The Ohio State Court of Appeals will hear Libertarian Party of Ohio v Husted on Tuesday, May 9, at 9 a.m. This case is over whether the 2013 ballot access law violates the State Constitution. The State Constitution appears to require that all qualified parties nominate by primary. But the 2013 ballot access law says newly-qualifying parties should nominate by convention, and then each convention nominee must submit his or her own small ballot access petition.
This case was filed January 19, 2016, and has moved very slowly. Before the 2016 election, the trial court had ruled that the law comports with the State Constitution. The briefs were filed in the State Court of Appeals months ago. The Ohio Constitution says, “Article V, sec. 7. All nominations for elective state, district, county and municipal office shall be made at direct primary elections or by petition as provided by law.” Past rulings of state courts in Ohio have made it obvious that “by petition” refers to independent candidates. If it is true that the legislature is free to provide that new parties may avoid a primary, then it seems obvious that the legislature could extend that exemption to all parties, new and old alike. But that would completely nullify any reason to even have that provision in the State Constitution. That Constitutional provision was passed over 100 years ago, and seems to have been passed to make it certain that the major parties could only nominate by primary.
Ohio is the only state with a State Constitutional provision that requires all parties to nominate by primary. Oklahoma’s Constitution gives the legislature authority to provide primaries for all parties if the legislature desires, but the Oklahoma Constitution does not compel the legislature to do that.
It is conceivable that the Ohio Supreme Court’s lengthy delay in ruling on reconsideration in the other Libertarian Party lawsuit is indirectly connected to this lawsuit.
The statute does not state how new parties choose their nominees. The sponsors of the party qualification petition certify the party candidates for the general election ballot.
If the Libertarian Party were to petition for the 2018 election, they could choose candidates by party convention, and assist them in their personal petition efforts. I don’t see anything in the statute that would forbid coordinated petitioning efforts, the only requirement is that the individual candidates file after the party qualification petition is filed.
But there is nothing in statute that would prevent individual candidates petitioning independently, and then the sponsors choosing which to certify. The statute does limit the sponsors to certifying only a single candidate per office. It is illogical for someone to say that the statute requires nominations to be made by convention when it provides for the possibility of multiple candidates successfully petitioning for an office.
Ohio does use primaries for some non-partisan offices, and Ohio could institute a Top 2 primary for partisan offices in which there are no formal nominations.
In the previous case, a candidate who had lost a primary, was later chosen to fill a nomination vacancy. It was argued that this violated the sore loser law, that prevents a failed candidate for party nomination subsequently running as an independent. The plaintiffs made the absurd argument that since the candidate had not been nominated by primary, he must have been nominated by petition.
The Ohio Supreme court ruling was that other constitutional provisions gave the legislature the authority to make provisions for exceptional conditions such as vacancies in nomination.
Ohio should simply adopt Top 2.