The Ohio Senate is scheduled to pass HB 194 on Thursday, June 23. This is an omnibus election law bill backed by the Secretary of State. It moves the primary from March to May. Existing law says the primary in presidential years, for all office, is in March (although in midterm years it is already in May).
HB 194 also moves the deadline for a new party to submit its petition from 120 days before the primary, to 90 days before the primary. Therefore, assuming the bill is signed into law, the 2012 primary will be May 8, and the petition deadline will be February 8. No reported decision of any court has ever upheld a petition deadline for a new party, or an independent candidate, that early, so the new law will almost certainly be held unconstitutional. Early petition deadlines for new parties, or for independent candidates, have been held unconstitutional in Alabama, Alaska, Arizona, Arkansas, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio itself, Pennsylvania, Rhode Island, South Dakota, Tennessee, and Utah. Decisions on early deadlines will probably be issued this year in Montana and Vermont. Also, injunctions against early petition deadlines for new parties have been issued in Hawaii and Idaho, although neither case then received a decision on declaratory judgment.
The Ohio legislature seems unaware of this large body of constitutional law. The existing Ohio deadline of November in the odd year before the election was invalidated by the 6th circuit in 2006, and HB 194 is intended to replace the old law. But, assuming HB 194 is signed into law, it will trigger a new lawsuit. HB 194 does not lower the number of signatures to place a new party on the ballot, nor does it lower the number of votes for a party to remain ballot-qualified, nor does it ease the wording on the party petition which says that the signers intend to participate in the new party’s primary.
The Ohio legislature ought to pass a procedure that enables a newly-qualifying party to nominate by convention. Ohio parties were permitted to nominate by convention in the period before 1947 and to have a party label on the ballot next to the names of their nominees. Also, the American Independent Party nominated by convention in Ohio in 1968, and 1996, and the Socialist Labor Party nominated by convention in 1970, and the Reform Party nominated by convention in 1996. Ohio therefore has a fair amount of experience with letting newly-qualified parties nominate by convention. However, it is true that the legislature would need to set in motion a change in the Ohio Constitution in order to make this policy change, because Ohio is one of two states with a state constitutional provision requiring primaries for all parties.
