Libertarian Party v. Blackwell

OHIO; OF Ja- LIBERTARIAN PARTY Hallmark; Bruedigam; Dena Pat-

son Friedrich, Plaintiffs-Appel-

rick J.

lants, BLACKWELL,

J. Kenneth His Offi- Secretary Capacity

cial as Ohio

State, Defendant-Appellee.

No. 04-4215. Appeals,

United States Court of

Sixth Circuit.

Argued: Sept. Sept.

Decided and Filed: Sinawski, York, Gary New

ARGUED: York, for Arthur Appellants. New James Marziale, Jr., Attorney Office of the Gen- Ohio, Columbus, Ohio, Appellee. eral of for Sinawski, York, Gary ON BRIEF: New York, Columbus, McTigue, New Donald J. Ohio, Appellants. Arthur James Marz- iale, Jr., Attorney Office of the General Columbus, Ohio, Ohio, Appellee. GIBBONS, CLAY, Before: GRIFFIN, Judges. Circuit GIBBONS, J., opinion delivered the CLAY, 595-601), (pp. the court. J. separate opinion concurring delivered a GRIFFIN, part dissenting part. J. 601-609), (pp. separate delivered a opinion. dissenting OPINION GIBBONS, JULIA SMITH Circuit Judge. (“LPO”),

The Libertarian of Ohio chairperson, vice-chairperson, sought listed as a can- member who appeal order de- didate the district court’s summary judgment nying their motion for granting summary judgment favor Blackwell, Kenneth defendant J. cycle. As the nominees of the (“Secretary” of Ohio tial election Secretary of State “State”). “major” political parties1 first claim is that become known The LPO’s compliance year, have mandating strict earlier in the election states policy Ohio’s the Constitu- primary laws violates the dates of their pushed with election back moot, we find this claim be beginning primary tion. As we elections to the it. The jurisdiction to address cycle. twenty-five do not have the last Over moot, claim, which is not presi- LPO’s second years, date of two Ohio election that the combination years dential election has moved from the that all requirement po- Tuesday Tuesday to the first June first —the nominate their candidates via litical Compare in March. Ohio Rev.Code 3501.01(E)(2) Anderson, § election and petition a political parties all minor file (citing n. the code at 783 1980). in days result, advance of Secretary with the in in effect As a the section unconstitutional primary imposes the an by political party a must file to date which — moved, on its First and Fourteenth burden qualify primary for the also has association, by rights of free year Amendment in the from the end of March the gaining it from ac- effectively preventing in beginning election to the November ballot in the general cess to the preceding year. the See Ohio Rev.Code preceding presidential twelve months § in 3517.012.The issue this case is wheth- Following analytical the frame- election. major er the move accommodate the in Supreme work forth the Court set parties placed impermissible bur- Celebrezze, Anderson v. rights of minor den on the constitutional (1983), LPO, 75 L.Ed.2d 547 and its parties, including sup- the and the progeny, we find that the combination of porters parties. of these minor requirements imposes these two severe all requires The Ohio Constitution rights of burden on the constitutional the including political parties, parties, minor LPO, members, potential and its voter- primary nominate their candidates at elec- supporters. As the are not V, By § Art. tions. Ohio Const. 7. stat- narrowly tailored and do advance ute, Tuesday are held primaries the first interest, system compelling state Ohio’s Monday May, in except after the first registering political parties new vio- presidential years, pri- when the Thus, lates the Constitution. we reverse Tuesday maries are held first after ruling of the district court. Monday first March. Ohio Rev.Code 3501.01(E)(l)-(2). § primaries The 2004 I. year. were held on March of that presents This case a conflict between provides rights the constitutional of minor Ohio law two methods which parties authority party qualify primary and the of a state to can for the elec- that, regulate Any party preceding its elections and ensure the tion. election, presiden- percent state’s relevance the modern state receives at least five However, Throughout opinion, Republican political parties. as will dis- III.A.l, parties practical Part effect of and Democratic will be referred cussed in "major” political parties. politi- All other the state's election law has been to limit Republican parties parties other than the cal will be known as "minor” parties. Judge correctly appearing Parties Griffin notes that the and Democratic from ballot, making language general § of Ohio Rev.Code 3517.01 makes them "major” "major” parties. no between and "minor” de facto distinction governor party prohibited and its candidates were vote for its candidate for the automatically qualifies president appearing or from on the ballot for the 2004 Rev.Code election.2 Ohio next statewide general election. 3517.01(A)(1). parties All other must § January On the LPO filed suit days prior no later than 120 petition

file a § claiming under 42 U.S.C. a viola- election that to the date of the rights guaranteed tion of the under the equal to signatures contains the number First Fourteenth Amendments and of the total votes cast percent one declaratory injunctive seeking relief. 32,290 in Id. A previous election— 15,the January pre- LPO moved for a On by this that does not file a party (1) injunction liminary that would direct participate cannot date (2) party’s petition, accept the state appearing prevented is thus early filing invalidate the state’s deadline ballot. To be on the bal- general election petition, so that the LPO could file a new general November elec- lot for the (3) invalidate Ohio’s tion, were re- like the LPO by pri- nominate its candidates the LPO than to submit a no later quired mary through it permit to nominate 3, 2003. November February caucus or convention. On 30, 2003, the LPO filed a On October 5, by the district court denied the motion Party, to Form a Political contain- Petition reason of laches but did not rule on the signatures, ing requisite the number of 1, constitutional claims. On June the LPO In Secretary. with the a letter dated No- and the State filed cross-motions sum- 24, 2003, Secretary vember the informed mary judgment. granted The court the the that the was invalid motion and the LPO’s mo- State’s denied it did not include the correct elec- because timely appeal.4 tion. The LPO filed a We required notice. The no- tion falsification grant summary a district court’s of review changed tice had been state statute Terry novo. Barr Sales judgment de 2001, continued to use August but the LPO Co., 174, Agency, Inc. v. All-Lock 96 F.3d form, previous an older the version (6th Cir.1996). rejected Secretary the notice.3 When the petition, the the LPO had no time to ob- signatures proper

tain form ad- II. vance of the deadline. The LPO duty first is to determine Our qualify political party thus failed completion the of the election has whether participate and was unable to the March result, jurisdiction. deprived court primary election. As a the Ohio, appealed court's governor the occurs in 4.The LPO also the district In election for years post-judgment seeking to in which there is no denial of its motion even-numbered presidential rectify election. file a motion for its earlier failure to summary separate judgment as a document. motion, denying the court In district not- currently required by 3. The notice Ohio law already had ed that it construed election falsifica- reads: “Whoever commits LPO’s summary judg- support guilty felony degree.” memorandum of the fifth is 3501.38(J). summary judgment § ment as motion for Ohio Rev.Code The form used the motion. required had addressed the merits of petitioner contained the notice event, any August penalty the LPO has not mentioned prior for elec- 2001: "The denying post-judgment in its motion imprisonment order tion falsification is for not months, appeal brief and thus has abandoned more than six or a fine of not more it. than one thousand dollars.” the occurrence of the elec the lawsuit and party raises the issue Though neither tion, challenges future will face mootness, continuing a federal court has problem. same adjudicates that it duty to ensure parties, adverse genuine disputes between satisfy in this case Whether the issues requested would have a where the relief however, a more com prong, second legal interests of those impact real question requires separating plex Scientology v. parties. See Church of brought by of claims categories two States, 9, 12, 113 S.Ct. 506 U.S. United re challenges The first the Ohio LPO. (1992); McPherson v. L.Ed.2d 313 laws must be quirement Ass’n, Athletic High Mich. School with, strictly complied unless the statute banc). (6th Cir.1997) (en If expressly states otherwise. See State ex longer are no live or presented “the issues Council, County rel. Vickers v. Summit inter legally cognizable lack a (Ohio 204, 777 N.E.2d Ohio St.3d outcome,” the case is moot est in the then 2002); ex rel. Comm. Refer jurisdiction. no Los and the court has Ordinance, Lorain 96 Ohio endum of Davis, Angeles County v. (Ohio 2002); St.3d 774 N.E.2d (1979). 59 L.Ed.2d 642 § This see also Ohio Rev.Code 3517.011. made at inquiry “The mootness must be the election falsifica dispute arose because thus, case; if every stage of a a case tion notification contained on LPO’s during appeal, judg moot becomes wording did not follow the exact ment below must be vacated and the case jus required by attempted Ohio law. The to dismiss.” remanded with instructions non-compliance, tification for the LPO’s McPherson, 119 F.3d however, not lead this court to rea does sonably po or other expect the LPO exception An to the mootness in litical will encounter this same wrongs “capa doctrine exists for that are 2001, jury August in future. yet evading review.” repetition, ble of See changed the falsi legislature (6th Brown, 169, Rosen v. 970 173 politi fication that is on a required notice Cir.1992) Pac. Termi (quoting Southern party petition alleges cal form. The LPO ICC, 514, 498, nal v. 219 31 Co. U.S. S.Ct. began distributing that it its form (1911)). 279, 55 L.Ed. 310 This doctrine 2001, took April change before the ef (1) applies challenged when action is fect, thus, and its forms contained the old fully litigated too short duration to be presented notification. the LPO When (2) prior expiration to its cessation or 2003, rejected petition in November it was expectation is a reasonable or a dem there containing improper notice. Out controversy probability onstrated that the situation, unique side of this factual there Doe, Honig will recur. See v. 484 U.S. demon expectation is not a reasonable or 6, 592, 305, n. 318-19 108 S.Ct. 98 L.Ed.2d any that the probability strated LPO (1988). prong The first of this test is 686 group injured by will be political other easily Legal disputes involving satisfied. compliance Ohio’s of strict always take more time election laws almost capable repeti laws. The cycle permits. than the election resolve exception apply, does not and the 814, 816, Ogilvie, See Moore v. 394 U.S. 89 constitutionality issue of the of the strict (1969); 1493, S.Ct. 23 L.Ed.2d Lawrence compliance standard is moot. (6th Blackwell, 368, v. 430 F.3d Cir. 2005). case, hand, likely it that present In the less than elev On the other again place en will seek to elapsed months between the the LPO once general rights candidates on the election ballot in of political association and free result, party again 2008. As a will face speech occupy similarly place hallowed requirements its candidates be the constitutional pantheon. See Califor in a March primary selected and that it file Jones, nia Democratic 530 U.S. party recognition days in 567, 574, 2402, 120 S.Ct. 147 L.Ed.2d 502 primary. Considering advance of this (2000) (“Representative democracy any repetition “somewhat relaxed” standard populous unit of governance is unimagina cases, Lawrence, employed see ble without ability of citizens to band 372, easily 430 F.3d at this issue satisfies together in promoting among the elector “capable yet of repetition, evading re ate candidates who espouse political their exception view” and is not moot. See also views.”). Reed, 279, 287-88,

