*1 NVRA for defendants’ but DJFS offices (which injury demonstrates
violations standing individual gives rise to
fact and mem- has right), and that ACORN
its own injured by defendants’ have been
bers who (which rise to asso- gives
NVRA violations County Sandusky See standing).
ciational Blackwell, Party v.
Democratic Cir.2004). (6th The district
565, 573-74 amend- incorporate these
court declined to because it had presumably allegations,
ed the defendants
already found to the suit. proper parties in that court erred the district
because plain- permitted have
regard, it should amend, the effect which has
tiffs’ motion to deficiency in any purported curing standing. argument in favor
ACORN’s
IV. CONCLUSION proper par- are
Because the defendants lawsuit, REVERSE and this we
ties to pro- court for
REMAND to the district opinion. with this
ceedings consistent
also
Ralph BLACKWELL, Kenneth
J.
Defendant-Appellee. 07-4350.
No. Appeals,
United States Court
Sixth Circuit. July
Argued: 29, 2008. and Filed: Oct.
Decided *3 Brown, Capital R.
ARGUED: Mark Columbus, Ohio, School, University Law Chin, Office of the M. Appellant. for Pearl Columbus, General, Ohio, Attorney Ohio R. BRIEF: Mark ON Appellee. for School, Brown, University Law Co- Capital Ohio, N. lumbus, Appellant. Richard Roth, Office Coglianese, Daniel C. Columbus, Ohio, General, Attorney Ohio Appellee. BOGGS, Judge; Chief Before: CLAY, Judges. Circuit MOORE BOGGS, C.J., opinion. the lead delivered CLAY, 478), (p. MOORE, J. (p. J. the Court 478-79), opinion delivered MOORE, J., joined the inasmuch as CLAY, J., CLAY, and Judge opinion of Judge MOORE. joined opinion OPINION BOGGS, Judge. Chief court for the opinions my colleagues’ As succinct, I write a bit to me be appear to provide some additional facts and rea- I soning in of the same support result. A
Ralph Nader ran for President of the law, United States in 2004. Under Ohio August On Nader and his vice- he needed to collect 5000 on his presidential mate, running Camejo, Peter placed nominating petition to be on the filed Joint Statement Candidacy general-election ballot. Circulators of Nominating Petition with the Ohio Secre- nominating petitions collected over tary of State’s Election Division. See Ohio 14,000 signatures, but local election boards (West 2004). Rev.Code Ann. *4 them, approximately invalidated 8000 of law, Under Ohio 5000 signatures are re- leaving signatures. J. Kenneth quired for independent candidate to be Blackwell, State, Secretary then Ohio’s of placed on the ballot. Ohio Rev.Code Ann. placement certified Nader for on the bal- 3513.257(A) (West 2004). § The Nader- lot. a group of Ohio Democratic Camejo nominating petition appeared to challenged signatures, voters Nader’s and 14,473 signatures. have attorney Blackwell directed an in his office Secretary The of State’s Election Divi- to hold a hearing regarding validity the sion processed the nominating petition and remaining signatures. the After con- directed the individual Ohio county boards evidence, sidering testimony and other the of elections to determine the validity of a attorney staff invalidated 2700 more signa- (the petition, part-petitions peti- individual invalidations, tures. After these Nader tion sheets that are circulated for signa- had fewer than signatures, 5000 valid and tures), signatures. and September 8, On Blackwell removed him from the ballot on reviewing after the findings of the September In October boards, county the Elections Division de- federal district court denied Nader’s re- only termined that on the relief, quest injunctive the state courts petition day, were valid. That then-Secre- denied his request relief, for mandamus tary of State Blackwell certified Nader’s and this court emergency denied his ap- candidacy President, meaning that peal. In November we dismissed his Nader’s name appear would on the Ohio regular appeal as moot. ballot. August On thirteen Ohio case, In this September filed in (“the protestors”) electors filed a protest 2006, Nader personal sued Blackwell in his with Secretary the of State challenging the capacity for allegedly violating Nader’s validity many remaining First Amendment rights. According to signatures. See Ohio Rev.Code Ann. Nader, rights Blackwell violated his when (West 2004) (“Written § 3513.263 protests applied he 3503.06, Ohio Revised Code against nominating such petitions may be which requires petition circulators re- by filed any qualified eligible elector side Ohio, and be to vote in vote for the candidate whose nominating Nader’s nominating petitions. The district to_”). petition objects he suit, court dismissed holding and, Nader lacked standing alternatively, In response to the protest, a hearing enjoyed qualified Blackwell both and was held at the Office of the Secretary immunity. absolute hold that We Nader September 21-24, State on 2004. See ibid. has standing suit, to bring this but we (“Upon filing protests, of such affirm the district court’s holding that election officials with whom it is filed shall enjoys Blackwell qualified immunity. promptly fix place the time and for hearing part- allegedly circulated (“At Jill Lane place time and ”); ibid. it .... Lane tes- signatures. with 295 petitions shall hear fixed, officials election such signed some of the tified that she validty [sic] and determine protest of the 43 statements some circulator des- Blackwell invalidity petition.”). signature her on oth- part-petitions, attor- Quinn, A. a staff Gretchen ignated she could forged, and that officer, ers had been office, hearing as the ney in his forged on signature if her was not tell pro- hearing. Both the conducted the she part-petitions. the 43 She yet others of repre- Camejo were and Nader testors circu- personally that never also testified hearing. Both at the sented counsel and that any part-petitions lated evi- to offer opportunity given documents) affixing of witnessed the she never (including affidavits dence fact, In part-petitions. signatures lim- Testimony was make statements. cousin, was that her who Lane testified signa- about