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*upreme CDurt of ebi.o

STATE, ex iel. STF;VEN LINNABARY, Case No. 2014-0359

Relator,

vs.

Original Action in Mandamus

Expedited Election Case

JON HUSTED, Ohio Secretary of State,

Respondent.

MERIT BRIEF OF RESPONDENT JON IIUSTED

MARK G. KAFANTARIS* (0080392)*Counsel of Record

625 City Park AvenueColumbus, Ohio 43206614-223-1444614-300-5123mark('a k afantari s. com

MARK R. BROWN (0081941)303 East Broad StreetColumbus, Ohio 43215614-236-6590614-236-6956mbroNNm @law. capital. ed u

Counsel for RelatorSteven Linnabary

MICIIAEL DEWINEAttorney General of Ohio

ERIC E. MURPHY'F (0083284)State Solicitor

*C'ounsel ofRecordMICHAEL J. HENDERSHOT (0081842)Chief Deputy SolicitorSTEPHEN P. CARNEY (0063460)Deputy SolicitorKRISTOPHER J. ARMSTRONG (0077799)Assistant Attorriey General30 East Broad Street, 17th FloorColumbus, Ohio 43215614-466-8980614-466-5087 faxeri c.rxiurphy(&,ohioattorneygen eral. gov

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Counsel for RespondentJon Husted, Ohio Secretary of State

TABLE OF CONTENTS

Page

TABLE OFCONTENTS ................. •. . . ....... ......... ........................... . ................... A

TABLE OF AUTHORITIES ................................... . . . .. .................. ......... . ............... ....,..... iii

INTRODUCTION ....................................... .... . ... , .. ........................................... .... ........... l

STATEMENT OF THE CASE AND FACTS ................................................................................6

A. Ohio requires petition circulators to disclose if they are paid, providing openness to

the Secretary and to voters when they ultimately vote on the candidate or issue ................6

B. Linnabary and his Libertarian Party chose neither to challenge the law nor to complywith it. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . 7

C. A protest was filed, and the Secretary deterniined that Lin.nabary's failure to complywith the Disclosure Law invalidated enough of his signatures to remove him fromthe bal lot ....... ...... ... .................................... ......... . ... ..... ........................ ............ .. . . .... ... 8

D. The Libertarian Party and Earl-Clark added claims about the Disclosure Law to anongoing federal case, and Linnabary filed this mandanlus case just days later. Thefederal court has just rejected the Libertarian Party's constitutional claims . ......................9

ARGUMENT ............................... .... ....................................................... .... ................1 I

A. Linnabary's last-minute litigation is too late, and that i s reason enough to say no. .......... 11

B. The Disclosure Law requires circulators to identify any party that "ernployed" them,meaning anyone who paid for their services, regardless of the cireulator's status asindependent contractor or employee for other legal purposes . .......................................... -15

1. The statute's plain meaning of "employ" covers all payors, as confirmed bythe statute's purpose arid by case law . .................................... .............................15

2. The Secretary's administrative interpretation of the Disclosure Law is entitledto deference . . ................................. ...... ......... .............................. ....... ........20

C. Linnabary's other attempts to avoid the Disclosure Law's application all fail . ................23

1. Linnabary's part-petitions neither strictly complied with the Disclosure Lawnor substantially cornplied. ....... .............................................. . ..... . ..............23

2. Linnabary's attack on the protestor's standing to challenge his candidacymisreads the statute, and is irrelevant anyway because the Secretary of Statecan disqualify part-petitions for non-compliance without a protest. .........>..........24

3. The doctrine of constitutional avoidance does not apply or help Linnabary.........28

a. Linnabary's "reservation" of federal claims is invalid . ................. ...........28

b. Constitutional avoidance does not apply here . ......... ...............................29

c. Linnabary's constitutional arguments are wrong .......................................30

CONCLUSION ...................... ...... ...... .............................................. .. .............. .35

CE]2TIFICATE OF SERVICE

APPENDIX:

Opinion and Order, United States District Court, Southern District of OhioEastem Division, March 19, 2014 ......... .................................................................Exhibit 1

ii

TABLE OF AUTHORITIES

CASESPage(s)

Akron v. Rowland,

67 Ohio St. 3d 374 (1993) .... ......... ............................................................ .................... 30

Amet•ican Civil Liberties Union v. HelleY,378 F.3d 979 (9th Cir. 2004) .......... ................... .....:.................................. ......... .......... 33

Blankenship v. Blackwell,

341 F. Supp. 2d 911 (2004) .......................................................................................... 6,19

Bostic v. Connor,37 Ohio St. 3c1 144 (1988)..... ..... ..:.......................................... ...,>................................... 18

Buckley v. American Constitutional Law Foundation,

525 U.S. 182 (1999)..... ..........................,. ....................................... ....,.... ............. 32, 33

Citizens in Charge v. Brunner,689 F. Supp. 2d 992 (S.D. Ohio 2010) ................. ............................................................ 32

Clark v. Martinez,

543 U.S. 371 (2005) .......................................................................................................... 31

Councell v. Douglas,

163 Ohio St. 292 (1955) ........ ................................................. ...................................... 18

Fi•eedom Rd. Found v. Ohio Dept, of Liqiior Control,

80 Ohio St. 3d 202 (1997) .......................... .............,.............................................. ,........ 13

In Ye Protest of Brooks,

155 Ohio App. 3d 370, 2003-Ohio-6348 (3d Dist.)....... . ................................................. 19

In re Protest qf Evans,

2006-Ohio-4690 (10th Dist.) ................................................... :........ ...................... passan2

King v. Housel,52 Ohio St. 3d 228 ( 1990) ......... ................................................................ ....... ......... 18

Libertarian Party Uf'L?Qhio v. }1"usled,No. 2:13-cv-953 (Mar. 19; 2014) .................................. ... ...... .................................;.. pcrs.sim

Marshall v. Aaron,

15 Ohio St. 3d 48 (1984) ......... ................................................. . .,.................................... 18

Metropolitan Property & Liab. Ins. Co. v. Kott,62 Ohio St. 2d 114 (1980) ........................:........................................................................ 13

iii

National Organization for Marriage v. 11cKee,

666 F. Supp. 2d 193 (D. Me. 2009) ................................................... ......... ......... .......... 32

Paschal v. Cuyahoga Cty. Bd of Elections,74 Ohio St. 3d 141 (1995).............................................. . .................................................. 12

Rothenherg v. Husted,129 Ohio St. 3d 447, 2011-Ohio-4003 ........................... .....>... ................................. passirn

San Remo Motel, L. P. v. City & Cozinty of SanFNancisco,545 U.S. 323 (2005) ...............:.......................................................................................... 30

Smith v. L andfair,135 Ohio St. 3d 89, 2012-Ohio-5692 .................................................................>............... 30

State ex rel. Ascani v. Stark Cty. Bd of Elections,

83 Ohio St. 3d 490 (1998) ..................................................................................................16

State ex rel, Cleveland Right to Life v. State of Ohio Controlling Bd.,138 Ohio St. 3d 57, 2013-Ohio-5632 ................................................................................ 11

State ex rel. C.'olvin v. Brunner,120 Ohio St. 3d 110, 2008-Ohio-5041 ........................................................................ 17,22

Stute cx rel. Conatnittee for the Referendum of Lorain Ord. No. 77-07 v. LorainCty. Bcl of Elections,96 Ohio St. 3d 308, 2002-Ohio-4194......... . .................................................. . ................... 24

State ex rel. Davis v. Summit Cty, Bd. Of Blections,137 Ohio St. 3d 222, 2013-Ohio-1533 ....... ......... ........................................................... 29

State ex rel. Evans v. Blackwell,11 I Ohio St. 3d 437, 2006-Ohio-5439 .......................................................... ................... 11

State ex Yel. IIamilton Cty. Bd. Uf Comm'rs v. Harnilton Cty. Court of CofnnaonPleas,

126 Ohio St. 3d 111, 2010-Ohio-2467 .............................................................................. 18

State ex r-el. Landis v. Morrow Cty. Bd ofElections,

88 Ohio St.3d. 187 (2000).................................................................................................. 12

State ex rel. Lucas Cty. Republican Party Executive Commt, v. Brunner,125 Ohio St. 3d 427, 2010-Ohio-1873 .................. ..................................................... 17,22

State ex rel. Polo v. Cuyahoga Cty. Bd. of F,lections,74 Ohio St. 3d 143 (1995) ......................................................... ........................................16

State ex rel. 7'hurn v. Cuyahoga Cty, Bcl of Elections,72 Ohio St. 3d 289 (1995)....... ...................................................................... .................. 11

iv

,S'tate ex rel. Varnau v. Wenninger,

131 Ohio St. 3d 169, 2012-Ohio-224 ................................................. ........; .................... 28

State ex rel. Vickers v. Sunzmit Cty. Council,

97 Ohio St. 3d 204, 2002-Ohio-5583 ........................................................... ................... 24

Stale ex rel. YlPaterrs v. Spaeth,

131 Ohio St.3d 55, 2012-Ohio-69 ........................ ..............................................,............. 16

7axpauyer^s fal° the Animas-La Plata I2eferenduin v. Animas-La Plata WaterConveY,sancy Dist.,739 F.2d 1472 (lOth Cir. 1984) ^......................................... . ........................................... 34

United States v. Apel,

134 S. Ct. 1144 (2014) .................................................................. ........................... 31

Washington Initiatives Noiu v. Rippie,213 F.3d 1132 (9th Cir. 2000) ....................................... .................... ......... ................... 33

Zukowski v. I3runner.

125 Ohio St. 3d 53, 2010-Ohio-1652 ......... ......... ........,...........,....................................... 28

STATUTES

R.C. 109.33 ..................................................... .................................................................... . 17

R.C. 309.09(B) ............... ...... ....... .......................................................................................... 17

R.C. 309.09(B)(1) ........................................................ . .. ................................................... 17

R.C. 3501.38 .... ...... ................ ............................................................... ... .................. 24

R.C. 3501.38(E) .......................................... ............... ........................................ . passim

R.C. 3501.381(A)(1) .......................... .......................................................................................... 16

R.C. 3501.39(A)(3) ...................................... .............. ...... ............................................. 25

R.C. 3513.05 ......................... .... .. .................................................. ....... ......... ............ 8,26

R.C. 3513.261 ............ ...................................... ..... ....... ................................................. 24

R.C.,3515.05 ......... ..... . ....... . ....... .................. ............................ ......... ............... 27

v

OTHER AUTHORITIES

150 Ohio Laws (IV) 5,293 (effective March 31, 2005) ................................................................ 19

Fedet°al.Juj-isdiclivn, § 12.03 at 808 (5th ed. 2007) .......................................................... .......... 30

Oh. Sec'y St. Directive 2010-31 (Feb. 22, 2010) ......................................................................... 13

Oh. Sec'y St. Directive 2011-22 (July 7, 2011) ................................................... ....... 24

Oh. Sec'y St. Directive 2013-17 (Sept. 3, 2013) .......................................................................... 22

Ohio Atty. Gen. Op. No. 2006-004 ............. ......... ...................................................................... 19

C1xf'oYd English Dictionary (2d. ed. 1989) .................................................... ..,........................... 16

vi

INTROI?UCTION

This is a simple case about a candidate who did not follow the law-a law that is plain in

its meaning, that is easy to comply with, and that serves an. important purpose. The law at issue,

R.C. 3501.38(E)(1) (the "Disclosure Law"), governs petitions to get candidates or issues on the

ballot, and it requires those who circulate petitions to disclose who, if anyone, paid them: "the

circulator shall identify the circulator's name, the address of the circulator's permanent

residence, and the name and address of the person employing the circulator to circulate the

petition, if any." Id. Filling out that information is simple enough: Other circulators routinely

do it, and a paid circulator in this case offered to comply-but he did not, and the part-petitions

were filed anyway.

And the law is important, as both Ohio's Tenth District and a federal district court found

in rejecting constitutional challenges to the ]aw-with the federal court ruling just yesterday in a

case related to this one. The Tenth District explained, "this type of disclosure makes sense given

the legislature's intent to curb fraud and dishonesty in the petition process," so the "disclosure

requirement, as a general matter, directly serve[s] substantial government interests." In re

Protest ofEvans, 2006-Ohio-4690 ¶¶ 45, 47 (10th 17ist.) (French, J.). The federal court likewise

found that the Disclosure Law is "substantially related, to Ohio's sigtiificant interest in deterring

and preventing fraud in the candidate petition process." Libertarian Party of Olzio v. Hi:isted,

No. 2:13-cv-953 (Mar. 19, 2014) (attached as Appx. 1).

Relator Steven Linnabary, a would-be Libertarian candidate, did not follow the law, and

now asks this Court to grant him relief, claiming that the law does not apply to his paid

circulators, because they were employed as "independent contractors" and not as "employees" as

that terni is used for certain other legal purposes. The Secretary of State, Respondent here,

removed him from the ballot after a protest hearing showed, and a hearing officer concluded, that

Linnabary's paid circulators did not comply. The invalidation of those part-petitions left

Linnabary with too few signatures to qualify. He asks this Court to order the Secretary to restore

him to the ballot, btit the Court should say no, for several reasons.

