't know whether that is about Charlie Earl or somebody with the first name Earl. I have no idea." Casey Deposition, RE 335-2, PAGEID #

17 Hatchett, there can be little doubt that Casey tipped Damschroder as to Hatchett's possible criminal background. Coincidences happen, of course, but in this case they happened repeatedly. The Secretary argues that Christopher and Damschroder remained neutral throughout the proceedings. In particular, Christopher's early morning to Smith asserting that Smith was wrong, see Documents, RE 223-1, PAGEID # , was not "improper or motivated by any political animus." Secretary's Brief at 30. That it was proper is doubtful. 8 That it was not influenced by politics is fanciful. The claim ignores Christopher's and Damschroder's (both of whom are Republicans) cheering for Zeiger during the protest hearing. It disregards the fact that Christopher only offered this advice after Smith admitted his decision "will anger and disappoint a bunch of people." Christopher knew the stakes involved and knew what he was doing helped Kasich. Smith's denial is understandable. No one likes to admit the influence of another, especially when that influence is of questionable propriety. The documentary evidence, however, establishes that Smith feared "anger[ing] and disappoint[ing] a bunch of people." Why would he have felt this pressure? Why 8 LPO operated under the assumption that Smith's decision would be made on the arguments and record evidence presented by the parties. Having the Chief Elections Officer's attorney -- a Republican who expressed glee over Felsoci's lawyer's performance during the administrative hearing -- exert this sort of belated ex parte influence raises a serious appearance of impropriety. 10

18 would Christopher have stayed up all night to change Smith's mind? The answer has to be that Christopher was among those angered and disappointed. Before Christopher's , Smith agreed with LPO that "independent contractors need not list themselves as their own employers." Documents, RE 227-1, PAGEID # In regard to an Ohio Court of Appeals precedent (Evans) that most squarely addressed the point, Smith observed that "while Evans provides a solid rationale for why one might wish to interpret the employer disclosure provision of (E) as applying to independent contractors, its actual holding appears to be much more limited only employees, and not independent contractors, are required to complete the employer disclosure information." Id. at Smith observed that "Evans seemed to believe that that was required by the plain language of the statute." Id. Smith even went on to note that the Secretary's own Directives misled voters and candidates: "an Ohio citizen searching out guidance on the Secretary s web page, and finding these Directives,... [could be surprised] to then find signatures invalidated on these grounds." Id. Election-law precedent should not be constructed as an elaborate trap for the unwary. Id. 9 9 The Secretary argues that Smith's change of heart was correct because it was "upheld by every court to review it." Secretary's Brief at 30. Had Smith ruled the other way, of course, his interpretation would also have been awarded deference by the Ohio Supreme Court. Judge Watson, meanwhile, did not know of Smith's 11

19 Smith's belief that he was not affected by Christopher's ex parte advice does not absolve Christopher. As the Supreme Court recently stated, because "the influence of any single participant in this process can never be measured with precision, experience teaches us that each member's involvement plays a part in shaping the court's ultimate disposition. Williams v. Pennsylvania, 136 S. Ct. 1899, 1909 (2016) (citation omitted). Whether Smith believed it or not, Christopher's input and influence could have "play[ed] a part in shaping [his] ultimate disposition" of Earl's case. This risk, as the Court held in Williams, requires setting aside the decision. The documentary evidence proves that Christopher and Damschroder were not neutral. They favored the protestor. Judge Watson did not disagree. Still, he dismissed the relevance of this evidence: "It is hardly realistic to expect public employees to abandon their political views or interests in politics." Opinion and Order, RE 260, PAGEID # Judge Watson is wrong on this point. It is realistic to expect government officials tasked with administering law -- especially election law -- to abandon their political views. Otherwise law becomes politics. initial ruling in favor of Earl when he commented that Earl's argument was "urban legend." It is only urban legend because Smith changed his mind. 12

