Jolivette v. Husted, 2012 U.S. Dist. LEXIS 114969

Greg Jolivette seeks a preliminary injunction to prevent denial of his candidacy as an independent for Ohio’s 51st House District in 2012.
Defendants include Ohio Secretary of State Husted and Butler County Board of Elections members Cloud, Ellis, Shelton, and Carter.
The Board certified petitions and then protest was filed; Secretary Husted ultimately sustained the protest denying independence.
Jolivette had disparately switched from Republican to independent after withdrawing Republican candidacy in Dec. 2011 and sought to run as independent in 2012.
Advisory opinions and Ohio statutes govern independence, petition protests, and cross-party affiliations; the court heard August 6, 2012.
The court denies Jolivette’s preliminary injunction and dismisses the board members’ motion to dismiss for lack of jurisdiction; final judgment entered for defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Jolivette’s First Amendment rights were violated	Jolivette claims misapplication of independent candidacy due to good-faith disaffiliation	Husted argues independence was not made in good faith and lawfully denied	No violation; Jolivette not an independent candidate under Morrison framework
Equal Protection challenge to party disaffiliation and protests	Ohio law treats independents differently from partisan candidates in ways that lack justification	Differences reflect distinct paths to ballot access; no equal protection violation	No Equal Protection violation; different treatments are justified by election-structure realities
Provisions on petition protests for independents vs partisans violate rights	Protests against independents allowed by any elector, but partisan challenges limited to same-party electors	Paths to ballot differ; provisions are consistent with system	No violation; framework is reasonable given election structure
Subject matter jurisdiction over Count I	Count I seeks review of application of Ohio law to Jolivette’s candidacy	Board members argue lack of subject matter jurisdiction	Count I reviewable; injunction denied for merits; dismissal moot
Proper party status of Board members in action	(Not explicitly echoed in detail)	Board members are proper defendants in official-capacity suit	Remainder moot; injunction denied

Morrison v. Colley, 467 F.3d 503 (6th Cir. 2006) (independence requires good-faith disaffiliation from party; no feigned independence)
Storer v. Brown, 415 U.S. 724 (1984) (state may restrict candidate access to ballot to protect integrity of process)
Burdick v. Takushi, 504 U.S. 428 (1992) (balanced approach to election regulations; avoid chaos while respecting rights)
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (regulatory burden on voting rights must be reasonable and non-discriminatory)
State ex rel. Purdy v. Clermont Cty. Bd. of Elections, 77 Ohio St.3d 338, 673 N.E.2d 1351 (1997) (state interests in orderly elections and preventing frivolous candidacies)
State ex rel. Canales-Flores v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 129, 841 N.E.2d 757 (2005) (withdrawn petitions and refiled petitions analysis under Canales-Flores framework)
Morrison v. Secretary of State, (see Morrison cited in opinion) (2006) (advisory opinion on independence and good-faith disaffiliation)