Libertarian Party of Ohio v. Husted

[Cite as Libertarian Party v. Husted, 2017-Ohio-7737.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Libertarian Party of Ohio, :

Plaintiff-Appellant, :

No. 16AP-496

v. : (C.P.C. No. 16CV-554)

Jon Husted et al., : (REGULAR CALENDAR)

Defendants-Appellees. :

D E C I S I O N

Rendered on September 21, 2017

On brief: Mark R. Brown; Mark G. Kafantaris, for

appellant. Argued: Mark R. Brown.

On brief: Michael DeWine, Attorney General, Halli

Brownfield Watson, and Bridget E. Coontz, for appellees.

Argued: Halli Brownfield Watson.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Plaintiff-appellant, Libertarian Party of Ohio ("LPO"), appeals the June 7,

2016 decision and entry of the Franklin County Court of Common Pleas granting

summary judgment in favor of defendants-appellees, Jon Husted, Ohio Secretary of State,

and Mike DeWine, Ohio Attorney General ("appellees"), on LPO's claims that Am.Sub.

S.B. No. 193 ("S.B. No. 193") violated the Ohio Constitution. For the following reasons,

we affirm.

I. History

{¶ 2} The case before us is the latest in a long line of challenges to Ohio's attempts

to regulate its elections with regard to ballot access for independent candidates and minor

parties, including notable challenges brought by LPO. As recently noted by the Sixth

No. 16AP-496 2

Circuit Court of Appeals, LPO " 'has struggled to become and remain a ballot-qualified

party in Ohio through frequent litigation.' " Libertarian Party of Ohio v. Husted, 831

F.3d 382, 387 (6th Cir.2016), cert. denied, 137 S.Ct. 651 (2017), quoting Libertarian Party

of Ohio v. Husted, 751 F.3d 403, 405 (6th Cir.2014). Before addressing the procedural

history of the instant matter, we begin by briefly reviewing the history of LPO's challenges

to ballot access laws in Ohio.

A. Ballot Access Challenges Prior to S.B. No. 193

{¶ 3} In Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.2006), the

court reviewed LPO's challenge to two Ohio regulations under the First and Fourteenth

Amendments to the United States Constitution. Specifically at issue were regulations that

"(1) mandate[d] that parties not meeting the five percent vote threshold in the previous

election file a petition 120 days in advance of the primary election in order to qualify; and

(2) require[d] that parties participate in the March primary in order to appear on the

general election ballot." Id. at 586. The court found the combination of requirements and

their resultant impact on LPO's ability to appear on the general election ballot severely

burdened LPO's rights. In so finding, the court observed that LPO "needed to find more

than thirty thousand Ohio residents to sign its petition to appear on the 2004 ballot more

than one year in advance of the election," a requirement that forced "minor political

parties to recruit supporters at a time when the major party candidates are not known and

when the populace is not politically energized." Id. The court also noted that "[f]orty-

eight states have filing deadlines for minor parties later in the election cycle, and forty-

three states allow minor parties to nominate candidates in a manner other than the

primary election." Id. at 594. The court concluded that Ohio's interests in its primary and

early-filing requirement were not sufficient to outweigh the severe burden on LPO's

rights.

{¶ 4} Following the decision in Blackwell, "the Ohio General Assembly [took] no

action to establish ballot access standards for minor political parties, leaving no lawful,

statutory criteria to be followed by the Secretary of State or the various Boards of Election

of each county." Libertarian Party of Ohio v. Brunner, 567 F.Supp.2d 1006, 1009

(S.D.Ohio 2008). In the absence of legislation, in 2007, the Ohio Secretary of State issued

a directive that maintained Ohio's requirement that minor parties nominate their

No. 16AP-496 3

candidates by primary election, but altered the party-qualification process by requiring

minor parties to "obtain petition signatures equal to one-half of one percent of the votes

cast for governor in the 2006 general election," and to "file nominating petitions 100 days

before the primary." Id. at 1010.

{¶ 5} LPO challenged the directive in federal court, and the court granted a

preliminary injunction preventing the directive from going into effect. The court found

that "only the legislative branch has the authority, under Articles I and II of the United

States Constitution, to prescribe the manner of electing candidates for federal office." Id.

at 1011. Furthermore, the court found that "[e]ven assuming that [the Directive] was a

valid exercise of [the Ohio Secretary of State's] power to regulate elections, the Directive

itself imposes unconstitutional burdens on First Amendment rights." Id. at 1013. As a

result of the invalidity of the directive and the General Assembly's failure to set forth

applicable election regulations, the court ordered LPO be placed on the 2008 general

election ballot in Ohio.

{¶ 6} Following the decision in Brunner, the Ohio Secretary of State entered into

a consent decree agreeing not to enforce the interim requirements, and adopted

subsequent directives granting LPO continued ballot access through 2011 and beyond.

Libertarian Party of Ohio v. Husted, S.D.Ohio No. 2:11-CV-722 (Sept. 7, 2011), vacated

as moot, 497 Fed.Appx. 581 (6th Cir.2012).

{¶ 7} In 2011, the General Assembly enacted Am.Sub.H.B. No. 194 ("H.B. No.

194"), which in part, amended ballot access requirements for political parties.

Specifically, H.B. No. 194 required minor parties file petitions with the requisite number

of signatures 90 days before the primary, while maintaining the number of signatures

required. LPO again filed a challenge in federal court. Finding that H.B. No. 194 imposed

severe burdens on LPO's rights without a sufficiently weighty state interest, the court

granted a preliminary injunction preventing H.B. No. 194 from taking effect. Following

the issuance of the injunction, the General Assembly repealed H.B. No. 194. Thereafter,

in 2013, the Ohio Secretary of State issued an additional directive that "continued the

practice of recognizing minor political parties and granting them access to the ballot for

both the primary and general elections." Libertarian Party of Ohio v. Husted, S.D.Ohio

No. 2:13-cv-953 (Jan. 7, 2014).

No. 16AP-496 4

B. Enactment of S.B. No. 193 and Subsequent Challenges

{¶ 8} On November 6, 2013, the General Assembly enacted S.B. No. 193, which is

the subject of this appeal and will be discussed further below. The law had an effective

date of February 5, 2014.

1. Federal Proceedings

{¶ 9} Prior to the effective date of S.B. No. 193, LPO and three persons involved

with LPO, filed a complaint and a motion for a preliminary injunction against the Ohio

Secretary of State in federal district court. The court granted LPO's first motion for a

preliminary injunction. On November 8, 2013, LPO filed an amended complaint

challenging the restrictions in S.B. No. 193 on ballot access and asserting in part that S.B.

No. 193 violated Article V, Section 7 of the Ohio Constitution. On January 7, 2014, the

court granted LPO's second motion for a preliminary injunction, preventing S.B. No. 193

from taking effect for the 2014 election. However, the court declined to address the

merits of LPO's claims under the Ohio Constitution at that time.

{¶ 10} On March 7, 2014, LPO filed a second amended complaint and third motion

for preliminary injunction in the federal district court asserting that the Ohio Secretary of

State violated its First Amendment rights by disqualifying its nominating petitions,

preventing its candidates from appearing on the Ohio primary ballot in May 2014. The

Secretary of State asserted that LPO's nominating petitions were disqualified because the

paid circulators who obtained signatures for LPO's nominating petitions failed to disclose

the name and address of the entity that paid them in the employer information box on the

petitions as required by R.C. 3501.38(E)(1). The district court denied LPO's third motion,

finding that R.C. 3501.38(E)(1) placed only a minimal burden on LPO's First Amendment

rights and the requirements served a significant interest in detecting and deterring fraud

in the signature gathering process. Libertarian Party of Ohio v. Husted, S.D.Ohio No.

2:13-cv-953 (Mar. 19, 2014). On appeal, on May 1, 2014, the Sixth Circuit affirmed the

denial of a preliminary injunction. Libertarian Party of Ohio v. Husted, 751 F.3d at 405.

{¶ 11} On September 11, 2014, LPO filed a third amended complaint, asserting

among other claims that the Ohio Secretary of State selectively enforced the employer-

disclosure requirements of R.C. 3501.39(E)(1) against LPO in violation of the First and

Fourteenth Amendments. On September 15, 2014, LPO filed a fourth motion for a

No. 16AP-496 5

preliminary injunction and motion for a temporary restraining order, seeking to place its

candidates' names on the ballot for the 2014 general election. The federal district court

denied the request for a temporary restraining order and the fourth motion for a

preliminary injunction.

{¶ 12} Following denial of the fourth preliminary injunction, the parties filed

motions and cross-motions for summary judgment regarding LPO's claims that S.B. No.

