OPINION AND ORDER
This matter came before the Court on Plaintiffs’, The Libertarian Party of Ohio, Kevin Knedler, Bob Barr, Wayne A. Root, Mark Noble and Margaret A. Leech (collectively, the “Libertarian Party”), Motion for Preliminary Injunction. (Doc. # 6). Plaintiffs are an alternative political party and its candidates for public office in the November, 2008 general election. Defendant is the Ohio Secretary of State. Plaintiffs seek an order directing Defendant to place the Libertarian Party and its candidatеs on the 2008 general election ballot for the state of Ohio. For the reasons that follow, Plaintiffs’ Motion is GRANTED.
I.
SUMMARY
The Libertarian Party of Ohio seeks to have its candidates for President, Vice
*1009
President, United States House of Representatives and the Ohio General Assembly-on the general election ballot in Ohio on November 4, 2008. Two years ago, the Ohio statutes defining the methods of ballot access for
minor
or third parties were declared unconstitutional in
Libertarian Party of Ohio v. Blackwell,
The Ohio Secretary of State, having sought new legislation in vain, has attempted to remedy those features of Ohio law declared unconstitutional in Blackwell, supra. The state of Ohio undoubtedly has the authority to require party candidates for public office to file petitions sufficient in number to demonstrate a modicum of public support; the State also has the authority to require that such petitions are filed well in advance of an election so as to insure an orderly, reliable election. At the same time, the First Amendment to the United States Constitution guarantees a right of association which is violated by onerous access statutes which prevent third parties and candidates from aрpearing on the ballot.
The Ohio Constitution requires that parties nominate candidates through primaries. Various Ohio statutes establish the dates of primary elections and the time to file candidacy petitions. Within these limited strictures, the Secretary of State of Ohio has attempted to modify the ballot access structure. As described below, under the Blackwell analysis, those modifications are still unconstitutional. Further, as to the federal offices of President, Vice President, and the United Stаtes House of Representatives, the Constitution requires the state legislatures, not executive officers such as a Secretary of State, to determine the method of elections.
This Court notes that the Secretary of State, within the limited confines of her authority, attempted to bring Ohio election law into compliance with the Constitution, which cannot be said of the Ohio General Assembly. For the reasons that follow, however, the Directive issued by the Secretary of State suffers from the same deficiencies found in Blackwell and, as to the federal offices, is in conflict with Articles I and II of the Constitution.
II.
The facts are not in dispute. Prior to the Sixth Circuit Court of Appeals’ decision in
Libertarian Party of Ohio v. Blackwell,
In
Blackwell,
the Court of Appeals considered thе Libertarian Party’s challenge to Ohio’s ballot access requirements, and held that collectively the statutes created an unconstitutional burden on First
*1010
Amendment rights. The early filing deadline requiring minor parties to gather 40,-227 signatures one year in advance of a general election imposed a “severe burden” that was not “narrowly drawn to advance a state interest of compelling importance.”
Blackwell,
Considering the entire statutory scheme, the Court held:
Ohio is well within its authority to mandate рrimary elections, to limit all parties to one primary date, or to require filing a petition in advance of the primary for administrative purposes. Viewed individually, each of these requirements may only impose a reasonable burden on constitutional rights. In practice, however, the combination of these laws imposes a severe burden on the associational rights of the LPO, its members, and its potential voter-supporters. As the state has not shown that these laws arе narrowly tailored to protect a compelling state interest, we find that the Ohio system for minor party qualification violates the First Amendment of the Constitution.
Blackwell,
Following the Court of Appeals’ decision, in the absence of legislation from the Ohio General Assembly enacting new constitutional ballot access procedures, the Ohio Secretary of State issued a Directive dated May 21, 2007. (Directive 2007-09, Doc. # 5, Ex. B). The Directive requires a minor political party to: 1) obtain pеtition signatures equal to one-half of one percent of the votes cast for governor in the 2006 general election (20,114); 2) file nominating petitions 100 days before the primary. For 2008, that date is November 26, 2007, nearly a full year before the November 4, 2008 general election. The Directive left unchanged the requirement that minor parties nominate their candidates by primary election. The Directive contains an additional provision, allowing political parties that do nоt participate in the primary to be granted party status for the purposes of certifying presidential and vice presidential candidates only, by filing a petition with 20,113 valid signatures by August 18, 2008. (Directive 2007-09).
