Petition for Writ of Certiorari — William T. Schmitt, et al., Petitioners v. Frank LaRose, Ohio Secretary of State

Supreme Court briefFeb 3, 2020

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APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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No. 19-3196

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WILLIAM T. SCHMITT; CHAD THOMPSON;

DEBBIE BLEWITT,

Plaintiffs-Appellees,

FRANK LAROSE, Ohio Secretary of State,

Defendant-Appellant.

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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.

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Argued: June 26, 2019

Decided and Filed: August 7, 2019

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

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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.

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.

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).

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 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 Vil-

lage 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 ballotinitiative 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 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

The district court did not identify the source of the asserted

right to de novo judicial review.

We 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.

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 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 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.

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 unbri-

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dled 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 censorship of expressive

activity. See, e.g., City of Lakewood v. Plain Dealer

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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, priorrestraint 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 secondorder 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

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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 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).

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

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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 ballotinitiative process unduly hampers their right to political expression. We disagree.

We begin by making clear that Plaintiffs have

never challenged the legitimacy of the legislativeadministrative 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 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

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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-ofdiscretion 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

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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 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.

Plaintiffs 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

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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 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

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.

17a

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 balloteligible 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

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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.

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.

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(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.”).

Plaintiffs therefore cannot state a procedural due

process claim, and the district court erred in concluding otherwise.

For the reasons stated above, we REVERSE the

district court’s order and VACATE the permanent

injunction.

20a

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.

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.

I 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.

21a

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 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

22a

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)).

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.

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

23a

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

24a

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 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

25a

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 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

26a

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 singlesubject requirement applying rational-basis review.

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).

27a

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 dis-

28a

courages 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 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

29a

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 rationalbasis 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.

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 reli-

30a

gious 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

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 subjectmatter 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

Under 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.

31a

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 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.

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 electionmechanics regulation that concerned subject-matter

limitations for popular initiatives as in Walker. But, as

32a

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 secondguess 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-ofpowers 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 twothirds 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 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

33a

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

In 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).

34a

rational-basis scrutiny. As I explain below, these

provisions survive rational-basis review because they

are content-neutral and non-discriminatory.

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 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

35a

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 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

36a

process. Such regulation, though it involves analysis

of the text of the initiative, is nonetheless contentneutral 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 contentneutral 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

37a

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.

38a

APPENDIX B

363 F.Supp.3d 842

UNITED STATES DISTRICT COURT,

S.D. OHIO, EASTERN DIVISION

————

Case No. 2:18-cv-966

————

WILLIAM T. SCHMITT, et al.,

Plaintiffs,

OHIO SECRETARY OF STATE JON HUSTED, et al.,

Defendants.

————

Signed 02/11/2019

————

Attorneys and Law Firms

Mark George Kafantaris, Kafantaris Law Offices,

Mark R. Brown, Columbus, OH, for Plaintiffs.

Christopher J. Meduri, Portage County Prosecutor’s

Office, Ravenna, OH, Sarah Elaine Pierce, Renata Y.

Staff, Ohio Attorney General’s Office Constitional

Offices Section, Columbus, OH, for Defendants.

————

OPINION AND ORDER

EDMUND A. SARGUS, JR.,

STATES DISTRICT JUDGE

CHIEF

UNITED

This matter is before the Court for consideration of

Plaintiffs William T. Schmitt and Chad Thompson’s

39a

(“Plaintiffs”) Motion for Temporary Restraining

Order and/or Injunctive Relief (ECF No. 3), which the

Court previously granted (ECF No. 22), extended (ECF

No. 26), and converted into a preliminary injunction,

which expired on November 7, 2018 (ECF No. 28). By

order of the Court (ECF No. 28), Defendants Ohio

Secretary of State John Husted and the Portage County

Board of Elections (the “Board”)—individually, Craig

M. Stephens, Patricia Nelson, Doria Daniels, and

Elayne J. Cross—(“Defendants”) briefed the issue of

constitutionality of the relevant Ohio statutes. (See

ECF Nos. 30, 32, 34, and 35). On December 19, 2018,

the Court held oral argument to discuss reinstating

the preliminary injunctive relief granted to Plaintiffs.

Based on the parties’ briefs and their positions at oral

argument, the Court orders permanent injunctive

relief. Thus, the Court REINSTATES as a permanent

injunction the preliminary injunctive relief granted in

its Opinion and Order issued on September 19, 2018.

(ECF No. 22).

I. BACKGROUND

A. Ohio’s Ballot Initiative Scheme

The Ohio Constitution creates an initiative process

for Ohio citizens. Ohio Const. Art. II, Sec. 1. Ohio law

requires petitioners of a municipality’s ordinances to

submit ballot initiatives to a county’s board of elections. O.R.C. § 3501.11(K)(1). The boards of elections

“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.” O.R.C. § 3501.11(K)(2). This

process is known as the “gatekeeper mechanism.”

State ex rel. Walker v. Husted, 144 Ohio St. 3d 361, 43

N.E.3d 419, 423 (2015).

40a

The Supreme Court of Ohio has held that boards

of elections have discretion when determining “which

actions are administrative, and which are legal.” Id.

“The test for determining whether the action of a legislative body is legislative or administrative is whether

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

regulation, or executing or administering a law, ordinance or regulation already in existence.” State ex rel.

N. Main St. Coalition v. Webb, 2005-Ohio-5009, 106

Ohio St.3d 437, 835 N.E.2d 1222 (quoting Donnelly v.

Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233

N.E.2d 500, paragraph two of the syllabus). Legislative

actions are appropriate for the initiative process; administrative actions are not. See O.R.C. §§ 3501.38(M)(1)

and 3501.39(A)(3).1

When a board of elections approves an initiative

petition, citizens opposing the petition’s validity (and

therefore, the board of elections’ decision) have an

original cause of action for review in the Supreme

Court of Ohio. Ohio Const. Art. II, Sec. 1g. In contrast,

when a board of elections or the Ohio Secretary of

State rejects a petitioner’s ballot initiative for a substantive reason, e.g., whether the proposed legislation

is administrative versus legislative, neither the Ohio

Constitution nor state laws provide a remedy.2

The Court does not address whether Plaintiffs’ ballot

initiatives implicated administrative or legal actions.

See State ex rel. Jones v. Husted, 149 Ohio St.3d 110, 73

N.E.3d 463 (2016) ¶ 24 (“By its plain language, Section 1g creates

a cause of action to challenge, that is, to oppose signatures and

part-petitions. It does not create a broader cause of action only to

challenge decisions by the secretary or the county boards to reject

petitions. That cause of action still falls under this court’s original

mandamus jurisdiction.”) Here, Plaintiffs’ fall under the latter

scenario. That is, the Portage County Board rejected Plaintiffs’

41a

Thus, a party aggrieved by a rejected initiative

petition has no right, by statute or otherwise, to a

review of the executive board’s legal conclusion. An

aggrieved petitioner may seek a writ of mandamus,

which is wholly separate from an appeal of right, since

a writ is an extraordinary remedy that is discretionary

and “will not issue to prevent an erroneous judgment,

or to serve the purpose of appeal, or to correct mistakes

of the lower court in deciding questions within its

jurisdiction.” State ex rel. Sparto v. Juvenile Court of

Darke County (1950), 153 Ohio St. 64, 65, 90 N.E.2d

598.

Under Ohio law, to be entitled to a writ of mandamus, a 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 of electors

to provide the requested relief, and (3) the lack of an

adequate remedy at law. State ex rel. Khumprakob v.

Mahoning Cty. Bd. of Elections, 153 Ohio St.3d 581,

2018-Ohio-1602, 109 N.E.3d 1184 (citing State ex rel.

Waters v. Spaeth, 2012-Ohio-69, 131 Ohio St. 3d 55,

960 N.E.2d 452, ¶ 6, 13). Only the Ohio Supreme Court

of Ohio or the courts of appeals have original jurisdiction in mandamus. Ohio Const. Art. IV, §§ 2(B)(1)(b),

3(B)(1)(b); see State ex rel. Jones v. Husted, 2016-Ohio5752, 149 Ohio St.3d 110, 73 N.E.3d 463. When the

Supreme Court of Ohio or a court of appeals reviews a

decision by a county board of elections, the court may

only issue the writ if the board “engaged in fraud or

corruption, abused its discretion, or acted in clear

disregard of applicable legal provisions.” Jones, 149

Ohio St.3d at ¶ 4 (citing State ex rel. Jacquemin v.

decision. Therefore, Plaintiffs’ only state-court remedy exists in

mandamus before either the Supreme Court of Ohio or the courts

of appeals.

42a

Union Cty. Bd. of Elections, 147 Ohio St.3d 467, 2016Ohio-5880, 67 N.E.3d 759, ¶ 9).

B. Relevant Facts

In 2018, Plaintiffs circulated ballot initiatives in two

Ohio villages: Garrettsville and Windham. Both ballot

initiatives proposed identical ordinances, which essentially decriminalized marijuana possession by reducing

criminal fines to $0, removing all consequences related

to drivers’ licenses, and reducing court costs to $0.

Plaintiffs acquired the necessary number of signatures

and submitted the ballot initiatives to the Board. The

Board’s minutes state:

Staff presented a list of ballot issues for the

November 6, 2018 ballot. Denise Smith, Chief

Assistant Prosecutor addressed questions about

two initiative petitions regarding marijuana penalties filed for Garrettsville Village and Windham

Village. Staff reported that both initiative petitions

had a sufficient number of valid elector signatures. Both initiative petitions have identical

language and seek to decriminalize marijuana by

proving for no monetary fines, no license suspension and no court costs for misdemeanor marijuana

offenses. Denise indicated that the Prosecutor’s

Office will not sign off on the ballot language and

does not believe the initiative petitions are appropriate for the ballot because the initiatives are

administrative in nature, rather than legislative.

Administrative actions are not appropriate for

initiative petitions.

Denise indicated that the decision is ultimately

up to the Board. Ms. Daniels moved that the

initiative petitions regarding marijuana penalties

for Garrettsville Village and Windham Village not

43a

be certified to the November 6, 2018 General

Election ballot. Second by Ms. Cross.

ROLL CALL:

Ms. Nelson — Yes

Ms. Daniels — Yes

Ms. Cross — Yes

Pl.’s Compl., Ex. 3 (ECF No. 1). Therefore, the Board

rejected Plaintiffs’ proposed initiatives. The Board

then advised Plaintiffs that their initiatives had been

rejected, stating:

In State ex rel. Sensible Norwood v. Hamilton

County Board of Elections [148 Ohio St.3d 176],

2016-Ohio-5919 [69 N.E.3d 696], the Ohio Supreme

Court said administrative actions are not subject

to initiative. Reviewing the language in the proposals presented by the Village of Garrettsville

and the Village of Windham, the $0 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.

Pl.’s Compl., Ex. 4 (ECF No. 1).

