Libertarian Party of Ohio v. Wilhem

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LIBERTARIAN PARTY OF OHIO, et al., :

: Case No. 2:19-cv-02501

Plaintiffs, :

: JUDGE ALGENON L. MARBLEY

v. :

: Magistrate Judge Jolson

DEGEE WILHEM, et al., :

:

:

Defendants. :

OPINION & ORDER

I. INTRODUCTION

This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction. (Doc.

37.) The hearing on this Motion was held on Monday, November 25, 2019 at 9:30 a.m. For the

reasons set forth below, the Court DENIES Plaintiffs’ Motion for a Preliminary Injunction [#37].

II. BACKGROUND

On September 24, 2018, the Libertarian Party of Ohio and Harold Thomas (“Plaintiffs”),

as Party Chair, filed complaints with Ohio’s Elections Commission asserting that three

organizations responsible for facilitating gubernational debates throughout Ohio in 2018 violated

Ohio Revised Code § 3599.03, which governs corporate campaign contributions. (Doc. 1 at 39-

41.) Plaintiffs claimed that these organizations, by staging an exclusive debate between the

Democratic and Republican gubernational candidates, and by not notifying or inviting Plaintiffs’

gubernational candidate or employing objective criteria in selecting the debate participants,

engaged in illegal corporate campaign contributions. (Id.) According to Plaintiffs, the

Commission’s legal counsel advised the Commission that the debates had been illegally

coordinated, staged, planned, and sponsored under Ohio law, and recommended that the

Commission find these organizations in violation of the state’s campaign finance laws. (Id. at 41.)

At the Preliminary Injunction hearing, Philip Richter, legal counsel to the Commission, denied that

he ever made this recommendation. To the contrary, he testified that he recommended that the

Commission find no violation. In any case, on December 6, 2018, the Commission dismissed

Plaintiffs’ administrative complaints, finding no violation had occurred. (Id. at 42.)

On June 15, 2019, Plaintiffs sued the individual Commissioners on Ohio’s Elections

Commission (“Defendants”) in their official capacity for violating Plaintiffs’ First and Fourteenth

Amendment rights. In Count One, Plaintiffs brought a First Amendment challenge to Ohio

Revised Code § 3517.152, which restricts membership on Ohio’s Elections Commission to

affiliates of the two major political parties. In Counts Two and Three, Plaintiffs alleged

Defendants violated their First and Fourteenth Amendment rights by selectively choosing not to

enforce Ohio’s campaign finance laws and by dismissing their administrative complaints. The

Court, however, dismissed Counts Two and Three after finding Plaintiffs lacked standing to assert

those claims. (See Doc. 29.)

Plaintiffs have now filed a Motion for a Preliminary Injunction asking the Court to do the

following: (1) declare that O.R.C. § 3517.152 violates the First Amendment; (2) prohibit the state

of Ohio from enforcing O.R.C. § 3517.152; (3) direct Defendants to vacate their prior dismissal of

Plaintiffs’ administrative complaints; (4) direct Defendants to refer Plaintiffs’ administrative

complaints to a neutral decision-maker; (5) enjoin Defendants, as currently constructed, from

considering administrative complaints brought against or on behalf of minor political candidates;

and (6) direct Defendants, as currently constructed, to refer administrative complaints brought

against or on behalf of minor political parties or their candidates to neutral decision-makers.

III. STANDARD OF REVIEW

Preliminary injunctions are extraordinary remedies which should be granted only if the

movant carries his or her burden of proving that the circumstances clearly demand it. See

Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). Whether to

grant such relief is a matter within the discretion of the district court. N.A.A.C.P. v. City of

Mansfield, Ohio, 866 F.2d 162, 166-67 (6th Cir. 1989). Courts consider four factors when

determining whether to grant a request for a preliminary injunction: (1) whether the movant has a

strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury

without the injunction; (3) whether the issuance of the injunction would cause substantial harm to

others; and (4) whether the public interest would be served by issuance of the injunction. Bonnell

v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001).

