On May 9, the Ohio State Appeals Court, 10th district, heard oral argument in Libertarian Party of Ohio v Husted, 16AP000496. This is the last remaining Libertarian Party ballot access case in Ohio. The party argues that the Ohio Constitution requires all qualified parties to nominate by primary, and that the 2013 ballot access law, which was responsible for keeping the party off the ballot in 2016, conflicts with the state constitution. That law says newly-qualifying parties do not have a primary.

Judge Julia Dorrian seemed concerned that preventing any qualified party from having its own primary violates the equal protection parts of the Ohio and U.S. Constitutions. Ohio voter registration forms do not ask applicants to choose a party. Instead Ohio law says a party’s members are the voters who choose that party’s primary ballot. So, under the current law, newly-qualifying parties don’t have any “members” in the legal sense, which damages them.

The Ohio Constitution says, “Article V, section 7. 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 hearing lasted 40 minutes. The other two judges were G. Gary Tyack and Lisa Sadler. Ohio state court judges are elected in partisan elections, except that party labels do not appear on the general election ballot. Judges Dorrian and Tyack are Democrats; Judge Sadler is a Republican.