the 6464 ited to information resident, her he told not an by the boards elections. validated tures against same- circulating petitions gath- challenged signatures protestors sign and asked circulators, marriage sex her based by fourteen ered *5 statements. Ohio circulator Revised of Ohio law violations alleged on various 3501.38(E) that states Code that signatures the invalidate that would the personally must witness circulators they had collected. an every signature, otherwise of affixing sent Quinn issued and September On par- The is invalid. part-petition entire of thirty-one page memo to Blackwell a on signatures that the 295 stipulated ties Fact and Conclusions “Findings of name as bearing Lane’s part-petitions “a that there were Quinn Law.” concluded invalid. would be circulator relating to significant problems number of he never testified that Cottrell Michael to the regard particularly petition, the part-petitions five circulated actually had circulated purportedly who people stip- parties signatures. The 32 bearing that sub- were many part-petitions signatures were that those 32 ulated detail We now ject to the protest.” invalid. the moving in order from findings, Quinn’s Hudson, daughter, Jill Lane’s Melody findings findings to those uncontroversial 12 never circulated that she testified of this lawsuit. are the basis bearing name her part-petitions challenged First, has never Nader parties The signatures. containing 33 be- signatures of 17 Quinn’s invalidation were signatures those 33 stipulated has Neither they were not dated. cause invalid. Quinn’s finding that challenged he son, Hudson, testi- Jill Lane’s Richard County made of Hamilton election board on six the statements signed he fied that error, the correction arithmetic containing signatures, 45 part-petitions of signatures the number reduced which a circulator had not acted as he but that excluding Accordingly, these by 13. any signatures. witnessed not signa- Nader’s 6464 reduced signatures sig- those stipulated that parties The tures to 6434. invalid. were natures signature bearing one part-petition One findings Second, Quinn made several by a Michael circulated allegedly stipulate parties prompted testi- Dowham, Michael Bonham but a many signatures. invalidation Dowham, he, any Michael fied that findings were: Those given lived at the address for Dowham. part-petitions. Quinn found that the ev- The hearing officer concluded that there supported idence finding of election was no person Dowham, such as Michael falsification on part-petitions two be- and the parties stipulated signature they cause were circulated persons was invalid. other see Ohio Rev.Code Waller, than (West §Ann. total, 2004), In parties stipulated and invali- signatures dated 15 signatures from part- invalid. those two Excluding petitions. those signatures tally from the of 6434 signatures, still had signa- Robert Ellis allegedly 12 part- circulated tures. petitions signatures. containing Ellis Third, Quinn stated signa- invalidated other on the part-petitions, pen- alty tures based on findings falsification, that are not being election that he re- challenged here. findings Those sided at an Cincinnati, were: address Ohio. process server
Greg Reese testified that he personally hearing could not locate Ellis at circulated and only eight witnessed address petitions, listed on the the 22 part-petitions and the bearing his name. resident of that provided an Reese address affi- was unable to distinguish which davit stating that Ellis did not part-petitions live there he actually had not in summer 2004. management Quinn circulated. Accordingly, invali- company for the apartment dated the Ellis listed part- also swore that petitions Ellis did not reside there Reese that the local elec- *6 only and people other tion had boards had lived there found valid. since 2003. a separate On petition re- Antoine allegedly Jackson circulated 36 garding same-sex marriage, Ellis had part-petitions containing signatures. listed his circulator address as being in Jackson testified person- that he did not provided Illinois. Ellis a registra- voter ally circulate, thus did not witness tion card with address, an Ohio but that signatures on, 25 to 30 of the peti- proved address hotel, to abe and the tions bearing his name. Jackson could desk clerk that indicated Ellis was no not distinguish the part-peti- between longer a guest. Citing Ohio Revised tions he circulated and those he did not. 3503.06, Code Quinn stated only that a Accordingly, Quinn invalidated the 268 qualified elector of may Ohio circulate a signatures. nominating petition, and that qualified Ronald Waller allegedly circulated 58 electors must reside in Quinn Ohio. part-petitions containing signatures. found that Ellis not did reside at He attested penalty under of election provided, addresses he and therefore falsification that he resided in Cincinna- was improperly registered to vote at ti. Waller’s swore in mother an affidavit those addresses. Accordingly, the 66 that he had not lived at the given ad- signatures on part-petitions he circu- dress since March 2004. One individual lated were “on separate invalid whose name was on the swore grounds that he swore a false resi- signed he a petition circulated address, dence and he qualified is not a white man and a white woman. Waller elector of Ohio.” is a black Quinn man. found that the evidence did not show that Waller was Curtis allegedly Warner circulated not an resident, Ohio merely that he was part-petitions containing signatures. not resident at the address listed on the part-petitions, On his Warner stated un- Sep- to vote California falsification of election penalty der 2003. Other addresses tember in Cincinnati. at an address resided he part-petitions were Oberg on different card registration signed voter Warner produced counsel false. Nader’s also August address on the same using that he Oberg stating affidavits from the cur- statements 2004. Sworn resident, Quinn but accord- an Ohio was manager of property rent resident self-serving affi- weight to “these