On September 21, the Ohio State Court of Appeals issued a 35-page opinion in Libertarian Party of Ohio v Husted, 16AP-496. The Ohio Constitution 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 Ohio Libertarian Party had filed a lawsuit against the 2013 ballot access law, which says that newly-qualifying parties do not have a primary. The party had argued that the 2013 ballot access law violates the Ohio Constitution, which seemed to mandate that all parties nominate by primary.
The Ohio State Court of Appeals interpreted that part of the Ohio Constitution to mean that the legislature is free to abolish primaries for any parties, and instead to provide that parties without a primary would nominate by petition. This conclusion seems to contradict the historical record, which shows that this part of the Ohio Constitution was added over 100 years ago to stop parties (or at least the major parties) from nominating by convention. The decision has no discussion of the history of this part of the Ohio Constitution.
The decision also rejects the party’s argument that equal protection is violated by forcing new parties to nominate without a primary. Ohio voter registration forms do not ask the applicant to choose a party. Therefore, the only government-provided “membership lists” for qualified parties come from the list of voters who chose a particular party’s primary ballot. The major parties, which always have primaries, obtain a useful list of their adherents by obtaining the list of voters who chose that party’s primary ballot. A newly-qualifying party, which has no primary, doesn’t obtain such a list. But the Court ruled that the disparity does not violate equal protection.
As a result of this decision, there is now no state constitution in any of the 50 states that mandates primaries for all qualified parties. Ohio had seemed to be the only such state. The Oklahoma Constitution gives the legislature the authority to mandate primaries for all qualified parties, but does not say the legislature must do that.
One reason the opinion is so long is that it takes the first fifteen pages to set forth the complicated history of ballot access litigation in Ohio, especially Libertarian Party cases, for the period 2004 to the present.
Again – the ^official* primaries came along as a major *reform* to end having tyrant gangster party bosses and their top gangsters (party oligarchs) controlling nominations in conventions — via threats and bribes.
Apparently ZERO research given to the Ohio courts about any comments made by the drafters of
“All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law.”
— back when such language was proposed — 19XX. Copied from some other State in whole or part ???
IE – ONE more case of INCOMPETENT L-A-Z-Y lawyers at non-work per usual — i.e. the all sorts of ballot access losses by minor parties and independents in the State and Fed courts — since 1776 / 1888 / 1968.
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NO primaries.
Equal ballot access tests.
PR and AppV.
About half hour mini research —-
https://www.legislature.ohio.gov/laws/ohio-constitution/allSections?id=5
Art V
§ 07 Primary elections
All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law, and provision shall be made by law for a preferential vote for United States senator; but direct primaries shall not be held for the nomination of township officers or for the officers of municipalities of less than two thousand population, unless petitioned for by a majority of the electors of such township or municipality. All delegates from this state to the national conventions of political parties shall be chosen by direct vote of the electors in a manner provided by law. Each candidate for such delegate shall state his first and second choices for the presidency, but the name of no candidate for the presidency shall be so used without his written authority.
(Amended, effective January 1, 1976; SJR No.10.)
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http://www.ohiohistorycentral.org/w/Ohio_Constitution_of_1851
https://ballotpedia.org/Ohio_1912_ballot_measures
http://www.sconet.state.oh.us/LegalResources/LawLibrary/resources/appendix.pdf
pp. 2106-2107
Amdt 26
YES 349,801 65.6 PCT
NO 183,112 34.4 PCT
p. 2113
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1851 OH Const with the many 1912 amendments
Art V, Sec. 7
P. 2131.
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Dubious handwriting of the 1912 OH Con-Con folks, pp 2142-2145 — RIP 105 years later.
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More time needed to look for any specific 1912 Con-Con comments about V-7.
More —
The constitutional convention began meeting in January 1912. … Instead, convention delegates wrote forty-one potential amendments to the current constitution. These proposed amendments were presented to the citizens of Ohio in a special election on September 3, 1912.
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33 approved
8 rejected
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http://www.ohiohistorycentral.org/w/Ohio_Constitutional_Convention_of_1912
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http://onlinebooks.library.upenn.edu/webbin/book/lookupname?key=Ohio.%20Constitutional%20Convention%20(1912)
about 20 major docs about the 1912 OH Con-Con
Federal or Ohio courts are not competent to determine what is constitutional. They may determine that a particular statute is unconstitutional.
As the decision notes, legislative enactments are presumably constitutional. Article V, Section 7 of the Ohio Constitution is not self-executing, since it explicitly provides that legislation implement the section. Ohio does use primaries for nomination for certain non-partisan offices, so there is no basis for interpolating “primary for party nominations” and “petition for non-partisan or independent”. The drafters could have made this distinction explicit.