Norman v. U.S. (1992). L.Ed.2d mean, however, This does not all state political parties restrictions on

III. and elections violate the Constitution. therefore turn to Supreme We the merits of The clearly Court has stated that the second “may, must, issue—whether the combined states inevitably enact effect of the being Ohio election laws chal elections, reasonable of parties, lenged impermissibly plain burdens the and ballots to reduce election- and cam rights speech tiffs’ to free paign-related association disorder.” Timmons v. under the First Amendment.5 When ana Twin Party, Cities Area New 520 U.S. statutes, 351, lyzing cognizant 1364, arewe 117 S.Ct. 137 L.Ed.2d 589 place (1997); Brown, “the state laws burdens on two dif see also Storer v. 415 U.S. ferent, although 724, 730, overlapping, kinds of 94 S.Ct. 39 L.Ed.2d 714 (1974). right Thus, of individuals to associate voting regulations are not —the for the advancement of automatically subjected beliefs and heightened voters, right qualified regardless scrutiny. Supreme Court has set their persuasion, to cast their appropriate analytical forth the framework Rhodes, Anderson, effectively.” votes Williams v. 460 U.S. Burdick, L.Ed.2d 24 75 L.Ed.2d

(1968); Celebrezze, 2059, First, see also Anderson v. 112 S.Ct. 119 L.Ed.2d 245. 780, 786, 1564, 460 U.S. 103 S.Ct. 75 the court looks at mag the “character and (1983) (“[T]he L.Ed.2d 547 rights injury” of voters nitude of the petition asserted to Anderson, and the of candidates do not lend rights. er’s constitutional 460 789, themselves to neat separation; laws that U.S. 103 S.Ct. 1564. The court always affect candidates have at “identify pre least must then and evaluate the some theoretical correlative effect on vot put cise interests forward the State as ers.”) Carter, (quoting justifications Bullock v. 405 imposed by U.S. for the burden its 134, 143, 849, 31 petitioner’s L.Ed.2d 92 rule.” Id. If rights are sub (1972)). restrictions, The right jected to cast an effective vote to regula “severe” “the “is of the most significance ‘narrowly fundamental tion must be drawn to advance a ” under our constitutional structure.” Bur compelling importance.’ state interest of Takushi, Burdick, 434, dick v. 504 112 504 U.S. at 112 2059 S.Ct. (1992). Reed, (quoting 119 L.Ed.2d 245 Norman v. 502 U.S. standard, above, Judge opinion Griffin's criticizes "some- election cases. The as noted repetition what relaxed” standard used in is the law of this circuit. (1992)). general elec- primary advance of the L.Ed.2d See, Alternative Po- e.g., tions. Council only “reason imposes law if the state But Hooks, 121 F.3d Parties v. litical upon able, nondiscriminatory restrictions” I") Cir.1997) (“Hooks (3d that an (noting then the interests rights, protected in days advance deadline'—60 April “gener is elections regulating in the state parties rally to minor primary required justify” the restrictions. to ally sufficient — remote and “when the election is support Anderson, (quoting Id. in uninterested generally are voters 1564).6 5.Ct. to Establish a Re- campaign”); Citizens Priest, F.Supp. Ark. form A. (E.D.Ark.1996) (concluding 697-98 step under the The first Anderson/Bur prevented minor January that a deadline to determine whether is dick framework7 volunteers, attracting finding parties from rights of the associational this burden supporters, coverage recruiting media to order is “severe.” political parties ability appear to impacted all its of which test, first we must accurately apply this Meier, ballot); McLain v. on the nature of the burden the exact determine (“McLain I”) (8th Cir.1980) 1159, 1163-64 political parties and upon minor placed (same in days advance deadline —June chal The LPO voter-supporters. their elec- early primary). Deadlines (1) that: man regulations lenges parties to cycle require tion meeting per the five parties not date ma- at a time when the supporters recruit previous vote threshold in cent not known and jor party candidates are days advance of file politically ener- populace when the qualify; and in order to case, needed to gized. In this the LPO (2) participate parties require resi- thirty more than thousand Ohio find appear to on the order March appear to on the sign dents to its inquiry is not Our general election ballot. year in advance 2004 ballot more than one individually creates each law whether Early deadlines also have of the election.8 rather whether burden but impermissible any contentious ensuring the effect of applicable elec effect of the combined year as an election issue raised the same an unconstitutional creates responded by the formation of cannot be rights. See burden on First Amendment political party. The combination a new Williams, 34, 89 S.Ct. 5. 393 U.S. at party’s ability impacts these burdens ballot, general the bur- Many appear courts have documented thus, garner votes requiring political opportunity den statutes imposed right govern. win the The LPO’s petitions far registration to file approach analytical we undertake is Following analytical set 7. The the framework 6. Lawrence, Court, employed in to that identical Supreme "we our by the base forth Lawrence, in a at 372. The restriction directly on the First and Four- conclusions requirement independent candidates file engage a and do not teenth Amendments day primary, impose a the before the did not analysis. separate Equal Clause Protection Therefore, court severe burden. the Lawrence however, rely, a number of [the We on scrutiny. correctly apply There did not strict relying the prior cases Court's] election case and Lawrence. is no tension between this Equal the Fourteenth Protection Clause of 8, Norman, 502 U.S. at 288 n. Amendment.” met this 8. The fact that the LPO Anderson, (quoting 460 U.S. at 112 S.Ct. 698 analysis. Part not affect our See does infra 7, 1564). 786-87 n. 103 S.Ct. III.A.2. thus, is that the argument, ballot-access organizing and developing, re- functions — resulting restrictions from the filing dead- cruiting candidate, supporters, choosing a year general line one advance of the voting for that candidate in general imposes a severe burden on the election'—have not been impose held to rights party, First Amendment of the severe burden. For example, the Su- members, potential voter-support- and its preme Court upheld Minnesota’s “anti-fu- ers. law, sion” prohibits which an individual from appearing on the ballot as the candi- Timmons, date for more party. than one The role of this court impose is not to 354, 520 U.S. at S.Ct. 1364. refus- democracy our own idea of upon the Ohio ing to apply scrutiny, strict the Court not- rather, legislature; state we limit our must ed that the law did “not ability restrict the analysis to whether the restrictions im- [party] endorse, of the and its members to posed registration on the support, like,” anyone or vote for they id. parties fits within the outer limits of what at 117 S.Ct. nor did it “ex- requires. First Amendment At the particular group citizens, clude[ ] or a time, same we that the may realize political party, from participation in the a “wholly independent or neutral election process.” Id. at 117 S.Ct. arbiter” as it is controlled emphasized The Court parties power, “which presumably have party was still “able to use the ballot to shape incentive to the rules of the communicate information about itself and game electoral to their own benefit.” voters, its candidates to long so Beaver, Clingman v. that candidate is not already someone (2005) S.Ct. 161 L.Ed.2d 920 else’s candidate.” Id. at (O’Conner, J., Thus, concurring). though result, any 1364. As a imposed burden the court’s in reviewing regu- role justified by was minimal and impor- limited, lations is it is vital in also that it tant state in avoiding interest voter confu- protects may interests that not be ade- sion and minimizing problems with the quately represented political pro- 363-64, process. Id. at cess. Burdick, 1364. See also 436- In determining magnitude 2059 (refusing apply strict imposed by laws, burden a state’s election scrutiny to prohibiting Hawaii’s statute Supreme Court has looked to the asso- many write-in votes because the different issue, ciational including whether routes for gaining access to the ballot alternative means are available to exercise “very the state made the burden a limited rights; those the effect of the regulations one”). recently The Court followed Tim- voters, and the candi- upholding mons in an Oklahoma statute dates; evidence of the real impact that allows registered members of restriction has on process; and the registered independents to interests of the state relative scope to the vote in a primary Clingman, election. of the election. S.Ct. at 2039. Again noting that the stat- way ute in no key political party’s factor limited determining scrutiny level of to access to the ballot apply impor is the or to choose and vote candidate, right tance of the associational for its own burdened. the Court held that Restrictions that do not affect a such “minor political barriers between voter and party’s ability Id.; perform party to compel scrutiny.” its do not strict