C. Procedural History

On August 28, 2018, Plaintiffs filed their Complaint

(ECF No. 1) and Motion for Temporary Restraining

Order and/ or Preliminary Injunction (ECF No. 3). On

September 19, 2018, the Court granted Plaintiffs a

temporary restraining order (ECF No. 22), which

44a

directed Defendants to place both initiative petitions

on the November 6, 2018 ballot. The Court then held

a telephone status conference during which the parties

consented to converting the temporary restraining

order to a preliminary injunction, which would expire

on November 7, 2018—the day after the election. (ECF

No. 28). Subsequently, the parties briefed the constitutionality of the Ohio laws at issue, and the Court

held oral argument on December 19, 2018. (ECF Nos.

30, 32, 33, 34, 35). At the December 19, 2018 hearing,

the parties stipulated that Plaintiffs’ motion for injunctive relief is ripe for review because Plaintiffs intend

to submit identical initiative petitions in upcoming

voting cycles.

II.

Federal Rule 65 of Civil Procedure allows a party to

seek injunctive relief if the party believes that it will

suffer irreparable harm or injury. Fed. R. Civ. P. 65.

To determine whether injunctive relief should be issued,

the Court considers these four factors: (1) whether the

movant has a strong likelihood of success on the merits;

(2) whether the movant would otherwise suffer irreparable injury; (3) whether granting the injunction would

cause substantial harm to others; and (4) whether the

public interest would be served by issuing the injunction. McPherson v. Michigan High School Athletic

Ass’n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc).

These factors are not prerequisites; each must be

weighed against the others. Id. at 459. “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. Exam’rs, 225 F.3d 620,

625 (6th Cir. 2000). A district court is required to make

specific findings concerning each of the factors unless

fewer are diapositive of the issue. Performance Unlim-

45a

ited v. Questar Publishers, Inc., 52 F.3d 1373, 1381

(6th Cir. 1995).

“The standard for a preliminary injunction is

essentially the same as for a permanent injunction

except that the plaintiff must show actual success on

the merits rather than a likelihood of success.” Gas

Natural Inc. v. Osborne, 624 Fed. Appx. 944, 948 (6th

Cir. 2015) (citing Am. Civil Liberties Union of Ky. v.

McCreary Cty., 607 F.3d 439, 445 (6th Cir. 2010)).

When a plaintiff seeks a permanent injunction, “[a]n

evidentiary hearing is typically required before an

injunction may be granted, but a hearing is not necessary where no triable issues of fact are involved.”

United States v. Miami University, 294 F.3d 797, 815

(6th Cir. 2002) (citing United States v. McGee, 714 F.2d

607, 613 (6th Cir. 1983)).

III.

Plaintiffs argue that Ohio’s ballot initiative process

violates their procedural due process rights guaranteed by the United States Constitution. To establish a

procedural due process claim, a plaintiff must show

that “(1) it had a life, liberty, or property interest

protected by the Due Process Clause; (2) it was deprived

of this protected interest; and (3) the state did not

afford it adequate procedural rights.” Daily Services,

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

1. Liberty Interest Protected by the Due

Process Clause

The right to initiate legislation through the initiative process is not derived from the United States

Constitution. Taxpayers United for Assessment Cuts v.

Austin, 994 F.2d 291, 295 (6th Cir. 1993). Once a state

creates an initiative process, however, the state may

not restrict the process in any manner that violates

46a

the Constitution. Meyer v. Grant, 486 U.S. 414, 108

S.Ct. 1886, 100 L.Ed.2d 425 (1988); Austin, 994 F.2d

at 295 (“although the Constitution does not require a

state to create an initiative petition procedure, if it

creates such a procedure, the state cannot place

restrictions on its use that violate the federal

Constitution”). Ohio’s has created a ballot initiative

process for its citizens. See O.R.C. § 3501.11(K)(1).

Therefore, Ohio cannot restrict that process in any

manner that violates the Constitution.

Defendants argue Plaintiffs have no right for placement of the proposed legislation on the ballot and

therefore Plaintiffs lack any threatened liberty interest. This argument is not well taken. Plaintiffs do not

claim they have a substantive right to appear on the

ballot. Plaintiffs contend that Ohio’s ballot initiative

framework fails to provide procedural due process.

2. Deprivation of the Liberty Interest Without

Adequate Procedural Rights

“An essential principle of due process is that a

deprivation of life, liberty, or property ‘be preceded

by notice and opportunity for hearing appropriate to

the nature of the case.’” Cleveland Board of Education

v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84

L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652,

94 L.Ed. 865 (1950)). When a liberty interest is at

stake, “procedural due process generally requires

that the state provide a person with notice and an

opportunity to be heard before the deprivation occurs.”

Center for Powell Crossing, LLC v. City of Powell,

Ohio, 173 F.Supp.3d 639, 657 (S.D. Ohio 2016) (citing

Warren v. City of Athens, 411 F.3d 697, 708 (6th Cir.

2005)).

47a

Plaintiffs argue they were deprived of their right

to participate in Ohio’s initiative process without

the right to adequate review in the courts of Ohio.

In contrast, Defendants contend that mandamus is

a constitutionally sufficient remedy for review of an

allegedly unconstitutional deprivation of ballot access.

The Court disagrees.

In procedural due process cases, the Sixth Circuit

directs courts to determine whether the deprivation of

a liberty interest is a result of “an established procedure” or is “pursuant to a random and unauthorized

act” of a state employee. Daily Services, LLC v. Valentino,

756 F.3d 893, 907 (6th Cir. 2014); Wedgewood Ltd.

Partnership v. Township of Liberty, Ohio, 610 F.3d

340, 349–50 (6th Cir. 2010). “If the former, then it is

both practicable and feasible for the state to provide

pre-deprivation process, and the state must do so

regardless of the adequacy of any post-deprivation

remedy . . . .” Walsh v. Cuyahoga County, 424 F.3d 510,

513 (6th Cir. 2005) (internal quotations and citations

omitted).

The gatekeeping function is based on Ohio’s constitution and statutory framework, rendering it “an

established procedure.” Accordingly, it is both practicable and feasible for Ohio to provide a meaningful

right to review of the decision rendered by the Board

of Elections. Indeed, Ohio already applies a de novo

standard when reviewing executive agencies’ legal

determinations in other contexts. See Akron City

School Dist. Bd. of Education v. Summit Cty. Bd. of

Revision, 2014-Ohio-1588, 139 Ohio St.3d 92, 9 N.E.3d

1004, ¶¶ 10–11; see also Gahanna-Jefferson Local School

Dist. v. Zaino, 93 Ohio St.3d 231, 232, 754 N.E.2d 789

(2001). In the ballot initiative process, however, the

State of Ohio has not provided Plaintiffs an adequate

48a

review process. Instead, the gatekeeping function enables

a board of elections—an executive body—to make legal

determinations without providing denied petitioners a

right to review. The only possibility of review requires

an aggrieved petitioner to convince a court of appeals

or the Supreme Court of Ohio to exercise its discretion

under heightened standards.3 Plaintiffs contend that

the refusal of the Board to certify a vote on the legislation without a right to review by a judicial body violates

Plaintiffs’ constitutionally protected liberty interest.

No doubt, Ohio has strong interests in ensuring its

elections are run fairly and efficiently. Buckley v. Am.

Constitutional Law Found., 525 U.S. 182, 191, 119

S.Ct. 636, 142 L.Ed.2d 599 (1999); Taxpayers United

for Assessment Cuts v. Austin, 994 F.2d 291, 297 (6th

Cir. 1993). Ohio also has a strong interest in placing

on the ballot only such proposed legislation as would

be lawful as municipal legislation under Ohio Const.

Art. XVIII, Sec. 3. Allowing votes on matters unlawful

or unenforceable on their face could erode public confidence in Ohio’s entire initiative process.

Recognizing those interests, the Court finds no

legitimate state interests in withholding an adequate

In State ex rel. Maxey v. Saferin, three dissenting Ohio

Supreme Court Justices highlighted “the uncertainty regarding

the constitutionality of the amendments to R.C. 3501.11 made by

H.B. 463.” — Ohio St. 3d —, 2018-Ohio-4035, — N. E. 3d —, at

¶ 52. In Maxcy, the Supreme Court of Ohio found that county

boards of elections lack authority to review the substance of

a proposed municipal charter amendment. In so holding, the

majority observed that Article XVII, Sections 8 and 9 of the Ohio

Constitution apply to municipal charter amendments rather than

Article II, Section 1f, which applies to citizen-initiated legislation,

i.e., referendum and initiative petitions. For that reason, the majority declined to address the constitutionality of R.C. 3501.11(K).

Id. at ¶ 13.

49a

legal remedy for petitioners denied ballot access by a

board of elections. “Although a state has a wide scope

in regulating the franchise, it is not permitted to adopt

any standard it desires, but it is limited by the

strictures of the federal and state constitutions . . . .”

25 Am. Jur. 2d Elections § 98. Given the availability of

mandamus relief is extraordinary and only exercised

when the law does not otherwise provide an adequate

remedy, the high burden on petitioners to prove entitlement to an extraordinary remedy is no substitute

for de novo review of the denial of a constitutionally

protected liberty interest. Therefore, the Court finds

Plaintiffs prevail on their constitutional challenge to

Ohio’s ballot initiative process.4

IV.

In conclusion, the Court REINSTATES and

CONVERTS to permanent injunction the preliminary

injunctive relief granted in its Opinion and Order

issued on September 19, 2018. (ECF No. 22). The Court

DIRECTS the Clerk to enter judgment accordingly.

IT IS SO ORDERED.

As the Court mentioned during oral argument, the Boards of

Elections in Ohio make many decisions that permit or deny ballot

access to candidates and petitioners. The issues in this case do

not involve whether the Boards of Elections may exercise such

powers. The Court assumes that the Boards of Elections may

exercise such powers as given by the Ohio General Assembly. The

sole issue in this case is whether a constitutionally adequate

review is available to a party deprived of ballot access by a Board

of Elections.

50a

APPENDIX C

341 F.Supp.3d 784

UNITED STATES DISTRICT COURT,

S.D. OHIO, EASTERN DIVISION

————

Case No. 2:18-cv-966

————

WILLIAM SCHMITT, JR., et al.,

Plaintiffs,

OHIO SECRETARY OF STATE JON HUSTED, et al.,

Defendants.

————

Signed 09/19/2018

————

Attorneys and Law Firms

Mark George Kafantaris, Kafantaris Law Offices,

Mark R. Brown, Columbus, OH, for Plaintiffs.

Sarah Elaine Pierce, Renata Y. Staff, Ohio Attorney

General’s Office Constitutional Offices Section,

Columbus, OH, Christopher J. Meduri, Portage

County Prosecutor’s Office, Ravenna, OH, for

Defendants.

————

OPINION & ORDER

EDMUND A. SARGUS, JR.,

STATES DISTRICT JUDGE

CHIEF

UNITED

51a

This matter is presently before the Court for consideration of Plaintiffs Application for a Temporary

Restraining Order. (ECF No. 3.) For the reasons set

forth herein, the motion is GRANTED.

A. Undisputed Relevant Facts

The following facts are set forth for the limited

purpose of addressing the immediate motion before

the Court. Any findings of fact and conclusions of law

made by a district court in addressing a request for

injunctive relief, particularly in consideration of a

temporary restraining order, are not binding at a trial

on the merits. University of Texas v. Camenisch, 451

U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981).

Plaintiffs William Schmitt and Chad Thompson

drafted and circulated two ballot initiatives in two

Ohio villages, Garretsville and Windham. (ECF No. 3.)