IV. ANALYSIS

1. Likelihood of Success on the Merits

The first preliminary injunction factor requires the Court to consider Plaintiffs’ likelihood

of success on the merits of their claim. Here, whether Plaintiffs are entitled to the relief that they

request boils down to a single legal question: Does O.R.C. § 3517.152, which restricts membership

on Ohio’s Elections Commission to affiliates of the two major political parties, violate the First

and Fourteenth Amendments? Plaintiffs’ core argument is that members of the Libertarian Party

have a constitutional right to be considered for representation on Ohio’s Elections Commission to

ensure that the state’s election laws are fairly regulated.

Previously, this Court, relying primarily on the Third Circuit’s opinion in Adams v.

Governor of Delaware, 922 F.3d 166 (3d Cir. 2019), suggested that to justify the strict construction

of O.R.C. § 3517.152, Defendants needed to demonstrate that the statute was narrowly tailored to

achieve a compelling state interest. (See Doc. 29 at 12-13.) Defendants now cite additional case

law and raise new arguments in an effort to distinguish Adams and to establish that rational basis

review is the appropriate standard to apply. Alternatively, Defendants contend that even if strict

scrutiny review were to apply, O.R.C. § 3517.152 is narrowly tailored to further Ohio’s interest in

the integrity of its elections, in preventing corruption in the political process, and in the stability

of its political systems.

A. Rational Basis Review or Strict Scrutiny

A threshold question for the Court is whether O.R.C. § 3517.152 must withstand rational

basis review or strict scrutiny. The Supreme Court has adopted a flexible framework for testing

the validity of state election regulations. See Burdick v. Takushi, 504 U.S. 428, 433-34 (1992);

Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983). Under this framework, the level of scrutiny

to be applied corresponds with the degree to which a challenged regulation burdens First and

Fourteenth Amendment rights. See id. Hence, the Court “must first consider the character and

magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments

that the plaintiff seeks to vindicate” and then “evaluate the precise interests put forward by the

State as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789. The

Supreme Court simplified this inquiry in Burdick:

Under this standard, the rigorousness of our inquiry into the propriety of a state election

law depends upon the extent to which a challenged regulation burdens First and Fourteenth

Amendment rights. Thus, as we have recognized when those rights are subjected to severe

restrictions, the regulation must be narrowly drawn to advance a state interest of

compelling importance. But when a state election law provision imposes only reasonable,

nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters,

the State’s important regulatory interests are generally sufficient to justify the restrictions.

504 U.S. at 434 (internal quotations and citations omitted).

Ohio Revised Code § 3517.152 governs the appointment of officials to the seven-member

Ohio Elections Commission. See O.R.C. § 3517.152. This statute, in relevant part, provides:

[T]he speaker of the house of representatives and the leader in the senate of the political

party of which the speaker is a member shall jointly submit to the governor a list of five

persons who are affiliated with that political party. . . . [T]he two legislative leaders in the

two houses of the general assembly of the major political party of which the speaker is not

a member shall jointly submit to the governor a list of five persons who are affiliated with

the major political party of which the speaker is not a member. . . . [T]he governor shall

appoint three persons from each list to the commission.

[A]fter the governor appoints these six members, they shall, by a majority vote, appoint to

the commission a seventh member, who shall not be affiliated with a political party.

O.R.C. § 3517.152(a)(1). While in practice, O.R.C. § 3517.152 effectively prohibits any person

affiliated with a minor political party, such as Ohio’s Libertarian Party, from being considered for

membership on the Commission, the statute does not foreclose the possibility that a minor political

party could one day become a major political party and, in turn, have an affiliated member

appointed to the Commission. Defendants key in on this possibility to argue that because

appointment to Ohio’s Elections Commission is limited by party size -- and not to any specific

party -- the restrictions set forth in O.R.C. § 3517.152 are nondiscriminatory, and therefore, subject

only to rational basis review.

