William Schmitt v. Frank LaRose

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0189p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM T. SCHMITT; CHAD THOMPSON; DEBBIE ┐

BLEWITT, │

Plaintiffs-Appellees, │

> No. 19-3196

│

v. │

│

│

FRANK LAROSE, Ohio Secretary of State, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:18-cv-00966—Edmund A. Sargus, Jr., Chief District Judge.

Argued: June 26, 2019

Decided and Filed: August 7, 2019

Before: CLAY, WHITE, and BUSH, Circuit Judges.

_________________

COUNSEL

ARGUED: Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL,

Columbus, Ohio, for Appellees. ON BRIEF: Benjamin M. Flowers, Michael J. Hendershot,

Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for

Appellant. Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio, Mark

G. Kafantaris, Columbus, Ohio, for Appellees.

WHITE, J., delivered the opinion of the court in which CLAY, J., joined, and BUSH, J.,

joined in part. BUSH, J. (pp. 15–26), delivered a separate opinion concurring in part and in the

judgment.

No. 19-3196 Schmitt, et al. v. LaRose Page 2

_________________

OPINION

_________________

HELENE N. WHITE, Circuit Judge. Plaintiffs William T. Schmitt and Chad Thompson

submitted proposed ballot initiatives to the Portage County Board of Elections that would

effectively decriminalize marijuana possession in the Ohio villages of Garrettsville and

Windham. The Board declined to certify the proposed initiatives after concluding that the

initiatives fell outside the scope of the municipalities’ legislative authority. Plaintiffs then

brought this action asserting that the statutes governing Ohio’s municipal ballot-initiative process

impose a prior restraint on their political speech, violating their rights under the First and

Fourteenth Amendments. The district court issued a permanent injunction against the Portage

County Board of Elections and Defendant Frank LaRose, in his official capacity as the Secretary

of State of Ohio, prohibiting the enforcement of the statutes in any manner that failed to provide

adequate judicial review. Defendant LaRose now appeals.

Because the Ohio statutes at issue do not violate Plaintiffs’ First or Fourteenth

Amendment rights, we REVERSE the district court’s order and VACATE the permanent

injunction.

I.

The Ohio Constitution reserves the power of legislation by initiative “to the people of

each municipality on all questions which such municipalities may now or hereafter be authorized

by law to control by legislative action.” Ohio Const. art. II, § 1f. “Because citizens of a

municipality cannot exercise [initiative] powers greater than what the [Ohio] Constitution

affords,” an initiative may only propose “legislative action,” as opposed to “administrative

action.” State ex rel. Ebersole v. Del. Cty. Bd. of Elections, 20 N.E.3d 678, 684 (Ohio 2014) (per

curiam). “The test for determining whether an action is legislative or administrative is whether

the action taken is one enacting a law, ordinance, or regulation, or executing a law, ordinance or

regulation already in existence.” Id. (citation and internal quotation marks omitted).

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Under Ohio law, “[e]lection officials serve as gatekeepers, to ensure that only those

measures that actually constitute initiatives or referenda are placed on the ballot.” State ex rel.

Walker v. Husted, 43 N.E.3d 419, 423 (Ohio 2015) (per curiam). Specifically, Ohio Revised

Code (O.R.C.) § 3501.11(K) requires county boards of elections to “[r]eview, examine, and

certify the sufficiency and validity of petitions,” and to “[e]xamine each initiative petition . . . to

determine whether the petition falls within the scope of authority to enact via initiative and

whether the petition satisfies the statutory prerequisites to place the issue on the ballot as

described [by Ohio law].” O.R.C. § 3501.38(M)(1) further provides that, “[u]pon receiving an

initiative petition,” the relevant board of elections “shall examine the petition to determine”:

Whether the petition falls within the scope of a municipal political subdivision’s

authority to enact via initiative, including, if applicable, the limitations placed by

Sections 3 and 7 of Article XVIII of the Ohio Constitution on the authority of

municipal corporations to adopt local police, sanitary, and other similar

regulations as are not in conflict with general laws, and whether the petition

satisfies the statutory prerequisites to place the issue on the ballot. The petition

shall be invalid if any portion of the petition is not within the initiative power[.]

Id. § 3501.38(M)(1)(a). If a petition “falls outside the scope of authority to enact via initiative or

does not satisfy the statutory prerequisites to place the issue on the ballot,” neither the board of

elections nor the Ohio Secretary of State may accept the initiative. Id. § 3501.39(A)(3). The

ballot-initiative statutes do not set forth the legislative-administrative distinction. However, the

Ohio Supreme Court has explained that, “[b]ecause [an initiative] on an administrative matter is

a legal nullity, boards of elections have not only the discretion but an affirmative duty to keep

such items off the ballot.” Walker, 43 N.E.3d at 423 (citation omitted). “It necessarily follows

that the boards have discretion to determine which actions are administrative and which are

legislative.” Id.

When a board of elections declines to place an initiative on the ballot on the basis that it

proposes an administrative action, the proponent has no statutory right to immediate judicial

review. Instead, the proponent must seek a writ of mandamus in Ohio state court requiring the

board of elections to put the initiative on the ballot. To show entitlement to mandamus relief, the

petitioner must prove by clear and convincing evidence: “(1) a clear legal right to the requested

relief, (2) a clear legal duty on the part of the board members to provide it, and (3) the lack of an

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adequate remedy in the ordinary course of the law.” State ex rel. Bolzenius v. Preisse,

119 N.E.3d 358, 360 (Ohio 2018) (per curiam) (citation omitted). In reviewing a decision by a

board of elections, an Ohio court may only issue the writ if the board members “engaged in fraud

or corruption, abused their discretion, or acted in clear disregard of applicable legal provisions.”

Id. Typically, the “proximity of the [next] election” satisfies the requirement that there be no

adequate remedy in the ordinary course of the law. See, e.g., State ex rel. Harris v. Rubino,

119 N.E.3d 1238, 1246 (Ohio 2018); Ebersole, 20 N.E. at 491.

In early 2018, Plaintiffs William Schmitt and Chad Thompson submitted two proposed

ballot initiatives to the Portage County Board of Elections (the Board). The initiatives

eliminated criminal penalties associated with possession of marijuana in Garrettsville and

Windham, two villages within Portage County, by abolishing criminal fines, court costs, and

consequences related to driver’s licenses. Although the proposed initiatives met Ohio’s statutory

prerequisites—each addressed only a single subject and contained the requisite number of

signatures—the Board declined to certify the petitions. In an August 21, 2018 email to Plaintiffs,

a representative of the Board explained that the initiatives were rejected because the Board

deemed them administrative, rather than legislative:

Reviewing the language in the proposals presented by the Village of Garrettsville

and the Village of Windham, the $0 fine and no license consequences are

administrative in nature. The $0 court costs is administrative in nature and is an

impingement on the judicial function by a legislature. Accordingly, as the

Garrettsville Village and Windham Village petitions deal with subject matter that

is not subject to the initiative process, the Board of Elections, in its discretion, has

chosen not to certify these issues to the ballot.