ed no had that Warner the address indicated davits, faxed from a Nevada which were since 2003. least not lived there and which not state where motel” did that War- Same-sex-marriage petitions “permanently Oberg purported same time showed at the ner circulated Quinn found that Accordingly, reside.” Quinn address. a California that he had moved out of Ohio and lost Oberg had part-petitions found that Warner’s he moved to residence when his Ohio a false ad- he because “swore invalid invali- Accordingly, Quinn California. qualified elector “is not a dress” and by Oberg. signatures collected dated 341 signatures, all 189 and invalidated Ohio” findings regarding unlike her citing § 3503.06. without albeit Warner, explicit- did not Quinn Ellis and Thus, an additional Quinn invalidated Oberg ly state that she found (i.e., circulators because certain signatures Rather, justi- she a false listed address. Reese) not tell which could Jackson signa- fied her decision to invalidate circulated, be- actually they had petitions only ground Oberg tures Waller) (i.e., had not circulator cause one voter, and we not an Ohio resident part-petitions, certain actually circulated invali- that is the reason she will assume that cer- found explicitly she and because collected. signatures he dated Warner) (i.e., Ellis circulators tain circulated seven George allegedly Woods Nader does a false address. sworn bearing signatures. part-petitions that circula- requirements challenge Ohio’s election falsi- penalty He stated and list their all witness tors at an address that he resided fication Ann. Ohio Rev.Code true residence. *7 that ad- resident of Dayton. The actual 3501.38(E), Excluding these §§ 3513.261. that dress, nephew, swore Woods’s signa- had 5409 signatures, still July 2004 but him in had visited Woods for the ballot. tures, qualify enough Records indi- in Texas. actually resided findings re- Fourth, Quinn’s set of last to vote registered cated that Woods had Her this lawsuit. the focus of late had in but using the Ohio address follows: findings were as remaining as of Febru- to vote in Texas registered that finding Woods ary Explicitly allegedly circulated Daryl Oberg under requirements meet could not signatures. containing 341 part-petitions not an Ohio because he was § 3503.06 Warner, the “manifest Ellis and As with resident, signa- his 44 Quinn invalidated indicated that weight of the evidence” tures. address he at the Oberg did not reside allegedly at circulated part-petitions his M. Laws
provided on John containing signatures. He petitions. part-petitions time he circulated penalty of election falsifica- under of election Laws stated penalty under stated Lorain, in resided in that he at an address falsification he tion that resided ad- found the server process at The The landlord Ohio. Royalton, Ohio. North neighbor by a told vacant was Oberg that dress that address stated Laws’s longer lived there. Laws no Oberg had July 2000. in moved out wife swore that later, Laws had moved out of month registered he in to vote Los in fall the house of 2003. A Alamitos, foreclosure California. In regis- he report indicated that the house was va- Hollywood, California, tered in and he cant January between and June 2004. voted in a California special statewide In August registered Laws to vote governor. election for law pro- Ohio California, in Angeles, Los regis- and his vides that person goes who to another tration form listed his prior address as state and votes there loses his residence California, another address not Lo- in Ohio. Ohio Rev.Code Ann. rain, July Ohio. On Laws circu- 3503.02(H) (West 2004). Since he had petitions lated Nader in Nevada. On ceased to an be Ohio elector opera- those petitions, penalty under perju- law, tion of Laws could not be an elector ry, swore that he resided in Laws Las of Ohio unless he reestablished Ohio res- Vegas, Quinn Nevada. found that Laws idence, Quinn which found he had not. Ohio, was not a resident of and hence addition, In Laws was convicted crim- could not be an Ohio elector. Accord- inal non-support California, found ingly, she invalidated 544 signatures guilty, and stated his sentencing hear- he gathered. addition, In Quinn ing that he was a California resident. noted that numerous affidavits from lawyer The same who represented Laws purported signers of Laws’s part-peti- at that sentencing submitted affidavits tions indicated the individuals had Quinn stating that Laws was an Ohio never signed or were told Quinn resident. gave no weight to the they signing were a petition for gay Quinn affidavits. invalidated the 772 marriage amendment. signatures. Larry Steven Laws allegedly circulated Thus, Quinn invalidated part-petitions containing 772 additional signa- tures. because He stated on the part-petitions circulators not Ohio Lorain, he resided in residents and electors Ohio. The as required by § process Quinn’s server found 3503.06.1 findings that Laws’s sister lived that none of process there and left these men with her. an Ohio resi dent necessarily sister commented that means that Steven Laws the men were “was Nevada.” not they correct when Laws claimed to reside at vote in Vegas Las January Quinn addresses. since did he penalty perjury explicitly stated base her decision on the his Nevada provided grounds address he falsification, was his election our analy *8 sole legal place of residence. The Neva- sis below will on proceed the basis that she da form prior listed his address as being invalidated signatures their for failure to Angeles. Los 2002, In he comply with Ohio’sresidence registra and Carson, to vote California. One requirements, tion as codified Quinn 1. We Quinn note that accept did not all of the misconduct had she found. concluded protestors' challenges. rejected She merely a chal- that "the campaign Nader was care- lenge thirty-three to signatures on the respect less with to its association” with the grounds signatures the that paid used first initials leading signature gather- consultant its rejected instead of Ohio, full names and challenge a ing