Greg Jolivette v. Jon Husted

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0336p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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GREG JOLIVETTE,

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Plaintiff-Appellant,

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No. 12-3998

v.

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JON HUSTED; FRANK CLOUD; TOM ELLIS;

Defendants-Appellees. --

JUDITH SHELTON; BRUCE CARTER,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:12-cv-00603—George C. Smith, District Judge.

Argued: September 11, 2012

Decided and Filed: September 14, 2012

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Donald J. McTigue, McTIGUE & McGUINNIS LLC, Columbus, Ohio, for

Appellant. Aaron D. Epstein, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellee ON BRIEF: Donald J. McTigue, J. Corey Colombo,

Mark A. McGinnis, McTIGUE & McGUINNIS LLC, Columbus, Ohio, for Appellant.

Aaron D. Epstein, Michael J. Schuler, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellee.

MOORE, J., delivered the opinion of the court, in which McKEAGUE, J., joined.

MERRITT, J. (pp. 17–19), delivered a separate dissenting opinion.

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No. 12-3998 Jolivette v. Husted et al. Page 2

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Greg Jolivette

(“Jolivette”) appeals the district court’s denial of his request for declaratory relief and

for a preliminary and a permanent injunction that would allow him to run as an

independent candidate for the Office of State Representative for Ohio’s 51st House

District in the upcoming November 6, 2012 general election. Jolivette seeks to prevent

members of the Butler County, Ohio Board of Elections and Ohio’s Secretary of State,

Jon Husted (together, “Defendants”), from blocking his access to the ballot as an

independent candidate. Jolivette claims that the defendants’ denial of his petition for

candidacy as an independent violated his rights to free speech and association guaranteed

by the First and Fourteenth Amendments. Jolivette also challenges differences in Ohio

election statutes regulating independent versus partisan candidates, arguing that these

portions of Ohio’s statutory election framework violate the Equal Protection Clause.

Jolivette brings his constitutional claims to federal court pursuant to 42 U.S.C. § 1983.

The United States District Court for the Southern District of Ohio denied preliminary

and permanent injunctive relief, as well as declaratory relief, finding no merit to any of

Jolivette’s constitutional claims. See Jolivette v. Husted, No. 2:12–cv–603, — F. Supp.

2d —, 2012 WL 3527733, at *16 (S.D. Ohio Aug. 15, 2012). For the reasons discussed

below, we AFFIRM the district court’s judgment.

I. BACKGROUND

Plaintiff Greg Jolivette desires to appear on the ballot at the upcoming November

6, 2012 general election as an independent candidate for the Office of State

Representative for Ohio’s 51st House District in Butler County, Ohio. From

approximately 1997 to 2010, prior to his current attempted independent candidacy,

Jolivette served as a Republican State Legislator and a Republican Butler County

Commissioner. R. 11-3 (Transcript of Bd. of Elections Protest Hearing, May 30, 2012

at 22:8–11) (Page ID #143). Jolivette was also elected to, and served on, the Butler

No. 12-3998 Jolivette v. Husted et al. Page 3

County Republican Party’s Central Committee from 2008 until mid-December 2011,

when he resigned from the position. Id. at 22:12–16 (Page ID #143).

On November 29, 2011, Jolivette filed a Declaration of Candidacy to run as a

Republican for the Office of State Representative for Ohio’s 51st House District. R. 18-

4 (Joint Ex. 13 at 1–9) (Page ID #337–45). Ohio law requires that candidates seeking

to run in a party primary accompany their Declaration of Candidacy with at least fifty

signatures from members of the same political party. OHIO REV. CODE § 3513.05. As

part of his Declaration of Candidacy, Jolivette submitted four part-petitions containing

seventy-two signatures. However, Jolivette failed to sign one of the part-petitions

containing seventeen signatures, and another six signatures on the other signed petitions

were of “questionable validity.” Jolivette, 2012 WL 3527733, at *2. The unsigned part-

petition and the possible invalid signatures meant that Jolivette was possibly ineligible

to run as a Republican. See OHIO REV. CODE § 3513.05.