20 IV. Appellees Failed to Cross-Appeal the District Court's Ruling on Selective Enforcement. Following accepted practice in Sister Circuits and District Courts in this Circuit, see, e.g., Williams v. City of Carl Junction, 523 F.3d 841, 843 (8th Cir. 2008) ("[the plaintiff] may prove a prima facie equal protection claim with direct evidence of racial discrimination."); United States v. Correa-Gomez, 160 F. Supp.2d 748, 753 (E.D. Ky. 2001) (holding that both direct and circumstantial evidence may be used); Patton v. Blum, 105 F.Supp.3d 934, 947 n.7 (E.D. Mo. 2015) ("a 1983 equal protection claim may be sustained where a plaintiff has direct evidence of racial animus"); United Healthcare, Inc. v. County of Hennepin, 2014 WL *3 (D. Minn. 2014) ("a plaintiff may allege direct evidence of racial discrimination by state actors.") (citation omitted), 10 Judge Watson correctly ruled that LPO could prevail if it presented "direct evidence" that Earl's removal was politically motivated. The Secretary and Felsoci now challenge this holding in an effort to uphold the District Court's decision. If they are correct (and Judge Watson was wrong), a 10 This also applies to selective enforcement under the First Amendment. In Brown v. City of Pittsburgh, 586 F.3d 263, 293 n.37 (3d Cir. 2009), where the plaintiff challenged the selective enforcement of a local buffer zone surrounding abortion clinics under the First Amendment, the Court noted: "Demonstration of a 'pattern' of selective enforcement may not be necessary in cases where there is direct evidence of an explicit policy to implement a facially neutral law in an unconstitutionally discriminatory way." 13

21 new trial is required under their proposed evidentiary standard. See City of Canton v. Harris, 489 U.S. 378, 392 (1989). Because Felsoci and the Secretary seek to modify the District Court's ruling in this fashion, their challenge should have been raised by cross-appeal. In United States v. Neal, 95 F.3d 219, 224 (6th Cir. 1996), this Court stated that "[a]s a general rule, a cross appeal must be filed where an appellee wishes to attack part of a final judgment in order to enlarge his own rights or reduce those of his adversary." (Citations omitted). "The requirement to file a cross appeal, when applicable, is mandatory and jurisdictional in this circuit." Id. (citations omitted). This Court has applied this jurisdictional principle on many occasions. In Ford Motor Credit Co. v. Aetna Casualty and Surety Co., 717 F.2d 959 (6th Cir. 1983), for example, the appellee (Aetna) challenged the District Court's conclusion that the appellant (Ford Motor) was a "mortgagee" in order to support the judgment. The Court ruled it could not in the absence of a cross-appeal: "Aetna was required to file notice of appeal as a prerequisite to presenting this issue to this Court." Id. at 962 (citations omitted). See also Shields v. Govt. Employees Hosp. Ass'n, 490 F.3d 511, 515 (6th Cir. 2007); Equal Employment Opportunity Commission v. Chicago Club, 86 F.3d 1423, (7th Cir. 1996) ("Justice Cardozo instructed... that an appellee may not, in the absence of a cross-appeal, 14

22 challenge any aspect of the lower court decision with a view toward adversely affecting the rights of the appellant.") (citation omitted). V. LPO Presented Substantial Evidence of Disparate Treatment. Assuming that the Secretary's and Felsoci's argument is proper, they fall far short of proving a total lack of evidence. There is, in fact, substantial evidence that Earl was treated differently by the conspirators when they targeted him for removal. This Court in Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997), recognized that the evidence of disparate treatment presented need not be sophisticated or overwhelming. In Stemler, evidence that the plaintiff was arrested because she was believed to be gay while her equally drunk cohort was not was sufficient. LPO alleged (among other things) that ORP "and/or its agents' motivation for formally protesting and challenging Plaintiff-Earl was Plaintiff-Earl's anticipated impact on Ohio's 2014 general election ballot." Third Amended Complaint, RE 188, PAGEID # ORP "feared that Plaintiff-Earl would win votes that might otherwise be cast for Governor John Kasich and therefore decided to seek the removal of Plaintiff-Earl from Ohio's 2014 primary and general election ballots." Id. "If Plaintiff-Earl were not seen as a threat to the success of the Ohio Republican Party's candidate for Governor in Ohio's 2014 general election, he would not have been protested and challenged by the Ohio Republican Party 15