Defendants rely on the First Circuit’s opinion in Werme v. Merrill for support. 84 F.3d

479, 484-85 (1st Cir. 1996). There, the Libertarian Party of New Hampshire challenged whether

it was unconstitutional for a state law to permit the two most popular political parties to have

election inspectors and ballot clerks present at the polls on election day, while denying minor

political parties this same right. Id. at 481. Like here, the plaintiffs argued that this deprived them

of their right to free political association and discriminated against them on the basis of their

political affiliation. Id. at 484. In rejecting plaintiffs’ claims, however, the First Circuit noted that

the challenged statute only posed a slight burden on the rights of Libertarians, and thus, was subject

to rational basis review. Id. First, the court made clear that there was no abstract constitutional

right to be appointed to serve as an election inspector or ballot clerk. Id. And, although the right

to vote included the right to have one’s vote counted, nothing on the face of the New Hampshire

statutes deprived Libertarian Party members of that right. Id. Second, the court concluded that

New Hampshire’s regulations were nondiscriminatory in that they did not differentiate among

Republicans, Democrats, and Libertarians. Id. Rather, the regulations conditioned the right to

appoint election inspectors and ballot clerks on a certain degree of success at the polls, which was

not discriminatory per se. Id. (citing American Party of Texas v. White, 415 U.S. 767, 781 (1974)).

Stated differently, the Libertarian Party had the same opportunity to qualify as a source of election

inspectors and ballot clerks under New Hampshire law as did any other party. Id. at 484-85.

Defendants also cite to the Northern District of Ohio’s decision in Pirincin v. Board of

Elections of Cuyahoga County. 368 F. Supp. 64, 69-71 (N.D. Ohio 1973). In Pirincin, the

plaintiffs, all of whom were either independent voters or members of minor political parties,

challenged the constitutionality of the way in which Ohio board of election members were selected

under O.R.C. §§ 3501.06 and 3501.07. Id. at 66. Those statutes created a scheme whereby the

Ohio secretary of state was required to “appoint one board member from the party which cast the

highest number of votes for governor at the last preceding regular state election and the other from

the party that cast the next highest number of votes for governor at the same election.” Id. at 67.

Vacancies for unexpired terms and all appointments to new terms, in turn, were “filled from the

party to which the departing member belong[ed] unless there was a third party that cast a greater

number of votes at the last preceding regular election for governor than did the party to which the

retiring member belong[ed].” Consequently, these statutes, like O.R.C. § 3517.152, effectively

limited representation on Ohio’s elections boards to members of the Democratic and Republican

parties.

In that case, the plaintiffs argued that this scheme violated their First and Fourteenth

Amendment rights, as it fenced them out of “a vital part of the election process.” Id. at 68.

Additionally, plaintiffs alleged that the interests of a two-party board may, at times, coincide to

the detriment of independent voters and members of minority parties, thereby depriving them of

due process under the law. Id. 77. The court disagreed with both arguments. First, like in Werme,

the court stressed that the opportunity to have a representative on the board of electors was equally

available to all political parties based on the voter support received during the preceding state

gubernational election. Id. at 71-72. Second, with respect to plaintiffs’ due process argument, the

court held that plaintiffs “assume[d] too much” and that the procedures currently in place had

worked reasonably well to ensure honest and fair elections. Id. at 79. Moreover, the court found

that because the elections boards’ decisions were subject to judicial review, this provided further

protection to alleviate any due process concerns. See id.

Plaintiffs do little to address or distinguish either Werme or Pirincin; rather, Plaintiffs rely

primarily on the Third Circuit’s opinion in Adams, where the court struck down a Delaware statute

that limited service on its courts to members of the two major parties. 922 F.3d 166. There, the

plaintiff was an independent, unaffiliated voter and a member of the state bar who sought a judicial

appointment but was prevented from applying for one because he was not a member of a major

political party. Id. at 172. He thus brought a challenge to the statute, arguing that it impinged on

his First Amendment right to associate with the political party of his choice. Id. at 183. The Third

Circuit agreed and held that Delaware’s practice of excluding independents and third-party voters

from judicial employment was not narrowly tailored to advance the state’s interest in a politically

balanced judiciary. Id. at 182. In doing so, the court reasoned that judges were not policymakers

such that judicial appointments would fall within the political patronage exception recognized by

the Supreme Court. Id. at 181 (“We therefore conclude that state judges do not fall within the

policymaking exception because affiliation with a particular party is not a requirement for the

effective performance of the judicial role.”); but see Newman v. Voinovich, 986 F.2d 159, 163 (6th

Cir. 1993) (“[W]e hold that judges are policymakers within the meaning of Elrod and Branti.”).