On December 14, 2011, the Board of Elections met and considered Jolivette’s

candidacy as a Republican. Jolivette, who was present at this meeting, argued in favor

of certifying his petition to run in the Republican primary. See Jolivette, 2012 WL

3527733, at *2. At the meeting, the Board decided to give Jolivette extra time to gather

additional evidence and arguments to support his position. Id. At this time, the district

court found that Jolivette “still intended to run as a Republican, but was contemplating

his option to run as an independent.” Id.; see R. 11-3 (Transcript of Bd. of Elections

Protest Hearing, May 30, 2012 at 26:6–12) (Page ID #147). The following day,

December 15, 2011, Jolivette met with Husted regarding his candidacy and the possible

invalidity of his Republican petition. The district court concluded that after this meeting,

approval of Jolivette’s candidacy as a Republican by the Board of Elections “remained

uncertain.” Jolivette, 2012 WL 3527733, at *2. On December 19, 2011, Jolivette

withdrew his candidacy as a Republican and resigned from the Butler County

Republican Party Central Committee. R. 2 (Compl. ¶¶ 8–9) (Page ID #4). Jolivette

alleges that at this time, he “left the Republican Party in good faith” and “no longer

wish[ed] to be affiliated with the Republican Party.” Id. ¶ 10 (Page ID #4). Jolivette

No. 12-3998 Jolivette v. Husted et al. Page 4

testified that his relationship with the Republican Party had been deteriorating since

2008, and that the party refused to support him after “tough” budgetary votes he made

as County Commissioner. See R. 27 (August 6, 2012 Evidentiary Hearing Transcript at

10:18–11:6) (Page ID #504–05); Appellant Br. at 13–14. Jolivette subsequently lost the

Republican endorsement for County Commissioner in 2010 and was defeated in the

Republican primary that year. Appellant Br. at 13–14.

On February 22, 2012, Jolivette prepared a nominating petition and Statement

of Candidacy to run as an independent candidate for the same office as his Republican

petition, State Representative for Ohio’s 51st House District. Jolivette, 2012 WL

3527733, at *3. The petition and Statement of Candidacy were filed on March 5, 2012.

Id. Jolivette did not vote in any party primary the following day, March 6, 2012. As of

the time Jolivette submitted his petition for candidacy as an independent, Jolivette had

on file with the Board of Elections a “Designation of Treasurer” which indicated that he

was affiliated with the Republican Party. Id. This Designation of Treasurer had been

filed with the Board of Elections on July 15, 2008, but was not amended until May 4,

2012, when Jolivette filed an amended form identifying himself as an independent.

R. 11-1 (Joint Evid. Ex. I) (Page ID #82–86). Additionally, as of March 5, 2011, when

the independent petition was filed, Jolivette’s campaign committee maintained a website

which indicated he would “be a vote for strong Republican leadership.” R. 11-3

(Transcript of Bd. of Elections Protest Hearing, May 30, 2012 at 29:10–24) (Page ID

#150).

On April 19, 2012, a protest was filed by three members of the Republican Party

challenging Jolivette’s candidacy as an independent on the basis that he was not

unaffiliated from the Republican Party. See R. 2 (Compl. ¶ 14) (Page ID #5); OHIO REV.

CODE § 3513.262. On May 16, 2012, the Butler County Board of Elections approved

Jolivette’s petition, certified him to be on the ballot, and scheduled the protest hearing.

Jolivette, 2012 WL 3527733, at *4. The protest hearing, held on May 30, 2012, resulted

in a tie vote with respect to whether to grant or deny the protest, with the two

Democratic board members voting to deny the protest, and the two Republican board

No. 12-3998 Jolivette v. Husted et al. Page 5

members voting to grant the protest. The matter was then referred to Husted. Husted

voted on June 26, 2012 to grant the protest, thereby breaking the tie, concluding that

Jolivette is “not unaffiliated and cannot run as an independent candidate for this

election.” R. 11 (Joint Evid. Ex. 1, at 2) (Page ID #50). To support his decision, Husted

cited Jolivette’s past voting history in Republican Party primary elections, his prior

service as a Republican legislator and Republican County Commissioner from 1997 to

2010, and his filing of a petition to run for the same office in the same cycle as a

Republican. Id.

On July 9, 2012, Jolivette filed this action in the U.S. District Court for the

Southern District of Ohio seeking declaratory and injunctive relief, on the grounds that

Defendants’ refusal to permit him to appear on the ballot as an independent candidate

violated his constitutional rights. R. 2 (Compl. ¶¶ 31, 33, 37) (Page ID #9–10). Jolivette

argues that the decision to block his access to the ballot as an independent candidate

because he was affiliated with a political party violated his First, Fifth, and Fourteenth

Amendment rights, and that the Ohio election framework governing disaffiliation from

a political party violates the Equal Protection Clause. The district court found that

neither preliminary nor permanent injunctive relief was warranted, based on a finding

that none of Jolivette’s constitutional claims had merit, and as a result dismissed the

case. Jolivette, 2012 WL 3527733, at *13, 16. Jolivette timely appealed the order

denying relief to this Court. R. 26 (Notice of Appeal at 1) (Page ID #493).