193 violated the Ohio Constitution and the federal Equal Protection Clause. The federal

district court found that S.B. No. 193 did not violate the federal Equal Protection Clause,

both on its face and as applied. The court also dismissed LPO's claim that S.B. No. 193

violated the Ohio Constitution as barred by the Eleventh Amendment. On May 20, 2016,

the court granted summary judgment in favor of the defendants on LPO's selective

enforcement claim. Libertarian Party of Ohio v. Husted, 188 F.Supp.3d 665 (S.D.Ohio

2016).

{¶ 13} On appeal, LPO asserted that: (1) the defendants selectively enforced R.C.

3501.38(E)(1) against LPO in violation of the First and Fourteenth Amendments, and

(2) S.B. No. 193 violated the federal Equal Protection Clause by denying them the

opportunity to participate in the primary election process. The court concluded that the

district court did not err in granting summary judgment in favor of the defendants on

LPO's federal constitutional challenges. Finally, LPO asserted that the district court erred

in dismissing its state constitutional claim under Article V, Section 7 of the Ohio

Constitution. The court found that LPO was precluded from pursuing its claim under

Article V, Section 7 because, as detailed below, the Franklin County Court of Common

Pleas reached a final judgment on such claim. Libertarian Party of Ohio v. Husted, 831

F.3d at 406. Therefore, the court affirmed the granting of summary judgment in favor of

the defendants. Id.

2. Ohio Proceedings

{¶ 14} On January 19, 2016, LPO filed in the trial court a declaratory and

injunctive action challenging the constitutionality of S.B. No. 193 under Article V,

Section 7, and Article I, Section 2 of the Ohio Constitution. On the same day, LPO filed a

motion for a temporary restraining order and preliminary injunction against enforcement

of S.B. No. 193. On January 27, 2016, appellees filed a memorandum in opposition to

No. 16AP-496 6

LPO's motion for a temporary restraining order and preliminary injunction. On

February 1, 2016, LPO filed a reply. On February 2, 2016, the trial court filed an entry

denying LPO's motion for a temporary restraining order and setting a hearing on LPO's

request for a preliminary injunction.

{¶ 15} On February 19, 2016, appellees filed an answer and a motion for summary

judgment. On March 2, 2016, LPO filed a response to appellees' motion for summary

judgment and a motion under Civ.R. 56(F) to continue appellees' motion for summary

judgment. On March 9, 2016, appellees filed a memo contra LPO's Civ.R. 56(F) motion

and a reply in support of their motion for summary judgment. On March 14, 2016, LPO

filed a reply in support of its motion for a continuance pursuant to Civ.R. 56(F).

{¶ 16} On March 17, 2016, appellees filed a motion to strike LPO's March 14, 2016

reply in support of its motion for a continuance pursuant to Civ.R. 56(F). On the same

day, LPO filed a motion for leave to cure its reply in excess of seven pages and a

memorandum in opposition to appellees' motion to strike. On April 5, 2016, the trial

court granted LPO leave to cure its reply in excess of seven pages.

{¶ 17} On April 18, 2016, the trial court filed an entry denying LPO's motion under

Civ.R. 56(F) for a continuance. On June 7, 2016, the trial court filed a decision and entry

granting summary judgment in favor of appellees and rendering moot LPO's motion for a

preliminary injunction. On the same day, LPO filed a motion for new trial pursuant to

Civ.R. 59 and a motion to stay judgment pursuant to Civ.R. 62.1 On June 21, 2016,

appellees filed a memorandum in opposition to LPO's motion for new trial and motion to

stay judgment. On June 23, 2016, LPO filed a reply in support of its motion for a new

trial.

{¶ 18} On July 6, 2016, LPO filed a notice of appeal to this court from the June 7,

2016 judgment of the trial court granting summary judgment. On July 7, 2016, the trial

court ordered the matter stayed during the pendency of the appeal. On August 5, 2016,

this court remanded the matter to the trial court for the limited purpose of allowing the

trial court to resolve the pending Civ.R. 59 motion for new trial.

1We note that although the title of LPO's motion referred to Civ.R. 60, the memorandum in support of the

motion cited Civ.R. 62(A).

No. 16AP-496 7

{¶ 19} On August 8, 2016, LPO filed a notice of supplemental authority. On

August 10, 2016, appellees filed a motion to strike LPO's August 8, 2016 notice of

supplemental authority. On the same day, LPO filed a motion for leave to file a notice of

supplemental authority and a memorandum in opposition to appellees' August 10, 2016

motion to strike. On August 15, 2016, appellees filed a memorandum in opposition to

LPO's motion for leave to file notice of supplemental authority. On September 1, 2016,

the trial court filed a decision and entry denying LPO's motion for a new trial.

II. Assignments of Error

{¶ 20} LPO appeals and assigns the following six assignments of error for our

review:

[I.] The Court of Common Pleas erred by concluding that

S.B. [No.] 193, Ohio's new ballot access denying to new

political parties their previous right to hold primaries, does

not violate Article V, § 7 of Ohio's Constitution.

[II.] The Court of Common Pleas erred by concluding that

S.B. [No.] 193's violation of Article V, § 7 of Ohio's

Constitution presents a political question and is not

justiciable.

[III.] The Court of Common Pleas erred by concluding that

Ohio's guarantee of equal protection of the laws, located in

Article I, § 2 of the Ohio Constitution, is limited by federal

precedents interpreting the federal Equal Protection Clause

found in the Fourteenth Amendment to the United States

Constitution.

[IV.] The Court of Common Pleas erred by not applying the

more-protective constitutional analysis prescribed by the

Ohio Supreme Court under Article I, § 2 of Ohio's

Constitution to Appellant's claim that S.B. [No.] 193 violates

equal protection of the law.

[V.] The Court of Common Pleas erred in concluding that

S.B. [No.] 193 is constitutional under federal Equal

Protection Clause precedents and the Anderson/Burdick

analysis, which establish a floor for Ohio's constitutional

guarantee of equal protection of the law.

[VI.] The Court of Common Pleas erred by refusing to allow

Appellant to conduct discovery in order to properly respond

to Appellees' motion for summary judgment.

No. 16AP-496 8

III. Constitutionality of S.B. N0. 193

{¶ 21} In its first, second, third, fourth, and fifth assignments of error, LPO asserts

that S.B. No. 193 violates Article V, Section 7, and Article I, Section 2 of the Ohio

Constitution.

A. Applicable Law

{¶ 22} We begin by reviewing the statutes relevant to the instant matter. Prior to

the enactment of S.B. No. 193, R.C. 3501.01(F) provided:

"Political party" means 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.

(1) "Major political party" means any political party organized

under the laws of this state whose candidate for governor or

nominees for presidential electors received no less than

twenty per cent of the total vote cast for such office at the

most recent regular state election.

(2) "Intermediate political party" means any political party

organized under the laws of this state whose candidate for

governor or nominees for presidential electors received less

than twenty per cent but not less than ten per cent of the total

vote cast for such office at the most recent regular state

election.

(3) "Minor political party" means any political party organized

under the laws of this state whose candidate for governor or

nominees for presidential electors received less than ten per

cent but not less than five per cent of the total vote cast for

such office at the most recent regular state election or which

has filed with the secretary of state, subsequent to any election

in which it received less than five per cent of such vote, a

petition signed by qualified electors equal in number to at

least one per cent of the total vote cast for such office in the

last preceding regular state election, except that 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.

{¶ 23} As amended by S.B. No. 193, R.C. 3501.01(F) now provides:

No. 16AP-496 9

"Political party" means 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.

(1) "Major political party" means any political party organized

under the laws of this state whose candidate for governor or

nominees for presidential electors received not less than

twenty per cent of the total vote cast for such office at the

most recent regular state election.

(2) "Minor political party" means any political party organized

under the laws of this state 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.

{¶ 24} Prior to the enactment of S.B. No. 193, R.C. 3517.01 provided, in pertinent

part:

(A)

(1) A political party within the meaning of Title XXXV of the

Revised Code is any group of voters that, at the most recent

regular state election, polled for its candidate for governor in

the state or nominees for presidential electors at least five per

cent of the entire vote cast for that office or that filed with the

secretary of state, subsequent to any election in which it

received less than five per cent of that vote, a petition signed

by qualified electors equal in number to at least one per cent

of the total vote for governor or nominees for presidential

electors at the most recent election, declaring their intention

of organizing a political party, the name of which shall be

stated in the declaration, and of participating in the

No. 16AP-496 10

succeeding primary election, held in even-numbered years,

that occurs more than one hundred twenty days after the date

of filing. No such group of electors shall assume a name or

designation that is similar, in the opinion of the secretary of

state, to that of an existing political party as to confuse or

mislead the voters at an election. If any political party fails to

cast five per cent of the total vote cast at an election for the

office of governor or president, it shall cease to be a political

party.

(2) A campaign committee shall be legally liable for any debts,

contracts, or expenditures incurred or executed in its name.