Both initiatives proposed ordinances with identical

language that essentially decriminalized marijuana

possession. The initiative reduced criminal fines to

$0, removed any consequences related to licenses, and

reduced court costs to $0. (Id.) After acquiring the

necessary signatures, Schmitt and Thompson submitted the proposed ordinances to the Portage County

Board of Elections, one of the defendants in this case.

The Portage County Board of Elections rejected the

proposed initiative for two reasons. First, the Board

determined that “the $0 fine and no license consequences are administrative in nature.” (Id.) Second,

the Board found that “[t]he $0 court costs is administrative in nature and is an impingement on the

judicial function by a legislature.” (Id.) On August 21,

2018, the Portage County Board of Elections notified

52a

Schmitt and Thompson that it would not certify the

proposed initiatives for the ballot. (Id.)

On August 28, 2018, Plaintiffs filed their Complaint

(ECF No. 1) and a Motion for Temporary Restraining

Order and/or Preliminary Injunction. (ECF No. 3.)

Defendants filed Responses in Opposition to Plaintiffs’

Motion (ECF Nos. 17, 18) to which Plaintiffs answered

with their Reply. (ECF No. 19.) On September 17,

2018, this Court held a hearing on Plaintiffs’ requested

injunctive relief.

B. Ohio’s Ballot Initiative Scheme

Ohio has created an initiative process for its citizens. Ohio Const. Art. II, Sec. 1. Relevant to this case,

Ohio law requires petitioners for the initiation of legislation in a municipality to submit an initiative petition

to a board of elections. O.R.C. § 3501.11(K)(1). The

board of elections then reviews, examines, and certifies

the sufficiency and validity of the petition. Id. The

boards of elections are also required 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.” O.R.C. § 3501.11(K)(2). This is known as the

“gatekeeper mechanism.” State ex rel. Walker v. Husted,

144 Ohio St.3d 361, 43 N.E.3d 419, 423 (2015). The

Supreme Court of Ohio has held that boards of elections

have discretion when determining “which actions are

administrative and which are legal.” Id. Administrative

actions are not appropriate for the initiative process;

legislative actions are. See O.R.C. §§ 3501.38(M)(1)

and 3501.39(A)(3). While recognizing that this Court

is without jurisdiction to decide whether the initiative

petition contains legislative or administrative action,

the parties dispute this issue, which would otherwise

53a

determine whether the matter should be placed on the

ballot.

When a local elections board determines that an action

is administrative (and therefore improper) or legislative (and therefore proper), Ohio law creates a fork in

its procedural road. If the initiative petition is deemed

valid, then citizens opposing the petition’s validity—

and in a practical sense, the board’s decision—have

an original cause of action for review of the board’s

decision in the Supreme Court of Ohio. Ohio Const.

Art. II, Sec. 1g. On the other hand, if the board or secretary rejects a petitioner’s submission for a substantive

reason, as in the administrative versus legislative

divide, supra,1 neither the Ohio Constitution nor state

laws provide a remedy. As a result, a party aggrieved

by the rejection of an initiative petition has no right,

by statute or otherwise, to review of an executive

board’s legal conclusion. An aggrieved petitioner may

seek a writ of mandamus, which is wholly separate

from an appeal of right.

Under Ohio law, to be entitled to a writ of mandamus, a 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 to provide

See State ex rel. Jones v. Husted, 149 Ohio St.3d 110, 73

N.E.3d 463 (2016) ¶ 24 (“By its plain language, Section 1g creates

a cause of action to challenge, that is, to oppose signatures and

part-petitions. It does not create a broader cause of action only to

challenge decisions by the secretary or the county boards to reject

petitions. That cause of action still falls under this court’s original

mandamus jurisdiction.”) In the instant case, Plaintiffs’ fall under

the latter scenario. That is, the Portage County Board rejected

Plaintiffs’ decision. Therefore, Plaintiffs’ only state-court remedy

exists in mandamus issued by either the Supreme Court of Ohio

or the courts of appeals.

54a

it, and (3) the lack of an adequate remedy in the

ordinary course of the law. State ex rel. Khumprakob

v. Mahoning Cry. Bd. of Elections, 2018-Ohio-1602,

109 N.E.3d 1184 (citing State ex rel. Waters v. Spaeth,

131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6,

13). Only the Supreme Court of Ohio or the courts of

appeals have original jurisdiction in mandamus. Ohio

Const. Art. IV, Sec. 3; State ex rel. Jones v. Husted

(Ohio, 2016) 149 Ohio St.3d 110, 73 N.E.3d 463, 2016Ohio-5752. When the Ohio Supreme Court or courts of

appeals reviews a decision by a county board of

elections, such court may only issue the writ if the

board “engaged in fraud or corruption, abused its

discretion, or acted in clear disregard of applicable

legal provisions.” Id. ¶ 4 (citing State ex rel. Jacquemin

v. Union County Bd. of Elections, 147 Ohio St.3d 467,

2016-Ohio-5880, 67 N.E.3d 759, ¶ 9).

Applied to these narrow facts, Ohio’s initiative scheme

denies a rejected petitioner “an adequate remedy . . .

of law” for review of a local board of election’s legal

determination. Instead, the only recourse available

is a petition for a writ of mandamus. A writ is an

extraordinary remedy that is discretionary and “will

not issue to prevent an erroneous judgment, or to serve

the purpose of appeal, or to correct mistakes of the

lower court in deciding questions within its jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke

County (1950), 153 Ohio St. 64, 65, 90 N.E.2d 598. In

other words, rejected petitioners are stuck between a

rock and a hard place. But is there any constitutional

violation?

On that question, the parties disagree. Plaintiffs

allege that by following Ohio law, Defendants violated

their rights protected by the First and Fourteenth

Amendments. Defendants argue that the gatekeeper

55a

mechanism and the possibility of a writ of mandamus

are constitutionally sound. To remedy their alleged

violations, Plaintiffs move this Court to order injunctive relief, pursuant to Federal Rule 65 of Civil Procedure.

II.

Federal Rule 65 of Civil Procedure allows a party to

seek injunctive relief if the party believes that it

will suffer irreparable harm or injury. Fed. R. Civ. P.

65. To determine whether injunctive relief should

be issued, the Court considers these four factors:

(1) whether the movant has a strong likelihood of

success on the merits; (2) whether the movant would

otherwise suffer irreparable injury; (3) whether granting the injunction would cause substantial harm

to others; and (4) whether the public interest would

be served by issuing the injunction. McPherson v.

Michigan High School Athletic Ass’n, 119 F.3d 453,

459 (6th Cir. 1997) (en banc).

These factors are not prerequisites; each must be

weighed against the others. Id. at 459. “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. Exam’rs, 225 F.3d 620,

625 (6th Cir. 2000). A district court is required to make

specific findings concerning each of the factors unless

fewer are diapositive of the issue. Performance Unlimited

v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th

Cir. 1995). The Court will now analyze each of the four

factors below.

III.

A. Likelihood of Success

Plaintiffs argue that Ohio’s ballot initiative procedure violates their rights guaranteed by the United

States Constitution. In their Reply Brief (ECF No. 19),

56a

Plaintiffs make clear that they “do not challenge Ohio’s

ability to limit the subject matter of its initiatives.

What Plaintiffs challenge is how Ohio has chosen to

implement this otherwise lawful task.” (Id.) At oral

argument, however, Plaintiffs argued that the Ohio procedure for proposing initiatives violates constitutional

due process protections.

At the same oral argument, Defendants responded

that the mandamus relief is constitutionally sufficient.

Defendants conceded that mandamus relief is only

appropriate when there is no adequate remedy at law,

and that the Supreme Court or courts of appeals must

review local board of election’s decision by a “clear

disregard of law” standard.

The right to initiate legislation through the initiative

process is not a federal constitutional right. Taxpayers

United for Assessment Cuts v. Austin, 994 F.2d 291,

295 (6th Cir. 1993). Concomitantly, once the initiative

or, if its counterpart, the referendum process, is made

a part of state law, the process becomes a “democratic

tool” to be regulated in a manner consistent with the

First and Fourteenth Amendments. City of Eastlake v.

Forest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct.

2358, 49 L.Ed.2d 132 (1976).

In Meyer v. Grant, the United States Supreme Court

held that once a right of initiative is created, that

state may nor place restrictions on the exercise of the

initiative that unduly burden First Amendment rights.

Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d

425 (1988); see Taxpayers United for Assessment Cuts

v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) (“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 . . . .”) In

Meyer, the United States Supreme Court struck down

57a

a Colorado provision criminalizing the payment of

money to anyone circulating an initiation petition.

Id. Since Ohio has created an initiative procedure,

Ohio cannot restrict its use in violation of the federal

Constitution.

The United States Supreme Court has articulated a

standard for evaluating constitutional challenges to a

state’s election laws in Anderson v. Celebrezze, 460

U.S. 780, 788–89, 103 S.Ct. 1564, 75 L.Ed.2d 547

(1983), and in Burdick v. Takushi, 504 U.S. 428, 434,

112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). The court

must: (1) “consider the character and magnitude of the

plaintiffs’ alleged injuries, (2) “identify and evaluate

the precise interests put forward by the State as

justifications for the burden imposed by its rule,” and

(3) assess the “legitimacy and strength of each of

those interests,” as well as the “extent to which those

interests make it necessary to burden the plaintiff[s’]

rights.” Anderson, 460 U.S. at 789, 103 S.Ct. 1564.

This is known as the Anderson-Burdick standard.

“States allowing ballot initiatives have considerable

leeway to protect the integrity and reliability of the

initiative process.” Buckley v. Am. Constitutional Law

Found., 525 U.S. 182, 191, 119 S.Ct. 636, 142 L.Ed.2d

599 (1999). The Court addresses these factors below.

The touchstone of Anderson-Burdick is flexibility

when weighing competing interests. Ohio Democratic

Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016).

Opposite this flexibility, the “rigorousness of our inquiry

into the propriety of a state election law depends upon

the extent to which a challenged regulation burdens

First and Fourteenth Amendment rights.” Burdick v.

Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d

245 (1992).

58a

Plaintiffs argue that without the right to review an

executive board’s legal decision, Ohio’s initiative procedure deprives Plaintiffs of their First Amendment

rights related to voting upon valid initiative-generated

legislation. Voting is “of the most fundamental significance under our constitutional structure.” Illinois Bd.

of Elections v. Socialist Workers Party, 440 U.S. 173,

184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979).

In addition to voting, Plaintiffs’ allege that their

rights to due process are violated. The Due Process

Clause of the Fourteenth Amendment extends to First

Amendment rights. Briscoe v. Kusper, 435 F.2d 1046,

1055 (7th Cir. 1970) (citing NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d

1488 (1958) (“It is by now well established that the

concept of ‘liberty’ protected against state impairment

by the Due Process Clause of the Fourteenth Amendment includes the freedoms of speech and association

and the right to petition for redress of grievances.”))

These protected rights may take the form of “simple

association for mutual political or social benefits, including support of independent candidates or specific

policies.” Id. (citing NAACP v. Alabama ex rel. Flowers,

377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964)).