Because Jolivette’s complaint raises constitutional claims, the district court had

jurisdiction under 28 U.S.C. § 1331. See Morrison v. Colley, 467 F.3d 503, 505–06

(6th Cir. 2006). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

II. STANDARD OF REVIEW

We review the district court’s denial of preliminary and permanent injunctive

relief for abuse of discretion. See ACLU of Ohio, Inc. v. Taft, 385 F.3d 641, 645

(6th Cir. 2004). Accordingly, we review “the district court’s legal conclusions de novo

and its factual findings for clear error.” Taubman Co. v. Webfeats, 319 F.3d 770, 774

(6th Cir. 2003) (quoting Owner-Operator Indep. Drivers Ass’n v. Bissell, 210 F.3d 595,

No. 12-3998 Jolivette v. Husted et al. Page 6

597 (6th Cir. 2000)); see Worldwide Basketball and Sport Tours, Inc. v. NCAA, 388 F.3d

955, 958 (6th Cir. 2004). We also review for abuse of discretion the district judge’s

decision not to grant declaratory relief. See Taft, 385 F.3d at 645 (“Although the district

court did not specifically rule on the [plaintiff’s] request for declaratory relief, instead

dismissing the case in toto after ruling on the [plaintiff’s] motion for preliminary

injunctive relief, we review a ‘district court’s exercise of discretion under the

Declaratory Judgment Act, 28 U.S.C. § 2201(a), for abuse of discretion.’” (quoting

Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 967 (6th Cir. 2000))).

In considering whether preliminary injunctive relief should be granted, a court

considers four factors: “(1) whether the movant has a strong likelihood of success on

the merits; (2) whether the movant would suffer irreparable injury without the

injunction; (3) whether issuance of the injunction would cause substantial harm to

others; and (4) whether the public interest would be served by issuance of the

injunction.” Chabad of S. Ohio v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004)

(quoting Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110

F.3d 318, 322 (6th Cir. 1997)). “Although no one factor is controlling, a finding that

there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l

Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000). “In general, ‘[t]he standard

for a preliminary injunction is essentially the same as for a permanent injunction with

the exception that [for a preliminary injunction] the plaintiff must show a likelihood of

success on the merits rather than actual success.’” ACLU of Ky. v. McCreary Cnty.,

607 F.3d 439, 445 (6th Cir. 2010) (quoting Amoco Prod. Co. v. Vill. of Gambell,

480 U.S. 531, 546 n.12 (1987)). The district court found that none of Jolivette’s

constitutional claims had merit, and that when balanced with the other factors, injunctive

relief was not warranted. Jolivette, 2012 WL 3527733, at *16. We consider each of

Jolivette’s arguments on appeal in turn.

III. FIRST AMENDMENT CLAIM

Jolivette first argues that Defendants’ determination that he is ineligible to run

as an independent candidate because he is affiliated with a political party violates his

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First Amendment rights to free speech and association. See Appellant Br. at 8. The

focus of our inquiry is thus on this constitutional question.1 The grant of the protest

against Jolivette’s independent candidacy by the Board of Elections and Husted was

based on Ohio’s requirement that independent candidates claim, no later than four p.m.

on the day before the primary elections, that they are not affiliated with a political party.

See OHIO REV. CODE §§ 3501.01(I); 3513.257. Ohio law defines an “Independent

Candidate” as “any candidate who claims not to be affiliated with a political party, and

whose name has been certified . . . through the filing of a statement of candidacy and

nominating petition, as prescribed in section 3513.257 of the Revised Code.” Id.

§ 3501.01(I). In turn, § 3513.257 requires independent candidates to file a statement of

candidacy and nominating petition no later than four p.m. the day before the day of the

primary elections. See id. § 3513.257.2 Jolivette’s First Amendment argument is

essentially an attack on the application of these ballot-access restrictions to his petition

for candidacy.

The Supreme Court’s approach to constitutional challenges to election

regulations requires balancing a state’s “broad power” to regulate elections against the

“fundamental rights” of candidates and voters, including the right to “freedom of

political association.” See Tashjian v. Republican Party of Conn., 479 U.S. 208, 217

(1986); see also Lawrence v. Blackwell, 430 F.3d 368, 372–73 (6th Cir. 2005)

(explaining that in evaluating election regulations, “[c]ourts must undertake the difficult

task of considering and weighing the asserted injury to fundamental constitutional rights,

the precise interest of the state in the regulation at issue, and the extent to which it is

necessary to burden important rights in order to achieve any important state interests.”).

On the one hand, the Court has recognized that in structuring the election process,

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

1

Jolivette’s complaint does not include a state-law claim that the disqualification of his

independent candidacy violated Ohio law. See R. 2 (Compl.) (Page ID #2–12)

2

Although the requirement for an independent candidate to “claim[] not to be affiliated with a

political party” is contained in the text of § 3501.01(I), it is carried through to § 3513.257 by reference to

an “independent candidate.” We will continue to use the convention of other courts of referring to

§ 3513.257 as requiring a claim of non-affiliation.