{¶ 25} As amended by S.B. No. 193, R.C. 3517.01 now provides in pertinent part:

(A)

(1) 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:

(i) The petition is signed by qualified electors equal in number

to at least one per cent of the total vote for governor or

nominees for presidential electors at the most recent election

for such office.

(ii) The petition is signed by not fewer than five hundred

qualified electors from each of at least a minimum of one-half

of the congressional districts in this state. If an odd number of

congressional districts exists in this state, the number of

districts that results from dividing the number of

congressional districts by two shall be rounded up to the next

whole number.

(iii) The petition declares the petitioners' intention of

organizing a political party, the name of which shall be stated

in the declaration, and of participating in the succeeding

general election, held in even-numbered years, that occurs

No. 16AP-496 11

more than one hundred twenty-five days after the date of

filing.

(iv) The petition designates a committee of not less than three

nor more than five individuals of the petitioners, who shall

represent the petitioners in all matters relating to the petition.

Notice of all matters or proceedings pertaining to the petition

may be served on the committee, or any of them, either

personally or by registered mail, or by leaving such notice at

the usual place of residence of each of them.

{¶ 26} Thus, prior to the enactment of S.B. No. 193, Ohio had three categories of

political parties: major, intermediate, and minor. Following the enactment of S.B. No.

193, two categories of political party were created: major and minor. Minor political

parties are defined as those parties which meet one of the following requirements: (1) the

party's candidate for governor or nominees for presidential electors received not less than

3 percent but less than 20 percent of the total vote at the most recent regular election for

such office, in which case such party would remain a recognized minor political party for a

period of 4 years, or (2) the party filed a party formation petition meeting the

requirements of R.C. 3517.01, in which case it would remain a recognized minor political

party until the next election for governor or president occurring not less than 12 months

following the formation of the party. In order for a newly formed political party to qualify

as a minor party under R.C. 3501.01(F)(2)(b), the petition must meet the following three

requirements under R.C. 3517.01(A)(1)(b): (1) the petition must be signed by qualified

electors equal to at least 1 percent of the total vote for nominees for presidential electors

or governor at the most recent election for such office, (2) the petition must be signed by

500 qualified electors from each of at least half of the congressional districts in the state,

(3) the petition must declare the intent of forming the party named in the petition and of

participating in the next general election held in even-numbered years that occurs more

than 125 days after the date of filing, and (4) the petition must designate a committee of 3

to 5 petitioners to represent the petitioners.

{¶ 27} R.C. 3501.01(E), which was unchanged by S.B. No. 193, provides:

(1) "Primary" or "primary election" means an election held for

the purpose of nominating persons as candidates of political

parties for election to offices, and for the purpose of electing

persons as members of the controlling committees of political

parties and as delegates and alternates to the conventions of

No. 16AP-496 12

political parties. Primary elections shall be held on the first

Tuesday after the first Monday in May of each year except in

years in which a presidential primary election is held.

(2) "Presidential primary election" means a primary election

as defined by division (E)(1) of this section at which an

election is held for the purpose of choosing delegates and

alternates to the national conventions of the major political

parties pursuant to section 3513.12 of the Revised Code.

Unless otherwise specified, presidential primary elections are

included in references to primary elections. In years in which

a presidential primary election is held, all primary elections

shall be held on the first Tuesday after the first Monday in

March except as otherwise authorized by a municipal or

county charter.

{¶ 28} Prior to the enactment of S.B. No. 193, R.C. 3517.012 provided:

When a petition meeting the requirements of section 3517.01

of the Revised Code declaring the intention to organize a

political party is filed with the secretary of state, the new party

comes into legal existence on the date of filing and is entitled

to hold a primary election as set out in section 3513.01 of the

Revised Code, at the primary election, held in even-numbered

years that occurs more than one hundred twenty days after

the date of filing.

{¶ 29} As amended by S.B. No. 193, R.C. 3517.012 now provides:

(A)

(1) When a party formation petition meeting the requirements

of section 3517.01 of the Revised Code declaring the intention

to organize a political party is filed with the secretary of state,

the new party comes into legal existence on the date of filing

and is entitled to nominate candidates to appear on the ballot

at the general election held in even-numbered years that

occurs more than one hundred twenty-five days after the date

of filing.

(2)

(a) Upon receiving a party formation petition filed under

division (A)(1) of this section, the secretary of state shall

promptly transmit to each board of elections the separate

petition papers that purport to contain signatures of electors

of that board's county.

(b) Not later than the one hundred eighteenth day before the

day of the general election, each board shall examine and

determine the sufficiency of the signatures on the petition

No. 16AP-496 13

papers and shall return them to the secretary of state, together

with the board's certification of its determination as to the

validity or invalidity of the signatures on the petition.

(c) Any qualified elector may file a written protest against the

petition with the secretary of state not later than the one

hundred fourteenth day before the day of the general election.

Any such protest shall be resolved in the manner specified

under section 3501.39 of the Revised Code.

(d) Not later than the ninety-fifth day before the day of the

general election, the secretary of state shall determine

whether the party formation petition is sufficient and shall

notify the committee designated in the petition of that

determination.

(B)

(1) Not later than one hundred ten days before the day of that

general election and not earlier than the day the applicable

party formation petition is filed, each candidate or pair of

joint candidates wishing to appear on the ballot at the general

election as the nominee or nominees of the party that filed the

party formation petition shall file a nominating petition, on a

form prescribed by the secretary of state, that includes the

name of the political party that submitted the party formation

petition. Except as otherwise provided in this section and

sections 3505.03, 3505.08, 3506.11, 3513.31, 3513.311, and

3513.312 of the Revised Code, the provisions of the Revised

Code concerning independent candidates who file nominating

petitions apply to candidates who file nominating petitions

under this section.

(2)

(a) If the candidacy is to be submitted to electors throughout

the entire state, the nominating petition, including a petition

for joint candidates for the offices of governor and lieutenant

governor, shall be signed by at least fifty qualified electors

who have not voted as a member of a different political party

at any primary election within the current year or the

immediately preceding two calendar years.

(b) Except as otherwise provided in this division, if the

candidacy is to be submitted only to electors within a district,

political subdivision, or portion thereof, the nominating

petition shall be signed by not less than five qualified electors

who have not voted as a member of a different political party

at any primary election within the current year or the

immediately preceding two calendar years.

No. 16AP-496 14

(3)

(a) Each board of elections that is responsible to verify

signatures on the nominating petition shall examine and

determine the sufficiency of those signatures not later than

the one hundred fifth day before the day of the general

election and shall be resolved as specified in that section.

(b) Written protests against the petition may be filed in the

manner specified under section 3513.263 of the Revised Code

not later than the one hundredth day before the general

election and shall be resolved as specified in that section.

(c) Not later than the ninety-fifth day before the day of the

general election, the secretary of state or the board of

elections, as applicable, shall determine whether the

nominating petition is sufficient and shall notify the candidate

and the committee designated in the party formation petition

of that determination.

(C)

(1) After being notified that the political party has submitted a

sufficient party formation petition under division (A) of this

section, the committee designated in a party formation

petition shall, not later than the seventy-fifth day before the

day of the general election, certify to the secretary of state a

slate of candidates consisting of candidates or joint candidates

who submitted sufficient nominating petitions under division

(B) of this section. The slate certifying the candidates shall be

on a form prescribed by the secretary of state and signed by all

of the individuals of the committee designated in the party

formation petition. In no event shall the slate of candidates

include more than one candidate for any public office or more

than one set of joint candidates for the offices of governor and

lieutenant governor. The names of the candidates or joint

candidates so certified shall appear on the ballot at the general

election as that party's nominees for those offices. For

purposes of this division, "joint candidates" means the joint

candidates for the offices of governor and lieutenant governor.

(2) If a candidate's nominating petition is insufficient or if the

committee does not certify the candidate's name under

division (C)(1) of this section, the candidate shall not appear

on the ballot in the general election.

(3) If a party formation petition is insufficient, no candidate

shall appear on the ballot in the general election as that

political party's nominee, regardless of whether any

candidate's nominating petition is sufficient.

No. 16AP-496 15

{¶ 30} Thus, prior to S.B. No. 193, a newly formed political party was able to

participate in the primary election process. However, as amended by S.B. No. 193,

candidates of a newly formed political party are no longer able to participate in the

primary election process. Instead, candidates of a newly formed political party must

submit: (1) if the candidacy is for a statewide office, a nominating petition signed by at

least 50 qualified electors who have not voted as a member of a different political party at

any primary election within the current year or the immediately preceding 2 calendar

years, or (2) if the candidacy is to be submitted only to electors within a district, political

subdivision, or portion thereof, a nominating petition signed by not less than 5 qualified

electors who have not voted as a member of a different political party at any primary

election within the current year or the immediately preceding 2 calendar years. Then, the

committee designated in the party formation petition must certify a slate of candidates

who submitted sufficient nominating petitions.

