Filed Date: June 6, 2008
Closed Date: Jan. 25, 2010
Clearinghouse coding complete
This is a case about a third-party candidate's access to the ballot in Ohio.
On June 6, 2008, the Libertarian Party of Ohio (LPO), an alternative political party, its chairman, its candidates for President and Vice President of the United States, one of its candidates for the United States Congress, and one of its candidates for the Ohio legislature filed suit in the United States District Court for the Southern District of Ohio alleging that they had been improperly denied access to the November 4, 2008 general election ballot in Ohio. They argued that Ohio's Directive 2007-09, which purported to require an alternative political party such as the LPO to file 20,114 petition signatures no later than November 26, 2007 in order to qualify to run candidates in 2008, unduly burdened their rights to cast their votes effectively, to associate for the advancement of political beliefs, and to have equal protection of the laws, and that such ballot access restrictions were prohibited by Articles I and II of the United States Constitution. They also asserted that Ohio had no state interest which made it necessary to burden plaintiffs' rights. Plaintiffs sought declaratory and injunctive relief, alleging claims under 42 U.S.C. § 1983, the First and Fourteenth Amendments to the United States Constitution, and Articles I and II of the U.S. Constitution. Plaintiffs also sought attorneys' fees under 42 U.S.C. § 1988. Plaintiffs were represented by private attorneys Gary Sinawski and Mark Brown. Defendant Jennifer Brunner, the Ohio Secretary of State, was Ohio's chief election officer. The case was assigned to Judge Edmund A. Sargus, Jr.
This case stems from an earlier case involving the LPO, Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006), and the Ohio General Assembly's failure to act following Blackwell. In Blackwell, the Sixth Circuit ruled that Ohio's requirement that political parties nominate their candidates via primary election, together with its requirement that minor parties file a qualifying petition 120 days in advance of the primary election, impose ". . . an unconstitutional burden on the [the LPO's] First and Fourteenth Amendment rights of free association, by effectively preventing it from gaining access to the general election ballot in the twelve months preceding a presidential election." 462 F.3d at 582. This ruling left a void in minor party qualifying procedures that could have been addressed by legislation. However, the Ohio General Assembly did not enact remedial legislation, so Ohio's Secretary of State attempted to fill the void by promulgating Directive 2007-09 in May 2007, which purported to require a minor party desirous of fielding candidates in the November 2008 general election to obtain petition signatures equal in number to one-half of one percent of the 2006 gubernatorial vote and to file them at least 100 days before the March 4, 2008 primary election. Thus, the Directive left intact the pre-Blackwell requirement that a minor party nominate its candidates by primary election.
On March 3, 2008, the LPO sought to qualify for the November 2008 general election ballot by filing a petition containing some 6,545 signatures. In a May 22, 2008 letter, Ohio rejected the petition for failure to comply with Directive 2007-09. On June 6, 2008, the LPO filed its initial complaint challenging Directive 2007-09. On June 16, 2008, the LPO amended its complaint, which became the operative complaint in the case. On the same day, the LPO filed a Motion for Preliminary Injunction which asked the court to: 1) grant the LPO access to the November 4, 2008 general election ballot; (2) invalidate the early filing deadline for minor party qualifying petitions imposed by Ohio; and 3) invalidate the requirement that the LPO nominate its candidates via primary election and permitting it to nominate by party caucus or convention. Ohio opposed the Motion for Preliminary Injunction, arguing that Secretary Brunner properly exercised her authority under Ohio law to fill the void left by the Blackwell decision and that it was constitutional for Ohio to require any new party to show that it enjoys a modicum of support before it is granted access to the ballot.
