Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 1 of 11 PAGEID #: 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al. Plaintiffs, Case No. 2:13-cv-00953 v. JUDGE FROST JON HUSTED, in his Official Capacity as Ohio Secretary of State, MAG. JUDGE KEMP Defendant. / MOTION FOR PRELIMINARY INJUNCTION AND ATTACHED MEMORANDUM OF LAW IN SUPPORT Plaintiffs pursuant to Federal Rule of Civil Procedure 65 move the Court to enter a preliminary injunction restraining Defendant from enforcing O.R.C. 3503.06(C)(1)(a), which states: "Except for a nominating petition for presidential electors, no person shall be entitled to circulate any petition unless the person is a resident of this state and is at least eighteen years of age." In support of this Motion, Plaintiffs tender to the Court the Complaint, a Memorandum in Support of the Motion for Preliminary Injunction, and a Proposed Order. Plaintiffs certify that they, through counsel, have contacted counsel for the Defendant, the Ohio Attorney General's Office, and have requested that Defendant waive service of process under Federal Rule of Civil Procedure 4(d). Plaintiffs further certify that they, through counsel, have this day supplied the Ohio Attorney General with a copy of the Complaint as well as the Motion for Preliminary Injunction and supporting Memorandum. 1
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 2 of 11 PAGEID #: 10 Respectfully submitted, s/mark R. Brown Mark R. Brown, Trial Counsel Ohio Registration No. 81941 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu Mark G. Kafantaris Ohio Registration No. 80392 625 City Park Avenue Columbus, Ohio 43206 (614) 223-1444 (614) 300-5123(fax) mark@kafantaris.com Attorneys for Plaintiffs 2
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 3 of 11 PAGEID #: 11 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Because of prior successful litigation against Ohio's Secretary of State, see Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006); Libertarian Party of Ohio v. Brunner, 462 F. Supp.2d 1006 (S.D. Ohio 2008); Libertarian Party of Ohio v. Husted, No. 2:11-cv-722 (S.D. Ohio, Sep. 7, 2011), vacated as moot, 497 Fed. Appx. 581 (6th Cir. 2012), Plaintiff, the Libertarian Party of Ohio (hereinafter "the LPO"), has since the 2008 general election remained a ballot-qualified political party in Ohio. See Ohio Secretary of State Directive 2001-01 (Jan. 6, 2011); Ohio Secretary of State Directive 2011-38 (Nov. 1, 2011); Ohio Secretary of State Directive 2013-02 (Jan. 31, 2013). The LPO has participated in and fielded candidates through Ohio's primaries since 2010. See Complaint at 2. It has since 2008 ran candidates for local, state-wide, and federal office (including the Presidency in 2008 and 2012) in Ohio's general elections. See Complaint 3. In the most recent non-presidential election year, 2010, LPO's slate of state-wide candidates won nearly 5% of the total votes cast in their respective elections; specifically LPO's candidates won 184,478 votes (4.91% of the total) for State Treasurer in 2010, 182,977 votes (4.88% of the total) for Secretary of State in 2010, 182,534 votes (4.87% of the total) for State Auditor in 2010. See Complaint at 21. In all 2010 elections combined, LPO candidates won over one million votes. Id. The LPO expects even greater percentages and more votes in the next non-presidential election, 2014. Ohio's Constitution, Article V, 7, provides that "[a]ll nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as 3
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 4 of 11 PAGEID #: 12 provided by law..." It has been interpreted by the Ohio Supreme Court to require that a qualified political party's candidates gain access to Ohio's general election ballot by "filing a declaration of candidacy accompanied by a petition entitling one to be a participant in the direct party primary wherein candidates from all political parties seek their nomination..." State ex rel. Gottlieb v. Sulligan, 193 N.E.2d 270, 272-73 (Ohio 1963). Consequently, in order to run under the LPO banner in the 2014 general election, candidates, including Plaintiff Charlie Earl, must first run in Ohio's 2014 primary. Running in party primaries in Ohio requires submitting a nominating petition supported by voters' signatures. See O.R.C. 3513.05; see, e.g., Ohio Secretary of State Directive 2013-02 at page 2 (Jan. 31, 2013). 1 Signatures required by Ohio law to support nominating petitions, see O.R.C. 3513.05, must be gathered and witnessed by "circulators." See O.R.C. 3513.05. In 2008, the United States Court of Appeals in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), invalidated, under the First and Fourteenth Amendments, Ohio's law requiring that circulators of candidates' petitions be residents (and registered voters) of Ohio. O.R.C. 3503.06(A), 2 at that time, required that individuals who wished to circulate a candidate s nominating petition (often called part-petition in Ohio) had to be properly registered Ohio voters who resided in their voting precincts for thirty-days. O.R.C. 3503.06(A). As explained in greater detail below, the majority in Nader v. Blackwell concluded that Ohio's registration and residence requirements for circulators were facially unconstitutional under the First Amendment. 1 http://www.sos.state.oh.us/sos/upload/elections/directives/2013/dir2013-02.pdf. 2 Section 3503.06 at that time distinguished between circulators for candidates and circulators of initiatives. Circulators of a candidate s part-petition had to be thirty-day residents who were properly registered to vote in Ohio. Circulators of initiative-part-petitions needed only to be Ohio residents. 4