B. Standard of Review

{¶ 31} When reviewing the constitutionality of statutes, we are guided by the

presumption that enactments of the General Assembly are constitutional. State v. Mole,

149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 10. See Haight v. Minchak, 146 Ohio St.3d 481,

2016-Ohio-1053, ¶ 11, quoting State ex rel. Jackman v. Cuyahoga Cty. Court of Common

Pleas, 9 Ohio St.2d 159, 162 (1967) (" '[T]he state Constitution is primarily a limitation on

legislative power of the General Assembly. It follows that the General Assembly may pass

any law unless it is specifically prohibited by the state or federal Constitutions.' ").

(Emphasis sic.) The party challenging the constitutionality of the statute bears the burden

of demonstrating beyond a reasonable doubt that the statute and the constitutional

provisions are clearly incompatible. Haight at ¶ 11, citing Univ. Hts. v. O'Leary, 68 Ohio

St.2d 130, 135 (1981). In determining whether a statute conflicts with a constitutional

provision, courts must liberally construe the statute "to save [it] from constitutional

infirmity." Id., citing Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 538 (1999).

Nevertheless, where the incompatibility between a statute and a constitutional provision

is clear, a court has a duty to declare the statute unconstitutional. Mole at ¶ 11, citing

Cincinnati City School Dist. Bd. of Edn. v. Walter, 58 Ohio St.2d 368, 383 (1979).

No. 16AP-496 16

C. Article V, Section 7 of the Ohio Constitution

{¶ 32} We next address LPO's arguments in its first and second assignments of

error that S.B. No. 193 violates Article V, Section 7 of the Ohio Constitution. Article V,

Section 7 provides:

All nominations for elective state, district, county and

municipal offices shall be made at direct primary elections or

by petition as provided by law, and provision shall be made by

law for a preferential vote for United States senator; but direct

primaries shall not be held for the nomination of township

officers or for the officers of municipalities of less than two

thousand population, unless petitioned for by a majority of

the electors of such township or municipality. All delegates

from this state to the national conventions of political parties

shall be chosen by direct vote of the electors in a manner

provided by law. Each candidate for such delegate shall state

his first and second choices for the presidency, but the name

of no candidate for the presidency shall be so used without his

written authority.

{¶ 33} LPO contends that Article V, Section 7 only permits the nomination of party

candidates by primary election, and, therefore, S.B. No. 193 violates such provision

because it provides for the nomination of party candidates by both primary election and

petition. Appellees respond that Article V, Section 7 of the Ohio Constitution cannot serve

as a basis for LPO's claim because it is not a self-executing source of independent

protection. "A constitutional provision is self-executing when it is complete in itself and

becomes operative without the aid of supplemental or enabling legislation." State v.

Williams, 88 Ohio St.3d 513, 521 (2000), citing In re Protest Filed by Citizens for the

Merit Selection of Judges, Inc., 49 Ohio St.3d 102, 104 (1990). Thus, "the words of a

constitutional provision must be sufficiently precise in order to provide clear guidance to

courts with respect to their application if the provision is to be deemed self-executing."

Williams at 521.

{¶ 34} Here, Article V, Section 7 explicitly provides for two methods for "[a]ll

nominations for elective state, district, county and municipal offices" to be made:

(1) "direct primary elections," or (2) "by petition as provided by law." However, it does

not provide the method by which petitions are to be submitted or approved. Indeed, by

stating that petitions are to be made "as provided by law," the provision explicitly reserves

the proper construction of such petitions to subsequent enactments by the General

No. 16AP-496 17

Assembly. Although the plain language of this provision suggests that it is not self-

executing because nominations by petition cannot be operative without the aid of

legislation, we need not so decide in order to resolve LPO's claim.

{¶ 35} Indeed, assuming, arguendo, that Article V, Section 7 is self-executing,

LPO's contention that S.B. No. 193 violates the provision nevertheless fails. In support of

its contention that Article V, Section 7 permits the nomination of candidates by primary

election alone, LPO points to the Sixth Circuit's decision in Blackwell in which the court

stated that Ohio's "Constitution requires that all political parties, including minor parties,

nominate their candidates at primary elections." Blackwell at 582.

{¶ 36} As the trial court correctly observed, at the time the Sixth Circuit decided

Blackwell there was no provision in Ohio statutory law allowing for a nomination by

petition for a candidate affiliated with a political party. However, as we have previously

stated, the plain language of Article V, Section 7 provides for two methods for

nominations to be made: by direct primary election or nomination by petition. The fact

that the General Assembly did not pass legislation enabling nomination by petition for

party candidates as provided by Article V, Section 7 until the enactment of S.B. No. 193

does not deprive such provision of its force and meaning. State ex rel. Carmean v. Bd. of

Edn., 170 Ohio St. 415, 422 (1960) ("It is axiomatic in statutory construction that words

are not inserted into an act without some purpose."); State ex rel. Maurer v. Sheward, 71

Ohio St.3d 513, 521 (1994) (stating "if possible we must give meaning to every word in a

provision"); Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-

6323, ¶ 16. Furthermore, we are not bound by a federal court's statement in interpreting

the Ohio Constitution. Mole at ¶ 21, citing Doe v. State, 189 P.3d 999, 1007 (Alaska 2008)

("Federal opinions do not control our independent analyses in interpreting the Ohio

Constitution, even when we look to federal precedent for guidance."); Mesquite v.

Aladdin's Castle, Inc., 455 U.S. 283, 293 (1982) ("As a number of recent State Supreme

Court decisions demonstrate, a state court is entirely free to read its own State's

constitution more broadly than this Court reads the Federal Constitution, or to reject the

mode of analysis used by this Court in favor of a different analysis of its corresponding

constitutional guarantee."). Therefore, we find LPO's contentions regarding Blackwell to

be without merit.

No. 16AP-496 18

{¶ 37} Next, LPO points to the Ohio Supreme Court's decision in State ex rel.

Gottlieb v. Sulligan, 175 Ohio St. 238 (1963), to support its position that Article V,

Section 7 does not allow for nomination of candidates by petition. Specifically, LPO

contends that Sulligan stands for the proposition that Article V, Section 7 requires

"political parties [to] select their candidates through direct primaries." (LPO's Brief at

19.)

{¶ 38} In Sulligan, the court examined the question of "whether a person selected

as a party candidate for an office in a primary election who withdraws his candidacy for

that office is eligible for selection as a party candidate by the party committee to fill a

vacancy in the nomination for another office created by the withdrawal of the candidate

originally nominated." Id. at 239. The court found that "Section 7, Article V of the Ohio

Constitution, provides that all nominations must be by direct primary or by petition." Id.

at 241. Furthermore, the court stated that "[a]n examination of the election laws indicates

that the phrase, 'nominating petition,' has a specific meaning." Id. at 240. In determining

the meaning of the phrase "nominating petition," the court explained:

Under our statutes the candidates for public office may gain

nomination by two methods: One, by filing a declaration of

candidacy accompanied by a petition entitling one to be a

participant in the direct party primary wherein candidates

from all political parties seek their nomination; or, two, by

what is designated as a nominating petition, the method by

which the independent candidate may seek his place on the

elective ballot. In other words, the nominating petition is the

method by which the independent candidate seeks his place

on the elective ballot.

(Emphasis added.) Id. at 240-41, citing former R.C. 3513.252.

{¶ 39} Thus, the court's interpretation of the phrase "nominating petition" in

Sulligan was based upon then-existing statutory provisions, not the constitutional

framework of Article V, Section 7. Because Article V, Section 7 provides that "[a]ll

nominations * * * shall be made at direct primary elections or by petition as provided by

law," the General Assembly possesses constitutional authority to legislate the scope of a

nominating petition. (Emphasis added.) Therefore, Article V, Section 7 does not prohibit

the General Assembly from enacting statutes providing for nomination by petition for

candidates regardless of whether the candidate is affiliated with a political party. See

No. 16AP-496 19

Sulligan at 242, quoting Mullholand v. Batt, 164 Ohio St. 362 (1955), paragraph one of

the syllabus (" 'Under the provisions of Section 27 of Article II of the Constitution of Ohio

relating to the legislative powers of the General Assembly, the election and appointment

of all officers, and the filling of all vacancies, not otherwise provided for by such

Constitution or the Constitution of the United States, shall be made in such manner as

may be directed by law.' "). Accordingly, we do not find LPO's contentions regarding

Sulligan to be persuasive.

{¶ 40} Finally, LPO states that the adoption of S.B. No. 193 "marks the first

occasion since Article V, [Section] 7 of Ohio's Constitution was adopted and implemented

that Ohio law has had any procedure for any qualified political parties to nominate

candidates for federal, state and local office without primaries." (LPO's Brief at 27.) For

the foregoing reasons, we are not persuaded by LPO's contention that the history of the

nomination process in Ohio is controlling over the express terms of the constitutional

provision. Therefore, assuming, arguendo, that Article V, Section 7 is self-executing, we

conclude that LPO has failed to overcome the presumption of constitutionality by

demonstrating beyond a reasonable doubt that the challenged provisions of S.B. No. 193

violate Article V, Section 7 of the Ohio Constitution. Mole at ¶ 10-11.

