810 F.3d 437
6th Cir.2016Background
- Ohio enacted in 2013 a law barring non-Ohio residents from circulating initiative and most nominating petitions, Ohio Rev. Code § 3503.06(C)(1)(a). Presidential nominating petitions are exempt.
- Three non-profits (and a member) challenged the residency requirement as violating the First Amendment; they sued Secretary of State Jon Husted seeking declaratory and injunctive relief and money damages for extra costs incurred hiring in-state circulators.
- Husted replied he would enforce the statute until a court said otherwise; plaintiffs nonetheless hired in-state circulators and later obtained a district-court injunction declaring the statute unconstitutional and denying Husted qualified immunity on the damages claim.
- Husted appealed only the denial of qualified immunity (not the injunction or invalidity ruling). The Sixth Circuit considered whether Husted had a clearly established duty to refuse enforcement and thus be personally liable for damages.
- The court held that enforcing a duly enacted, presumptively constitutional statute—absent controlling precedent declaring it unconstitutional—generally affords qualified immunity unless the law is "so grossly and flagrantly unconstitutional" that any reasonable official would know otherwise.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Husted violated clearly established First Amendment rights by saying he would enforce Ohio's residency requirement | Nader and related rulings put Husted on notice that residency rules are unconstitutional; he should have declined enforcement | No controlling precedent made the revised 2013 statute clearly unconstitutional; enforcing a presumptively valid law is objectively reasonable | Held for Husted: no clearly established right; qualified immunity applies |
| Whether plaintiffs suffered damages caused by Husted's enforcement decision | Plaintiffs incurred extra costs hiring in-state circulators because of the Secretary's statement | Husted's letter merely stated he would enforce the law until a court directed otherwise; plaintiffs could have sought injunctive relief earlier | Court did not rest the decision on causation; found qualified immunity dispositive |
| Whether Nader v. Blackwell compelled liability for enforcing the revised statute | Nader invalidated the prior statute and should have alerted Husted that residency restrictions are unconstitutional | The 2013 statute differs materially from the statute in Nader (presidential exemption; residency untethered from county/precinct registration), so Nader did not clearly control | Held that Nader did not clearly establish that the revised statute was unconstitutional |
| Whether circuit split/other precedents deprived Husted of a reasonable basis to enforce the law | Circuits have struck down similar statutes; rights were clearly established | A circuit split (Eighth upholding, Tenth invalidating) and fact-intensive balancing make reasonable disagreement plausible | Held that conflicting decisions and interest-balancing supported Husted’s reasonable judgment |
Key Cases Cited
- Harlow v. Fitzgerald, 457 U.S. 800 (qualified immunity protects officials who did not violate clearly established rights)
- Pearson v. Callahan, 555 U.S. 223 (qualified-immunity standard and permissive sequencing of the two-step inquiry)
- Michigan v. DeFillippo, 443 U.S. 31 (enforcement of duly enacted law ordinarily reasonable; exception for laws flagrantly unconstitutional)
- Pierson v. Ray, 386 U.S. 547 (officials should not face damages for enforcing laws when acting reasonably)
- Nader v. Blackwell, 545 F.3d 459 (6th Cir.) (invalidating Ohio’s prior residency/registration requirement)
- Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (petition circulation is core political speech; levels-of-scrutiny/ burden framework)
- Meyer v. Grant, 486 U.S. 414 (petition circulation involves core political speech)