On June 4, the Ohio Libertarian Party filed this reply brief in its ballot access case, in the Sixth Circuit. The two issues are: (1) does the 2013 ballot access law violate Equal Protection by letting old parties continue to have members (as defined by the state), yet depriving new parties from having members? (2) did government actors disqualify the Libertarian Party’s gubernatorial candidate in 2014 by enforcing an obscure campaign finance law that had never before been used to disqualify any candidate or measure from the ballot? (i.e., discriminatory enforcement).
The reason Ohio is subject to criticism on point one is that Ohio doesn’t have registration by party. Instead, Ohio defines a party member as someone who chooses a party’s primary ballot. But the 2013 law doesn’t provide for primaries for newly-qualifying parties.
The Ohio Libertarian Party has a completely separate case pending in state court, over whether the 2013 law violates the State Constitution, which seems to say that all parties must nominate by primary.
How many States had primaries for ALL parties up to 1932 (i.e. Great Depression I) ??? — after which the D/R gangsters made it more and more impossible for third parties and independents to get ballot access.
The Ohio primary section likely was enacted before 1932 (???).
If you believe that the constitution says that parties must nominate by primary, then you will misread the constitution to match your prejudice. The constitution says that the manner of nomination will be provided by law. That is, the legislature gets to decide from among two choices: nomination by primary or nomination by petition.
Ohio uses nomination by primary for some nonpartisan offices. But you would probably claim that the constitution “seems to say” that nonpartisan nominations must be by petition.
There is nothing that prevents the Libertarian Party of Ohio from identifying supporters. If there is a need for official recognition of “members”, then the obvious choice in years when they were attempting to qualify for the ballot (such as 2016) would be to count the signers of their qualification petition as members. After all the petition says that the signers are organizing a new party, and voters in other primaries are disqualified from signing the petition. It is really analogous to the situation in ‘American Party of Texas v White’.
Was the Texas Democratic Party a state actor when they sued to keep the Green Party of Texas off the ballot?
How can the Ohio Republican Party be a state actor, but not be a named defendant?
If anything, it may be a flaw in Ohio election law that the political parties can not challenge candidacies of candidates of other parties. Did the State of Ohio violate the 1st Amendment rights of the Ohio Republican Party, by not permitting them to challenge Charlie Earl’s flawed petition directly?
The Ohio Constitution, Art. 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.” There is no room there for convention nominations.
According to Jim Riley, “voters in other primaries are disqualified from signing the petition.” That is not true. Any qualified Ohio elector (i.e., registered voter), can sign the petition to form a new party; ORC 35170.01. The logic is actually inescapable. A person showing as a member of another party can just easily be disenchanted with their current choices and want a new one. Richard Winger pointed out the other mistake stated by Mr. Riley.
The mention of *direct* primary elections in V-7 indicates that the section was added before 1932 — i.e. during the *progressive* era of having the *new* system of direct primaries in 1888-1932,
@John Stewart, you are correct that members of other parties are not barred from signing the formation petition. However members of other parties (i.e. those have voted in another party’s primary in the last two years) are barred from signing a candidate petition. In fact, the only real significance of being a “member” of a political party by virtue of having voted in its primary, is that one can not circulate or sign a petition of another party’s candidate. Ohio would really be better off getting rid of this provision. In Texas, party affiliation only lasts for the remainder of an even-numbered election year.
However, ORC 3517.01 (please note correct section) says “The petition declares the petitioners’ intention of organizing a political party.”
Those signing the petition are participating in the organization of the party. Nothing prevents the Libertarian Party of Ohio keeping track of those who sign its petition. The Libertarian Party would have a better case requiring Ohio to keep track of the signers of the formation petition as “members”.
@Richard Winger,
The Ohio Constitution, Art. 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.” There is no room there for convention nominations.
The statute does not provide for convention nominations. It provides for nomination by petition, an endorsement by the sponsors of the formation petition. It is up to the internal machinations of the Libertarian Party of Ohio how those sponsors determine which of the potential nominees to endorse. Does the LPO have bylaws?
The LPO is quite free to recruit candidates, and to assist them in gathering candidate signatures. It is also free to endorse or not endorse the candidacies of candidates who gathered their signatures independently of the party.
Jim, under California Democratic Party v Jones, it is unconstitutional for a state to force a ballot-qualified party to let non-members help choose its nominees, if the party in question objects to having outsiders help choose its nominees. It would not be possible (under that decision) for Ohio to require a newly-qualifying party to let outsiders choose its nominees by their signatures on petitions. The party has a right to have its members make the nomination, and that is done by convention. The Libertarian Party has dues-paying members and they meet in convention to choose nominees, in years when they are a newly-qualifying party.
@Richard Winger,
Poll taxes are illegal in the United States. Even if the State of Ohio wanted to recognize the dues paying members of the Libertarian Party as _the_ party they couldn’t.
Ohio recognizes the sponsors of the qualification petition of a new party as authoritative in whether a candidate who has petitioned will appear under the party name. While the bylaws of the Ohio Libertarian Party may require the sponsors to adhere to the choices of a convention, that is not something imposed by the State of Ohio.
I don’t understand why you don’t support Top 2 instead of this arcane system of party qualification and state-sponsored segregated partisan primaries.
Poll taxes are not illegal for party nominations processes that are paid for by the party (and not the government). In the US Supreme Court decision Morse v Republican Party of Virginia, 517 US 186 (1996), the majority did not strike down the dues the Virginia Republican Party was charging for delegates to its US Senate nominating convention. The Court just said the Virginia Republican Party was subject to the voting rights act, since Virginia was a covered jurisdiction, and therefore the party had to pre-clear any changes in the amount of the dues with the Justice Department.
It would be an extreme violation of freedom of association for the government to tell a private organization that it could not charge dues for membership.
In ‘Morse v Republican Party of Virginia’ the SCOTUS ruled the the RPV was subject to Section 5 preclearance, and that there was a right of private action on the poll tax complaint.
Once the government grants special status to political organizations, those political organization can no longer claim to be wholly private organizations.
Top 2 does away with that special status for political parties. You should favor it for that reason.
Top 2 (without additional reforms) would kill off all minor parties — and in some areas the less dominant major party.