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 5 of 11 PAGEID #: 13 From 2008 until On June 21, 2013, Ohio acquiesced in the Sixth Circuit's conclusion in Nader v. Blackwell. Indeed, several Directives issued by the Defendant's Office, both through the Defendant's predecessor (Jennifer Brunner) and Defendant himself, expressly stated 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 Secretary of State Directive 2013-02 (Jan. 31, 2013) at page 2. 3 See also, Ohio Secretary of State Directive 2011-01 (Jan. 6, 2011) at page 3 ("Circulators of any candidate's petition do not have to be Ohio residents or Ohio electors under the ruling of the U.S. Court of Appeals for the Sixth Circuit in Nader v. Blackwell, 545 F.3d 459 (2008)." 4 (Emphasis original). On June 21, 2013, Ohio amended O.R.C. 3503.06 so that it once again requires that circulators of candidates' petitions be residents of Ohio. Specifically, O.R.C. 3503.06(C)(1)(a) states: "Except for a nominating petition for presidential electors, no person shall be entitled to circulate any petition unless the person is a resident of this state and is at least eighteen years of age." Because of O.R.C. 3503.06(C)(1)(a), the LPO's candidates for Ohio's 2014 primary, including Plaintiff-Earl, are now prevented from using non-residents to circulate the petitions required by Ohio law. See Complaint at 11. Many of the LPO's candidates, including Plaintiff- Earl, seek to use non-residents to circulate the petitions required by Ohio law. See Complaint at 12. 3 http://www.sos.state.oh.us/sos/upload/elections/directives/2013/dir2013-02.pdf. 5
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 6 of 11 PAGEID #: 14 Because Ohio requires that nominating petitions for its 2014 primary be submitted on or about February 5, 2014, see Complaint at 18; O.R.C. 3513.05, many of the LPO's candidates, including Plaintiff-Earl, have commenced using circulators to collect the signatures required to support their nominating petitions. See 13. It is because nominating petitions are due on or about February 5, 2014, less than six months time from the filing of this Complaint, that time is of the essence. ARGUMENT When a district court is asked to issue a preliminary injunction, it balances four factors : (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction. Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1108-09 (6 th Cir. 1995). See also Workman v. Bredesen, 486 F.3d 896 (6 th Cir. 2007) (same). See FED. R. CIV. PRO. 65(a). I. PLAINTIFFS LIKELIHOOD OF SUCCESS ON THE MERITS Defendant, Ohio s Secretary of State, is charged by Ohio law with enforcing Ohio s ballot-access restrictions, including those found in O.R.C. 3503.06(C)(1)(a), the statute being challenged here. See O.R.C. 3501(M) (stating that the Secretary of State has the power to [c]ompel the observance by election officers in the several counties of the requirements of the election laws ); Rosen v. Brown, 970 F.2d 169, 171 (6 th Cir. 1992) (observing that Ohio s 4 http://www.sos.state.oh.us/sos/upload/elections/directives/2011/dir2011-01.pdf. 6
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 7 of 11 PAGEID #: 15 secretary of state compel[s] compliance with election law requirements by election officials ). Defendant is therefore the proper party-defendant in this equitable action under 42 U.S.C. 1983. The Sixth Circuit in Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), ruled that O.R.C. 3503.06(C)(1)(a)'s predecessor, which required that circulators for all candidates' nominating petitions be Ohio residents, was, in effect, facially unconstitutional under the First Amendment. Its opinion was not limited to independent candidates for President. Judge Moore, who joined Judge Clay's majority opinion (as well as Judge Boggs' opinion), summarized this way: We hold that the voter-registration requirement contained in Ohio Revised Code 3503.06 is a severe restriction on political speech which cannot survive strict scrutiny. Similarly, we hold that the residency restriction in 3503.06 severely limits political speech and is not justified by a sufficient state interest. Therefore, we hold that the voterregistration restriction and the residency restriction contained in 3503.06 are both unconstitutional in violation of the First Amendment. 545 F.3d at 478 (Moore, J., concurring). All three judges on the Nader panel agreed that Ohio's residence requirement for circulators of Nader's 5 nominating petitions violated the First Amendment. Judge Clay's opinion, joined by Judge Moore, however, proved to be majority opinion. Judge Clay 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. The Sixth Circuit, like its many sister Circuits, including the Second, see Lerman v. 7
