New Developments in Ohio Ballot Access Case

As has been previously reported, in 2011 a U.S. District Court Judge put the Ohio Libertarian Party on the ballot for the 2012 election, which caused the Ohio Secretary of State to also put other minor parties on the 2012 ballot (Americans Elect, Constitution, Green, and Socialist). The Secretary of State did not appeal the 2011 decision, but the Ohio legislature intervened in the case and appealed to the 6th Circuit. The hearing for the legislature’s appeal is set for July 24 in Cincinnati.

On July 13, the three judges who are hearing the state legislature’s appeal sent a letter to both sides, saying, “Dear Counsel, the panel assigned to hear the case on the merits is requesting a letter brief on the effect of 2012 Ohio Sess.Law Serv.105 (repealing HB 194 and restoring Ohio’s ballot access deadline for the general election to November 2011)(eff. August 15, 2012) on the above appeal. The letter brief should not exceed ten pages in length and must be filed by noon on July 20, 2012.”

This letter suggests that the three judges tend to think the state legislature’s appeal may be moot. Both sides have now filed letter briefs, responding to the Court’s letter. This provided an opportunity for the Libertarian Party to tell the court about the action of the legislature in June 2012, extending the deadline for the Democratic and Republican Parties to certify their presidential and vice-presidential candidates, but not giving similar relief to the other qualified parties. That issue is not directly related to this case, but it is relevant because the Libertarian Party’s attorney is showing that the legislature cannot be trusted to ever pass a constitutional ballot access law, and that it continues to be unreasonably hostile to minor parties.

The legislature’s brief of July 20 quotes the part of the Court’s letter that says the repeal of HB 194 restores Ohio’s ballot access deadline for the general election back to November 2011. Then, the legislature’s letter says, “This is incorrect.” Instead, the legislature says, there was no valid petition deadline back in 2011, nor is there one today. If that is true, one wonders why the legislature thinks the U.S. District Court was wrong to have put the Libertarian Party on the ballot.

Here is the Libertarian Party’s recent brief; it is 10 pages. Here is the state legislature’s brief; it is 5 pages.

7 comments

  1. Demo Rep · · Reply

    Have the 2000-2004-2008 Prez elections in Ohio driven the OH gerrymander MONSTERS totally nuts ???

    Where is that Model Election Law ???

    Where is the Const Amdt having ALL election laws be in force X days before each general election ???
    -i.e. ZERO last second machinations by the robot party hacks.

    When will the courts ROUTINELY order new elections when Democracy is subverted by the robot party hack gerrymander MONSTERS ???

  2. Jim Riley · · Reply

    The case was not ripe when Judge Marbley issued his injunction. Since HB 194 never went into effect there is no reason to even consider the case. Ohio is still operating under the law that was in effect at the time of Libertarian Party v Blackwell.

    The pretended edicts of Jennifer Brunner should be ignored – the district court should have simply ruled that she was violating the US Constitution by issuing them, and not considering whether if she had had the authority, whether the contents of her edicts were legitimate. The court considered issues that it had not need to consider.

    Likewise, since HB 194 never went into effect, Judge Marbley’s injunction was premature. There was never a possibility of it being in effect for 2011 elections. Marbley was confused.

    Judge Marbley exhibited an animus towards the legislature over other provisions in HB 194, which appeared to carry into his consideration of the ballot access provisions.

    One of the provisions of HB 194 was to make the General Assembly a necessary party to any litigation over Ohio election laws. But since HB 194 never went into effect, it was excluded. So you have Marbley ruling as if parts of HB 194 were in effect, and other parts were not, when none ever were.

  3. Demo Rep · · Reply

    Mootness – more stuff messed up by the MORON courts.

    Complaint – past, current, future alleged law violation.

    NO MOOT stuff – UNLESS the alleged law being violated is repealed retroactively.

    Obviously almost NEVER moot with CONSTITUTION violations.

    i.e. the MORON courts let the EVIL UN-constitutional elections go on and on and on

    — i.e. fail to order NEW LEGAL elections to be LEGALLY done.

    — i.e. the MORON courts are always 1-2-3-more elections TOO LATE in dealing with EVIL violations of the election law parts of Constitutions.

    The EVIL robot party hack incumbents love it — latest and greatest statutory ways to subvert Democracy.