effort in and she found "no evi- based on the claim that some circulators dence that campaign Nader directed or con- claimed have signatures to witnessed more doned the signatures collection of than were part-petitions. Quinn on their We also manner that violated Ohio law.” de- Quinn rejected note that allegation the clined to invalidate the petition entire Nader campaign the Nader responsible for the grounds on the "pervasive of fraud.” of out- invalidated because improperly signatures these Excluding § 3503.06.2 (4) records, review unre- and Laws, Woods, dated John Oberg, gathered invalidated signatures totally on viewed only 3708 Laws, had Nader and Steven records updated where 5000-sig- part-petitions the well below signatures, valid duly regis- are circulators show that the Notably, the invalida threshold. nature addition, In relators seek voters. signatures, tered and Woods’s Oberg’s of tion the Sec- compel to with 5024 of left a writ mandamus still Nader together, taken those findings to count valid Quinn’s retary of State as thus signatures, that were legally part-petitions insuffi signatures on signatures their about By candidacy. the circulator-res- Nader’s invalidated because to invalidate cient Fi- either of R.C. 3503.06. contrast, findings regarding idency requirement Quinn’s sufficient to manda- request would be a writ of nally, Laws relators or Steven John invalidation candidacy: Secretary of State to invalidate Nader’s mus to compel signatures candidacy ... Laws’s certify either John as valid would have signatures re- following boards’ finding, Laws’s upon Steven signature records, total valid at least updated reduced Nader’s view of required. invalidated 1,292 signatures previously count below the in fact are valid. 2004, for- Blackwell September On stated Quinn’s report, accepted mally Blackwell, St.3d 103 Ohio Blankenship v. signatures, valid only 3708 Nader (2004) (per cu N.E.2d to remove of elections the boards ordered riam). only the ac challenged This suit candidacy from Nader-Camejo joint in invali elections boards tions of local that a notify voters otherwise the ballot or Ibid. signatures. of Nader’s dating 8009 Nader-Camejo would not be vote cast the residen claimed that relators also law, offi- election Ohio Under counted. Revised Code in Ohio cy requirement “final.” Ohio are cials’ determinations for circulators 3503.06 and 2004). (West § 3513.263 Ann. Rev.Code petition petitions violated nominating First rights under the speech signers’ free B relators’ specifically, “More Amendment. five residents Ohio 3503.06 re challenges October the R.C. On complaint committee members be resi served as circulators who quirement Camejo for the On Octo of Ohio.” Ibid. qualify of the state dents relators”) (“the in the filed an action denied Supreme Court ballot the Ohio ber laches, seeking: ground of Ohio Supreme Court relief on requested until four waited relators the Sec- because compel a writ of mandamus circulating begun they had after county months to order Ohio’s retary of State challenge the circulator-resi (1) petitions update their of elections boards af days thirty-one (2) dency requirement records, re-review registration voter invalidat boards had local ter the election rec- updated based part-petitions *9 raising their before signatures the 8009 (3) ed invalidated ords, previously validate infor- registration voter about claims stale that were part-petitions on signatures have resided an elector will time, registered as “No stated: 3503.06 the section 2. At person the county precinct where the any at elec- to person be entitled vote shall thirty days the lime at registered at least tion, is any declaration of circulate sign or Ann. initiative, Ohio Rev.Code of the next election.” nominating, refer- candidacy or 2004). (West endum, person the petition, unless or recall 468
mation. Id. at 386-87. The Ohio Su- “In view of the Buckley decision, ... it preme Court also found that delay the appears clear that requirement the of Ohio prejudiced the Secretary of State and law that circulators be voters is “endanger would Ohio’s election prepara- unconstitutional.” Id. at 921-22. Howev- tions.” Id. at Finally, the 388. Su- er, Ohio the court stated lack registra- preme Court held that the action must be tion was not “the primary upon basis” dismissed because “relators bring failed to which Blackwell invalidated the signatures this action name of the the state on since Quinn Blackwell and emphasized their relation.” Id. at 388-89. Since the the failure to meet the residency require- objection was raised and the relators failed ment. See id. at 922 n. 12 (noting also that to seek leave to caption, amend the case law, Ohio severability patent the relief was denied for failure to comply with unconstitutionality registration re- the rule. Ibid. quirement did not automatically invalidate the residency requirement, quoting Ohio On October while the state man- 1.50). Rev.Code Ann. The district court damus action pending, the relators that, held although Buckley had not ad- suit in filed federal district court seeking a dressed the constitutionality of state resi- temporary restraining order barring dency requirements, district the court had Blackwell from removing name “every reason to assume that the decision ballot, from the injunction compel- applies to this case.” Id. at 922. The ling Blackwell to count as valid the nomi- applied district court scrutiny strict re- nating signatures qualified pre- electors view, concluded that state the had a com- viously invalidated due to the circulators’ pelling interest in preventing election failure to meet residency requirement, fraud, and concluded Quinn that the report declaratory judgment that Ohio’s provided ample evidence of actual fraud in residency requirement for circulators vio- this See case. id. at 922-23. lated the First and Fourteenth Amend- ments. Blackwell, See Blankenship v. In light of fraud, this actual the court (S.D.Ohio F.Supp.2d 2004). 916-17 declined to decide the constitutionality of § 3503.06’s residency requirement.
