Blankenship v. Blackwell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0442p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiffs-Appellants, -

HERMAN BLANKENSHIP, et al.,

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No. 04-4259

v.

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J. KENNETH BLACKWELL, Ohio Secretary of State, -

Defendant-Appellee, -

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Intervenors-Appellees. -

BENSON A. WOLMAN, et al.,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 04-00965—Edmund A. Sargus, Jr., District Judge.

Submitted: October 26, 2005

Decided and Filed: November 16, 2005

Before: KEITH and BATCHELDER, Circuit Judges; OBERDORFER, District Judge.*

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COUNSEL

ON BRIEF: Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio,

Michael P. Cassidy, CASSIDY & ASSOCIATES, Independence, Ohio, for Appellants. Arthur

James Marziale, Jr., OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,

Andrew B. Clubok, KIRKLAND & ELLIS, Washington, D.C., for Appellee. Donald J. McTigue,

LAW OFFICES OF DONALD J. McTIGUE, Columbus, Ohio, for Intervenors.

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. Plaintiffs-Appellants are five Ohio residents who

served as members of a committee to qualify Ralph Nader and Peter Camejo (hereinafter, “Nader”)

as independent joint candidates for President and Vice-President of the United States on the Ohio

ballot in the election of 2004. They appeal the dismissal of their claim for a declaratory judgment,

in which they asked that Ohio’s law requiring circulators of nominating petitions to be residents of,

*

The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by

designation.

1

No. 04-4259 Blankenship, et al. v. Blackwell, et al. Page 2

and registered voters in, the state of Ohio, be declared in violation of the First and Fourteenth

Amendments to the United States Constitution. Because the district court’s dismissal of Appellants’

declaratory judgment claim rested upon grounds that are immune from challenge due to the 2004

election’s mooting Appellants’ case, and because Appellants bear at least some of the blame for this

situation, the district court’s judgment cannot be vacated and the appeal is thus moot.

BACKGROUND

Independent presidential candidates must collect signatures from 5,000 properly registered

Ohio voters in order to be placed on Ohio’s presidential ballot. O.R.C. § 3513.257(A). Candidates

typically employ “circulators”–both volunteers and paid professionals–to gather these signatures.

Under Ohio law, a person is 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.” O.R.C. § 3503.06.

Ralph Nader was an independent candidate seeking access to Ohio’s ballot for the 2004

presidential election. The Nader campaign employed volunteer and paid circulators who collected

14,473 signatures on its behalf. Ohio’s local boards of election declared 8,009 of these signatures

invalid for various reasons, including, according to Appellants, failure to comply with Ohio’s

residency and voter-registration requirements for circulators. Nonetheless, on September 8, 2004,

the state Elections Division determined that Nader was left with 6,464 signatures, more than the

5,000 needed to qualify for the ballot.

At this point, the validity of a portion of the remaining signatures was challenged by a group

of Ohio electors (“protesters”).1 The Office of the Secretary of State held a three-day hearing, at

which both the protesters and Nader were represented by counsel. In a 31-page ruling, the Hearing

Officer found 2,756 of the 6,464 signatures invalid. The Hearing Officer invalidated 800 signatures

for various technical reasons unrelated to the residency of the circulator, to which Appellants did

not object, leaving Nader with 5,646 valid signatures–still sufficient to gain access to the ballot. But

then the Hearing Officer invalidated an additional 1,956 signatures after finding that the circulators

of the petitions on which these signatures appeared had falsely attested to having Ohio residences.

The invalidation of these petitions left Nader with only 3,708 valid signatures, well under the 5,000-

signature threshold, and as a result the Secretary of State (“Secretary”) ordered that Nader be

removed from the election ballot.

Appellants responded by filing an action in the Supreme Court of Ohio on October 4, 2004,

and one in federal district court on October 6, 2004. Appellants’ complaint to the Supreme Court

of Ohio requested the following:

a writ of mandamus to compel the Secretary of State to order Ohio’s 88 county

boards of elections to (1) update their voter-registration records, (2) re-review the

part-petitions based on the updated records, (3) validate previously invalidated

signatures on the part-petitions that were improperly invalidated because of outdated

records, and (4) review unreviewed signatures on totally invalidated part-petitions

where updated records show that the circulators are duly registered voters. In

addition, relators seek a writ of mandamus to compel the Secretary of State to count

as valid those signatures on part-petitions that were invalidated because of the

circulator-residency requirement of R.C. 3503.06. Finally, relators request a writ of

mandamus to compel the Secretary of State to certify as valid Nader’s candidacy . . .

1

Protesters are Intervenors-Appellees in this appeal.

No. 04-4259 Blankenship, et al. v. Blackwell, et al. Page 3

upon a finding . . . that at least 1,292 signatures previously invalidated are in fact

valid.

Blankenship v. Blackwell, 817 N.E.2d 382, 385 (Ohio 2004). Appellants’ mandamus action

challenged only the 8,009 signatures that had been invalidated by the local election boards prior to

the protest action. Id. at 386. The Supreme Court of Ohio denied Appellants’ requested relief on

the ground of laches, noting that they had waited until four months after they began circulating

petitions to challenge the circulator-residency requirements, and 31 days after the local election

boards’ invalidation of the 8,009 signatures to challenge that ruling. Id. at 386-87. The court found

that Appellants’ inexplicably waiting until less than a month before the election to make their

various challenges prejudiced the people of Ohio by hampering the processing of absentee ballots,

forcing the Secretary and protesters to defend against claims in an expedited fashion with 2condensed

appellate rights, and otherwise threatening Ohio’s election preparations. Id. at 387-88.

Appellants’ complaint in the district court sought a temporary restraining order barring the

Secretary from removing Nader from Ohio’s election ballot, an injunction compelling the Secretary

to count as valid the nominating signatures of qualified electors previously invalidated due to the

circulator’s failure to meet the residency requirement, and a declaratory judgment that Ohio’s

residency requirement for circulators violates the First and Fourteenth Amendments to the United

States Constitution. The district court found that because Appellants could not identify which of the

8,009 signatures invalidated by the local election boards were invalidated due to the residency

requirement, it could not grant the requested relief based on these signatures. The district court also

confirmed that Appellants were not challenging the 800 signatures invalidated for various technical

reasons by the Hearing Officer during the protest action. The district court, therefore, focused on

the remaining 1,956 signatures, and held that because the state had permissibly invalidated these

signatures on the basis of fraudulent attestation by the circulators, the injunctive relief would be

denied and the court would not reach the constitutionality of the residency requirement. In addition

to the doctrine of constitutional avoidance, the district court applied the equitable doctrine of

“unclean hands” as a basis for its refusing to grant the declaratory relief requested, holding that the

magnitude of the fraud perpetrated by Nader’s circulators was “far too great for this Court to

consider granting the equitable relief of an injunction in the Plaintiffs’ favor.” Blankenship v.

Blackwell, 341 F. Supp. 2d 911, 924 (S.D. Ohio 2004). The district court dismissed Appellants’ case

on October 12, 2004.

Immediately thereafter, Appellants filed a motion in this court for an emergency injunction

and expedited appeal. We refused to grant the injunction, primarily on the ground that Appellants

had failed to demonstrate a likelihood of success on the merits:

The Ohio Secretary of State had state statutory grounds independent of the

registration and residency requirements to reject the disputed circulators’ petitions:

election falsification, a felony in Ohio. The state administrative hearing officer

found substantial evidence of fraud by the petition circulators which is supported by

evidence in the record below. Given this state law ground, this court will not reach

the issue of whether the challenged registration and residency requirements violate

the First Amendment. As a result, Appellants cannot demonstrate a likelihood of

success on the merits.

Blankenship v. Blackwell, No. 04-4259 (6th Cir. Oct. 18, 2004) (internal citation omitted).

2

In addition to its laches ruling, the Supreme Court of Ohio dismissed Appellants’ claims for failure to bring

the action “in the name of the state on the relation of the person applying,” under O.R.C. § 2731.04.

No. 04-4259 Blankenship, et al. v. Blackwell, et al. Page 4

Appellants timely filed their notice of appeal on October 13, 2004, and now ask that we

vacate the district court’s judgment dismissing their case on the grounds of state-law fraud and

unclean hands, and grant them a declaratory judgment that Ohio’s residency and voter-registration

requirements for circulators violate the First and Fourteenth Amendments.

ANALYSIS

The threshold issue in this appeal is whether it is appropriate for us even to review

Appellants’ declaratory judgment claim. The district court found that the circulators’ fraudulent

conduct foreclosed Nader’s access to the ballot in any event, and then used that finding as a basis

for employing the doctrines of constitutional avoidance and unclean hands to refuse to grant the

requested declaratory judgment as to Appellants’ constitutional claims. Appellants admit that

because Nader can no longer gain access to Ohio’s ballot for the 2004 election, their claim for

injunctive relief regarding ballot access is now moot. They contend, however, that their claim for

a declaratory judgment is prospective in nature, and therefore not moot. But because the district

court’s dismissal of the declaratory judgment claim was based on its resolution of the now-moot

ballot access claim, the only way we can address the merits of the declaratory judgment claim is to

vacate the district court’s now-moot judgment solely for the sake of reviewing Appellants’

declaratory judgment claim.

