Libertarian Party of Ohio et al v. Husted, Docket No. 2:13-cv-00953 (S.D. Ohio Sept 25, 2013), Court Docket Part Description 1 10 pages 2 Exhibit Consent Decree 3 Affidavit Knedler 4 Affidavit Harris 5 Affidavit Earl 6 Affidavit Redpath Multiple Documents 2013 Bloomberg Finance L.P. All rights reserved. Terms of Service http://www.bloomberglaw.com/ms/document/x1q6msumo982 // PAGE 1
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 1 of 10 PAGEID #: 65 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., Plaintiffs, Case No. 2:13-cv-953 v. JUDGE WATSON JON HUSTED, Defendant, and STATE OF OHIO, Intervenor-Defendant. / PLAINTIFFS' REPLY TO SECRETARY'S AND OHIO'S RESPONSES I. The Secretary Cannot Legally Enforce Ohio's New Residence Requirement. Defendant-Secretary of State (hereinafter "the Secretary") argues that he is "compel[led]" to enforce O.R.C. 3503.06, the target of this litigation, by Ohio law. See Secretary of State Jon Husted's Brief Concerning Plaintiffs' Motion for Preliminary Injunction (hereinafter "Secretary's Response") (Doc. No. 13) at 1 (quoting O.R.C. 3501.05(M)). Plaintiffs agree that the Secretary is the chief election officer in Ohio and is ordinarily compelled to enforce Ohio's election laws. However, Ohio's enforcement requirement must give way to the First Amendment and the Supremacy Clause of the United States Constitution. See U.S. Const., art. VI. To the extent Ohio's residence requirement contradicts the First Amendment and the Sixth Circuit's holding in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), the Secretary is relieved of its obligation under Ohio law. 1
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 2 of 10 PAGEID #: 66 Moreover, the Secretary four years ago entered into a consent decree in Moore v. Brunner, No. 2:08-cv-224 (S.D. Ohio, July 20, 2009) (an official-capacity action brought against the Secretary by a candidate challenging Ohio's residency restriction for circulators), "agree[ing] that O.R.C. 3503.06(A)'s residence and voter registration requirements for circulators of candidates' petitions are, together and/or separately, unconstitutional under the First Amendment," and "agree[ing] that she will not enforce" them. See Consent Decree at 2 (Exhibit 1). 1 The challenge there was to the same residency requirement later invalidated in Nader v. Blackwell. The version of O.R.C. 3503.06(A) challenged in Moore, just like the version of 3503.06 challenged in Nader v. Blackwell, provided that one was not eligible to be a circulator unless the person is registered as an elector and will have resided in the county and precinct where the person is registered for at least thirty days at the time of the next election. 2 The Secretary should not be allowed to seek shelter under a new version of the same requirement. Enforcing Ohio's new residency requirement might even be deemed a contempt of the consent decree entered by Judge Sargus 3 in Moore v. Brunner. 1 The statute had been preliminarily enjoined by Judge Frost in Moore v. Brunner, No. 2:08-cv- 224 (S.D. Ohio, June 2, 2008) (2008 WL 2323530), four months before Nader v. Blackwell was handed down by the Sixth Circuit. The matter was later reassigned to Judge Sargus, who entered the consent decree described above to conclude the litigation. See Exhibit 1. 2 The only difference between the version of 3503.06 challenged in Nader and that challenged in Moore was that on May 2, 2006 the statute was amended to relieve circulators of initiatives of the registration requirement. Nader challenged the version in place in 2004; Moore challenged the version in place in 2006. 3 The matter was later reassigned to Judge Sargus, who entered the consent decree to conclude the litigation. 2