{¶ 41} Accordingly, we overrule LPO's first assignment of error. Having reached

the merits of LPO's first assignment of error in finding that S.B. No. 193 does not violate

Article V, Section 7 of the Ohio Constitution, we need not address LPO's contentions

regarding whether Article V, Section 7 is justiciable. Accordingly, LPO's second

assignment of error is rendered moot.

D. Article I, Section 2 of the Ohio Constitution

{¶ 42} In its third, fourth, and fifth assignments of error, LPO contends that S.B.

No. 193 violates the guarantee of equal protection provided in Article I, Section 2 of the

Ohio Constitution. Specifically, LPO contends the trial court erred in its analysis of LPO's

claim under Ohio's constitutional guarantee of equal protection by applying federal

precedent interpreting the Equal Protection Clause in the Fourteenth Amendment to the

United States Constitution.

No. 16AP-496 20

1. Constitutional Protections

{¶ 43} Article I, Section 2 provides in pertinent part: "All political power is

inherent in the people. Government is instituted for their equal protection and benefit."

The Fourteenth Amendment, Section 1 to the United States Constitution provides in

pertinent part that "[n]o State shall * * * deny to any person within its jurisdiction the

equal protection of the laws."

{¶ 44} "An equal-protection analysis of any law centers upon the law's

classification of persons and whether the classification relates to a legitimate government

interest." Mole at ¶ 24, citing State ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115,

119-20 (1989). The federal guarantee of equal protection does not deny the government

the power to treat different classes of persons in different ways, but rather denies the

power to provide that "different treatment be accorded to persons placed by a statute into

different classes on the basis of criteria wholly unrelated to the objective of that statute."

(Quotations and citation omitted.) Johnson v. Robison, 415 U.S. 361, 374 (1974). See

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (stating that the Equal

Protection Clause is "essentially a direction that all persons similarly situated should be

treated alike").

{¶ 45} Historically, Ohio courts have construed and analyzed the Equal Protection

Clauses of the United States Constitution and the Ohio Constitution identically. Mole at

¶ 14, quoting Am. Assn. of Univ. Professors v. Cent. State Univ., 87 Ohio St.3d 55, 60

(1999) (noting that in prior analyses the court had held that " 'the federal and Ohio Equal

Protection Clauses are to be construed and analyzed identically' "). However, recently, the

Ohio Supreme Court has reaffirmed its holding that "the Ohio Constitution is a document

of independent force." Id., citing Arnold v. Cleveland, 67 Ohio St.3d 35, 42 (1993). See

State v. Robinette, 80 Ohio St.3d 234, 238 (1997) (recognizing that states may "rely on

their own constitutions to provide broader protection for individual rights, independent of

protections afforded by the United States Constitution"). Thus, the Ohio Supreme Court

has stated that interpretation of the Ohio Constitution is "not confined by the federal

courts' interpretations of similar provisions in the federal Constitution." Mole at ¶ 21.

Instead, Ohio courts "can and should borrow from well-reasoned and persuasive

precedent from other states and the federal courts," but also "may, and should, consider

No. 16AP-496 21

Ohio's conditions and traditions in interpreting our own state's constitutional guarantees

* * * particularly * * * whenever the United States Supreme Court's decisions dilute or

underenforce important individual rights and protections." Id. at ¶ 22. In accordance

with these principles, the Ohio Supreme Court has found that the guarantee of equal

protection in Article I, Section 2 of the Ohio Constitution is independent from its federal

counterpart. Id. at ¶ 23. With this in mind, we will consider precedent from the federal

courts as well as Ohio's own precedent in interpreting Article I, Section 2.

2. The Anderson-Burdick Test

{¶ 46} Courts reviewing a challenge under the First and Fourteenth Amendments

to the United States Constitution in voting and ballot access cases apply the balancing test

articulated by the United States Supreme Court in Anderson v. Celebrezze, 460 U.S. 780

(1983), and restated in Burdick v. Takushi, 504 U.S. 428 (1992), together commonly

referred to as the "Anderson-Burdick test." Under the Anderson-Burdick test, the court

must: (1) "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 (2) "identify and evaluate the precise interests put forward by the state as

justifications for the burden imposed by its rule." Anderson at 789. See State ex rel.

Watson v. Hamilton Cty. Bd. of Elections, 88 Ohio St.3d 239, 259 (2000). In evaluating

the interests identified by the state as justifications for the restriction, a court must also

"determine the legitimacy and strength of each of those interests[, and] consider the

extent to which those interests make it necessary to burden the plaintiff's rights."

Anderson at 789.

{¶ 47} The extent to which the challenged law burdens First and Fourteenth

Amendment rights determines the level of scrutiny that a court applies when reviewing

the state's justification for the burden. When the challenged law subjects those rights to a

severe burden, we apply strict scrutiny in determining whether the law is narrowly

tailored to serve a compelling state interest. Burdick at 434. See Watson at 259, citing

Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir.1988) (noting that "a

law severely burdens voting rights if it discriminates based on political content instead of

neutral factors or if there are few alternative means of access to the ballot"). However,

when a law imposes a lesser burden, we apply "a more flexible standard" in which "the

No. 16AP-496 22

state's important regulatory interests" are generally sufficient to justify " 'reasonable,

nondiscriminatory restrictions.' " Burdick at 434, quoting Anderson at 788. See Timmons

v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Obama for Am. v. Husted, 697

F.3d 423, 429 (6th Cir.2012); Watson at 259, citing State ex rel. Purdy v. Clermont Cty.

Bd. of Elections, 77 Ohio St.3d 338, 342-43 (1996) (stating that "not every statutory

restriction limiting the field of candidates need advance a compelling state interest").

Additionally, we must consider the combined effect of any burden created by the

challenged election regulations, rather than the burden of each individual law. See

Blackwell at 586 (stating that "[o]ur inquiry is not whether each law individually creates

an impermissible burden but rather whether the combined effect of the applicable

election regulations creates an unconstitutional burden"). Thus, "[r]ather than applying

any 'litmus test' that would neatly separate valid from invalid restrictions, * * * a court

must identify and evaluate the interests put forward by the State as justifications for the

burden imposed by its rule, and then make the 'hard judgment' that our adversary system

demands." Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008).

3. Applicable Test

{¶ 48} We next consider LPO's argument that the trial court erred in applying the

Anderson-Burdick test in its analysis of LPO's challenge to S.B. No. 193. LPO contends

the Anderson-Burdick test is inapplicable because its equal protection claim under Article

I, Section 2 of the Ohio Constitution was not coupled with a corresponding claim under

the First Amendment to the United States Constitution. Instead, LPO asserts that its

"pure state law claim" under Article I, Section 2 "uses Article V, [Section] 7 as the

underlying right." (LPO's Brief at 34.) On review, we conclude the Anderson-Burdick test

applies to LPO's claim under Ohio's Equal Protection Clause. In reaching this conclusion,

we are guided by both federal and Ohio caselaw.

{¶ 49} In Green Party of Tennessee v. Hargett, 791 F.3d 684 (6th Cir.2015), the

court considered whether the Anderson-Burdick test applied in the context of an equal

protection challenge to a ballot retention statute. The court explained:

While the Supreme Court has not yet applied this test to

ballot-access challenges on pure equal-protection grounds,

our cases hold that the Anderson-Burdick test serves as "a

single standard for evaluating challenges to voting

restrictions." Obama for Am. [v.] Husted, 697 F.3d 423, 430

No. 16AP-496 23

(6th Cir.2012). Further, many federal courts of appeals have

applied the Anderson-Burdick balancing test to both First

Amendment and Equal Protection Clause challenges to ballot-

access laws. See e.g., Rogers v. Corbett, 468 F.3d 188, 193-94

(3d Cir.2006) (abandoning traditional tiers of equal-

protection scrutiny and applying Anderson); Republican

Party of Ark. v. Faulkner Cty., Ark., 49 F.3d 1289, 1293 n.2

(8th Cir.1995) ("In election cases, equal protection challenges

essentially constitute a branch of the associational rights

tree."); Fulani v. Krivanek, 973 F.2d 1539, 1543 (11th

Cir.1992) (applying the Anderson balancing test).

Id. at 692. The court noted that in a prior case, it had applied the "framework of

Anderson-Burdick to a ballot-ordering equal-protection claim because 'the plaintiffs'

claim draws not only on the Equal Protection Clause, but also on the First Amendment:

essentially, the plaintiffs argue that they have been denied an equal opportunity to

exercise their rights to association and political expression.' " Id. at 692-93. The court

ultimately concluded that because the plaintiffs argued that "the ballot-retention statute

denies them an equal opportunity to exercise their rights to association and political

expression," the Anderson-Burdick test applied. Id. at 693.