Further, the court maintained that the rationale for seeking political balance on multimember

deliberative bodies, such as Ohio’s Elections Commission, did not extend to Delaware judges,

many of whom sit alone. Id. at 182.

After reviewing the cases cited above and the arguments set forth in the parties’ briefs, this

Court is now persuaded that Adams is distinguishable, and that the appropriate standard to apply

to O.R.C. § 3517.152 is rational basis review. As a threshold matter, the Sixth Circuit, unlike the

Third Circuit, recognizes that judges are policymakers falling within the Supreme Court’s political

patronage exception. See Newman, 986 F.2d at 163 (“[W]e hold that judges are policymakers

within the meaning of Elrod and Branti.”). This is an important distinction because Ohio’s

Elections Commission, like judges, acts in a quasi-judicial capacity. Indeed, the Commission is

authorized to find violations of Ohio’s campaign finance laws, assess fines, and refer violations to

the local prosecutor. See O.A.C. §§ 3517-1-14-(B)(3) and (C). The Commission also has explicit

policy-making functions, such as the ability to recommend legislation and issue advisory opinions.

See O.R.C. § 3517.153(D). At least within the Sixth Circuit then, that O.R.C. § 3517.152

implicates First and Fourteenth Amendment rights does not automatically trigger strict scrutiny

review. Moreover, the Sixth Circuit has held that political patronage can be considered for

positions that are part of a group of positions filled by balancing out political representation. See

McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996).

Additionally, the Court finds the decisions in Werme and Pirincin persuasive in concluding

that O.R.C. § 3517.152 is not discriminatory towards minor political parties. The statute does not

differentiate between Democrats, Republicans, Libertarians, or other minority parties. To the

contrary, it conditions the right to have affiliated party members appointed to the Elections

Commission on a certain degree of success at the polls. Thus, the Libertarian Party has the same

opportunity to qualify for appointments to the Elections Commission as any other political party.

See Werme, 84 F.3d at 484-85 (“Equality of opportunity exists, and equality of opportunity—not

equality of outcomes—is the linchpin of what the Constitution requires in this type of situation.”).

It follows, Plaintiffs eligibility for membership on Ohio’s Elections Commission depends upon its

ability to garner the necessary voter support.

Finally, to the extent Plaintiffs allege that the procedure for selecting Elections

Commission members creates a divided loyalty which in turn deprives them of their fundamental

due process rights, Plaintiffs fail to demonstrate that the Commission lacks adequate safeguards to

protect these rights. See Grannis v. Ordean, 234 U.S. 385, 394 (1914) (“The fundamental requisite

of due process of law is the opportunity to be heard.”). Here, Plaintiffs concede that Defendants

considered their administrative complaint, held a hearing, and issued a decision after listening to

forty-five minutes of legal arguments from both sides. (See Doc. 1 at 42.). If Plaintiffs disagreed

with the Commissions’ decision to dismiss their administrative complaints, they could, as they did,

seek judicial review in the Ohio Court of Common Pleas. See O.R.C. § 2506.01(A) (“[E]very final

order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission,

department, or other division of any political subdivision of the state may be reviewed by the court

of common pleas of the county in which the principal office of the political subdivision is located

as provided in Chapter 2505 of the Revised Code.”). Hence, the makeup of Ohio’s Elections

Commission does not, in and of itself, burden Plaintiffs’ fundamental due process rights. See

Pirincin, 368 F. Supp. at 79 (“[S]ince the court in the instant case has determined that the board of

representation does not deprive plaintiffs of due process of law, the availability of judicial review

represents a protection that further enhances the constitutionality of the challenged statutory

requirements.”).

In short, the Court finds that O.R.C. § 3517.152 is not discriminatory towards minority

political parties and does not constrain fundamental constitutional rights. Instead, the statute poses

reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of

voters. Accordingly, the appropriate level of scrutiny to apply to O.R.C. § 3517.152 is rational

basis review. See Burdick, 504 U.S. at 433 (“Election laws will invariably impose some burden

upon individual voters . . . . Consequently, to subject every voting regulation to strict scrutiny and

to require that the regulation be narrowly tailored to advance a compelling state interest, as

petitioner suggests, would tie the hands of States seeking to assure that elections are operated

equitably and efficiently.”).

