Greg JOLIVETTE, Plaintiff-Appellant, v. Jon HUSTED; Frank Cloud; Tom Ellis; Judith Shelton; Bruce Carter, Defendants-Appellees.
No. 12-3998.
United States Court of Appeals, Sixth Circuit.
Sept. 14, 2012.
Rehearing and Rehearing En Banc Denied Sept. 26, 2012.
694 F.3d 760
Argued: Sept. 11, 2012.
CONCLUSION
Despite the complicated fact pattern and the variety of legal arguments raised in the parties’ briefs, the ultimate issues here are relatively straightforward. The district court correctly held that the C & D is ambiguous on its face because paragraph 8‘s requirement that AFC‘s board “ensure that [the Bank] complies” with its own cease-and-desist order can reasonably be read as establishing either an oversight role or a capital-maintenance commitment. OTS‘s alleged interpretation of the C & D is not entitled to deference because it is too vague to be considered an interpretation or else because it is a clearly erroneous reading of the C & D. And the district court‘s decision construing the C & D as not including a capital-maintenance commitment was not clearly erroneous because the bulk of the extrinsic evidence favors the “oversight” reading of the C & D.
For these reasons, we AFFIRM the district court.
ARGUED: Donald J. McTigue, McTigue & McGuinnis LLC, Columbus, Ohio, for Appellant. Aaron D. Epstein, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Donald J. McTigue, J. Corey Colombo, Mark A. McGinnis, McTigue & McGuinnis LLC, Columbus, Ohio, for Appellant. Aaron D. Epstein, Michael J. Schuler, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.
Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which McKEAGUE, J., joined. MERRITT, J. (pp. 772-74), delivered a separate dissenting opinion.
* Judge Merritt would grant rehearing for the reasons stated in his dissent.
KAREN NELSON MOORE, Circuit Judge.
Plaintiff-Appellant Greg Jolivette (“Jolivette“) appeals the district court‘s denial of his request for declaratory relief and for a preliminary and a permanent injunction that would allow him to run as an independent candidate for the Office of State Representative for Ohio‘s 51st House District in the upcoming November 6, 2012 general election. Jolivette seeks to prevent members of the Butler County, Ohio Board of Elections and Ohio‘s Secretary of State, Jon Husted (together, “Defendants“), from blocking his access to the ballot as an independent candidate. Jolivette claims that the defendants’ denial of his petition for candidacy as an independent violated his rights to free speech and association guaranteed by the First and Fourteenth Amendments. Jolivette also challenges differences in Ohio election statutes regulating independent versus partisan candidates, arguing that these portions of Ohio‘s statutory election framework violate the Equal Protection Clause. Jolivette brings his constitutional claims to federal court pursuant to
I. BACKGROUND
Plaintiff Greg Jolivette desires to appear on the ballot at the upcoming November 6, 2012 general election as an independent candidate for the Office of State Representative for Ohio‘s 51st House District in Butler County, Ohio. From approximately 1997 to 2010, prior to his current attempted independent candidacy, Jolivette served as a Republican State Legislator and a Republican Butler County Commissioner. R. 11-3 (Transcript of Bd. of Elections Protest Hearing, May 30, 2012 at 22:8-11) (Page ID # 143). Jolivette was also elected to, and served on, the Butler County Republican Party‘s Central Committee from 2008 until mid-December 2011, when he resigned from the position. Id. at 22:12-16 (Page ID # 143).
On November 29, 2011, Jolivette filed a Declaration of Candidacy to run as a Republican for the Office of State Representative for Ohio‘s 51st House District. R. 18-4 (Joint Ex. 13 at 1–9) (Page ID # 337-45). Ohio law requires that candidates seeking to run in a party primary accompany their Declaration of Candidacy with at least fifty signatures from members of the same political party.