588 President to candidate for Blackwell, independent 241 F.3d v. also Schrader see March, seventy-five days before Cir.2001) (6th register (upholding 783, 790-91 appear on the Novem primary, to a June candidates independent prevents law and a ballot, id. at 103 S.Ct. ber political par- awith being associated signature a burdensome imposed law that quali- has not party if the the ballot ty on wishing appear to law). party on a fied under state Norman, election, in a local on the ballot however, above, at the statutes noted As 698. at S.Ct. 502 U.S. merely not affect in this case do issue party ability political of a The non- to with the LPO associate rights of general election ballot appear to on to a certain candidate or select members rights, but party’s also of affects Certainly, both be its standard-bearer. voters. rights of First Amendment implicated, are but Ohio’s interests these Tashjian Republican v. See important far more limit a 208, 214, Conn., 93 ability to 479 U.S. political party function of —its (1986) (noting the fundamen In L.Ed.2d 514 general election ballot. on the appear right to associate “[t]he ac- tal importance on analyzing restrictions ballot cases choice”). of one’s political party with the cess, Supreme Court not have that a voter does an It is true to degree which focus[es] for a candidate of right to vote absolute as a operate challenged restrictions choice, that candidate especially when her certain classes of to mechanism exclude with reasonable complied has not or process. electoral from the candidates Burdick, See, 504 regulations. e.g., state challenged is whether inquiry 441-42, (upholding 112 S.Ct. 2059 U.S. at unfairly unnecessarily bur- restriction largely due on write-in votes prohibition availability political opportu- dens the to the state’s gaining access ease nity. Timmons, 520 at 117 ballot); U.S. Anderson, at 103 1564 460 U.S. S.Ct. repre (limiting a candidate to 1364 S.Ct. Fashing, 457 U.S. (quoting Clements Schrader, political party); of one sentation L.Ed.2d S.Ct. However, a candi at when (internal (1982) quota opinion) (plurality party’s one stan appear wishes to date omitted)). citations marks and other want to exercise and voters dard-bearer fun consistently noted the has The Court to cast a right ballot their constitutional of citizens create damental interest candidate, has viewed the Court for this “To the de parties. develop political new on this funda state-imposed restrictions inter would thwart this gree that skepticism. process great mental of new by limiting access est unequally on new or A that falls burden ballot, called for has] [the Court independent or on political parties small corresponding of a interest demonstration nature, by very impinges, candidates sufficiently weighty justify the limitation protected choices associational Norman, 288-89, at ....” U.S. It Amendment. discriminates First (internal omitted). “[I]t citation S.Ct. partic- against those candidates' —and justi for the State to especially difficult voters those importance against ular — partic that limits fy a restriction lie political preferences outside whose group.” an identifiable ipation existing political parties. Anderson, 793-94, Anderson, scrutiny strict applied thus The Court guaranteed that a voter is not 1564. While required striking down laws political parties only one of the will reflect his uct of primary values, right heavily or her “the to vote is deadline, filing but also of the laws if may only burdened that vote be cast providing for party qualification. automatic parties at one of two a time when other addition, In of the seven states that parties clamoring place are for a require all political parties to nominate Williams, ballot.” 398 U.S. at their candidates in primary the state’s Anderson, 5; also see 460 U.S. at election, imposes Ohio the most burden short, “In primary S.Ct. 1564. values some restrictions of both automatic qualifi protected by the ... First Amendment are cation and qualification; as a re campaigns served when election are not sult, it has seen the fewest number of monopolized by existing political par minor parties on the ballot. California is Anderson, ties.” other state filing with a deadline year more than a general before the elec The evidence in the record shows that tion; however, qualification its require Ohio, elections monopo- have indeed been Ohio’s, ments are much lower than and the thus, by parties, lized two the burdens state had seven parties automati imposed by the state’s election laws are cally qualify for the ballot in 2004.9 See Jones, “far from remote.” 530 U.S. at F, Declaration of Richard Winger, App. Jones, In Supreme 120 S.Ct. 2402. J.A. 81-83. The Mississip same is true of importance Court noted the of evidence pi, January deadline, which has a filing but imposed the burden was a “clear and requires only party certify that a a list of present danger” merely prod- and not party statewide officers in each of the uct speculation. Id. The has put LPO congressional state’s four districts in order forth evidence showing among that Ohio is It, qualify. too, had ballot-eligi seven restrictive, if the most not the most re- ble parties in 2004.10 Id. Ohio had strictive, state in granting parties minor no minor political parties on its 2004 ballot. access to the eight ballot. Of the most Forty-three states, Id. at J.A. 58. other populous states, Ohio has had far the Texas, York, including New Illinois and political parties fewest minor gener- on its Pennsylvania, permit political par minor 1992-2002, al election ballot. From ties to nominate their candidates via con other states in group averaged four vention or provide far more political parties minor on the ballot each flexibility in contrast, party the date which a year. In J.A. 58. Ohio averaged F, per year, qualify. App. one must Id. at political parties and no minor J.A. 81-83. ballot, qualified race, itself, for the in any in While not conclusive in and of 1992, 1994, 2002 and prod- 2004. This is a Supreme Court has noted that a historical candidates, 9. California's Running 2004 was also on independent in 1996. filing days March and its deadline was 135 Perot in 1992 and John B. Anderson in 1980 (end 2003). California, in advance of October surpassed percent also the five threshold. See though, parties makes it far easier for minor Results,” State, Secretary "Election qualify. party poll any The must 2% http://www.sos.state.oh.us/sos/ElectionsVo- gubernatorial statewide race in a (last ter/electionResults.aspx visited March year, applies and no presidential vote test 20, 2006). years. party keep registra- must also (1/15) membership above one-fifteenth Only require politi- four other states (1%) percent one of the state total. J.A. 83. cal to nominate their candidates in a contrast, only one minor has auto- election; all four have dead- matically qualified under Ohio law—the Re- April lines in or later. J.A. 83-84. candidate, Party, form with Ross Perot as its 590 candidates, days the 75 before being dependent un and candidates parties of

record primary). re ballot-access the state’s able to meet in determin helpful guide ais quirements filing found have also sister circuits Our Stover, 415 constitutionality. ing their the election in of well advance deadlines Jones, 1274; 742, see also S.Ct. at 94 of the because be unconstitutional date to at ability on the place laws such restrictions on the appear or candidate party of the in issue restrictions at simply, Put the April examining Alabama’s ballot. political minor prevent a case this serve the Eleventh parties, for minor deadline most funda- engaging party imposed was ruled that the burden Circuit recruiting political of mental activities — that one “[n]o but not “insurmountable” candidate, plac- and selecting supporters, a deadline for seriously contend can that general election ing that candidate its candidates a minor and filing for and ulti- winning of votes hopes ballot [general] elec- prior to months seven evidence govern. The mately, right legitimate state required to advance tion is negative impact in the record indicates Party Ala. v. New Alliance interests.” of had on these laws have Cir.1991). (11th Hand, 933 F.2d 1576 in Ohio. As activity as whole filing a required in that case The law such, system for the Ohio we find primary of the days 60 advance imposes political parties registering minor Eighth Circuit Id. at 1571. The election. rights. on associational a severe burden on at least this issue has encountered occasions, Nebraska’s striking three down weight great we follow the ruling, In so deadline, days was 90 February which distinguished be- authority that has of Exon, v. primary, MacBride ahead well in filing tween deadlines advance (8th Cir.1977), 449 558 F.2d primary general elections deadline, was Dakota’s June which North to the dates of falling closer deadlines I, 637 McLain days primary, before recently Our court has those elections. later faced with F.2d When an Ohio upholding this noted distinction law, up- court North Dakota amended candidate independent requiring statute on the basis April state’s deadline held the day be- registration petition the to file a days ahead of it was Law- primary election. fore the state’s significantly and the state had rence, in that at 375. The court 430 F.3d signature reduced in which explicitly distinguished cases case Meier, 7,000. F.2d v. McLain in ad- that deadlines far courts had found Cir.1988). (8th Third Circuit 1050-51 imposed vance of the situation, striking down faced similar burden on the severe deadline, which was 54 Jersey’s April New candidates, id. at parties, and voters. See I, 121 Hooks days primary, before n. 2. district courts within Two upholding the amended F.3d but scrutiny in utilized strict circuit have also deadline, one imposed a June statute See early filing down deadlines. striking primary, of the state’s day advance Ehrler, 776 Ky. v. Libertarian Hooks, Parties v. Alt. Political Council (Jan- (E.D.Ky.1991) 1205-06 F.Supp. (3d Cir.1999). 77-78 deadline, pri- uary days before have noted Bd. A of other courts County number mary); Cripps Seneca deadlines Elections, associated problems F.Supp. In evaluat (N.D.Ohio 1985) in- of the election. far advance (February deadline deadline, ing January Arkansas’s one dis burden on the First Amendment rights of court “[e]arly filing trict noted that dead the LPO.11 hinder, bar, unduly lines ... if not

political parties influencing the elec process by toral Only ballot access. in the The State makes arguments several that year election itself do begin issues to co imposed the burdens regulations minority parties alesce such that op are not severe.