First, Linnabary is too late. Although he filed here right after he was renioved from the

ballot, he should have knoNvn long ago that this issue was brewing. But he sat for months until

now, when the election is upon us. The statute has been on the books for years, and was applied

in both Evans, 2006-Ohio-4690, and Rothenberg v. llusted, 129 Ohio St. 3d 447, 2011-C)hio-

4003. But Linnabary did not act in November, when he knew he would run, or in December,

when his paid circulator sought the advice of the circulator's payor-employer, the Libertarian

Party, regarding the Disclosure Law. He did not run to court, as his par-ty had already done on

his behalf about another petition-circulator issue. Instead, the party either affirmatively told the

circulator not to fill it out, as the circulator testified, or the party left the issue open, perhaps to

decide later, as was also suggested. Either way, the information was never filled in, and

Linnabary filed the non-compliant petitions in December. Now, as the election process is

beginning-regular absentee ballots are mailed April 1, and ballots to military voters go out this

Saturday, March 22-L'znnabary asks the Court to order a change. The Court has repeatedly

applied laches in denying writs souglit in election cases after delays of a week or a few weeks,

and it should do so here.

Second, the Disclosure Law applies to all paid circulators, as all are "employed" when

they are paid to do a job, regardless of whether they might be "employees" or "independent

contractors" for other legal purposes. The plain meaning of "employ" covers everyone, and so

do other election laws, as well as other uses of "employ" in Ohio law. Nothing in the I)isclosure

Law suggests limiting its application. and indeed, the law would be rendered meaningless if

everyone could avoid it by employing "independent contractors." In fact, it is 4vell-known in

2

political circles that most or all paid petition circulators are short-term contractors, because of the

work's nature, and formal "employees"-in the sense Linnabary defines them-rarely, if ever,

exist. So Linnabary's reading makes no sense. And courts have repeatedly indicated that the

law applies to "independent contractors," in Evans, Rothenberg, and now Libertarian Party. On

top of all that, the Secretary's administrative interpretation deserves deference.

Third, Linnabary is not helped by his grab bag of other attempts to evade the Disclosure

Law. His claim of "substantial compliance" fails, not only because strict compliance applies

here, but because he did not "substantially" comply. His forn2s did not list the wrong payor, or

the xvrong address; the line was intentionally lef blank. Vi-%hatever "substantial" compliance

might mean in other cases, it cannot cover a blank Iine and still have any meaning.

Nor can he avoid the whole problem by attacking the protestor's right to bring this

challenge, as the issue now is whether Linn.abary has a clear legal right to be on the ballot despite

his noncompliance; this is not an appeal in which "standing" below matters. Or, even if a live

issue, Linnabary cannot say that the Secretary had a clear legal duty not to consider the problems

of Linna:bary"s noncompliance, or a duty to turn a blind eye. And in the end, the protestor was a

valid protestor, as he was eligible by Linnabary's own view to be a circulator, and the idea that

party membership for challenges is narrower than for circulation filids no support in law or logic.

Linnabary also fails in trying to invoke the doctrine of constitutional avoidance: He

argues that applying the Disclosure Law to his paid circulators as "independent contractors"

might violate the First Am.endment or due process, so the statute must be interpreted his way to

avoid that problem.. Notably, he does not allege a true constitutional claim, as he insists he

"reserves his federal Constitutional arguments to challenge in federal court." Linnabary Br. at 15

n.7. And in fact, his party and another candidate have litigated those claims in federal court, and

just yesterday, the federal district court rejected those claims. LibeytaNian Party, Appx. 1.

3

His constitutional avoidance claim fails for many reasons. This is a mandamus case, so

he must show a clear legal duty; that means he must show that the statute clearly supports him

or, perhaps if he raised a true constitutional claim, that the constitution clearly supports him. He

cannot claim that an allegedly 2inclear statute and tinclear constitutional claim add up to a clear

legal duty. Equally important, he cannot explain how his reading even avoids the alleged

constitutional problem, as any right to hide payor identity, if it existed, would apply to all paid

circulators, not to "independent contractors" only and not to "formal employees."

And the Disclosure Law is constitutional, as the federal court held in ruling against

Ohio's Libertarian Party, and as the Tenth District held, too. It does "not significantly burden

political speech, and the requirements are substantially related to a significant govemment

interest." Libertarian Parly, Appx. 1, at 22; see Evans, 2006-Ohio--4690 TT 47, 50 (it "directly

serve[s] substantial government interests" and is constittitional). The Disclosure Law does not

violate due process by being "retroactively" applied to independent contractors; both Evans and

Rothenberg said it applied to everyone. As the federal court noted, the "notion that independent

contractors are exempt from the disclosure requirement appears to be little more than urban

legend based on a misreading of Rothenberg." Libeytcrriara Party, Appx. 1, at 25.

In sum, all of these implausible legal claims are simply a last-minute clean-up effort after

getting caught in a deliberate attempt to evade the law. Linnabary's ally, would-be gubernatorial

candidate Charlie Earl, publicly explained that he recognized that the law was clear: "On the

face of it, the way the law is written, I can't say I disagree with [Secretary] Husted's ruling."

Columbus Dispatch, Mar. 8, 2014 at B4. Given that clarity, we do not know tirhy L'zzulabary and

the Libertarians defied the law so blatantly, when compliance was so simple. But that lack of

cornpliance matters.

4

This matters because giving Linnabary a free pass now would greatly harm our system,

both in giving relief after evasion, and in gutting Ohio's Disclosure Law. It is not about whether

he gets on the ballot. Rather, it is harrnful to grant relief to any party tivho adopts the "seek

forgiveness, not permission" approach-that is, one who seeks to avoid a law rather than seek

clarity on the front end-as it encourages more of the sanle. And reading the Disclosure Law his

way would not just allow him on the ballot as a candidate today, but would essentially eliminate

the Law as to all candidates and ballot issues, so that Ohioans would no longer know who pays

for ballot access in our political system.

For these and other reasons below, the Court should deny the writ, and allow Ohio's

Disclosure Law to apply as written.

5

STATEMENT OF THE CASE AND FACTS

A. Ohio requires petition circulators to disclose if they are paid, providing openness tothe Secretary and to voters when they ultimately vote on the candidate or issue.

Ohio adopted the Disclosure Law after discovering significant problems, including fraud,

that occurred during Ralph Nader's 2004 presidential candidacy, and specifically regarding his

circulation of petitions to try to qualify for the ballot in Ohio. Both state and federal courts

acknowledged those problems. In Evans, the Tennth District noted that the Discl.osure Law was a

response to "rampant fraud perpetrated by petition circulators during the 2004 election in Oliio."

Evans, 2006-Ohio-4690 T 27. And, as Evans quoted, id, a federal court had also cited the

"numerous and substantial instances of fraud on the part of petition circulators" for Nader,

l3lankenship v. Blackwell, 341 F. Supp. 2d 911, 923 (2004). The federal court in the current

parallel case has likewise found that the Nader problems led to the lavv. Libertarian Purty,

Appx. 1, at 5.

In response to those problems and others, the Governor called a special session of the

Ohio General Assembly to reform Ohio's campaign finance and other electiori laws. Evczns,

2006-Ohio-4690 T 28 (citing Ohio Atty. Gen. Op. No. 2006-004, at 2 (Feb. 13, 2006)). During

that special session, the Assembly amended R.C. 3501.38(E)(1) to include a requirement that

paid circulators identify the source of their payments.

Since its enactment, circulators have routinely followed the Disclosure Law. Matt

Damschroder, Nvho now serves as Ohio's Deputy Assistant Secretary of State and Director of

Elections; and previously served as the pranlflin County Board of Elections' Director and Deputy

Director, has detailed that compliance. "It has been my experience that most circulators who are

paid for their work accurately complete the `employer box' on their part-petitions." Secretary's

Ev. Ex. A, Daznschroder Aff. ¶ 3. Brandon Lynaugh, who runs a firm that provides petition-

circulating services, among other things, testified in the parallel federal case that compliance is

6

simple and routine, and the court found his testimony "credible"and "deserv[ing] some weight."

Libertarian Party, Appx. 1, at 18-21.

The Disclosure Law's enforcement has also been litigated. As detailed in the legal

arguznent below, the Tenth District invalidated ballot-initiative petitions wllere the circulators did

provide payor information, but provided information regarding an entity that the court found to

be the wrong payor. Evans, 2006-Ohio-4690, IiT, 9, 30. And in Rothenberg, this Court addressed

a challenge to petitions based on the Disclosure Law, and although the Court rejected the

challenge on the facts there, it showed that the law was in force. Rothenberg, 2011 -Ohio-4003.

The Disclosure Law requires that the information be provided on the forn-i when it is

submitted, so it may be filled in just before filing with the Secretary. The in.formation does not

need to be completed before circulation, so nothing in the law requires disclosure to would-be

signers of the petition. Evans, 2006-Ohio-4690 '(i 45. Thus, the information is available after

filing to the Secretary, or to any would-be challengers who wish to protest that the information is

incorrect. And it is available to any voters who simply wish to know, in. considering whether to

vote for a candidate or issue, who might have paid to advance that candidate or issue.

D. Linnabary and his Libertarian Party chose neither to challenge the law nor tocomply with it.

Relator Steven Linnabary sought to become a candidate in the Libertarian Party's

primary, seeking to become the Libertarian nominee to run f.or Attorney General in 2014. The

Libertarian Party hired paid circulators to obtain the 500 valid signatures that Linnabary needed

to qualify for the primary ballot. The Party also paid those circulators to obtain signatures for

Charles 1?,ari and Sherry Clark, who sought to become the Libertarian Party's joint candidates for

Governor and Lieutenant Governor.

Oscar Hatchett, Jr., and Sara Hart were paid to circulate the petitions for Linnabary and

Earl-Clark. Hatchett was unsure about completing the payor inforrnation on his and Hart's

7

petitions, so he spoke to Robert Bridges, Political Director of the Libertarian Party, who told him

not to provide that information. Specifically, Hatchett said, "I just asked him, if I should fill it

out (the paid circulator statement) and he said I didn't." Linnabary's Ev. Ex. C, Hearing

Transcript at 95; see also id. at 97. Hatchett also suggested that it was left an open issue, and

that he told Bridges the he remained available to fill in the information later. Id. at 96. Bridges

said that he did not give specific instructions not to fill out the form. Id at 62. In the end, the

part-petitions circulated by Hatcliett and Hart that were later submitted by Linnabary (and Earl-

Clark) for filing with the Secretary of State did not include the inform.ation revealing the riazne

and address of the person who paid them to circulate the petitions. E.g., Secretary's Ev. Ex. B-2,

at 30-31.

Linnabary and Earl-Clark filed their nominating petitions with Secretary of State Husted,

and, on February 18, 2014, the Secretary certified Linnabary as a candidate for Attorney General

(and certified Earl-Clark as joint candidates for Governor and L'zeutenant Governor).

Linnabary's Ev. Ex. B, Hearing Officer's Report at 1,

C. A protest was filed, and the Secretary determined that Linnabary's failure tocomply with the Disclosure Law invalidated enough of his signatures to remove himfronl the ballot.

Exercising his statutory right to challenge this candidacy, Carl Michael Akers timely filed

a protest against the certification of Linnahary. (Gregory Felsoci and Tyler K:ing timely fi_led

protests against the Earl-Clark joint candidacy.)

The Secretary of State appointed Professor Brad Smith as a hearing officer, and on March

4, 2014, Smith held a hearing pursuant to R.C. 3513.05. At the hearing, King withdrew his

protest against the Earl-Clark joint candidacy. The remaining protestors clainied that the

petitions submitted by both Linnabary and Earl-Clark failed to comply with the Disclosure Law

because Hatchett, a paid circulator, failed to "identify the name and address of the person

8

employing the circulator to circulate the petition." Linnabary Ev. Ex. B at 2. Felsoci raised the

same claim about part-petitions circulated by Sara Hart on behalf of Earl-Clark. Icl. Both

protestors also claimed that some of the part-petitions circulated on behalf of the two challenged

candidacies were circulated by individuals who were not members of the Libertarian Party. Id

at 3.

On March 7, Professor Smith issued his report and recommendation to the Secretary of

State. Professor Smith rejected the claim that the part-petitions were circulated by individuals

who were not members of the Libertarian Party. Id. at 17. However, Professor Smith sustained

the protests against Earl-Clark and Linnabary, finding that the paid circulators failed to disclose

their employers as required by R.C. 3501.38(E)(1). Id. at 18. On the same day, Secretary of

State I-Iusted adopted the report and recommendation of Professor Smith and upheld the protest.

Thus, Secretary Husted determined that:

[T]he signatures gathered for Steven R. Linnabary by circulator Hatchett,and signatures gathered for Charles R. Earl and Sherry L. Clark by circulatorsHatchett and Hart are invalid and, as a result, neither Steven R. Linnabary, norCharles R. Earl and Sherry L. Clark have the requisite number of valid signatures tobe elzgiblefor nomination as Libertarian candidates for the offices of AttorneyGeneral and Governor and Lt. Govcrnor, respectively, at the May 6, 2014 PrimaryElection.

Linnabary Ev. Ex. A, 2.

D. The Libertarian Party and Earl-Clark added claims about the Disclosure Law to anongoing federal case, and Linnabary filed this mandamus case just days later. Thefederal court has just rejected the Libertarian Party's constitutional claims.

On March 7, 2014, the same day that the Secretary removed the candidates from the

ballot, the Libertarian Party and Earl-Clark challenged that act in federal court, by adding that

claim to an ongoing lawsuit. "I'he party and Earl-Clark had sued the Secretary in 2013,

challenging Ohio's system for minor-party ballot access, and specifically challenging a law

requiring petition circulators to be Ohio r.esidents. On March 7, they filed an amended complaint

9

adding claims challenging the Disclosure Law on federal constitutional and state-law grounds,

and seeking a preliminary injunction.

The following Monday. March 10, Linnabary filed this mandainus case in this Court,

through the same counsel who represent the Libertarian Party in the federal case.

