An Ohio state court will hear Libertarian Party of Ohio v Husted on April 5, 2016. The issue is whether the ballot access bill passed in late 2013 violates the Ohio Constitution. The Ohio Constitution, Article V, sec. 7, 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 bill says that newly-qualifying parties need not submit their petitions until July of election years. Because Ohio primaries are in March in presidential election years and May in other years, newly-qualifying parties can’t nominate by primary, because the primary has already occurred.
The 2013 session of the Ohio legislature ought to have introduced a proposed constitutional amendment, providing that Article V, sec. 7, only applies to large political parties, or only applies to already-established parties. If the legislature had done that, by now the Ohio Constitution might have already been changed and the state wouldn’t have this problem. Ohio is the only state with a Constitution that mandates that all parties nominate by primary. The Oklahoma Constitution says the legislature is free to provide that all parties nominate by primary, but the Oklahoma Constitution does not require the legislature to do that. The California Constitution once required that all parties nominate by primary, but that was repealed in the early 1970’s. In 1951, the National Municipal League’s “A Model Direct Primary System”, authored by Dr. Joseph P. Harris, the nation’s leading expert on election administration, recommended that primaries be given only to parties that had polled 10% of the vote in the last election.
Well, there’s an example of _le mot juste_ — the public funding and publicity of primaries are generally only “given” to the Big Two parties. . . .
In Ohio, the Green Party is also entitled to a primary in 2016.
“All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law.”
I don’t see any reference to partisan nominations. Ohio has direct primaries that are non-partisan. Ohio has direct primaries that are partisan. Ohio has non-partisan nominations by petition.
And since 2013, partisan nominations by petition.
They are ALL:
(1) nominations;
(2) by either direct primary OR petition;
(3) provided by law.
Ohio could adopt Top 2 primary and comply with the Ohio Constitution.
ps The Ohio statutes for nominations for presidential elector do not appear to comply with the Ohio Constitution.
Jim,
I don’t think that Electors would be considered an “office” under this constitutional provision. They are simply a nominating committee when it all comes down to it.
@Richard: I was thinking mostly of the wording of the quote from the 1951 study; thanks in no small part to you, we’ve made some progress since then. And the Ohio Greens stayed on the ballot (and thus, I suppose, in the primary) because the Rios-Fitrakis gubernatorial ticket got 3.3% of the vote in 2014:
http://www.cleveland.com/open/index.ssf/2014/11/ohio_green_party_keeps_ballot.html
But that’s not to say the situation is ideal there yet, of course.
I agree with Jim Riley that the Ohio law on how parties choose presidential elector candidates violates the Ohio Constitution. Presidential elector is definitely a public office. In the past, their names appeared on general election ballots in every state, and voters could vote for individual electors. Voters could vote for some electors on one ticket and other electors on another ticket, so voters could vote for more than one presidential candidate.
Or By Petition as Provided by law…
Would that qualify what they are doing? Wrong Maybe but constitutionally?
@Richard,
The Ohio ethics code makes a specific exception for presidential electors. But that does not necessarily mean they are not elected state officials. They are paid and compensated for travel to the meeting place. The SOS certifies their election, and initially presides at their meeting.
The Ohio Supreme Court could conceivably construe elections of presidential electors as a special case (as they did in the case of letting a sore loser to be appointed to fill a vacancy in nomination), with the electors appointed to fulfill the agenda of their particular party. The statutes could likely even be crafted as such, with the electors appointed by the political party of the winning presidential candidate – rather than named as candidates.
@Losty,
Yours is the interpretation that the legislature is relying on.
The constitution gives the legislature the choice of how nominations are made: by primary or by petition. There is no requirement for partisan elections in the constitution. It is an assumption that people have made that partisan nominations must be made by primary, even though some nominations in partisan elections are made by petition.
They are relying on tradition rather than what the constitution actually says.