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 3 of 10 PAGEID #: 67 II. Plaintiffs Complaint and Motion for Preliminary Relief is Timely. Intervenor, the State of Ohio (hereinafter "Ohio"), suggests that Plaintiffs' Complaint is not timely. See Intervenor-Defendant the State of Ohio's Memorandum Contra Plaintiffs' Motion for Preliminary Injunction (hereinafter (Ohio's Response") (Doc. No. 14), at 2 ("nearly six months after S.B. 47 passed... Plaintiffs filed a Complaint"). As Ohio itself concedes, however, S.B. 47's changes to O.R.C. 3503.06 did not take effect until June 21, 2013. It was not until September 3, 2013, just three weeks before this action was filed, that the Secretary published Directive 2013-17, stating that that "[a] circulator must be at least 18 years of age and an Ohio resident." Ohio Secretary of State Directive 2013-17 (Sep. 3, 2013) 4 at 1. This is the Directive that effectively rescinded Directive 2013-02, released on January 31, 2013, which stated "[t]he circulator of a candidate s petition does not have to be an Ohio resident or Ohio elector under the ruling of the U.S. Court of Appeals for the Sixth Circuit in Nader v. Blackwell, 545 F.3d 459 (2008)." Ohio Secretary of State Directive 2013-02 (Jan. 31, 2013) 5 at 2. Plaintiffs' challenge was thus filed less than three months after the new O.R.C. 3503.06(C)(1) took effect and only three weeks after the Secretary rescinded Directive 2013-02's interpretation of Ohio law. 6 4 http://www.sos.state.oh.us/sos/upload/elections/directives/2013/dir2013-17.pdf. 5 http://www.sos.state.oh.us/sos/upload/elections/directives/2013/dir2013-02.pdf. 6 The Secretary published an Advisory on June 21, 2013, the day the changes took effect, stating that "[t]he circulator of any petition must be at least 18 years of age." Ohio Secretary of State Advisory 2013-02 (http://www.sos.state.oh.us/sos/upload/elections/advisories/2013/adv2013-02.pdf) at 1. It is not clear, however, what effect an Advisory has on a Directive under Ohio law. In any event, Plaintiffs were not aware of this Advisory. See Second Declaration of Kevin Knedler at 5-8 (Exhibit 2); Second Declaration of Aaron Harris at 6-7 (Exhibit 3); Second Declaration of Charlie Earl at 5-7 (Exhibit 4). 3
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 4 of 10 PAGEID #: 68 Plaintiffs, for their part, had no actual knowledge of the changes to O.R.C. 3503.06 until September of 2013. See Second Declaration of Kevin Knedler at 5-8 (Exhibit 2); Second Declaration of Aaron Harris at 6-7 (Exhibit 3); Second Declaration of Charlie Earl at 5-7 (Exhibit 4). There was no reason, moreover, Plaintiffs should have become aware of the changes earlier--that is, in late-june, July or August. Primary candidates do not as a rule begin circulating petitions for a Spring primary during the "dog days" of Summer. Plaintiff-Earl, for example, did not begin circulating nominating petitions until September. See Second Declaration of Charlie Earl at 5-7 (Exhibit 4). Even those, like Plaintiff-Harris, who began collecting signatures as early as August, see Second Declaration of Aaron Harris at 6-7 (Exhibit 3), did not know of Ohio's new prohibition. Id. The LPO and its members had no reason to think before September that the Secretary's January 31, 2013 Directive had changed. Once they learned of the change they immediately filed this suit. The Plaintiffs' Complaint and Motion for Preliminary Injunctive Relief, having come quickly on the heels of O.R.C. 3503.06(C)(1)'s effective date and the Secretary's rescission of his prior Directive, and immediately following the Plaintiffs' having learned of O.R.C. 3503.06(C)(1)'s new residence requirement, is thus timely. III. Plaintiffs Will Suffer Irreparable Injury. Ohio argues that Plaintiffs have "fail[ed] to make any allegation of anticipated harm from the residency requirement." Ohio's Response at 9 (italics omitted). Ohio further asserts that "even if they had, any harm to Plaintiffs would be speculative at this point because Plaintiffs can still use speakers they want to convey their message and may still get their candidates on the ballot." Ohio's Response at 11. 4