23 and/or its agents." Id. "The Ohio Republican Party's and/or its agents' challenge and protest directed at Plaintiff-Earl's candidacy is an effort to manipulate Ohio's 2014 general election ballot to the Ohio Republican Party's and its candidates' advantages in violation of the First and Fourteenth Amendments to the United States Constitution." Id. The evidence, meanwhile, proves that Casey, the Kasich Campaign and ORP targeted Earl because they believed he would draw votes from Kasich. By their own justification, they sought to punish Democrats. They did not target any other minor parties' candidates for investigation and removal. They did not investigate Green Party candidates, nor did they investigate Constitution Party candidates. Both parties had candidates on the 2014 primary ballot. Instead, they targeted only the candidate whom they believed (rightly or wrongly) would draw significant support from Kasich. Earl was treated differently by the conspirators. Further, Damschroder's office treated Earl's protest differently from any other protest. Seskes performed a criminal background check on Hatchett 11 even 11 The Secretary claims that "there is no evidentiary basis for [LPO's] assertion that Brandi Seskes... 'performed a criminal background check on Hatchett.'" Secretary's Brief at 27. Seskes reported to Christopher on Monday, February 24, 2014, that "Mr. Hatchett pled guilty to 'indecent assault without consent of the other' and 'unlawful restraint with risk of serious injury' in Allegheny County, Pennsylvania in September Though the crimes sound serious to me, they are both misdemeanors under Pennsylvania law." Documents, RE 221-1, PAGEID # She attached a file with Hatchett's Pennsylvania criminal record and added 16

24 though she could not recall doing the same thing for anyone else. See also Third Amended Complaint, RE 188, PAGEID # ("Seskes did not conduct a criminal background check on the protestors or any other person"). Damschroder instructed his staff to accept late protests even though he admitted he had never before done so. Whether the Secretary himself applied Ohio's employer-statement rule to any other candidate is irrelevant. LPO's claim is that the conspirators selectively targeted Earl. Substantial evidence establishes they did. VI. The Conspiracy Was Politically Motivated. Felsoci argues that the conspiracy is immune from First Amendment treatment because it was meant "not to discriminate against Libertarians but, rather, to call attention to the clandestine efforts on Democratic interests who helped Earl..." Felsoci's Brief at (emphasis original). Of course, if this belated excuse were genuine, the conspirators would not have gone to such great lengths to keep their plan a secret. But accepting their "clandestine" claim at face value, it proves the partisan nature of their plan. They sought to punish Democrats for assisting Libertarians. This rationalization is no more palatable now than when it was trotted out generations ago to justify punishing whites for lunching with blacks. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 152 (1970) (observing that she was unable to access Hatchett's California record because its system "is a little more conservative than Pennsylvania's." Id. 17

25 that a lunch counter unconstitutionally targeted "a white person in the company of Negroes" for its trespass suit). 12 VII. LPO's Selective Enforcement Challenge is Not Moot. LPO's selective enforcement challenge is not moot. Earl cannot be restored to the 2014 primary ballot, but LPO can still win relief redressing its wrong. LPO seeks to be restored to the position it would have occupied but for the unconstitutional conspiracy. But for the conspiratorial protest, LPO would have had a top-of-the-ticket candidate with an opportunity to win enough votes to satisfy Ohio's vote test in Had that candidate (Earl) won enough votes, LPO would have been again qualified as a political party for four years. Earl and LPO were denied the opportunity. To remedy the denial of this opportunity, LPO asks that its top-of-the-ticket candidate, Gary Johnson, be placed on Ohio's 2016 ballot. This will provide to LPO the opportunity that was unconstitutionally stolen from it in If Johnson 12 Felsoci devotes lengthy treatment to Romanelli v. DeWeese, 2011 WL (M.D. Pa. 2011). See Felsoci's Brief at "Romanelli argue[d] that the defendants violated state law by using state resources to challenge his nomination paper." Id. at *6. The Court dismissed because he failed to allege a deprivation of a federal right. It is unclear how this supports Felsoci's argument; here the District Court concluded that LPO properly alleged violations (by Felsoci) of LPO's First and Fourteenth Amendment rights. 18