No doubt, Ohio has strong interests in ensuring its

elections are run fairly and honestly. Taxpayers United

for Assessment Cuts v. Austin, 994 F.2d 291, 297 (6th

Cir. 1993). Ohio also has an interest in placing on the

ballot only such proposed legislation as would be

lawful as municipal legislation under Ohio Const. Art.

XVIII, Sec. 3. Repeated votes on matters unlawful or

unenforceable on their face could erode public confidence in the entire initiative or referendum process.

Recognizing such interests, the Court finds no

legitimate state interests in preventing an adequate

59a

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. For

those reasons, the Court finds that Plaintiffs’ have a

high likelihood of success on the merits.

B. Irreparable Harm

Plaintiffs argue that without a right of review of

the board’s legal decision, Ohio laws deprive Plaintiffs

of their First Amendment rights. “Even a temporary

deprivation of First Amendment rights constitutes

irreparable harm in the context of a suit for an injunction.” Citizens for a Better Environment v. City of

Park Ridge, 567 F.2d 689, 691 (7th Cir. 1975) (citing

Schnell v. Chicago, 407 F.2d 1084, 1086 (7th Cir.

1969)). Without a right to appeal or review, Plaintiffs

will suffer irreversible injuries which could not be

remedied by law, absent injunctive relief.

C. Substantial Harm to Others; Public Interest

As the Supreme Court noted in Storer v. Brown, 415

U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974),

election structures are critical “if some sort of order,

rather than chaos, is to accompany the democratic

processes.” While election laws will “invariably impose

some burden on individual voters,” this Court must

balance the equities to ensure the state’s regulatory

interests justify any harm to others. Burdick, 504 U.S.

at 433, 112 S.Ct. 2059. Given this is an election case,

“harm to others” concerns only the public.

In the instant action, Plaintiffs argue Defendants

will suffer no injury should this Court enjoin the

60a

enforcement of O.R.C. § 3503.06(C)(1)(a). (ECF No. 3.)

Defendants contend preliminary relief would harm

Ohio by undermining its interest in regulating the

ballot process. (ECF No. 17) (citing Munro v. Socialist

Workers Party, 479 U.S. 189, 194-95, 107 S.Ct. 533,

93 L.Ed.2d 499 (1986)). Defendants cite Jones v.

Markiewicz-Qualkinbush, in which the Seventh Circuit

stated that “states have a strong interest in simplifying the ballot.” 892 F.3d 935, 938 (7th Cir. 2018).

Plaintiffs’ argument is well taken. Ohio’s regulatory

scheme unreasonably infringes on Plaintiffs’ First

Amendment rights by allowing an executive board to

determine disputed legal and even constitutional issues,

thereby potentially blocking initiatives from the ballot,

and then denying rejected petitioners a right to review.

Burdick, 504 U.S. at 438, 112 S.Ct. 2059. No legitimate state interest is protected by a lack of appellate

review. Similarly, Ohio voters are unlikely to suffer

cognizable harm from Plaintiffs’ access to the ballot.

Finally, in First Amendment cases, potential harm

to others stemming from preliminary relief is “‘dependent on a determination of the likelihood of success on

the merits of the First Amendment challenge.’” Committee to Impose Term Limits on the Ohio Supreme

Court and to Preclude Special Legal Status for Members

and Employees of the Ohio General Assembly v. Ohio

Ballot Board, 218 F.Supp.3d 589, 596 (S.D. Ohio 2016)

(quoting Jones v. Caruso, 569 F.3d 258, 278 (6th Cir.

2009)). For instance, if the “regulation in question is

likely to be deemed constitutional, the public interest

will not be harmed by its enforcement.” Id. Here,

Plaintiffs have a high likelihood of success on the merits.

Accordingly, the public is unlikely to suffer significant

harm from the injunctive relief that Plaintiffs seek.

61a

IV.

For the foregoing reasons, the Court GRANTS

Plaintiffs’ Application for a TRO (ECF No. 10.) Given

the fact that there is no possibility of financial harm to

Defendant, the Court dispenses with the requirement

of a bond. The Court hereby DIRECTS the Ohio

Secretary of State and the Portage County Board of

Elections to place both initiative petitions which are

the subject of this case on the upcoming ballot for the

election to be held on November 6, 2018. This Order

shall remain in effect for fourteen (14) days.

IT IS SO ORDERED.

62a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed: Sep 04, 2019

DEBORAH S. HUNT, CLERK]

————

No. 19-3196

————

WILLIAM T. SCHMITT; CHAD THOMPSON;

DEBBIE BLEWITT,

Plaintiffs-Appellees,

FRANK LAROSE, OHIO SECRETARY OF STATE,

Defendant-Appellant.

————

ORDER

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

The court received a petition for rehearing en banc.

The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission

and decision of the case. The petition then was circulated to the full court.* No judge has requested a vote

on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Judge Murphy recused himself from participation in this

ruling.

63a

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed: 08/13/2019]

————

No. 19-3196

————

WILLIAM T. SCHMITT, CHAD THOMPSON,

DEBBIE BLEWITT,

Plaintiffs-Appellees,

FRANK LAROSE,

OHIO SECRETARY OF STATE,

Defendant-Appellant.

————

On Appeal from the United States District Court

For the Southern District of Ohio

————

APPELLEES’ PETITION FOR

REHEARING EN BANC

————

Mark R. Brown

303 E. Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

mbrown@law.capital.edu

Attorneys for Appellees

Mark G. Kafantaris

625 City Park Avenue

Columbus, OH 43206

(614) 223-1444

(614) 300-5123 (fax)

mark@kafantaris.com

64a

TABLE OF CONTENTS

Page

Table of Authorities .............................................

Rule 35 Statement ...............................................

Statement of the Case .........................................

Reasons for Granting En Banc Review ..............

Concluding that Initiatives Are Not Subject

to Full First Amendment Protection Contradicts This Court’s and The Supreme

Court’s Precedents........................................

II. The Panel’s Conclusion That Ohio’s Gatekeeper Law Cannot Be A Prior Restraint

Contradicts This Court’s Precedents. ..........

III. Refusing to Apply Strict Scrutiny to ContentBased Decisions Contradicts Supreme Court

and Sixth Circuit Precedent. .......................

IV. The Panel’s Rejection of the Ohio Supreme

Court’s Interpretation of its Own Jurisdiction Constitutes Clear Error. .......................

This Court and the Supreme Court Have

Ruled that Common Law Writs Are Not

Adequate Procedural Safeguards. ...............

Conclusion............................................................

Certificate of Word-Count and Type-size ...........

Certificate of Service ...........................................

Addendum (No. 19-3196, Slip op.) (attached)

65a

TABLE OF AUTHORITIES

Cases

Page(s)

Buckley v. American Constitutional Law

Foundation, 525 U.S. 182 (1999) .....................

Citizens for Legislative Choice v. Miller, 144

F.3d 916 (6th Cir. 1998) ...................................

City of Cuyahoga Falls v. Buckeye Community

Hope Foundation, 538 U.S. 188 (2003) ...........

City of Lakewood v. Plain Dealer, 486 U.S. 750

(1988) ........................................................ 1, 6, 11, 17

Committee to Impose Term Limits on the Ohio

Supreme Court and to Preclude Special Legal

Status for Members of and Employees of the

Ohio General Assembly v. Ohio Ballot Board,

885 F. 3d 443 (6th Cir. 2018) ...........................

1, 8

Déjà vu of Nashville v. Metropolitan Government

of Nashville and Davidson County, 274 F.3d

372 (6th Cir. 2001) ..........................................passim

Freedman v. Maryland, 380 U.S. 51 (1965) ......passim

Garcia v. Texas, 564 U.S. 940 (2011) ..................

Hyman v. City of Salem, __ F. Supp.3d __, 2019

WL 2366015 (N.D. W.Va. 2019) ...................... 10, 11

Initiative & Referendum Institute v. Walker, 450

F.3d 1082 (10th Cir. 2006) ...............................

John Doe No. 1 v. Reed, 561 U.S. 186 (2010) .....

Marijuana Policy Project v. United States, 304

F.3d 82 (D.C. Cir. 2002) ...................................

Meyer v. Grant, 486 U.S. 414 (1988) ...................

66a

Miller v. City of Cincinnati, 622 F.3d 524 (6th

Cir. 2010) ..........................................................

Molinari v. Bloomberg, 564 F.3d 587 (2d Cir.

2009) .................................................................

Near v. Minnesota, 283 U.S. 697 (1931) .............

Novak v. City of Parma, __ F.3d __, 2019 WL

3403893 (6th Cir., July 29, 2019) ....................

Port of Tacoma v. Save Tacoma Water, 422 P.3d

917 (Wash. App. 2018) review denied, 192

Wash. 2d 1036 (Wash. 2019), cert. pending,

No. 18-1518 (U.S. 2019) ...................................

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .

Shuttlesworth v. City of Birmingham, 394 U.S.

147 (1969) .........................................................

State ex rel. Bolzenius v. Preisse, 155 Ohio St. 3d

45, 119 N.E.3d 358 (2018)................................

2, 3

State ex rel. Flak v. Betras, 152 Ohio St.3d 244,

95 N.E.3d 329 (2016) .......................................

State ex rel. Khumprakob v. Mahoning Board of

Elections, 153 Ohio St.3d 581, 109 N.E.3d

1184 (2018) .......................................................

State ex rel. Walker v. Husted, 144 Ohio St.3d

361, 43 N.E.3d 419 (2015)................................

2, 3

Taxpayers United for Assessment Cuts v.

Austin, 994 F.2d 291 (6th Cir. 1993) ...............

1, 8

Universal Film Exchange, Inc. v. City of

Chicago, 288 F. Supp. 286 (N.D. Ill. 1968) .....

Wirzburger v. Galvin, 412 F.3d 271 (1st Cir.

2005) .................................................................

67a

Wyman v. Secretary of State, 625 A.2d 307 (Me.

1993) ............................................................. 2, 11, 14

Federal Rules

Fed. R. App. P. 35 ................................................

1, 2

6th Cir. I.O.P. 35(a) .............................................

State Statutes

O.R.C. § 3501.11(K) .............................................

Miscellaneous

James D. Gordon, III, et al., Pre-Election

Judicial Review of Initiatives and Referendums,

64 NOTRE DAME L. REV. 298 (1989).....................

68a

RULE 35 STATEMENT

Appellees respectfully request Rehearing En Banc.

The Panel’s decision conflicts with decisions of the

Supreme Court, including Meyer v. Grant, 486 U.S.

414 (1988); Buckley v. American Constitutional Law

Foundation, 525 U.S. 182 (1999); City of Lakewood

v. Plain Dealer, 486 U.S. 750 (1988); Freedman v.

Maryland, 380 U.S. 51 (1965), and decisions of this

Court, including Taxpayers United for Assessment

Cuts v. Austin, 994 F.2d 291 (6th Cir. 1993); Committee to Impose Term Limits on the Ohio Supreme Court

and to Preclude Special Legal Status for Members of

and Employees of the Ohio General Assembly v. Ohio

Ballot Board, 885 F.3d 443 (6th Cir. 2018); Déjà vu of

Nashville v. Metropolitan Government of Nashville

and Davidson County, 274 F.3d 372 (6th Cir. 2001).