On October the district court id. at “Regardless of how the Court denied the motion and dismissed the case. would question resolve the of whether a declining After to abstain hearing state requiring law case, circulators to be the district state court focused on the Su- constitutional, residents is preme the fact Court’s remains decision in Buckley v. American would be excluded Constitutional Law on Founda- tion, grounds U.S. several forms of fraud (1999). part Thus, L.Ed.2d 599 circulators. district court Court noted that Buckley finds Court that Plaintiffs held that a have failed to meet a requirement requirement circulators of threshold initiative for this Court petitions be registered in-state even consider the violated the constitutional issue.” Amendment, First but had Citing Ibid. declined ad- the canon that courts should dress whether a requiring law avoid deciding circulators constitutional issues unnec- reside in-state was essarily, constitutional. See the court held that because Black- Blankenship, F.Supp.2d at 920-21 well “invalidated challenged names on (discussing Buckley, independent fraud, basis of this Court 636). *10 S.Ct. The concluded, court district declines address Plaintiffs’ constitution- injunction to Nader on request get for an 924.3 § Id. at to R.C. 3503.06.” challenge al moot, since the election had the the ballot was further held court The district They argued in ibid. precluded already occurred. See “unclean hands” of doctrine Nader, declaratory judg- the request their for relief for because junctive moot, Batchelder, Judge [in fraud described was not but ment “magnitude great far too for Keith panel, Judges are for the with Quinn’s report] writing [sic] equita the granting concurring, that be- to consider and held this Court Oberdorfer Plaintiffs favor.” ... in the the relief court’s dismissal of ble cause the district on declaratory judgment claim based Ibid. was ac- ballot its of the “now-moot resolution decision, district court day of the The claim,” only way panel could cess the the injunc- emergency for an the relators filed to va- declaratory claim was address the in the appeal Sixth expedited tion judg- moot court’s “now cate the district held that the A of this court panel Circuit. reviewing solely [the for the sake of ment primarily because claim “fails relators’ claim.” declaratory judgment relators’] of a likelihood they cannot demonstrate grant declined to ibid. The court See Blankenship v. merits.” on the success “extraordinary rem- equitable relators the 2390113, Blackwell, 04-4259, 2004 WL No. that the relators and noted edy of vacatur” curiam). 2004) (6th Oct.18, (per *1 Cir. the limits of the resi- had chosen to “test in- statutory grounds “had Blackwell state by employing out-of- dency requirement” and residen- registration dependent their resi- who misstated state circulators reject disputed cir- cy requirements the resi- challenging than dencies rather falsification, a election petitions: culators’ as unconstitutional Ibid, dency requirement Rev. (citing felony in Ohio.” Ohio The very Id. at 258-59. “from the start.” 3599.36). 3501.39(A)(3), §§ Ann. Code moot dismissed appeal held to be fraud, panel Given the evidence jurisdiction. id. at 259. for lack See First Amendment declined address challenge. C timely filed notice
The relators then
began
pending before us
now
judgment on
case
the district court
appeal from
against
filed suit
himself
13, 2004,4
was when Nader
appeal
and that
October
28,
Nader
2005,
September
2006.
Blackwell on
and decid
submitted
October
Damages
[Black-
sought
appeal,
In
“Nominal
their
ed on November
well],
capacity,
[Black-
for
in his individual
asked this court
vacate
relators
and Four-
of the First
well’s]
their
violation
judgment dismissing
court’s
district
alleged
judg
teenth Amendments.”
grant
declaratory
them a
case and to
Revised
application
Blackwell’s
registra
ment that Ohio’s
violated the
to his
circulators violate Code
requirements
tion
constitution,
Blackwell
and that
Blankenship
federal
the First Amendment.
(6th
actions taken
1983 for
Blackwell,
was liable
Cir.
v.
dam-
law for nominal
2005).
of Ohio
their
under color
admitted that
The relators
Supreme Court
4. On
have
October
noted that it would
3. The district court
injunction pend-
application
circula-
issue if the
the constitutional
denied an
reached
residences,
Blackwell,
ad-
given
Blankenship
false
ing appeal.
tors had not
residents,
being
mitted to
out-of-state
L.Ed.2d
residency requirement
challenged
then
(2004).
n. 14.
See id. at
"untainted
fraud.”
*11
dollar, costs,
of one
ages
Quinn hearing
the sum
attor-
cause the
“sufficiently
was
fees,
ney’s
additional relief the
adjudicative in nature to confer absolute
just.
court deemed
immunity.” The court noted that
hearing
presentation
included
of evidence
granted
The district court
Blackwell’s
testimony,
Quinn
issued written
motion to dismiss for failure to state a
law,
findings of fact and conclusions of
First,
September
claim on
to,
that the
right
relators
and did
questioned
district court
whether Nader
seek,
in fact
a writ of
mandamus
re-
standing
to sue under Article III.
sponse to Blackwell’s decision.
passage
“Given the
of time
[Black-
since
ballot],
well removed Nader from the
Accordingly, the district court dismissed
Court is not convinced that Plaintiff has
complaint
Nader’s
judgment
and entered
‘injury
articulated the sort of
in fact’ suffi-
timely
Blackwell’s favor. Nader
appeal-
standing
cient to confer
purposes
for
judgment,
ed that
and the case is now
Article III.”
although
The court noted that
before
panel.
this
sought
damages,
nominal
the “real
relief that Plaintiff seeks is that the Court
II
find R.C.
3503.06 unconstitutional.” The
We review de novo the district court’s
district court then referenced its earlier
grant
decision to
defendant Blackwell’s
discussion regarding constitutional avoid-
pursuant
motion to dismiss
to Federal
ance from
denying
its 2004 decision
Blank-
12(b)(6).
Rule of Civil Procedure
enship’s request
injunctive
relief and
Hartman,
Lambert v.
517 F.3d
stated that it “found no reason
depart
(6th Cir.2008). “A motion to dismiss for
analysis
from this
simply because Plaintiff
failure to state a claim is a test of the
Nader seeks to hold
Secretary
the former
plaintiffs cause of action as stated in the
individually
of State
liable for the
action
complaint,
a challenge
to the plaintiffs
removing Plaintiff from
the ballot
2004.”
allegations.”
factual
City
Golden v.
Co-
Thus, the court held that Nader had failed
lumbus,
(6th
404 F.3d
958-59
Cir.
satisfy
standing
Article Ill’s
require-
2005). Accordingly, we construe the com-
ment.
plaint in
light
most favorable to the
Second, the court held that even if Nad-
Nader,
non-moving party,
accept
all of
standing,
er had
enjoyed quali-
Blackwell
his factual allegations as
Dubay
true. See
immunity.
fied
The district court reiterat-
Wells,
(6th Cir.2007).
finding
ed the
prior litigation
allegations
The factual
in a complaint need
“the decision to remove Plaintiff from the
they
not be detailed:
only give
“need
ballot in
upon
2004 was based
a finding
defendant fair notice of what the claim is
that Plaintiffs petition circulators had
grounds
and the
upon which it
Er-
rests.”
committed massive fraud
lying about
Pardus,
”
ickson v.
