U.S. Court of Appeals, 6th Circuit, Bars Independent Candidate for the Ohio Legislature by a Vote of 2-1

On September 14, the 6th Circuit voted 2-1 to keep Greg Jolivette off the ballot. He wants to be an independent candidate for the Ohio State House, 51st district. The decision is Jolivette v Husted, 12-3998. On September 17, Jolivette asked for a rehearing en banc.

Ohio statutes ban “sore losers” but Jolivette did not run in any primary this year, nor did he vote in any primary this year. But the Secretary of State still kept him off the ballot, even though his petition had enough valid signatures, because he had associated with the Republican Party last year. Specifically, he had petitioned to be on the 2012 Republican primary ballot, but had then withdrawn and did not appear on the primary ballot.

Jolivette argued that the Ohio law, if it really should be construed to keep him off the ballot, is too vague. The Sixth Circuit majority said he can’t raise that issue now because he didn’t clearly raise it in the U.S. District Court. The opinion is by Judge Karen Nelson Moore, a Clinton appointee, and also signed by Judge David McKeague, a Bush Jr. appointee. The dissenter is Judge Gilbert Merritt, a Carter appointee. The dissent says the Secretary of State has “indentured” Jolivette to the Republican Party, and that the Secretary of State is always free to try to persuade Jolivette to remain a Republican but the Secretary of State should not be allowed to prevent Jolivette from changing his partisan associations.


  1. Will Fenwick · · Reply

    What state is this in?

  2. I wonder if it could be construed that having run in any parties primary (or attempted to run) at any given time in the past would fall foul of Ohio’s sore loser laws.

    It is stuff like this that actually makes me appreciate some aspects of Oklahoma’s election laws. To run in a primary for any recognized party, you wimply have to have been a member of that party for the 6 months prior to registering and pay the fee. Any independents that run must register at the same time and must be declared independent for the prior 6 months. No having to deal with “sore losers”.

  3. Will Fenwick · · Reply

    I assume Ohio since it was judicated there

  4. Richard Winger · · Reply

    thanks — I corrected the post to show it is Ohio.

  5. Every election is NEW and has ZERO to do with any prior stuff – except the number of actual voters in the election area involved.

    What lawyers/judges have ANY brain cells about Election Law 001 stuff ???

  6. This is why Secretaries of State need to be abolished, as was done in Florida after 2000. It’s nice that in Virginia we have a supposedly non-partisan State Board of Elections, which tends to make fairer judgments in my experience. The only problem is in VA there’s no procedure for appealing SBE decisions so the only route is federal court (a route which was successfully taken recently by one candidate for Richmond City School Board).

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