The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Fockler v. Husted, Slip Opinion No. 2017-Ohio-224.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-224
THE STATE EX REL. FOCKLER ET AL. v. HUSTED.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Fockler v. Husted, Slip Opinion No.
2017-Ohio-224.]
Elections—Mandamus—R.C. 3517.01 and 3501.01—Secretary of state did not
abuse discretion or act in clear disregard of applicable law in denying
relators’ request for recognition of political-party status, because a
political party may not be revived based on percentage of vote received by
candidates who appeared on ballot as independents—Writ denied.
(No. 2016-1863—Submitted January 13, 2017—Decided January 20, 2017.)
IN MANDAMUS.
_________________
Per Curiam.
{¶ 1} Relators, John Fockler, Kevin Knedler, M. Ann Leech, Scott
Pettigrew, and Harold D. Thomas (hereinafter “Fockler”), are the members of the
committee that nominated Gary Johnson and William Weld to appear on Ohio’s
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November 2016 ballot as independent candidates for president and vice president
of the United States.1 After Johnson and Weld jointly received 3.17 percent of the
total votes cast in Ohio for president and vice president, Fockler brought this
mandamus action seeking to require respondent, Ohio Secretary of State Jon
Husted, to recognize relators as a political party under R.C. 3517.01.
{¶ 2} We conclude that relators are not entitled to the writ, because they do
not qualify as a political party. Their candidates were nominated as independent
candidates without any political-party affiliation, and R.C. 3501.01 and 3517.01
permit only established political parties to retain ballot access if they receive at
least 3 percent of the vote.
Factual and procedural background
{¶ 3} Gary Johnson and William Weld appeared as independent
presidential and vice-presidential candidates on Ohio’s November 2016 ballot. At
that election, they received 3.17 percent of the vote.
{¶ 4} On December 2, 2016, relators submitted a letter to Husted requesting
that he recognize them as a political party under R.C. 3517.01(A)(1)(a) because
their candidates had received more than 3 percent of the vote at the November
election. In the letter, they requested recognition with a party identification of
“Libertarian.” They attached an additional letter from the Libertarian Party of Ohio
joining in the request and consenting to relators’ use of “Libertarian,” “Libertarian
Party,” and “Libertarian Party of Ohio” for the purpose of party recognition.
{¶ 5} Husted denied the request on the grounds that the placement of
independent candidates on the ballot is insufficient to create a political party in
Ohio. Fockler then filed this mandamus action seeking to require Husted to
recognize relators as a political party under R.C. 3517.01(A)(1)(a).
1
The committee originally nominated Charles Earl and Kenneth Moellman as “placeholder”
candidates. After Earl and Moellman withdrew their candidacies, the committee filed
documentation under R.C. 3513.31 to substitute Johnson and Weld as candidates.
2
January Term, 2017
{¶ 6} Although Fockler improperly filed the action as an automatically
expedited election case under S.Ct.Prac.R. 12.08, see __ Ohio St.3d __, 2016-Ohio-
8271, __ N.E.3d __, we granted his unopposed motion for expedited consideration,
__ Ohio St.3d __, 2016-Ohio-8459, __ N.E.3d __.
Analysis
{¶ 7} Fockler requests a writ of mandamus to compel Husted to recognize
relators as a political party so that they may hold a primary election as the
“Libertarian” party and have candidates appear on the ballot as “Libertarian” party
candidates. Fockler contends that relators are a “group of voters” whose candidates
received more than 3 percent of the vote for president and vice president.
Therefore, he argues that relators have met the requirements of R.C.
3517.01(A)(1)(a) and are entitled to recognition as a political party that may
conduct a primary election to nominate candidates on May 2, 2017.
Mandamus
{¶ 8} To be entitled to a writ of mandamus, Fockler “must establish a clear
legal right to the requested relief, a corresponding clear legal duty on the part of the
secretary of state to provide it, and the lack of an adequate remedy in the ordinary
course of the law.” State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-
Ohio-5838, 876 N.E.2d 1231, ¶ 13. Fockler must prove that he is entitled to the
writ by clear and convincing evidence. State ex rel. Clough v. Franklin Cty.
Children Servs., 144 Ohio St.3d 83, 2015-Ohio-3425, 40 N.E.3d 1132, ¶ 10.