Yesterday, March 19, the federal court rejected the Libertarian Party's constitutional

claims, and denied the request for preliminary injunction. Libertarian Party, Appx. 1, at 22.

Relevant details of that holding are included in the argument below. In short, the court rejected

both a First Amendment claim and a due process claim based on alleged retroactive application;

in other words, the court rejected both of the claims that Linnabary invokes here as part of his

argument for constitutional avoidance. See id.; see Linnabary Br. at 15-23. 'I'he Party and Earl-

Clark are appealing that ruling.

lo

ARGUMENT

Linnabary seeks a wr.it of mandamus, which requires him to show, by clear and

convincing evidence, "(1) a clear legal right to the requested relief, (2) a clear legal duty on the

part of the relevant agency or governmental unit to provide it, and (3) the lack of an adequate

remedy in the ordinary course of the law." State ex Yel. Cleveland Right to Life, v. State of Ohio

Controlling Bd., 138 Ohio St. 3d 57, 2013-Ohio-56322. Linnabary fails to show a clear legal

right or duty here. The Secretary agrees that at this point, a vvrit is the proper remedy rather than

any legal remedy, but notes that Linnabary's earlier options, as detailed below, might have

included legal remedies as well as an earlier-filed writ action. But his duty to file earlier falls

under the defense of laches, or delay, rather than under the adequate-remedy-at-Ia`v prong.

Separately, Linnabary perhaps should proceed in prohibition rather than mandamus, but

the question is academic, because his lack of entitlement to any writ is straightforward. That is,

the Court has previously held that "prohibition-and not mandamus-[is] the appropriate

remedy when [a] statutory protest procedure" is available before the Secretary of State. State ex

rel. Evans v, Blacfiti,ell; 111 Ohio St. 3d 437, 2006-Ohio-5439 TI 27; see also State ex rel. Thurn

v. Cuyahoga Cty. Bcl of `lections, 72 Ohio St. 3d 289, 291 (1995) ("mandamus does not lie" in

regard to hearing involving "quasi-judicial authority in dezlying [the] protest and deciding to

place the proposed ordinances on the ballot"). The Court in Thurn converted, sua sponte, a

mandamus request into one for prohibition, but it need not do so. But again, it does not matter,

because Linnabary is not entitled to any writ, of any type, because he is wrong on the law.

A. Linnabary's last-minute litigation is too late, and that is reason enough to say no.

Linnabary's request should be denied for the simple reason that he has filed too late to be

entitled to an extraordirtary writ in an election case.

Il

This Court has repeatedly applied laches, the equitable doctrine requiring parties not to

delay and sit on their rights, with particular force in elections cases-especially those seeking to

change who is on the ballot on election eve. See, e.g., State ex rel. Landis v. Morrow Cty. Bd. Uf

Mections, 88 Ohio St.3d187, 189 (2000) (22-day delay barred expedited elections matter);

Paschal v. Cuyahoga Cty. Bd of Elections, 74 Ohio St. 3d 141 (1995) (election cases require

"extreme diligence") State ex rel. Polo v. Cuyahoga Cty. Bd of Elections, 74 Ohio St. 3d 143

(1995); State ea: yel. Ascani v. Stazk Ct3^ Bd of Elections, 83 Ohio St. 3d 490, 493-94 (1998). ln

those cases, the Court rejected parties who waited as little as nine days (Paschal) and seventeen

days (Polo) from when they should have known to press their rights.

In holding parties to high expectations for timing, the Court has looked at both ends of

the tirneline-how long did the party wait once it knew it should act, and how close did the party

allow ballot printing or other deadlines to loom before acting? Here, Linnabary fails on both

ends, as he should have acted months ago, and the election process is underway.

First, while Linnabary did file this case on Monday, March 10, just after the Secretary

ruled against him on priday, March 7, he was woefully late because he knew or should have

known of this issue long ago. He does not ask this Court to review particular facts of his

situation, or anything that grew out of the recent hearing. Instead, this is a pure statutory dispute:

He says the statute does not cover paid circulators who operate as "independent contractors," but

tlie Secretary says it does cover thein-and that is a longstanding position.

The Disclosure Law has been on the books since 2005, see Ohio Atty. Gen. Op.

No. 2006-004 at 1, and Linnabary could have started an action to interpret the statute any time

since. He certainly need not have waited until the eve of the primary election to seek statutory

interpretation. As soon as he decided to run, he almost certainly could have sought a statutory

interpretation through a declaratory judgment. See, e.g., FYeedanz Rd. Found v. Ohio Dept. of

12

Liquor Control, 80 Ohio St. 3d 202, 204 (1997) (seeking "[j]udicial construction of' a statute

that would "resolve whether" an agency "correctly interpreted" the statute") (Cook, J.) (plurality

opinion); 1Wetf•opolitan Pyoperty & Liab. Ins. Co. v. .ts;ott, 62 Ohio St. 2d 114, 115 (1980)

(reviewing declaratotv judgment interpreting statute). Or perhaps he could have sought a writ at

an appropriate point.

The Court need not decide which path was his best path, and the Court need not decide

precisely when he should have acted. All it need decide is that he sliould have done something,

somehow, earlier than now. And that much is plain from the timeline.

Linnabary has known about the Disclosure Law since at least early 2010. In that year,

Lizulabary sought tlj-e Libertarian nomination for U.S. Senate in the May primary. Like his 2014

efforts, Linnabary collected signatures for that nomination. As a result, then Secretary of State

Jennifer Bruner instructed the local boards of election about counting the part petitions

Linnabary submitted. See Oh. Sec'y St. Directive 2010-31 (Feb. 22, 2010). That Directive told

the boards that a part petition "must contain" the "nanle and address" of the "employer who has

employed the circulator to circulate the petition." Id. at 1. Lizmabary has know-n since 2010 that

circulators who are hired to perform that task must disclose soyneone as the "person employing"

them. R.C.3501.38(I;).

Thus, once Linnabary decided to become a candidate, it was his job to learn what laws he

had to follow, and he could have raised any questions last fall, whether in November or

December or whenever he began to plan his petition circulation.

Most important, Linnabary had indisputable knowledge of this issue regarding part-

petitions in December, when a hired circulator called to ask about complying ^rith the statute.

That circulator testified during the protest that he asked for advice about the forrn while

collecting signatures in December 2013, and he said that the Libertarian Party official told him

13

that he need not fill in the employer box mandated by R.C. 3501.38(E). Linnabary Ev. Ex. C at

95-97. True, the circulator did hedge that acknowledgement by suggesting that there was

perhaps no affirmative instruction from the Party not to fill out the form, but merely an absence

of any instruction, leaving him to his own devices to leave it blank. Id. And the party official

said that he did not instruct the circulator either way. Id. at 62. But it matters not whether the

instruction was direct or absent, as it is undisputed that the party and Linnabary accepted the

petitions from the circulator and filed them without ensuring cnnixrliance, and that alone was

negligence at best, if not deliberate evasion of the law.

And again, Linnabary need not have even resorted to litigation, given the Secretary's

affirniation of the Disclosure Law's scope in I:.nthenberg. Linnabary's choice to make this an

expedited election matter now, instead of seeking court guidance (or make a pllone call) a few

weeks ago, bars his request for extraordinary relief.

Not only did Linnabary wait too long from when he should have acted, but his delay has

also put us up against the beginning of the election. While the primary election is on May 6,

absentee ballots will be mailed to regular absentee voters as early as April 1. Further, ballots to

military voters will be sent on March 22--just two days away from this filing, and. likely already

passed by the time the Court rules. See Ascani, 83 Ohio St. 3d at 493-94("[B]y the time the

expedited briefing schedule was completed, the date for providing absentee ballots had passed.")

Everyone in the process-the Secretary, candidates, this Court and all courts-should not

want more of this tactic in the future, regardless of the particular legal issue. Earlier, calmer

resolution-with more time for deliberation, and the ability to fix a problem before deadlines

have passed-is in everyone's interest. Eveti i.f; at best, Linitabary and his party were merely

negligent as to their legal duties, that is still something to discourage. They created this problern;

they must live with the consequences.

14

That is reason enough to deny the requested writ, and the Court should.

B. The Disclosure Law requires circulators to identify any party that "employed"them, meaning anvone who paid for their services, regardless of the circulator'sstatus as independent contractor or employee for other legal purposes.

If the Court looks beyond Linnabary's delay and addresses the merits, he is still not

entitled to a vvrit, as he cannot show a clear legal right to be on the ballot after his failure to

comply with the Disclosure Law. Linnabary says that he did not have to comply because the

statute applies only to those paid circulators who become "employees" of their payors, in the

sense of being on a payroll with tax withholding and other indicia used in other areas of law that

distinguish between employees and "independent contractors." But he is wrong, as the

Disclosure Law applies to all paid circulators, as all are "employed" when they are paid to do a

job, regardless of the nature of the legal relationship for other purposes.

1. The statute's plain meaning of "employ" covers all payors, as confirmed bythe statute's purpose and by case law.

First, the Disclosure Law reaches all paid circulators because the plain meaning of

"employ" is "to hire," whether as an employee or an itidependent contractor. See, e,g., Qxford

hnglish Dictionary (2d. ed. 1989) (defining employ as: "To use the services of (a persoTa) in. a

professional capacity, or in the transaction of some special business, to have or rnainta7n

(persons) in one's service.''). To "employ" covers far more than the act of making someone an

employee. It includes "to use," to "deploy," and to "hire" (even as an independent contractor).

It is therefore common to say that a client employs an attorney or a homeowner employs a

plumber, even though neither the attorney nor the plumber becomes an employee. This

straightforward meaning of the text is what the General Assembly intended, and no further

interpretation is needed.

The plainness of tlie text ends this case. Because Linnabary must show that the Secretary

had a "clear legal duty" to read the statute differently, State ex rel. TTIczters v. Spaeth, 131 Ohio

15

St.3d 55, 2012-Ohio-69 `[ 6, he cannot prevail by offering any argument that the text is

ambiguous, vague, or open to interpretation. Instead, he must prove that the statute can be read

only as equating "employ" with "make an employee." But all signs point to the opposite, that

employ means hire, and nothing more. That interpretation is confirmed in several ways.

First, it accords with other election statutes. Revised Code 3501.38](A)(1) requires

those who will "receive compensation" to supervise, manage, or organize petition circulators file

with the Secretary of State disclosing that fact. These are the people or entities who "employ"

the petition circulators mentioned in R.C. 3501.38(E). The statute's language of "supervising,

nlanaging, or otherwise organizing" gives broad. meaning to "eniploy" in R.C. 3501.38(E.), and

that means that the two laws, which work together, cannot be limited to only a certain type of

employer-employee relationship. Election statutes, like all statutes on the same subject, must be

construed "in pari materia," and "must be construed together to give full effect to the

provisions." State ex rel. Lucas Cty. Republican Party ExectltiveCommt. v. Brunner, 125 Ohio

St. 3d 427, 2010-O11io-1873 ^j14; State ex rel. Colvin v. Brunner, 120 Ohio St. 3d 110, 2008-

Ohio-5041 ¶ 46. If all employing entities that hire petition circulators must disclose their role as

payors to the Secretary of State, it makes no sense to read the Disclosure Law to require only

some of the corresporxding payees to report. That is especially so given the short-term nature of

petition circulation. In that context, independent contractors are apparently the norm, and few if

any "employees," in the sense Linnabary advocates, even exist.

Second, it is consistent with other non-election statutes. The General Assembly used

ccenlploy" in the D1sclosLlre Law just as it has in other statutes to mean "hire," not "make one an

employee." Consider R.C. 309.09(B), which empowers township trustees to "employ" special

counsel. That surely does not mean that trustees hire special counsel as employees in the sense

of having them as full-time, on-staff counsel, especially when the statute specifies that they niay

16

be retained for "a particular matter." See R.C. 309.09(B)(1) ("When the board of township

trustees finds it advisable or necessary to have additional legal counsel, it may ernploy an

czttorney other than the township law director or the prosecuting attorney of the county, either for

a particular matter or on an annual basis, to represer.t the township and its officers, boards, and

commissions in their official capacities and to advise them on legal matters.'') (emphasis added).

Likewise, R.C. 109.33 authorizes the Attorney General to "employ" experts, but he does

not make them traditional employees. See R.C. 109.33 ("'I'he attorney general may also employ

experts for assistance in any specific matter at a reasonable rate of compensation."). When the

Attorney General hires special-counsel attorneys or experts for litigation or investigation, he

employs them in the same sense as candidates or their supporters employ petition circulators

under the Disclosure Law.

'l'hirtl, it is consistent with this Court's cases outside of elections litigation. When this

Court confronted questions about the special-prosecutor statute, it used "employ" in the same

broad sense as in the Disclosure Law when describing the relationship between a county and a

special-counsel attomey. State ex rel. Hccrnilton Cty. Bd. of Con2mrs u. Hamilton Cty. Coi.crt of

Common Pleas, 126 Ohio St. 3d 111, 2010-Ohio-2467 Ti 23 (describing the statute as authorizing

the board of county conmmissioners to "employ an attorney"). The special prosecutors in that

case were never the employees of the Hamilton County Commissioners. And when the Court

considered the ethical rule about dividing lawyers' fees, it described the transaction as one

attorney "enaploying" another even though the rule covered only those attorneys not in an

employer-employee relationship. See King v. I-Iousel, 52 Ohio St. 3d 228 syl. T 1 (1990) ("An

attorney who employs another attorney to assist him in the representation of a client has a duty to

fully disclose to his client the fee agreement with the employed attorney.").

17

Those are not isolated examples. When this Court describes the difference between an

employee and an independent contractor, it repeatedly draws the line between "emplover and

employee" on one hand and "employer and independent contractor" on the other. Marshall v.