posing or may emerge.” different views The first contention is that the laws Priest, F.Supp. 970 at 698. The court thus place no limit key First Amendment analyzed scrutiny the law under strict and rights recruiting new members and en- found it unconstitutional. Id. The court in in gaging political speech. We find this Quinn Stoddard v. followed logic the same argument First, unpersuasive. laws finding deadline, April Maine’s question may place indeed limits on these more than two pri months ahead of the other associational rights. The require- election, mary imposed an unconstitutional ment that a fledgling political party rally burden on the parties’ First Amendment support more than year in advance of an (D.Me. rights. F.Supp. 304-05 election, major when party candidates 1984). hand, On the other both the Fourth are not known majority and the Fifth Circuits have upheld laws country is not election, focused on the is an required parties registration to file peti exceedingly difficult task. easily This day tions May before the state’s party’s could mute the message and limit Hechler, primary election. Fishbeck v. ability to recruit new members. See (4th Cir.1996); Indep. Tex. Priest, 970 F.Supp. at 697-98. if Even Kirk, (5th 84 F.3d 185 n. statutes leave rights some associational un- Cir.1996) (distinguishing a deadline to de impeded, is not sufficient to establish January clare intention to run in from that no burden imposed. Supreme The filing May). the actual deadline in See Court has noted affecting that a statute also Rainbow Coal. Okla. v. Okla. State key First rights Amendment does not be- Bd., (10th Election 844 F.2d Cir. come less burdensome because it does not 1988) (upholding May deadline, days Jones, limit all rights. associational See election). in advance primary (“We 530 U.S. at 120 S.Ct. 2402 have consistently refused to overlook an uncon- We find both the reasoning and the con- stitutional restriction upon some First clusions of these courts to compelling. activity simply Amendment because it Ohio’s deadline preceding November leaves other First Amendment un- activity the election any is the earliest of deadline impaired.”). reviewed days federal court. It is 120 in advance of Moreover, election and 364 unimpeded by left days ahead of general election for the Ohio are not the ones most party which the appear wishes to goals political central to the of a party. ballot. This imposes deadline Recruiting severe members and engaging polit- non-presidential case, however, years, prima- 11. In general election. This in- May, ries are held the first week in and thus challenge only applica- volves a to the laws’ January, deadline is in ten months presidential year. tion in a We make 3501.01(E)(1)- § in advance. Ohio Rev.Code ruling application no on the laws' in non- (2). days This deadline is 120 in advance of presidential years. and still ten months ahead of the candidates automatically selects the but a important rights, speech are ical Thus, in major parties. The from one of the higher. aims are far political party’s same, affiliation has aspire simply many party to assemble cases does not LPO identity more, than the engage importance meeting places if not public further their beliefs. Supreme activities that Court speech of the candidate. Amend- cherished First Certainly, party this is a and the that “the noted jealously guard- that is right and one polit- ment approaches candidate independent goal But the ed. entirely and nei- activity are different ical Schrader, govern. is to See supporters its satisfactory for the a substitute ther is (“A organization party new 241 F.3d at 789 Storer, 745, at 94 S.Ct. 415 U.S. other.” statewide, organi- ongoing contemplates a without appearance A candidate’s political character. with distinctive zation ap- not a substitute party affiliation is to control of the typically gain is goal Its name, and it does party a pearing under by electing machinery government state imposed Ohio’s not lessen the burden office.”) (quoting public its candidates parties. on restrictions 1274). A Storer, at 415 U.S. argument is that The final State’s if and cannot cannot lead not elected party the dead- petition ahead of LPO filed its As the if not on the ballot. be elected line, rejected procedural it only to have thirty years ago, stated Supreme Court the LPO could The fact grounds. party a for the ad- right to form “[t]he requirements, and with all of the comply if means little political goals vancement con- past, in the the State had done so kept can off the election ballot party tends, imposed that the burden is evidence Williams, 89 S.Ct. 5. ....” 393 U.S. argument find this is not severe. We at issue in this case affect The statutes First, ignores it unpersuasive. equally ability political party appear early prevented the fact that the deadline funda- to exercise its most ballot and thus on the cor- re-filing party rights. mental of form, deadline had because the rect Next, per- law notes that Ohio State Moreover, the fact that an elec- passed. political party mits a candidate of a minor mean can be met does not procedure participat- without appear on the ballot See imposed is severe. the burden so, a election. To do ing Anderson, at 791 n. 460 U.S. nominating peti- need file a candidate intention- required A is not party days prior general to the tion 75 in the arena ally place forfeit its 2004), he or she will be (August 18 in challenge an election law. order to an inde- listed without affiliation—as make additional observation We one Party.” See pendent or under “Other The arguments. the State’s about Anderson, 3513.257; § Rev.Code chal- imposed by the analyzes the burdens (striking down the 103 S.Ct. 1564 rather than ad- lenged separately, statutes as 75 setting law the deadline previous For ex- impact. their election). dressing collective days year’s primary before that Jones, it ample, argues the mark. Po- argument This also misses controlling on the for national elec- parties, especially litical may require states question of whether tions, un- gather together aim to members nominate their candi- political parties to ideological and common a common title der Putting aside ballots, in a election. of a dates many option beliefs. On available, actually stands the issue of whether Jones even “straight-ticket” vote is such reliance misses proposition, for this to mark one box which allows individual point. challenge LPO does not not “supplant precise put interests for alone, primary requirement but rather ward the State with other suppositions” in combination with the 120-day filing in evaluating restrictions on commercial deadline. It is this combined burden on speech test). under the Central Hudson party’s rights that we must address. In the interest of a full review, fair however, we have mined the State’s brief The State has not convinced us argument to identify proffered ra imposed by the burden tionales for the primary requirement and deadline and primary requirement is not filing deadline. To determine if these in severe. greater There are few burdens terests are compelling, we examine each placed that can be on a party than “in the Jones, circumstances of this case.” being denied access to the ballot. 530 U.S. at 120 S.Ct. 2402 (emphasis ease, the combination of the chal laws omitted). lenged by the just LPO acted to impose such burden. We hold that the combina The State argues that filing a deadline tion of Ohio that require laws a political days in advance of the primary elec- party to file a registration petition twelve tion allows a reasonable amount of time to months in advance of the general election process a registration for the of a in appear order to on the ballot imposes a political In party. that days, the State severe burden on the First Amendment certify must signatures the petition; rights of the potential LPO and its voter- allow appeals; for administrative print, supporters. such, any As regulation of distribute, ballots; proof and and prepare this right narrowly “must be drawn to and mail absentee ballots. It is true that a advance a state interest of compelling im 120-day period may be a reasonable Burdick, portance.” 504 U.S. at amount process of time to registration the S.Ct. 2059. of a political party; however, this is not inquiry Rather, the before us.12 we must B. examine mandating whether that this 120- The State has made no clear day period place take in advance of a argument regarding the precise interests March primary, resulting in a filing dead- it protected feels are the at year line one general advance of the case, issue in relying the gener instead on election, promotes a compelling state inter- alized hypothetical and interests identified est. find it We does not. in other cases. Reliance suppositions speculative and interests is not sufficient The primary interests asserted justify a severe burden on First Amend preserving State include integrity and rights. ment See Alle fairness of the electoral process and ensur- Reform of gheny County v. Allegheny County Dep’t ing parties given that minor access to the Elections, (3d 174 F.3d 315-16 Cir. ballot have established bona fide support. of 1999) Anderson, (citing U.S. Both the Supreme Court and this court 1564); Fane, 103 S.Ct. have recognized viability in- of these cf. Edenfield U.S. terests, Timmons, 363-64, see (1993) L.Ed.2d (ruling 1364; Lawrence, that courts can 430 F.3d at issue, Though we not need rule on this even a supra reasonable state interest. See great weight authority from other circuits (discussing Part III.A.l cases from other filing indicates that a days deadline 120 courts). primary may advance being fall short of growth. continuity and for as a desire well no evidence provided has the State but parties difficult making minor it more for By procedure registration that arena, state actual- interests. political these any way protects access parties filing issue-spe- argument no possibility ly The State makes increases gener- in advance of year emerge to will deadline one candidates independent cific electoral to ensure is needed al election do These candidates fill this void.13 to do so. fairness, be difficult it would party, stability offer deadlines have states Forty-eight likeli- greater leads to sheer number cycle, in the election later parties minor voter con- instability and hood of allow forty-three states showing no has made fusion. State other in manner candidates to nominate Ohio, are able who the voters primary election. than the featuring several ballot an effective cast candidates, an interest be flum- also asserts would The State independent of candidates multiple politi- the number regulating featuring by a moxed ballot stability, encour- promote political order to parties. cal the number that limits compromise age that the important to note Finally, it is goals, short-range candidates with an election regulating interests state’s Again, confusion. avoid voter in hav trump the national interest cannot inter- that these no evidence put forth appear on candidates ing presidential they are ad- or that compelling ests are the context in each state. ballot There early filing deadline. vanced election, “state-imposed re presidential this ratio- to question as whether is some important uniquely a implicate strictions may not A state even reasonable. nale is Anderson, at 460 U.S. national interest.” other preventing claim legitimately omitted). (footnote 794-95, is needed accessing the ballot parties imposed requirements ballot access Strict The deadline stability. political protect to their own impact beyond have an by states prevent only to serves this case a state’s borders, limits on placing some unless political parties of new registration its elections. regulate a prerogative more than to can mobilize parties those local they Moreover, to opposed wish state election which year before protect elections, presidential to system serves of to run. This the outcome expense politi- of major at the vot parties two determined will be largely which expression, borders, and free dialogue reducing cal ers outside state’s compelling. See much less justified, not state’s of the administrative importance 1564; Anderson, at 460 U.S. restrictions of combination concerns. The 31-32, Williams, at 393 U.S. burden more than in this case “does can ... voters and rights of associational have Moreover, arguably state-im significant places It didates. short-range limiting on negative effect a nationwide electoral on posed restriction voter confusion. preventing candidates and Anderson, process.” organizations are Political objectives, as S.Ct. long-term short candidates, there which election, include write-in ballot con- the Ohio

13. In Results," many. "Official Election See were independent candidates. tained thirteen State, Secretary Ohio were on independent candidates eleven http://www.sos.state.oh.us/sos/ElectionsVo- are totals These the state numbers ballot. (last March ter/electionResults.aspx visited congres- gubernatorial, presidential, from the 20, 2006). They not legislative do races. sional and state Moving deadline closer to the seeking qualify to candidates for the Ohio primary date of the or allowing parties to general election ballot. I join therefore choose their candidates another manner that portion Judge opinion Gibbons’ may impose some additional costs on the which addresses this issue. I write sepa- state, price but this is the imposed by the rately I because believe that Plaintiffs’ First Amendment. is well its within complaint that Ohio’s strict compliance authority elections, to mandate to rule unconstitutionally burdens First limit all parties date, one primary or to Amendment freedoms is moot. not Ohio’s require filing a advance rejection of Plaintiffs’ highly administrative purposes. grounds technical presents significant con- individually, Viewed each of these require- questions stitutional about the electoral may only ments impose a bur- process reasonable that this Court should address on den on constitutional rights. In practice, the merits.

however, the combination laws these imposes a severe burden on the associa- I. LPO, tional rights members, of the its potential voter-supporters. As the BACKGROUND shown that these laws are narrowly protect tailored to a compelling sought Plaintiffs qualify the Libertari- interest, state find sys- we that the Ohio as a Party “minor party” under tem for minor party qualification violates Ohio law time for the presidential the First Amendment Constitution. cycle. This qualification would

have enabled Libertarian candi- IV. dates hold a primary to nominate a presidential candidate and list the candi- There is an inherent constitutional ten- dates’ party affiliation on election ballots. sion between the of states to con- qualify, To Plaintiffs had petition to file a duct and regulate elections and the containing signatures 32,290 the atof least political parties and voters to exercise Ohio voters with the Ohio Election Com- their First rights. Amendment do not We by mission November presume to dictate how Ohio must run its elections, except say to system that the Beginning April began Plaintiffs must fall within the outer boundaries es- circulating petition garner to the neces by tablished the Constitution. The sary signatures. On October deadline and requirement chal- petition 57,150 filed a containing Plaintiffs LPO, lenged by the when viewed in combi- Ohio signatures. voter By letter dated nation, fall outside these lim- constitutional November rejected Defendant its. petition Plaintiffs’ because petition the was reasons, For these we judg- reverse the not on the form prescribed by Defendant ment of the district court. and did not contain the correct election falsification notice. requires Ohio law CLAY, Judge, Circuit concurring in part strict compliance with all require dissenting part. ments, unless another specifi standard is