No. 12-3998 Jolivette v. Husted et al. Page 8

ballots to reduce election- and campaign-related disorder.” Timmons v. Twin Cities Area

New Party, 520 U.S. 351, 358 (1997); see Storer v. Brown, 415 U.S. 724, 730 (1974)

(“[A]s a practical matter, there must be a substantial regulation of elections if they are

to be fair and honest and if some sort of order, rather than chaos, is to accompany the

democratic process.”). On the other hand, states’ broad authority to regulate elections

must be carefully balanced against the “fundamental” right to associate freely for the

advancement of political ideas. See Anderson v. Celebrezze, 460 U.S. 780, 787–88

(1983); Williams v. Rhodes, 393 U.S. 23, 30 (1968) (holding that the right to freedom

of political association “rank[s] among our most precious freedoms”).

The level of scrutiny applied to a state election regulation depends on the burden

imposed by the regulation on the constitutional rights of voters and candidates. See

Burdick v. Takushi, 504 U.S. 428, 434 (1992). In evaluating an election regulation

against a constitutional challenge, “we weigh the ‘character and magnitude’ of the

burden the State’s rule imposes” on citizens’ constitutional 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 (quoting Burdick,

504 U.S. at 434). If the regulation imposes a severe burden on plaintiffs’ rights, the

regulation must be “narrowly tailored and advance a compelling state interest.” Id.

“Lesser burdens, however, trigger less exacting review, and a State’s important

regulatory interests will usually be enough to justify reasonable, nondiscriminatory

restrictions.” Id. (internal quotation marks omitted).

In Morrison v. Colley, we upheld against a First Amendment challenge the

application of § 3513.257 to disqualify a would-be independent candidate from running

in the general election because he was found to be affiliated with a political party.

467 F.3d at 508. We held that § 3513.257 requires a claim of independence to be made

“in good faith.” Id. at 509. In Morrison, the plaintiff, Morrison, filed a petition to run

as an independent candidate for office as United States Representative in Ohio’s

Fifteenth Congressional District. Id. at 504. Subsequent to filing his independent

petition, Morrison voted in a Republican primary, and he also appeared on the

No. 12-3998 Jolivette v. Husted et al. Page 9

Republican primary ballot for his county’s Republican Party Central Committee and the

Ohio Republican Party State Central Committee. Id. at 505. On these facts, we found

that Morrison’s claim of independence was not made in good faith, because

simultaneous to his claim of independence, Morrison “evinced a desire to be affiliated

with the Republican Party” by “registering Republican, running as a Republican in the

primary, and voting in the Republican primary.” Id. at 510. We further found that

§ 3513.257 did not violate First or Fourteenth Amendment freedoms under the facts of

that case. Id. at 508. We explained that the district court “concluded correctly that Ohio

Rev. Code § 3513.257 does not impose a severe restriction” on candidates or voters, and

that it is “merely a reasonable, nondiscriminatory regulation to require would-be

independent candidates to claim . . . that they are free of affiliation with any political

party.” Id. at 507–08.

In this case, there are objective facts in the record indicating that Jolivette was

affiliated with Republican Party at the time he filed his petition as an independent. As

of the time his independent petition was submitted, Jolivette had on file a Designation

of Treasurer indicating that he was affiliated with the Republican Party. This

Designation of Treasurer was not amended until May 5, 2012. R. 11-1 (Joint Evid. Ex.

I) (Page ID #82–86). In addition, at the time Jolivette’s independent petition was filed,

his campaign committee maintained a website which stated that Jolivette would be a

“Vote for Strong Republican Leadership.” R. 11 (Joint Evid. Ex. F) (Page ID #68).

Further, after he filed as an independent, Jolivette continued to maintain a Facebook

page that indicated he was affiliated with various Republican organizations, including

the Ohio-Republican Party and Positively Republican!, among others. R. 11 (Joint Evid.

Ex. G) (Page ID #70). These objective factors are “inconsistent with [Jolivette’s] claim

that he is unaffiliated with a political party.” State ex rel. Livingston v. Miami Cnty. Bd.

of Elections, 963 N.E.2d 187, 192 (Ohio Ct. App. 2011). Although Jolivette argues that

he has not actively participated in partisan activities or promoted himself as a partisan

candidate since his disaffiliation, there is evidence in the record indicating that Jolivette

did not completely undo his affiliation with the Republican Party in advance of filing his

petition to run as an independent.