551 U.S.
their
status....
The district
(2007) (inter-
471
Wildlife, 504
Lujan v.
is
also
3503.06,
constitutionality of which
§
the
Defenders of
2130,
555,
cases.5
119 L.Ed.2d
directly
other
112 S.Ct.
351
challenged
U.S.
being
relitigate
to
(1992).
for
it a chance
Nader
a harm suf-
“[I]njury
is
in fact’ [is]
Nor
findings. The district
Quinn’s factual
plaintiff that is concrete and
fered
the
reasons for
independent
gave three
court
imminent,
conjectural or
actual or
standing,
of
suit—lack
dismissing Nader’s
Co.,
103,
at
523 U.S.
hypothetical.” Steel
immuni
absolute
immunity, and
qualified
(citation
quotation
1003
118 S.Ct.
has
that Nader
we hold below
ty. Because
omitted).
fairly
is “a
Causation
marks
suit,
decide
we must
bring
this
standing
plaintiffs
connection
traceable
between
immunity,
has qualified
Blackwell
whether
conduct of
injury and the complained-of
must de
analysis, we
of that
part
and as
Redressability is “a
the defendant.” Ibid.
Nader’s
violated
Blackwell
whether
cide
requested relief will
likelihood that
to Nad
§ 3503.06
applied
he
when
rights
injury.” Ibid.
alleged
redress the
circulators.
er’s
case,
argu
is little
In this
there
Standing
A.
from the
that Nader’s removal
ballot
ment
seeking to invoke
A plaintiff
injury-in-fact
constitutes
courts “must
the federal
jurisdiction of
inj
alleged
conduct
Blackwell’s
caused
imposed
requirement
threshold
satisfy the
injury
allege a sufficient
under
ury.6 To
by alleg
III of the Constitution
by Article
Amendment,
plaintiff
a
must es
the First
City
controversy.”
case or
an actual
ing
of
subject
gov
is
tablish that he or she
95, 101, 103
461
Lyons,
v.
Angeles
Los
regulatory, pro
power that
is
ernment
(1983).
1660,
“The
L.Ed.2d 675
75
S.Ct.
in nature. Laird
scriptive,
compulsory
of
minimum
constitutional
irreducible
11,
2318,
Tatum,
1,
33
v.
408 U.S.
requirements[:]
standing contains three
(1972). Here,
regu
Blackwell
L.Ed.2d 154
causation,
fact,
redressa
injury
...
ap
when he
Nader
proscribed
lated and
a Better
v.
For
bility.” Steel Co. Citizens
invali
petitions,
§ 3503.06 to Nader’s
plied
83, 102-03,
Environment,
118
523 U.S.
because circulators
(1998);
1701
see dated
L.Ed.2d 210
circulator-residency
challenged
cause
court has issued
that a district
5. We note
that invalida-
injunction preventing
requirement,
Ohio’s Sec-
he
show
cannot
preliminary
enforcing
brought
current
retary
requirement
of State
would have
of
tion
against
§
circulators of
of
signature
version
threshold.
the 5000
him back over
any
for
nominating petitions
candidate
n. 6.
Blankenship,
F.Supp.2d at 916
Moore v.
the United States. See
President
Second,
responsible
be held
Blackwell cannot
2:08-cv-224,
Brunner,
2008 WL
No.
boards be-
election
for the conduct
local
Jun.2, 2008).
(S.D.Ohio
Proceedings in
*5at
superior liability
respondeat
there is no
cause
ongoing.
case are
Govorchin,
§
1983. See Skinner
Third,
Cir.2006).
(6th
525-26
F.3d
briefs,
implies that he is also
Nader
In his
joined
been
as defen-
boards have not
election
telling
local election
suing
Blackwell
be,
suit,
they
can
because
dants in this
nor
resulting in
signatures,
to review his
boards
are time-barred.
any
against
them
claims
signatures.
of 8009
initial
invalidation
September
complaint
filed his
telling
Blackwell's conduct
years after the boards
more than two
signatures is not
review Nader's
boards
Browning v.
First,
September
2004. See
evi-
acted on
Nader has no
in this suit.
issue
Cir.1989) (en
Pendleton,
(6th
F.2d 989
of those 8009
the basis for
dence
banc)
two-year
court noted
(holding
the district
statute
limi-
As
that a
invalidations.
injunction,
preliminary
arising
it denied the
§
actions
applies
when
tations
many,
any,
if
how
Nader can’t establish
Ohio).
since
signatures were invalidated be-
those
3503.06,
comply
failed to
with
and then
erate was limited when Blackwell applied
Nader from the ballot. Removal
removed
petitions.
3503.06 to his
It is also clear
surely
from the ballot
constitutes a cogni
alleged injury
fairly
tracea-
*13
Cleland,
injury-in-fact.
zable
See Duke v.
Indeed,
ble to Blackwell’s conduct.
but for
(11th
1399, 1403
Cir.1993);
5 F.3d
n.
Kay
3
§
Blackwell’s decision to apply
3503.06 and
(6th
Austin,
Cir.1980).
809,
v.
signatures,
invalidate 1701 of Nader’s
Nad-
addition,
In
er would have remained on the
Fi-
we find the
ballot.