{¶ 9} Furthermore, “ ‘[i]n extraordinary actions challenging the decisions
of the Secretary of State and boards of elections, the standard is whether they
engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of
applicable legal provisions.’ ” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288,
2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9, quoting Whitman v. Hamilton Cty. Bd. of
Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. There is no
allegation of fraud or corruption here. Therefore, the dispositive issue is whether
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Husted abused his discretion or clearly disregarded the applicable law in
determining that relators do not qualify as a political party.
Process for establishing a political party
{¶ 10} R.C. 3517.01(A)(1) sets forth the process by which a group of voters
may qualify as a political party:
A political party within the meaning of Title XXXV of the
Revised Code is any group of voters that meets either of the
following requirements:
(a) Except as otherwise provided in this division, at the most
recent regular state election, the group polled for its candidate for
governor in the state or nominees for presidential electors at least
three per cent of the entire vote cast for that office. A group that
meets the requirements of this division remains a political party for
a period of four years after meeting those requirements.
(b) The group filed with the secretary of state, subsequent to
its failure to meet the requirements of division (A)(1)(a) of this
section, a party formation petition that meets all of the following
requirements: * * *.
{¶ 11} Fockler contends that R.C. 3517.01(A)(1) is the only relevant
provision in determining whether relators qualify as a political party. Husted,
however, argues that this statute must be considered in pari materia with R.C.
3501.01 in order to make that determination.
{¶ 12} R.C. 3501.01 defines various terms for purposes of the election law.
R.C. 3501.01(F) defines “political party” as any group of voters who meet the
requirements of R.C. 3517.01 for the formation and existence of a political party.
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January Term, 2017
A “minor political party” is a political party that meets either of the following
requirements:
(a) Except as otherwise provided in this division, the
political party’s candidate for governor or nominees for presidential
electors received less than twenty per cent but not less than three per
cent of the total vote cast for such office at the most recent regular
state election. A political party that meets the requirements of this
division remains a political party for a period of four years after
meeting those requirements.
(b) The political party has filed with the secretary of state,
subsequent to its failure to meet the requirements of division
(F)(2)(a) of this section, a petition that meets the requirements
of section 3517.01 of the Revised Code.
A newly formed political party shall be known as a minor
political party until the time of the first election for governor or
president which occurs not less than twelve months subsequent to
the formation of such party, after which election the status of such
party shall be determined by the vote for the office of governor or
president.
R.C. 3501.01(F)(2).
{¶ 13} Husted correctly asserts that the political-party-formation law (R.C.
3517.01) must be interpreted in concert with the election-law definitions of
“political party” and “minor political party” (R.C. 3501.01). “ ‘ “[A]ll statutes
which relate to the same general subject matter must be read in pari materia. And
in reading such statutes in pari materia, and construing them together, this court
must give such a reasonable construction as to give the proper force and effect to
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each and all such statutes.” ’ ” State v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305,
942 N.E.2d 357, ¶ 45, quoting United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d
369, 372, 643 N.E.2d 1129 (1994), quoting Johnson’s Mkts., Inc. v. New Carlisle
Dept. of Health, 58 Ohio St.3d 28, 35, 567 N.E.2d 1018 (1994). Because R.C.
3501.01(F) and 3517.01(A) relate to the same subject matter—the recognition of
political parties—they should be read in pari materia.
{¶ 14} When considered together, these statutes make clear that a political
group cannot obtain recognized political-party status based on votes obtained by
independent candidates. As Husted notes, the 3 percent vote required for a group
to “remain[ ]” a political party must be received by the “political party’s candidate,”
as specified in R.C. 3501.01(F)(2)(a). Fockler’s candidates could not be the
“political party’s candidate[s]” because they were nominated and appeared on the
ballot as independent candidates, unaffiliated with any political party.2
{¶ 15} Moreover, because relators were not a recognized political party
prior to the election, they are not eligible to “remain[ ]” a political party based on
the outcome of the election. As Husted aptly states, only already-recognized
political parties are eligible to “remain[ ]” a political party.
{¶ 16} For Fockler to revive a previously recognized political party, Fockler
must file a party-formation petition that meets the requirements of R.C.
3501.01(F)(2)(b) and 3517.01(A)(1)(b). The Libertarian Party, which was
previously recognized in Ohio, lost political-party status in 2014 after its failure to
properly nominate a candidate for the office of governor. See Libertarian Party of
Ohio v. Husted, 751 F.3d 403, 424 (6th Cir.2014). Without a candidate on the ballot
at that election, the Libertarian Party could not receive the vote percentage required
2
“ ‘Independent candidate’ means any candidate who claims not to be affiliated with a political
party, and whose name has been certified on the office-type ballot at a general or special election
through the filing of a statement of candidacy and nominating petition, as prescribed in section
3513.257 of the Revised Code.” R.C. 3501.01(I).