(R. 1-4, PID 35.)

Rather than petitioning for mandamus relief, Plaintiffs filed this action, bringing facial

and as-applied challenges to the Ohio ballot-initiative statutes under 42 U.S.C. § 1983 and the

First and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that the

statutes impose a prior restraint on their protected political speech, and that the ballot-initiative

process must therefore comply with the procedural safeguards set forth in Freedman v.

Maryland, 380 U.S. 51 (1965). Because the process fails to provide de novo judicial review of a

board’s decision, Plaintiffs argued, it fails to satisfy the Freedman requirements. Plaintiffs

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sought a temporary restraining order and preliminary injunction against the Portage County

Board of Elections members Craig Stephens, Patricia Nelson, Doria Daniels, and Elayne Cross,

as well as then-Ohio Secretary of State Jon Husted.

After a hearing, the district court issued a temporary restraining order directing the Ohio

Secretary of State and the Portage County Board of Elections to place both initiatives on the

ballot for the November 2018 election. Schmitt v. Husted, 341 F. Supp. 3d 784 (S.D. Ohio

2018). Applying the balancing test set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and

Burdick v. Takushi, 504 U.S. 428 (1992), the district court determined that the Plaintiffs’ right to

ballot access was impermissibly burdened by the statutory framework:

Recognizing [the state’s interest in regulating elections], the Court finds no

legitimate state interests in preventing an adequate legal remedy for petitioners

denied ballot access by a board of elections. While the availability of mandamus

relief is essentially a judicially imposed remedy when the law does not otherwise

provide one, the high burden on petitioners to prove entitlement to an

extraordinary remedy is no substitute for de novo review of the denial of a First

Amendment right.1

Schmitt, 341 F. Supp. 3d at 791. The district court later converted the temporary restraining

order to a preliminary injunction that would expire the day after the election. On election day,

the two proposed ordinances met different fates; the Windham initiative passed by a vote of 237

to 206, but the Garrettsville initiative failed 471 to 515.

After the election, the district court ordered additional briefing on Plaintiffs’ facial

challenge.2 Plaintiffs maintained that the ballot-initiative statutes constituted a prior restraint in

violation of the First Amendment “because [they] vest[] discretion in local election officials to

select initiatives for ballots without providing timely and meaningful judicial review.” (R. 32,

PID 240.) Plaintiffs alternatively argued that the statutes authorized content-based review by

1The district court did not identify the source of the asserted right to de novo judicial review.

2We note that Plaintiffs’ as-applied challenge is moot. Under Article III, we “may adjudicate only actual,

ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (citation omitted). The

district court enjoined the Secretary of State to place the Plaintiffs’ initiatives on the Portage County ballots, and the

election was conducted in November 2018. The State made clear at oral argument that it does not seek to relitigate

the district court’s decision on the as-applied challenge. Accordingly, we will not consider it here, and review the

district court’s permanent injunction only as to the facial challenge.

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local boards of elections and were therefore subject to strict scrutiny. Ohio, on the other hand,

argued that the ballot-initiative statutes were not susceptible to a First Amendment challenge

because they merely set forth the process by which legislation is made, and therefore did not

implicate any expressive interests. Ohio also argued that even if the First Amendment is

implicated, the state’s interests in regulating elections, reducing voter confusion, and simplifying

the ballot all justify the alleged infringement on Plaintiffs’ constitutionally protected interests.

The district court found that Plaintiffs were entitled to de novo review of the denial of

their ballot initiative, and issued a permanent injunction barring the Ohio Secretary of State

“from enforcing the gatekeeper function in any manner that fails to provide a constitutionally

sufficient review process to a party aggrieved by the rejection of an initiative petition.” Schmitt

v. LaRose, 2019 WL 1599040, at *2 (S.D. Ohio Apr. 15, 2019). Notably, the district court did

not analyze Plaintiffs’ claim under the First Amendment, but rather under procedural due

process. This approach had no basis in the pleadings or arguments below; the complaint did not

separately state a procedural due process claim, and the parties’ supplemental briefing did not

invoke due process. On appeal, neither party defends the district court’s analysis in its order

granting the permanent injunction. The State disputes the merits of the procedural due process

claim, and Plaintiffs insist their claim is founded only on First Amendment law. Because

Plaintiffs did not raise a procedural due process argument below, and did not address it in their

appellate briefing, we would ordinarily deem the issue waived. See Watson v. Cartee, 817 F.3d

299, 302 (6th Cir. 2016). However, we may affirm a district court’s injunction order for any

reason supported by the record. McGirr v. Rehme, 891 F.3d 603, 610 (6th Cir. 2018).

Accordingly, we will evaluate Plaintiffs’ claim under both the First Amendment and procedural

due process.

II.

“[A] party is entitled to a permanent injunction if it can establish that it suffered a

constitutional violation and will suffer ‘continuing irreparable injury’ for which there is no

adequate remedy at law.” Am. Civil Liberties Union of Ky. v. McCreary County, 607 F.3d 439,

445 (6th Cir. 2010) (quoting Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir.

2006)). When evaluating a district court’s grant of a permanent injunction, we review factual

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findings for clear error, legal conclusions de novo, and the scope of injunctive relief for abuse of

discretion. Id. The parties do not dispute the underlying facts; the only issue is whether

Plaintiffs suffered a violation of their First Amendment rights.

III.

A.

Plaintiffs urge us to view the ballot-initiative statutes as imposing a prior restraint on

political speech. “A prior restraint is any law ‘forbidding certain communications when issued

in advance of the time that such communications are to occur.’” McGlone v. Bell, 681 F.3d 718,

733 (6th Cir. 2012) (quoting Alexander v. United States, 509 U.S. 544, 550 (1993)). “Prior

restraints are presumptively invalid because of the risk of censorship associated with the vesting

of unbridled discretion in government officials and the risk of indefinitely suppressing

permissible speech when a licensing law fails to provide for the prompt issuance of a license.”

Bronco’s Entm’t, Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440, 444 (6th Cir. 2005) (citation

and internal quotation marks omitted). In Freedman v. Maryland, the Supreme Court articulated

three procedural safeguards necessary for a system of prior restraint to survive constitutional

challenge. 380 U.S. at 57–59.

First, the decision whether or not to grant a license must be made within a

specified, brief period, and the status quo must be preserved pending a final

judicial determination on the merits. Second, the licensing scheme must also

assure a prompt judicial decision, to minimize the deterrent effect of an interim

and possibly erroneous denial of a license. Third, the licensing scheme must

place the burden of instituting judicial proceedings and proving that expression is

unprotected on the licensor rather than the exhibitor.

Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377, 400 (6th Cir. 2001)

(discussing Freedman, 380 U.S. at 57–59) (internal citations and quotation marks omitted).

Plaintiffs assert that because the ballot-initiative statutes delegate authority to boards of elections

to review proposed initiatives prior to the election, the statutes amount to a prior restraint, and,

consistent with Freedman, Ohio must provide de novo judicial review of a board’s decisions.