AaNon, 15 Ohio St. 3d 48, 49 (1984) (emphasis added); see also Bostic v. Connor, 37 Ohio St. 3d

144, 146 (1988) (collecting cases); Councell v. Douglas, 163 Ohio St. 292 syl. T 1 (1955). In

light of that consistent usage, reading "person employing" as referring exclusively to an

employer-employee relationships with all the tax and other regulatory implications it entails is

implausible. Indeed, as a matter of statutory construction-which always seeks the General

Assembly's izitent-reading the statute that way is unimaginable.

Fourth, reading the Disclosure Law to cover all paid circulators is consistent with

legislative intent, while reading it Linnabary's way undennines the statute dramatically.

R.C. 1.49 (directing courts to examine "[t]he object sought to be attained" when statutes are

axnbiguous). Ohio enacted the Disclosure Law in 2005 after encountering "widespread" fraud

"ainong petition circulators" during the 2004 election cycle. Blankenship v. Blackwell, 341 F.

Supp. 2d 911, 923 (S.D. Ohio 2004); appeal disnaissed as moot 429 p.3d 254 (2005). One factor

contributing to the frau.d was "the payment of petition circulators." Ohio Atty. Gen. Op.

No. 2006-004 at 2. The General Assembly responded to these problems with, among other

requirements, the payor identification obligation for petition circulators who are "employed"

(paid) to collect petition signatures. 150 Ohio Laws (IV) 5,293 (effective March 31, 2005) (Am.

Sub.1-1.B. 1, "to revise the campaign finance law").

With that backdrop, the goal of the legislation is to require "the disclosure of the person

or entity paying a circulator," particularly "the entity that not only directly controls the manner

and means of the circulator's work, but also directly pays the circulator." In re Protest of Evans,

2006-Ohio-4690 ^ 29 (F'rench, J.); ef. In re Protest qf Brooks, 155 Ohio App. 3d 370, 2003-

18

Ohio-6348 ^, 48 (3d Dist.) (affirming invalidation of part petition for "invalid" payor address)

(Cupp, J.). It mak-es little sense to read the statute as requiring only the disclosure of those who

employ circulators as long-ternl employees with benefits and tax corisequences. `I'hat narrow

reach simply does not map to the reality of paid circulators. Petition gathering is episodic; few

people or entities "employ" full-time petition gatherers like they do teachers, engineers,

machinists, or computer programmers. If the statute is to have any force, it must require

disclosure of those who control the circulators and pay them, even if only as "independent

contractors." In re 1'rotest of Evans at ^ 20.

Fifth, both the Tenth District in Evans and this Court in Rothenberg eonfirzned, directlv

or indirectly, that the Disclosure Law applies to independent contractors. In Evans, the question

was whether the circulators complied when they failed to list Arno Political Consultants, the

signature-gathering firm that directly engaged the circulators, aaid the circulators instead listed

the American Cancer Society, the once-removed entity that paid Amo to gather signatures.

Evans, 2006-Ohio-4690 T 20. The court held that Amo was the proper emplover to list, so the

failure to list Arno was fatal, and the petitions wereinvalidated. Id. ^(TI 1, 5-6. Critically, that

was so even though, as the coitrt noted, Arno "retained and paid [the] circulators as independent

contractors." Id. Ii 20 (emphasis added).

Linnabary m.istakenly relies on. Evans as supporting him, based on some discussion of

traditional employmeiit principles regarding degree of control, as in full employment

relationships versus independent contractors. Linnabary Br. at 9-12; Eiyans, 2006-Ohio-4690

¶S 16-19. But that discussion was to show that ACS was plainly not the right employer, and to

show that Amo, as compared to ACS, was the one directly engagirtg the circulators. Evans

caiinot possibly be read to support Linnabary's view that independent contractors need not list

any payor, or the outcome in Evans would have been different. If the independent contractors in

19

Evans did not have to list anyone, by virtue of that independent status, then they did not need to

list Arno or the American Cancer Society. Their choice to mistakenly list American Cancer

Society would not have been held against them if they had no duty to list anyone, so their

petitions would have been approved, not invalidated. The Evans holding was that the failure to

list Arno was fatal, even though Arno "retained and paid [the] circulators as independent

contractoY.r," id. !i 20 (emphasis added), and that supports the Secretary, not Linnabary.

This Court's RothenbeYg decision is also consistent with the Secretary's view. To be

sure, the Court did not face the precise question of independent contractors who did not list

anyone, as here, but the Court did say it was proper for such independent contractors to list their

contractual payors: "Part-petitions of compensated circulators are not improperly verified and

subject to invalidation simply because the circulators, who might actually be independent

contractors, listed the ezitity or individual engaging or paying them to circulate the petition as

`the person employing' them." 2011-Ohio-4003 T 2. In addition, tlie Court noted that "the

secretary of state's construction of the applicable statutory provisions is reasonable and is

entitled to deference," id., and the Secretary's position there was the same as here: The

Disclosure Law covers all paid circulators.

In sum, the statute's plain meaning, purpose, and case law all support the Secretary, and

surely show that there cannot be a "clear legal duty" going the other way. And if any doubt

remained, the issue identified in Rothenberg-deference to the Secretary-seals the deal, as

explained below.

2. The Secretary's administrative interpretation `of the Disclosure Law isentitled to deference.

Even if the text a.nd case law did not answer the question, administrative deference to the

Secretary's interpretation of the statute would. This Court has long deferred to the Secretary's

interpretation. of elections statutes. And the Secretary has interpreted this very statute both in a

20

directive to local boards of elections and in litigation before this Court. These interpretations-

which long predate Linnabary's need to know what the statue means-bar any claim that the

Secretary has a clear legal duty to change his interpretation of the statute on the eve of an

election.

Indeed, the Court has already resolved the question at the heart of the petition. As noted

above, in Rothenberg, it deferred to the Secretary's interpretation of this very provision. 2011-

Ohio-4003 J[ 2. While the decision refers only briefly to the contractor status, approving

contractors' listing of payors, the Secretary's brief further confirms that such listing is required,

not just allowed. Specifically, tlie brief explains that the Disclosure Law provides no "exemption

from the disclosure requirement for circulators who are `independent contractors."' Br. of the

Secretary of State in Rothenberg v. Husted, No. 2011-1344 at 1(Aug. 9, 2011). That dooms the

request for a NvTit even without the several persuasive reasons that "employed" cannot mean

"made an employee o£"

The Court's deference in Rothenberg followed a w€ll-worn path. "[W]ell-settled

precedent" dictates that courts "must defer to" the Secretary's "reasonable interpretation[s]" of

election laws. State ex Nel. Colvin v. Bi-ut.anet°, 120 Ohio St. 3d 110, 200$-Ohio-5041 T., 57

(collecting cases); Rothenberg, 2011-nhio-4003 ^, 2. The separation-of-powers principles that

inform that deference are in full bloom in this case because the Court has already deferred to the

Secretary's interpretation of this statute. See id. And the deference owed the Secretary is amped

still further because Linnabary seeks election-eve statutory interpretation in a posture that

demands he prove a clear legal duty by the Secretary to view the statute a.s he does. In

maiidamus, showing a clear legal duty on the part of the Secretary means proving that he

"engaged in fraud, corruption, or abuse of discretion or acted. in clear disregard of applicable

legal provisions." State ex r°el. Ohio Libeyty Council v. Brunner, 125 Ohio St. 3d 315, 2010-

21

Ohio-1845 '[ 30. Eveii if the statute were unclear (and it is not), it is hard to see how there could

be abuse of discretion or clear disregard in the Secretary's choosing one of two plausible

meanings of an election statute, when this Court had already affirzned the reasonableness of the

Secretary's view. See .Lucas County ¶¶ 23-24; Rothenberg, 2011-Ohio-4003 ¶ 2.

After Rothenberg, the current Secretary again interpreted the relevant statute. See

Directive 2013-17. That Directive instructs that if a "circulator was elnployed to circulate the

petition" it must list the employer's name and address, and "[i]f a circulator identifies an

employer on the circulator's statement but does not provide a coiTesponding address, the Board

must invalidate the entire part-petition." Oh. Sec'y St. Directive 2013-17 at 2 (Sept. 3, 2013)

(instructions for initiative petitions, but interpreting the same statutory language). That

interpretation confrms this Court's holding in Rothenberg. And it gave Linnabary yet another

reminder that if he had a problem with the legal requirement that paid circulators disclose the

name of their payor, he should have challenged the requirement before the election machinery

for the 2014 primary was up and running.

One last point about administrative deference. Reading the statute to excuse compliance

by independent contractors would contradict the axiom that "in mandamus proceedings, the

creati.on of the legal duty that a relator seeks to enforce is the distinct function of the legislative

branch of government, and courts are not authorized to create the legal duty." Z;ucas Count,7J,

19 (citations omitted). This Court has already recognized that the Disclosure Law is the kind

of statute where administrative deference is appropriate. Rothenberg, 2011-Ohio-4003 2.

Issuing a writ in this case would therefore create, not enforce, a duty--specifically, a duty to

ignore the Disclosure Law's better reading----despite the General Assembly's decision to require

circulators to disclose who paid them and despite the General Assembly's decision to leave to

the Secretary, not the cour-ts; the administrative task of interpreting any open questions in that

22

command. The Secretary has no clear legal duty to act contrary to the wishes of the General

Assembly and to this Court's earlier deference to his interpretation of the statute.

C. Linnabary's otl ►er attempts to avoid the Disclosure Law's application all fail.

Aside from clainling that the Disclosure Law actually does not apply to him, Linnabary

offers several other rationalizations to excuse his non-compliance, invalidate the hearing

procedurally, or stretch the statute's meaning by quasi-constitutional claizns. Those all fail.

1. Linnabary's part-petitions neither strictly complied with the Disclosure Lawnor substantially complied.

Limlabary mistakenly claims that he is required only to "substar7tially comply" with the

Disclosure Law, and that he has done so. He is wrong on both counts. This law requires strict

compliance, and even if did not, leaving the relevant part of the form entirely blank is not even

close to "substantial" conlpliance.

First, the Court has long held that strict compliance is the default for election laws, and

that is lowered oilly if the provision at issue says so: "The settled rule is that election laws are

mandatory and require strict co.m.pliance and that substantial compliance is acceptable only when

an election provision expressly states that it is." State ex r-el Vickers v. Summit Cty. Council, 97

Ohio St. 3d 204, 2002-Ohio-5583 ^ 32 (cluoting State ex rel. Cosnnfittee for the Referenclum of

Lorain Ord. No. 77-01 v. Lor-ain Cty. Bd. Uf Elections, 96 Ohio St. 3d 308, 2002-Ohio-4194

149). The Disclosure Law does not expressly state that substantial compliance is acceptable.

R.C. 3501.38; see also Oh. Sec'y St. Directive 2011-22 (July 7, 2011) (in which the Secretary

publicly stated tliat R.C. 3501.38 requires strict compliance).

Linnabary of course cannot find arny lowering of the standard in the Disclosure Law

itself, so he mistakenly seeks to rely on R.C. 3513.261, a completely different statute, which

does expressly state that candidates need only "substantially ... follow[]" it. And he cites State

ex Yel: Osborn v. Fai^field County Boarci of Elections, 65 Ohio St. 3d 194195 (1992), which

23

also considered a statute expressly requiring only "substantial" compliartce. But neither the other

statute nor Osborn helps him, as under Vickers, any lowering from strict to substantial

compliance must be indicated by the actual proWsion at issue, namely, the Disclosure Law.

Moreover, even if substantial compliance x,ere the standard, a paid circulator's simply

leaving the employer statement blank would not amount to substantial compliance-it would

amount to no compliance. Even if an independent contractor who listed him- or herself as the

"employer" would somehow have a claim to substantial compliance, one who simply ignored the

requirement altogether does not. Mistakenly believing you do not have to comply, or forgetting

to comply, is not substantially complying. In the end, though, this debate is academic, because

the statute requires strict compliance.

2. Linnabary's attack on the protestor's standing to challenge his candidacymisreads the statute, and is irrelevant anyway because the Secretary of Statecan disqualify part-petitions for non-compliance without a protest.

Linnabary fares no better in seeking to undercut the legitimacy of the Secretary's hearing

by claimizig that the protestor, Carl Michael Akers, was not a member of the Libertarian Party of

Ohio, and that Akers therefore lacked standing to file the protest, and that therefore everything

flowing from it wasinvalid. This is not an appeal of a decision below, in which lack of standing

is a fatal defect. This is an extraordinary writ case, so he must still show that he has an ultimate

clear legal right to be on the ballot, to earn that as relief. Even if Akers's status as a challenger

could be undermined (and it cannot), that does not excuse Linnabary's noncompliance with the

Disclosure Law.

Or, at most, if standing in the administrative process could be challenged in mandamus, it

would still be framed in terms of mandamus, so Linnabary would have to prove, by clear and

convincing evidence, that the Secretary had a clear legal duty not to consider the protest. And

even if he could show that the Secretary was required to reject the Akers-initiated protest, that

24

still gets Linnabary nowhere, as he cannot show that the Secretary had a clear legal duty not to

investigate and act upon Linnabary's non-compliance once he learned of it. But nothing in the

law prevents the Secretary from acting when he learns of a problem, from whatever means; to

the contrary, he has broad discretionary power. See R.C. 3501.39(A)(3); Ohio Atty. Gen. Op.

No. 2006-004 syl. 1; 3. Consequently, Liiu^ahary's argument regarding Akers's status is

irrelevant, as Linnabary cannot deny that the Secretary could have enforced the Disclosure Law

anyway. Whether he would have discovered the issue or acted as a factual matter, without

Akers's protest, does not change that.