On December 14, 2011, the Board of Elections met and considered Jolivette‘s candidacy as a Republican. Jolivette, who was present at this meeting, argued in favor of certifying his petition to run in the Republican primary. See Jolivette, — F.Supp.2d at —, 2012 WL 3527733, at *2. At the meeting, the Board decided to give Jolivette extra time to gather additional evidence and arguments to support his position. Id. At this time, the district
On February 22, 2012, Jolivette prepared a nominating petition and Statement of Candidacy to run as an independent candidate for the same office as his Republican petition, State Representative for Ohio‘s 51st House District. Jolivette, — F.Supp.2d at —, 2012 WL 3527733, at *3. The petition and Statement of Candidacy were filed on March 5, 2012. Id. Jolivette did not vote in any party primary the following day, March 6, 2012. As of the time Jolivette submitted his petition for candidacy as an independent, Jolivette had on file with the Board of Elections a “Designation of Treasurer” which indicated that he was affiliated with the Republican Party. Id. This Designation of Treasurer had been filed with the Board of Elections on July 15, 2008, but was not amended until May 4, 2012, when Jolivette filed an amended form identifying himself as an independent. R. 11-1 (Joint Evid. Ex. 1) (Page ID # 82-86). Additionally, as of March 5, 2011, when the independent petition was filed, Jolivette‘s campaign committee maintained a website which indicated he would “be a vote for strong Republican leadership.” R. 11-3 (Transcript of Bd. of Elections Protest Hearing, May 30, 2012 at 29:10-24) (Page ID # 150).
On April 19, 2012, a protest was filed by three members of the Republican Party challenging Jolivette‘s candidacy as an independent on the basis that he was not unaffiliated from the Republican Party. See R. 2 (Compl. ¶ 14) (Page ID # 5);
On July 9, 2012, Jolivette filed this action in the U.S. District Court for the Southern District of Ohio seeking declaratory and injunctive relief, on the grounds that Defendants’ refusal to permit him to appear on the ballot as an independent candidate violated his constitutional rights. R. 2 (Compl. ¶¶ 31, 33, 37) (Page ID # 9-10). Jolivette argues that the decision to block his access to the ballot because he was affiliated with a political party violated his First, Fifth, and Fourteenth Amendment rights, and that the Ohio election framework governing disaffiliation from a political party violates the Equal Protection Clause. The district court found that neither preliminary nor permanent injunctive relief was warranted, based on a finding that none of Jolivette‘s constitutional claims had merit, and as a result dismissed the case. Jolivette, — F.Supp.2d at —, 2012 WL 3527733, at *13, *16. Jolivette timely appealed the order denying relief to this Court. R. 26 (Notice of Appeal at 1) (Page ID # 493).
Because Jolivette‘s complaint raises constitutional claims, the district court had jurisdiction under
II. STANDARD OF REVIEW
We review the district court‘s denial of preliminary and permanent injunctive relief for abuse of discretion. See ACLU of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir.2004). Accordingly, we review “the district court‘s legal conclusions de novo and its factual findings for clear error.” Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir.2003) (quoting Owner-Operator Indep. Drivers Ass‘n v. Bissell, 210 F.3d 595, 597 (6th Cir.2000)); see Worldwide Basketball and Sport Tours, Inc. v. NCAA, 388 F.3d 955, 958 (6th Cir. 2004). We also review for abuse of discretion the district judge‘s decision not to grant declaratory relief. See Taft, 385 F.3d at 645 (“Although the district court did not specifically rule on the [plaintiff‘s] request for declaratory relief, instead dismissing the case in toto after ruling on the [plaintiff‘s] motion for preliminary injunctive relief, we review a ‘district court‘s exercise of discretion under the Declaratory Judgment Act,
In considering whether preliminary injunctive relief should be granted, a court considers four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Chabad of S. Ohio v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir.2004) (quoting Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass‘n, 110 F.3d 318, 322 (6th Cir.1997)). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat‘l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir.2000). “In general, ‘[t]he standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that [for a preliminary injunction] the plaintiff must show a likelihood of success on the merits rather than actual success.‘” ACLU of Ky. v. McCreary Cnty., 607 F.3d 439, 445 (6th Cir.2010) (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). The district court found that none of Jolivette‘s constitutional claims had merit, and that when balanced with the other factors, injunctive relief was not warranted. Jolivette, — F.Supp.2d at —, 2012 WL 3527733, at *16. We consider each of Jolivette‘s arguments on appeal in turn.