I agree with Judge cally Gibbons that the by set forth statute. See State ex rel. combined burden Ohio’s petition Citizens Responsible Taxation v. Scio deadline and primary cycle uncon- County Elections, Bd. 65 Ohio St.3d stitutionally (Ohio 1992). burdens minor 602 N.E.2d ONE THAN NOT OF MORE FINE provides § 3517.011 Code Revised Ohio 16.) (J.A. at DOLLARS.” THOUSAND pre- form on be “shall petition that the not on addition, petition was Plaintiffs’ In state.” secretary of the by scribed by the Ohio 3501.38(J) promulgated form exact the § Code addition, Revised Ohio form dif- Plaintiffs’ Secretary of State. candida- declarations “[a]ll requires First, “Circular the ways. in two fered petitions or other nominating petitions, cy, the circulator of Statement,” whereby the accompanied shall section under this validity, is petition’s attests to capital petition in boldface following statement the Plaintiffs’ on signatures ELEC- before COMMITS WHOEVER letters: Secretary of State’s form, whereas OF GUILTY IS FALSIFICATION TION at the end statement has this form FIFTH DEGREE.” OF THE A FELONY Second, form the Plaintiffs’ signatures. re- forth § 3501.38 sets generally, More columns, for the one three additional the Sec- filed with petitions quirements name, two his last print states, signatory section That retary of State. indicate his signatory columns for part: pertinent are the The forms precinct. ward in ink. (B) be affixed Signatures shall all informa- respects, and other same all signer’s print the may also signer Each Secretary of State’s on the called for sig- clearly identify the name, toas so Plaintiffs’ form. on the form is included signature. ner’s pro- form their point out Plaintiffs (C) peti- place shall signer Each print his signer space for the vides date of name the signer’s tion after name, permitted Ohio expressly last signer’s the location signing 3505.38(B) (“Each signer § Revised Code residence, street including the voting name, so as to signer’s may print also corporation municipal in a if and number signature.”), signer’s identify clearly number, office post rural route or the do on difficult to something that would be a munici- address, if outside township form, does which Secretary of State’s voting address corporation. pal also aver Plaintiffs space. provide not the ad- shall be petition given petition circulating they began registration rec- in the appearing dress to the prior months four April of elections. at the board ords the election that modified change in law § Rev.Code 3501.38. therefore, notice; Plain- when falsification did contain Plaintiffs’ drive the their began tiffs no- falsification above-referenced form petition on their notice falsification code. currently exists the Ohio it tice as correct. was Rather, petition contained Plaintiffs’ prior in force that was the notice form of II. the Ohio on which date August for election penalty changed the legislature ANALYSIS from misdemeanor falsification Compliance Claim Strict A. Plaintiffs’ degree. felony the fifth to a degree first Elec- Significant Issues in Presents Coun- rel. Summit ex Vickers See State tion Law 777 N.E.2d ty, St.3d Ohio in con- significant issues assert “THE Plaintiffs (2002). notice read: Plaintiffs’ re- compliance strict with Ohio’s nection FALSIFI- ELECTION FOR PENALTY rejec- that the Plaintiffs claim quirement. FOR IS IMPRISONMENT CATION such technical MONTHS, petition their A tion of OR SIX NOT MORE THAN grounds unconstitutionally burdens their everyone interests of involved reducing speech and rights by associational unnec- any uncertainty as to the constitutionality essarily restricting access to the Ohio bal- of Ohio’s regime as the state lot. Ohio’s interests in a regular and or- moves forward toward the next election derly process readily would be cycle. This review is within our power, met, argue, by Plaintiffs requiring sub- because, contrary to majority’s asser- stantial compliance election laws in tion, Plaintiffs strict compliance claim is system lieu of the compliance of strict not moot.

Ohio now employs. Party Libertarian avers that party’s petition subverted B. Plaintiffs’ Compliance Strict Claim requirements election law neither Is Not Moot substantively nor proeedurally and should There are at least three ways which accepted by have been the state. Plain- Plaintiffs’ injury “capable of repetition:” point tiffs out that the formatting changes 1) (a) Party Libertarian could once did significantly alter again begin circulating a petition prior to a form, and that the out-dated election falsi- change law, in election causing signifi- fication notice served purpose the state’s cant number signatures to be invalid in informing potential sig- violators they because are not on a form either nificant penalty criminal for election fraud. prescribed by Secretary of State or Under analysis, Plaintiffs’ when the conse- containing the correct election falsification quence for such de minimis errors is so language as of submission, the date of complete and far-reaching complete bar —a (b) different, make a yet similar, clerical to ballot access im- concomitant 2) mistake that Ohio law forgive; does not pact on the associational interests of the Plaintiffs, the individual capacity their party’s potential voters —the burden on electors, experience could the same re- constitutional rights marginal exceeds the striction in electoral choice as a result of strict, interest of the state in a versus the Secretary of State’s use of Ohio’s strict substantial, compliance system. More- compliance requirement reject a minor over, Plaintiffs assert compli- strict 8) party’s future; in the an- presents ance unique concerns when em- other minor party may make the ployed in the context of party qualifying same mistake as the Libertarian petitions. Major political parties do not case, the instant experiencing the same need to petitions, such submit having qual- injury as the Party. Libertarian ified for the ballot through their demon- strated ability garner in past elec- votes Jurisprudence Mootness cycles. Only minor political parties seeking access to the Ohio are ballot re- This Court a continuing obligation to quired to submit a qualifying petition, and address live If controversies. “the therefore only parties can presented issues are no longer par- live or kept off the ballot for de minimis er- ties lack a legally cognizable interest the in rors their petitions. outcome,” then the case is moot and the allegations

Plaintiffs’ represent Court must serious dismiss. Los Angeles County Davis, concerns with the Ohio v. system. 1379, election 440 U.S. 99 (1979). These concerns deserve treatment on 59 L.Ed.2d their 642 An exception to panel merits a full of this More- the mootness Court. doctrine exists wrongs over, a decision on the of that “capable merits Plaintiffs’ are of repetition, yet evading compliance strict claim would serve the review.” See v. Ogilvie, Moore 394 U.S. 598 a re- that demonstrated had 1 the claimant 1493, L.Ed.2d 23 815,

814, 89 S.Ct. probable was more dispute of of the (1969). “capable currence wrong is Generally, a (1) original). (emphasis when not.” Id. evading review” than yet repetition, in its duration action was challenged a “rea- recognized that This Court prior to its litigated fully to be too short something less is expectation” sonable (2) is a there expiration, or cessation Law- not.” See than probable “more than aor demonstrated expectation reasonable (“The Supreme rence, at 371 430 F.3d recur. controversy will that probability of the purpose that has stated Court 6, 305, n. Doe, 318-19 U.S. v. 484 Honig ‘whether is to determine prong second (1988); see 592, 686 L.Ed.2d 98 108 S.Ct. repetition capable of controversy was 147, Bradford, 423 U.S. v. also Weinstein has demon- the claimant ... whether (1975). 347, L.Ed.2d 350 46 96 S.Ct. is dispute a recurrence strated that cycle the election that dispute is no There ” Honig, (quoting than not.’ probable more election- to enable a duration is too short 592)). In 6, 108 S.Ct. at 319 n. during fully litigated to disputes law was Lawrence, found that there this Court Ogilvie, period. that time See a candi- that expectation” a “reasonable Blackwell, 1493; v. Lawrence 89 S.Ct. would wish now-past date Cir.2005) (“Chal- (6th 368, 371 430 F.3d elections, de- future run as a candidate one of the laws are lenges to any the record spite no assertions which categories of eases quintessential courts Id. circuit to do so. Other intent evading review] usually [the fit within Supreme Court’s follow the appeals also ”). .... prong expectation” that a “reasonable direction what it clarified Court Supreme The proba- than demonstrated less something expectation” to show a “reasonable takes Educ., 260 v. Bd. Russman bility. See Honig, recur wrong will that (2d Cir.2001); Miller ex rel. F.3d Honig The 319-20, 592. U.S. at Ctr., 19 F.3d Pac. Med. NLRB v. Calif. was no 20-year old that a who held Court Cir.1994); v. Local (9th Reich public the California longer enrolled in Teamsters, 978, 985 n. 6 F.3d Int’l Bhd. of eligible who remained system, but school (3d Florida Cir.1993); v. The ACLU his 21st through services for educational (11th Cir.1993); Bar, F.2d challenge a non-moot presented birthday, Cremer, 233- Hernandez the Edu- implementation of state’s Cir.1990). (5th Id. Handicapped Act. cation rejected proposition expressly Court Expectation a Reasonable Is There Scalia dissenting Justice put forth Same, Make Will That Plaintiff's equivalent expectation” was a “reasonable Similar, Future Mistakes Id. at probability.” “demonstrated Par- case, the Libertarian instant Instead, the Court n. up-to-date to include the ty failed and con- past jurisprudence at its looked al- on its notice falsification it found “controversies had cluded Secretary of State’s version tered the expectations on repetition based capable of infor- include more in order to reasonable, hardly demon- that, were while the rec- evidence in There is no mation. went Id. The Court strably probable.” ord, suggest, the circumstances cases, nor do concern these that “[o]ur to note mistakes Party made these the Libertarian moot involving potentially in all others challenge Ohio’s attempt in a deliberate controversy was claims, was whether laws re- compliance with strict whether and not ... repetition capable Rather, quirement. the mistakes were Finally, Plaintiffs ask this Court to de- merely that —mistakes. And these mis- cide whether “Ohio’s pe- that takes occurred despite the fact the that tition comply forms strictly with applicable Party Libertarian decades-long his- statutes” unconstitutionally burdens Plain- tory organization and demonstrated tiffs’ First and Fourteenth Amendment ability presidential candidates, to field (Pl.Br.2.) rights. While in the instant case least on some majori- states’ ballots. The the strict compliance requirement resulted ty opinion concludes that the Libertarian in petition’s rejection premised as Party is unlikely to make the same mis- the election falsification language and the in take the future with the incorrect elec- modification, form in the future the Liber- tion falsification notice and therefore that Party tarian may similar, make although Plaintiffs have failed to show a “reasonable identical, not Therefore, mistakes. even expectation” that the wrong will recur. were the Party’s Libertarian organization- This conclusion rests on unreasonably high al memory perfect insofar as the election expectations of the Libertarian Party’s falsification notice goes, many there are competence and construes the too issue other ways in which the Party Libertarian narrowly. could an imperfect submit petition that the If the Party, Libertarian despite its rela- Secretary of may reject pursuant the sophistication tive in comparison to other § Ohio Revised Code 3517.011 (requiring minor political parties, inadvertently made petitions all to be on the form prescribed one, not but least two mistakes on its by State). the Secretary of may Plaintiffs petition presidential for the 2004 very well remember double check the cycle, then it is reasonable believe that election falsification language in the future. party will make an petition error on a They may even remember not to include in the future. Obviously, the party’s na- additional columns for the inclusion of tionwide and organizational statewide ca- what party considers useful informa- pabilities did not prevent the mistakes tion. It is expect, however, reasonable to past cycle. personnel similar, that if identical, not mistakes will populate organizational apparatus made future petitions. unclear, It is of a party’s often, machine are for example, whether the inclusion of addi- necessity, Moreover, seasonal. many po- tional columns and the movement litical volunteers, workers are and turn- circulator statement would have resulted over frequently is high. say To that the rejection petition Plaintiffs’ in the unlikely Libertarian is to make a case, instant if the election falsification mistake on form the future notice were issue. Certainly, as is to perfect ascribe organizational memo- argued by Ohio, the state of the Secretary ry to organization’s members. The of State would been have within his au- instant case is unlike prior cases in which reject thority the courts such mis- have said we will not usual- takes ly the petition because was that a not on the assume will deliberately form prescribed by violate Secretary. the same law A in the future. See Honig, future U.S. at circulator may, example, 108 S.Ct. 592. move This is not matter of circulator violation, willful statement to the but start of the rather inadvertent second page mistake. It entirely page order to fit formatting expect reasonable requirements of a computer Libertarian program. If Party may imperfect submit an petition in this is moot in case, issue the instant the future. courts are Ohio’s endowing Secretary of choices), with in their electoral restriction authority unreviewable plenary, with F.2d Oregon, 847 City v. Speer the is on petition a whether