Moreover, Akers was a valid protestor under Ohio law, and any doubts should be

resolved, as with the merits issue, in favor of the Secretary's reasonable reading of the statute.

The protest statute, R.C. 3513.05, Paragraph 13, provides that:

Protests against the candidacy of any person filing a declaration of candidacy forparty nomination or for election to an office or position, as provided in this section,may be filed by any qualified electoy° u,ho is a meinber of'the saTne political payty asthe candidate and who is eligible to vote at the pi°itnaiy election foNthe candidatewhose declaration of candidacy the elector objects to ....

R.C. 3513.05, ^ 13 (emphasis added). Paragraph 13 provides no further definition of what it

means to be a "member of the same political party" as the candidate. However, six paragraphs

earlier, in 11'aragraph 7, R.C. 3513.05 provides that:

For purposes of signing or circulating a petition of candidacy for party nominationor election, an elector is considered to be a member of a political party if the electorvoted in that party's primary election within the preceding two ca.lendaryears. or ifthe elector did not vote in any other party's primary election within the precedingtwo calendar years.

R.C. 3513.05, ^ 7. Under this definition, a voter who has not voted in any party's primary within

the previous two calendar years is a member of the party whose petition the voter signs or

circulates. Based on Professor Smith's report, the Secretary found here that, in the absence of

any indication in the Revised Code that the General Assembly had a contrary intent, this

25

definitioii also "provides a logical place to look" when interpreting "member of the same

political party" in Paragraph 13. Linnabary Ev. Ex. B at 9. Under that definition, Akers had

standing to file the protest. Id.

In contrast to the Secretary's reasonable interpretation of the statute, Linnabary argues

that the definition for protests must be narrower than for circulators and signers. That is, he says

a looser statutory definition. of "party member" (those who have not voted in aily primary in the

preceding two calendar years) applies only to circulators and signers of petitions, but that a

stricter definition-taken not from the Ohio Revised Code, but from the LPO's own bylaws-

applies to protestors of those same petitions. Linnabary wants, and needs, to have it both ways,

with a strict meaning for protestor standing but a loose one for circulators. Without that

anomalous treatment, Linnabary has no claim to be on the ballot, because his petition circulators

would undoubtedly not qualify as Libertarian Party members under his self-created definition.

That would lead to the absurd result that many voters could circulate petitions-----or even run as

candidates-but be excluded from the narrow set of people eligible to challenge them. And that

anomaly would apply not just in odd cases like this, but in the typical case, in which a rival

primary candidate and her supporters seek to invalidate another candidate. In such cases,

perhaps none of the rival's circulators, or even the candidate herself, could stand up and protest,

because that power would be limited to those blessed by party bylaws.

Moreover, the Revised Code contains no support for such importation of bylaws into

Paragraph 13 of R.C. 3515.05, let alone a clear legal right to have party member defined that

way. Linnabary's statutory parsing is mistaken. He says that if the "unaffiliated voter"

definition applied to protestors, then the portion of Paragraph 13 requiring protestors to be

"members of the same political party as the candidate" would be supertluous. A protestor must

be: (1) a qualified elector; (2) a member of the same political party as the candidate; and (3)

26

eligible to vote at the primary election for the candidate. Any qualified elector is "eligible to vote

at the upcoming primary," whether or not they have voted in another party's primary within the

last two years. That is, anyone who voted in another party's primary is eligible to switch gears

on primary day, and cannot switch in advance in Ohio. Voting in a different party's primary is

how a voter changes his or her party affiliation. Requiring the protestor to also be a`tmember of

the party" therefore adds an additional requirement beyond eligibility to vote in the upcoming

primary; it requires that the protestor have voted in the party's primary or not have voted in

another party's primary within the last two years. Thus, the phrase is not surplusage. And in any

event, Linnabary cannot show that the General Assembly clearly meant for "party member"' to

be narrower for protestors than for circulators, so he cannot show a clear legal duty to reject this

protest.

None of the cases that Linnabary cites help his cause. In two cases, the would-be

protestors were candidates outside the party tivhose process they sought to protest; one was

another party's candidate and one was an independent. See Zukovvski v. 13runner, 125 Ohio St.

3d 53, 2010-Ohio-1652 T 9(Republican candidate sought to protest Democratic candidacy);

.Stcrte ex rel. Varnau v. Wenninger, 131 Ohio St, 3d 1 G9, 2012-Ohio-224 T 18 (independent

candidate sought to protest a party's candidate). Of course, a Republican cannot be a Democrat

to challenge a Deniocrat. That says nothing about whether a previously unaffiliated voter can

legitimately become a party member for protest purposes before arriving at the primary to

confirm his new view.

Finally, Linnabary is not helped-but the Secretary is-- -by State ex rel. Davis v. Summit

Cay. Bd of Elections, 137 Ohio St. 3d 222, 2013-Ohio-1533 ^ 17. Davis applied a`°good faith"

standard to party disaffiliation, where a former party member sought to disavow his party and

run as an independent. Linnabary tries to distinguish party czffilicrtion from party clisqffiliation,

27

arguing that a party may not prevent people from leaving on good faith, but it can lock the door

and keep him out by using a tighter standard. The better view is that a voter's good faith lets him

enter or exit a party, and that supports the Secretary. At a minimum, though, Davis does not

support Linnabary.

3. The doctrine of constitutional avoidance does not apply or help Linnabary.

Finally, Lirulabary seeks to buttress his statutory argument by appealing to the doctrine of

constitutional avoidance, claiming that the Disclosure Law must be read his way to avoid

constitutional problems that would arise if the Law continued to apply as the Secretary and

several courts have read it. Notably, he does not raise actual constitutional claims, and expressly

disclaims that he is doing so, saying he reserves those for federal court. He does not specify

whether he means the federal case that his Party has just lost in federal court (and that his Party

is appealing), or if he thinks he can still go to federal court separately later. But in any case, that

disclaimer is invalid, as detailed below.

More important, his argument fails, first, because constitutional avoidance does not apply

in this situation, and, second, because he does not raise any valid constitutional concerns, even

for avoidatice purposes, as the federal court just found.

a. Linnabary's "reservation" of federal claims is invalid.

Linnabarry wants to have it both ways---to suggest constitutional problems without

proving them, but to "reserve," Br. at 15 n.7, any real arguments he has for a federal court.

Linnabary cannot leave his constitutional arguments for another day. Aside from whether he is

de facto a party to his Party's federal case (an issue that can. be set aside for now), he must bring

any valid federal claims, if he had any, here and now. England reservation is misplaced, as that

is a "procedure to be followed in Pulln2an abstention situations." Erwin Chemerinsky, Federal

JuNisdiction, § 12.03 at 808 (5th ed. 2007). It does not give a litigant license to divide federal

28

and state claims at will (a tactic barred by principles of preclusion); it merely gives litigants who

chose a federal forum the right to reserve federal claims ifabstention principles send their federal

case to state court. See, e.g., San Reyno Hotel, L.P. v. City & C'oasnty of San Francisco, 545 U.S.

323, 339 (2005) (holding in England allowed plaintiff to "reserve his right to return to federal

court" if "a federal court abstains from deciding a federal constitutional issue to enable t11e state

courts to address an antecedent state-law issue"). Thus, by not raising his federal claims openly,

he has waived them. ( f Smithv. Landfair, 135 Ohio St. 3d 89, 2012-Ohio-5692 j( 13 (declining

to rule on. a"constitutional issue that [was] not before" the Court).

b. Constitutional avoidance does not apply here.

The doctrine of constitutional avoidance, as a statutory canon, requires several elements.

First, the statute must first be susceptible of either competing interpretation as a fair reading.

Second, one reading must render the statute unconstitutional or at least raise serious

constitutional problems. Third, the other reading must avoid the constitutional problem.

Linnabary fails on all counts.

First, as shown above, Linnabary's view of the statute is not even a plausible one, as

there is no basis for reading an "independent contractor exemption" into the Disclosure Law.

This Court will not avoid a constitutional question "under the guise of construction"' when that

interpretation bears no "reasonable relation to the language." Akron v. RoM>Zanci, 67 Ohio St. 3d

374, 380 (1993). Thus, the "canon of constitutional avoidance comes into play only when., after

the application of ordinary textual analysis, the statute is found to be susceptible of more than

one construetion ...." Clark iy. llfartinez, 543 U.S. 371, 381 (2005). And even if it were

ambiguous somehow, using this approach also does not mesh with the mandainus context, `vhich

requires a clear legal duty or right, not an anibiguous rigllt that gets nudged into clarity by other

29

canons. In other words, Linnabary seeks to combine an allegation of an unclear statute with an

unclear (or less-than-conclusively-established) constitutional claim to arrive at a clear legal duty.

Second, as shown in part 3-c below, Linnabary does not show that the plain reading (i.e.,

that employ means employ) raises serious constitutional doubts.

Finally, Linnabary does not show his proposed alternate interpretation (that employ

means make an employee) actually solves his imagined constitutional problems of campaign

disclosures for those who pay petition circulators. That is, if there were a constitutional problem

with rcquiring disclosure, that should logically apply to all paid circulators, regardless of their

contractual status. Surely First Amendment rights of circulators do not vary based on whether

they take full staff positions. Put another way, exempting independent contractors does not

preserve the law's constitutionality; it would remain unconstitutional for those "full employees"

who are not litigants today.

In sum, the canon is "not a method of adjudicating constitutional questions by other

means" and is not a license to "`interpret"' statutes by gerrymandering them" in a way that

"happens to describe a party's case." United States v. Apel, 134 S. Ct. 1144, 1153 (2014)

(rejecting effort to "repackage" a First Amendment objection as a statutory interpretation

argument based on constitutional avoidance").

c. Linnabary's constitutional arguments are wrong.

Linnabary's argument fails because the statute does not implicate substantial

constitutional problems. The avoidance doctrine only kicks in if a competing interpretation

"raises serious constitutional doubts." Clark; 543 U.S.1a.t 381 (emphasis added). Here, the law is

constitutional-as the federal court just found in rejecting the Libertarian Party's claims.

Libet°taYian Party, Appx. I at 22, 24.

30

"States ... have considerable leeway to protect the integrity and reliability of ... election

processes generally." Buckley v. A,naericanConstitutionalLcrw Foundation, 525 U.S. 182, 191

(1999). The State interest in disclosure of who pays petition circulators is strong and well

recognized. In Buckley, the Supreme Court aff rzned a decision upholding a State's requirements

for "the disclosure of payors, in particular, proponents' names and the total amount they have

spent to collect signatures for their petitions." 525 U.S. at 202 (emphasis in original). The Court

specifically noted the state's "substantial interest" in such disclosure, stating that: "Through the

disclosure requirements that remain in place, voters are informed of the source and amount of

money spent by proponents to get a measure on the ballot; in other words, voters will be told

`who has proposed [a measure],' and `who has provided funds for its circulation. "' M. at 203.

Summarizing its holding, the Court "reiterate[d] [that], the State legitimately requires sponsors of

ballot initiatives to disclose who pays petition circulators, and how much." Id: at 205 (emphasis

added); see also, e.g., National Organization for Marriexge v. McKee, 666 F. Supp. 2d 193, 205

(D. Me. 2009) (Buckley "said that a state could require the sponsors of ballot initiatives to

disclose the identities of those paying petition circulators and how much they paid.").

Linnabary's suggestion (again, he raises no actual constitutional claim) that the

Disclosure Law violates the First Amendment cannot be squared with Buckley and cases

applying it. The cases he cites distinguish themselves. Citizens in Charge v. Brunner, 689 F.

Supp. 2d 992 (S.D. Ohio 2010), related to committees, and struck down required disclosure of

anzounts paid (not at issue here) of ballor or initiative petitions (not at issue here). The court

quotes Buckley^ when it noted that "ballot initiatives do not involve the risk of `quid pro quo'

corruption present when money is paid to, or for, candidates." Id. (citations omitted).

The same is true of (WIN) tVushington Initiatives Now v. Rippie, 213 F.3d 1132, 1139

(9th Cir. 2000). After observing that a State's interest in combatting fraud is ziot as heightened in

^1

the context of initiative campaigns as it is in candidate contests (citing Buckley), the Court

explained how that case differed from Linnabary's; "The State's interest in educating voters

through campaign finance disclosure is more adequately served by a panoply of the State's other

requirements that have not been challenged. Tlu•ough [another, unchallenged section of law],

`voters are informed of the source and amoimt of money spent by proponents to get a measure on

the ballot; in other words, voters [can learn] who has proposed a measure and who has provided

funds for its circulation. "' .Id. (citation omitted) (emphasis added).

American Civil Liberties Union v. 7ireller°, 378 F.3d 979 (9th Cir. 2004), is equally

unhelpful, as it addressed regulation of electioneering materials themselves, not the funding of

petitions. There, the Court explained the distinction between "campaign statutes that go beyond

requiring the reporting of funds used to finance speech to affect the content of' the

communication itself." .lcl. at 987 (noting the "distinction between direct regulation of the

content of political speech," which was prohibited, "and requiring the later reporting of the

funding of speech," which was permitted) (emphasis original).

I,innabarry's authorities do not help him. Nor does his failure to offer evidence that the

Disclosure Statute actually affects the ability to gather signatures. Indeed, the evidence points

the opposite way. Libertarian Pariy, Appx. 1 at 21.

Linnabary's other quasi-constitutional claim-that the law is being applied retroactively

and thus violates due process--fares no better. Neither the requirement to comply strictly nor

the requirement of independent contractors to disclose the entity paying them to circulate

petitions is being applied retroactively, for the same reasons that Linnabary's claim is barred by

the doctrine of laches (see Section A, above): Linnabary knew or should have known of both

requirements before beginning his petition circulation efforts.