We conclude, however, that the ballot-initiative process here is not a prior restraint. The

fundamental objection to systems of prior restraint is that they create a risk of government

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censorship of expressive activity. See, e.g., City of Lakewood v. Plain Dealer Publ’g Co., 486

U.S. 750, 757 (1988) (“At the root of this long line of precedent is the time-tested knowledge

that in the area of free expression a licensing statute placing unbridled discretion in the hands of

a government official or agency constitutes a prior restraint and may result in censorship.”)

Accordingly, prior-restraint challenges typically emerge from licensing schemes that directly

target core expressive conduct and “authorize a licensor to pass judgment on the content of

speech.” Thomas v. Chicago Park Dist., 534 U.S. 316, 322 (2002). See City of Lakewood, 486

U.S. at 750 (permit required for placement of newspaper racks on public property); McGlone,

681 F.3d at 718 (advance-notice requirement for obtaining permission to speak on campus); Deja

Vu, 274 F.3d at 377 (licensing scheme for nude dance clubs); Freedman, 380 U.S. at 61

(censorship of obscene films). Ohio’s ballot-initiative laws, in contrast, do not directly restrict

core expressive conduct; rather, the laws regulate the process by which initiative legislation is

put before the electorate, which has, at most, a second-order effect on protected speech. In other

words, the statutes enable boards of election to make “structural decisions” that “inevitably

affect[]—at least to some degree—the individual’s right to speak about political issues and to

associate with others for political ends.” John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010)

(Sotomayor, J., concurring) (quoting Anderson, 460 U.S. at 788) (internal quotation marks

omitted). Regulations like these are “a step removed from the communicative aspect” of core

political speech, and therefore do not involve the same risk of censorship inherent in prior-

restraint cases. Id. at 212–13 (citation omitted).

Moreover, although the Supreme Court has acknowledged that a person or party may

express beliefs or ideas through a ballot, it has also stated that “[b]allots serve primarily to elect

candidates, not as forums for political expression.” Timmons v. Twin Cities Area New Party, 520

U.S. 351, 363 (1997) (citing Burdick, 504 U.S. at 438). As a result, the heightened procedural

requirements imposed on systems of prior restraint under Freedman are inappropriate in the

context of ballot-initiative preclearance regulations. See also Aey v. Mahoning Cty. Bd. of

Elections, 2008 WL 554700, at *6 (N.D. Ohio Feb. 26, 2008) (“Plaintiff fails to cite any

authority in support of the proposition that prior restraint licensing analysis should be applied to

a ballot access statute.”); Comm. to Impose Term Limits on the Ohio Supreme Court & to

Preclude Special Legal Status for Members & Emps. of the Ohio Gen. Assembly v. Ohio Ballot

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Bd., 275 F. Supp. 3d 849, 861 (S.D. Ohio 2017) (holding that another aspect of Ohio’s ballot

initiative process, the “single subject rule,” is not a prior restraint).

B.

Instead, we generally evaluate First Amendment challenges to state election regulations

under the three-step Anderson-Burdick framework, in which we “weigh the character and

magnitude of the burden the State’s rule imposes on [Plaintiffs’ First Amendment] rights against

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

concerns make the burden necessary.” Timmons, 520 U.S. at 358 (citations and internal

quotation marks omitted). The first, most critical step is to consider the severity of the

restriction. Laws imposing “severe burdens on plaintiffs’ rights” are subject to strict scrutiny,

but “lesser burdens . . . trigger less exacting review, and a State’s important regulatory interests

will usually be enough to justify reasonable, nondiscriminatory restrictions.” Id. (citations and

internal quotation marks omitted). Regulations that fall in the middle “warrant a flexible

analysis that weighs the state’s interests and chosen means of pursuing them against the burden

of the restriction.” Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016)

(citation and internal quotation marks omitted). At the second step, we identify and evaluate the

state’s interests in and justifications for the regulation. Id. The third step requires that we

“assess the legitimacy and strength of those interests” and determine whether the restrictions are

constitutional. Id.

We first examine whether the burden imposed by the Ohio ballot-initiative statutes is

“severe.” Timmons, 520 U.S. at 358. “The hallmark of a severe burden is exclusion or virtual

exclusion from the ballot.” Grimes, 835 F.3d at 574. Plaintiffs claim an injury from the lack of

de novo review of the decisions of boards of elections; by requiring aggrieved petitioners to seek

a writ of mandamus, argue Plaintiffs, the Ohio ballot-initiative process unduly hampers their

right to political expression. We disagree.

We begin by making clear that Plaintiffs have never challenged the legitimacy of the

legislative-administrative distinction or the state’s right to vest in county boards of elections the

authority to apply that distinction. Instead, Plaintiffs assert, and the district court found, a right

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to de novo review of a board’s decision. However, outside the context of Freedman’s

requirements for a prior restraint, Plaintiffs have not identified the source of such a right.

But even accepting Plaintiffs’ argument that the First Amendment requires de novo

review of a board’s decision, the Ohio case law suggests that petitioners receive essentially that.

The Ohio Supreme Court’s evaluation of the decisions of boards of elections shows no particular

deference to the boards’ decisions. And, although the standard for showing entitlement to

mandamus is recited as “fraud or corruption, abuse of discretion, or clear disregard of the law,”

Plaintiffs have identified no case in which the Ohio Supreme Court questioned the legal

determination of a board of elections but nevertheless deferred to its discretion. Rather, the cases

show that notwithstanding the stated standard of review, the court considers the proposed

initiative and makes an independent reasoned determination whether it is within the Ohio

Constitution’s grant of legislative authority. See State ex rel. Langhenry v. Britt, 87 N.E.3d 1216

(Ohio 2017) (proposed referendum financing bonds for refurbishment of arena is legislative

because it “represents the adoption of a new policy and a new undertaking”); State ex rel.

Sensible Norwood v. Hamilton Cty. Bd. of Elections, 69 N.E.3d 696, 179–80 (Ohio 2016)

(initiative making marijuana possession a fifth-degree felony is not within legislative authority);

Ebersole, 20 N.E.3d at 684 (initiative approving land development is administrative because it

“complied with the preexisting requirements for the Downtown Business District . . . and did not

require any zoning changes”).

Indeed, at least one justice of the Ohio Supreme Court has questioned whether the

standard of review for ballot-initiative challenges is actually closer to de novo. State ex rel.

Khumprakob v. Mahoning Cty. Bd. of Elections, 109 N.E.3d 1184, 1192 (Ohio 2018) (Fisher, J.,

concurring in judgment) (explaining that although the court purports to follow an abuse-of-

discretion standard, “we have also stated that we need accord no deference to a board of

elections’ interpretation of state election law” (quotation omitted)). If there is any actual

distance between the de novo standard of review Plaintiffs demand and the mandamus review

provided by the Ohio Supreme Court, it is hardly significant enough to result in “virtual

exclusion” from the ballot. We also note that because Ohio Supreme Court rules provide for

expedited briefing and decision in election cases, aggrieved citizens who challenge an adverse

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decision are able to seek timely redress. The ballot-initiative statutes are thus not subject to strict

scrutiny based on a severe burden.3 Timmons, 520 U.S. at 358.