No. 12-3998 Jolivette v. Husted et al. Page 10

Jolivette tries to distinguish the facts of his case from the facts in Morrison,

mainly by arguing that the Board of Elections in this case—unlike in

Morrison—considered conduct from before he filed as an independent. See Appellant

Br. at 8. In his tie-breaking vote, Husted considered Jolivette’s voting history in recent

past Republican primaries, his holding of office as a Republican Legislator and

Republican County Commissioner until 2010, and his pursuit of access to the Republican

primary ballot as a candidate for the 51st House District in the 2012 election cycle up

until it was clear that his Republican petition did not have sufficient valid signatures.

R. 11 (Joint Evid. Ex. 1) (Page ID #50). As a result, Husted agreed with the Board of

Elections’ members who found Jolivette’s claim of non-affiliation to be “disingenuous,”

see R. 11-2 (Joint Evid. Ex. 5) (Page ID #105), and found that “Jolivette is not

unaffiliated and cannot run as an independent candidate for this election.” R. 11 (Joint

Evid. Ex. 1) (Page ID #50). Relying in part on a candidate’s conduct prior to his or her

filing as an independent candidate is permissible under Ohio law. See Livingston,

963 N.E.2d at 192; Ohio Sec’y of State, Advisory Op. No. 2007-05, at 4 (June 4, 2007)

(allowing the Board to consider: “past voting history, information submitted on required

election-related filings, political advertisements, participation as a political party officer

or member, or holding a public office for which the office holder was nominated through

a political party’s primary election and elected on a partisan ticket”). Cf. OHIO REV.

CODE § 3513.19(A)(3) (stating that a voter will be considered affiliated with a political

party if he or she voted in that party’s primary in the immediately preceding two

calendar years, for purposes of determining eligibility to vote in a party primary

election). Although no Ohio case to date has upheld the disqualification of an

independent candidate “solely on the basis of prefiling conduct or activity,” such

conduct may be considered in the Board of Elections’ overall determination. Livingston,

963 N.E.2d at 192 (rejecting the disqualification of an independent candidate when the

evidence of lack of good faith in disaffiliating was based solely on pre-filing conduct).

No. 12-3998 Jolivette v. Husted et al. Page 11

Jolivette argues that such consideration of an independent candidate’s pre-filing

conduct is impermissible as a matter of constitutional law.3 See Appellant Br. at 8

(stating that the issue in the case is “[w]hether a Board of Election’s determination to

deny an independent candidate’s access to the ballot based on evidence of party

affiliation that occurred prior to the candidate’s filing of an independent candidate

petition . . . violates the candidate’s First Amendment speech and association rights”);

id. at 20–23. This argument is unavailing. A ballot access restriction is not per se

unconstitutional solely because it permits a decisionmaker to look backward in time

from the filing of a petition for independent candidacy to determine if a candidate

disaffiliated; indeed, the Supreme Court upheld a backward-looking election restriction

requiring a per se one-year waiting period for candidates seeking to run as independents

who disaffiliated from a political party. See Storer, 415 U.S. at 736. The Court found

that the per se waiting period helps avoid “independent candidacies prompted by short-

range political goals, pique, or personal quarrel.” Id. at 735. The state’s interests in “the

stability of its political system” and preventing “splintered parties and unrestrained

factionalism” outweighed the burden placed on would-be independent candidates who

disaffiliate from a political party. Id. at 736; see also Van Susteren v. Jones, 331 F.3d

1024, 1026 (9th Cir. 2003) (upholding California’s one-year waiting period disaffiliation

statute).

In Morrison, we concluded that the application of § 3513.257’s requirement that

“independent candidates [] claim on the day before the primary that they are not

affiliated with any political party” was constitutionally permissible. Morrison, 467 F.3d

at 508. First, our holding that § 3513.257 imposed only a small burden on would-be

candidates renders inapposite Jolivette’s argument that strict scrutiny applies. See

Appellant Br. at 18–19. Rather, because the requirement that independent candidates

make a good-faith claim of non-affiliation on the day before the primary imposes only

3

To the extent that Jolivette’s First Amendment argument is really a claim that the good-faith

requirement lacks objective standards and is thus void for vagueness, we do not address his argument here.

As discussed infra, Jolivette did not make a void-for-vagueness argument at the district court, and thus it

is waived on appeal.

No. 12-3998 Jolivette v. Husted et al. Page 12

a small burden, the state “need only show that this requirement advances an important

state interest.” Morrison, 467 F.3d at 508.

Section 3513.257 does not inhibit Jolivette’s ability freely to write, speak,

organize campaigns, or promote any set of political beliefs that he wishes. See Jenness

v. Fortson, 403 U.S. 431, 438 (1971). Instead, § 3513.257 is a means of restricting the

candidates who may appear on the ballot, and does so by requiring that independent

candidates make a good-faith claim that they are free of affiliation with a political party

at the time they submit their petitions for independent candidacy. Such a restriction on

ballot access “is expressive of a general state policy aimed at maintaining the integrity

of the various routes to the ballot.” Storer, 415 U.S. at 733. The Supreme Court has

found that the state may legitimately “avoid[] overcrowded ballots” and “protect the

integrity of its political processes from frivolous or fraudulent candidacies.” Bullock v.

