UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT : : : : : : : : : : : : : : : :

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1 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LIBERTARIAN PARTY OF OHIO, KEVIN KNEDLER, AARON HARRIS, CHARLIE EARL, Plaintiffs-Appellants, -vs- JON HUSTED, Ohio Secretary of State, Defendant-Appellee, GREGORY A. FELSOCI, Intervenor-Defendant-Appellee. Case No On Appeal from the U.S. District Court, Southern District of Ohio, Eastern Division Case No. 213-cv MEMORANDUM OF INTERVENING DEFENDANT-APPELLEE FELSOCI IN OPPOSITION TO APPELLANTS MOTION TO STAY PENDING THEIR APPLICATION FOR CERTIORARI FILED WITH THE SUPREME COURT Appellants motion seeks an emergency injunction restoring Appellant Libertarian Party of Ohio ( LPO ) to Ohio s 2016 general election ballot. In other words, LPO seeks ultimate relief on the merits of its claims. LPO s motion should be denied because LPO cannot demonstrate any probability of success on the merits. An injunction pending further appeal to the U.S. Supreme Court should not be granted lightly where all judges who have weighed in have concluded that LPO s claims fail as a matter of law. A request for an injunction pending appeal

2 does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts. Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641, 642 (2012), quoting Respect Maine PAC v. McKee, 131 S. Ct. 445 (2010). Such a motion thus demands a significantly higher justification than a request for stay. Respect Maine PAC, supra, quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers). As Justice Marshall stated in denying a similar emergency request to place candidates names on the ballot pending further appeal While there is no question of my power to grant such relief it is equally clear that such power should be used sparingly and only in the most critical and exigent circumstances. Since this case does not meet that standard, I must deny the requested relief. [Fishman v. Schaffer, 429 U.S. 1325, (1976) (Marshall, J., in chambers), quoting Williams v. Rhodes, 89 S. Ct. 1, 2 (1968) (Stewart, J., in chambers) (emphasis added)] See also Communist Party of Indiana v. Whitcomb, 409 U.S (1972) (Rehnquist, J., in chambers) ( While a Circuit Justice of this Court apparently has authority... to grant such relief in the form of a mandatory injunction, usage and practice suggest that this extraordinary remedy be employed only in the most unusual case. In order that it be available, the applicants right to relief must be indisputably clear ). 2

3 As to the sole claim being pursued on appeal against Appellee Felsoci, 1 LPO s only argument is that the Ohio Republican Party was a state actor. In affirming the District Court, this Court has already considered this argument and rejected it as a matter of law. Libertarian Party of Ohio v. Husted, F.3d, 2016 WL , at *9 (6th Cir. July 29, 2016) (discussing Smith and Terry and holding By filing a protest against a nomination petition under this statute or having an agent file a protest the Ohio Republican Party is not engaging in state action. ). LPO lodges a new argument in a transparent effort to shoehorn this case into the facts of Smith v. Allwright, 321 U.S. 649 (1944) and Terry v. Adams, 345 U.S. 461, 484 (1953). LPO argues (for the first time on a motion to stay an appellate court affirmance, no less) that the Republican Party is the dominant political party in Ohio. There is no evidence in the record to support this assertion (and John McCain and Mitt Romney who each failed to carry Ohio would probably be among those disagreeing). LPO s unsupported assertion is contrary to the widely held notion that Ohio is a swing state. 2 1 Since the bulk of Appellants motion focuses on claims not asserted against Felsoci (concerning the constitutionality of Ohio Senate Bill 193), the instant memorandum in opposition responds only to LPO s argument that pertains to the selective enforcement claim asserted against Appellee Felsoci. 2 See, e.g. NEW YORK TIMES, Electoral Map Gives Donald Trump Few Places to Go, 7/30/2016 (available at http// 3

4 But even if there was record evidence that the Ohio Republican Party is the dominant party in Ohio, that would not change the ultimate conclusion that the Ohio Republican Party was not a state actor in connection with this case. As this Court held, the State of Ohio has not delegated any function traditionally, exclusively reserved to the states. This fact distinguishes the instant case from Smith and Terry. And while LPO states in conclusory fashion that the Ohio Republican Party has been awarded a host of special state-law privileges and that it plays an integral part[] in Ohio s primary system, the Court is left to guess at what those special privileges and integral parts might be. Unlike the political parties in Smith and Terry, the Ohio Republican Party has not been delegated the public function of actually conducting the primary election, but, rather, primaries in Ohio are conducted by the county boards of election under the supervision of the Ohio Secretary of State. Finally, even if LPO were right that the Ohio Republican Party was a state actor in this case, LPO s motion for emergency relief is silent on all of the other elements of a selective enforcement claim. Even if this Court were to assume that the Ohio Republican Party was a state actor, LPO must still establish probability of donald-trump-presidential-race.html) (identifying the biggest swing states Florida, Ohio and Pennsylvania ); WASHINGTON POST, 5 not-totally-crazy electoral maps that show Donald Trump winning, 5/5/2016 (available at https// (describing Ohio as a big swing state[] ). 4

5 proving several additional points including that (i) the Ohio Republican Party, in fact, engaged in a conspiracy to file the election protest, (ii) the alleged coconspirators proximately caused LPO s alleged injury, and (iii) Ohio election laws were selectively enforced against LPO. [See Opinion and Order, RE 369 Page Id #8946 ( the [District] Court reiterates that there is no evidence of selective enforcement here )] Emergency injunctive relief that could alter the landscape of an election should not be granted on assumed facts. For all of these reasons, Appellants request to stay this Court s mandate and for an injunction pending further appeal must be DENIED. Respectfully submitted, /s/ Steven W. Tigges Steven W. Tigges ( ) John W. Zeiger ( ) ZEIGER, TIGGES & LITTLE LLP 41 South High Street, Suite 3500 Columbus, Ohio (614) (614) Facsimile tigges@litohio.com zeiger@litohio.com Attorneys for Intervening Defendant 5

6 CERTIFICATE OF SERVICE I hereby certify that on this 8th day of August, 2016, the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system, and notice of this filing will be sent to all attorneys of record by operation of the Court s electronic filing system. /s/ Steven W. Tigges Steven W. Tigges ( )