{¶ 50} The Ohio Supreme Court has considered application of the Anderson-

Burdick test in a mandamus action contesting the constitutionality of a ballot access

restriction. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 142 Ohio St.3d 370,

2014-Ohio-4022.2 The plurality opinion found that the "standards articulated by the

Supreme Court in Anderson and Burdick * * * apply in civil litigation challenging the

constitutionality of ballot restrictions." Id. at ¶ 22. However, the plurality declined to

apply the Anderson-Burdick test in that case, finding that while Anderson and Burdick

"inform[ed] our analysis, * * * those cases are not writ actions and do not involve the

unique burdens that control the adjudication of original actions in this court." Id.

{¶ 51} In her opinion concurring in judgment in Brown, Chief Justice O'Connor

discussed the application of the Anderson-Burdick test in equal protection cases:

Equal protection applies not just to the initial allocation of the

franchise, but also to the manner of its exercise. Bush v. Gore,

531 U.S. 98, 104 (2000). The court made clear in Crawford

[v. Marion Cty. Elections Bd., 553 U.S. 181 (2008)] that

2 We note that the relators in Brown raised claims under both federal and state constitutional provisions,

including both the federal and Ohio's Equal Protection Clauses.

No. 16AP-496 24

equal-protection election challenges are subject to the same

Anderson/Burdick analysis as are First Amendment ballot-

access challenges. See Northeast Ohio Coalition for the

Homeless v. Husted, 696 F.3d 580, 592 (6th Cir.2012).

The state argues that rational-basis review should apply

because the classifications at issue are neutral. The state's

position misconstrues the law. Rational-basis review applies

to laws that draw nondiscriminatory classifications and

impose no burden on the right to vote. McDonald v. Bd. of

Election Commrs. of Chicago, 394 U.S. 802, 807-09 (1969).

But where a plaintiff alleges that the state has burdened

voting rights through disparate treatment, the

Anderson/Burdick balancing test is applicable. Obama for

Am. v. Husted, 697 F.3d 423, 429 (6th Cir.2012).

(Emphasis sic.) Id. at ¶ 34-35. We find Chief Justice O'Connor's concurrence to be

informative in this case. Thus, although the plurality did not apply the Anderson-Burdick

test in the context of a mandamus action, a majority of the court agreed that the

Anderson-Burdick test applied in civil cases challenging the constitutionality of ballot

restrictions, as in the present matter.

{¶ 52} Here, LPO claims it is denied equal protection of law because the provisions

of S.B. No. 193 differentiate between major and minor parties. As in Hargett, such claim

necessarily involves the rights of association and political expression. Therefore,

considering the foregoing, we find that the Anderson-Burdick test controls our analysis of

LPO's equal protection claim.

{¶ 53} LPO also contends that, because "Ohio's guarantee of equal protection is not

limited by the reach of the federal Equal Protection Clause," the trial court should have

applied an analytical framework specific to challenges made under Article I, Section 2 of

the Ohio Constitution. (LPO's Brief at 35.) LPO advances two standards for our

consideration. First, citing to State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124,

LPO contends that "[t]o the extent Article V, [Section] 7 reflects a fundamental right to a

primary, strict scrutiny is * * * required." (LPO's Brief at 36.) We have already

determined that Article V, Section 7 provides for nomination at direct primary elections or

by petition as provided by law. Therefore, we find LPO's contention to be without merit.

Furthermore, LPO advances no authority or reasons in support of its contention that we

should consider the right to a primary a fundamental right under the Ohio Constitution.

No. 16AP-496 25

In the absence of any citation to legal authority or reasons in support of such contention,

we decline to consider it. App.R. 16(A)(7). See Paranthaman v. State Auto Prop. & Cas.

Ins. Co., 10th Dist. No. 14AP-221, 2014-Ohio-4948, ¶ 48, citing Legacy Academy for

Leaders v. Mt. Calvary Pentecostal Church, 10th Dist. No. 13AP-203, 2013-Ohio-4214,

¶ 20 ("An appellate court may reject an argument on appeal when the appellant fails to

cite any legal authority in support of that argument."); Cook v. Ohio Dept. of Job &

Family Servs., 10th Dist. No. 14AP-852, 2015-Ohio-4966, ¶ 40, quoting Bond v. Canal

Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945, ¶ 16 (" 'It is the duty of the

appellant, not the appellate court, to construct the legal arguments necessary to support

the appellant's assignments of error.' ").

{¶ 54} Second, LPO contends that even if the right to a primary is not a

fundamental right, the Ohio Supreme Court's analysis in Mole should control our analysis

here.3 Specifically, LPO contends that Mole identified a more-protective test to apply in

equal protection challenges under the Ohio Constitution. However, contrary to LPO's

contentions, the court in Mole applied the rational basis standard of review common to

both federal and state equal protection challenges.4 See Mole at ¶ 26 (stating that "the

standard of review in this case is the 'rational basis' test, which requires that the statute be

upheld if it is rationally related to a legitimate governmental purpose"). The court in Mole

defined the rational basis standard of review under the Ohio Constitution as follows:

"The rational-basis test involves a two-step analysis. We must

first identify a valid state interest. Second, we must determine

whether the method or means by which the state has chosen

to advance that interest is rational." McCrone v. Bank One

Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, ¶ 9, citing

Buchman v. Wayne Trace Local School Dist. Bd. of Edn., 73

Ohio St.3d 260, 267 (1995).

"Under the rational-basis standard, a state has no obligation

to produce evidence to sustain the rationality of a statutory

3 We note appellees' argument that LPO waived this argument because it never advanced a separate test

below for equal protection analysis. LPO, however, did argue that Ohio's constitutional protections are

different from those under the federal constitution. Furthermore, Mole was released following LPO's

response to the motion for summary judgment. Therefore, for the foregoing reasons and in the interest of

justice, we consider LPO's arguments related to Mole.

4 We note that the court in Mole considered an equal protection challenge in the context of a statute

prohibiting sexual conduct between a minor and a peace officer, where the peace officer was more than two

years older than the minor. The court did not consider an equal protection analysis in the context of a ballot

access restriction, as is the case here.

No. 16AP-496 26

classification." Columbia Gas Transm. Corp. v. Levin, 117

Ohio St.3d 122, 2008-Ohio-511, ¶ 91, citing Am. Assn. of Univ.

Professors, Cent. State Univ. Chapter, 87 Ohio St.3d at 58,

60. "[S]tatutes are presumed to be constitutional and * * *

courts have a duty to liberally construe statutes in order to

save them from constitutional infirmities." Eppley [v. Tri-

Valley Local School Dist. Bd. of Edn.], 122 Ohio St.3d 56,

2009-Ohio-1970, ¶ 12, citing Desenco, Inc. v. Akron, 84 Ohio

St.3d 535, 538 (1999). The party challenging the

constitutionality of a statute "bears the burden to negate every

conceivable basis that might support the legislation."

Columbia Gas Transm. Corp. at ¶ 91, citing Lyons v.

Limbach, 40 Ohio St.3d 92, 94 (1988).

Mole at ¶ 27, quoting Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d

104, 2010-Ohio-4908, ¶ 19-20. Furthermore, the court stated:

Although the legislature has no obligation to justify or even

state its reasons for making a particular classification,

rational-basis review, whether under Ohio constitutional

principles or federal ones, does not mean toothless scrutiny.

Mathews v. Lucas, 427 U.S. 495, 510 (1976). And the rational-

basis test requires that the classification must bear a rational

relationship to a legitimate government interest or that

reasonable grounds must exist for drawing the distinction.

Holeton v. Crouse Cartage Co., 92 Ohio St.3d 115, 131 (2001).

In other words, the Equal Protection Clause requires that "in

defining a class subject to legislation, the distinctions that are

drawn have 'some relevance to the purpose for which the

classification is made.' " Rinaldi v. Yeager, 384 U.S. 305, 309

(1966), quoting Baxstrom v. Herold, 383 U.S. 107, 111 (1966).

Thus, although we respect that the General Assembly has the

power to classify, we insist that its classifications must have a

reasonable basis and may not "subject individuals to an

arbitrary exercise of power." Conley v. Shearer, 64 Ohio St.3d

284, 288 (1992). "[E]ven in the ordinary equal protection case

calling for the most deferential of standards, we insist on

knowing the relation between the classification adopted and

the object to be attained." Romer v. Evans, 517 U.S. 620, 632

(1996).

Mole at ¶ 28. Thus, we cannot agree with LPO that the court in Mole created a more

protective standard to employ when reviewing state equal protection challenges.