Having determined that the restriction imposed by the ballot-initiative process is not

severe and does not trigger strict scrutiny, we also conclude that the burden is not so minimal as

to warrant rational-basis review. A burden is minimal when it “in no way” limits access to the

ballot. Grimes, 835 F.3d at 577. Here, however, boards of elections wield the discretionary

authority to decline to certify initiatives, and the burden thus falls on the aggrieved proponent to

obtain mandamus relief in order to vindicate his or her interest. It is reasonable to conclude that

the cost of obtaining legal counsel and seeking a writ of mandamus disincentivizes some ballot

proponents from seeking to overturn the board’s decision, thereby limiting ballot access. As a

result, the burden imposed by the Ohio ballot-initiative process is somewhere between minimal

and severe, and we engage in a flexible analysis in which we weigh the “burden of the

restriction” against the “state’s interests and chosen means of pursuing them.” Id. at 574

(citations omitted).

At the second step of Anderson-Burdick we consider the State’s justifications for the

restrictions. Id. The Supreme Court has explained that, in structuring elections, “States may,

and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce

3Plaintiffs also attempt to invoke strict scrutiny on the ground that the ballot-initiative statutes are content-

based restrictions. But Plaintiffs have made clear in the district court and on appeal that they “do not challenge

Ohio’s ability to limit the subject matter of its initiatives.” (R. 19, PID 136.) Instead, the focus of Plaintiffs’

challenge is the asserted inadequacy of the review afforded to the boards’ discretionary judgments. This aspect of

the ballot-initiative statutes is plainly content-neutral. Moreover, the mere fact that the legislative-administrative

distinction is directed to the content of an initiative does not necessarily make it content based such that it triggers

strict scrutiny. Cf. Committee to Impose Term Limits on the Ohio Supreme Court & to Preclude Special Legal

Status for Members & Emps. of the Ohio Gen. Assembly v. Ohio Ballot Bd., 885 F.3d 443, 447 (6th Cir. 2018). The

rule applies without regard to the subject matter or viewpoint of the initiative.

Further, the main case Plaintiffs rely upon in discussing whether the ballot-initiative statutes are content-

based is largely inapposite. Plaintiffs rely primarily on the Supreme Court’s recent decision in Minnesota Voters

Alliance v. Mansky, 138 S. Ct. 1876 (2018). In that case, the Court held that Minnesota’s ban on wearing political

apparel at polling places on election day violated the First Amendment. Id. at 1892. However, the Court was not

concerned with whether the ban was content-based. Rather, the Court was concerned with “[t]he discretion election

judges exercise[d] in enforcing the ban” given the lack of “objective workable standards” for what constituted

political apparel. Id. at 1891. Mansky thus does not explain whether Plaintiffs’ challenge targets a content-based

restriction. And in any event, Mansky involved a restriction on core political speech, in which “the whole point of

the exercise [was] to prohibit the expression of political views.” Id. at 1891. As noted earlier, this case does not

involve core expressive conduct; “the whole point of the exercise” is preventing the overcrowding of ballots. Id.

Mansky’s salience is questionable in this context.

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election- and campaign-related disorder.” Timmons, 520 U.S. at 358; see also John Doe No. 1,

561 U.S. at 186 (“The State’s interest in preserving the integrity of the electoral process is

undoubtedly important.”); Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 191 (1999)

(“States allowing ballot initiatives have considerable leeway to protect the integrity and

reliability of the initiative process.”) We have previously stated that states have a strong interest

in “ensuring that its elections are run fairly and honestly,” as well as in “maintaining the integrity

of its initiative process.” Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 297

(6th Cir. 1993). Further, a state may legitimately “avoid[] overcrowded ballots” and “protect the

integrity of its political processes from frivolous or fraudulent candidacies.” Jolivette v. Husted,

694 F.3d 760, 769 (6th Cir. 2012) (quoting Bullock v. Carter, 405 U.S. 135, 145 (1972)). Here,

Ohio’s interest is in “ensur[ing] that only ballot-eligible initiatives go to the voters” because

“[k]eeping unauthorized issues off the ballot reduces the odds that an initiative is later held

invalid on the ground that the voters exceeded their authority to enact it.” (Appellant Br. at 49.)

Ohio also contends it has an interest in maintaining voter confidence in the electoral process.

Plaintiffs do not dispute these interests, and we find that they are legitimate and substantial.

At the third step of Anderson-Burdick we assess whether the State’s restrictions are

constitutionally valid given the strength of its proffered interests. Again, Plaintiffs do not contest

that Ohio’s interests in avoiding ballot overcrowding and safeguarding the integrity of the

initiative process justify the administrative-legislative distinction and do not argue that the board-

of-elections certification process is otherwise unconstitutional. Rather, they challenge the

adequacy of the judicial review of such decisions. As explained above, however, because the

Ohio Supreme Court recognizes a proponent’s right to seek mandamus review of a board of

elections’ decision not to place an initiative on the ballot and the court performs what is

essentially a de novo review of the legal issue whether an initiative is within the municipality’s

initiative power, the absence of a statutory de novo appeal of right does not impose a significant

or unjustified burden on initiative proponents’ First Amendment rights. Although the State’s

chosen method for screening ballot initiatives may not be the least restrictive means available, it

is not unreasonable given the significance of the interests it has in regulating elections.

Plaintiffs’ First Amendment challenge thus fails.

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IV.

We next evaluate whether the ballot-initiative statutes violate procedural due process.

The Fourteenth Amendment provides, in part, that no state shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV § 1. To establish a

claim of procedural due process, a plaintiff must show that (1) he or she had a life, liberty, or

property interest protected by the Due Process Clause; (2) he or she was deprived of this

protected interest; and (3) the state did not afford adequate procedural rights. Daily Servs., LLC

v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014) (citation omitted).

As noted, Plaintiffs did not raise a procedural due process claim below. Nevertheless, the

district court concluded that Plaintiffs had a protected “right to participate in Ohio’s initiative

process with . . . adequate review in the courts of Ohio.” (R. 37, PID 291.) According to the

district court, this liberty interest derives from state law; the district court reasoned that because

Ohio established a ballot-initiative process, it is constitutionally bound not to “restrict the process

in any manner” that would violate due process. (Id. at PID 290 (citing Taxpayers United,

994 F.2d at 295).)

We need not decide whether Ohio has created a constitutionally protected liberty interest,

however, because it is clear that the State affords aggrieved ballot-initiative proponents adequate

procedural rights through the availability of mandamus relief in the state courts. This court has

previously found that state mandamus is a satisfactory post-deprivation remedy for the purposes

of procedural due process. See Kahles v. City of Cincinnati, 704 F. App’x 501, 507 (6th Cir.

2017) (“[P]laintiffs were able to seek a writ of mandamus in the state-court system to challenge

any alleged abuse of discretion on the part of the City’s medical director. . . . The plaintiffs thus

received the process to which they were due.”); Martinez v. City of Cleveland, 700 F. App’x 521,

522–23 (6th Cir. 2017) (“Because Martinez had [state mandamus relief] available to him, no

due-process violation occurred.”). And although the district court held that only de novo review

will suffice, due process does not mandate any particular standard of review. See Miller v.