26 can win sufficient votes, LPO will meet Ohio's vote test and will be recognized as a political party for four years. 13 In addition to seeking to have Earl's name placed on Ohio's 2014 general election ballot, see Third Amended Complaint, RE 188, PAGEID # 3852, LPO requested from the Court "such other and further relief as may be just and proper." Id. The Supreme Court, citing Federal Rule of Civil Procedure 54(c), observed in Whole Woman's Health v. Hellerstedt, 2016 WL *13 (U.S., June 27, 2016), that "[t]he Federal Rules of Civil Procedure state that (with an exception not relevant here) a 'final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.' The Court accordingly sustained an injunction awarding facial relief against Texas's abortion law even though it had not been sought. Nothing accordingly bars this Court from awarding to LPO "just and proper" relief. Restoring LPO to the position it would have occupied but for the conspiracy is "just and proper." Even assuming that "just and proper" relief were not available, LPO's claim would still be "capable of repetition yet evading review." See American Civil 13 The Secretary argues that even if LPO were to succeed on appeal it still might not be entitled to relief. Secretary's Brief at 58. That is certainly true; depending on the reasons for reversal, relief might not be immediately forthcoming. This presents no reason, however, to reject the appeal. Further, LPO has filed a motion for emergency relief with this Court, which could itself order emergency relief placing LPO back on the ballot. The District Court denied this emergency relief pending appeal on June 10, 2016 after this Court had expedited argument. See Order, RE

27 Liberties Union v. Taft, 385 F.3d 641, 646 (6th Cir. 2004) (stating that it could award declaratory relief because future House vacancies could occur); Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006). Major parties challenging minor candidates in Ohio has become something of a sport, probably because of Ohio's electoral importance. Democrats did it to Nader in 2004, see THERESA AMATO, GRAND ILLUSION: THE MYTH OF VOTER CHOICE IN A TWO-PARTY TYRANNY (2009), Republicans attempted to remove LPO's presidential candidate (Gary Johnson) in 2012, see Document, RE 227-1, PAGEID # 5612, and in 2014 Republicans succeeded in removing the LPO's candidates for Governor and Attorney General, Earl and Linnabary, respectively. See Document, 227-1, PAGEID # This sort of political sabotage is certain to recur. VIII. S.B. 193 Inflicts a Severe and Discriminatory Burden. The Secretary attempts to minimize Ohio's official role in registering political parties' members. "These statutes," the Secretary argues, "do not govern party registration or affiliation in general." Secretary's Brief at 36 (emphasis original). The Secretary is wrong. As far as Ohio is concerned, its law defines party membership. That is why the Secretary officially advises voters that they register their memberships by voting in primaries. Voters may only affiliate with parties by requesting a ballot in a partisan primary. Ohio Secretary of State, FAQs: 20

28 Voting & Voter Registration; 14 see also O.R.C (A)(3). Voting in primaries has significant legal implications in Ohio. The Secretary misstates aspects of Ohio law. For instance, the Secretary states that under "[a] person is considered affiliated with a party if he or she voted in that party's primary or did not vote in any primary during the last two years." Secretary's Brief at 6. This description is not quite true. While Ohio law does allow electors to sign and circulate candidate petitions if they (1) voted a partisan primary ballot for the candidate s party in the past two elections (thus becoming an affiliated party member), or (2) are an unaffiliated voter because they did not vote in any other party s primary election within the preceding two calendar years, O.R.C , Ohio law does not say that by not voting in a primary within two years a person somehow can or may affiliate with a political party. The Secretary further states that any voter regardless of prior party affiliation may vote a new party's primary ballot under ORC Secretary's Brief at 6. While this is true, it is meaningless in terms of S.B Under S.B. 193, a newly qualified party will not have a primary in the year it qualifies and may not have a primary thereafter until it runs a gubernatorial or presidential candidate that obtains 3 percent of the vote. Further, any voter from any party may always change 14 (last visited July 10, 2016). 21