III. FIRST AMENDMENT CLAIM
Jolivette first argues that Defendants’ determination that he is ineligible to run as an independent candidate because he is affiliated with a political party violates his First Amendment rights to free speech and association. See Appellant Br. at 8. The focus of our inquiry is thus on this constitutional question.1 The grant of the protest against Jolivette‘s independent candidacy by the Board of Elections and Husted was based on Ohio‘s requirement that independent candidates claim, no later than four p.m. on the day before the primary elections, that they are not affiliated with a political party. See
The Supreme Court‘s approach to constitutional challenges to election regulations requires balancing a state‘s “broad power” to regulate elections against the “fundamental rights” of candidates and voters, including the right to “freedom of political association.” See Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); see also Lawrence v. Blackwell, 430 F.3d 368, 372-73 (6th Cir.2005) (explaining that in evaluating election regulations, “[c]ourts must undertake the difficult task of considering and weighing the asserted injury to fundamental constitutional rights, the precise interest of the state in the regulation at issue, and the extent to which it is necessary to burden important rights in order to achieve any important state interests.“). On the one hand, the Court has recognized that in structuring the election process, “States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997); see Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (“[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.“). On the other hand, states’ broad authority to regulate elections must be carefully balanced against the “fundamental” right to associate freely for the advancement of
The level of scrutiny applied to a state election regulation depends on the burden imposed by the regulation on the constitutional rights of voters and candidates. See Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). In evaluating an election regulation against a constitutional challenge, “we weigh the ‘character and magnitude’ of the burden the State‘s rule imposes” on citizens’ constitutional rights against “the interests the State contends justify that burden, and consider the extent to which the State‘s concerns make the burden necessary.” Timmons, 520 U.S. at 358 (quoting Burdick, 504 U.S. at 434). If the regulation imposes a severe burden on plaintiffs’ rights, the regulation must be “narrowly tailored and advance a compelling state interest.” Id. “Lesser burdens, however, trigger less exacting review, and a State‘s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Id. (internal quotation marks omitted).
In Morrison v. Colley, we upheld against a First Amendment challenge the application of
In this case, there are objective facts in the record indicating that Jolivette was affiliated with Republican Party at the time he filed his petition as an independent. As of the time his independent petition was submitted, Jolivette had on file a Designation of Treasurer indicating that he was affiliated with the Republican Party. This Designation of Treasurer was not amended until May 5, 2012. R. 11-1 (Joint Evid. Ex. I) (Page ID # 82-86). In addition, at the time Jolivette‘s independent petition was filed, his campaign committee maintained a website which stated that Jolivette would be a “Vote for Strong Republican Leadership.” R. 11 (Joint Evid. Ex. F) (Page ID # 68). Further, after he filed as an independent, Jolivette continued to maintain a Facebook page that indicated he was affiliated with various Republican organizations, including the
Jolivette tries to distinguish the facts of his case from the facts in Morrison, mainly by arguing that the Board of Elections in this case—unlike in Morrison—considered conduct from before he filed as an independent. See Appellant Br. at 8. In his tie-breaking vote, Husted considered Jolivette‘s voting history in recent past Republican primaries, his holding of office as a Republican Legislator and Republican County Commissioner until 2010, and his pursuit of access to the Republican primary ballot as a candidate for the 51st House District in the 2012 election cycle up until it was clear that his Republican petition did not have sufficient valid signatures. R. 11 (Joint Evid. Ex. 1) (Page ID # 50). As a result, Husted agreed with the Board of Elections’ members who found Jolivette‘s claim of non-affiliation to be “disingenuous,” see R. 11–2 (Joint Evid. Ex. 5) (Page ID # 105), and found that “Jolivette is not unaffiliated and cannot run as an independent candidate for this election.” R. 11 (Joint Evid. Ex. 1) (Page ID # 50). Relying in part on a candidate‘s conduct prior to his or her filing as an independent candidate is permissible under Ohio law. See Livingston, 963 N.E.2d at 192; Ohio Sec‘y of State, Advisory Op. No. 2007-05, at 4 (June 4, 2007) (allowing the Board to consider: “past voting history, information submitted on required election-related filings, political advertisements, participation as a political party officer or member, or holding a public office for which the office holder was nominated through a political party‘s primary election and elected on a partisan ticket“). Cf.