On March 3, 2008, the Libertarian Party filed with the Secretary of State a petition containing 6,545 signatures. Defendant rejected the petition for failure to comply with the Directive. Plaintiffs filed a Complaint on June 6, 2008, seeking preliminary injunctive relief prohibiting enforcement of Directive 2007-09 and granting the Libertarian Party access to the November, 2008 ballot. Plaintiffs filed a motion for preliminary injunction on June 16. Following completion of the briefing, the Court held oral argument on Plaintiffs’ motion on July 14, 2008.
III.
In considering a request for preliminary injunction, the district court is to consider the following: (1) the likelihood that the movant will succeed on the merits, (2) whether the movant will suffer irreparable harm without the injunction, (3) the probability that granting the injunction will cause substantial harm to others and (4) whether the public interest will bе ad
*1011
vanced by issuing the injunction.
Lorillard Tobacco Co. v. Amouri’s Grand Foods, Inc.,
A. Likelihood of Success on the Merits
The Court finds that it is likely that Plaintiffs will prevail on the merits of their Constitutional claims. Plaintiffs correctly contend that only thе legislative branch has the authority, under Articles I and II of the United States Constitution, to prescribe the manner of electing candidates for federal office. As to the House of Representatives, Article I, Section 4 states that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof....” As to members of the Electoral College who determine the President, Article II, Section 1 statеs: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
To be sure, there is a dearth of precedent regarding the Constitution’s above-cited references to the state legislatures. The language of both Articles, however, is not susceptible to more than one interpretation. In this case, the applicable state legislature is the Ohio General Assembly. These constitutional provisions provide for no role оn the part of the executive branch of state government as to the election of President or members of the House of Representatives.
The Supreme Court undertook a limited analysis of these clauses in
Bush v. Gore,
In McPherson v. Blacker,146 U.S. 1 ,13 S.Ct. 3 ,36 L.Ed. 869 (1892), we explained that Art. II, § 1, cl. 2, “eonvey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment.146 U.S. at 27 ,13 S.Ct. 3 . A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.
Bush,
The four dissenting justices did not appear to disagree that the Florida legislature had exclusive power under Article II. Instead, Justice Stevens, in a dissent joined by Justices Ginsburg and Breyer, contended that the Florida legislature “intended the Florida Supreme Court to play the same role in Presidential elections that it has historically played in resolving election disputes.”
Id.
at 124,
Justice Souter, joined by Justices Breyer, Stevens and Ginsburg, framed the issue as “whether the judgment of the state supreme court had displaced the state legislature’s provisions for election contests: is the law as declared by the court different from the provisions made by the legislature, to which the national Constitution commits responsibility for determining how each State’s Presidential electors are chosen? See U.S. Const., Art. II, § 1, cl. 2.”
Id.
131,
The seven justices who joined in opinions addressing the authority of the state legislatures under Articles II all recognized the exclusive role given therein. The justices disagreed as to whether the Florida Supreme Court displaced or usurped such legislative authority, an issue not implicated in this case.
In this case, the Directive issued by the Secretary of State does not interpret provisions of legislation or resolve factual disputes arising under Ohio law. Instead, the Directive establishes a new structure for minor party ballot access, a structure not approved by the Ohio legislature. As to federal offices, Article I, Section 4 and Article II, Section 1 vest exclusive power to establish such a structure in the state legislature.
Even if the Ohio General Assembly could delegate its authority to a member of the executive branch, an issue that is not before the Court, there is no evidence that the state legislature has specifically delegated its authority to Defendant to direct the manner in which the state of Ohio votes for Senators and Representatives or selects electors to vote for President. Under the Constitution, the Secretary of State, a member of the executive branch of government, has no authority independent of the Ohio General Assembly to direct the method of the appointment of Presidential electors or federal officials. Absent an exprеss delegation of legislative authority, this Court cannot assume that the Ohio General Assembly intended to vest the Secretary of State with the legislative authority conferred in Article I, Section 4 and Article II, Section 1.