29 his party affiliation by simply voting in another party's primary. Section offers nothing more to new parties. More importantly, the Secretary attempts to trivialize the importance of Ohio's primary-party-registration system. That only a small portion of registered voters (say 20%) participate in primaries does not mean that Ohio's partyregistration system is trivial. See Secretary's Brief at 39. Ohio's system provides to political parties not only lists (which are marketable) of official members, but also affords them official members who can be used to circulate and sign their candidates' petitions. Using the Secretary's numbers, 559,671 people voted in ORP's primary for governor in and therefore could legally sign ORP candidates' petitions. These official members can sign ORP candidates' petitions, circulate their petitions, and are barred by Ohio law from jumping political ship and running under another political party's banner. They cannot sign LPO's candidates' petitions under the terms of S.B ORP's members are "wedded" to it under Ohio law until the next primary. It is no defense that 80% of the electorate remains available to other parties. ORP has access to this pool, too. ORP has its own official members plus access to unaffiliated voters. 15 Secretary of State, Ohio 2014 Election Results ( (last visited July 9, 2016). 22

30 LPO, in contrast, lost its party status because of S.B. 193 and lost its 5476 members. See Document, RE 40-1, PAGEID # 626 (stating that 5476 electors voted in LPO 2010 primary). Losing thousands of official members is hardly trivial. Not having equal access to the more than one million "wedded" voters is hardly meaningless. Although LPO, like ORP, can attempt to recruit unaffiliated voters, it does not have the official members that are created by Ohio law for the established parties. The Secretary attempts to reframe LPO's challenge as stating a federal right to primaries. Nothing is farther from the truth. LPO has never claimed it has a federal right to a primary; it asserts merely that S.B. 193 interacts with existing Ohio laws to deny LPO the same membership rights provided to established parties. See Blackwell, 462 F.3d at 585 (noting that the combined effect of the provisions of a ballot access scheme must be examined to determine whether or not an unconstitutional burden exists). S.B. 193 grants voters the opportunity to affiliate with established parties but not new parties. This undermines the ability of newly recognized parties to compete on an equal basis with established parties in terms of obtaining petition signatures, circulating petitions, gathering support, and building a base. These activities are essential to affording new parties the time and opportunity to organize [and] to meet reasonable requirements for ballot position[.] Williams v. Rhodes, 393 U.S. 23, 32 (1968). 23

31 IX. Res Judicata Does Not Defeat LPO's State-Law Claim. The Secretary argues that res judicata bars LPO's Ohio constitutional challenge to S.B Secretary's Brief at 50. The Secretary is wrong. The state trial court's decision that the Secretary relies upon is not final. Ohio law states that only final judgments are entitled to preclusive effect. See, e.g., National Amusements, Inc. v. Springdale, 558 N.E.2d 1178, 1180 (Ohio 1990) (" [A]n existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit ) (citation omitted and emphasis original). Here, the state court entered judgment on June 7, 2016, just after this Court expedited this appeal. That very day LPO moved under Ohio Rule of Civil Procedure 59 for a new trial and under Ohio Rule of Civil Procedure 60 for a stay of its Rule 59 motion pending the outcome of this federal appeal. The Secretary responded that LPO's Rule 59 motion was improper. LPO replied to contest the Secretary's interpretation of Rule 59. On July 6, 2016, because the state court had 16 LPO's state-law claim against both Ohio and the Secretary proceeds under O.R.C (A), which authorizes declaratory and injunctive relief against Ohio and its agencies. See, e.g., Racing Guild of Ohio, Local 304 v. State Racing Commission, 503 N.E.2d 1025 (Ohio 1986). LPO, of course, could not pursue Ohio under See Will v. Michigan Department of State Police, 491 U.S. 58 (1989). Further, until it intervened, Ohio (unlike the Secretary) was even immune from federal proceedings prosecuted through Ex parte Young, 209 U.S. 123 (1908). See Alabama v. Pugh, 438 U.S. 781, (1978). 24