However, even if we were to accept that this standard applied, as addressed below in our

analysis of the Anderson-Burdick test, we find that S.B. No. 193 satisfies this standard of

review.

No. 16AP-496 27

4. Analysis

{¶ 55} Having determined that the Anderson-Burdick test applies to this matter,

we review the trial court's application of such standard. LPO contends that even if the

trial court was correct that the Anderson-Burdick test was the proper test to apply, it

erred in concluding that S.B. No. 193 did not violate Article I, Section 2.

{¶ 56} We begin by considering "the character and magnitude of the asserted

injury to the rights * * * that the plaintiff seeks to vindicate." Anderson at 789. When

determining the magnitude of the burden imposed by state election laws, "the Supreme

Court has looked to the associational rights at issue, including whether alternative means

are available to exercise those rights; the effect of the regulation on the voters, the parties

and the candidates; evidence of the real impact the restriction has on the process; and the

interests of the state relative to the scope of the election." Blackwell at 587. Furthermore,

"[r]estrictions that do not affect a political party's ability to perform its primary

functions—organizing and developing, recruiting supporters, choosing a candidate, and

voting for that candidate in a general election—have not been held to impose a severe

burden." Id. LPO contends the trial court erred in finding that S.B. No. 193 placed only a

minor burden on its rights because S.B. No. 193 "prevents new parties from registering

members" and in so doing "denies [LPO] recognized membership and the resulting

official membership lists that are provided to the established political parties." (LPO's

Brief at 44; 40.)

{¶ 57} In Ohio, party affiliation is recognized based on a voter's request for the

ballot of a political party in a partisan primary election. This is demonstrated by R.C.

3513.05 which provides that "[f]or purposes of signing or circulating a petition of

candidacy for party nomination or election, an elector is considered to be a member of a

political party if the elector voted in that party's primary election within the preceding two

calendar years, or if the elector did not vote in any other party's primary election within

the preceding two calendar years." Similarly, R.C. 3513.19(A)(3), which describes the

process for challenges by precinct election officials to the right of a person to vote at a

primary election, provides that "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

No. 16AP-496 28

in the seventh paragraph of section 3513.05 of the Revised Code." Thus, Ohio law

describes party affiliation only in terms of voting in primary elections.

{¶ 58} S.B. No. 193 does not operate to restrict party affiliation to only major party

voters. Instead, upon meeting the 3 percent vote requirement in the immediately

preceding election necessary to retain its status as a minor party, a minor party may

participate in the primary election process and thereby have affiliated voters. Thus, it is

true that Ohio's election law scheme places some burden on minor political parties by

requiring them to establish a modicum of political support before they can participate in

the primary process and thereby have voters declare affiliation with their party. However,

we find that LPO has not demonstrated how this amounts to a severe burden on its rights.

{¶ 59} As stated by the Sixth Circuit in its discussion of LPO's contentions:

[LPO] emphasizes the enormous significance to political

parties of having a membership, including a party member's

ability to "develop" the party, recruit additional members,

contribute money, and more. * * * The fundamental

importance of these activities is beyond dispute. But [LPO]

has not explained how Ohio's definition of "member of a

political party" for the limited purpose discussed above, see

Ohio Rev. Code [Section] 3513.05, restricts [LPO's] ability to

have members that perform these core political activities.

Husted 831 F.3d at 402. Furthermore, the Sixth Circuit found that LPO "has not

articulated * * * how this framework burdens its ability to recruit members, access the

general-election ballot, or engage in other modes of political affiliation and expression,"

nor has LPO "explained how this places minor parties at a disadvantage relative to major

parties." Id. We agree with the Sixth Circuit's analysis and find that S.B. No. 193 places

only a minor burden on LPO.

{¶ 60} LPO cites several cases that purportedly support its argument. In Socialist

Workers Party v. Rockefeller, 314 F.Supp. 984, 987 (S.D.N.Y.1970), aff'd, 400 U.S. 806,

the plaintiffs challenged under the federal Equal Protection Clause a New York state

election law that required the provision, free of charge, of lists of registered voters to the

county chairpersons of political parties polling at least 50,000 votes for governor in the

immediately preceding gubernatorial election. However, anyone else who wished to

obtain a copy of such lists would be required to pay a charge. The court found:

No. 16AP-496 29

It is clear that the effect of these provisions, when considered

with other sections of the Election Law, is to deny

independent or minority parties which have succeeded in

gaining a position on the ballot but which have not polled

50,000 votes for governor in the last preceding gubernatorial

election an equal opportunity to win the votes of the

electorate. The State has shown no compelling state interest

nor even a justifiable purpose for granting what, in effect, is a

significant subsidy only to those parties which have least need

therefor.

Id. at 995. Further, the court found that "[t]he State is not required to provide such lists

free of charge, but when it does so it may not provide them only for the large political

parties and deny them to those parties which can least afford to purchase them." Id. at

996.

{¶ 61} In Schulz v. Williams, 44 F.3d 48 (2d Cir.1994), a court again struck down a

New York state law that was identical in "all material, unlawful respects" to the law that

was found unconstitutional in Rockefeller. Id. at 60.

{¶ 62} In Green Party v. New York State Bd. of Elections, 389 F.3d 411 (2d

Cir.2004), the election regulation at issue provided that persons filling out a voter

registration form could enroll as a member of a qualified party. Only those voters who

enrolled in a party were permitted to vote in a primary election. If a party failed to receive

50,000 votes for its gubernatorial candidate in an election, it was required to be treated as

an independent body, not a party, in the next election. Following this change in

designation, the local boards of election were required to erase the enrollment

information of any member of a former party and change that person's status to non-

affiliated.

{¶ 63} The plaintiffs in that case alleged that these requirements deprived them of

the ability to use the enrollment list information to conduct party building activities and

deprived voters of the ability to publicly declare their political affiliation. The court found

the burden on these laws on the plaintiffs' associational rights was severe. In affirming

the grant of a preliminary injunction against enforcement of these regulations, the court

noted that "[p]arties use these enrollment lists to conduct closed primaries, but they also

use the lists for many other purposes, such as identifying new voters, processing voter

No. 16AP-496 30

information, organizing and mobilizing Party members, fundraising, and other activities

that influence the political process." Id. at 416.

{¶ 64} In Baer v. Meyer, 728 F.2d 471, 475 (10th Cir.1984), the court reviewed a

challenge to Colorado election law. Under the Colorado law, a political party was a

political organization whose gubernatorial candidate received at least 10 percent of the

total gubernatorial vote in the last such election, whereas any other group that did not

meet this requirement was a "political organization." Under this system, only the two

major parties qualified as political parties. Persons filling out a voter registration form

were permitted to designate their affiliation with a political party, if such party qualified

for political party designation under Colorado law. Otherwise, the person was required to

register as unaffiliated.

{¶ 65} The plaintiffs claimed that the law unreasonably burdened the ability of

their supporters to note their support for their parties on voter registration forms. In

concluding that the Colorado law unnecessarily and unfairly burdened the plaintiffs, the

court found that the law "prevented persons other than those affiliated with the two major

political parties from obtaining and using such information in a manner similar to that of

the major parties." Id. at 475. The court noted further that "under today's political

realities, access to minimal information about political party affiliation is the key to

successful political organization and campaigning." Id. However, the court also held that

its decision was confined to the plaintiffs in that case based on the specificities of

Colorado law.

{¶ 66} In Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir.2012),

the court rejected the plaintiffs' argument that Baer required Kansas to treat the plaintiff

as a recognized political party and track voters' affiliation with it. Specifically, the court

found that Baer was limited to the circumstances of the case and "was never intended to

establish per se criteria outside [its] state-specific context." Kobach at 1149.

{¶ 67} Having reviewed the cases cited by LPO, we disagree that they are

dispositive over the instant matter. Unlike in Rockefeller and Schulz, in which party

membership lists were provided free of charge to major parties but minor parties were

required to pay, LPO does not contend that the restrictions at issue favor only major

parties. By achieving a lower percentage of the vote than major parties, minor parties are

No. 16AP-496 31

also able to participate in the primary election process and thereby have affiliated voters

under Ohio law. Additionally, unlike in Baer and Green Party v. New York State Bd. of

Elections, Ohio provides for the affiliation of voters through the primary process, instead

of through voter registration forms. These cases do not address the limited circumstances

for which Ohio considers party affiliation. Furthermore, as noted by Kobach, Baer was

limited to the specific circumstances of that case. Therefore, the cases cited by LPO are

distinguishable from the present matter.