B. Whether O.R.C. § 3517.152 is Rationally Related to an Important Government Interest

Having determined that O.R.C. § 3517.152 is subject to rational basis review, the next

question for the Court is whether this statute is reasonably related to the advancement of an

important regulatory interest. See Burdick, 504 U.S. at 434 (“[W]hen a state election law provision

imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth

Amendment rights of voters, the State’s important regulatory interests are generally sufficient to

justify the restrictions.”) (internal quotations omitted).

Here, the state of Ohio has an interest in ensuring that political balance on its Elections

Commission protects the fairness of the deliberative party process and that judicial and policy-

making decisions are well rounded and diversified. (See Plaintiffs’ Motion for Preliminary

Injunction, Doc. 37 at 16 (“Plaintiffs concede that Ohio, like Delaware, has a legitimate interest in

political balance in the context of investigating and adjudicating election disputes.”).) Requiring

bipartisanship on an Elections Commission is universally regarded as an effective means of

preventing fraud and ensuring honest elections. See Vinston v. Anton, 786 F.2d 1023, 1025 (11th

Cir. 1996) (“Appellants admit that Alabama constitutionally may, as all States do, so far as we are

aware, follow the practice of requiring bipartisanship in the composition of election boards. Such

adversary partisan confrontation is universally regarded as an effective means of preventing fraud

and ensuring honest elections.”). And, political balance achieves fairness, consistency, and

objectivity. See Gill v. State of Rhode Island, 933 F. Supp. 151, 156 (D.R.I. 1996) (“The provisions

ensure fairness by providing for a bipartisan board.”).

Additionally, O.R.C. § 3517.152 undoubtedly advances the state’s important interests.

Indeed, the statute implements a checks and balances system between the state’s two major

political parties, while providing minority parties with the same opportunity to be represented on

the Commission should they garner the necessary voter support. For these reasons, the Court finds

that O.R.C. § 3517.152 is rationally related to Ohio’s interest in achieving political balance on its

Elections Commission, and thus, Plaintiffs have failed to demonstrate a likelihood of success on

the merits of their claim. See Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir.

2000) (“Although no one factor is controlling, a finding that there is simply no likelihood of

success on the merits is usually fatal.”).

2. Irreparable Harm

The second preliminary injunction factor requires the Court to consider whether Plaintiffs

face irreparable harm absent injunctive relief. Here, Plaintiffs argue that the institutional bias of

Ohio’s Elections Commission threatens all facets of the 2020 election, as its authority touches all

aspects of the electoral process. But as discussed at length above, Plaintiffs fail to demonstrate

that the Elections Commission, as constructed under O.R.C. § 3517.152, is unconstitutional.

Accordingly, Plaintiffs have not shown that they face irreparable harm absent injunctive relief.

3. Harm to Others

The third preliminary injunction factor requires the Court to consider whether issuing an

injunction would cause substantial harm to others. Here, issuing an injunction that dismantles

Ohio’s Elections Commission would leave the state of Ohio, and the public, without a mechanism

to ensure compliance with its campaign finance laws. This factor will, therefore, weigh against

injunctive relief.

4. Public Interest

The final preliminary injunction factor requires the Court to consider whether the public

interest would be served by the issuance of an injunction. Here, the Court finds no public interest

that would be served by preventing a constitutionally-constructed Elections Commission, that has

existed in its current form for over twenty years, from operating in the state of Ohio.

In sum, all four preliminary injunction factors weigh against injunctive relief. Accordingly,

the Court DENIES Plaintiffs’ Motion for a Preliminary Injunction.

V. CONCLUSION

For the reasons stated herein, the Court DENIES Plaintiffs’ Motion for a Preliminary

Injunction [#37]. Furthermore, considering that the remaining claim in Plaintiffs’ Motion for

Summary Judgement turns on the same legal question presented here, and because the Court found

that Plaintiffs did not have a likelihood of success on the merits of that claim, the Court also

DENIES Plaintiffs’ First and Second Motions for Summary Judgment [#6 & # 47].

IT IS SO ORDERED.

/s/ Algenon L. Marbley___

ALGENON L. MARBLEY

CHIEF UNITED STATES DISTRICT JUDGE

DATED: January 13, 2020