32 not ruled on its Rule 59 motion and the propriety of its motion was at issue, LPO filed a premature, protective appeal in state court. The following day, the state trial court stayed resolution of LPO's Rule 59 motion. See Addendum 2. Because LPO's Rule 59 motion remains pending in the state trial court, its decision is not final for purposes of res judicata. Should LPO ultimately win a reversal on appeal, moreover, the trial court decision would not have preclusive effect under Ohio law. Fannin v. Norfolk & Western Railway Co., 103 F.2d 129, 1996 WL *1 (6th Cir. 1996) (interpreting Ohio law and stating "[t]he reversal of the common pleas court judgment deprived that judgment of all preclusive effect."). Even assuming finality, res judicata is an affirmative defense under both federal and state law that must be properly pleaded in the trial court. See Fed. R. Civ. P. 8(c); 18 C. WRIGHT, ET AL., FED. PRAC. & PROC (2d ed. 2016); Ohio R. Civ. P. 8(C); Jim's Steak House, Inc. v. City of Cleveland, 688 N.E.2d 506, 508 (Ohio 1998). The Secretary did not plead res judicata as an affirmative defense or otherwise bring it to the attention of the District Court before final judgment. Circuits remain split over whether res judicata may be raised for the first time on appeal. See Lesher v. Lavrich, 784 F.2d 193, 195 (6th Cir. 1986). Some Circuits preclude it from being raised at all, see, e.g., Nevada Power Co. v. Watt, 711 F.2d 913, 932 (10th Cir. 1983); Savings & Profit Sharing Fund v. Gago,

33 F.2d 1038, 1039 n.3 (7th Cir. 1983), and leave late-rising claims of res judicata to the District Court on remand. See, e.g., Rainbow Tours, Inc. v. Hawaii Joint Council of Teamsters, 704 F.2d 1443, 1445 n.2 (9th Cir. 1983). This Circuit entertains res judicata under special circumstances. Lesher, 784 F.2d at 196. These circumstances include an appellant's not "argu[ing] that appellees waived their res judicata defense by failure to assert it in the district court," id., and the parties agreeing that the prior "judgment [became] sufficiently 'final' only after the decision of the intermediate state appeals court." Id. The Court in Lesher observed that it has "refused to find res judicata waived by a failure to plead where, as here, the prior judgment relied on 'was clearly called to the District Court's attention before it rendered its decision,' and where 'having fully briefed... the issue on appeal, [the party complaining was not] prejudiced thereby.' Id. at 195. In the absence of these special circumstances, this Circuit has stated that it will not address res judicata "raised for the first time on appeal." Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir. 1994). Under the circumstances of this case, res judicata should be left to the District Court on remand (if necessary). First, it is not clear, as it was in Lesher, that there exists a final state court judgment. LPO's Rule 59 motion for a new trial remains pending in the state trial court. Second, LPO -- unlike the appellant in Lesher -- asserts that res judicata has been waived. Third, res judicata was never 26

34 called to the District Court's attention and it has not been fully briefed there or on appeal. Fourth, allowing it to be raised here threatens to prejudice LPO, which must be afforded a full opportunity to contest the Secretary's claim that the state trial court's decision is final. LPO understands that the state court's decision was delivered two weeks after the District Court issued its final judgment. Still, the Secretary knew five months before the District Court's final judgment that he had succeeded in forcing LPO into state court. He knew the state court would rule shortly. He had sufficient time to amend his pleadings in the District Court or at least notify the District Court of his objection to LPO's splitting its claims. He did nothing. The better course here is to leave res judicata to the District Court on remand. X. Res Judicata Does Not Affect LPO's Federal Challenge to S.B The Secretary does not argue that the trial court's decision -- assuming it is final -- has any effect on LPO's federal challenge to S.B Nor could he. Ohio embraces the modern application of the doctrine of res judicata found in the Second Restatement of Judgments. See Grava v. Parkman Township, 653 N.E.2d 226, 229 (Ohio 1995). Under the Second Restatement and Ohio law, "a claim not presented in a declaratory judgment action is not precluded in a later action." BGB Pet Supply, Inc. v. Nutro Products, Inc., 124 F.3d 196, *5 (6th Cir. 1997) (citations 27