On January 19, the Libertarian Party of Ohio filed a lawsuit in state court, alleging that the 2013 law on how newly-qualifying parties get on the ballot violates the Ohio Constitution.
The party has been trying for months to persuade federal courts in Ohio that the 2013 law violates the Ohio Constitution, but the federal courts have said that this issue belongs in state court. Normally it is true that federal courts can’t decide whether state laws violate a state Constitution. But there are exceptions, although in this case the federal courts don’t think the exceptions apply.
The new case in state court is Libertarian Party of Ohio v Husted, Franklin County Court of Common Pleas, 16-cv-554. The Ohio Constitution appears to say that all parties must nominate by primary. In presidential years the Ohio primary for all office is in March. But the 2013 law says new parties must submit petitions by July of an election year, and then they nominate without a primary (obviously they can’t nominate by primary, because the primary is already over). The new law implies, but does not say, that new parties should nominate by convention.
If the 2013 legislative session had done a good job, it would have set in motion the process to amend the Ohio Constitution, so that it would no longer say new parties nominate by primary. The Ohio Constitution is the only Constitution in the entire U.S. that mandates that all parties nominate by primary. The Oklahoma Constitution says that the legislature may provide that all parties nominate by primary, but the Oklahoma Constitution does not say the legislature must do this.
The constitution provisions apply to all elections in Ohio. When an independent (or nonpartisan) candidate qualifies for the general election ballot, they do so by petition. So clearly Ohio regards petitioning to appear on the general ballot as a “nomination”.
In addition, Ohio statute has provisions for nonpartisan Top 2 primaries, in which the candidates are nominated by the primary.
So clearly the only way to interpret the constitution is that _candidates_ must be nominated in one of two methods: (1) by primary; or (2) by petition; and that the method should be established by statute.
If one assumes that “primary” means “partisan nominating primary” and “petition” means an “independent-candidate petition” then one is apt to (mis)read the constitution.
It is not that dissimilar to the misreading of SB 6, by Debra Bowen, and those who were suing her. Just because the plaintiff and defendant agree on something does not mean that they are both right. It could mean, as it did in that case, that they were both wrong.
Some specific comments:
12.
State ex rel Gottleib v Sulligan was decided on the basis of Article V, ยง 7 not applying to the extraordinary circumstances of that case.
13.
The 6th Circuit in Blackwell was unnecessarily expansive. The (2:1) ruling of the court was that Ohio statutes at that time violated the US Constitution. If there were no provision in the Ohio constitution, the 6th Circuit would have ruled the same way.
31.
3517.012(C) implicitly recognizes the right of a political party to choose among multiple petitioning candidates, by limiting the party to certifying only one such candidate per office. In addition, the party may choose not to certify any candidate for an office.
Hopefully, the Libertarian Party is preparing to petition, and is not depending on successful litigation. Party rules may provide for the machinations by which the 3 to 5 sponsors of the party petition make their decisions on individual candidates. Whether a convention is involved is up to the party.