Ohio Libertarian Party Files Brief In State Court of Appeals, Over Constitutionality of 2013 Ballot Access Restriction

On October 21, the Ohio Libertarian Party filed this brief in the Ohio State Court of Appeals. The case is Libertarian Party of Ohio v Ohio Secretary of State, 16APE-07-496. The issue is whether the 2013 bill passed by the Ohio legislature, setting out the current definition of “party” and provision for new parties to get on the ballot, violates the Ohio Constitution. The 2013 law, combined with the Republican Party’s successful challenge of the LP’s gubernatorial candidate in 2014, has kept the party off the ballot this year and given it no easy way to ever recover its party status.

The main basis for the lawsuit is the Ohio Constitution, Article V, sec. 7, which says, “All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law.” The 2013 law appears to violate this provision because it says that newly-qualifying parties can’t have a primary, but nominate by their own devices. The legislature attempted to evade this problem in 2013 when it wrote that a new party not only needs a very difficult party petition (which will probably require over 50,000 signatures in 2018), but also each nominee of a new party needs his or her own separate candidate petition. But the Ohio Libertarian Party brief points out that this provision of the Ohio Constitution has already been interpreted by the Ohio Supreme Court (in 1963) and by the Sixth Circuit, to not refer to party nominations at all. Instead “by petition” has always in the past referred only to independent candidates.

The brief also argues that it violates Equal Protection to deprive newly-qualifying parties of a primary, because under Ohio election law, party “members” are defined by their decision to vote in a particular party’s primary. Without a primary, a newly-qualifying party won’t have any legal “members”, whereas the old parties do have very valuable membership lists.

The Ohio State Court of Appeals will decide this case after the 2016 election is over. Courts do a better job when they adjudicate cases such as this after an election, instead of before an election. Everyone, including the judges themselves, will be more relaxed and more able to do an objective job.


Comments

Ohio Libertarian Party Files Brief In State Court of Appeals, Over Constitutionality of 2013 Ballot Access Restriction — 6 Comments

  1. Date that such Art. V, Sec. 7 was added to the OH Const ???

    i.e. the *direct primary elections* language was esp. around in 1888-1918 — reform era — before being killed off by after World War I reactionary stuff.

  2. In Sulligan, the Ohio Supreme Court determined that Article V, Section 7 was inapplicable to the particular circumstance of replacing a party nominee after the primary. The candidate in question, Flask, was undeniably a candidate in a primary. The challengers claimed that his selection as a party nominee for another office was “by nominating petition”, since it wasn’t by primary. But the court never made a determination that it was by “nominating petition” and thus subject to the sore loser law.

    It should be noted that SB 193 extended the sore loser law to also apply to party petition candidates (e.g a candidate for a Green Party nomination could not seek a Libertarian Party nomination for the same or different office). The “sore loser” provisions is not strictly speaking confined to losers, but in general limits a candidate to one office and one path to that office.

    Blackwell was based on Ohio statutes of the time. The federal courts, the Ohio courts, the Ohio SOS and AG are incompetent to determine how the Ohio General Assembly legislates with respect to Article V, Section 7. The 6th Circuit made an erroneous claim that was irrelevant to the actual case. The SOS and AG are incompetent to make new law by executive fiat (as confirmed in Brunner) so it simply does not matter that they might have defended a different law based on their misunderstanding of the Ohio Constitution.

    Ohio does use nomination by primary for certain nonpartisan offices. So a claim that nomination by primary is solely for partisan nominations is false. The construction of Article V, Section 7 as requiring primary nomination for partisan candidates and petition nomination for other candidates is wrong.

    SB 193 provides that candidates for minor party office file a nominating petition. The sponsors of the party petition get to choose which if any such petitioning candidates appear on the general election ballot. The bylaws of the new party could provide direction to the sponsors.

    Incidentally, there is a typo on page 33 of the brief. The last full sentence should be: “…guaranteed primaries to political parties.”

    Can segregated partisan primaries ever provide equality under the law?

  3. Another obvious question – how many third parties in how many States held regular *direct* primaries in 1888-1932 ??? —

    before the post 1932 reactionary stuff basically wiped them out from having regular primaries (i.e. getting regular PUBLIC attention) — i.e. forced caucuses and conventions — where possible.

  4. ALL ballot access cases for 2017-2020 must be filed IMMEDIATELY after 2016 results are final-final so those fine *relaxed* judges in the lower courts can perhaps do something about them while SCOTUS waits to get the 9th robot party HACK on it.

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