Carter, 405 U.S. 134, 145 (1972). Further, the state has an interest in regulating ballot

access in order to avoid “confusion, deception, and even frustration of the democratic

process at the general election.” Schrader v. Blackwell, 241 F.3d 783, 789 (6th Cir.

2001) (quoting Jenness, 403 U.S. at 442). Ohio’s law, though not structured as a per se

waiting period, serves these same interests as applied to Jolivette. Cf. OHIO REV. CODE

§ 3513.257 (noting that the purposes of requiring an independent candidate to claim he

or she is not affiliated with any political party on the day before the primary elections

serves the state’s interests in “prevent[ing] splintered parties and unrestrained

factionalism,” “avoid[ing] political fragmentation,” “maintain[ing] the integrity of the

ballot,” and “ensuring fair and honest elections”). By requiring independent candidates

to make a good-faith claim of non-affiliation by the day before the primary, Ohio seeks

to maintain the integrity of its different routes to the ballot—the partisan primary and the

independent petition.

Under the circumstances of this case, we conclude that the disqualification of an

independent candidate based on “a finding that the candidate’s claim to have disaffiliated

with a political party was not made in good faith because the candidate is not actually

No. 12-3998 Jolivette v. Husted et al. Page 13

unaffiliated,” Livingston, 963 N.E.2d at 192, is constitutionally permissible.4 We thus

hold that the application of § 3513.257 to disqualify Jolivette as an independent

candidate did not impose a constitutionally impermissible burden on his right to

associate freely for the advancement of his political beliefs.

IV. VAGUENESS CLAIM

Next, Jolivette argues that the Ohio election framework is unconstitutionally

vague, because it contains “no standards or criteria to evaluate a candidate’s claim of

independence.” See Appellant Br. at 21; id. at 26–30. Jolivette cannot succeed on this

argument because he did not explicitly raise it at the district court. See R. 3 (Mot. for

Prelim. Inj. at 7–13) (Page ID #20–26) (failing to make an argument relating to the void-

for-vagueness doctrine). As a rule, we will not review issues if they are raised for the

first time on appeal. See In re Hood, 319 F.3d 756, 760 (6th Cir. 2003) (“‘It is well-

settled that this court will not consider arguments raised for the first time on appeal

unless our failure to consider the issue will result in a plain miscarriage of justice.’”

(quoting Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir.

2002))). Jolivette’s efforts to re-describe his argument about the arbitrariness of the

determination that his claim of independence was not made in good faith into a

vagueness challenge is a stretch from what was actually argued at the district court. See

Appellant Reply Br. at 15–18. The district court opinion did not consider or rule on a

vagueness challenge. See Jolivette, 2012 WL 3527733. Because Jolivette did not

develop the vagueness claim at the district court, we will not consider the argument here.

See Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (“[T]he failure

to present an issue to the district court forfeits the right to have the argument addressed

on appeal.”).

4

Because we need only decide the constitutional question to dispose of this case, we do not

address what standard of evidence applies under Ohio law to sustain a protest for lack of disaffiliation

under § 3513.257, and whether that standard was met in this case. See Livingston, 963 N.E.2d at 192

(holding that a clear and convincing standard of evidence applies). Jolivette cannot succeed on his federal

constitutional claims because he has not shown that the application of Ohio law’s “good faith” standard

for disaffiliation to his case violated his constitutionally protected rights as a candidate.

No. 12-3998 Jolivette v. Husted et al. Page 14

V. EQUAL PROTECTION CLAIMS

Jolivette’s third and fourth arguments challenge portions of the Ohio election

statutory framework under the Equal Protection Clause of the Fourteenth Amendment.

Appellant Br. at 30, 38; see R. 2 (Compl. ¶¶ 33, 37) (Page ID #9–10). Jolivette’s first

contention is that the Ohio election statutes are unconstitutional because they leave “to

the discretion of a county board of elections whether to allow an individual affiliated

with a political party to become unaffiliated, i.e. independent,” but permit candidates to

switch from one party to another “freely.” Appellant Br. at 31. Section 3513.191 of the

Ohio Revised Code allows candidates previously affiliated with a political party to run

in a different party’s primary under certain defined circumstances. OHIO REV. CODE