6
January Term, 2017
to remain a political party. And after a recognized political party fails to receive 3
percent of the vote, both statutory provisions require it to “file[ ] with the secretary
of state” a petition that meets the statutory requirements in order to regain political-
party status. R.C. 3501.01(F)(2)(b) and 3517.01(A)(1)(b).
{¶ 17} This conclusion is consistent with two authorities that have
previously considered the political-party-formation provisions of R.C. 3501.01 and
3517.01.
{¶ 18} First, in Libertarian Party of Ohio v. Husted, 831 F.3d 382, 388 (6th
Cir.2016), the United States Court of Appeals for the Sixth Circuit briefly described
the process for qualifying as a minor political party in Ohio, stating that a party may
qualify by obtaining at least 3 percent of the vote and that, alternatively, “new
political parties that were not on the ballot in the preceding election * * * may
qualify as a minor party through petition.” (Emphasis added.)
{¶ 19} Second, the Legislative Service Commission’s final analysis of 2013
Am.Sub.S.B. No. 193, the bill that established the current party-formation process,
states that the bill “[l]owers the percentage of vote required for a party to retain its
status as a political party and revises the process for a new party to gain recognition
by filing a party formation petition.” Ohio Legislative Service Commission, Final
Analysis of Am.Sub.S.B. No. 193, as passed by the General Assembly (2014), at
1. “Although this court is not bound” by the analyses prepared by the Ohio
Legislative Service Commission, “we may refer to them when we find them helpful
and objective.” Meeks v. Papadopulos, 62 Ohio St.2d 187, 191, 404 N.E.2d 159
(1980).
{¶ 20} Therefore, we conclude that Husted properly construed R.C.
3501.01 and 3517.01 together in determining that only established political parties
may retain ballot access based on their candidates’ receiving a specified percentage
of the vote.
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{¶ 21} Fockler contends, to the contrary, that under the plain language of
R.C. 3517.01, read alone, relators qualify as a political party. He insists that the
political-party-formation provisions in R.C. 3501.01 are distinct and inapplicable,
as they apply only to a “political party,” while the provisions of R.C. 3517.01 apply
to a “group of voters.” Because Johnson and Weld polled more than 3 percent of
the vote for president and vice president, Fockler contends that the committee meets
the requirement of a “group of voters” whose candidates polled at least 3 percent
and, therefore, that the group “remains a political party” for the next four years.
{¶ 22} However, Fockler’s interpretation necessarily divides the R.C.
3517.01 political-party-formation provisions from the definitions of “political
party” and “minor political party” that apply to the entire election law. See R.C.
3501.01 (providing that definitions set forth in section 3501.01 apply to “the
sections of the Revised Code relating to elections and political communications”).
These provisions cannot reasonably be considered independent of one another.
{¶ 23} As support for their position, relators cite an affidavit from Richard
Winger, the editor of Ballot Access News, who purports to set forth the history of
Ohio’s ballot-access laws.3 Winger contends that, going back to at least 1914,
“associations” were statutorily permitted to gain ballot access based on the
percentage of the vote received by their candidates, with the petition process for
establishing new parties not enacted until 1929.
{¶ 24} Even if Winger’s affidavit had been properly sworn, Fockler’s
reliance on it is misplaced. Based on the affidavit, Fockler contends that “Ohio has
continuously since 1914” permitted groups of voters to establish political parties
by running independent candidates for office. But the statute that Winger and
3
Winger’s affidavit fails to satisfy the requirements of S.Ct.Prac.R. 12.06, which requires affidavits
to be made on personal knowledge. See State ex rel. Commt. for the Charter Amendment for an
Elected Law Director v. Bay Village, 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d 574, ¶ 12-
13.
8
January Term, 2017
Fockler cite as being “continuously” in effect was invalidated in 2006. Libertarian
Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.2006). Therefore, a vote-
percentage process for groups of voters to establish political parties has not been in
continuous effect since 1914.