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 5 of 10 PAGEID #: 69 The first charge, that Plaintiffs have failed to allege harm, is demonstrably false. Plaintiffs' Complaint states that LPO candidates, including Plaintiff-Earl and Plaintiff-Harris, seek to use non-residents to circulate their nominating petitions but cannot because of O.R.C. 3503.06(C)(1). See Complaint (Doc. No. 1) at 11& 12. Counts One and Two of the Complaint then assert that prohibiting candidates from using non-residents to circulate their nominating petitions violates the Plaintiffs' First Amendment rights, both facially and as-applied. See Complaint (Doc. No. 1) at 28-35. These allegations of direct, immediate harm to First Amendment rights, i.e., not being able to use non-residents to advance "core" political activities, are supported by the Declarations filed by Plaintiffs. Plaintiff-Earl declares that he would use non-resident circulators but cannot because of O.R.C. 3503.06(C)(1). See Declaration of Charlie Earl (Doc. No. 10) at 6-8. Plaintiff-Knedler, who has full authority to represent the LPO, asserts that LPO candidates are required by Ohio law to collect signatures using circulators in order to gain access to Ohio's primary ballot. See Declaration of Kevin Knedler (Doc. No.9) at 12-13. LPO candidates have used non-residents in the past, id. at 14, and cannot now. Id. at 15. LPO candidates want to use non-residents. Id. at 16. 7 Non-residents want to assist LPO candidates. See Declaration of William Redpath at 4-6 (Exhibit 5). The second charge, that Plaintiffs' First Amendment injuries are not irreparable (because Plaintiffs can still use resident-circulators) finds absolutely no support in the many precedents 7 Further, non-resident circulators have an advantage over resident circulators under Ohio law; the former are not restricted by political affiliation. Id. at 21-24. Residents, in contrast, cannot be members of another political party. Consequently, non-resident circulators have "proven very useful to LPO candidates." Id. at 24. 5
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 6 of 10 PAGEID #: 70 generated by residency restrictions. One example is the Fourth Circuit's holding in Libertarian Party of Virginia v. Judd, 718 F.3d 308, 312 (4th Cir. 2013), which invalidated Virginia's residency requirement for circulators of parties' and candidates' nominating petitions. Virginia's defense in that case was "premised entirely on its assertion that the plaintiffs have not suffered a legally cognizable injury and thus lack standing to sue." Virginia, like Ohio here, argued that the Libertarian Party of Virginia (LPVA) "has succeeded in placing its presidential candidate on the Virginia ballot since 1992," and that "resident circulators were actively collecting signatures throughout the 2012 petition period..." Id. at 313. Thus, Virginia argued, the "mere threat of changed circumstances [was] impermissibly conjectural or hypothetical, and not the actual or imminent injury necessary to satisfy the standing requirement." Id. The Fourth Circuit rejected the state's position: "the witness residency requirement inevitably 'limits the number of voices who will convey [the] message and hours they can speak and, therefore, limits the size of the audience they can reach.' Id. at 314 (citation and footnote omitted). "It is therefore immaterial that the LPVA can, in spite of the witness residency requirement, circulate its petitions to enough of the electorate to permit the collection of 10,000 signatures, if it is also true that, absent the requirement, the petition circulators could approach and attempt to persuade an even larger audience." Id. at 315. The Supreme Court, moreover, has made clear that First Amendment rights are special: "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). Whether a restriction 6
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 7 of 10 PAGEID #: 71 makes it more difficult to exercise First Amendment rights or merely delays their exercise, irreparable harm results. 8 IV. Nader v. Blackwell is Controlling. Ohio devotes most of its Response, as it must, to distinguishing Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008). Nader v. Blackwell, after all, invalidated Ohio's previous residency requirement for circulators of candidates' nominating petitions. None of Ohio's distinctions are persuasive. Ohio is correct to the extent that the plaintiff in Nader v. Blackwell was an independent presidential candidate. Ohio is also correct that Ohio's residency restriction in 2004 included a voter registration requirement. 