Seventh Cir-
analysis
case, nally, monetary
cuit’s
in a similar
damages against
election
Blackwell
(7th
Rednour,
Krislov v.
Turning
case,
to Nader’s
he too
fact.
disagree
We
with
analysis.
has
this
In
standing.
above,
As noted
removal
case,
this
the passage
may
from
of time
certainly
pre-
the ballot
cog
constitutes a
Moreover,
being
nizable
clude Nader from
injury.
placed plain
like the
Ohio’s
Krislov,
ballot,
tiffs in
Nader was
election
but it
denied the use
does not mean
choice,
of the circulators of
may
his
not seek compensation
Nad
potential
er’s
Thus,
audience
past
injuries.
and the amount of
despite the district
speech about his views that
gen-
doubts,
he could
court’s
we hold that Nader has
201, 121
If the
money
at
S.Ct. 2151.
answer
civil suit for
pursue this
standing to
yes,
go
then the court must
on to ask
is
Blackwell.
against
damages
right
clearly
whether the
was
established.8
Immunity
Qualified
B.
relevant, dispositive inquiry in deter
“The
right
clearly
whether a
estab
mining
holding that Nader has stand
our
Given
is whether it would be clear to a
lished
Blackwell,
ques
we turn to the
ing to sue
reasonable
his conduct
[official]
nevertheless en
Blackwell
tion of whether
he confronted.”
unlawful
the situation
immunity
suit.
We
joys qualified
2151;
see also Dom
Id.
§of
3503.06 to
application
hold that
*14
(6th
Telb,
673,
inque v.
Cir.
circulators violated Nad
1987)
immunity
(stating
qualified
ap
rights and that
Amendment
er’s First
“any
in the
plies unless
defendant’s
having en
chargeable with
officer
Blackwell is
position,
objectively,
measured
would have
However, we also hold
forced the law.
clearly understood that he was under an
clearly
right
established
duty
affirmative
to have refrained from
Accordingly,
Blackwell
acted.
when
conduct”)
added).
(emphasis
such
immune from suit.7
Blackwell is
perform
part
inquiry
officials
The first
of our
“Government
—whether
generally
functions
are Blackwell violated Nader’s First Amend-
discretionary
ing
§
liability
damages
rights
applied
for civil
ment
when he
3503.06 to
shielded
petition requires
does not violate Nader’s
an examination
insofar as their conduct
—
statutory or constitu
of the statute itself. At the time Blackwell
clearly established
acted, §
person
a
3503.06stated:
rights
tional
of which reasonable
Fitzger
have known.” Harlow v.
would
to vote at
person
No
shall be entitled
ald,
2727,
S.Ct.
457 U.S.
election,
any
circulate
any
sign
or to
or
(1982). Qualified immunity
L.Ed.2d 396
candidacy
any
nominat-
declaration of
two-step inquiry.
involves a
See Saucier
initiative, referendum,
peti-
ing,
or recall
201-02,
Katz,
121 S.Ct.
v.
533 U.S.
tion,
person
unless the
is
as
(2001);
Bouggess v.
been a
resident
quirement
problem,
is the
both the law’s
precinct
registered.
where one is
Quinn’s
law,
text
application
which Blackwell adopted, make it clear
Quinn’s
findings, which Blackwell
that is more
say
correct to
adopted,
application
reflect her
of both the
imposes both a registration and a residen-
registration requirements
cy requirement. No
reject-
circulator was
In discussing Daryl
Nader’s circulators.
being
resident,
ed for
a legitimate
but not
Oberg’s
“an
status as
Ohio resident and
Thus,
a registered voter.
question
be-
elector,” Quinn determined that Oberg
fore us is whether
application
Blackwell’s
“qualifying voting
lacked a
residence” and
requirements
the two
violated Nader’s
invalidated the 341
that he col- First
rights.
Amendment
We conclude
*15
Regarding
Woods,
lected.
George
Quinn that it did.
that
registered
determined
he had been
to
The most relevant
Buckley
case is
v.
2004,
vote in
February
Texas since
con-
American Constitutional Law Founda
resident,”
cluded that he “is not an Ohio
tion, Inc.,
182,
636,
525 U.S.
119 S.Ct.
and invalidated the 44 signatures that he
(1999),
L.Ed.2d 599
Supreme
which the
Laws,
collected. Regarding John M.
Court held that
requirement
Colorado’s
Quinn noted that he had registered to vote
that circulators
petitions
of initiative
be
in California and cited this court’s case law
registered Colorado voters was unconstitut
proposition
for the
that persons who were
ional.9 The
petition
Court reiterated that
legitimate
not
residents
their stated ad-
“
political
circulation is
‘core
speech’, be
improperly registered
dress were
and ine-
cause it involves ‘interactive communica
ligible
Quinn
to vote.
concluded that
”
concerning
tion
political change.’
Id. at
resident,
“John Laws is not an Ohio
and
186, 119
(quoting
S.Ct. 636
Meyer v.
necessary qualification
thus lacks a
to be Grant,
414, 422,
1886,
486 U.S.
108 S.Ct.
an Ohio elector.”
sig-
She invalidated 544
(1988)).
477
registra
about
voter
Nevertheless,
Jus
cal evidence
Colorado
dissenting
Chief
See,
future
possible
residency
e.g.,
and not
data.
525
trepidations
tice’s
about
tion
a clear
Buckley cannot create
expansion
15, 119
at
n.
636.
U.S.