§ 3513.191. In contrast, the eligibility of candidates seeking to disaffiliate from a

political party and run as independents is governed by the “good faith” standard as

explained in Morrison. 467 F.3d at 508–09. Second, Jolivette takes issue with the code

provisions relating to who may bring protests against the nominating petitions of partisan

versus independent candidates. See Appellant Br. at 38. In Ohio, although “any

qualified elector eligible to vote for the candidate whose nominating petition he objects

to” may file a written protest against the nominating petition of an independent

candidate, see OHIO REV. CODE § 3513.262, only a “qualified elector who is a member

of the same political party as the candidate and who is eligible to vote in the primary

election for the candidate” may protest the candidacy of a person seeking a party

nomination. Id. § 3513.05. Jolivette argues that these differences in the statutes

governing independent versus partisan candidates constitute unjustified “unequal

treatment.” Appellant Br. at 39.

We examine Jolivette’s equal-protection challenges to the Ohio statutory

framework using the same balancing framework as his First Amendment challenge. See

Burdick, 504 U.S. at 434; Anderson, 460 U.S. at 789. The Equal Protection Clause of

the Fourteenth Amendment states that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. This is

“‘essentially a direction that all persons similarly situated should be treated alike.’”

No. 12-3998 Jolivette v. Husted et al. Page 15

Bower v. Vill. of Mount Sterling, 44 F. App’x 670, 676 (6th Cir. 2002) (quoting City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). A successful equal-

protection claim requires that “the government treated the plaintiff disparately as

compared to similarly situated persons . . . .” Ctr. for Bio-Ethical Reform, Inc. v.

Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (internal quotation marks omitted).

Jolivette’s equal-protection claims do not get off the ground because independent

candidates and partisan candidates are not similarly situated for purposes of election

regulations. See Jenness v. Fortson, 403 U.S. 431, 440–41 (1971). In Jenness v.

Fortson, the Supreme Court upheld Georgia’s election regulations that required non-

partisan candidates to collect signatures from 5% of voters before their names were

printed on the ballot, but had no such requirement for partisan candidates who won their

party primary. Id. at 434, 440–41. The Court held that the state permissibly recognized

two alternate paths to the ballot–the party primary and non-partisan candidate

petitions–“neither of which [could] be assumed to be inherently more burdensome than

the other.” Jenness, 403 U.S. at 441. Because the partisan candidate must win the

majority of votes in a party primary, whereas the independent candidate must gather

signatures from 5% of the total electorate, the two pathways to the ballot were different,

and thus partisan candidates were not similarly situated to independent candidates. Id.

at 440–42. Other federal appellate courts have come to the same conclusion, that for

purposes of an Equal Protection Clause challenge to an election regulatory framework,

partisan candidates and independent candidates are not similarly situated. See, e.g.,

Curry v. Buescher, 394 F. App’x 438, 447 (10th Cir. 2010); Van Susteren, 331 F.3d at

1026–27. As the Ninth Circuit pointed out in Van Susteren, whereas the primary process

is “integral to the election [] because it serves the important function of winnowing out

competing partisan candidates,” the independent candidate is excused from this process,

and thus different restrictions for their access to the ballot are permissible. Van Susteren,

331 F.3d at 1027. Because of the differences between the pathways to the ballot of

partisan versus independent candidates in Ohio, we agree with the district court that

Jolivette’s equal-protection arguments lack merit. See Jolivette, 2012 WL 3527733, at

*14–16.

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After examining Jolivette’s constitutional claims and finding that none of them

have merit, we find no abuse of discretion in the district court’s decision to deny

Jolivette’s requests for a preliminary injunction, a permanent injunction, and declaratory

relief. See Taft, 385 F.3d at 645.

VI. CONCLUSION

For the reasons discussed above, we AFFIRM the district court’s judgment

denying declaratory as well as preliminary and permanent injunctive relief.

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_______________

DISSENT

_______________

MERRITT, Circuit Judge, dissenting. I do not agree with the result in this case

barring Jolivette from running as an Independent for the state legislature or with the

majority’s interpretation of Ohio law as set out in the recent case of Livingston v. Miami

County Board of Elections, 196 Ohio App. 3d 263, 963 N.E.2d 187, decided September

8, 2011, or with the majority’s interpretation of the seminal ballot access case on the

First Amendment, Anderson v. Celebrezze, 460 U.S. 780 (1983). The bottom line is that

Jolivette clearly wants to leave the Republican Party — his long fight in this case is

certainly evidence of that choice, along with his many earlier statements to that effect

— because the party now rejects him after many years of public service as a Republican.

He has nowhere else to turn except as an independent candidate if he is to continue his

public service. What stands in his way is the adverse ruling of the Ohio Secretary of

State, a partisan official elected statewide as a Republican, who disagrees with the

interpretation given the state’s ballot access statute by the highest state court to decide

the issue.