to determine Cir.1988) moot the case (6th (finding n. 3 form. prescribed properly only as a candidate sued plaintiff the when to believe every reason This Court voter). not as continue Party will Libertarian that the attempting tradition Ohio long their Expectation Is a Reasonable There I. the ballot. candidates qualify to Parties Political Minor That Other its Court, on insists to this argument or Similar the Same Make Will ap- and its requirement compliance strict Future in the Mistakes notice falsification to the election plication yet repetition, “capable Normally, the There is petition. of the form and the re- mootness to exception evading review” will con- that Ohio believe reason to every repe- capable dispute be that quires the not which does any petition reject tinue to ie., “there parties, same between tition requirements. to its conform precisely the same expectation is reasonable ex- a reasonable have should This Court to the subjected will party complaining will party Libertarian pectation Weinstein, again.” action same to a respect fate with the same suffer Supreme Yet petition. future this Court, and several of Court, relaxed circuits have sister Court’s Expectation Reasonable There Is a law the election requirement in same Electors, as Capacity in Their That to context, whether looked instead May Be Individual Plaintiffs expectation a reasonable is there Choices in Electoral Deprived of may suffer a similar type of plaintiff same Compli- Strict to Ohio’s Future Due injury in the future: Requirement ance controversy almost fact that The sue their Plaintiffs also individual respect invariably recur will “who want capacity as electors individual or voter potential future candidate some political party for the and vote support the second to meet is sufficient in Ohio 6.) (J.A. at candidates.” and its plaintiff relaxed it is somewhat because prong com to strict adherence its Ohio maintains applied have Courts cases. election Given election laws. with its pliance evading review yet repetition capable Party, see Libertarian that the possibility challenges hear exception to parties, supra, and other law of the the nature even when laws on a will mistake make infra, see would that the plaintiff it clear made ballot, an Ohio spot refused and be the future. harm in the same suffer that, as expectation is a reasonable there Lawrence, at 372. 430 F.3d parties” electors, “complaining the same compli- history of successful Despite in the choices of electoral deprived bewill laws, the Liber- Ohio’s ance with Therefore, as the individu insofar future. incorrect Party included tarian electors, and not candi sue al Plaintiffs peti- on its October notice falsification compliance dates, the strict the Secre- improperly modified Corrigan Compare not moot. issue is form, which both of (6th of State’s tary Cir. 1213-14 Newaygo, rejection grounds provided elec 1995) to a local challenge (finding a signa- 57,000 collected more than party’s respect to moot with tion ordinance not oth- expect that It reasonable of a tures. complained who voter-plaintiffs, two er parties, many not as majority’s conclusion that the strict com- experienced as the long-standing Libertar- pliance issue is moot. Party,

ian will make similar mistakes in the future. Variations on the Ohio GRIFFIN, Circuit Judge, dissenting. can easily form very happen through inad- join I in section II of Judge Gibbons’ Moreover, vertence. Ohio’s opinion, except for its final paragraph. that petitions be “on the form pre- With regard to the portions other of her by scribed” the Secretary of not opinion, I respectfully dissent. completely unambiguous. Computer pro- grams reproduce such forms for wide- addition, In I my note disagreement spread dissemination. A well less in- Judge with Clay’s characterization of formed volunteer may very easily make petition warning error as “technical” or formatting changes to make “de minimis.” Starting August 28, 2001, read, easier reproduce, or distribute and law required Ohio that nominating peti- still believe that the resulting petition is warn potential tions all circulators sig- “on the form prescribed” by the state. In natories, in boldface capital letters, case, the instant the Libertarian Party “WHOEVER COMMITS ELECTION merely added three columns and moved FALSIFICATION IS GUILTY OF A the circulator statement order enable FELONY OF THE FIFTH DEGREE.” the election falsification notice appear 3501.38(J). § Ohio Rev.Code The LPO’s on the same page as signatures. The petitions signed after August 2001, con- party seems to have believed peti- that the only tained the following misdemeanor tion was still “on the prescribed” form by warning: “THE PENALTY FOR ELEC- the state. But as the instant case demon- TION FALSIFICATION IS IMPRISON- strates, the party wrong. is, was There MENT FOR NOT MORE THAN SIX therefore, a expectation reasonable that a MONTHS, AOR FINE OF NOT MORE similarly situated party will make the THAN ONE THOUSAND DOLLARS.” same, similar, mistake as by that made my view, In the difference in punishment Party Libertarian in the 2004 election between a felony and a misdemeanor is cycle and run afoul of Ohio’s strict compli- neither “technical” nor “de minimis.” ance requirement. if the state of Ohio unconstitu tionally denied a party access to

III. ballot, such a party hypotheti remains CONCLUSION cal: it has not been identified and its There ais expectation reasonable plight has been not chronicled in this rec Party Libertarian or some other minor ord. only The political party at issue in political party will be refused access to the this case is plaintiff Libertarian Ohio ballot in the future (“LPO”). of argu- because But, the ballot qualifying ably de minimis errors their party peti- requirements that the majority deems “se tion. present Plaintiffs significant con- vere” and declares unconstitutional were cerns about the placed burden on First by fulfilled the LPO in fact, 2004. In Amendment freedoms Ohio’s insistence challenged regulations that require the fil on strict compliance with its petition re- ing of nominating petitions days quirements, concerns which should have advance of the primary partic election and been treated on the merits this Court. ipation in the primary election were com I therefore respectfully dissent from plied LPO, by the only not charac a conclusive through decree elections. preceding two also

but opinion an distinguished ter, LPO did plaintiff reason upon would law was advising what ballot for Ohio’s qualify ” Ibid. signed of facts.’ to its state petitions regard hypothetical with error v. this not for Co. Insurance 28, If Aetna August (quoting after Life have 461, error, 241, would 227, the LPO 57 S.Ct. Haworth, U.S. serious 300 Because ballot. (1937)). 2004 This case-or- 464, been 617 L.Ed. 81 plaintiff reason sole is error legal subsists this controversy 2004, and access ballot denied pro LPO was judicial of federal stages all through reoccur, unlikely to is mistake this because sustain To appellate. and trial ceedings, U.S. as moot. case dismiss I would ease, it is present in the jurisdiction our CONST, 2; Continen Ill, v. Lewis § art. very was dispute that a enough 477-78, 110 472, U.S. Corp., 494 Bank tal filed, or when was when suit alive much (1990). 400 1249, 108L.Ed.2d S.Ct. of Court in the obtained review was cases moot over at jurisdiction Deakins, supra, lack 484 U.S. We Appeals. is courts of federal jurisdiction Thomp 528; v. because 199, 108 S.Ct. Steffel con- or cases ongoing and 10, to actual 459, limited 94 S.Ct. 452, n. son, 415 U.S. stated Court Supreme (1974). As troversies. 505 1216, 10, L.Ed.2d 1209, n. 39 477-78, S.Ct. 110 Lewis, U.S. 494 a to have continue must ” “ 1249: of in the outcome’ ‘personal stake Constitution, III Article U.S. Under 461 Lyons, lawsuit, Angeles v. Los actu adjudicate may courts federal 1665, L.Ed.2d 1660, 75 101, 95, 103 S.Ct. Dea controversies. al, cases ongoing Carr, 369 v. (1983) Baker (quoting 675 U.S. 484 Monaghan, v. kins 703, 691, 7 204, 186, 82 S.Ct. U.S. 529 528, L.Ed.2d 523, 98 108 S.Ct. (1962)). L.Ed.2d 663 Newkirk, 422 U.S. v. (1988); Preiser relegate effect, Clay would Judge 2334, 2330, 45 L.Ed.2d 395, 401, 95 S.Ct. to doctrine mootness constitutionally-based of jurisdiction (1975). To invoke 272 v. Rutan history.” Cf. of “the dustbin have court, litigant must federal 62, Illinois, 497 U.S. with, actu Republican suffered, threatened or be 52 2729, L.Ed.2d 2, defendant n. to traceable injury al his Under J., dissenting). (1990) (Scalia, by a favorable to be redressed likely exist Wright, 468 v. would cease decision, Allen analysis, the doctrine judicial always 750-751, 104 S.Ct. courts would the federal because U.S. (1984); Forge Valley that a possibility due to L.Ed.2d jurisdiction have arise, United College v. Americans might similarly Christian situated Inc., State, & substantially Church time, Separation future some raise at 471-473, 102 are on mootness His views issue. similar (1982). Article 757-59, L.Ed.2d limit wording on our plain to the contrary “to power courts federal denies III, III Sec- Article contained jurisdiction affect that cannot questions decide before case in the litigants rights of Judge rejects correctly Judge Gibbons Rice, them,” North Carolina respect mootness notion of Clay’s 30 L.Ed.2d 244, 246, 92 S.Ct. inconsistently appears issue, but the first resolv them to (1971), and confínes “ issue. the second regard it with to follow contr substantial ing ‘real that, justification only offered Her relief specific admitting of oversies] cases, the courts should apply a regulations to a strict scrutiny analysis repetition “somewhat relaxed standard” in which, turn, compels the majority to deciding whether the Constitution deprives rule the laws unconstitutional. Because jurisdiction. federal courts of view, In my the challenged election rules are a reason we should not construe the provisions of able non-discriminatory use Ohio’sregu our Constitution ain “strict” manner or in power, latory I would follow the rationale a “somewhat relaxed” Rather, manner. it Blackwell, Lawrence v. 430 F.3d 368 is our role give ascertain and effect to — (6th Cir.2005), denied, cert. U.S. -, the plain original meaning of the L.Ed.2d 278 (2006),and words used our Constitution. ANTO- uphold the laws as constitutional. SCALIA, NIN A MATTER OF INTER- Recently, in Clingman Beaver, v. 544