Francis, 269 F.3d 609, 621 (6th Cir. 2001) (“Miller does not cite, nor are we aware of, any

Supreme Court precedent vesting him with a procedural due process right to a particular standard

of appellate review in the state courts.”).

No. 19-3196 Schmitt, et al. v. LaRose Page 14

Plaintiffs therefore cannot state a procedural due process claim, and the district court

erred in concluding otherwise.

V.

For the reasons stated above, we REVERSE the district court’s order and VACATE the

permanent injunction.

No. 19-3196 Schmitt, et al. v. LaRose Page 15

_____________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT

_____________________________________________________

JOHN K. BUSH, Circuit Judge, concurring in part and concurring in the judgment.

I agree with the Majority that the Ohio legislative authority statutes1 do not violate either the

First Amendment as incorporated by the Fourteenth Amendment or the Due Process Clause of

the Fourteenth Amendment. I join Parts I, II, and IV of the majority opinion, but, as explained

below, my reasoning differs from the remainder of the Majority’s analysis. It is arguable that

Ohio’s legislative authority statutes do not regulate “speech” within the meaning of the First

Amendment at all because they concern only election mechanics. But even assuming that state-

referendum laws regulate First Amendment speech, regulations of the nature at issue here do not

warrant heightened scrutiny under that constitutional provision. States are free to fashion rules

of election mechanics that are content-neutral and do not discriminate against any particular

point of view, including rules that affect the types of matters that may be subject to popular

initiatives, without running afoul of the First Amendment.

A.

To understand why the First Amendment either is not implicated at all or, if it is, imposes

no heightened scrutiny here, we should bear in mind what the Ohio legislative authority statutes

do and do not regulate. Cf. John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J.,

concurring) (“In assessing the countervailing interests at stake in this case, we must be mindful

of the character of initiatives and referenda. These mechanisms of direct democracy are not

compelled by the Federal Constitution. It is instead up to the people of each State, acting in their

sovereign capacity, to decide whether and how to permit legislation by popular action.”). First,

these statutes do not regulate a citizen’s ability to advocate for a proposed initiative or regulate

any speech surrounding the issue on the ballot. Second, these statutes only address proposed

1I refer to the Ohio statutes at issue, O.R.C. §§ 3501.11(K)(1)–(2), 3501.38(M)(1)(a), 3501.39(A), by using

the Ohio Secretary of State’s nomenclature: “Ohio’s legislative authority statutes.” Also, given the function these

statutes serve to ensure that a proposed initiative “falls within the scope of authority to enact via initiative,” Ohio

Revised Code § 3501.11(K)(2), I sometimes refer to these statutes as the “gatekeeper” provisions.

No. 19-3196 Schmitt, et al. v. LaRose Page 16

initiatives. They do not regulate an individual’s ability to appear on the ballot as a candidate for

any position (as would a ballot-access provision).

As such, I would characterize these gatekeeper provisions as laws regulating election

mechanics. That is, these statutes ensure that certain eligibility requirements are met before an

initiative is formally certified for the ballot and voted on by the people. The eligibility regulation

at issue in this case is a requirement that an initiative pertain to only “legislative action,” not

“administrative action.” State ex rel. Ebersole v. Del. Cty. Bd. of Elections, 20 N.E.3d 678, 684

(Ohio 2014) (per curiam). This requirement, in turn, implements separation-of-powers principles

under Ohio state constitutional law by ensuring that laws passed through popular initiatives are

only legislative, as opposed to administrative, in nature. See Ohio Const. art. II, § 1f (“The

initiative and referendum powers are hereby reserved to the people of each municipality on all

questions which such municipalities may now or hereafter be authorized by law to control by

legislative action . . . .”); State ex rel. Walker v. Husted, 43 N.E.3d 419, 423 (Ohio 2015) (per

curiam) (“Election officials serve as gatekeepers, to ensure that only those measures that actually

constitute initiatives or referenda are placed on the ballot. For example, the right of referendum

does not exist with respect to a measure approved by a city counsel acting in an administrative,

rather than legislative, capacity.” (citation omitted)).

B.

The Supreme Court has not addressed the precise scope of the First Amendment interests,

if any, that are implicated by laws that regulate only the mechanics of the initiative process. The

closest Supreme Court precedent is Meyer v. Grant, 486 U.S. 414 (1988), which found a First

Amendment violation when a Colorado statute criminalized the compensation of petition

circulators for gathering citizens’ signatures for ballot initiatives. Id. at 415–16. The Colorado

law limited “the number of voices who will convey” the message and also the initiative

supporters’ “ability to make the matter the focus of statewide discussion.” Id. at 422–23. But

Meyer is not completely on all fours with the facts in our case. The Colorado statute in Meyer

targeted Coloradans’ ability to advocate for initiative petitions, which amounted to regulation of

political speech. The Ohio legislative authority statutes affect no such regulation.

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Furthermore, the Court’s precedents in Anderson v. Celebrezze, 460 U.S. 780 (1983), and

Burdick v. Takushi, 504 U.S. 428 (1992), though concerning election regulation, similarly do not

address the key question raised in this case: is the First Amendment impinged upon by statutes

regulating the election mechanics concerning initiative petitions? In those cases, the Court

reviewed challenges to State laws that sought to limit a candidate’s ability to appear on the ballot

or otherwise limited a voter’s ability to “write-in” candidates. See Anderson, 460 U.S. at 793–

95, 805–06 (holding that Ohio statute requiring independent candidates to file statements of

candidacy by March to appear on November ballot was unconstitutional); Burdick, 504 U.S. at

441–42 (holding that Hawaii’s prohibition on write-in voting did not violate the challengers’

freedoms of expression and association). Indeed, this circuit has generally limited the

application of Anderson and Burdick to freedom-of-association challenges to ballot access

laws—i.e., laws that burden candidates from appearing on the ballot. See Libertarian Party of

Ohio v. Blackwell, 462 F.3d 579, 586 (6th Cir. 2006) (“The first step under the Anderson/Burdick

framework is to determine whether this burden on the associational rights of political parties is

‘severe.’” (footnote omitted)); see also Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 572–

73, 574 (6th Cir. 2016); Green Party of Tenn. v. Hargetti, 767 F.3d 533, 545 (6th Cir. 2014); cf.

Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329, 334 (6th Cir. 2016).

Here, by contrast, Appellees are not asserting that the Ohio legislative authority statutes

violate their freedom-of-association rights or their right to vote. The Ohio laws at issue concern

the regulation of the initiative petition—i.e., the process through which the people act in their

sovereign capacity to legislate directly. Thus, we should look to authorities that address the

State’s ability to regulate its initiative process and ensure that all requirements are met before an

initiative is certified for the ballot. This brings us to the most relevant case from our circuit,

Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir. 1993).

