IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., Plaintiffs, and ROBERT M. HART, Individually and ROBERT FITRAKIS, on behalf of THE GREEN PARTY OF OHIO, and CASE NO. 2:13-cv MAX RUSSELL ERWIN, Individually and DON SHRADER, on behalf of JUDGE MICHAEL H. WATSON THE CONSTITUTION PARTY OF OHIO, Applicants to Intervene, vs. JON HUSTED, In his Official Capacity as Ohio Secretary of State, Defendant, and THE STATE OF OHIO, Intervener-Defendant. MOTION TO INTERVENE OF ROBERT M. HART, INDIVIDUALLY AND ROBERT FITRAKIS ON BEHALF OF THE GREEN PARTY OF OHIO AND MAX RUSSELL ERWIN, INDIVIDUALLY AND DON SHRADER ON BEHALF OF THE CONSTITUTION PARTY OF OHIO Now comes Robert M. Hart, Individually and Robert Fitrakis, on behalf of the Green Party of

2 Ohio ( GPOHIO and Max Russell Erwin, Individually and Don Shrader on Behalf of the Constitution Party of Ohio ( CPO, by and through counsel, pursuant to Fed. R. Civ. P. 24 and for the reasons contained in the memorandum of law being submitted herewith move this Court for an order permitting them to intervene as Plaintiffs in the pending action challenging Ohio Senate Bill 193 ( S.B. 193 and participate in all future proceedings. In support of this Motion to Intervene, the putative interveners submit the following: 1. This case involves S.B. 193, which was passed by the Ohio Legislature on November 6, 2013, signed into law by the governor on the same day, and is scheduled to take effect on February 5, S.B. 193 amends numerous provisions of the Ohio Revised Code, voids various directives that were previously issued by the Ohio Secretary of State, and conflicts with federal court orders prohibiting election regulations that burden access to the ballot for various minor political parties in the State of Ohio. 3. Plaintiff-intervenor-applicants are minor political parties, their candidates, and voters who wish to affiliate with these parties and support their candidates in the 2014 Ohio primary election. 4. Both GPOHIO and CPO are minor political parties, have previously participated in the electoral process, campaigned for various public offices, ran candidates in Ohio s general elections and, but for S.B. 193 will be continuing to run candidates in the 2014 primary and general elections. 5. S.B. 193 places significant burdens on the ability of GPOHIO, CPO, and their candidates to access the 2014 ballot. When S.B. 193 becomes effective on February 5, 2014, 2

3 Applicant-Interveners will be retroactively stripped of their status as political parties, become ineligible to participate in the 2014 primary election, and be obligated to undergo an onerous and burdensome re-qualification process for inclusion in the 2014 general election. 6. The bill also works with pre-existing Ohio laws to restrict the First and Fourteenth Amendment rights of qualified voters. Specifically, the bill will deny Ohio voters wishing to affiliate with minor political parties the ability to do so. The bill will also deny voters who would otherwise vote for minor political party candidates the opportunity to vote for the candidate of their choice. 7. S.B. 193 is not narrowly tailored and does not advance any compelling state interest in regulating Ohio s elections and the re-qualification procedure will unconstitutionally and effectively burden minor political parties, including the Applicant-Interveners from having meaningful participation in general elections and electing the candidate of their choice. 8. The pending litigation filed by the Libertarian Party of Ohio ( LPO against the Secretary of State may, if successful, address the concerns of the LPO but is not intended to and will not necessarily affect either the concerns of the Applicant-Interveners or the voters who would be inclined to support their issues. 9. The conflict in the interests of minor political parties, other than the LPO, is sufficient to authorize intervention as a matter of right on the part of the Applicant-Interveners to protect their interests and address concerns that are unique to them and their constituents. 10. The State of Ohio has previously moved and been granted leave to intervene, ostensibly to defend the constitutionality of the original lawsuit challenging O.R.C (1(a which prohibits certain out-of-state petition circulators from circulating certain nominating petitions and, now, to defend the constitutionality of the burdensome requirements S.B. 193 imposes on minor 3

4 political parties. 11. Given the obvious burdens imposed by S.B. 193 and the prior intervention by the State of Ohio, the totality of all of these circumstances strongly suggest that the Applicant- Interveners should be granted leave to intervene as a matter of right pursuant to Fed. R. Civ. P. 24(a. 12. However, even if the right of the Applicant-Interveners to intervene as a matter of Fed. R. Civ. P. 24(b is questioned, permissive intervention is timely, poses no threat of prejudice to the parties involved, and raises legal and factual questions that substantially overlap with those raised by the initial parties. WHEREFORE, as a matter or right or, in the alternative, in the Court s sound discretion, the Applicants-Interveners request that the Court grant them status as party plaintiffs and leave to participate in future proceedings. Respectfully submitted, /s/ James L. Hardiman James L. Hardiman ( TRIAL ATTORNEY jhardiman@acluohio.org Jennifer Martinez Atzberger ( jatzberger@acluohio.org Drew S. Dennis ( ddennis@acluohio.org American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, OH ( Richard Saphire ( saphire@udayton.edu University of Dayton, School of Law 300 College Park Dayton, Ohio (

5 Paul Moke ( Wilmington College 1252 Tyler Center Wilmington, Ohio ( CERTIFICATE OF SERVICE The foregoing Motion was filed this 27 th day of November, 2013 through the Court s Electronic Filing System. Parties will be served electronically, through the operation of the Electronic Filing System. /s/ James L. Hardiman James L. Hardiman TRIAL ATTORNEY 5