Consideration by the full Court is therefore necessary

to secure and maintain uniformity of this Court’s

decisions. See F. R. App. P. 35(b)(1)(A).

Further, the case involves questions of exceptional

importance, including whether and how the First

Amendment’s protections apply to popular democracy.

As Judge Bush recognized, these questions have generated splits in Sister Circuits and States’ high Courts.

See, e.g., Molinari v. Bloomberg, 564 F.3d 587 (2d Cir.

2009); Initiative & Referendum Inst. v. Walker, 450

F.3d 1082 (10th Cir. 2006) (en banc); Marijuana Policy

Project v. United States, 304 F.3d 82 (D.C. Cir. 2002);

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

Wyman v. Secretary of State, 625 A.2d 307 (Me. 1993).

See F. R. App. P. 35(b)(1)(B).

STATEMENT OF THE CASE

Initiatives may be directly put to voters in Ohio. In

order to gain ballot access, an initiative must first

69a

meet several ministerial requirements, including being

supported by a requisite number of voters’ signatures.

Assuming an initiative meets these content-neutral

procedural requirements, Ohio law then mandates one

last step: executive officials must be convinced that the

initiative’s content is acceptable.

This last step is codified as Ohio’s “gatekeeper” law,

O.R.C. § 3501.11(K). Local elections 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, 144 Ohio

St.3d 361, 363, 43 N.E.3d 419, 423 (2015). Some

proposed laws, those ostensibly addressing “administrative” as opposed to “legal” matters, may in the discretion of elections officials be deemed improper subjects for initiatives. Id. at 364, 43 N.E.3d at 423. Other

pieces of “municipal legislation that would be beyond

a municipality’s legislative power,” or not “fall[] within

the scope of the constitutional power of referendum or

initiative,” may likewise be excluded. State ex rel.

Bolzenius v. Preisse, 155 Ohio St. 3d 45, 47-48, 119

N.E.3d 358, 361-62 (2018). Applying these “puzzling”

distinctions, State ex rel. Khumprakob v. Mahoning

Board of Elections, 153 Ohio St.3d 581, 591-92, 109

N.E.3d 1184, 1192-93 (2018) (Fischer, J., concurring),

local elections officials exercise discretion to pick and

choose between proposed initiatives. Walker, 144 Ohio

St.3d at 364, 43 N.E.3d at 423.

Because these content-based decisions are discretionary with elections officials, the Ohio Supreme

Court has repeatedly emphasized that its review, exercised through mandamus, is limited to “determin[ing]

whether the board members abused their discretion in

determining that the proposed ordinance exceeds

[local] legislative power.” Preisse, 155 Ohio St. 3d at

70a

48, 119 N.E.3d at 362. “As is well-established,” the

Ohio Supreme Court explained in Walker, 144 Ohio

St.3d at 424, 43 N.E.3d at 365, “abuse of discretion

means more than an error of law or of judgment.” “In

close cases” the Ohio Supreme Court has stated, it

“might very well be compelled to find that [an election

official] reasonably disqualified a ballot measure, in

the exercise of his discretion, even if we, in the exercise

of our constitutional duties, would deem the measure

constitutional.” Id.

The Ohio Supreme Court has confessed that it “is

sometimes difficult to distinguish” appropriate subjects

from improper content. State ex rel. Flak v. Betras, 152

Ohio St.3d 244, 247, 95 N.E.3d 329, 332 (2016). Justice

Fischer in State ex rel. Khumprakob v. Mahoning

Board of Elections, 153 Ohio St.3d 581, 591-92, 109

N.E.3d 1184, 1192-93 (2018) (Fischer, J., concurring),

was even more frank, complaining that Ohio’s “puzzling” and “unworkable” gatekeeper law “does not lead

to consistent results among various county boards of

elections.”

This proved true in the present case, where local

elections boards in Ohio disagreed over the propriety

of Appellees’ identically-worded initiatives. Notwithstanding that several elections boards had already

approved Appellees’ initiative, the Portage County

Board of Elections, expressing its discretion, would

not: “the . . . petitions deal with subject matter that is

not subject to the initiative process, [and] the Board of

Elections, in its discretion, has chosen not to certify

these issues to the ballot.” Verified Complaint, Exhibit

4, R.1-4 (emphasis added).

Appellees challenged the Board’s exercise of contentbased discretion as an impermissible prior restraint.

Under Supreme Court and Sixth Circuit precedent,

71a

they claimed, executive officials cannot exercise contentbased discretion when deciding whether to permit

speech. Strict scrutiny is required, and Ohio’s gatekeeper law cannot pass that test. Even if it did, Appellees argued, local officials must employ procedural

safeguards to insure their decisions are correct. Here,

not only was the Board wrong (as Appellant conceded

at oral argument), Ohio’s safeguards are grossly inadequate.

The District Court agreed. A Panel (Clay, White,

and Bush, JJ.) of this Court, however, reversed. It

concluded that while the First Amendment applies to

initiatives, the First Amendment’s most important

and basic restriction – its prohibition on prior

restraints – does not. “We conclude . . . that the ballotinitiative process here is not a prior restraint.” Slip

op., Doc. No. 40-2, at 7. “Ohio’s ballot-initiative laws,”

it explained, “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.” Id. at 8. Further, the Panel ruled that because

mandamus review in Ohio – contrary to the Ohio

Supreme Court’s claim – is really de novo, and because

that review mechanism is itself content-neutral, strict

scrutiny does not apply. Id. at 10-11 & n.3.

Judge Bush, in his concurrence, went even further,

concluding that “the First Amendment simply is not

implicated by structural requirements for the adoption

of [initiatives] . . . .” Slip op., Doc. No. 40-2, at Page 23.

For the reasons stated below, Appellees respectfully

request rehearing en banc.

72a

REASONS FOR REHEARING EN BANC

I. Concluding that Initiatives Are Not Subject to Full First Amendment Protection

Contradicts This Court’s and The Supreme

Court’s Precedents.

Prior restraints by definition are structural; they

are designed to “regulate the process” by which information is presented to the public. Because a prior

restraint placed on an initiative is no different in this

regard, there is no principled reason for treating it

differently under the First Amendment.

For example, discretionary restraints on the placements of news racks, see City of Lakewood v. Plain

Dealer, 486 U.S. 750 (1988), and locations of adult businesses, see Déjà vu of Nashville v. Metropolitan Government of Nashville and Davidson County, 274 F.3d

372 (6th Cir. 2001), regulate how information reaches

the marketplace. Neither prohibits that information

from reaching its audience. Their restrictions are just

as “structural” and “second order” as Ohio’s restraint

on initiatives. In the Panel’s words, they “regulate the

process by which [the information] is put before the

[audience].” Yet both are clearly unconstitutional.

The lone authority cited by the Panel to support

treating popular democracy differently is Justice

Sotomayor’s opinion in John Doe No. 1 v. Reed, 561

U.S. 186, 212 (2010) (Sotomayor, J., concurring), see

Slip op., Doc. 40-2, at Page 8, a case that had nothing

to do with executive discretion and prior restraints.

The majority in Reed, 561 U.S. at 195, moreover,

applied full First Amendment scrutiny to Washington’s

disclosure requirement: “The State, having “cho[sen]

to tap the energy and the legitimizing power of the

democratic process, . . . must accord the participants

73a

in that process the First Amendment rights that attach

to their roles.” (Emphasis added and citation omitted).

It made no exception.

Contrary to the Panel’s conclusion, the Supreme

Court has never deviated from its holding that popular

democracy involves “core political speech.” It has never

shied from affording initiatives the utmost First

Amendment protection. In Meyer v. Grant, 486 U.S.

414, 421-22 (1988), for example, the Court not only

described popular democracy as involving “core political speech,” it added that “the importance of First

Amendment protections is ‘at its zenith’” when citizens

attempt to directly pass legislation. Id. at 424. The

Court emphasized in Meyer, 486 U.S. at 424, that

“[t]he First Amendment protects [the people’s] right

not only to advocate their cause but also to select what

they believe to be the most effective means for doing

so.” That choice includes initiatives.

These sentiments were repeated in Buckley v. American Constitutional Law Foundation, 525 U.S. 182,

186 (1999), where the Court stated that “[p]etition

circulation . . . is ‘core political speech.’” (Citation omitted). In City of Cuyahoga Falls v. Buckeye Community

Hope Foundation, 538 U.S. 188, 196 (2003), the Court

stated that popular initiatives and referenda are “basic

instrument[s] of democratic government.” (Citation

omitted). In sum, the Supreme Court has never treated

popular democracy as “second-order” speech deserving

less First Amendment protection.1

As explained by Judge Bush, Sister Circuits have disagreed

over how much First Amendment protection is due initiatives.

Slip op., Doc. No. 40-2, at Page 19 (Bush, J., concurring). This

split of authority is now before the Supreme Court in Port of

Tacoma v. Save Tacoma Water, 422 P.3d 917 (Wash. App. 2018),

review denied, 192 Wash. 2d 1036 (Wash. 2019), cert. pending,

74a

The Panel’s conclusion not only strays from this

controlling precedent, it contradicts rulings handed

down by this Court. In Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 296-97 (6th Cir.

1993), this Court cited Meyer in stating that although

“the right to initiate legislation is a wholly statecreated right,” the First Amendment still demands

that a State only place “nondiscriminatory, contentneutral limitations on the plaintiffs’ ability to initiate

legislation.” (Emphasis added). The Court emphasized

that “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. at 295. The Court created no “initiative exception”

to the First Amendment’s ordinary rules.

In Committee to Impose Term Limits on the Ohio

Supreme Court and to Preclude Special Legal Status

for Members of and Employees of the Ohio General

Assembly v. Ohio Ballot Board, 885 F. 3d 443, 446 (6th

Cir. 2018), the Court again employed established First

Amendment principles to sustain Ohio’s content-neutral

single-subject restriction on initiatives. The Court

made no mention of modifying First Amendment

jurisprudence or eliminating basic protections because

initiatives were involved.2

No. 18-1518 (U.S. 2019), which is scheduled for consideration at

the Supreme Court’s October 1, 2019 Conference.

The Panel’s conclusion is also in tension with established

non-public forum jurisprudence. Even when a state is within its

rights in identifying which topics and subjects are proper for discussion (which is arguably true with initiatives), this Court (and

many others) have recognized that the First Amendment’s prohibition on prior restraints still applies. See, e.g., Miller v. City of

Cincinnati, 622 F.3d 524, 528 (6th Cir. 2010). For this reason, as

75a

Because Ohio’s gatekeeper law cannot pass traditional First Amendment scrutiny – a fact the Panel

apparently conceded – the Panel chose to make an

exception. It relegated initiatives and referenda to

“second-order” status. On the First Amendment’s scale

of importance, oddly enough, direct democracy now

ranks below adult entertainment, see Déjà vu of

Nashville, 274 F.3d 372, pornography, see Freedman,

380 U.S. 51, and defamation. See Near v. Minnesota,

283 U.S. 697 (1931). With all due respect, such a profound result should be supported by more than a

passing reference to a concurring opinion in a dissimilar case. Appellees accordingly request that the Court

rehear this important matter en banc.