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 8 of 11 PAGEID #: 16 Board of Elections, 232 F.3d 135 (2d Cir. 2000) (holding that New York residence requirement for circulators of candidates' petitions violated First Amendment), Fourth, see Libertarian Party of Virginia v. Judd, 718 F.3d 308 (4th Cir. 2013) (holding that Virginia requirement that circulators of candidates' petitions be residents violated First Amendment), Ninth, see Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008) (holding Arizona requirement that circulators of candidates' petitions be residents violated First Amendment), and Tenth, see Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10th Cir. 2008) (holding Oklahoma's ban on non-resident circulators of initiatives violated First Amendment), relied on the Supreme Court's ruling in Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999). Buckley struck down a Colorado law requiring that circulators of ballot initiatives be registered voters. Petition circulation is core political speech [and] First Amendment protection for such interaction is at its zenith. Id. at 186-87. Because the voter registration requirement greatly reduced the number of potential circulators, the Court found that it significantly burdened First Amendment rights. Id. at 194-95. Moreover, the Court rejected Colorado s claim that registration was needed to properly police signature collection. Id. at 196. Voter registration, it found, had little in common with the amenability of circulators to official process. See also Meyer v. Grant, 486 U.S. 414 (1988) (holding that candidates have a constitutional right to hire professional circulators). Ohio has nothing more to offer. In sum, Ohio's new law requiring that circulators of candidates' nominating petitions be Ohio residents is clearly unconstitutional under Nader v. Blackwell and the First Amendment. 5 Nader was running for President as an independent in Ohio. 8
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 9 of 11 PAGEID #: 17 II. IRREPARABLE INJURY Plaintiffs are threatened with irreparable injury because the time to collect signatures in Ohio for the 2014 primaries expires on or about February 5, 2014. Collecting signatures is difficult, and requiring that candidates use residents makes the job more difficult. Any impediment on First Amendment rights, even for brief periods, threatens irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). III. DEFENDANT WILL SUFFER NO INJURY Defendant will suffer no injury should the Court enjoin the enforcement of 3503.06(C)(1)(a). Voters signatures on part-petitions must still be valid and verified, meaning that candidates without significant support will not gain access to Ohio s primary ballot. IV. THE PUBLIC WILL BENEFIT Preliminary relief will benefit the public because it will insure that Ohio s primary election complies with the First Amendment. V. NO SECURITY IS REQUIRED Rule 65(c) states that [n]o restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party found to have been wrongfully enjoined or restrained. FED. R. CIV. P. 65(c). As noted by one wellrecognized authority, however, the court may dispense with security altogether if grant of the injunction carries no risk of monetary loss to the defendant. C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE 2954. The Sixth Circuit has observed that security is not 9
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 10 of 11 PAGEID #: 18 mandatory under Rule 65(c), and can be dispensed with in the discretion of the court. See Moltan Co. v. Eagle-Picher Industries, Inc., 55 F.3d 1171, 1176 (6 th Cir. 1995). Because Defendant will suffer no harm, economic or otherwise, no security should be required. CONCLUSION For the foregoing reasons, Plaintiffs respectfully move the Court to issue a preliminary injunction 6 against Defendant preventing him from enforcing O.R.C. 3503.06(C)(1)(a) against Plaintiffs and their circulators in Ohio. Respectfully submitted, s/mark R. Brown Mark R. Brown, Trial Counsel Ohio Registration No. 81941 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu Mark G. Kafantaris Ohio Registration No. 80392 625 City Park Avenue Columbus, Ohio 43206 (614) 223-1444 (614) 300-5123(fax) mark@kafantaris.com Attorneys for Plaintiffs 6 A Proposed Order is attached. 10
Case: 2:13-cv-00953-MHW-TPK Doc #: 3 Filed: 09/26/13 Page: 11 of 11 PAGEID #: 19 CERTIFICATE OF SERVICE I hereby certify that copies of the Complaint, this Motion and accompanying Memorandum in Support, and the attached Proposed Order, were electronically delivered and mailed with first-class postage affixed to the Ohio Attorney General s Office, c/o Richard N. Coglianese (rcoglianese@ag.state.oh.us), Assistant Attorney General, 30 E. Broad Street, 17 th Floor, Columbus, OH 43215-3428 (FAX (614) 728-7592), Attorney for the Defendant, on this 26th day of September, 2013. s/mark R. Brown Mark R. Brown 11