S.Ct.
residency requirements
holding about
circuits have heeded the
Our sister
fact that
none existed. The
where
warning
against
litmus-paper
Court’s
“sphinx-like silence”
maintained its
Court
tests,
carefully
have
examined
chal-
pre
should
residency requirements
about
residency
lenged
registration require-
Buckley had
finding
from
clude us
ments, and have divided as to their consti-
general
against
a
rule
clearly established
tutionality.
applied
The Seventh Circuit
&
requirements.
Initiative
such
Cf.
Refer
a
Buckley
registration
and struck down
Jaeger,
Institute v.
F.3d
endum
(that
requirement
also had the effect of
(8th Cir.2001)
Buckley did
(noting residency
imposing
requirement)
a
for can-
the issue of residen
squarely
confront
Krislov,
didate-petition circulators. See
upholding
a
cy requirements
contrast,
By
Eighth
at
F.3d
Cir-
initiative-petition circula
requirement
for
tors).
state-residency
flatly upheld
cuit
a
re-
quirement
initiative-petition
for
circula-
Indeed,
precedent
Supreme
other
Court
Jaeger,
tors. See
F.3d at 618. The
view that
strongly against
counsels
posi-
an intermediate
Second Circuit took
any bright-line
rule
Buckley created
tion, striking
requirement
down a
that can-
residency requirements
which
against
didate-petition circulators reside
the dis-
should have been aware.
reasonable official
running
trict in which the candidate
that there are
has admonished
Court
office,
in-
approving New York’s
but
litmus-paper
deciding
tests for
when
no
residency requirement
dicta. See
state
regulation has
legitimate ballot-access
Lerman,
Clearly,
at 150.
Buck-
impermissibly bur-
crossed the line and
Anderson,
inval-
ley has not resulted
the automatic
speech. See
460 U.S.
dens free
1564;
Buckley,
peti-
residency requirements
at
see also
idation
(“We
have
among
KAREN NELSON Circuit against personal capacity. Blackwell in his Judge, concurring part concurring It is not another chance judgment. in the 3503.06, litigate constitutionality § clarify holdings I our separately write constitutionality being which is chal- First, today. we hold that Nader has lenged directly in Op. other cases.” Lead constitutionality standing challenge opinion at 9. nothing, The lead does howev- voter-registration residency of the re er, explain why the fact that Nader quirements contained in Ohio Rev.Code currently only money damages seeks § Accordingly, 3503.06.1 we consider the implications somehow diminishes the merits of Nader’s constitutional claims. our holding that Ohio Revised Code voter-registration We hold that re § constitutionally 3503.06treads too far on quirement contained Ohio Rev.Code protected activity. correctly hold, As we § is a politi 3503.06 severe restriction on “petition activity circulation constitutes speech cal which cannot survive strict core political speech, any regulation scrutiny. Similarly, we that the resi hold speech subject to exacting scruti- dency severely restriction in lim ny.” Op. Lead at 13. The fact that we political speech justified by its and is not holding reach this in resolving particular Therefore, sufficient state interest. we plaintiffs money claim damages does voter-registration hold that the restriction applicability not diminish its to all future and the restriction contained cases, judges bound the Sixth Cir- § 3503.06 are both unconstitutional in vio cuit’s decisions must treat Nader v. Black- Finally, lation of the First Amendment. they well as published would other we conclude that because these violations opinion of this Court. clearly were not established qualified Blackwell is entitled to immunity. Moreover, regardless of whether or not I Judge Clay’s opinion, “directly” challenged also concur in Nader has the consti- 3503.06, making opinion opinion tutionality his Nader does raise a Clay Judge joins my opinion, court. mak- challenge, First Amendment and First *19 ing opinion this the of the court. challenges governed by Amendment are hearing signa- signatures gathered 1. The by officer excluded some four circulators based explicit finding findings tures based on an of fraud. that these circulators were Op. pp. Lead 3-4. properly as the lead residents or voters. Therefore, opinion explains, pp. injury even when these Id. at 4-6. is excluded, enough signatures Nader had requirements attributable to the contained in qualify § by the ballot. Id. Nader’s removal 3503.06 and would be redressed a deci- from the ballot resulted from the exclusion of sion in Nader’s favor. that doc- Under doctrine. the overbreadth REID, Plaintiff-Appellant, Lenora “may
trine, plaintiff Amendment First by demonstrating a facial attack prevail on v. that the statute danger there is ‘a realistic STORES, DEPARTMENT IN- KOHL’S recog- compromise significantly itself will CORPORATED, Corpora- a Delaware protections par- of First Amendment nized Illinois, tion licensed to do business in ” Triplett not before the Court.’ ties Defendant-Appellee. Akron, Grille, City v. Inc. of No. 07-3916. (6th Cir.1994) (quoting City Council Vincent, 466 Angeles Taxpayers Los Appeals, United States Court L.Ed.2d Seventh Circuit. (1984)). Thus, upon our declaration Argued June 2008. § are unconstitu- portions 3503.06 Nader, any sub- applied Ralph tional as Sept. Decided challenges the same plaintiff who sequent if the statute may prevail, even
provisions to them. applied as
is not unconstitutional words, § 3503.06
In other our decision Ralph applied unconstitutional as practical the same effect as
Nader has 3503.06 portions
declaration that challenges facially are uncon- Nader
which
stitutional, litigant future who because challenge to the
raises a First Amendment may pre- challenged
provisions “significantly by noting that
vail First recognized
compromise^]” Nader. Id. rights Ralph
Amendment holding should be
Nothing in this Court’s abrogate the overbreadth
understood
doctrine. only join Judge Boggs’ opinion
I Chief conflict with the
insofar as it does not concurring opinion in this expressed
views I concurring opinion. Judge Moore’s opinion. join Judge
also Moore’s