I really don’t see why the Libertarian Party is litigating this. Perhaps they want to make it impossible for Ohio to pass a law, so they can continue to qualify under infinite court order.
Ohio could also implement Top 2 and comply with the Ohio Constitution.
More 1912 OH Con-Con stuff
https://catalog.hathitrust.org/Record/100571588
all proposed amdts
PROP 249 — PRIMARY ELECTIONS
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https://catalog.hathitrust.org/Record/010447229
[1912 Con-Con] Proceedings and debates
V1 pp 1-1081
V2 pp 1082-2254
PROP 249 — PRIMARY ELECTIONS history p. 2229 – Vol.2
Vol 1
249
318
671
Vol 2
1239-1247 debates — 2nd reading *****
1797
1923-1927 debates — 3rd reading *****
1933
1959
1960 finally passed
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General Index at end-
PROPOSALS DEBATED IN CONVENTION [BY SUBJECT- PAGES]
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https://catalog.hathitrust.org/Record/100165635
A digest of the debates and addresses before the Fourth Ohio constitutional convention; full information upon the forty-two proposed amendments–pro and con. Comp. by Paul R. Good.
Prop 26 below
partial debates pp. 34-36
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https://catalog.hathitrust.org/Record/100111044
ballot form/question for each Prop Amdt
[Ballot — Prop Amdt 26]
Article V, Section 7.
Primary Elections
All nominations of the state or any sub-
division thereof having a population of over two thousand,
must be made by primary election or by petition.
[rest omitted]
There may have been an *Address to the People* about the various Props.
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How many State Consts in 1912 had any mention of nominations, conventions, primary elections or ballot access ???
Primary elections since 1888 — 24 years before 1912.
History note — 1914-1918 WW I monarch/oligarch killers/enslavers at EVIL work in Europe — end of *progress* — back to the Stone Age.
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NO primaries
PR and AppV
Leadup to the 1912 Ohio Con-Con and its actions.
http://devel-drupal.law.csuohio.edu/lawlibrary/resources/lawpubs/ohioconlaw/documents/Warner.pdf
1912 Address to the People — Ohio Con-Con
http://chroniclingamerica.loc.gov/lccn/sn84028473/1912-08-09/ed-1/seq-9/
small type — must zoom in/ magnify to read
Con-Con comments about each Prop
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image 11 of 12
Number 26
Primary elections
V-7 full text
Under this amendment all nominations for offices of the state or any sub-division thereof having a population of over two thousand, must be made by primary election or by petition. [rest omitted]
image 12 of 12 has a sample ballot — ONLY YES/NO boxes for each Prop Number with Art – Sec numbers and MINI title/name of each Prop.
— must had small armies of folks counting the votes – 41 props with separate liquor item.
Number 26 provided for a preferential vote for senator (superfluous after the 17th Amendment) and direct election of delegates to national convention (unconstitutional).
Dates added — DR September 21, 2017 at 10:36 pm above
https://catalog.hathitrust.org/Record/010447229
[1912 Con-Con] Proceedings and debates
V1 pp 1-1081
V2 pp 1082-2254
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PROP 249 — PRIMARY ELECTIONS history p. 2229 – Vol. 2
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Vol. 1
249 2-12-12
318 2-14-12
671 3-12-12
Vol. 2
1239-1247 4-16-12 debates — 2nd reading *****
1797-1798 5-24-12
1923-1928 5-29-12 debates — 3rd reading *****
1933 5-29-12
1959-1960 5-31-17 [no debate] finally passed
Thus almost 4 months about primary stuff (along with lots of other stuff).
All sorts of anti-convention boss comments in the ***** debates.
Apparently NO mention of new/minor parties in the debates.
Some of the petition stuff with mentions of independent candidates — due to the rot of both the Donkey / Elephant gang bosses.
How come new/old minor parties did not go to court immediately after the V-7 1912 amendment took effect ???
Sleeping on their rights ???
http://www.dispatch.com/news/20170922/court-upholds-ohio-ballot-access-changes-for-3rd-parties
Ballot access via nominating petitions or filing fees MUST be specified in constitutions
— since the incumbent hacks can NOT be trusted regarding ballot access
— same reason why many legislator qualifications and terms of office are specified in constitutions.
@DR,
The statutes passed after the 1912 Con Con provided for primaries for parties that had received 10% or more of the previous gubernatorial election. It also explicitly stated (Section 4950) that the primary law did NOT repeal the petition provisions. A petition candidate (1% of previous gubernatorial vote) could have a party name or statement of principle of three words or less appear on the ballot.
There were four parties on the 1914 senatorial ballot (Warren G. Harding was elected), and it appears that only the Republicans (3 candidates) and Democrats (1 candidate) had primaries.