32

Retroactive statutes are those that destroy a substantial or vested right. S'ee, e.g.,

Taxpayers for the Animas-La I'lata Referendunn v. Animas-I a Plata Water° C'onversancy Dist.,

739 F.2d 1472 ( lOth Cir. 1984) ("[T]he Supreme Court decisions reveal the necessity of

asserting an impact upon `vested rights' in claims founded upon the retroactivity of legislation in

violation of the United States Constitution."). Linnabary cannot demonstrate that he has a vested

right not to comply with Ohio law.

As established above, the Secretary's interpretation of the Disclosure Law is consistent

with long-standing case law and directives. ;In Evans, the Tentll District held that the correct

employer to be listed on the form as the circulators' "employer" under R.C. 3501.38(E)(1) was

the professional petition-circulating company (Arno) that actually employed them. And the

court in Evans made is absolutely clear that Arno employed the circulators as independent

contractors. In r°e Protest of'Evans, 2006-Ohio-4690 Ti 20-21, 23.

Then, in Rothenberg, this Court held that "Part-petitions of conipensated circulators are

not improperly verified and subject to invalidation simply because the circulators, who nlight

actually be independent contractors, listed the entity or individual engaging or paying them to

circulate the petition as `the person employing' them." .i`d. '; 2. Rothenberg establishes that the

circulator's status as an "independent contractor" or an "employee" for employment law

purposes is irrelevant to the definition of "employer" under the Disclostire Law. See id.

Rothenhey-g does not hold that it is permissible for the circulator's identification of his or her

employer to be incorrect (as Plaintiffs argue), but rather that the circulator's listing of the paying

entity as his or her "employer" is not iaacorrect--even if the circulator is engaged as an

independent contractor. See id. Lizunabary has therefore been on notzce since Evans was decided

in 2006, and from later notifications, that cornpliance with the Disclosure Law is required and

that independent-contractor circulators must disclose who is paying them.

33

Linnabary's reliance on Directive 2006-5 8 and Directive 2007-14 to justify a retroactivity

argument regarding strict compliance with this requirement is misplaced in light of Directive

2011-22, which reads:

"Election laws are mandatory and require strict compliance, and substantialcompliance is acceptable only when an election provision says that it is. &ate exirel. Vickers v. Sunarrzit Cty. Council, (2002) 97 Ohio St.3d 204. . . . R.C. 3501.38and R.C. 3519.05 do not say that substantial compliance is permissible.Accordingly, the law requires strict compliance."

(Oh. Sec'y St. Directive 201 l-22(July 7, 2011)). Similarly, Directive 2013-17, issued over five

months ago, reiterated that "[i]f a circulator identifies an employer on the circulator's statement

but does not provide a corresponding address, the Board must invalidate the entire part-petition."

(Oh. See'y St. Directive 2013-17).

This is not a case of "moving the goalposts." Rather, the Disclosure Law's application in

this case is entirely consistent with Evans (2006), Rothenberg (2011), and the Secretary"s own

2011 and 2013 directives. Linnabary's claim of unconstitutional retroactivity therefore fails.

34

CONCLUSION

The Court should deny the writ.

Respectfully Submitted,

MICHAEL DEWINEAttozl-iey Gen4of O

ERIC E. MU 2 )State Solicitor

*Courzsel ofRecordMICHAEL J. HENDERSHOT (0081.842)Chief Deputy SolicitorSTEPHEN P. CARNEY (0063460)Deputy SolicitorKRISTOPI-IER J. ARMSTRONG (0077799)Assistant Attorney General30 East Broad StTeet, 17th FloorColumbus, Ohio 43215614-466-8980614-466-5087 faxeric.rnurphy@ohioattorneygeneral.gov

Counsel for RespondentJon Husted, Ohio Secretary of State

35

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Merit 13rief of Respondent Ton Husted was

served by e-mail this 20th day of March, 2014, upon the following counsel:

Mark G. Kafantarismark ci. kafantaris.com

Mark R. Brownmbrown@law.capital.edu

Counsel for RelatorSteven Linnabary

Eric E. MurphyState Solicitor

APPENDIX

EXHIBIT I

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF OHIO

EASTERN CttVlSlON

Libertarian Party of Ohio, et al.,

Plaintiffs,

V. Case No. 2:13-cv--953

Jon A. Husted, Judge Michael H. WatsonOhio Secretary of State,

Defendant.

OPINION AND ORDER

Plaintiffs bring claims under 42 U.S.C. § 1983, asserting Defendant Ohio

Secretary of State Jon Husted ("Secretary Husted") violated their First

Amendment rights when he disqualified their nominating petitions to appear on

the May 2014 Ohio primary ballot. Secretary Husted disqualified the petitions

because paid circulators who obtained signatures for Plaintiffs' nominating

petitions failed to disclose the name and address of the entity that paid them in

the "employer information box" on the petitions as required by Ohio Revised

Code § 3501.38{E}(1 ). In their third motion for a prelirninarify injunction, Plaintiffs

ask the Court to enjoin Secretary Husted from enforcing § 3501.38(E)(1) and

order him to include them as candidates for statewide office for the Libertarian

Party of Ohio on the May 2014 primary ballot. The Court DENIES Plaintiffs' third

motion for a preliminary injunction because § 35€31.38(E)(1 ) places only a minimal

burden on political speech and the disclosures it requires are substantially related

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Ohio's significant interest in deterring and detecting fraud in the candidate petition

process.

i. BACFG^^^UND

A. The Parties

Four Plaintiffs ffied the original complaint in this case: the Libertarian Party

of Ohio ("LPO"); Kevin 6Knedier; Aaron Harris; and Charlie Earl. The LPO has

previously been a ballot-qua{ified political party in Ohio. LPO candidates have

run for local, statewide, and federal offices since 2008. Keven Knedier is the

Chair of the LPO Executive Committee. Aaron Harris is the Chair of the LPO

Central Committee. Both Knedier and Harris are registered voters and intend to

vote for LPC? candidates in the May 2014 primary election. Charlie Earl seeks to

run as the LPO candidate for Governor of Ohio in the 2014 primary and general

elections.

Defendant Jon Husted is the Ohio Secretary of State. As Secretary, he is

also Ohio's chief elections officer under Ohio Revised Code § 3501.04 and

therefore is charged with the duty to enforce Ohio's election laws, including the

disclosure requirements of Ohio Revised Code § 3501.38(E)(1). Plaintiffs sue

Secretary Husted in his official capacity only.

Intervener Gregory Felsoci's role in this case merits a more detailed

explanation. Felsoci resides in Akron, Ohio and works as a carpenter. He

considers himself a member of the LPO. Felsoci filed one of the successful

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protests with Secretary Husted that resulted in the removal of Plaintiff Earl and

other LPO candrdates from the Ohio May 2014 primary balfot.

Felsoci testified at the evidentiary hearing before this Court on March 13,

2014. His testimony demonstrates that he lacks even a basic understanding of

the nature of the protest he agreed to sign. For example, the guileless dupe

Felsoci repeatedly referred to the misdeed that motivated him to protest Plaintiffs'

petitions as the LPO's gathering of "votes'° without disclosing those who gathered

them were being paid to do so. His decision to act as a protester came about

after a Republican friend7 John Musca, showed hirn an unidentified document

which Musca claimed to have found at a local coffee shop. Felsoci could not as

much as accurately describe the nature of the document Musca showed him and

was at an utter loss to explain why he believed the truth of the assertions the

document contained. He said he believed it because he read it.

Felsoci's Republican friend Musca then asked Felsoci whether he would be

willing to stand by his apparently strong conviction that wrongdoing had occurred

and agree to be contacted by someone to discuss pursuing the matter further.

Soon thereafter, the Zeiger, Tigges & Little law firm contacted Felsoci, and the

protest process at issue was afoot. Felsoci is not paying for the representation of

the Zeiger law firm and does not know who is paying for it.

To state the obvious, Felsoci's testimony, as well as other evidence in the

record, supports an inference that operatives or supporters of the Ohio

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Republican Party orchestrated the protest that Felsoci signed. That inference,

while serving as color commentary. Instead, the Court is called upon to

determine the constitutionality of Ohio Revised Code § 3901.38(E)(1 ) on its face

and as applied. Nonetheless, it seems fair to acknowledge the inference,

especially in light of the fact that Felsoci's attorrleys elicited evidence

demonstrating that the Ohio Democratic Party, or its operatives or supporters,

provided assistance to Plaintiffs in their efforts to gather petition signatures to

qualify for the Ohio May 2014 primary ballot.

B. Ohio Revised Code § 3501.38(E){1 }

The statute at issue states as follows:

On each petition paper, the circulator shall indicate the number ofsignatures contained on it, and shall sign a statement made underpenalty of election falsification that the circulator witnessed the affixingof every signature, that all signers were to the best of the circulator'sknowledge and belief qualified to sign, and that every signature is to thebest of the circulator's knowledge and belief the signature of the personwhose signature it purports to be or of an attorney in fact actingpursuant to section 3501.382 of the Revised Code. On the circulator'sstatement for a declaration of candidacy or nominating petition for aperson seeking to become a statewide candidate or for a statewideinitiative or a statewide referendum petition, the circulator shall identifythe circulator's name, the address of the circulator's permanentresidence, and the name and address of the person employing thecirculator to circulate the petition, if any.

Ohio Rev. Code § 35C19 .38(E)(1) (emphasis added). As a practical matfer, the

statute requires paid circulators of candidate petitions to provide the name and

address of the person or entity who paid them in the "employer information box"

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that appears on the bottom of each part petition form. The circulator does not fill

out the employer information box until after all of the signatures are obtained, and

hence, the people whose signatures the circulator solicits never see the payor

infarrnation. Rather, that information is provided to the Ohio Secretary of State

when the petition is filed.

The Ohio General Assembly enacted this statute, in part, in response to

fraud cammitted by petition circulators who were hired to gather signatures for

Green Party candidate Ralph Nader when he sought to appear as a candidate for

President of the United States in the November 2004 Ohio general election. The

Court will not recount those circumstances of fraud in detail as they are discussed

at length in at least three decisions: Nader v. Blackwell, 646 F.3d 459 (6th Gir.

2008); Blankenship v. Blackwell, 341 F. Supp. 2d 911(S.D. Ohio 2004); In re

Protest of Evans, No. 06AP-544^46, 2006 WL 2590613 (Ohio App. 1 gth Dist.

Sept. 11, 2006). f n a nutshell, the petition circulators that Ralph Nader hired

gathered 14,473 signatures for his candidate petition. The local boards of

elections found only 6,464 of those to be valid. After conducting a thorough

hearing on the protest, then Ohio Secretary of State Kenneth Blackwell

invalidated 2,756 of the those 6,464 signatures. See Nader, 545 P,3d at 462-67.

Although signatures were invalidated for a variety of reasons, 1,956 were

disqualified on this basis of actual fraud. See fcl.

Felsoci and Secretary Husted adduced additional evidence of more recent

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fraud by paid petition circulators at the evidentiary hearing the Court conducted in

this matter. The Court discusses that evidence in detail below in its analysis of

Pieintiffs' facial challenge to the statute.

C. Plairafiiffs Petitions and Intervener's Protest

In November 2013, Oscar Hatchet contacted Robert Bridges, who serves

as the LPO's Political Director and Vice Chair of the LPO's Executive Committee.

Hatchet offered the LPO his services as a professional circulator under the name

Easy Access Petitions ("Easy Access"). Bridges hired Easy Access to collect

signatures for LPO Candidates for Governor and Lieutenant Governcar (Plaintiff

Earl and Sherry L. Clark, respectively) and Ohio Attorney General (Steven R.

Linnabary). In the role of petition circulator, Hatchet acted as an independent

contractor and was not an employee of the LPO.

Hatchet collected 636 signatures for Earl and Clark and 743 for Linnabary.

The LPO paid Easy Access $1,785 for the signatures Hatchet obtained for Earl

and Clark and about $500 for the signatures Hatchet obtained for Linnabary.

Hatchet shipped the petitions to Bridges tnrith the employer information blocks left

blank. At the protest hearing, Hatchet averred he did so after he had a

conversation with Bridges about the need to complete the employer information

blocks, during which Hatchet asked Bridges whether he wanted that portion of the

part petitions filled out. Protest Hr'g Tr. 94-97, ECF No. 83-1. At the hearing in

the instant case, Bridges indicated he did not give Hatchet any instructions as to

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whether to fill out the employee information box, although Bridges believed it was

not necessary to do so because Hatchet was an independent contractor.

The LPO also paid another circulatQr, Sara Hart, to obtain signatures for its

candidates' petitions. It is unclear whether Hart worked for Easy Access, but in

the protest proceeding before Secretary Husted, the parties sfiipu4ated that the

LPO compensated her in some manner for acqLliring signatures. Hart also left

the employee information box blank on the part petitions she submitted to the

LPO.

Earl and Clark filed their nominating petition to appear as the LPO

candidates for Governor and Lieutenant Governor with Secretary Husted on

February 4, 2013. The petition consisted of 191 part petitions with 1,478

signatures. The part petitions were then transmitfed to local boards of elections

to verify the validity of the signatures. The local boards determined that 830 of

the signatures were va0id. Because the number of signatures exceeded the 500

required by Ohio election law, Secretary Husted certified Earl, Clark, and

Linnabary as LPO candidates for the May 2014 Ohio primary election.