II. The Panel’s Conclusion That Ohio’s Gatekeeper Law Cannot Be A Prior Restraint

Contradicts This Court’s Precedents.

This Court has repeatedly recognized that the right

to be free from prior restraints is the most basic First

Amendment protection available. See, e.g., Novak v.

City of Parma, __ F.3d __, 2019 WL 3403893, *7 (6th

Cir., July 29, 2019) (“The First Amendment guarantees ‘greater protection from prior restraints.’”) (citations omitted). Saying that initiatives are protected by

the First Amendment but not protected by its most

basic component is like saying that people, while

protected by Equal Protection, can still be subjected to

the Panel noted, Appellees here did not challenge Ohio’s authority to restrict initiatives to particular subjects. See Slip op., Doc.

No. 40-2, at Page 11 n.3. Appellees did not do so because whether

Ohio could or could not, its delegation of content-based discretion

to executive agents must still satisfy the doctrine against prior

restraints (including both its procedural safeguards and strict

scrutiny).

76a

intentional racial discrimination. Carving away a

right’s most basic protection guts the right.

“A prior restraint” has been broadly defined by this

Court to be “an ‘administrative’ or ‘judicial order[ ]’

that forbids protected speech in advance.” Id. Whether

a prior restraint exists is not overly formalistic, as this

Court made clear in Novak, 2019 WL 3403893, at *8:

“in light of our long history of guarding against prior

restraints on speech, we should not be overly formalistic in defining what counts as an administrative

order.” (Citations omitted).

Licensing the subject and content of initiatives is the

quintessential example of an impermissible prior

restraint. See, e.g., Hyman v. City of Salem, __ F.

Supp.3d __, 2019 WL 2366015 (N.D. W.Va. 2019) (concluding that West Virginia’s delegation of discretion to

local elections officials to exclude initiatives constitutes an impermissible prior restraint). For this reason, few States3 follow Ohio’s prior-executive-discretion

model. In most States, the subject matter of an initiative cannot be challenged – even judicially – prior to

elections. See James D. Gordon, III, et al., Pre-Election

Judicial Review of Initiatives and Referendums, 64

NOTRE DAME L. REV. 298, 304 (1989).

Had the Panel not relegated popular democracy to

second-order status, it could have only reached one

conclusion: Ohio’s gatekeeper law codifies an unconstitutional prior restraint. It conditions the exercise of

core political activity on the prior discretionary

approval of an executive official, a practice that has

Only West Virginia, Maine and New York can be identified

as modeling Ohio, and in the first two Courts have invalidated

the prior approval mechanisms under the First Amendment. See

Hyman; Wyman v. Secretary of State, 625 A.2d 307 (Me. 1993).

77a

been condemned again and again by the Supreme

Court. In Shuttlesworth v. City of Birmingham, 394

U.S. 147 (1969), for example, the Supreme Court

struck down a Birmingham ordinance because it “conferred upon the City Commission virtually unbridled

and absolute power to prohibit any ‘parade,’ ‘procession,’ or ‘demonstration’ on the city’s streets or public

ways.” Id. at 150 (footnote omitted).

In Plain Dealer, 486 U.S. at 757, the Court invalidated as an impermissible prior restraint a city’s permitting scheme for news racks placed on public property: “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.” (Citations omitted).

In order for a restraint of this kind to overcome the

First Amendment’s presumption of unconstitutionality, it must at bare minimum build in a system of procedural safeguards. See Freedman, 380 U.S. 51 at 58.

This Court in Déjà vu of Nashville, 274 F.3d at 400,

summarized these procedural safeguards as including

not only prompt executive action, but also prompt judicial review initiated by the censor. Further, as recognized by the Panel, see Slip op., Doc. No. 40-2, at Page

7, the judicial review mandated by Freedman must be

de novo. See Universal Film Exchange, Inc. v. City of

Chicago, 288 F. Supp. 286, 293 (N.D. Ill. 1968) (“Since

Freedman . . ., it has been clear that only a de novo judicial determination . . . can justify a valid final restraint

of a motion picture in advance of exhibition.”).

Ohio’s gatekeeper law fails to include these safeguards. It does not provide de novo judicial review. It

does not maintain the status quo. It does not place the

burden of seeking review on the censor. Simply put,

Ohio’s gatekeeper law cannot pass established consti-

78a

tutional muster. The Panel’s holding contradicts

established law and should be reviewed en banc.

III. Refusing to Apply Strict Scrutiny to ContentBased Decisions Contradicts Supreme

Court and Sixth Circuit Precedent.

The Panel concluded that Ohio’s delegation of

content-based discretion to local elections boards is not

subject to strict scrutiny. It reached this conclusion in

part by mischaracterizing Appellees’ argument. It stated

in a footnote that because Appellees did not challenge

Ohio’s legislative authority to restrict its initiatives to

certain subjects, see Slip op., Doc. No. 40-2, at Page 11

n.3, Appellees somehow did not advance a contentbased challenge. Further, it stated, “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.” Id.

The Panel’s characterization of Appellees’ argument

is not correct. Appellees did not concede that Ohio’s

gatekeeper mechanism is content-neutral nor “focus”

on the inadequacy of mandamus. Far from either,

Appellees focused on the constitutionality of delegating content-based discretion to executive officials.

Regardless of whether Ohio’s legislature may otherwise restrict the subject matter of proper initiatives

(as with non-public fora it may be able to do so), and

irrespective of whether judicial mandamus applies

equally regardless of content (one assumes so), the

doctrine against prior restraints protects speech from

executive discretion. The executive discretion delegated by Ohio’s gatekeeper law is plainly contentbased. See Reed v. Town of Gilbert, 135 S. Ct. 2218

(2015).

79a

Where executive discretion is content-based, this

Court has made clear that strict scrutiny applies. In

addition to “provid[ing] for prompt judicial review of

all decisions denying the right to speak,” Déjà vu of

Nashville, 274 F.3d at 391, prior restraints must “also

pass[] the appropriate level of scrutiny.” Id. And when

a restraint on speech is based on subject matter or

content, “the law must survive strict scrutiny.” Déjà vu

of Nashville, 274 F.3d at 391.

Appellees’ challenge mirrors that in Wyman v.

Secretary of State, 625 A.2d 307 (Me. 1993), where

Maine had delegated similar discretion to elections

officials to exclude initiatives from ballots. The Court

there ruled that “[b]ecause the petition process is protected by the first amendment and the Secretary has

advanced no compelling interest in executive oversight

of the content of the petition prior to its circulation for

signature, his refusal to furnish the petition form

based on the content of the proposed legislation impermissibly violated Wyman’s rights protected by the first

amendment.” Id. at 312.

Contrary to the Panel’s conclusion, application of

strict scrutiny must also be employed under the

Anderson/Burdick framework. This Court in Citizens

for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th

Cir. 1998), observed that under the Anderson/Burdick

framework, “[f]irst, and most importantly, a law

severely burdens voting rights if it discriminates based

on content instead of neutral factors.” (Citation omitted). This severe burden must be subjected to “the

compelling interest standard.” Id. (citation omitted).

Because Ohio’s executive censors use content to

decide which initiatives to allow, their decisions necessarily impose severe burdens on speech. This kind of

severe burden must be measured by strict scrutiny, a

80a

standard Ohio’s gatekeeper approach plainly cannot

satisfy. The Panel apparently recognized as much,

conceding that “the State’s chosen method for screening ballot initiatives may not be the least restrictive

means available.” Slip op., Doc. No. 40-2, at Page 12.

IV. The Panel’s Rejection of the Ohio Supreme

Court’s Interpretation of its Own Jurisdiction Constitutes Clear Error.

The Panel concluded that the Ohio Supreme Court’s

description of its own mandamus authority is incorrect.4 Mandamus is not really discretionary, as repeatedly explained by the Ohio Supreme Court, it is mandatory and de novo. See Slip op., Doc. No. 40-2, at 1011. And because its review is mandatory and de novo,

the Ohio Supreme Court exercises sufficient review for

purposes of the First Amendment.

The Panel stepped far outside its assigned role in recreating Ohio law. Ohio’s Supreme Court might someday say that its mandamus review is de novo, but it

has never once done so. It has repeatedly emphasized

the deferential nature of its mandamus review. A

federal court’s “task is to rule on what the law is, not

what it might eventually be.” Garcia v. Texas, 564 U.S.

940, 941 (2011).

In addition to guiding appellate courts, moreover,

announced review standards are important signals to

potential litigants, like censors and their censored.

Thus, even if mandamus review were to prove effectively de novo in practice, its de jure announcement

Appellees understand that ordinarily mistakes about local

law should be reheard by the original panel. See 6th Cir. I.O.P.

35(a). The Panel’s misreading of Ohio’s mandamus law, however,

is so entwined with its improper construction of the First Amendment that it should be considered en banc.

81a

would still have a significant impact on speech. Being

told they have discretion, boards are incentivized (as

the Portage County Board was here) to censor. Being

told the decision is discretionary, the subject of censorship is deterred from challenging the decision.

The Panel recognized this fact, though it underestimated its magnitude by half: “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.” Slip op., Doc.

No. 40-2, at Page 11. The Panel omitted that the discretion granted to elections officials also encouraged

them to act. Regardless of whether Ohio’s mandamus

system is practically de novo, then, it chills speech. This

is precisely what the prohibition on prior restraints is

designed to prevent. See Freedman, 380 U.S. at 60

(“the chilling effect of a censorship order, even one

which requires judicial action for its enforcement,

suggests all the more reason for expeditious determination of the question whether a particular film is

constitutionally protected”).

V. This Court and the Supreme Court Have

Ruled that Common Law Writs Are Not

Adequate Procedural Safeguards.

This Court has concluded that review through

discretionary common law writs is insufficient to

satisfy First Amendment scrutiny. In Déjà vu of

Nashville, 274 F.3d at 400-01, the Court concluded that

Tennessee’s common-law review process did not satisfy

Freedman’s requirements: “Whether the common law

writ of certiorari will issue is a matter of discretion. It

is not issued as a matter of right.” (Citation omitted).

82a

Similarly, the Supreme Court in Plain Dealer, 486

U.S. at 771, ruled that Ohio’s writ of mandamus was

not sufficient to save a delegation of discretionary

power to local officials to pick and choose between

news racks: “that review . . . cannot substitute for

concrete standards to guide the decision-maker’s discretion.” For this same reason, Ohio’s mandamus

mechanism cannot save its delegation of discretionary

authority to local elections officials. Because the Panel’s

conclusion not only re-writes Ohio’s view of mandamus, but also contradicts this precedent, Appellees

respectfully request that the Court rehear the case

en banc.

CONCLUSION

Appellees’ respectfully request that this petition be

GRANTED.