Defendant argues that Directive 2007-09 was a valid exercise of the Secretary of State’s statutory authority to “[i]ssue instructions by directives and advisories in accordance with section 3501.053 of the Revised Code to members of the boards as to the proper methods of conducting elections ... [and][p]repare rules and instructions for the conduct of elections.” Ohio Rev.Code 3501.05(B) and (C). The Secretary of State’s authority does not, however, extend to filling a void in Ohio’s election law caused by the legislature ignoring a judicial pronouncement declaring a state statute unconstitutional. 2 The general, statutory authority to direct the conduct of *1013 electors cannot, as to Articles I and II of the Constitution, serve as a substitute for state legislative action regarding the election of federal officials. Accordingly, the Directive has no effect and cannot be enforced to prevent the Libertarian Party and its federal candidates from appearing on the Ohio general election ballot.
Even assuming that Directive 2007-09 was a valid exercise of Defendant’s power to regulate elections, the Directive itself imposes unconstitutional burdens on First Amendment rights and is invalid as to all Plaintiffs, including Libertarian Party’s candidates for both state and federal office. The anаlysis is identical to that set out in Blackwell:
The Supreme Court has clearly stated that 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 also Storer v. Brown,415 U.S. 724 , 730,94 S.Ct. 1274 ,39 L.Ed.2d 714 (1974). Thus, voting regulations are not automatically subjected to heightened scrutiny. The Supreme Court has set forth the appropriate analytical framework in Anderson [v. Celebrezze],460 U.S. 780 ,103 S.Ct. 1564 ,75 L.Ed.2d 547 [ (1983) ], and Burdick v. [Takushi],504 U.S. 428 ,112 S.Ct. 2059 ,119 L.Ed.2d 245 [(1992)]. First, the court looks at the “character and magnitude of the asserted injury” to petitioner’s constitutional rights. Anderson,460 U.S. at 789 ,103 S.Ct. 1564 . The court must then “identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.” Id. If petitioner’s rights are subjected to “severe” restrictions, “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’ ” Burdick,504 U.S. at 434 ,112 S.Ct. 2059 (quoting Norman v. Reed,502 U.S. 279 , 289,112 S.Ct. 698 ,116 L.Ed.2d 711 (1992)). But if the state law imposes only “reasonable, nondiscriminatory restrictions” upon the protected rights, then the interests of the state in regulating elections is “generally sufficient to justify” the restrictions. Id. (quoting Anderson,460 U.S. at 788 ,103 S.Ct. 1564 ).
Blackwell,
Following the
Anderson/Burdick
framework, this Court must first determine the “character and magnitude of the asserted injury.”
Blackwell,
Defendant has advanced the same arguments to justify the Directive as the State did earlier to justify the statutory scheme declared unconstitutional in
Blackwell.
Specifically, Defendant asserts compelling interests in ensuring that minor parties have a “modicum of support” before gaining access to the ballot, and in allowing sufficient time to process nominating petitions to ensure orderly elections. These justifications fail for the same reasons expressed by the Court of Appeals in
Blackwell,
Defendant contends that, due to the groundswell of enthusiasm surrounding primary elections in this presidential election year, the fact that the Libertarian Party could not obtain the requisite number of signatures before the November 26, 2007 deadline proves that “Ohioans are apparently not interested in joining with the Plaintiffs to form a new political party.” The limited record in this case does not support such a conclusion. It is undisputed that the Libertarian Party was founded in 1972, has qualified for the Ohio ballot in previous years, and that its presidential candidate, Plaintiff Barr, is on the ballot in 31 other states for the 2008 general election.