Jolivette argues that such consideration of an independent candidate‘s pre-filing conduct is impermissible as a matter of constitutional law.3 See Appellant Br. at 8 (stating that the issue in the case is “[w]hether a Board of Election‘s determination to deny an independent candidate‘s access to the ballot based on evidence of party affiliation that occurred prior to the candidate‘s filing of an independent candidate petition ... violates the candidate‘s First Amendment speech and association rights“); id. at 20-23. This argument is
In Morrison, we concluded that the application of
IV. VAGUENESS CLAIM
Next, Jolivette argues that the Ohio election framework is unconstitutionally vague, because it contains “no standards or criteria to evaluate a candidate‘s claim of independence.” See Appellant Br. at 21; id. at 26-30. Jolivette cannot succeed on this argument because he did not explicitly raise it at the district court. See R. 3 (Mot. for Prelim. Inj. at 7-13) (Page ID # 20-26) (failing to make an argument relating to the void-for-vagueness doctrine). As a rule, we will not review issues if they are raised for the first time on appeal. See In re Hood, 319 F.3d 755, 760 (6th Cir.2003) (“It is well-settled that this court will not consider arguments raised for the first time on appeal unless our failure to consider the issue will result in a plain miscarriage of justice.” (quoting Overstreet v. Lexington-Fayette Urban Cnty. Gov‘t, 305 F.3d 566, 578 (6th Cir. 2002))). Jolivette‘s efforts to re-describe his argument about the arbitrariness of the determination that his claim of independence was not made in good faith into a vagueness challenge is a stretch from what was actually argued at the district court. See Appellant Reply Br. at 15-18. The district court opinion did not consider or rule on a vagueness challenge. See Jolivette, — F.Supp.2d —, 2012 WL 3527733. Because Jolivette did not develop the vagueness claim at the district court, we will not consider the argument here. See Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir.2006) (“[T]he failure to present an issue to the district court forfeits the right to have the argument addressed on appeal.“).
V. EQUAL PROTECTION CLAIMS
Jolivette‘s third and fourth arguments challenge portions of the Ohio election statutory framework under the Equal Protection Clause of the Fourteenth Amendment. Appellant Br. at 30, 38; see R. 2 (Compl. ¶¶ 33, 37) (Page ID # 9-10). Jolivette‘s first contention is that the Ohio election statutes are unconstitutional because they leave “to the discretion of a county board of elections whether to allow an individual affiliated with a political party to become unaffiliated, i.e. independent,” but permit candidates to switch from one party to another “freely.” Appellant Br. at 31.
We examine Jolivette‘s equal-protection challenges to the Ohio statutory framework using the same balancing framework as his First Amendment challenge. See Burdick, 504 U.S. at 434; Anderson, 460 U.S. at 789. The Equal Protection Clause of the Fourteenth Amendment states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
Jolivette‘s equal-protection claims do not get off the ground because independent candidates and partisan candidates are not similarly situated for purposes of election regulations. See Jenness v. Fortson, 403 U.S. 431, 440-41, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). In Jenness v. Fortson, the Supreme Court upheld Georgia‘s election regulations that required nonpartisan candidates to collect signatures from 5% of voters before their names were printed on the ballot, but had no such requirement for partisan candidates who won their party primary. Id. at 434, 440-41. The Court held that the state permissibly recognized two alternate paths to the ballot—the party primary and non-partisan candidate petitions—“neither of which [could] be assumed to be inherently more burdensome than the other.” Jenness, 403 U.S. at 441. Because the partisan candidate must win the majority of votes in a party primary, whereas the independent candidate must gather signatures from 5% of the total electorate, the two pathways to the ballot were different, and thus partisan candidates were not similarly situated to independent candidates. Id. at 440-42. Other federal appellate courts have come to the same conclusion, that for purposes of an Equal Protection Clause challenge to an election regulatory framework, partisan candidates and independent candidates are not similarly situated. See, e.g., Curry v. Buescher, 394 Fed.Appx. 438, 447 (10th Cir.2010); Van Susteren, 331 F.3d at 1026-27. As the Ninth Circuit pointed out in Van Susteren, whereas the primary process is “integral to the election [] because it serves the important function of winnowing out competing partisan candidates,” the independent candidate is excused from this process, and thus different restrictions for their access to the ballot are permissible. Van Susteren, 331 F.3d at 1027. Because of the differences between the pathways to the ballot of partisan versus independent candidates in Ohio, we agree with the dis-
After examining Jolivette‘s constitutional claims and finding that none of them have merit, we find no abuse of discretion in the district court‘s decision to deny Jolivette‘s requests for a preliminary injunction, a permanent injunction, and declaratory relief. See Taft, 385 F.3d at 645.
VI. CONCLUSION
For the reasons discussed above, we AFFIRM the district court‘s judgment denying declaratory as well as preliminary and permanent injunctive relief.