In Livingston, the state court overruled a decision rejecting the independent

candidacy of two candidates for local office because they had voted in Republican

primary elections, signed petitions in support of Republican candidates a few months

before the election, and previously won office as a Republican candidate for local office.

And one of them, Livingston, was a member of the local Republican Executive

Committee until he resigned just before filing a petition as an independent candidate.

In reversing the decision rejecting their independent candidacies, the court said:

Consistent with the liberal construction of the laws in favor of

candidates, a finding that the candidate’s claim was not made in good

faith must be supported by clear and convincing evidence . . . . The

record supports a finding that both relators may have acted on a

calculation that they would have a better chance of winning as

independent candidates. However, that fails to rise to the level of clear

and convincing evidence that their claims of disaffiliation from the

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Republican Party were not made in good faith because the claim is a

sham or deceitful — that is, that either actually remains affiliated with

the Republican Party. Such proof is necessary to find an impropriety in

their claims sufficient to permit the board to invalidate their petitions

pursuant to R.C. 3501.39(A) on a finding of a lack of good faith.

196 Ohio App. 3d at 270-71, 963 N.E.2d at 192-93 (citation omitted). Likewise, in the

present case, there is no “clear and convincing” evidence that Jolivette is lying about his

choice and no one claims his application is a sham. He has attempted to remove all

doubt that he is still a Republican by eliminating former references on a website that he

is a Republican and in other ways. He has privately and publicly consistently renounced

his membership in the Republican Party. The Livingston case is directly contrary to the

Ohio Secretary of State’s view that Jolivette remains affiliated with the Republican

Party. Under Ohio law, the Secretary may try to persuade Jolivette to remain with the

GOP but he may not indenture him to the party or deprive him of the right to change his

partisan views and associations.

That should be the end of this case and make it unnecessary to reach a First

Amendment question. But our court’s approval of the rulings below makes it necessary

to reach the federal question arising under the First Amendment. Ohio has a number of

cases in which the Supreme Court has reversed Ohio’s rejection of ballot access by

independent candidates or parties thus allowing incumbents to insulate themselves

against challengers. See, e.g., Williams v. Rhodes, 393 U.S. 23 (1968). More recently,

an Ohio case in the Supreme Court, Anderson v. Celebrezze, 460 U.S. 780 (1983),

reversed a Sixth Circuit case upholding Ohio’s effort to bar an independent candidacy

and further entrench and stabilize the two major parties in their dominant positions.

In Anderson, the Court struck down an Ohio effort to require minor parties and

independent candidates to file much earlier than the major party candidates. This Ohio

policy would prevent the candidacy of individuals and minor parties who become

disenchanted during the primary process and decide to quit the party. In this case the

candidate was John Anderson, who unsuccessfully sought the Republican nomination

for President, but then decided to bolt and to seek the office independently. The

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Supreme Court’s opinion by Justice John Paul Stevens sets out general First Amendment

standards that apply up and down the political hierarchy:

A burden that falls unequally on new or small political parties or

on independent candidates impinges, by its very nature, on associational

choices protected by the First Amendment. It discriminates against those

candidates and — of particular importance — against those voters whose

political preferences lie outside the existing political parties. Clements

v. Fashing, [457 U.S. 957, 964-65 (1982)] (plurality opinion). By

limiting the opportunities of independent-minded voters to associate in

the electoral arena to enhance their political effectiveness as a group,

such restrictions threaten to reduce diversity and competition in the

marketplace of ideas. Historically political figures outside the two major

parties have been fertile sources of new ideas and new programs; many

of their challenges to the status quo have in time made their way into the

political mainstream. Illinois Elections Bd. v. Socialist Workers Party,

440 U.S. at 186; Sweezy v. New Hampshire, 345 U.S. 234, 250-251

(1957) (opinion of Warren, C.J.). In short, the primary values protected

by the First Amendment — “a profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and

wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)

— are served when election campaigns are not monopolized by the

existing political parties.

460 U.S. at 793-94 (footnote and parallel citations omitted).

I believe the Livingston case standards meet the First Amendment test, but the

standards applied by my colleagues do not. The Livingston case standards do not

“discriminate[] against those candidates and — of particular importance — against those

voters whose political preferences lie outside the existing political parties.” Id. But the

majority opinion “restrictions threaten to reduce diversity and competition in the

marketplace of ideas.” Id. The majority opinion undermines our “profound national

commitment to the principle that debate on public issues should be uninhibited, robust,

and wide open.” The majority opinion once again prefers the corporate or establishment

side of the case against the iconoclastic individual on his soap box in Hyde Park. I have

no idea what Jolivette might do or propose, but he should be given his shot rather than

be indentured to the Republican Party because he used to be a Republican.