{¶ 68} Next, we must "identify and evaluate the precise interests put forward by

the State as justifications for the burden imposed by its rule." Anderson at 789. In

evaluating appellees' asserted interests, we must "determine the legitimacy and strength

of each of those interests, [and] consider the extent to which those interests make it

necessary to burden the plaintiff's rights." Id. The Ohio Supreme Court has listed some of

the justifications that have been recognized to uphold the constitutionality of election

provisions:

(1) having orderly, fair, and honest elections instead of chaos,

(2) maintaining the integrity of the political process by

preventing interparty raids and intraparty feuds,

(3) maintaining the integrity of various routes to the ballot,

(4) avoiding voter confusion, ballot overcrowding, or frivolous

candidacies, (5) ensuring that elections are operated equitably

and efficiently, (6) preventing candidacies that are prompted

by short-range political goals, pique, or personal quarrel, and

(7) preventing parties from fielding an independent candidate

to capture and bleed off votes in a general election that might

otherwise go to another party.

Purdy at 344.

{¶ 69} Here, appellees assert that the state has an interest in ensuring that parties

have significant support before allowing access to the ballot in order to prevent confusion.

In support of this argument, appellees cite Jenness v. Fortson, 403 U.S. 431, 434 (1971),

for the proposition that "[t]here is surely an important state interest in requiring some

preliminary showing of a significant modicum of support before printing the name of a

political organization's candidate on the ballot[—]the interest, if no other, in avoiding

confusion, deception, and even frustration of the democratic process at the general

election." This interest was also recognized by the United States Supreme Court in

Anderson: "The State has the undoubted right to require candidates to make a

No. 16AP-496 32

preliminary showing of substantial support in order to qualify for a place on the ballot,

because it is both wasteful and confusing to encumber the ballot with the names of

frivolous candidates." Anderson at 788, fn. 9.

{¶ 70} Appellees also argue that it is good public policy to not require new parties

to participate in a primary system. Appellees supported this interest with the deposition

testimony of Richard Winger, LPO's witness who had testified as an expert on ballot

access issues in ten states. Winger stated that his area of expertise was in the "history of

ballot access laws in the United States and election returns, especially with focus on how

well minor parties have done." (Winger Depo. at 9.) Winger testified in his deposition as

follows:

[Appellees' Counsel]: So it's not unusual for a state to make a

policy choice that newly qualified political parties do not get to

participate in the state run primary election; is that fair?

[Winger]: Yes.

[Appellees' Counsel]: In your mind why would a state make

that kind of a policy choice?

[Winger]: Well, I have communicated with Ohio government

officials for many years to make them aware that the nation's

leading election administration expert wrote in 1951 -- Dr.

Joseph P. Harris -- and he wrote a model direct primary

system for the National Civic League, which back then was

called the National Municipal League, and he said states

should not provide primaries to small parties. It's a waste of

money. They seldom have primary contests. And that's one

reason.

Another reason is it makes it very difficult for states to have a

reasonable qualifying deadline if it's going to insist that new

parties nominate by primary.

[Appellees' Counsel]: Any other reasons?

[Winger]: When there is a contested minor party primary,

frequently the voters in that primary are not well-informed.

* * * I just feel when minor parties nominate by convention,

the people can talk to the nominees and make an informed

choice, so just as a policy matter, I favor convention

nomination for small parties.

(Winger Depo. at 59-61.)

No. 16AP-496 33

{¶ 71} Appellees also offered statistics demonstrating a low rate of participation in

primary elections in Ohio. Specifically, appellees pointed out that "[d]uring the 2012

Primary election, [LPO] had only 337 individuals across the entire state cast a ballot for its

Senatorial candidate." (Appellees' Brief at 49.) In 2010, Ohio had 8,013,558 registered

voters, 1,814,244 of whom cast a ballot in the May primary. Of those voters who voted in

the primary, 5,476 requested a Libertarian Party ballot. Based on this statistical

information in addition to Winger's deposition testimony, we find that the state has

demonstrated a legitimate and sufficient interest in ensuring the efficient operation of

elections by limiting access to primary elections to those parties that have demonstrated a

modicum of support.

{¶ 72} Therefore, weighing the limited burden imposed by S.B. No. 193 on LPO

against the legitimate and sufficient interests asserted by appellees, we conclude that LPO

has not established beyond a reasonable doubt that S.B. No. 193 violates the guarantee of

equal protection in Article I, Section 2 of the Ohio Constitution. Burdick at 434.

Accordingly, we overrule LPO's third, fourth, and fifth assignments of error.

IV. Civ.R. 56(F) Motion for Continuance

{¶ 73} In its sixth assignment of error, LPO asserts the trial court erred by denying

its motion for a continuance pursuant to Civ.R. 56(F). In its decision denying LPO's

motion for a continuance, the trial court found LPO failed to provide a particularized

factual basis explaining why discovery was necessary.

{¶ 74} Civ.R. 56(F) provides:

Should it appear from the affidavits of a party opposing the

motion for summary judgment that the party cannot for

sufficient reasons stated present by affidavit facts essential to

justify the party's opposition, the court may refuse the

application for judgment or may order a continuance to

permit affidavits to be obtained or discovery to be had or may

make such other order as is just.

Thus, "Civ.R. 56(F) allows a party the opportunity to request additional time to obtain,

through discovery, the facts necessary to adequately oppose a motion for summary

judgment." Morantz v. Ortiz, 10th Dist. No. 07AP-597, 2008-Ohio-1046, ¶ 20.

{¶ 75} A party seeking a Civ.R. 56(F) continuance bears the burden of establishing

through reasons presented in an affidavit why the party cannot present sufficient facts to

No. 16AP-496 34

justify its opposition to a motion for summary judgment without a continuance. Fields v.

Buehrer, 10th Dist. No. 13AP-724, 2014-Ohio-1382, ¶ 12. " 'Simply requesting a

continuance in order to conduct discovery is not a sufficient explanation for why a party

cannot present affidavits in opposition to the motion for summary judgment.' " Id.,

quoting Brown v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-891, 2013-Ohio-

4207, ¶ 16, citing ABN AMRO Mtge. Group, Inc. v. Roush, 10th Dist. No. 04AP-457,

2005-Ohio-1763, ¶ 22.

{¶ 76} As the provisions of Civ.R. 56(F) are discretionary, we review the trial

court's determination for an abuse of discretion. Perpetual Fed. Sav. Bank v. TDS2 Prop.

Mgt., LLC, 10th Dist. No. 09AP-285, 2009-Ohio-6774, ¶ 11. An abuse of discretion occurs

when a court's judgment is unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 77} In support of its motion for a continuance, LPO submitted an affidavit from

Robert Bridges, the chair of the Libertarian Party of Ohio. Bridges asserted in his affidavit

that LPO could not present facts essential to their opposition to appellees' motion for

summary judgment because discovery had not yet commenced and LPO would "need to

conduct formal discovery in order to be able to adequately respond to [appellees'] many

denials of allegations contained in [LPO's complaint]" and "to be able to adequately

respond to [appellees'] factual assertions in their Motion for Summary Judgment."

(Bridges' Affidavit at 2.) In its motion for a continuance, LPO specifically contended:

"[S.B. No.] 193 lacks any legitimate justification. [LPO] believes it cannot pass the test

proposed by [appellees]. In order to prove this, discovery will likely be required." (LPO's

Mot. for Cont. at 7.) On appeal, LPO contends that it "was entitled to discover why S.B.

No. 193 was passed." (LPO's Brief at 48.) Furthermore, LPO states that it "does not and

cannot know why S.B. No. 193 was passed. It does not and cannot know S.B. No. 193's

objective or what motivated its passage. LPO believes that S.B. No. 193 was a partisan

measure designed to benefit the Republican Party at the expense of LPO, but LPO needs

discovery to explore that theory." (LPO's Brief at 49.)

{¶ 78} However, the issue in evaluating LPO's equal protection challenge is not the

actual reason for the passage of S.B. No. 193. Instead, the Anderson-Burdick test

requires a court to "identify and evaluate the precise interests put forward by the State as

No. 16AP-496 35

justifications for the burden imposed by its rule." Anderson at 789. Thus, a court need

not inquire into the actual reasons motivating passage of a law, but instead the "legitimacy

and strength" of the reasons articulated by the state as well as the "extent to which those

interests make it necessary to burden the plaintiff's rights." Id. See Crawford at 191

(examining the legitimacy of the interests identified by the state despite petitioners'

argument that the statute at issue was actually motivated by partisan concerns);

Libertarian Party of New Hampshire v. Gardner, 126 F.Supp.3d 194, 209 (D.N.H.2015).

LPO's motion for a continuance fails to address why it needed additional discovery or

time to respond to this issue. Therefore, we find that the trial court did not abuse its

discretion in denying LPO's motion for a continuance under Civ.R. 56(F). Perpetual Fed.

Sav. Bank at ¶ 14.

{¶ 79} Accordingly, we overrule LPO's sixth assignment of error.

V. Conclusion

{¶ 80} Having overruled LPO's first, third, fourth, fifth, and sixth assignments of

error and having found LPO's second assignment of error to be moot, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK, P.J., and SADLER, J., concur.