After reviewing the parties' briefs and hearing oral argument, Judge Sargus ruled in favor of the LPO on July 17, 2008. The ruling was published at 567 F.Supp.2d 1006 (S.D. Ohio 2008). Recognizing that Ohio has the right to require party candidates for public office to file petitions sufficient in number to demonstrate a modicum of public support, and that such petitions must be filed in advance of an election to ensure an orderly, reliable election, the Court also held that the First Amendment to the U.S. Constitution guarantees a right of association which is violated by onerous access statutes which prevent third parties and candidates from appearing on the ballot. Further, Articles I and II of the Constitution require that for federal offices such as President, Vice President, and the U.S. House of Representatives, the legislature, not executive officers such as the Secretary of State, must determine the method of elections. While the Court noted Secretary Brunner tried to bring Ohio election law into compliance with the Constitution, the Directive issued by the Secretary suffered from the same deficiencies found in Blackwell, and, as to the federal offices, was in conflict with Articles I and II of the Constitution. The Court applied the four factors applicable to preliminary injunctions: (1) plaintiff's likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable harm without the injunction; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest will be advanced by issuing the injunction. Applying these factors, the Court first held that the LPO was likely to prevail on the merits of its constitutional claims. Only the legislature can establish methods for the election of federal officers. Moreover, the Directive imposed unconstitutional burdens on First Amendment rights of association, the same problem the Sixth Circuit found in Blackwell. The Court was not persuaded by Ohio's argument that the burdens were necessary to ensure orderly elections. Quoting Blackwell, the Court held: "[t]his system serves to protect the two major parties at the expense of political dialogue and expression, which not justified, much less compelling." 567 F. Supp.2d at 1014 (quoting Blackwell, 462 F.3d at 594). Further, no federal court has upheld a ballot restriction requiring minor parties to file party petitions more than eleven months in advance of a general election. In fact, in Williams v. Rhodes, 393 U.S. 23 (1968), the Supreme Court specifically rejected Ohio's February filing deadline for minor parties to qualify for the November election.
Next, the Court found that denial of access to the ballot irreparably harmed the LPO and its candidates. The Court also rejected Ohio's argument that the candidates and the general public would be harmed if the LPO was allowed access to the ballot. As in Blackwell, there was no evidence that Ohio voters "would be flummoxed by a ballot featuring multiple political parties." 567 F. Supp.2d at 1015 (quoting Blackwell, 462 F.3d at 594). Thus, the court concluded that each of the four factors for preliminary injunctions weighed in favor of the LPO. In granting the Motion for Preliminary Injunction, the Court ruled that the LPO candidates must be placed on the 2008 general election ballot for the state of Ohio and that the individual plaintiffs be identified as candidates of the LPO. The Court stayed its order for ten days in order to allow Ohio to pursue expedited review at the Sixth Circuit.
Ohio did not pursue an appeal and instead answered the Amended Complaint. Thereafter, the Court granted motions to consolidate two other ballot access cases with LPO v. Brunner: (1) Moore v. Brunner, 2:08-cv-224 (S.D. Ohio) and McKinney v. Brunner, 2:08-cv-819 (S.D. Ohio). The parties subsequently entered into a settlement, the terms of which are contained in a Consent Decree. According to the Consent Decree, entered on July 30, 2009, on May 27, 2009, Ohio formally withdrew Directive 2007-09 and LPO agreed to dismiss its case with prejudice. The Consent Decree also states that the LPO would be entitled to its reasonable attorneys' fees pursuant to 42 U.S.C. § 1988(b). The LPO was further directed to file a motion for an award of costs under Rule 54 and attorneys' fees under 42 U.S.C. § 1988(b) with the Court within 14 days after the Consent Decree is incorporated into a Final Judgment.
On January 25, 2010, the Court entered an award of attorneys' fees and costs in Moore v. Brunner and LPO v. Brunner as follows: (1) $19,968.75 in fees and $350 in costs in Moore v. Brunner; and (2) $38,000 in fees and $2,412 in costs in LPO v. Brunner. There was no further activity in the case after the award of attorneys' fees and costs.
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4845552/parties/libertarian-party-of-ohio-v-brunner/
Sargus, Edmund A. (Ohio)
Brown, Mark R (Ohio)
Chin, Pearl M. (Ohio)
Coglianese, Richard Nicholas (Ohio)
Sikora, Damian W (Ohio)
See docket on RECAP: https://www.courtlistener.com/docket/4845552/libertarian-party-of-ohio-v-brunner/
State / Territory: Ohio
Case Type(s):
Special Collection(s):
Law Firm Antiracism Alliance (LFAA) project
Key Dates
Filing Date: June 6, 2008
Closing Date: Jan. 25, 2010
Case Ongoing: No
Plaintiffs
Plaintiff Description:
An alternative political party, its chairman, its candidates for President and Vice President of the United States, one of its candidates for the United States Congress, and one of its candidates for the Ohio legislature who were denied access to the November 4, 2008 general election ballot in Ohio
Plaintiff Type(s):
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
Defendant Type(s):
Case Details
Causes of Action:
Constitutional Clause(s):
Available Documents:
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Amount Defendant Pays: $58,318.75
Order Duration: 2009 - 2010
Issues
Voting: