Morrison v. Colley

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0373p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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CHARLES R. MORRISON, DONALD E. ECKHART, and

Plaintiffs-Appellants, -

ALEXANDER SMITH,

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No. 06-4216

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v. >

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MICHAEL F. COLLEY, CAROLYN C. PETREE,

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WILLIAM A. ANTHONY, JR., KIMBERLY E.

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MARINELLO, and FRANKLIN COUNTY BOARD OF

Defendants-Appellees. -

ELECTIONS,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 06-00644—George C. Smith, District Judge.

Argued: September 20, 2006

Decided and Filed: September 22, 2006*

Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.

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COUNSEL

ARGUED: David R. Langdon, LANGDON & HARTMAN LLC, Cincinnati, Ohio, for Appellants.

Patrick J. Piccininni, PROSECUTING ATTORNEY’S OFFICE FOR THE COUNTY OF

FRANKLIN, Columbus, Ohio, for Appellees. ON BRIEF: David R. Langdon, Curt C. Hartman,

Joshua B. Bolinger, LANGDON & HARTMAN LLC, Cincinnati, Ohio, Christopher P. Finner,

FINNEY, STAGNARO, SABA & KLUSMEIER CO., L.P.A., Cincinnati, Ohio, for Appellants.

Patrick J. Piccininni, Nick A. Soulas, Jr., PROSECUTING ATTORNEY’S OFFICE FOR THE

COUNTY OF FRANKLIN, Columbus, Ohio, for Appellees.

*

An interim opinion was filed in this matter on September 22, 2006. The court is now filing this more detailed

opinion.

1

No. 06-4216 Morrison, et al. v. Colley, et al. Page 2

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OPINION

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GRIFFIN, Circuit Judge. Plaintiff-appellant Charles R. Morrison sought to run as an

independent candidate for the office of United States Representative in Ohio’s Fifteenth

Congressional District (“CD”) in the November 7, 2006, election. Defendants-appellees Franklin

County Board of Elections (“BOE”), et al., excluded Morrison from the ballot on the ground that,

under Ohio election law, he did not qualify as an independent candidate because he was affiliated

with a political party. Morrison filed an action in the United States District Court for the Southern

District of Ohio seeking preliminary and permanent injunctions requiring the BOE to place him on

the ballot. Morrison claimed that the Ohio statutory provision violated his First and Fourteenth

Amendment rights and those of his would-be voters because it was allegedly overbroad, illegally

discriminatory, and void for vagueness. After the district court denied Morrison all relief, Morrison

appealed to this court. We granted Morrison’s motion to expedite the appeal and heard oral

argument on September 20, 2006. On September 22, 2006, we issued a per curiam interim opinion

unanimously affirming the district court, stating, “despite any constitutional infirmities that may

exist in the relevant Ohio statutes as they might apply to others, there is no reasonable basis for

Morrison to claim in good faith that he is not affiliated with a political party.” (Emphasis added.)

Today we explain our holding in greater detail.

I.

In December 2005 and January 2006, Morrison began circulating petitions seeking

placement on the May 2, 2006, ballot for the Madison County Republican Party Central Committee

and the Ohio Republican Party State Central Committee. Morrison filed his petitions, was certified

as a candidate in the Republican primary for the state and county committee positions, and appeared

on the May 2, 2006, Republican primary ballot. He lost both races.

Morrison filed his declaration of candidacy for the county committee on a form that stated,

“This petition shall be circulated only by a member of the same political party as stated above by

the candidate.” Morrison signed the declaration, which also required him to state, under penalty of

“election falsification,” that he was a member of the Republican Party. Likewise as to the state

committee, Morrison signed a declaration of candidacy that required him to state, under penalty of

election falsification, that he was a member of the Republican Party.

Approximately three weeks before the May 2, 2006, Republican primary, Morrison

purchased local newspaper advertisements supporting his state and county committee candidacies.

In his ads, Morrison stated that he was a Republican. On May 2, 2006, Morrison requested a

Republican ballot and voted in the Republican primary.

On May 1, 2006, the day before Morrison’s name appeared on the ballot in the Republican

primary, he filed nominating petitions with the BOE to run as an independent candidate in Ohio’s

Fifteenth CD.

On May 22, 2006, three residents and qualified electors from the Fifteenth CD filed a written

protest challenging Morrison’s congressional candidacy on the ground that he was not an

independent under Ohio law, and the BOE responded by holding a protest hearing. After receiving

briefs and hearing argument at the hearing, the BOE deadlocked 2-2 on whether to certify Morrison

as an independent candidate. Pursuant to Ohio Rev. Code § 3501.05, the matter was referred to the

Ohio Secretary of State, who voted in favor of the protestors and against certification.

No. 06-4216 Morrison, et al. v. Colley, et al. Page 3

Morrison brought suit in the district court under 42 U.S.C. § 1983, and thereafter the district

court held a hearing on the merits.

II.

Because Morrison alleged the violation of rights recognized by the First and Fourteenth

Amendments to the U.S. Constitution, the district court had federal-question jurisdiction under

28 U.S.C. § 1331. Regarding our jurisdiction, the district court consolidated the hearing on

Morrison’s preliminary injunction application with the hearing on the merits, and its order disposed

of Morrison’s complaint and request for permanent injunctive relief. Accordingly, the district

court’s order is final and immediately appealable. We review the district court’s legal conclusions

de novo and its factual findings for clear error. Planned Parenthood Cincinnati Region v. Taft, 444

F.3d 502, 507 (6th Cir. 2006) (citing Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir. 2003)).

III.

Recently, in Clingman v. Beaver, 544 U.S. 581 (2005), the Supreme Court emphasized that

not all election regulations that burden First Amendment rights are subject to a strict scrutiny

analysis. Rather, unless a state election regulation places a heavy or severe burden on a party, “a

State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory

restrictions.” Id. at 587 (quoting with approval Timmons v. Twin Cities Area New Party, 520 U.S.

351, 358 (1997)).

In holding that an Oklahoma statute allowing political parties to open their primary elections

to only their own party members and voters registered as independents did not violate the First

Amendment, the Supreme Court refused to apply a strict scrutiny analysis because the burden was

not “severe”:

[O]ur cases since Tashjian [v. Republican Party of Conn., 479 U.S. 208 (1986)] have

clarified [that] strict scrutiny is appropriate only if the burden is severe. [California

Democratic Party v.] Jones, [530 U.S. 567 (2000)], supra, at 582, 147 L. Ed. 2d 502,

120 S.Ct. 2402; Timmons, 520 U.S. at 358, 137 L. Ed. 2d 589, 117 S.Ct. 1364.

***

Many electoral regulations, including voter registration generally, require that voters

take some action to participate in the primary process. See, e.g., Rosario v.

Rockefeller, 410 U.S. 752, 760-62, 36 L. Ed. 1, 93 S. Ct. 1245 (1973) (upholding

requirement that voters change party registration 11 months in advance of the

primary election). Election laws invariably “affec[t] – at least to some degree – the

individual’s right to vote and his right to associate with others for political ends.”

Anderson v. Celebrezze, 460 U.S. 780, 788, 75 L. Ed. 2d 547, 103 S. Ct. 1564

(1983).

These minor barriers between voter and party do not compel strict scrutiny. See

Bullock v. Carter, 405 U.S. 134, 143, 31 L. Ed. 2d 92, 92 S. Ct. 849 (1972). To

deem ordinary and widespread burdens like these severe would subject virtually

every electoral regulation to strict scrutiny, hamper the ability of States to run

efficient and equitable elections, and compel federal courts to rewrite state electoral

codes. The Constitution does not require that result, for it is beyond question “that

States may, and inevitably must, enact reasonable regulations of parties, elections,

and ballots to reduce election- and campaign-related disorder.” Timmons, supra, 520

U.S. at 358, 137 L. Ed. 2d 589, 117 S. Ct. 1364; Storer v. Brown, 415 U.S. 724, 730,

No. 06-4216 Morrison, et al. v. Colley, et al. Page 4

39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974). Oklahoma’s semiclosed primary system

does not severely burden the associational rights of the state’s citizenry.

C

When a state electoral provision places no heavy burden on associational rights, “a

State’s important regulatory interests will usually be enough to justify reasonable,

nondiscriminatory restrictions.” Timmons, supra, at 358, 137 L. Ed. 2d 589, 117 S.

Ct. 1364 (internal quotation marks omitted); Anderson, supra, at 788, 75 L. Ed. 2d

547, 103 S. Ct. 1564.

Clingman, 544 U.S. at 592-93. Clingman follows, and is consistent with, Timmons, which likewise

refused to apply strict scrutiny to a challenge to a Minnesota election law prohibiting multi-party

or “fusion” candidates from appearing on the ballot. In rejecting a claim that the Minnesota

regulation violated the plaintiff’s First and Fourteenth Amendment rights, the Supreme Court stated,

[I]t is also clear that States may, and inevitably must, enact reasonable regulations

of parties, elections, and ballots to reduce election- and campaign-related disorder.

Burdick [v. Takushi, 504 U.S. 428 (1992)], supra, at 433 (“‘[A]s a practical matter,

there must be a substantial regulation of elections if they are to be fair and honest and

if some sort of order, rather than chaos, is to accompany the democratic process’”)

(quoting Storer v. Brown, 415 U.S. 724, 730 (1974)); Tashjian, supra, at 217 (The

Constitution grants States “broad power to prescribe the ‘Time, Places and Manner

of holding elections for Senators and Representatives’, Art. I, § 4, cl. 1, which power

is matched by state control over the election process for state offices”).

When deciding whether a state election law violates First and Fourteenth

Amendment associational rights, we weigh the “‘character and magnitude’” of the

burden the State’s rule imposes on those rights against the interests the State

contends justify that burden, and consider the extent to which the State’s concerns

make the burden necessary. Burdick, supra, at 434 (quoting Anderson v. Celebrezze,

460 U.S. 780, 789 (1983)). Regulations imposing severe burdens on plaintiffs’ rights

must be narrowly tailored and advance a compelling state interest. Lesser burdens,

however, trigger less exacting review, and a State’s “‘important regulatory interests’”

will usually be enough to justify “‘reasonable, nondiscriminatory restrictions.’”

Burdick, supra, at 434 (quoting Anderson, supra, at 788); Norman [v. Reed, 502 U.S.

279 (1992)], supra, at 288-289 (requiring “corresponding interest sufficiently

weighty to justify the limitation”). No bright line separates permissible election-

related regulation from unconstitutional infringements on First Amendment

freedoms. Storer, supra, at 730 (“[N]o litmus-paper test . . . separat[es] those

restrictions that are valid from those that are invidious . . . . The rule is not self-

executing and is no substitute for the hard judgments that must be made.”).

Timmons, 520 U.S. at 358-59.

The district court concluded correctly that Ohio Rev. Code § 3513.257 does not impose a

severe restriction on the First and Fourteenth Amendment rights of Morrison or other potential

independent candidates or voters. See Lawrence v. Blackwell, 430 F.3d 368 (6th Cir.) (Ohio statute

requiring independent congressional candidates to file statement of candidacy and nominating

petition on the day preceding the primary election did not impose a severe burden on independent

candidates’ or voters’ constitutional rights, so strict scrutiny was not warranted), cert. denied, __

U.S. __, 126 S. Ct. 2352 (2006). The election regulation at issue is merely a reasonable,

nondiscriminatory regulation to require would-be independent candidates to claim, no later than 4:00

No. 06-4216 Morrison, et al. v. Colley, et al. Page 5

p.m. of the day before the primary elections, that they are free of affiliation with any political party.

Therefore, Ohio need only show that this requirement advances an important state interest, not a

compelling state interest. Id. For the reasons stated by the district court, the non-affiliation

requirement passes muster under this deferential standard. In addition, the statute itself specifies the

following important state interests furthered by the election regulation:

The purpose of establishing a filing deadline for independent candidates prior to the

primary election immediately preceding the general election at which the candidacy

is to be voted on by the voters is to recognize that the state has a substantial and

compelling interest in protecting its electoral process by encouraging political

stability, ensuring that the winner of the election will represent a majority of the

community, providing the electorate with an understandable ballot, and enhancing

voter education, thus fostering informed and educated expressions of the popular will

in a general election. The filing deadline for independent candidates required in this

section prevents splintered parties and unrestrained factionalism, avoids political

fragmentation, and maintains the integrity of the ballot. The deadline, one day prior

to the primary election, is the least drastic or restrictive means of protecting these

state interests. The general assembly finds that the filing deadline for independent

candidates in primary elections required in this section is reasonably related to the

state’s purpose of ensuring fair and honest elections while leaving unimpaired the

political, voting, and associational rights secured by the first and fourteenth

amendments to the United States Constitution.

OHIO REV. CODE § 3513.257.

As the Supreme Court recognized in Timmons, a state may, consistent with the First

Amendment, ban “fusion” or multi-party candidates in order to reduce election disorder. Cf.

Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006).

In summary, we hold that the First and Fourteenth Amendments do not prohibit the Ohio

General Assembly from requiring independent candidates to claim on the day before the primary

that they are not affiliated with any political party.

IV.

Next, Morrison argues that the statute is void for vagueness because it allegedly fails to

specify what a putative independent candidate must do to get on the ballot, and because it does not

provide objective standards for enforcement. His argument is wholly unpersuasive under the facts

of this case.

Under Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), a statute must “give the

person of ordinary intelligence a reasonable opportunity to know what is prohibited” or, in this case,

what is required. In addition, the statute “must provide explicit standards for those who apply

them.” Id. Cf. Risbridger v. Connelly, 275 F.3d 565, 572 (6th Cir. 2002) (“[T]he void-for-

vagueness doctrine requires that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory enforcement.”) (quoting Kolender v. Lawson, 461

U.S. 352, 357 (1983)).

The district court rejected Morrison’s argument that the statute “creates confusion as to . . .

whether a person desiring to become an independent candidate can merely claim not to be affiliated

with a political party or whether they must truly be unaffiliated with a political party.” The district

court reasoned, “a person of ordinary intelligence, when considering O.R.C. § 3513.257 [which

requires the candidate to claim independence] and O.R.C. § 3501.01(I) [which defines an

No. 06-4216 Morrison, et al. v. Colley, et al. Page 6

‘independent’ candidate as one ‘who claims not to be affiliated with any political party’] in the

whole legislative scheme, would understand that an aspiring independent candidate ‘must actually

be independent, rather than merely claim it.’” A candidate possessing ordinary intelligence and

common sense would readily understand that the claim of independence must be made in good faith

– otherwise there would be no reason for having the claim requirement, and none of the state

interests animating the claim requirement would be served. See United States v. Gjieli, 717 F.2d

968, 972 (6th Cir. 1983).

In addition to the common-sense meaning of “claim” in Ohio Rev. Code § 3513.257, other

sections of the Ohio election code put Morrison on notice that his actions were incompatible with

his contemporaneous claim that he was not affiliated with any political party. Provisions of the Ohio

election code other than § 3513.257 discuss political party affiliation and specify how it may be

determined when challenged. This is significant, because typically “identical words used in different

parts of the same act are intended to have the same meaning.” OfficeMax, Inc. v. United States, 4281

F.3d 583, 591 (6th Cir. 2005) (quoting Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995)).

First, Ohio Rev. Code § 3513.19(A)(3) provides that a person’s right to vote in a party’s

primary can be challenged on the basis that he “is not affiliated with or is not a member of” that

party. That section also states, in pertinent part, that “[s]uch party affiliation shall be determined

by examining the elector’s voting record for the current year and the immediately preceding two

calendar years as shown on the voter’s registration card, using the standards of affiliation specified

in the seventh paragraph of section 3513.05 of the Revised Code.” OHIO REV. CODE.

§ 3513.19(A)(3). In turn, § 3513.05 ¶ 7 considers a voter to be affiliated with a party if he was

registered with that party and voted in that party’s primaries during the current year and the two

preceding years. Morrison has never denied that he was registered as a Republican and voted in the

May 2, 2006, Republican primary, nor has he claimed that he was ever registered as something other

than a Republican or that he voted in non-Republican primaries during the preceding two calendar

years.

Moreover, the next subsection of the statute, Ohio Rev. Code § 3513.19(B), provides:

When the right of a person to vote is challenged upon the ground set forth in division

(A)(3) of this section, membership in or political affiliation with a political party

shall be determined by the person’s statement, made under penalty of election

falsification, that the person desires to be affiliated with and supports the principles

of the political party whose primary ballot the person desires to vote.

(Emphasis added.) By registering as a Republican and then affirmatively requesting and voting the

Republican Party primary ballot on May 2, 2006, Morrison necessarily evinced a desire to be

affiliated with the Republican Party at that time. Indeed, when Morrison presented himself as

eligible to vote in the Republican primary on May 2, 2006, Ohio law required him to be prepared

to prove, under penalty of punishment for false statement, that he was affiliated with the Republican

Party:

Before any challenged person shall be allowed to vote at a primary election, the

person shall make a statement, under penalty of election falsification, before one of

1

See also Lewis v. Philip Morris, Inc., 355 F.3d 515, 536 (6th Cir.) (Moore, J., for the court, joined in pertinent

part by Katz, U.S.D.J.) (referring to “[t]he usual presumption that ‘the same words used twice in the same act have the

same meaning’”) (quoting 2A NORMAN J. SINGER, SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION, § 46.06,

at 193 (6th ed. 2000)), cert. denied, 543 U.S. 821 (2004); Lake Cumberland Trust, Inc. v. EPA, 954 F.2d 1218, 1222 (6th

Cir. 1994) (“We must presume that words used more than once in the same statute have the same meaning.”) (citation

omitted).

No. 06-4216 Morrison, et al. v. Colley, et al. Page 7

the precinct officials . . . stating that the person desires to be affiliated with and

supports the principles of the political party whose ballot the person desires to vote;

and giving all other facts necessary to determine whether the person is entitled to

vote in that primary election. The statement shall be returned to the office of the

board with the pollbooks and tally sheets.

OHIO REV. CODE § 3513.20.

If there were any doubt whether registering Republican, running as a Republican in the

primary, and voting in the Republican primary precluded a good faith claim to be unaffiliated with

any party, Morrison’s own Federal Election Commission (“FEC”) filing dispels it. Morrison

conceded that his own congressional campaign committee’s statement of organization, FEC Form 1,

listed him as affiliated with the Republican Party.

Morrison cannot complain if his own campaign committee’s express statement of his party

affiliation is considered and used to rule against him. Cf. In re El-Amin, 252 B.R. 652, 659 (Bankr.

E.D. Va. 2000) (“The party who made the admission cannot complain that they [sic] were prejudiced

by their own words.”); Levy v. United States, 1858 WL 4645, at *27 (Ct. Cl. May 4, 1858) (“The

petitioner cannot object to this conclusion, because it is in exact accordance with his own export

manifest, rendered on his own oath.”).2

Most importantly, under Ohio law, if Morrison was unaffiliated with any political party on

May 1, 2006, as he contends, he could not also claim in good faith to be a Republican at the same

time without risking consequences more serious than exclusion from the ballot. Specifically, Ohio

Rev. Code § 3599.11(A) provides the following criminal penalties for false swearing: “No person

shall knowingly swear or affirm falsely upon a lawful examination by or before any registering

officer; or make, print, or issue, any false . . . certificate of registration . . . . No person shall

. . . knowingly make any false statement on any form for registration or change of registration . . . .

Whoever violates this division is guilty of a felony of the fifth degree.”

A person of ordinary intelligence in the position of Morrison is put on notice that “claims”

of party affiliation or non-affiliation must be made in good faith; otherwise the person is subject to

criminal prosecution.

We conclude that the statutes at issue gave Morrison sufficient notice that his claims of party

affiliation or non-affiliation had to be made in good faith when he filed his independent

congressional candidacy petition on May 1, 2006. Further, under the undisputed facts of this case,

Morrison’s claim of unaffiliation with a political party was not made in good faith.

For these reasons, we hold that, under the facts of this case, Ohio Rev. Code § 3513.257 is

not void for vagueness. Cf. McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1333-34 (Fed. Cir.),

2

Cf. also United States v. Beal, 940 F.2d 1159, 1162 (8th Cir. 1991) (“[D]efendant cannot complain if his own

admissions . . . [are] received in evidence against him.”);

United States v. Alvarez, 810 F.2d 879, 889 (9th Cir. 1987) (“The defendant cannot complain when his own

testimony fixes the time of his arrest.”);

Courtney v. United States, 518 F.2d 514, 517 (4th Cir. 1975) (“[T]he defendant cannot be heard to complain

that he was convicted on the basis of his own testimony.”);

United States v. Bates, 141 F.2d 436, 439 (7th Cir.) (“Defendant cannot complain if the jury accepted at their

face value his own statements . . . .”), vac’d on other grounds, 323 U.S. 15 (1944);

The Eroe, 9 Ben. 191, 8 F. Cas. 774, 775 (E.D.N.Y. 1877) (No. 4,521) (“[T]he respondents can resort to this

bill rendered . . . there being no other proof, it must be taken of evidence of the amount of such difference. Of this the

consignees cannot complain, as it is their own bill.”), aff’d, 17 Blatchf. 16, 8 F. Cas. 775 (C.C.S.D.N.Y. 1879) (No.

4,522).

No. 06-4216 Morrison, et al. v. Colley, et al. Page 8

cert. denied, __ U.S. __, 126 S. Ct. 381 (2005). In addition, for the reasons stated by the district

court, we hold that Ohio Rev. Code § 3513.257 is not overbroad, nor was it applied in a manner that

illegally discriminated against Morrison.

V.

In conclusion, we affirm the district court’s denial of Morrison’s application for preliminary

and permanent injunctive relief. Morrison has not provided grounds to enjoin defendants from

excluding him from the November 2006 congressional ballot due to his non-compliance with Ohio

Rev. Code § 3513.257.

Affirmed.