In Taxpayers United, this court reviewed a Michigan statute requiring that each initiative

petition have a certain number of valid signatures from registered voters before the initiative

could appear on the ballot. 994 F.2d at 293. The challengers of that statute argued that “they

had been denied their right to vote and their rights to assemble and to engage in political speech,”

after the Michigan Board reviewed the challengers’ initiative petition and concluded that the

No. 19-3196 Schmitt, et al. v. LaRose Page 18

challengers failed to obtain the requisite number of signatures. Id. at 294. This court held that

the challengers’ First Amendment free speech rights and political association rights were not

“impinged” by the statute. Id. at 297. The Taxpayers United court reasoned that “[b]ecause the

right to initiate legislation is a wholly state-created right, we believe that the state may

constitutionally place nondiscriminatory, content-neutral limitations on the plaintiff’s ability to

initiate legislation.” Id. at 297.

Our court noted that, “although the Constitution does not require a state to create an

initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use

that violate the federal Constitution.” Id. at 295; see also Meyer, 486 U.S. at 424. But, because

Michigan’s regulation did not regulate the challengers’ speech on the basis of content, we

determined that “it is constitutionally permissible for Michigan to condition the use of its

initiative procedure on compliance with content-neutral, nondiscriminatory regulations that

are . . . reasonably related to the purpose of administering an honest and fair initiative

procedure.” Taxpayers United, 994 F.2d at 297. In short, the Michigan statute did not trigger

heightened scrutiny under the First Amendment and survived rational-basis review. See id.

In reaching this conclusion, the Taxpayers United court made a critical observation about

the Michigan statute—that it did “not restrict the means that the plaintiffs can use to advocate

their proposal.” Id. Had Michigan’s statute been directed toward the challengers’ ability to

advocate for their initiative, the statute would have failed strict-scrutiny review under the

Supreme Court’s precedent in Meyer. See Taxpayers United, 994 F.2d at 295. As this court

explained, “the principle stated in Meyer is that a state that adopts an initiative procedure violates

the federal Constitution if it unduly restricts the First Amendment rights of its citizens who

support the initiative.” Id. But because the Michigan statute at issue in Taxpayers United dealt

“with methods used to validate and invalidate signatures of voters to an initiative petition,” that

law was not like the statute in Meyer, which “dealt with a limitation on communication with

voters.” Taxpayers United, 994 F.2d at 295. For its reasoning, this court did not address

whether the Michigan statute regulated First Amendment speech. See id. at 293–94, 296–97.

Instead, the court assumed that it did but nonetheless upheld the law under rational-basis review.

See id. at 296–97. Thus, under Taxpayers United, statutes that, in a content-neutral and

No. 19-3196 Schmitt, et al. v. LaRose Page 19

non-discriminatory fashion, implement and ensure compliance with the eligibility requirements

for citizen initiative petitions are subject, at most, to only rational-basis review under the First

Amendment. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 192 (1999)

(citing Taxpayers United favorably for its holding).

Consistent with Taxpayers United, this court in Committee to Impose Term Limits on the

Ohio Supreme Court & to Preclude Special Legal Status for Members & Employees of the Ohio

General Assembly v. Ohio Ballot Board, 885 F.3d 443 (6th Cir. 2018) (hereinafter Ohio Ballot

Board) upheld the constitutionality of Ohio’s single-subject rule. Ohio Ballot Board, 885 F.3d at

446. Under that rule, an initiative petition may only contain “one proposed law or constitutional

amendment.” Id. at 445. The challengers asserted that the provision violated the First

Amendment because it was a content-based speech restriction. Id. at 446–47. Relying on Reed

v. Town of Gilbert, 135 S. Ct. 2218 (2015), the Ohio Ballot Board court concluded that “Ohio’s

single-subject rule is not content based,” because it “applies to all initiative petitions, no matter

the topic discussed or idea or message expressed.” Ohio Ballot Board, 885 F.3d at 447. Once

again, just as in Taxpayers United, this court did not address whether an election-mechanics law

regulated First Amendment speech. See Ohio Ballot Board, 885 F.3d at 445–46. Instead, the

court assumed the First Amendment was implicated and upheld the single-subject requirement

applying rational-basis review.

C.

Taxpayers United and Ohio Ballot Board align with decisions of the majority of other

circuits that have addressed statutes relating to the regulation of election mechanics. These

circuits have similarly concluded that non-discriminatory referendum regulations are, at most,

subject to rational-basis review. See Molinari v. Bloomberg, 564 F.3d 587 (2d Cir. 2009)

(holding referendum statutes are only subject to rational-basis review); Initiative & Referendum

Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc) (same); Marijuana Policy Project v.

United States, 304 F.3d 82 (D.C. Cir. 2002) (same); Dobrovolny v. Moore, 126 F.3d 1111 (8th

Cir. 1997) (same). But see Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012) (holding referendum

regulations imposing subject-matter restrictions are subject to heightened scrutiny); Wirzburger

v. Galvin, 412 F.3d 271 (1st Cir. 2005) (same).

No. 19-3196 Schmitt, et al. v. LaRose Page 20

In Walker, the Tenth Circuit, sitting en banc, addressed a fundamental question that

Taxpayers United and Ohio Ballot Board did not answer: whether election-mechanics laws ever

regulate “speech” under the First Amendment. The Tenth Circuit indicated that the First

Amendment may not be triggered by citizen-initiative regulations and, if it is, such regulations

are subject to only lower scrutiny. In Walker, the election-mechanics law at issue was a Utah

constitutional provision that imposed a requirement that any “legislation initiated to allow, limit,

or prohibit the taking of wildlife . . . shall be adopted upon approval of two-thirds of those

voting.” 450 F.3d at 1086 (quoting Utah Const. art. VI, § 1(2)(a)(ii)). The Tenth Circuit held

that the constitutional provision did not infringe upon the challengers’ First Amendment rights

because they were not implicated by laws of this nature. Id. at 1085. In reviewing whether the

Utah provision was subject to heightened scrutiny, the Walker court defined a key distinction

(just as this court did in Taxpayers United) between the types of election laws that were

constitutionally permissible and those that were not: “The distinction is between laws that

regulate or restrict the communicative conduct of persons advocating a position in a referendum,

which warrant strict scrutiny, and laws that determine the process by which legislation is

enacted, which do not.” Walker, 450 F.3d at 1099–1100.

The Walker court reasoned that the First Amendment is not a vehicle for challenging

regulations of the process that must be followed for legislation or popular initiatives to be

enacted or adopted into law:

Under the Plaintiffs’ theory, every structural feature of government that

makes some political outcomes less likely than others—and thereby discourages

some speakers from engaging in protected speech—violates the First Amendment.