  4. John Rey · · Reply

    If HB 194 never went into effect, how was it repealed? Was it repealed prior to its effective date, then? And if that statute is not in effect, and never was, how is the legislature joined as a party to the case; how does it have standing?

  5. Jim Riley · · Reply

    #5 They passed SB 295 which repealed all the provisions of HB 194.

    SB 295 states that “it is the intent of the General Assembly to continue in operation the following provisions of the Revised Code, which are currently in effect” and then listed dozens of pages of the election code that were still in effect.

    In Ohio, when there is referendum on a bill, the effect of the bill is stayed until after the referendum election. Think of a referendum as the People deciding whether or not to veto a bill. In the case of a gubernatorial veto, the governor has a limited time to act on a bill. But it takes for a much longer time to hold an election where the People make their decision.

    If the bill could go into effect pending the election, it might not be possible to undo. Imagine that a bill provided that a tree be cut down. There is a petition to save the tree. If the law could go into effect, and the tree cut down, it would not matter if 100% of the voters voted to save the tree.

    Once there was a petition drive, HB 194 could not go into effect. Once the petition drive was successful, HB 194 could not go into effect until after the election.

    Once the legislature had repealed HB 194, by passing SB 295, there was no reason to hold the referendum.

    The circuit court added the general assembly to the lawsuit.

    Now that HB 194 has been repealed, there is really no reason for the court case to proceed. The law is the same as it was before Libertarian Party v Blackwell. The State of Ohio is not proposing to implement that law.

  6. Jim Riley · · Reply

    #5 Ohio should switch to some other nomination/party qualification model. The 6th Circuit ruled that the combination of the number of signatures, early primary, and period that petitions had to be circulated before the primary were unconstitutional. The problem is that they did not state what was constitutional. One judge said that he thought the law was constitutional.

    So it is really a subjective judgement, and Ohio is stuck with a trial and error method. Since there is no objective principle, it is a recipe for continued litigation.

    Ohio should consider the model used in Texas, where smaller parties qualify at the same time that they nominate, and don’t nominate by primary. The fundamental problem in Ohio is the early primary, and the requirement that nomination be by primary. This forces an extremely early qualification date.

    Ohio, like Texas, does not have party registration. However, a voter is considered to have affiliated with a party when he votes in their primary. Ohio has a complex system of continued affiliation. A voter may switch parties, but only at the next primary. Candidates may switch when they declare their candidacy. But petition circulators are stuck, so they can’t circulate a petition immediately before an election.

    So a system like Texas, where party affiliation is considered to have lapsed after every election cycle is just as effective.

    So under this new system, a voter would affiliate with a party by voting in a primary, participating in nominating convention, or signing a petition.

    Only established major parties would be required to nominate by primary. But Ohio includes non-partisan offices in its primary. So a voter who wishes to affiliate with a minor party could do so. He would just appear at his polling place, declare that he wishes to affiliate with the Buckeye Party, and be given the nonpartisan ballot.

    Parties seeking to qualify their convention nominees would simply have to register in advance so that voters could affiliate at the primary.

    Parties seeking to qualify by nomination would hold entry-level nominating conventions, which would either cover parts of counties, or one or more whole counties.

    Voters would sign an attendance roster, just like when they appear at polling place, and this would constitute their affiliation with a party. These rosters would be forwarded to the county election officials for integration into the primary voting records.

    It would be up to each party whether these conventions are indirect, choosing delegates to subsequent conventions; or direct, where attendees vote directly for candidates.

    A party would also hold a state convention, and any intermediate conventions they deem appropriate. A nomination could be made at any convention that covers the entire area (eg district) that office is elected from. It would be up to the party whether those making the nomination reside in the district being nominated for.

    Voters could also affiliate with a party by signing a petition.

    Qualification of parties would be based on the total numbers of voters participating in nominating process (primaries, conventions, petitions). For nominations to be considered valid, 1% of all nominating voters would have to participate in the party’s nomination activities.

    Since voter registrations are tied to residence and election precincts, it would be possible to have partial qualification, for parties that fail to secure statewide qualification, but whose nominations in districts where they had 1% participation would be.

    The qualification/nomination process would end by some reasonable deadline, such as August 1, which would give election officials time to process any petitions. It would be up to the parties when they decided to hold their conventions.

    Ohio gets everything they want, nomination by voters who affiliate with a party, as well as demonstrating a modicum of support, keeping the early primary for established parties; but eliminating the early qualification deadline.

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