Felsoci and two other individuals then filed protests with Secretary Husted

on February 21, 2014. The protesters argued that the LPO candidates failed to

comply with the employer disclosure requirement of Ohio Revised Code

§ 3501.38(E)(1 ). They also asserted the circulators were not members of the

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LPO as required by Ohio revised Code § 3513.05.

Secretary Husted referred the protests to Professor Bradley A. Smith to

conduct a hearing and issue a report and recommendation as to disposition of the

protests. Professor Smith conducted the hearing on March 4, 2014 and issued

his report and recommendation on March 7, 2014. See Report and

Recommendation, ECF No. 57-3.

Professor Smith found that the signatures Hatchet and Hart gathered

violated Ohio Revised Code § 3501.38(E)(1) because they failed to provide the

name and address of the person or entity who paid them in the employer

information box on the part petitions. Id., PAGEID # 1100. Professor Smith

therefore recommended that the part petitions containing those signatures be

ruled invalid. Id. He rejected the protesters' contention that the circulators were

not members of the LPO for the purpose of gathering signatures. Id., PAGEID

#1gg5.

Secretary Husted adopted Professor Smith's report and recommendation

the same day. ECF No. 57-4. As a result of the invalidation of the signatures

gathered by Hatchet and Hart, the LPO candidates no longer had the requisite

500 valid signatures to appear on the May 2014 Ohio primary ballot. Having

failed to qualify for the primary ballot, Earl, Clark, and Linnabary cannot appear

on the ballot for the November 2014 Ohio general election.

Plaintiffs filed their third motion for a preliminary injunction the same day.

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tViot. Prelim. inj., ECF No. 57.

D. Procedural History

From the outset, this case has entailed Plaintiffs' efforts to appear on

Ohio's May 2014 primary ballot and, having done so, the Ohio ballot for the

November 2014 general election. Plaintiffs' claims involve Ohio's requirements

for submitting petitions containing signatures of Ohio voters as a condition to

appearing on the ballot. Thus far, Plaintiffs have successfully overcome two

significant hurdles placed in their paths, First, Plaintiffs successfully moved for a

preliminary injunction asking the Court to enjoin enforcement of Ohio's prohibition

against using petition circulators who reside in states other than Ohio. Mot.

Prelim. lnj., ECF No. 3; Prelim. lnj., ECF No. 18. Second, Plaintiffs sought and

obtained another preliminary injunction enjoining retroactive application of S.B.

193, which stripped Plaintiffs of the opportunity to appear on Ohio's May 2014

primary ba€lot. Second Mot. Prelim. lnj., ECF No. 17; Prelim. Inj., ECF. No. 47.

Piaintiffs t`iled their amended complaint and third motion for preliminary

injunction on March 7, 2014. Am. Co mpl., ECF No. 56; Third Mot. Preiirrt. 1n1.,

ECF No. 57. Felsoci moved to intervene on March 10, 2094. Mot. lntervene,

ECF No. 58.

The Court conducted the informal preliminary conference on Ptaintiffs'third

motion for a prelirninary injunction on March 11, 2014 pursuant to Southern

District of Ohio Civil Rule 65.1 (a). Counsel for all parties were present and

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participated in the conference. As a result of the conference, the Court

scheduled the matter for an evidentiary hearing to take place on March 13, 2014.

Also on March 11, 2014, Felsoci and Secretary Husted filed their memoranda in

opposition to Plaintiffs' third motion for a preliminary injunction. Mem. Op., ECF

Nos. 58, 60.

At the March 13, 2014 evidentiary hearing, the Court heard the testimony

of live Witnesses, subject to cross examination. The Court heard additional

testimony on March 14 and 17, 2014. The parties filed closing briefs on March

18, 20'i 4.

11. STANDARD OF REVIEW

The Court considers and balances four factors when considering a motion

for a preliminary injunction: "'(1) whether the movant has a strong likelihood of

success on the merits; (2) whether the movant would suffer irreparable injury

vcritheut the injunction; (3) whether issuance of the injunction would cause

substantial harm to others; and (4) whether the public interest would be served by

issuance of the injunctian."; Williamson v. Recovery Ltd. P'ship, 731 F.3d 608,

627 (6th Cir. 2013) (quoting Chabec.f of S. Ohio & Congregation Lubavitch v. City

of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004)). The factors are not

prerequisites to injunctive relief; rather, the Court must balance them to determine

whether they weigh in favor of granting an injunction. McNeilly v. Land, 684 F.3d

611, 615 (6th Cir. 2012). The moving party bears the burden of justafying the

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issuance of an injunction, including showing iikelihood of success and irreparable

harm, lrf.

M. DISCUSSION

A. Likelihood of Success

Plaintiffs advance three grounds for their third motion for preliminary

injunction. First, they assert Ohio Revised Code § 3501,39(E)(1 ) is

unconstitutional on its face. Second, Plaintiffs maintain the same statutory

provision is unconstitutional as applied to them. Third, Plaintiffs argue Secretary

Husted changed relevant Ohio law and those changes cannot be applied to

Plaintiffs retroactively. The Court will address these arguments seriatim.

1. Facial Challenge to Ohio Revised Code § 3501.38(E)(1)

Plaintiffs assert that the employer identification requirement of Ohio

Revised Code § 3501.38(E)(1 ) is unconstitutional on its face because it

impermissibly burdens their First Amendment right to engage in political speech.

They contend the statute cannot survive the exacting scrutiny standard as that

standard is applied to such disclosure requirements. That is, Plaintiffs argue the

employer identification requirement in the Ohio statute chills political speech and

is not substantially related to a significant state interest. See Citizens United v.

Fed. Election Camm'n, 558 U.S. 310, 366-67 (2010). Secretary Husted and

Felsoci contend that Plaintiffs' facial challenge fails because the employer

identification requirement places only a minimal burden on Plaintiffs' First

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Amendment rights, and the requirement serves Ohio's significant interest in

detecting and deterring fraud in the signature gathering process.

The Sixth Circuit Court of Appeals recently explained the difference

between facial and as applied challenges:

A facial challenge to a law's constitutionality is an effort "to invalidatethe law in each of its applications, to take the law off the bookscompletely.°" Connection Distrib. Co: v. Holder, 557 F.3d 321, 335 (6thCir. 2009) (en banc); see also Vi1i. of Hoffman Estates v. Flipside,Hoffman Estates, Inc., 455 U.S, 489, 495, n. 5, 102 S.Ct. 1186, 71L.Ed.2d 362 (1982) ("a `f'acia(' chafienge ... means a claim that the lawis `invalid in toto-and therefore incapable of any valid application.,,'(quoting Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39L.Ed.2d 505 (1974))). In contrast to an as-applied challenge, whichargues that a law is unconstitutional as enforced against the plaintiffsbefore the court, a facial challenge "is not an attempt to invalidate thelaw in a discrete setting but an effort `to leave nothing standing[j"'Connection Distrib. Co., 557 F.3d at 335 (en banc) (quoting WarshaiCv. United States, 532 F.3d 521, 528 (6th Cir. 2008} (en banc)).Sustaining a facial attack to the constitutionality of a state law, as thedistrict court did, is momentous and consequential. It is an "exceptianairemedy.'f Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir. 2010).

Speet v. Schuette, 726 F.3d 867, 871-72 (6th Cir. 2013). "<`Facial challenges are

disfavored.°" Citizens United, 588 U.S. at 398 (quoting Wa. State Grange v. Wa.

State Republican Party, 552 U.S. 442, 450 (2008)}.

In support of their contention that Ohio Revised Code § 3501.38{E}(1) is

unconstitutional on its face, Plaintiffs rely primadly on three decisions: Buckley v.

Am. Constitutional Law Found., 525 U.S. 182 (1999); Citizens in Charge v.

Brunner, 689 F. Supp.2d 992 (S.D. Ohio 2010) (Sargus, J.); and (WIN) Wa.

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Initiatives Now ►r. Rippie, 213 F.3d 1132 (9th Cir. 2000).

Plaintiffs assert two rulings in Buckley suggest § 3501.38(E)(1) fails

exacting scrutiny. First, Buckley struck down a provision of a Colorado statute

that required petition circulators to wear badges with their names prominently

displayed. 525 U.S. at 198. Second, the Supreme Court invalidated a Colorado

law that required ballot initiative proponents to submit "detailed monthly

disclosures" of the names and addresses of each paid circulator and the amount

paid to them. Id.

Next, Plaintiffs note that in Citizens in Charge, this Court relied on Buckley

to invalidate an Ohio law that required ballot committees to report the names and

addresses of paid circulators, and the amounts paid to them, ruling the law failed

exacting scrutiny. Citizens in Charge, 689 F. Supp. 2d at 993. The Court

observed that past petition fraud in Ohio did not serve as avafid basis to

distinguish Buckley. Id. In addition, the Court concluded that Ohio's interest in

deterring election fraud was sufficiently served by a separate requirement that all

circulators-paid and unpaid----disclose their names and addresses. fd.

Plaintiffs also rely on the Ninth Circuit's decision in WIN. In that case, the

court struck down a Washington law that required the disclosure of persons who

collect signatures for initiative petitions and the amounts paid to them. Win, 213

F.3d at 1134. The court opined: "We conclude these requirements chill political

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speech protected by the First Amendment, and do not advance any substantial

state interest." Id.

Secretary Husted and Felsoci maintain that none of the three decisions

support Plaintiffs' facial attack. First, they note that all of the cases upon which

Plaintiffs rely entail disclosure requirements for circulators of initdative petitions as

opposed to candidate petition circulators which are at issue in the present case.

They correctly point out that these decisions expressly acknowledged the

significance of that distinction.

The Court in Citizens in Charge explained: "(n Buckley, the Supreme Court

emphasized the difference behveen payments made on behalf of a candidate

compared to those made in support of a referendum. The Court noted that `baliot

initiatives do not involve the risk of `quid pro quo' corruption present when money

is paid to, or for, candidates."' Citizens in Charge, 689 F. Supp 2d at 993-94

(quoting Buckley, 525 U.S. at 203). The court in WIN made the same

observation, quoting the same language from Buckley. WIN, 213 F.3d at 1139.

Second, Secretary Husted and Felsoci note that the state laws at issue in

Buckley, Citizens in Charge, and WIN all required disclosure of the amount of

money paid to each circulator. In Buckley, the Supreme Court upheld the Tenth

Circuit's decision to strike down aCo(orado provision that required "detailed

monthly reports" disclosing the amount of money paid to each circulator.

Buckley, 525 U.S. at 201-(}3. Ohio Revised Code § 3501.38(E)(1) contains no

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such requirement. At the same time, Buckley recognized that the state had a

substantial interest in requiring disclosure of the identities of those who paid

circulators and the total amounts they spent to obtain signatures. Id. at 202, 205.

Moreover, the Court approved of the provision of the Colorado statute that, like

the Ohio statute at issue, required disclosure of the identities of all circulators. Id.

at 198-99.

Similarly, the Ohio statute at issue in Citizens in Charge required disclosure

of the amount paid to each cire€zlator. In distinguishing the Supreme Court's

decision in Citizens United, the Court in Citizens in Charge acknowledged a state

may legitimately require disclosure of the sources of money spent to support

candidates. Citizens in Charge, 689 F. Supp. 2d at 993.

The Washington statute examined in WIN required disclosure of the

identities of only paid petition circulators as well as amounts each of them wrcre

paid. In striking down the law, the court in WIN observed the law targeted paid

circulators for special enforcement but did not require the vame disclosure of the

identities of volunteer circulators. Id. at 1139. In contrast to the law at issue in

WIN, Ohio Revised Code § 3501.39(E)(1) treats paid and volunteer circulators in

precisely the same manner: both must disclose their identities.

Ohio Revised Code § 3501.38(E)(1 ) does not offend any of the

constitutional principles set forth in Buckley, Citizens in Charge, or WIN. To the

contrary, those decisions all recognize that a state may legitimately require

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disclosure of the identities of carididate petition circulators provided paid

circuiators are not singled out for such disc6osure. In addition, a11 three decisions

acknowledge the states' substantial interest in requiring disclosure of the identity

of those who pay petition circulators. Here, the challenged statute goes no

farther than requiring those two items of information after the signatures have

been gathered and before the part petitions are submitted to the Secretary of

State.

The Court also considers the evidence and testimony submitted during the

evidentiary hearing in this matter as it bears on the degree of the burden Ohio

Revised Code § 3501.38(E)(1) places on candidates' and petition circulators'

speech, as well as Ohio's interest in requiring disclosure. Secretary Husted and

Felsoci adduced testimony at the hearing to support their contentions that the

disclosure of the identities of those who pay circulators does not chill political

speech and serves the important state interest of deterring and detecting fraud.

The evidence they presented also shows that instances of fraud by paid

circulators have been significant and continue to occur.

The Court heard the testimony of Matthew Damshroder, Deputy Assistant

Secretary of State, who has worked as the Director of Elections for Secretary

Husted since 2011. He began working for Secretary Husted after serving as a

Director, and later Deputy Director, for the Franklin County, Ohio Board of

Elections, a position he held since 2003. Damshroder explained that the

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employer information box disclosure serves in both the deterrence and detection

of fraud. With regard to the former, he suggested the disclosure provides

motivation to the person or entity paying the individual circulator to ensure that

the circulator is properly educated and informed of the applicable law because a

circulator's improper conduct might reflect negatively on the one who provided

compensation. Darnshroder also indicated that payor information is helpful to

anyone reviewing a petition for fraud because individual circulators are

sometimes difficult to locate, and payors might have more accurate contact

information.