Constitutions and rules of procedure routinely make legislation, and thus

advocacy, on certain subjects more difficult by requiring a supermajority vote to

enact bills on certain subjects. Those who propose, for example, to impeach an

official, override a veto, expel a member of the legislature, or ratify a treaty might

have to convince two-thirds of the members of one or both houses to vote

accordingly. State constitutions attach supermajority requirements to a

bewildering array of specific categories of legislation, [collecting specific

examples]. These provisions presumably have the “inevitable effect” of reducing

the total “quantum of speech” by discouraging advocates of nuclear power plants,

general banking laws, or unauthorized state flags from bothering to seek

legislation or initiatives embodying their views. Yet if it violates the First

Amendment to remove certain issues from the vicissitudes of ordinary democratic

No. 19-3196 Schmitt, et al. v. LaRose Page 21

politics, constitutions themselves are unconstitutional. Indeed, the Plaintiffs’

theory would have the ironic effect of rendering the relief they seek in this

litigation unconstitutional under the First Amendment: if it is unconstitutional to

amend the Utah constitution to require a supermajority to approve a wildlife

initiative, those who favor such an amendment would be less likely to engage in

advocacy in its favor.

No doubt the Plaintiffs are sincere in their many sworn statements that

they find the heightened threshold for wildlife initiatives dispiriting, and feel

“marginalized” or “silenced” in the wake of Proposition 5. Their constitutional

claim begins, however, from a basic misunderstanding. The First Amendment

ensures that all points of view may be heard; it does not ensure that all points of

view are equally likely to prevail.

450 F.3d at 1100–01. Based on this reasoning, the Tenth Circuit upheld the election-mechanics

provision at issue even though, on its face, the law concerned subject-matter limitations relating

to the referendum process. See id. at 1103. The Tenth Circuit indicated that the election-

mechanics provision did not fall within the purview of the First Amendment because it did not

regulate speech within the meaning of that constitutional guarantee. See id. at 1101, 1103; see

also Molinari, 564 F.3d at 600–01 (“[P]laintiffs here claim that their First Amendment rights are

chilled because New York State law puts referenda and City Council legislation on equal

footing, permitting the latter to supersede the former (and vice versa). As such, like in [Walker,]

there is no restriction on plaintiffs’ speech.”). The Tenth Circuit held that rational-basis review

was the highest level of constitutional scrutiny that was warranted and upheld the Utah

constitutional provision on this basis. See Walker, 450 F.3d at 1104–05.

D.

In reaching its holding, the Tenth Circuit rejected the reasoning of the First Circuit in

Wirzburger, which recognized that an individual’s First Amendment rights could be

impermissibly burdened by a statute placing subject-matter limitations on popular initiatives.

See 412 F.3d at 278–79. In Wirzburger, the First Circuit reviewed a challenge to provisions of

the Massachusetts constitution that prohibited initiatives on two subjects: those calling for

“public financial support for private primary or secondary schools,” and those “relate[d] to

religion, religious practices or religious institutions.” Id. at 274–75 (quoting Mass. Const. art.

18; id. art. 48, pt. 2, § 2). The Wirzburger court declined to apply strict scrutiny because the

No. 19-3196 Schmitt, et al. v. LaRose Page 22

constitutional provision governing the initiative process was not “a direct restriction on the

communicative aspect of the political process.” Id. at 277. The First Circuit observed that even

though the subject-matter exclusions “aim at preventing the act of generating laws and

constitutional amendments about certain subjects by initiative,” the speech restriction caused by

the state constitution “is no more than an unintended side-effect.” Id. The Wirzburger court,

however, declined to apply the lowest level of scrutiny, instead applying intermediate scrutiny

pursuant to United States v. O’Brien, 391 U.S. 367 (1968), because the regulation bore on the

initiative process, which “manifest[ed] elements of protected expression.” See Wirzburger,

412 F.3d at 278.

Applying the O’Brien test,2 the First Circuit concluded that Massachusetts had “a

substantial interest in maintaining the proper balance between promoting free exercise and

preventing state establishment of religion” and “in restricting the means by which these

fundamental rights can be changed.” Id. at 279. The First Circuit concluded that because “the

exclusions aim at preventing certain uses of the initiative process, not at stemming expression,”

the law did not concern the suppression of expression or speech. Id. Because the court could

“see no other way in which Massachusetts could achieve its interest in safeguarding these

fundamental freedoms in its Constitution from popular initiative,” it found that the “restriction on

speech is no more than is essential” and thus did not violate the First Amendment. Id.

In Walker, however, the Tenth Circuit took issue with the First Circuit’s application of

heightened scrutiny in Wirzburger. First, the Tenth Circuit suggested that the First Amendment

was not even implicated by referendum regulations of the type at issue. See Walker, 450 F.3d at

1104. Additionally, the Walker court noted that it would be wholly inappropriate to strike down

an election-mechanics law under intermediate or strict scrutiny because it “would be an

especially egregious interference with the authority of ‘We the People’ to adopt constitutional

provisions governing the legislative or initiative process.” See id. at 1103. As the Tenth Circuit

2Under O’Brien, a regulation must satisfy the following four elements to be constitutional: (1) the

regulation “is within the constitutional power of Government;” (2) “it furthers an important or governmental

interest;” (3) “the governmental interest is unrelated to the suppression of free expression;” and (4) “the incidental

restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

391 U.S. at 377.

No. 19-3196 Schmitt, et al. v. LaRose Page 23

reasoned, heightened scrutiny would be problematic, as it could imagine few tasks “less

appropriate for federal courts than deciding which state constitutional limitations serve

‘important governmental interests’ and which do not. . . . Under our form of government, the

people and their representatives, and not judges, assume the task of determining which subjects

should be insulated from democratic change.” Id.

E.

I find the Walker court’s reasoning to be persuasive and another way to explain this

court’s holdings in Taxpayers United and Ohio Ballot Board. To be sure, our prior precedent did

not involve an election-mechanics regulation that concerned subject-matter limitations for

popular initiatives as in Walker. But, as Walker indicates, the First Amendment simply is not

implicated by structural requirements for the adoption of such laws, and this conclusion aligns

with our circuit’s prior holdings.

I share the Tenth Circuit’s concern that we, as judges, are ill-suited to determine whether

or not a state advances an important governmental interest by limiting the subject-matter of its

initiative petitions. Here, the people of Ohio and their elected representatives, through their state

constitution and statutes, have determined that only “legislative actions” are within the municipal

power and thus, that the subject of any initiative must be a legislative, rather than an

administrative, matter. We are in no position to second-guess this rule. Just as the Tenth Circuit

feared to tread into whether Utah’s subject-matter limitations relating to the wildlife initiatives

served an important governmental interest, so too are we ill-suited to address the importance of

the state separation-of-powers principles implemented by Ohio through its legislative authority

requirement for popular referenda.

Furthermore, this case is similar to Walker, Taxpayers United, and Ohio Ballot Board in

that there is no contention here that the election-mechanics regulation at issue discriminates

against any particular point of view. In Walker, the law imposed a two-thirds approval of voters

as to any law that pertained to the taking of wildlife, regardless of whether it was for or against

such practice. See 450 F.3d at 1087. Similarly, in Taxpayers United, there was no

discrimination against any viewpoint by the requirement of a requisite number of registered voter

No. 19-3196 Schmitt, et al. v. LaRose Page 24

signatures for an initiative to be placed on the ballot. See 994 F.2d at 297. And in Ohio Ballot

Board, the single-subject rule applied to all initiatives, regardless of their subject matter.

