On October 14, U.S. District Court Judge Michael H. Watson issued an opinion in Libertarian Party of Ohio v Husted, s.d., 2:13cv-953. He ruled that a federal court cannot rule on whether the ballot access law passed in 2013 violates the Ohio State Constitution. Only state courts can do that.
The Ohio Constitution, Article V, section 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.” The 2013 ballot access law says that newly-qualifying parties shall nominate by convention, not primary. The Libertarian Party charged that the new law thereby violates the Ohio Constitution and is invalid.
The ruling says that Ohio did not waive its Eleventh Immunity, and therefore this claim can only be handled by state courts. The party had argued that the state had voluntarily waived its immunity, but the decision rejects that argument
The decision also finds the ban on out-of-state circulators to be unconstitutional. Ohio had already lost on this issue some years ago, but the legislature had then reinstated the ban.
The decision does not decide whether the Libertarian Party was discriminated against when, in 2014, the state enforced a particular campaign finance disclosure restriction for the first time. The party’s gubernatorial candidate was removed from the primary ballot because his primary petition (which required 500 names) was circulated by paid petitioners. The paid petitioners did not fill in the name of their employer on the petition sheets. They did not do so because they believed they were independent contractors. The party and its petitioners argue that the law was interpreted to apply to them for the first time, and previously this law had never been enforced. Certain initiative petitioners did not fill out the blanks and yet the initiatives they worked on were approved. The October 14 ruling says this issue cannot be resolved until more evidence is uncovered. If the Libertarian Party wins this part of the lawsuit, it is not certain what the relief might be.
The Libertarian Party can make a strong case that if its gubernatorial candidate had not been removed from the party’s primary ballot, he would then have been on the November ballot and probably would have polled 2% or more. Then the party would be on the November 2016 ballot. The next phase of the case should be finished within four or five weeks.