MERRITT, Circuit Judge, dissenting.
I do not agree with the result in this case barring Jolivette from running as an Independent for the state legislature or with the majority‘s interpretation of Ohio law as set out in the recent case of Livingston v. Miami County Board of Elections, 196 Ohio App.3d 263, 963 N.E.2d 187, decided September 8, 2011, or with the majority‘s interpretation of the seminal ballot access case on the First Amendment, Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). The bottom line is that Jolivette clearly wants to leave the Republican Party—his long fight in this case is certainly evidence of that choice, along with his many earlier statements to that effect—because the party now rejects him after many years of public service as a Republican. He has nowhere else to turn except as an independent candidate if he is to continue his public service. What stands in his way is the adverse ruling of the Ohio Secretary of State, a partisan official elected statewide as a Republican, who disagrees with the interpretation given the state‘s ballot access statute by the highest state court to decide the issue.
In Livingston, the state court overruled a decision rejecting the independent candidacy of two candidates for local office because they had voted in Republican primary elections, signed petitions in support of Republican candidates a few months before the election, and previously won office as a Republican candidate for local office. And one of them, Livingston, was a member of the local Republican Executive Committee until he resigned just before filing a petition as an independent candidate. In reversing the decision rejecting their independent candidacies, the court said:
Consistent with the liberal construction of the laws in favor of candidates, a finding that the candidate‘s claim was not made in good faith must be supported by clear and convincing evidence.... The record supports a finding that both relators may have acted on a calculation that they would have a better chance of winning as independent candidates. However, that fails to rise to the level of clear and convincing evidence that their claims of disaffiliation from the Republican Party were not made in good faith because the claim is a sham or deceitful—that is, that either actually remains affiliated with the Republican Party. Such proof is necessary to find an impropriety in their claims sufficient to permit the board to invalidate their petitions pursuant to
R.C. 3501.39(A) on a finding of a lack of good faith.
196 Ohio App.3d at 270–71, 963 N.E.2d at 192-93 (citation omitted). Likewise, in the present case, there is no “clear and convincing” evidence that Jolivette is lying about his choice and no one claims his application is a sham. He has attempted to remove all doubt that he is still a Republican by eliminating former references on a website that he is a Republican and in other ways. He has privately and publicly consistently renounced his membership in
That should be the end of this case and make it unnecessary to reach a First Amendment question. But our court‘s approval of the rulings below makes it necessary to reach the federal question arising under the First Amendment. Ohio has a number of cases in which the Supreme Court has reversed Ohio‘s rejection of ballot access by independent candidates or parties thus allowing incumbents to insulate themselves against challengers. See, e.g., Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). More recently, an Ohio case in the Supreme Court, Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), reversed a Sixth Circuit case upholding Ohio‘s effort to bar an independent candidacy and further entrench and stabilize the two major parties in their dominant positions.
In Anderson, the Court struck down an Ohio effort to require minor parties and independent candidates to file much earlier than the major party candidates. This Ohio policy would prevent the candidacy of individuals and minor parties who become disenchanted during the primary process and decide to quit the party. In this case the candidate was John Anderson, who unsuccessfully sought the Republican nomination for President, but then decided to bolt and to seek the office independently. The Supreme Court‘s opinion by Justice John Paul Stevens sets out general First Amendment standards that apply up and down the political hierarchy:
A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and—of particular importance—against those voters whose political preferences lie outside the existing political parties. Clements v. Fashing, [457 U.S. 957, 964-65, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)] (plurality opinion). By limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, such restrictions threaten to reduce diversity and competition in the marketplace of ideas. Historically political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream. Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. [173] at 186 [99 S.Ct. 983, 59 L.Ed.2d 230 (1979)]; Sweezy v. New Hampshire, 345 [354] U.S. 234, 250-51 [77 S.Ct. 1203, 1 L.Ed.2d 1311] (1957) (opinion of Warren, C.J.). In short, the primary values protected by the First Amendment—“a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)—are served when election campaigns are not monopolized by the existing political parties.
460 U.S. at 793-94 (footnote and parallel citations omitted).
I believe the Livingston case standards meet the First Amendment test, but the standards applied by my colleagues do not. The Livingston case standards do not “discriminate[] against those candidates and—of particular importance—against those voters whose political preferences lie out-side the existing political parties.” Id. But