Here is the 32-page rebuttal brief of the Ohio legislature, in Libertarian Party of Ohio v Husted, 11-4066, now pending in the 6th circuit. The Ohio legislature is trying to persuade the 6th circuit that U.S. District Court Judge Algenon Marbley’s September 7, 2011 order was improper. That order put the Libertarian Party on the ballot in Ohio for the 2012 election.
The Ohio legislature’s rebuttal brief is mostly about procedural issues, and only a small part of the brief attempts to defend the existing Ohio ballot access law, which has a petition deadline for new and minor parties of November of the year before the election. That is the same deadline that was held unconstitutional in 2006 in the 6th circuit. Although the legislature passed a bill in 2011 to change the petition deadline from four months before the primary to three months before the primary, that bill is not in effect because it is subject to a referendum petition.
The court case is about the bill passed in 2011 which has not gone into effect because of the referendum and was intended to remedy the constitutional defects of current law. In Blackwell, the 6th Circuit in a 2-1 decision said that it was the combined effect of an early primary, number of signature, and long lead time that were the problem, and indicated that some of the provisions in isolation might be constitutional.
The bill moved the primary by two months, and changed the filing deadline by 30 days, for a net change of 3 months. I would think that you would welcome an opportunity for the 6th Circuit to clarify what they meant, rather than relying on cranky district judges who dismiss the amount of effort required to put on an election.
The real answer of course would be for Ohio to adopt the Top 2 Open Primary, which is well suited for States that don’t have formal party registration.
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