PRETATION: FEDERAL COURTS 581, U.S. 2029, (1997). AND 161 THE Law 920 See L.Ed.2d also McIn- (2005), the tyre Supreme v. Comm’n, Court emphasized Elections 514 U.S. 334, 359, not all 1511, 115 S.Ct. 131 L.Ed.2d that bur- 426 (1995) (Thomas, J., den First concurring), Amendment subject are South to v. States, Carolina United strict 437, scrutiny analysis. 199 Rather, U.S. unless a 448, 110, 26 (1905). S.Ct. 50 261 state L.Ed. election regulation places .heavy or severe burden a party, “a State’s im-

Judge Gibbons also makes a half-heart- portant regulatory will usually interests ed argument that perhaps were it not for enough to justify reasonable, nondiscrimi- early deadline, the LPO might natory 587, restrictions.” Id. at 125 have S.Ct. been able to obtain a new set of 2029 (quoting approval with 32,290 Timmons v. signatures after petitions its were Twin Cities Area rejected. New Party, 520 No U.S. supports evidence sup- 1364, 117 position. S.Ct. 137 deadlines, Deadlines are L.Ed.2d 589 wheth- (1997)). er they “early” are or “late.” Customarily, nominating petitions are filed at or near In holding statute, Oklahoma filing deadline, and time then afford- which allowed political parties open ed for Secretary to accept or their primary elections to only their own reject the form of petitions and for the party members and registered voters local boards of elections to verify the num- independents, did not violate the First ber and authenticity of the signatures. In Amendment rights of the Libertarian Par- present case, the LPO peti- filed its ty of Oklahoma, the Supreme Court re- 30, tions 2003, on October only days before fused to apply a strict scrutiny analysis 3, 2003, November deadline. In a because the imposed by burden the statute letter 24, dated 2003, November the LPO was not “severe”:

was notified defendant petitions that its were rejected as invalid they because did [O]ur cases Tashjian since Republi [v. felony contain the required warning Conn., can 208, 479 U.S. 107 Ohio law. These facts contradict the lead 544, (1986) S.Ct. 93 L.Ed.2d 514 ] have opinion’s conjecture and speculation re- clarified strict scrutiny [that] is appro garding the possibility of the ability LPO’s priate only if the burden is severe. to recirculate petitions. Jones, Democratic Party [California v.]

Regarding the arguable merits 567, [530 of this U.S. (2000)], 120 S.Ct. 2402 speculative dispute, the majority errone at supra, 582, 530 U.S.

ously subjects disputed Ohio election 502; 147 Timmons, L.Ed.2d 520 voter voters

U.S. 589. ing Many electoral variably “affec[t]—at ty registration Bullock v. his gree—the 460 These L.Ed.2d tiny, like these S.Ct. deem every electoral bly Storer efficient not electoral compel federal question order.” 358, 117 S.Ct. homa’s duce Rockefeller, 410 ^[*] parties, right require must, U.S. at severely burden hamper registration election- 1274, L.Ed.2d do not ordinary and 849, 31 L.Ed.2d take minor 358, 117 S.Ct. semiclosed ends.” 547 ^[*] “that States Timmons, codes. and Brown, 415 U.S. 780, severe individual’s Carter, 405 U.S. enact 36 L.Ed.2d some elections, process. election). (1983). compel barriers associate and equitable 788, regulation ^[*] Anderson 1364, courts to that voters result, ability of States regulations, action to would reasonable generally, The Constitution months campaign-related widespread strict 103 S.Ct. supra, between least and See, e.g., Rosario right to vote ^[*] may, and Election subject for it is 92 (1973) (uphold- elections, and scrutiny. See to strict in advance participate ballots v. rewrite (1974). Okla L.Ed.2d to some require 724, associational system does 134, change 520 U.S. at 760-762, (1972). To ^[*] Celebrezze, others voter including 1564, 75 L.Ed.2d virtually burdens laws inevita 143, 730, beyond to run to re scru state par- does ^[*] 589; and dis de- in- 92 with, ballot. Amendment Clingman, Minnesota apply tional lation “fusion” stated: will able, S.Ct. quotation supra, Timmons, 1564, 75 L.Ed.2d inevitably lations to reduce election- [I]t 428, 112 S.Ct. some sort they disorder. (“ (1992)], supra, at 730, 94 S.Ct. a substantial tives,’ Art. Elections (quoting matched S.Ct. ‘Time, (1974)); Tashjian, States ‘[A]s accompany Timmons, usually be New strict is also violated Clingman process are to be candidates nondiscriminatory 544 of Places “broad law Party that rejecting Storer practical by state for Senators parties, Burdick of must, enact reasonable scrutiny to marks supra, rights, I, clear for state (The Constitution order, its First prohibiting U.S. which regulation of 4,§ enough follows, and power v. 2059, 1274, fair L.Ed.2d that States matter, democratic omitted); the claim Brown, 415 U.S. elections, and ballots control and [v. cl. which rather 433, 112 S.Ct. U.S. supra, Manner likewise and offices”). 592-93, 125 S.Ct. Takushi, 119 appearing 39 campaign-related and Minnesota and Supreme challenge 780, 103 S.Ct. justify multi-party there must honest over prescribe than restrictions.” L.Ed.2d L.Ed.2d is consistent at Representa- at Fourteenth elections Anderson, refused process’ may, (internal 217, 107 the elec- power 504 chaos, is reason- holding grants and Court regu- regu- to a 2059 U.S. Na- 724, and 245 714 be ”) if if a state citizenry. deciding whether of the state’s When rights Fourteenth First violates law C we rights, associational Amendment ” “ magnitude’ ‘character weigh the places provision electoral state When imposes rule the State’s of the burden rights, on associational heavy burden no the interests against those interests regulatory important “a State’s justify burden, contends several decisions that allegedly represent consider the extent to which the State’s the “weight” of authority disapproving of concerns make the burden necessary. early filing so, deadlines. In doing howev Burdick, at supra, 112 S.Ct. 2059 er, it declines to note the significant dis (quoting Celebrezze, Anderson v. 460 tinction between those cases case; and this U.S. 103 S.Ct. 75 L.Ed.2d i.e., that the language of Ohio’s laws in this (1983)). Regulations imposing se case refer ato party, as opposed vere on plaintiffs’ burdens rights must to singling out minor or indepen be narrowly tailored and advance a com dent Indeed, candidates. the decisions cit pelling state burdens, interest. Lesser ed the majority for the proposition that however, trigger review, less exacting early filing impose deadlines a severe bur “ ‘important State’s regulatory in den predominantly deal ” with cases in usually terests’ will justi enough to which the deadline (or for independents fy ‘“reasonable, nondiscriminatory re parties) ” to file was substantially in Burdick, strictions.’ supra, advance See, election. e.g, S.Ct. 2059 (quoting Anderson, supra, at Council Alternative Political Parties v. 1564); 103 S.Ct. Reed, Norman [v. Hooks, 121 (3d Cir.1997) 116 L.Ed.2d (striking down state statutory scheme re (1992)], supra, 288-289, quiring candidates to meet certain require 698 (requiring “corresponding interest ments before being recognized sufficiently politi as a weighty to justify the limita tion”). cal “party”); New bright No Alliance Party separates line Ala. permis Hand, v. (11th sible election-related 933 F.2d regulation from un 1571 Cir. 1991) (same); constitutional infringements on Meier, First v. McLain 637 F.2d Storer, Amendment (8th freedoms. supra, Cir.1980) 2n. (same); Mac (“[N]o at 94 S.Ct. 1274 litmus-paper Exon, v. Bride (8th 558 F.2d 445 test ... separates] those restrictions Cir.1977) (holding statute constitutionally that are valid those that are invidi infirm “which relates to the of formation ous .... The rule is not self-executing political new (exact in the state” and is no substitute for the hard judg language of provided statute not in the made.”). ments that must be opinion’s text)); Cripps v. Cty. Seneca Bd. Timmons, 520 358-59, U.S. at Elections, 629 F.Supp. of (N.D.Ohio 1985) (providing specific statute Although majority the purportedly un with corresponding specific for deadlines dertakes requisite the balancing required independent candidates). by the Supreme Court’s decision in Unlike decisions, those the Ohio election Anderson, it declines to recognize that a regulations in this impose case equal obli- party challenging a State’s reasonable and gations on political all parties. Ohio there- nondiscriminatory regulatory interests fore right “retains the to ensure that can- bears “a heavy constitutional burden.” didates claiming to represent Blackwell, political v. a Schrader 241 F.3d 790- (6th party Cir.2001). meet the statutory requirements Rather than highlight this “heavy necessary to burden,” establish that putative constitutional the along side the wide discretion a obtained state has ‘some preliminary regulate its system, showing of significant see Jenness v. a modicum sup- Fortson, U.S. 1970, port’ before appearing on the ballot as a (1971), L.Ed.2d 554 the majority cites candidate of party.” Schrader, sig- a such imposed in Anderson cussed Jenness, (quoting at 791