Respectfully submitted,

s/ Mark R. Brown _______

Mark G. Kafantaris

625 City Park Street

Columbus, OH 43206

(614) 223-1444

(614) 300-5123

mark@kafantaris.com

Attorneys for Appellees

Mark R. Brown

303 East Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

mbrown@law.capital.edu

83a

CERTIFICATE OF WORD-COUNT

AND TYPE-SIZE

Appellees certify that they have prepared this

document in 14-point Times New Roman proportional

font and that excluding the Cover, Signature Block,

and Certificates the document contains 3894 words.

s/ Mark R. Brown __

Mark R. Brown

CERTIFICATE OF SERVICE

I certify that this Petition was filed on August 13,

2019 using the Court’s electronic filing system and will

thereby be served on all parties to this proceeding.

s/ Mark R. Brown __

Mark R. Brown

84a

APPENDIX F

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed: 05/22/2019]

————

No. 19-3196

————

WILLIAM T. SCHMITT, CHAD THOMPSON, DEBBIE BLEWITT,

Plaintiffs-Appellees,

FRANK LAROSE, OHIO SECRETARY OF STATE,

Defendant-Appellant.

————

On Appeal from the United States District Court

for the Southern District of Ohio

————

BRIEF FOR APPELLEES, WILLIAM T. SCHMITT,

CHAD THOMPSON, DEBBIE BLEWITT

————

Mark R. Brown

303 E. Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

mbrown@law.capital.edu

Attorneys for Appellees

Mark G. Kafantaris

625 City Park Avenue

Columbus, OH 43206

(614) 223-1444

(614) 300-5123 (fax)

mark@kafantaris.com

85a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations

and Financial Interest

Sixth Circuit

Case Number: 19-3196

Case Name: Schmitt v. LaRose

Name of counsel: Mark R. Brown

Pursuant to 6th Cir. R. 26.1, William Schmitt, Chad

Thompson, Debbie Blewitt

Name of Party

makes the following disclosure:

Is said party a subsidiary or affiliate of a publicly

owned corporation? If Yes, list below the identity

of the parent corporation or affiliate and the

relationship between it and the named party:

No.

Is there a publicly owned corporation, not a party

to the appeal, that has a financial interest in the

outcome? If yes, list the identity of such

corporation and the nature of the financial

interest:

No.

86a

CERTIFICATE OF SERVICE

I certify that on April 19, 2019 the foregoing document was served on all parties or their counsel of

record through the CM/ECF system if they are registered users or, if they are not, by placing a true and

correct copy in the United States mail, postage

prepaid, to their address of record.

s/ Mark R. Brown

303 E. Broad Street

Columbus, OH 43215

This statement is filed twice: when the appeal

is initially opened and later, in the principal briefs,

immediately preceding the table of contents.

See 6th Cir. R. 26.1 on page 2 of this form.

87a

TABLE OF CONTENTS

Table of Authorities .................................................... iii

Statement in Support of Oral Argument ................. viii

Statement of the Issue ................................................ 1

Statement of the Case ................................................. 1

A. Ohio’s Gatekeeper Law – O.R.C.

§ 3501.11(K)............................................................ 3

B. Additions to Discretion – House Bill 463. ............. 8

C. The Proceedings Below. ....................................... 15

Summary of Argument .............................................. 20

Argument ................................................................... 22

I. The First Amendment Protects Initiatives

and Applies to the Initiative Process. ................. 25

II. Ohio’s Delegation of Discretion to Elections

Boards Fails First Amendment Scrutiny

Because it Constitutes An Impermissible

Prior Restraint. ................................................... 27

A. Ohio’s Gatekeeper Law Vests Discretion

Over Subject Matter and Content in Local

Elections Officials. ............................................... 30

B. Ohio Courts Do Not Review Executive

Gatekeeping Decisions De Novo. ......................... 35

C. Ohio’s Gatekeeper Law Does Not Maintain

the Status Quo While Judicial Review is

Being Sought. ....................................................... 40

D. Ohio’s Gatekeeper Mechanism Does Not

Place the Burden on Local Elections Officials

to Seek Judicial Review. ...................................... 41

88a

E. Content-Neutral Time, Place and Manner

Restrictions Can Also Constitute Improper

Prior Restraints. ................................................... 41

F. Ohio’s Gatekeeper Law Is An Impermissible

Prior Restraint Even if Initiatives Are

Treated as a Non-Public Forum. ......................... 43

III. Ohio’s Gatekeeper Mechanism Cannot

Pass Strict First Amendment Scrutiny. ........... 44

IV. Invalidation of Ohio’s Gatekeeper Law Is

Not Confusing. ................................................... 52

Section 1983 Plaintiffs Can Not Be

Compelled to Use the Procedures They

Challenge Under the First Amendment. .......... 54

Conclusion ................................................................. 54

Certificate of Word-Count and Type-size ................. 55

Certificate of Service ................................................. 55

Addendum: Designation of Relevant District

Court Documents ....................................................... 56

89a

TABLE OF AUTHORITIES

Cases

Page

A Quantity of Books v. Kansas, 378 U.S. 205

(1964) ...................................................................... 28

Amandola v. Town of Babylon, 251 F.3d 339 (2d

Cir. 2001) ................................................................ 44

Aye v. Mahoning County Board of Elections, 2008

WL 554700 (N.D. Ohio 2008)................................. 49

Bantum Books v. Sullivan, 372 U.S. 58 (1961) ........ 28

Barrett v. Walker County School District, 872

F.3d 1209 (11th Cir. 2017) ..................................... 44

Board of Regents v. Roth, 408 U.S. 564 (1972) ......... 29

Bose v. Consumers Union, Inc., 466 U.S. 485

(1984) ...................................................................... 36

Buckley v. American Constitutional Law

Foundation, 525 U.S. 182 (1999) ..................... 20, 25

Carroll v. President and Commissioners of

Princess Anne, 393 U.S. 175 (1969) ....................... 28

Citizens for Legislative Choice v. Miller, 144

F.3d 916 (6th Cir. 1998) ................................... 21, 24

City of Cincinnati v. Hillenbrand, 133 N.E. 556

(Ohio 1921) ............................................................. 38

City of Cuyahoga Falls v. Buckeye Community

Hope Foundation, 538 U.S. 188 (2003) 20, 23, 25, 27

City of Lakewood v. Plain Dealer, 486 U.S. 750

(1988) .............................................. 31, 38, 41, 42, 43

90a

Committee to Impose Term Limits on the Ohio

Supreme Court and to Preclude Special Legal

Status for Members of and Employees of the

Ohio General Assembly v. Ohio Ballot Board,

885 F. 3d 443 (6th Cir. 2018) ........................... 25, 32

Déjà vu of Nashville v. Metropolitan Government

of Nashville and Davidson County, 274 F.3d

372 (6th Cir. 2001) ..........................................passim

Federal Communications Commission v. Fox

Television Stations, 567 U.S. 239 (2012)............... 29

Forsyth County v. Nationalist Movement, 505

U.S. 123 (1990) ....................................................... 31

Freedman v. Maryland, 380 U.S. 51 (1965) ......passim

Garcetti v. Ceballos, 547 U.S. 410 (2006) ................. 26

Garcia v. Texas, 564 U.S. 940 (2011) ........................ 39

Herrington v. Cuevas, 1997 WL 703392

(S.D.N.Y. 1997) ...................................................... 48

Hyman v. City of Salem, No. 19-75 (N.D. W.Va.,

April 19, 2019) ........................................................ 48

Initiative & Referendum Institute v. Walker, 450

F.3d 1082 (10th Cir. 2006) ..................................... 49

Jones v. Markiewicz-Qualkinbush, 892 F.3d 935

(7th Cir. 2018) ........................................................ 49

Kunz v. New York, 340 U.S. 290 (1951) .................... 33

Las Vegas Taxpayer Accountability Committee

v. City Council of City of Las Vegas, 125 Nev.

165, 208 P.3d 429(2009) ......................................... 46

Libertarian Party of Ohio v. Husted, 831 F.3d

382 (6th Cir. 2016) ................................................. 27

91a

Marijuana Policy Project v. United States, 304

F.3d 82 (D.C. Cir. 2002) ................................... 49, 50

Mazzone v. Attorney General, 432 Mass. 515,

736 N.E.2d 358 (2000) ........................................... 52

Meyer v. Grant, 486 U.S. 414 (1988) ................... 20, 25

Miller v. City of Cincinnati, 622 F.3d 524 (6th

Cir. 2010) .......................................................... 34, 43

Minnesota Voters Alliance v. Mansky, 138 S. Ct.

1876 (2018) ..................................... 27, 33, 34, 52, 53

Myers v. Schiering, 271 N.E.2d 864 (Ohio 1971) ...... 38

New

York

Magazine

Metropolitan

Transportation Authority, 136 F.3d 123 (2d

Cir. 1998) ................................................................ 43

Nwanguma v. Trump, 903 F.3d 604 (6th Cir.

2018) ....................................................................... 26

Nevada Commission on Ethics v. Carrigan, 564

U.S. 117 (2011) ................................................. 26, 27

Ohio Citizen Action v. City of Englewood, 671

F.3d 564 (6th Cir. 2012) ......................................... 42

Ohio Council 8 American Federation of State,

County and Municipal Employees v. Husted,

814 F.3d 329 (6th Cir. 2016) .................................. 27

Palko v. Connecticut, 302 U.S. 319 (1937) ................ 24

Patsy v. Board of Regents, 457 U.S. 496 (1982) ........ 54

Port of Tacoma v. Save Tacoma Water, 422 P.3d

917 (Wash. App. 2018) ..................................... 50, 51

Rebel Motor Freight v. Interstate Commerce

Commission, 971 F.2d 1288 (6th Cir. 1992).......... 24

Reed v. Town of Gilbert, 135 S. Ct. 2218

(2015) .......................................................... 34, 35, 52

92a

Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992) .......... 16

Scottsdale Ins. Co. v. Flowers, 514 F.3d 546 (6th

Cir. 2008) ................................................................ 38

Shuttlesworth v. City of Birmingham, 394 U.S.

147 (1969) ............................................. 30, 31, 53, 54

Six Star Holdings v. City of Milwaukee, 821

F.3d 795 (7th Cir. 2016) ......................................... 42

Speiser v. Randall, 357 U.S. 513 (1958) ................... 28

State ex rel. Bolzenius v. Preisse, 155 Ohio St. 3d

45, 119 N.E.3d 358 (2018)............................ 8, 11, 12

State ex rel. Espen v. Wood County Board of

Elections, 154 Ohio St.3d 1, 110 N.E.3d 1222

(2017) .................................................................. 9, 10

State ex rel. Flak v. Betras, 152 Ohio St.3d 244,

95 N.E.3d 329 (2016) ............................... 5, 6, 11, 35

State ex rel. Home v. Adams, 154 W.Va. 269, 175

S.E.2d 193 (1970) ................................................... 48

State ex rel. Khumprakob v. Mahoning Board of

Elections, 153 Ohio St.3d 581, 109 N.E.3d

1184 (2018) ..................................... 10, 11, 12, 13, 14

State ex rel. Maxcy v. Saferin, ___ N.E.3d ___,

2018 WL 4846266 (Ohio 2018) ............ 14, 22, 23, 52

State ex rel. Ray v. Skaff, 190 W.Va. 504, 438

S.E.2d 847 (1993) ................................................... 48

State ex rel. Sensible Norwood v. Hamilton

County Board of Elections, 148 Ohio St.3d

176, 69 N.E.3d 696 (2016).................... 3, 6, 7, 37, 40

State ex rel. Sensible Norwood v. Hamilton

County Board of Elections, 2016-Ohio-5919 ........... 2

93a

State ex rel. Walker v. Husted, 144 Ohio St.3d

361, 43 N.E.3d 419 (2015).......................... 3, 4, 5, 32

State ex rel. Youngstown v. Mahoning County

Board of Elections, 144 Ohio St.3d 239, 41

N.E.3d 1229 (2015) .................................................. 6

Thomas v. Chicago Park District, 534 U.S. 316

(2002) ................................................................ 32, 42

Taxpayers United for Assessment Cuts v.