9 Neither of these differences, however, factored into the Sixth Circuit's decision. That the Sixth Circuit also invalidated Ohio's registration requirement does not alter or detract from its express holding that Ohio's residence requirement separately violated the First Amendment. The Sixth Circuit, moreover, lent no significance or import to Nader's running for President (as opposed to any other office in Ohio). 8 Ohio's argument that this Court should stay these proceedings to await the Supreme Court's disposition of Virginia's petition for certiorari in Judd would only compound Plaintiffs' irreparable injury. The response to the petition for certiorari was filed just last week and the case has not yet been set for Conference. See Supreme Court of the United States, Docket Report, (http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-231.htm). Even assuming that the Court acts quickly, no one can know whether the Supreme Court will grant it. The vast majority of petitions, of course, are denied. And if the Supreme Court grants review, the case will not likely be set for argument, let alone decided, until after the February 5, 2014 deadline. 9 It was for this reason that Ohio's residence requirement in 3503.06 at that time required residence for thirty days. 7
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 8 of 10 PAGEID #: 72 Judge Boggs' concurring opinion in Nader v. Blackwell, which was somewhat circumspect over the exact scope of the holding, was not that of the majority. The majority opinion was written by Judge Clay, who stated: Id. at 479. our decision that 3503.06 is unconstitutional as applied to Ralph Nader has the same practical effect as a declaration that the portions of 3503.06 which Nader challenges are facially unconstitutional, because any future litigant who raises a First Amendment challenge to the provisions challenged by Nader may prevail by noting that 3503.06 significantly compromise[s] the recognized First Amendment rights of Ralph Nader. Nothing in this Court's holding should be understood to abrogate the overbreadth doctrine. Sister Circuits have viewed Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), in this same way. Indeed, Nader is cited as both properly invoking strict scrutiny and correctly invalidating Ohio's law. The Tenth Circuit, for example, in Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1031 n.4 (10th Cir. 2008) noted that "[t]he Sixth Circuit recently addressed the constitutionality of Ohio's ban on non-resident circulators [and]... held the ban violated the First Amendment." The Fourth Circuit cited to Nader v. Blackwell as "declaring unconstitutional, as failing strict scrutiny, Ohio['s] ban on nonresidents circulating nominating petitions." Libertarian Party of Virginia v. Judd, 718 F.3d 308, 317 (4th Cir. 2013). No court has interpreted Nader v. Blackwell's reach to be limited to presidentialcandidate-challenges to residency restrictions that happen to be coupled with voter-registration requirements. The Secretary, for its part, has repeatedly rejected such a narrow interpretation. Several Directives issued by the Secretary s Office have made clear that "[t]he circulator of a candidate's petition does not have to be an Ohio resident or Ohio elector under the ruling of the U.S. Court of Appeals for the Sixth Circuit in Nader v. Blackwell, 545 F.3d 459 (2008)." Ohio 8
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 9 of 10 PAGEID #: 73 Secretary of State Directive 2013-02 (Jan. 31, 2013) 10 at page 2; Ohio Secretary of State Directive 2011-01 (Jan. 6, 2011) 11 at page 3 (same). Ohio complains that it has never been allowed an opportunity to justify its residency requirements. Ohio's Response at 5 ("facts and arguments in favor of the State on the issues of compelling state interests and narrow tailoring exist."). This is not true. It certainly had the opportunity in Nader v. Blackwell; it just did not convince the Sixth Circuit. And it had the opportunity in Moore v. Brunner, No. 2:08-cv-224 (S.D. Ohio, June 2, 2008) (2008 WL 2323530), but failed to convince Judge Frost and Judge Sargus. Now, it has the opportunity to justify its residency requirement, but has curiously offered nothing more than vague statements about "preventing fraud" and insuring "grass-roots support." Ohio's Response at 10. Nowhere does it explain how a residency requirement furthers either aim in the context of candidates' nominating petitions. Plaintiffs can locate nothing supporting these claims in the legislative record. 