F.3d indepen- put it because burden nificant 1970). 442, 91 S.Ct. vis-a- disadvantage at a candidates dent ar- Judge Gibbons problematically, Most who parties’ nominees major the vis as parties” “major bitrarily characterizes five months nearly until not named were par- “minor and Democrat Republican congressional candi- case, In this later. despite parties, all other ties” the ballot place a on who seek dates Ohio’s distinction any such lack the file must process primary through the the issue By framing laws. days be- candidacy sixty declaration over glosses terms, the opinion these election, primary Rev. ohio fore applicability equal treatment laws’ all candi- Consequently, § 3513.05. Code parties. all the ballot on seeking place dates a sub- recently confronted This court substantial engage in must November in Lawrence pattern fact stantially similar early primary before campaign work Cir.2005). (6th Blackwell, ballot. space to obtain a in order a citizen one Lawrence, plaintiffs, file must primary running Those congres- independent to be an sought who campaign, primary, days sixty before voter, the other candidate sional in- while primary party’s their win Ohio’s constitutionality of challenged spend must candidates dependent can- congressional for filing deadline early acquiring before time (found Rev. Code didates ohio then signatures and number requisite de- 3513.257). court After the district § day before by the file their in- preliminary motion plaintiffs’ nied burdened are candidates All primary. and, doing affirmed court junction, to conduct chooses that Ohio the fact filing deadline early so, found Ohio’s date, there but early at an constitutional. candidates congressional addi- feels which group particular no im- addressed the Admittedly, La/mence at a being placed disad- burden tional isolation, deadline early filing anof pact rest of to the respect vantage with anof effect to the cumulative as opposed correctly con- court The district field. conjunction deadline early filing this between this difference cluded The requirement. signifi- is case the Anderson case is nonetheless analysis court’s Lawrence by imposed the burden Here cant. of what level issue of on instructive is nondiscrimina- deadline early Ohio’s Indeed, particularly ain scrutiny applies. tory. Anderson distinguishing passage relevant to Court reason is no There 780, 103 S.Ct. Celebrezze, 460 U.S. has Ohio burden conclude that upon (1983), a decision 75 L.Ed.2d engage to on all candidates placed relies, our case majority in this which to prior campaign significant efforts observed: court place a on to obtain in order March the Anderson that in out point Plaintiffs inherently unreason- or is severe ballot an found Supreme Court case able. presi- independent requiring law Ohio add (emphasis Lawrence, 430 F.3d at im- in March to file dential candidates filing early ed). we held “the Accordingly, indepen- on burden significant a posed nondis reasonable is both deadline to vote inclined those dents and therefore, Ohio’s and, within criminatory over However, gloss Plaintiffs them. elec regulate authority constitutional dis- early deadline distinction. vital tions as long as it important advances an that there was no less restrictive means state regulatory Id. interest.” by which it could achieve important its interest. See New Party, Alliance thereafter examining whether Ohio’s F.2d at 1576. Since strict scrutiny congressional is election scheme constitution- not appropriate case, in this ally Plaintiffs’ important advanced an regulato- state arguments and citations are inapposite. ry interest, our court provided the follow- ing analysis: Id. at added). 375 (emphasis As a result of the foregoing analysis, upheld we Ohio’s

Although Ohio requires independent early filing deadline for its congressional candidates to their submit signature pe- election. Like the observations by made titions earlier than most deadlines which our in Lawrence, court the election laws have been upheld, required number this case burden all political parties equal- of signatures is one only percent of the ly and the authority relied upon by the relevant voting population, ohio Rev. majority focuses on laws singling 3513.257(C). § out so- Since a state’s in- Code. called “independent” or parties. “minor” terest in verifying [that] candidate has a modicum of support justifies The lead makes burden brief reference of requiring signatures Lawrence, of percent five of but makes no effort to distin- by voters July guish or August, it logical discuss it. In fact, the opinion infer that the confusingly burden Ohio imposed relies on the Laurrence deci- sion, requiring signatures of only observing that per- one Lawrence “explicitly cent distinguished earlier deadline is cases in similarly which courts had justifiable. The signature found that deadlines far in advance of the important meets Ohio’s imposed state interest in a severe burden verifying candidate’s support, of parties, candi- early dates, deadline meets Ohio’s voters.” important It is difficult to under- state equal interest stand how Lawrence supports treatment can- majority didates and that it upheld an administrative interest law requiring an being early process able to independent deadline. petitions candidates’ and verify signa- The majority thematically relies- on the tures in the midst completing a host “collective burdens” imposed by the early other tasks necessary to conduct a filing deadline in conjunction with pri- Therefore, election. Ohio has im- fair mary requirement. As the dis- portant state regulatory interests which trict noted, court aptly however, “any fil- are sufficient justify the reasonable ing deadline, no matter late in how 'the and nondiscriminatory burdens imposed cycle comes, election it will preclude some early its filing deadline. candidate political or some coalition from Plaintiffs’ arguments that there are no obtaining recognition on the ballot.” legitimate state interests which justify Moreover, the Supreme Court has held such an early deadline are unpersuasive. that it is considered “too plain for argu- argue Plaintiffs placing that the filing ment” that may a state require parties to deadline so many months before the No- use a primary election for selecting their vember election not is necessary. nominees. American Party Tex. v. of Though there is case law to support White, this 767, 781, 415 U.S. 39 proposition, it comes from cases in (1974). which L.Ed.2d 744 See also Storer v. strict scrutiny was applied and Brown, the state 415 733-36, was, therefore, obligated to demonstrate (1973). 39 L.Ed.2d 714 608 contrary to the is However, the evidence re- tandem, Ohio the isolation, inor In com- fact, the most In holding. majority’s 120- and election of

quirements Ohio challenged the that evidence pelling rea- are filing petitions of day pre-election of LPO the deprive not do rules election do election These sonable. that, in the is rights First Amendment its plaintiffs’ on burden “severe” a impose day, the present the through and past rights.1 Amendment Fourteenth First and have not Amendment First LPO’s on record the evidence fact, In of de- possibility denied. been future pre- in two and is that issue this conjecture. is pure privation was able elections, LPO plaintiff ceding 120-day pre-election to the regard In requirements. these election comply with argument deadline, oral filing petition expert plaintiffs’ according to Moreover, reason conceded plaintiffs counsel Law the Natural in 1996 Winger, Richard that, to dispute do not Plaintiffs ableness. Party qualified Reform Party and elections, a 120- orderly and fair maintain Libertarian ballot, in 1998 necessary under is day pre-election 2000 Party, and in the Reform Party and parameters: time following general the Natural and Libertarian of the verification for administrative days Party. Law re authenticity of and form days for administra signatures; quired summarily concludes: opinion The lead qualifi of ballot appeals judicial tive and/or at issue restrictions simply, the Put for the days disqualification; cation 120-day and election [primary this case ballots proof of distribution and printing a prevent filing] serve pre-election political from the corrections invited engaging political candidates, printing and and activi- days ballots; fundamental most of final distribution selecting a ballots. supporters, recruiting of absentee distribution for the ties— legislate on majority candidate would that candidate, placing Apparently, How frame. time hopes lesser, unspecified, ballot but general argument no make ever, colleagues my right ultimately winning votes unreason period 120-day time that govern. per Cir.1997) (7th (upholding five Gibbons, it is Judge Although discussed Coali requirement); Rainbow signature con do not plaintiffs cent important note Bd., ac Election ballot percent automatic v. Oklahoma five test Ohio's signature Cir.1988) re (finding constitutional percent (10th or one cess threshold courts numerous regard, authorizes quirement. scheme Oklahoma's infir constitutional no previously found have be auto recognized parties to candidates requirement mity a state's ballot, requires but matically identified sig bearing a number party file bearing petitions parties to unrecognized file votes the total percent equal to five natures in last votes cast percent of total five Jenness, See, e.g., election. the last cast in Indeed, designation). allowing party before (uphold noted, such likewise courts have previous “open figure because ing percent five in state’s given the sense makes Georgia system”); Prestia quality of the preliminary show “requiring some terest ("[A] Cir.1999) (2d O’Connor, F.3d support" be modicum ing significant of a petitions access ballot the ballot name on candidate’s printing a fore of the relevant percent five signed at least confusion, deception, “avoid[] in order valid, any bur despite generally pool is voter pro democratic even frustration such when results voter choice den on Jenness, 403 general election.” at the cess requirement.”); to meet petition is unable 1970. S.Ct. Rednour, v. Party Ill. Libertarian (“It able. is true that 120-day period

may be Timothy BROWN, reasonable amount of time to individually and as process registration of a next party...") Melody friend of Brown, his mi- daughter,

nor Plaintiff-Appellant, Finally, majority’s reliance on the “minor” party history of other states is UNITED America, STATES of

misplaced. Each of fifty our states has its Defendant-Appellee. unique political dynamic. Consider the No. 04-5171. success of the Conservative Liberal parties in York New and the Party Green United States Court of Appeals, and Libertarian some states. Sixth Circuit. The failure of third or fourth parties to Argued: March 2005.

thrive likely Ohio not the result of the Decided and Filed: Sept. challenged requirements of primary elec- tion and 120-day pre-election petition fil-

ing, but rather voter ideology, traditional

party loyalty to Republican and Demo- parties,

crat and the unchallenged five

percent automatic ballot access threshold. conclusion, absent a constitutional vi

olation, it is province legislature, courts,

not the to write our election laws.

Here, the challenged Ohio regula

tions treat LPO the same as any other

political party. The primary election re

quired by the Ohio Constitution peti requirements time chosen by the Assembly General severe, are not but

reasonable, in order fair, to insure a hon

est, and orderly Clingman, election.

U.S. at 2029; Timmons, S.Ct.

U.S. at Therefore,

challenged Ohio do not

violate the Constitution of the United

States.

For reasons, these I respectfully dissent.

Case Details

Case Name: Libertarian Party v. Blackwell

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 6, 2006

Citation: 462 F.3d 579

Docket Number: 04-4215

Court Abbreviation: 6th Cir.