Conclusion
{¶ 25} Fockler is unable to demonstrate that he is entitled to a writ of
mandamus, because he has failed to show that Husted either abused his discretion
or acted in clear disregard of the applicable law. Husted correctly determined that
in order for the “Libertarian” party to regain ballot access, it must file a petition that
meets the statutory requirements. R.C. 3501.01 and 3517.01 do not authorize the
formation of a new or revived political party based on the percentage of the vote
received by candidates who appeared on the ballot as independents.
Writ denied.
O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEWINE, JJ., concur.
KENNEDY and FRENCH, JJ., concur in judgment only.
O’NEILL, J., dissents, with an opinion.
_________________
O’NEILL, J., dissenting.
{¶ 26} Respectfully, I must dissent. Relators have filed this action by virtue
of the fact that their candidates captured more than 3 percent of the statewide vote
for president and vice president in the 2016 general election. They seek recognition
as the Libertarian Party to participate in Ohio’s 2017 primary election and beyond.
Respondent, Ohio Secretary of State Jon Husted, opposes relators’ request based
on the fact that relators’ candidates did not run under the Libertarian Party banner
in 2016. That is, at best, circular reasoning. It would not have been possible for
Gary Johnson and Bill Weld to run as the candidates of the Libertarian Party as
there was no such party recognized by the state of Ohio. That is what this lawsuit
is all about. Political parties have to start somewhere. Relators followed the rules
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that define what constitutes a political party, and now the state’s chief elections
officer asks this court to twist those rules around to keep the seeds of democracy
from sprouting.
{¶ 27} I agree that reasonable administrative interpretations of the Revised
Code are owed deference from the courts; however, I do not think that respondent’s
interpretation of R.C. 3501.01 and 3517.01, read together in pari materia, is
reasonable. At issue in this matter are the statutory definitions of the terms
“political party” in R.C. 3517.01(A)(1) and “minor political party” in R.C.
3501.01(F)(2). Respondent would like us to read these provisions together to
conclude that relators cannot be a “political party” because they do not qualify as a
“minor political party.” This interpretation is unreasonable. The umbrella section
immediately above the definition of “minor political party,” R.C. 3501.01(F),
defines “political party” as “any group of voters meeting the requirements set forth
in section 3517.01 of the Revised Code for the formation and existence of a political
party.” (Emphasis added.) Using the same phrase, “any group of voters” (emphasis
added), R.C. 3517.01(A)(1) provides that a group of voters may acquire political-
party status by meeting either of two alternative requirements, (a) or (b). R.C.
3517.01(A)(1)(a) provides that the definition of “political party” is met if “at the
most recent regular state election, the group polled for its candidate for governor in
the state or nominees for presidential electors at least three per cent of the entire
vote cast for that office.” (Emphasis added.) That is exactly what happened here.
{¶ 28} R.C. 3501.01(F)(2) and 3517.01(A)(1) define different terms.
Respondent’s interpretation would require this court to supplement the plain
language of these statutes to make one definition subordinate to the other, which is
an improper invasion of the role of the General Assembly.
{¶ 29} The state must hold primary elections “for the purpose of nominating
persons as candidates of political parties for election to offices to be voted for at
the succeeding general election.” R.C. 3513.01(A). (Emphasis added.) The only
10
January Term, 2017
question remaining for this court to answer is whether the named relators are, as
they allege, a “group” that “polled for its * * * nominees for presidential electors at
least three per cent of the entire vote cast for that office,” R.C. 3517.01(A)(1)(a).
Relators allege that they are the “group of voters” that nominated Johnson and Weld
to appear on the most recent presidential-election ballot, that the candidates they
nominated received 3.17 percent of the total votes cast in that election, and that they
would now like recognition as a political party. Respondent denies only one of
these allegations in his answer: that relators were the people who nominated
Johnson and Weld. Relators have provided more than sufficient evidence in
support of their statement that they were the group that nominated Johnson and
Weld, and respondent has offered evidence that only confirms their allegation.
{¶ 30} Whether or not relators want to be called the “Libertarian Party”—
they do not say so in their complaint—is not dispositive. That they received support
from a group calling itself the Libertarian Party of Ohio is equally irrelevant. The
Revised Code says nothing about that. These five people could call themselves the
Pizza Party, for all that matters. Left with the plain language of the statutes, the
factual questions stated above, and the plain evidence in the record, I would grant
the writ and order the relief requested.
{¶ 31} Accordingly, I dissent.
_________________
Mark R. Brown, for relators.
Michael DeWine, Attorney General, and Halli Brownfield Watson and
Jordan S. Berman, Assistant Attorneys General, for respondent.
_________________
11