12 The truth is, Nader v. Blackwell and Moore v. Brunner rejected the notion that a state needs a residency requirement to defeat fraud. So have the vast majority of courts faced with residency restrictions. See, e.g., Libertarian Party of Virginia v. Judd, 718 F.3d 308 (4th Cir. 10 http://www.sos.state.oh.us/sos/upload/elections/directives/2013/dir2013-02.pdf. 11 http://www.sos.state.oh.us/sos/upload/elections/directives/2011/dir2011-01.pdf. 12 S.B. 47, which was responsible for the changes to O.R.C. 3503.06, was first introduced on February 19, 2013. It did not then include the distinction now found in O.R.C. 3503.06(C)(1) between presidential candidates and all others, but simply said that "[n]o person shall be entitled to circulate any petition unless the person is at least eighteen years of age." On March 6, 2013, just before being passed, S.B. 47 was amended to include the language now found in 3503.06(C)(1). Plaintiffs can locate no stated reasons for the March 6 change. 9
Case: 2:13-cv-00953-MHW-TPK Doc #: 15 Filed: 10/21/13 Page: 10 of 10 PAGEID #: 74 2013); Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008); Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008). Nor are non-residents anathema to democracy. A state has myriad ways to insure that laws and representatives are beholden to its people. Limiting the franchise and the right to sign petitions to residents are just two examples. Preventing non-residents from circulating nominating petitions adds nothing worthwhile. CONCLUSION Plaintiffs respectfully ask that their Motion for Preliminary Relief be GRANTED. Respectfully submitted, /s/ Mark R. Brown Mark Kafantaris Mark R. Brown Ohio # 80392 Ohio # 81941 625 City Park Avenue 303 E. Broad Street Columbus, OH 43206 Columbus, OH 43215 (614) 223-1444 (614) 236-6590 (614) 221-3713 (fax) (614) 236-6956 (fax) mark@kafantaris.com mbrown@law.capital.edu Attorneys for Plaintiffs CERTIFICATE OF SERVICE I certify that the foregoing was filed electronically this 21st day of October, 2013, and will be sent to all parties by operation of the electronic filing system. /s/ Mark R. Brown Mark R. Brown 10
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Case: 2:13-cv-00953-MHW-TPK Doc #: 15-3 Filed: 10/21/13 Page: 1 of 2 PAGEID #: 81 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, KEVIN KNEDLER, AARON HARRIS, CHARLIE EARL, Plaintiffs, Case No. 2:13-cv-953 v. Judge Michael H. Watson JON HUSTED, in his Official Capacity as Ohio Secretary of State, Defendant. / correct: SECOND DECLARATION OF AARON HARRIS (pursuant to 28 U.S.C. 1746) I, Aaron Harris, do hereby declare under penalty of perjury that the following is true and 1. I am the named Plaintiff in the above-styled case. 2. I am above the age of 18, of sound mind, a United States citizen, a registered voter in Ohio, and reside in Fairborn, Ohio. 3. I am a member of the Libertarian Party of Ohio (LPO), sit on the LPO's State Executive Committee and also serve as the LPO Communications Director. 4. I am the LPO's State Central Committee Chair and a voter who intends to vote for LPO 1
Case: 2:13-cv-00953-MHW-TPK Doc #: 15-3 Filed: 10/21/13 Page: 2 of 2 PAGEID #: 82 candidates in Ohio's 2014 primary. 5. I am presently running for Ohio Secretary of State in the 2014 election cycle. 6. I began circulating my nominating petition in order to qualify for the 2014 Ohio primary in August of 2013. 7. I was not aware until just a day or two before the filing of this lawsuit that the circulators of my nominating petitions are required by Ohio law to be residents of Ohio. date: 21 Oct 2013 Aaron Harris 2
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