Appellants cite U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),

as authority for our vacating the district court’s judgment on equitable grounds. In that case the

Supreme Court noted that 28 U.S.C. § 2106 provides the authority for an appellate court to vacate

a judgment lawfully brought before it for review, and further held that Article III of the Constitution

does not deny an appellate court the power to vacate a judgment that has become moot while

awaiting review. Id. at 21-22. The Court then proceeded to outline the equitable parameters that

govern whether an appellate court should grant a motion to vacate when the judgment on review is

moot. The principle question is “whether the party seeking relief from the judgment below caused

the mootness by voluntary action.” Id. at 24. The tradition of vacatur is an “equitable” one, and “[a]

party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of

circumstance, ought not in fairness be forced to acquiesce in the judgment.” Id. at 25. On the other

hand, vacatur is an “extraordinary remedy,” and it is “[Appellants’] burden, as the party seeking

relief from the status quo of the [lower court] judgment, to demonstrate not merely equivalent

responsibility for the mootness, but equitable entitlement” to vacatur. Id. at 26. Our decision must

also take into account the public interest, because “[j]udicial precedents are presumptively correct

and valuable to the legal community as a whole. They are not merely the property of private

litigants . . . .” Id. (internal quotation omitted).

On the facts before us, we cannot conclude that Appellants are entitled to the extraordinary

equitable remedy of vacatur. First, given the fixed date of the 2004 election, Appellants could and

should have acted more expeditiously in asserting their legal rights to ensure that their case was

resolved prior to that election. Although their complaint is based in part on the 8,009 signatures

invalidated by the local election boards, a decision that was completed by September 3, 2004,

Blankenship, 817 N.E.2d at 386, Appellants nonetheless waited until October 6–a delay of 33

days–to file their complaint in federal district court. Also, Appellants’ circulators began gathering

signatures in June 2004 and should have been aware of Ohio’s residency requirements for circulators

at that time. Id. at 387. Most damning of all is the fact that Ralph Nader announced his run for the

presidency in mid-February of 2004, some eight and a half months before the election, see Press

Release, Nader for President 2004, Ralph Nader Announces His Independent Run For President of

the United States (Feb. 23, 2004), at http://www.votenader.com/media_press/index.php?cid=7; see

also Nader v. Keith, 385 F.3d 729, 731 (7th Cir. 2004), at which time Appellants should have known

of their interest in the application of Ohio’s circulator-residency requirements. There is simply no

No. 04-4259 Blankenship, et al. v. Blackwell, et al. Page 5

excuse for Appellants’ waiting more than seven months to bring their declaratory judgment claim

and leaving the federal courts less than a month before the election to resolve it.

Moreover, although we realize it is inappropriate to base a decision on whether to vacate a

mooted case on assumptions about the merits of that case, U.S. Bancorp, 513 U.S. at 27-28, here we

have the benefit of this court’s prior order denying emergency injunctive relief and finding that the

Secretary’s state statutory ground for invalidating the signatures–“substantial evidence of fraud by

the petition circulators”–was “supported by evidence in the record below.” Blankenship v.

Blackwell, No. 04-4259 (6th Cir. Oct. 18, 2004). Given this finding by a previous panel of our court,

and in light of the briefs and other judicial opinions issued in this litigation, we are convinced that,

rather than challenge from the start the residency requirements that they now contend are

unconstitutional, Appellants employed out-of-state circulators who dishonestly represented

themselves as meeting Ohio’s residency requirements. Appellants’ choosing to test the limits of the

residency requirement, rather than challenging its constitutionality from the very start, contributed

to their case’s becoming moot.3

In light of Appellants’ refusal to challenge Ohio’s circulator-residency requirement until

more than seven months after Nader announced his candidacy–and even then only after many of the

petitions had been disallowed for fraud–we cannot say that they are mere victims of the “vagaries

of circumstance.” See U.S. Bancorp, 513 U.S. at 25. Because at least some of the blame for the

mootness of this case lies with Appellants, we cannot grant them the extraordinary equitable remedy

of vacating the district court’s judgment.

Finally, we note that nothing in our opinion today forecloses Appellants or similarly situated

parties from filing suit to challenge the constitutionality of Ohio’s residency and voter-registration

requirements for nominating-petition circulators in the context of a future election. The sole basis

for our dismissing this appeal is that the judgment on which it is based is now moot and thus

immune from review; the constitutionality of these provisions as applied to future elections,

however, remains an open question.

CONCLUSION

Therefore, because we lack the authority to vacate the district court’s now-moot judgment

dismissing Appellants’ claim for declaratory relief, we DISMISS the appeal for want of jurisdiction.

3

Appellants point out in their brief that the Supreme Court has observed that the unclean hands doctrine applies

only when a party commits fraud, thus implying that we should not hold the Nader campaign responsible for the faults

of its circulators. Without passing on the merits of the district court’s application of the unclean hands doctrine, we note

that our equitable allocation of blame for the mootness of Appellants’ case requires a different, arguably broader inquiry.

And in performing that inquiry, we note that Ohio law treats petition circulators as agents of the entity on whose behalf

they are circulating the petitions. State ex rel. Comm. for the Referendum of City of Lorain Ordinance No. 77-01 v.

Lorain County Bd. of Elections, 774 N.E.2d 239, 248 n.1 (Ohio 2002).