885 F.3d at 447–48. Likewise, here, the legislative authority statutes apply equally to all

referenda, without regard to their subject matter.3

Thus, based on the logic of Walker, I question whether that the election-mechanics

statutes at issue are even within the purview of the First Amendment. However, even assuming

that they are, these statutes are constitutional under the rational-basis review applied in

Taxpayers United and Ohio Ballot Board. Accordingly, there is no merit to Appellees’ assertion

that the legislative authority statutes are an unconstitutional prior restraint, given that Ohio either

is not restraining any constitutionally protected speech or that, if it is, the restraint is nonetheless

valid under rational-basis scrutiny. As I explain below, these provisions survive rational-basis

review because they are content-neutral and non-discriminatory.

F.

Consistent with this court’s holding in Taxpayers United, the Ohio statutes satisfy

rational-basis review because they are “nondiscriminatory, content-neutral limitations on the

[Appellees’] ability to initiate legislation.” 994 F.2d at 297. Indeed, consonant with Supreme

Court precedent, the Ohio statutes at issue can be justified without reference to the content of the

regulation. In Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015), the Court explained that

“Government regulation of speech is content based if a law applies to particular speech because

of the topic discussed or the idea or message expressed.” “Statutes that are not content based on

3In Angle, the Ninth Circuit also applied heightened scrutiny to a Nevada election-mechanics law, but one

that, unlike the Utah statute in Walker, did not pertain to a subject-matter restriction. See Angle, 673 F.3d at 1126–

27, 1133–34. The Ninth Circuit reviewed whether Nevada’s constitutional requirement that initiative proponents

“must obtain signatures from a number of registered votes equal to 10 percent of the votes cast in the previous

general election” in each congressional district to have the initiative placed on the ballot violated the First

Amendment. 673 F.3d at 1126. The Ninth Circuit rejected the plaintiffs’ assertion that the rule imposed a “severe

burden on communication between circulators and voters,” id. at 1133, but nonetheless applied intermediate scrutiny

to the Nevada law because it had the potential, though minimal, to “reduc[e] the total quantum of speech on a public

issue,” id. (alteration in original) (quoting Meyer, 486 U.S. at 423). The Ninth Circuit’s application of heightened

scrutiny to election-mechanics laws is inconsistent with the Sixth Circuit precedent discussed above. The Ninth

Circuit’s logic also is troubling because, as the Ohio Secretary of State notes, it would call into question “all subject

matter restrictions on what Congress or state legislatures may legislate about” because “such restrictions make it

harder for those subjects to become ‘the focus of’ national or ‘statewide discussion.’” Appellant Br. at 38–39

(quoting Angle, 673 F.3d at 1126).

No. 19-3196 Schmitt, et al. v. LaRose Page 25

their face may still be considered content based if they ‘cannot be justified without reference to

the content of the regulated speech’ or ‘were adopted by the government because of

disagreement with the message the speech conveys.’” Ohio Ballot Board, 885 F.3d at 447

(quoting Reed, 135 S. Ct. at 2227).

The Ohio legislative authority statutes easily clear this threshold because, by their very

terms, they apply to each petition submitted for review. See, e.g., O.R.C. § 3501.38(M)(1)(a)

(“Upon receiving an initiative petition . . . concerning a ballot issue that is to be submitted to the

electors of a county or municipal political subdivision, the board of elections shall examine the

petition to determine: Whether the petition falls within the scope of a municipal political

subdivision’s authority to enact via initiative . . . .”). Moreover, the laws can be justified without

reference to the content of the initiative petition, because, as explained by the Secretary, “[t]he

challenged portion of the [laws] channel ballot-access decisions to county boards and then

mandamus proceedings that ensure that the State can quickly and efficiently promote its

legitimate interests in screening out ineligible administrative actions and simplifying the ballot.”

Reply Br. at 24.

It is true that the contents of the proposed initiative dictate its fate in one limited sense.

See O.R.C. §§ 3501.38(M)(1)(a), 3501.39. Under the statutes, if the reviewer, either the Board

of Elections or the Ohio Secretary of State, finds that the proposed initiative is outside the

municipal power or is an administrative matter, then the proposed initiative will not be certified.

By contrast, proposed initiatives that are within the municipal power and are legislative,

assuming all other conditions are met, are certified to appear on the ballot. But despite the

different treatment that proposed initiatives receive depending upon their legislative or

administrative nature, Ohio’s legislative authority statutes are nonetheless content-neutral for

purposes of the First Amendment because (1) their application does not depend on “the topic

discussed or the idea or message expressed,” (2) they can “be justified without reference to the

content of the regulated speech,” and (3) they were not “adopted . . . because of disagreement

with the message . . . convey[ed].” Reed, 135 S. Ct. at 2227; Ohio Ballot Board, 885 F.3d at

447. To put the point more concretely, based on the initiative that gave rise to this case, the Ohio

legislative authority statutes do not regulate on the topic of marijuana possession in particular or

No. 19-3196 Schmitt, et al. v. LaRose Page 26

operate to restrict any viewpoint, idea, or message on that topic. Rather, they simply regulate the

manner in which any topic concerning any viewpoint, idea, or message may be presented to the

voters for approval via the initiative process. Such regulation, though it involves analysis of the

text of the initiative, is nonetheless content-neutral under the First Amendment. See Taxpayers

United, 994 F.2d at 295 (holding Michigan Board’s review of the contents of the petition

signatures to determine whether they were valid and from registered voters was content-neutral

and did not violate the First Amendment).

In light of this conclusion, whether the Ohio legislative authority statutes survive review

turns on the neutral application of the statutes by the Board and the Secretary—that is, are they

applied in a discriminatory or non-discriminatory manner? Had Appellees presented evidence

that the Board of Elections treated their initiatives differently because of their position regarding

marijuana advocacy, then their claims might have had some merit. But, in the absence of

evidence that the legislative authority statutes were applied in a discriminatory manner, it follows

that the Board applied the gatekeeper provisions in a content-neutral and non-discriminatory way

and therefore in compliance with the First Amendment. Although the Board may make mistakes

in reviewing petitions and determine that otherwise certifiable initiatives are administrative (as

the Secretary acknowledged happened here, Oral Arg. at 38:02–07), that does not mean that

Ohio’s legislative statutes are discriminatory as to any point of view. Instead, it is a steadfast

reminder that humans make errors and likely is the reason why Ohio provides petitioners the

right to seek a writ of mandamus in the Ohio Supreme Court. And thus, Ohio’s legislative

authority statutes are nondiscriminatory.

Because “it is constitutionally permissible for [Ohio] to condition the use of its initiative

procedure on compliance with content-neutral, nondiscriminatory regulations that are, as here,

reasonably related to the purpose of administering an honest and fair procedure,” the Appellees’

“First Amendment claim is without merit.” Taxpayers United, 994 F.2d at 297. For these

reasons, therefore, I concur in the judgment of the Majority that the Ohio legislative authority

statutes do not violate the First Amendment.