Damshroder also stated that the employer information on the part petitions

provides informatiorr in a form that can be cross-checked with another required

disclosure, Form 14, by wi"tich campaigns disclose expenditures for petition

driues. Notably, while there is no evidence of actual fraud in this case, the cross

checking made possible by the ernpiayef information box on the part petitions,

coupled with the Form 14 disclosure, led to the discovery that Plaintiffs failed to

comply with Ohio Revised Code § 3501.38(E)(1). Damschroder indicated that

local boards af elections and the Secretary do not, on their own initiative,

examine part petitions to determine whether they meet the requirements of Ohio

Revised Code § 3501.38(E)(1). Rather, due to the limited resources of the

Secretary of State's office, Ohio relies an protesters to uncover noncompliance.

Dana Walch also testified at the hearing. Walch served in three different

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election-related positions with former Secretary of State Blackwell from January

1999 to January 2005. In September 2004, Walch became the Director of

Legislative Affairs for the Secretary. In that role, he was familiar with discussions

that led to the passage of Ohio Revised Code § 3501.38{E}(1). Walch confirmed

that the fraud committed by Ralph Nader=s paid circulators was a majorpart of

the reason for including the payor disclosure provision in the challenged statute.

The Court also heard the testimony of Brandon Lyndagh, who is a co-

owner of the public affairs firm Strategic Public Partners (°SPP"). SPP has run

nine statewide issue campaigns and has coordinated efforts to collect signatures

for campaign petitions in Ohio. SPP has participated in the collection of more

than one million signatures.

Lynaugh described some of the cheating by paid circulators he has

encountered in the course of his work at SPP. For example, he recalled a 2006

effort during which local law enforcement officers caught several paid circulators

committing fraud. Lynaugh also indicated that fraud by paid circulators occurred

in a 2009 voter registration effort.

In addition, Lynaugh explained that a circulator may commit fraud simply by

obtaining names and addresses from a telephone book rather than spending an

afternoon on a street corner gathering legitimate signatures. He stated he was

aware of a paid circulator who was caught doing just that within the past, year.

Lynaugh also testified that, in the industry, there is no ambiguity as to

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whether a paid circulator was required to complete the employer information box

on part petitions. He was not aware of any instance of a paid petition circulator

refusing to provide the information and stated that the disclosure requirement did

not prevent him from obtaining the circulators he needed for his petition effarts.

Further, Lynaugh indicated he had never heard of harassment of the companies

he hired to circufate petitions as a result of the disclosures. Similarly, no

commercial petition-circulating firms ever expressed to him that the disclosure

requirement impaired their ability to hire individual petition circulators.

In addifion, Lynaugh testified that in his experience, commercial petition-

circuiating firms are not concerned about which side of an issue they work on and

opined the ability to obtain signatures for a variety of issues is an indication of

talent. He gave an example. Specificaliy, during one petition drive, one half of

SPP worked for one candidate and the other half worked for his opponent.

Lynaugh also expressed that transparency as to who is paying for petition

circulation is advantageous because both the press and public expect it in this

day and age.

Lynaugh also has experience with volunteer petition circulators. He stated

that he has never encountered a single instance of a volunteer circulator

committing fraud. Lynaugh described the difference in the degree of risk of a

paid circulator committing fraud compared to a volunteer circulator doing the

same as "night and day."

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The Court vviBl now make factual findings based on the evidence before it

and determine the significance of the evidence to Plaintiffs' facial challenge to

Ohio Revised Code § 3501.33(E)(1 ). The record supports Secretary Husted's

assertion that Ohio Revised Code § 3501.38(E)(1 ) was passed in response to

significant fraud on the part of paid candidate circulators. In the 2004 protest of

Ralph Nader's campaign petition, paid circulators gathered more than 14,000

signatures. The local boards of elections found only 6,464 of those to be valid.

Former Ohio Secretary of State Kenneth Blackwell invalidated 2,756 of the those

signatures. See Nader, 545 F.3d at 462-67. A total o€1,g56 were disqualified on

the basis of actual fraud.

The testimony of Brandon Lynaugh tends to show that the problem of fraud

by paid circulators continues to exist, and he was specifically aware of an incident

that occurred within the past year in which a paid circulator was caught copying

names and addresses from a telephone book. Lynaugh further stated that, in his

experience, the rate of fraud by paid circulators exceeds that of volunteer

circulators.

Lynaugh's testimony also tends to dispel Plaintiffs' assertion that Ohio

Revised Code § 3501.38(E)(1) chills political speech. He was unaware of any

instances of the disclosure requirement resulting in harassment or otherwise

acting to chill or burden paid petition circulators or those who pay them. #ndeed,

Lynaugh opined that in today's political climate, disclosure and transparency are

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valued over anonymity.

Although Lynaugh's testimony is anecdotal, he is part owner of aptabtic

relations firm that has gathered more than one million signatures in Ohio, and he

has worked with both paid and volunteer circulators in the course of his career.

The Court finds that Lynaugh's testimony was credible, and, given the depth and

breadth of his experience, deserves some weight.

The testimony of VI(alch confirms that, in large measure, Ohio Revised

Code § 3501 .38(E){1}was enacted in response to the actual fraud committed in

2004 by Ralph Nader's paid circulators. Matthew Damshroder's testimony

explains the role the statute plays in deterring and detecting fraud.

Based on the evidence presented at the hearing in this matter, as well as

other evidence submitted in this case, the Court finds by a preponderance of the

evidence that the disclosure requirements of Ohio Revised Code § 3501.33(E)(1)

do not significantly chill political speech. Furthermore, the Court finds by a

preponderance of the evidence that the challenged statute is substantially related

to Ohio's significant interest in deterring and preventing fraud in the candidate

petition process.

In sum, applicable law permits states to require disclosure of identities of

candidate petition circulators (provided paid circulators are not singled out for

such disclosure) as well as the identities of those who pay them. Moreover, the

evidence adduced at the evidenfiary hearing shows that the disclosure

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requirements at issue do not significantly burden political speech, and the

requirements are substantially related to a significant state interest. In the

aPternative, even if Ohio Revised Code § 3501.38(E){1} is not substantially related

to a significant state interest, the Court would still reject Plaintiffs' facial challenge

because the statute's disclosure requirements only minimally burden political

speech and the state's interest is sufficient to warrant that slight burden.

Accordingly, the Court holds that Plaintiffs have failed to demonstrate that they

are iike6y to succeed on the merits of their claim that Ohio Revised Code

§ 3501.38(E)(1 ) is unconstitutional on its face.

2. As-Applied Challenge to Ohio Revised Code § 3501.38(E)(1)

Plaintiffs contend that even if Ohio Revised Code § 3501.38(E)(1 ) is not

unconstitutional on its face, the provision is nevertheless unconstitutional as

applied to them because it placed a significant burden on the exercise of their

First Amendment right to engage in political speech. Secretary Husted and

Felsoci maintain that Plaintiffs' as-applied challenge fails because the evidence in

the record shows that the disclosure requirement at issue had no chilling effect on

PSaintiffs° political speech.

Secretary Husted and Felsoci are correct. The record contains no

evidence to support Plaintiffs' contention that the payor disclosure requirement

chilled their First Amendment freedoms, Rather, the evidence before the Court

demonstrates that the disclosure requirement at issue did not burden Plaintiffs'

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political speech in any meaningful way.

Notably, at the protest hearing, the circulator LPO hired, Oscar Hatchet,

expressed no reservations about completing the employee information box.

Regardless of whether he ever discussed the rriatter with Bridges, Hatchet

indicated he was willing to provide the information because he "wanted [his]

signatures to count." !a'. at 97. The disclosure requirement apparently had no

chilling effect ori Hatchet.

Plaintiffs also offer the testimony of LPO officer Kevin Knedler and LPO

guberrlatoriai candidate Charles Earl, both of whom suggest that Ohio Revised

Code § 3501.38(E)(1 ) severely burdens their First Amendment rights because

application of the statute resulted in the disqualification of LPO candidates from

the May 2014 primary ballot. Plaintiffs' argument misses the mark. The relevant

inquiry is whether compliance with the disclosure requirement of Ohio Revised

Code § 3501.38(E){1} severely burdens rights secured by the First Amendment.

In other viorda, the disclosure Iequiremenf itself did not curtail Plaintiffs' rights;

rather, the harm they suffered occurred because Plaintiffs violated the statute

even though it would have been relatively simple to comply with it. In that regard,

Plaintiffs do not articulate how requiring the petition circulators they hired to

disclose their identities and the identities of those who paid them burdened

Plaintiffs' First Amendment right to engage in political speech.

Aside from that, Plaintiffs rely on colorful hypothetical scenarios to

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demonstrate a chilling effect, such as a devout Catholic who wants to fund

petition circulation in support of same sex marriage, or a son paid by his father to

circulate a petition for his political party's candidate, thereby risking the ire of his

rnother, who is a member of a different party. Their efforts fall short, as the facts

of Plaintiffs' hypothetical questions shed no light on the impact of Ohio Revised

Code § 3501.38(E)(1) on Plaintiffs or the circulators they hired.

Evidence of harassment of petition circulators is also absent. The only

example Plaintiffs provide is the conduct of Felsoci's counsel toward adverse

witnesses at the protest hearing. That example does nntsuffice.

For the above reasons, the Court holds that Plaintiffs have failed to

demonstrate a(ikelihood of success on their as-applied challenge to Ohio

Revised Code § 3501.38(F)(1).

3. Retroactive Change in Ohio Law

Lastly, in their third motion for a preliminary injunction, Plaintiffs argue the

Court should grant relief because Secretary Husted impermissibly changed Ohio

law and applied that change retroactively, suggesting he "moved the goal post"

because previously independent contractors were not required to fill in the

employer information box on part petitions. Secretary Husted and Felsoci

maintain that prior to the events giving rise to this case, Ohio law was, and

remains, that all paid circulators must complete the employer box on part

petitions. They also assert that Ohio law requires the Ohio Secretary of State to

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invalidate any petition or part petition that fails to comply with the mandatory

provisions of the Ohio Revised Code. Plaintiffs fail to respond to these

arguments or discuss their retroactive application theory in their reply

memorandum. The Court therefore deems Plaintiffs to have abandoned their

third ground for injunctive relief.

In any event, Plaintiffs' third ground lacks merit. Ohio law has never

contained such an exception for independent contractors, and prior to the events

that gave rise to this matter, Ohio courts and Secretary Husted indicated paid

circulators were required to fiIl in the employer information box on part petitions

with the name and address of the payor regardless of whether the circulator was

an employee or independent contractor. See Rothenberg v. Husted, 129 Ohio St.

3d 447 (2011) (accepting as reasonable Secretary Husted's assertion that Ohio

Revised Code § 3501.38(E)(1) requires paid circulators to disclose the payor in

the employer information box); In re Protest of Evans, No. 06AP-544-48, 2006

WL 2590613 (Ohio App. 1Oth Dist. Sept. 11, 2006) (finding Ohio Revised Code

§ 35(31.33(E)(1 ) requires the circulator to disclose the identity of the entity that

directly paid the circulator, and finding the employer/independent contractor

distinction irrelevant).

Ttie notion that independent contractors are exempt from the disclosure

requirement appears to be little more than urban legend based on a misreading

of Rothenberg. Further, the earlier Directives of the Ohio Secretary of State to

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which Plaintiffs refer have no bearing on the issue. Those Directives constitute

instructions to the local boards of elections and do not purport to be the law of

Ohio as it pertains to protest proceedings before the Secretary of State.

Moreover, both Directives expired long before the events giving rise to this case

took place.

To reiterate, P9eir7ti€fs waived their retroactive application argument, and

the argument lacks merit. For these reasons, the Court holds that Plaintiffs are

not likely to succeed on their assertion that Secretary Husted improperly applied

a novel interpretatian of Ohio Revised Code § 3501.38(E)(1) to them

retroactively.

In sum, Plaintiffs have failed to show they are likely to succeed on the

merits of any of the grounds they advance in their third motion for a preliminary

injunction.

B. Irreparable Harm

Plaintiffs assert that this case implicates their First Amendment rights, and

violation of those rights constitutes irreparable harm.

It is well established that even a temporary violation of First Amendment

rights constitutes irreparable harm. Elrod v. Burrrs, 427 U.S. 347, 373 (1976).

Here, however, no violation of the First Amendment has occurred. And while

Plaintiffs will suffer the harm of being excluded from the Ohio May 2014 primary

ballot, as well as the November 2014 general ballot, that harm was self infllcted.

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Consequently, the Court finds Plaintiffs wi(l not suffer the requisite irreparable

harm in the absence of a preliminary injunction.

C. Harm to Others

Plaintiffs argue an injunction would not harm others. Secretary Husted

argues Ohio's interests will suffer if the Court takes away the Ohio General

Assembly's prerogative to deter and detect fraud in the candidate petition process

through the challenged disclosure requirements. The Court does not intrude

upon the Ohio legislature's prerogative lightly and finds that this factor weighs

against granting an injunction.

D. Public Interest

The Court finds that in this instance, the public interest is best served by

allowing Ohio to acquire the identities of petition circulators and those who pay

them in order to detect and deter fraud in the election process.

E. Balancing the Factors

All of the factors weigh against granting injunctive relief. Accordingly, the

Court declines to issue a preliminary injunction.

Case No. 2:13-cv-953 Page 27 of 28

Case: 2:13-cv-00953-MHW-TPK Doc #: 80 Filed: 03119114 Page: 28 of 28 PAGEID #: 2173

IV. DISPOSITION

Based on the above, the Court DENIES Plainti€fs` third motion for a

preliminary injunction. ECF No. 57.

IT IS SO ORDERED.

,GC^TSONg J tJDGEMA

UNITED STATES DISTRICT COURT

Case No. 2:13-cv-953 Page 28 of 28