Libertarian Party of Ohio v. Jon Husted
751 F.3d 403
6th Cir.2014Background
- Libertarian Party of Ohio (LPO) and candidates (including Charlie Earl) filed nominating petitions for the May 2014 primary; petitions required circulator disclosure under Ohio Rev. Code § 3501.38(E)(1).
- Professional circulator Oscar Hatchett and others (some paid by third parties) collected signatures but left the employer box on petition pages blank; many signatures otherwise met statutory requirements.
- A voter, Gregory Felsoci, protested certification, arguing § 3501.38(E)(1) requires disclosure from independent contractors as well as employees; hearing officer and Secretary of State Husted invalidated petition papers lacking employer information and removed candidates from the ballot.
- LPO sued in federal court seeking a preliminary injunction, alleging § 3501.38(E)(1) is facially overbroad under the First Amendment and void for vagueness/violative of due process as enforced; district court denied the injunction.
- Sixth Circuit reviewed de novo the First Amendment likelihood-of-success question and affirmed, holding (1) LPO’s facial First Amendment overbreadth challenge failed under exacting scrutiny given scant evidence of chill and substantial state interests in deterring circulator fraud, and (2) the vagueness/due process challenge failed because "employing" reasonably covered independent contractors and there was no unlawful change in enforcement policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3501.38(E)(1) is facially overbroad under the First Amendment (employer disclosure for petition circulators) | Disclosure chills paid circulators and donors to minor/unpopular causes, deterring petition circulation | Disclosure advances transparency and deters/detects circulator fraud; burden is minimal and post-signature (scant evidence of chill) | Denied: LPO unlikely to succeed; disclosure survives exacting scrutiny given limited burden and substantial state interest |
| Whether enforcement violated due process as vague (meaning of "employing") | "Employing" is ambiguous; LPO lacked notice that independent contractors must disclose clients | "Employ" commonly means to engage services and reasonably includes independent contractors; Ohio Supreme Court confirmed this interpretation | Denied: term is not unconstitutionally vague; LPO failed to show facial vagueness |
| Whether enforcement violated due process via abrupt policy change/non-enforcement reliance | Past non-enforcement directives led LPO to reasonably rely on non-enforcement; sudden enforcement is arbitrary | Directives restated statutory allocation of duties and did not create a policy of non-enforcement; no Fox-like abrupt change | Denied: no comparable abrupt policy change; LPO had notice of the statutory requirement |
| Whether preliminary injunction was warranted given irreparable harm and public interest | Removal from ballot and likely loss of party status constitute irreparable harm; public interest favors protecting First Amendment rights | Likelihood of success on the merits is determinative; LPO unlikely to prevail on facial challenge | Denied: likelihood of success lacking, so injunction refusal affirmed |
Key Cases Cited
- Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (disclosure promotes transparency and informed electorate)
- Buckley v. Valeo, 424 U.S. 1 (1976) (disclosure rules evaluated under exacting scrutiny)
- John Doe No. 1 v. Reed, 130 S. Ct. 2811 (2010) (disclosure must have substantial relation to important governmental interest)
- Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999) (invalidated certain circulator-reporting and badge requirements as failing exacting scrutiny)
- Meyer v. Grant, 486 U.S. 414 (1988) (petition circulation is core political speech)
- McIntyre v. Ohio Elections Commission, 514 U.S. 335 (1995) (struck down broad bans on anonymous political literature)
- Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008) (fact-intensive balancing under the Meyer/Buckley sliding-scale approach)
- FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) (agency enforcement change may violate fair-notice under void-for-vagueness analysis)