No federal court has upheld a ballot restriction requiring minor parties to file party petitions more than eleven months in advance of a general election. Moreover, in 1968, the Supreme Court specifically rejected Ohio’s February filing deadline for minor parties to qualify for the November election. The Court held: “Ohio’s burdensome procedures, requiring extensive organization and other election activities by a very early datе, operate to prevent such a group from ever getting on the ballot-”
Williams v. Rhodes,
Just as the Court of Appeals described the statutory scheme in 2006, “the combination [of the Directive’s requirements] imposes a severe burden on the associational rights of the Libertarian Party, its members, and its potential voter-supporters” which is not “narrowly tailored to protect a compelling state interest.”
Blackwell,
B. Irreparable Harm to the Moving Party
The irreparable harm to Libertarian Party and its candidates is denial of access to the ballot. The Court finds that the violation of Plaintiffs’ First Amendment rights constitutes irreparable injury for which injunctive relief is an appropriate remedy.
C. Harm to Others and the Public
Defendant argues that both declared candidates and the general public will be harmed if the Libertarian Party is allowed access to the ballot at this latе date. On the contrary, the Sixth Circuit clearly expressed a preference for the “political dialogue and free expression” engen *1015 dered by the presence of multiple parties on the ballot. Blackwell, 462 F.3d at 594. As in Blackwell, “the State has made no showing that the voters of Ohio, who are able to cast an effective ballot featuring several independent candidates, would be flummoxed by a ballot featuring multiple political parties.” Id.
The Court finds that each of the four preliminary injunction factors weighs in favor of Plaintiffs’ request for injunction relief.
IV.
Bеcause the Ohio General Assembly has failed to prescribe constitutional ballot access requirements, the Court looks for guidance to the Sixth Circuit Court of Appeals in
Goldman-Frankie v. Austin,
Despite existing legal precedent, particularly McCarthy v. Austin, supra, wherein the Michigan scheme was expressly declared unconstitutional for its failure to provide independent candidates for public office with a means of access to the ballot, the Michigan legislature continued to ignore the evolving judicial pronouncements as late as the 1980 presidential election. In that election Gus Hall and Angela Davis, running as independent candidates in Michigan for president and vice-president, respectively, were forced to resort to the federal court to obtain ballot position. Hall v. Austin,495 F.Supp. 782 (E.D.Mich.1980).
Michigan has, to date, failed to remedy the situation. This Court is therefor compelled to again declare, in absolute terms, that the Michigan election laws, so far as they forеclose independent candidates access to the ballot, are unconstitutional.
To remedy the unconstitutional ballot access procedures in Michigan, the Court of Appeals affirmed the district court’s order placing Plaintiff Goldman-Frankie’s name on the ballot. As instructed by the Supreme Court in
McCarthy v. Briscoe,
The Constitution gives the Ohio lеgislature significant discretion to establish election procedures. After the state statute was held to fall outside “the boundaries established by the Constitution,” the legislature failed to act.
Blackwell,
*1016 V.
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Preliminary Injunction (Doc. # 6), and ORDERS that Plaintiffs be placed on the 2008 general election ballot for the state of Ohio, and that the individual plaintiffs be identified as candidates of the Libertarian Party of Ohio.
This Order shall be stayed for a period of ten (IQ) days, permitting the Defеndant to pursue expedited review by the Court of Appeals for the Sixth Circuit.
IT IS SO ORDERED.
Notes
. The majority opinion appeared to restrict the holding in the case by noting that "our consideration is limited to present circumstances....” Id. at 109. This language was used in reference to the equal protection analysis, which is not implicated in this case.
. The Directive itself goes far beyond instructing boards of elections in how to conduct elections; it purports to create new law. For example, the provision allowing minor political parties to qualify for party status, for the purposes of designating a presidential and vice presidential candidate only, by filing a petition with 20,113 valid signatures 80 days before the general election bears no resemblance to any existing Ohio election law. Minor party presidential and vice presidential candidates can currently qualify for the ballot by complying with O.R.C. 3505.10(B)(3), which contains a 60 day filing deadline; the filing deadline for indeрendent presidential and vice presidential candidates is 75 days before the general election. Ohio Rev.Code. 3505.10(B). Defendant's directive appears to create a new qualifying procedure, effectively amending Ohio election law by Directive.
. The requirement that minor parties nominate their candidates through the primary process is constitutional, standing alone.
See Blackwell,