Austin, 994 F.2d 291 (6th Cir. 1993) ............... 20, 24

Universal Film Exchange, Inc. v. City of

Chicago, 288 F. Supp. 286 (N.D. Ill.

1968) ....................................................................... 36

Waste Management of Ohio v. City of Dayton,

169 Fed. Appx. 976 (6th Cir. 2006) ....................... 24

Wirzburger v. Galvin, 412 F.3d 271 (1st Cir.

2005) ....................................................................... 51

Wyman v. Secretary of State, 625 A.2d 307 (Me.

1993) ........................................................... 44, 45, 47

Federal Statutes

42 U.S.C. § 1983 .................................................. 16, 54

State Statutes

H.B. 463 ................................................ 8, 9, 10, 13, 14

O.R.C. § 3501.05 ........................................................ 16

O.R.C. § 3501.11(K) ............................................passim

O.R.C. § 3501.11(K)(1) ..................................... 8, 11, 13

O.R.C. § 3501.11(K)(2) ........................................... 8, 11

O.R.C. § 3501.38(M) .................................................... 8

94a

O.R.C. § 3501.38(M)(1)(a) ............................................ 9

O.R.C. § 3501.39(A) ..................................................... 9

Miscellaneous

James D. Gordon, III, et al., Pre-Election

Judicial Review of Initiatives and Referendums,

64 NOTRE DAME L. REV. 298 (1989)........................... 47

Matt Harvey, Fed. judge: Salem, WV, officials

must put marijuana measure on June 4 ballot,

WVNEWS, April 19, 2019 ........................................... 48

56 OHIO JUR.3d, Initiative and Referendum § 12

(2019) ......................................................................... 52

Scott L. Kafker & David A. Rusccol, The Eye of

the Storm: Pre-election Review By The State

Judiciary of Initiative Amendments to State

Constitutions, 2012 MICH. ST. L. REV. 1279........ 46, 47

Henry P. Monaghan, First Amendment “Due

Process,” 83 HARV. L. REV. 518 (1970) ...................... 36

Note, Allan Tanambaum, “New and Improved”:

Procedural Safeguards for Distinguishing

Commercial From Non-Commercial Speech, 88

COLUM. L. REV. 1821 (1988)....................................... 36

Portage County General Election, Nov. 6, 2018,

Summary Report ....................................................... 17

95a

STATEMENT IN SUPPORT OF

ORAL ARGUMENT

This case was orally argued twice to the District

Court, and the oral arguments appeared to be helpful

to the District Court’s understanding of Ohio’s gatekeeper law. For that same reason, Appellees believe

that oral argument may be useful in this Court. Appellees accordingly respectfully request oral argument.

STATEMENT OF THE ISSUE

Whether Ohio’s gatekeeper law in O.R.C. § 3501.11(K),

which delegates executive discretion to elections officials to determine whether the content and subject

matter of initiatives is lawful, and which affords judicial review only by extraordinary writ of mandamus

for fraud, abuse of discretion or clear error, violates

the First and Fourteenth Amendments.

STATEMENT OF THE CASE

Plaintiffs/Appellees Schmitt and Thompson (hereinafter collectively “Schmitt”)1 are the drafters and

circulators of two initiatives proposed for ballots in the

Villages of Garrettsville and Windham, Ohio. See Verified

Complaint, R.1, at PAGEID # 6-7; Exhibit 1, R.1-1;

Exhibit 2, R.1-2. Both initiatives included identical

proposed ordinances calling for the “decriminalization”

of marijuana possession.2 Both initiatives were found

to have satisfied all the procedures required by Ohio

law. Id. at PAGEID # 7. They were supported by a sufficient number of signatures, were timely, addressed

Plaintiff/Appellee Blewitt is a registered voter living in

Windham who signed Schmitt’s and Thompson’s initiative. She is

included without further mention in the collective reference to

“Appellees” and “Schmitt.”

This was accomplished in the initiatives by removing any

penalties for marijuana possession.

96a

single subjects, used the correct forms, and were

certified by the two Villages. Id.

Schmitt previously circulated several of these initiatives, in identical form, throughout Ohio. Identical copies

of the proposed Garrettsville and Windham ordinances

had been successfully approved for inclusion on ballots

in Oregon, Fremont and Norwood, Ohio. See Verified

Complaint, R.1, at PAGEID # 8; Exhibit 5, R.1-5;

Exhibit 6, R.1-6; Exhibit 7, R.1-7.

Notwithstanding that Schmitt’s Garrettsville and

Windham initiatives were certified by the Villages to

contain the requisite number of voters’ signatures

and otherwise to have met the technical requirements

for inclusion on the Villages’ respective ballots, the

Portage County Board of Elections on August 20, 2018

ruled that the subject-matter of the two initiatives was

unlawful. It accordingly removed them from the two

Villages’ ballots. The Portage County Board of Elections

on August 21, 2018 explained to Schmitt that:

In State ex rel. Sensible Norwood v. Hamilton

County Board of Elections, 2016-Ohio-5919, the

Oho [sic] Supreme Court said administrative actions

are not subject to initiative. 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.

Verified Complaint, Exhibit 4, R.1-4 (emphasis added).

97a

In rejecting Schmitt’s initiatives, the Board relied on

the “discretion” delegated to it by Ohio’s so-called

“gatekeeper” law. See State ex rel. Sensible Norwood v.

Hamilton County Board of Elections, 148 Ohio St.3d

176, 69 N.E.3d 696 (2016). This law, codified in O.R.C.

§ 3501.11(K), authorizes local elections officials to

exercise discretion in choosing which initiative “subject

matters” to include on ballots and which to exclude. As

explained below, Ohio’s gatekeeper mechanism has

been construed by the Ohio Supreme Court to vest

subject-matter discretion in local elections officials,

see, e.g., State ex rel. Walker v. Husted, 144 Ohio St.3d

361, 43 N.E.3d 419, 423 (2015), with only limited,

deferential mandamus review in Ohio’s courts. Id.

A. Ohio’s Gatekeeper Law – O.R.C. § 3501.11(K).

Section 3501.11(K) of the Ohio Revised Code, both

before and after legislative additions in 2017, see

page 8, infra, provides that local elections boards possess authority to “[r]eview, examine, and certify the

sufficiency and validity of petitions and nomination

papers . . . .” It has been interpreted by the Ohio

Supreme Court to afford local elections boards discretion to decide which topics for initiatives are lawful

and those which are not. In sum, “administrative”

matters may be excluded at the discretion of elections

officials, as might subjects that elections officials decide

otherwise fall outside local authority. What is administrative and what falls outside local authority, as

explained by Ohio’s Supreme Court, present “difficult”

legal questions.

Elections officials’ authority to consider constitutional questions, meanwhile, is murkier still. According

to the Ohio Supreme Court, election boards have

authority to decide whether initiatives fall under a

municipality’s constitutional authority, but they cannot

98a

decide whether initiatives are constitutional. Because

review is limited, moreover, executive decisions have

generated a large measure of indeterminacy. Not only

are the required distinctions “difficult” to make, according to the Ohio Supreme Court, they can according to

one Justice (Fischer) be “unnecessarily confusing” and

“without meaning.” Justice Fischer has offered that all

in all, § 3501.11(K) “defie[s] workability.”

* * *

Section 3501.11(K) was explained in State ex rel.

Walker v. Husted, 144 Ohio St.3d 361, 43 N.E.3d

419, 423 (2015), to empower local elections officials to

“serve as gatekeepers, to ensure that only those measures

that actually constitute initiatives or referenda are

placed on the ballot.” (Emphasis added). “It necessarily follows,” the Ohio Supreme Court added, “that

the boards have discretion to determine which actions

are administrative and which are legal.” Id. (emphasis

added). “Administrative” subjects are not proper

subjects of initiatives. Id. “Legal” topics are. Id.

The Ohio Supreme Court in Walker further observed

that O.R.C. § 3501.11(K) “vests the board of elections

with authority to go beyond the face of the petition in

determining validity, and that ‘[t]he substantive limitation is only that the board of elections has no power

to determine that an issue should not be placed on the

ballot because if passed it would be unconstitutional

or otherwise illegal.’” 144 Ohio St.3d at 364, 43 N.E.3d

at 424. Thus, local election boards are entitled “to

determine whether a ballot measure falls within the

scope of the constitutional power of referendum (or

initiative),” id., but are still not permitted “to sit as

arbiters of the legality or constitutionality of a ballot

measure’s substantive terms.” Id.

99a

Walker made much of the fact that the Ohio Supreme

Court’s authority to review the decisions of elections

officials is based in mandamus: “[c]hallenges to his

decisions would then come before this court in mandamus, and the question would be whether the secretary

abused his discretion.” Id. at 365, 43 N.E.2d at 424.

“As is well-established, abuse of discretion means

more than an error of law or of judgment.” Id. “In close

cases, therefore, we might very well be compelled to

find that the secretary reasonably disqualified a ballot

measure, in the exercise of his discretion, even if we,

in the exercise of our constitutional duties, would

deem the measure unconstitutional.” Id.

Subsequent cases have reinforced the Ohio Supreme

Court’s limited review of elections boards’ decisions, as

well as the confusion surrounding exactly what kinds

of decisions local elections officials can make. Indeed,

by its own admission the Ohio Supreme Court has not

achieved much success. In State ex rel. Flak v. Betras,

152 Ohio St.3d 244, 247, 95 N.E.3d 329, 332 (2016),

which ruled that a local board possessed discretion to

reject an initiative creating a private cause of action

(which according to the board exceeded local power),

the Court conceded the “difficult” nature of the task:

Our jurisprudence has distinguished between an

elections board’s determining that a proposed initiative may be unconstitutional and an elections

board’s determining that a proposed initiative

falls outside the scope of the permissible subject

matter of a municipal initiative. . . . It is fair to say

that it is sometimes difficult to distinguish between

a provision that a municipality is not authorized

to adopt by legislative action (something an elections

board may determine per Sensible Norwood) and

one that is simply unconstitutional (something an

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elections board may not determine, per Youngstown).

But that is the line our case law has drawn.

Id. at 247, 95 N.E.3d at 332.3

State ex rel. Sensible Norwood v. Hamilton County

Board of Elections, 148 Ohio St.3d 176, 69 N.E.3d 696

(2016), which was relied upon by the Portage County

Board of Elections in the present matter, involved an

initiative that sought to include a marijuana decriminalization ordinance on a local ballot. Its language,

like the initiatives at issue here, included a provision

reducing local penalties for not only misdemeanor

marijuana possession laws, but also felonies. The local

elections board refused to place the initiative on the

ballot because it believed the initiative exceeded local

authority by defining felonies. Id. at 177, 69 N.E.3d

at 697. The board also concluded that the initiative

impermissibly “imposed administrative restrictions on

the enforcement of existing laws

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.