IN THE SUPREME COURT OF OHIO

State ex rel., JOHN FOCKLER, et al., : :

Relators, : : Case No. 2016-1863

v. : : Original Action in Mandamus

JON HUSTED, OHIO SECRETARY OF STATE, : : Original Action

Respondent. : Under S. Ct. Prac. R. 12.04

MERIT BRIEF OF RESPONDENT OHIO SECRETARY OF STATE JON HUSTED

MICHAEL DEWINE (0009181) Ohio Attorney General Mark R. Brown (0081941) HALLI BROWNFIELD WATSON (0082466) 303 East Broad Street *Counsel of Record Columbus, Ohio JORDAN S. BERMAN (0093075) Tel: 614-236-6590 | Fax: 614-236-6956 Assistant Attorneys General mbrown@law.capital.edu Constitutional Offices Section 30 East Broad Street, 16th Floor Counsel for Relators Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-728-7592 halli.watson@ohioattorneygeneral.gov jordan.berman@ohioattorneygeneral.gov Counsel for Respondent Ohio Secretary of State

Supreme Court of Ohio Clerk of Court - Filed January 06, 2017 - Case No. 2016-1863

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

STATEMENT OF FACTS ............................................................................................................. 1

I. Introduction .......................................................................................................................1

II. S.B. 193’s structure for minor-party recognition ..............................................................3

III. The Johnson/Weld ticket’s appearance on the November 2016 general election ballot as independent joint candidates for President and Vice President ..........................4

ARGUMENT .................................................................................................................................. 7

IV. Legal standard ...................................................................................................................7

V. The Secretary has no legal duty to recognize a minor party based on the percentage of votes cast in favor of independent candidates ............................................9

VI. Relators ignore applicable statutes and misinterpret case law ........................................12

VII. Even if section 3517.01(A)(1) was subject to more than one interpretation, the Secretary’s interpretation is reasonable and entitled to more weight .............................16

VIII. The affidavit of Richard Winger proffered by Relators is improper and irrelevant .........................................................................................................................18

IX. The LPO previously acknowledged that it cannot obtain recognized party status based on the votes cast for Johnson/Weld ......................................................................21

X. Conclusion ......................................................................................................................23

CERTIFICATE OF SERVICE ..................................................................................................... 24

APPENDIX

R.C. 3501.01 ................................................................................................................ A-1

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TABLE OF AUTHORITIES Page(s)

Cases

Brannon v. Rinzler, 77 Ohio App.3d 749, 603 N.E.2d 1049 (2d Dist. 1991) ..........................................................19

State ex rel. Cincinnati Post v. Cincinnati, 76 Ohio St.3d 540, 668 N.E.2d 903 (1996) .............................................................................16

State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979 ....................................................14, 17

State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 651 N.E.2d 995 (1995) ...................................................................8, 14, 16

Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) ..............................................................16

State ex rel. Kirtz v. Corrigan, 61 Ohio St.3d 435, 575 N.E.2d 186 (1991) ...............................................................................7

Lake Hosp. Sys., Inc. v. Ohio Ins. Guar. Assn., 69 Ohio St.3d 521, 643 N.E.2d 611 (1994) .............................................................................14

Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) ...................................................................................3, 11, 12, 15

Libertarian Party of Ohio v. Husted, 751 F.3d 403, 424 (6th Cir. 2014) .........................................................................................1, 2

Libertarian Party of Ohio v. Husted, 808 F.3d 279 (6th Cir. 2015) .....................................................................................................2

Libertarian Party of Ohio v. Husted, 831 F.3d 382 (6th Cir. 2016) ........................................................................................... passim

Libertarian Party of Ohio v. Husted, Franklin C.P. No. 16CV554 (June 7, 2016) ...............................................................................2

State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940 ...................................................... passim

State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio St.3d 427, 2010-Ohio-1876, 928 N.E.2d 1072 ..........................................................7

State ex rel. McQueen v. Cuyahoga Cty. C.P., Prob. Div., 135 Ohio St.3d 291, 2013-Ohio-65, 986 N.E.2d 925 ..............................................................12

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State ex rel. Murphy v. Graves, 91 Ohio St. 36, 109 N.E. 590 (1914) .......................................................................................20

State ex rel. N. Main St. Coal. v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222 ..........................................................8

State ex rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220 ............................................................7

Risner v. Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718 ......................................................12, 14

State v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357 ............................................................9

Tolson v. Triangle Real Estate., 10th Dist. Franklin No. 03AP-715, 2004-Ohio-2640 (May 25, 2004) ....................................19

United States v. Curtis, 782 F.2d 593 (6th Cir. 1986) ...................................................................................................20

State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452 ................................................................15

Statutes

R.C. 2731.05 ....................................................................................................................................8

R.C. 3501.01 ..............................................................................................................................9, 12

R.C. 3501.01(I) ....................................................................................................................2, 10, 14

R.C. 3501.01(F) ...................................................................................................................9, 10, 13

R.C. 3501.01(F)(2)(a) ............................................................................................................3, 4, 14

R.C. 3501.01(F)(2)(b) ..............................................................................................................1, 3, 4

R.C. 3501.01(K) .......................................................................................................................10, 14

R.C. 3513.01(A) ...............................................................................................................................4

R.C. 3513.05 ....................................................................................................................................4

R.C. 3513.31(F) ...........................................................................................................................5, 6

R.C. 3513.131(A) ...........................................................................................................................15

R.C. 3513.257 ..................................................................................................................................4

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R.C. 3513.257(A)-(C) ......................................................................................................................5

R.C. 3513.261 ..........................................................................................................................2, 4, 5

R.C. 3517.01 ........................................................................................................................9, 10, 12

R.C. 3517.01(A)(1) ................................................................................................................ passim

R.C. 3517.01(A)(1)(a)..................................................................................................12, 13, 14, 17

R.C. 3517.01(A)(1)(b) .....................................................................................................................8

R.C. 3517.01(A)(1)(b)(i)..................................................................................................................4

R.C. 3517.01(A)(1)(b)(ii) ................................................................................................................4

R.C. 3517.01(A)(1)(b)(iii) ...............................................................................................................4

R.C. 3517.07(A)(1) ........................................................................................................................15

R.C. 3517.012(A)(1) ........................................................................................................................4

Other Authorities

Am. Sub. S.B. 193, 130th G.A. (2013) ............................................................................................3

Evid R. 602 ..............................................................................................................................18, 19

Evid. R. 702 ...................................................................................................................................19

Evid. R. 702(A) ..............................................................................................................................20

Evid. R. 702(C) ..............................................................................................................................19

Evid. R. 705 ...................................................................................................................................19

Sup. Ct. Prac. R. 12.06 ...................................................................................................................18

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STATEMENT OF FACTS

I. Introduction.

The Libertarian Party of Ohio (“LPO”) ceased to be a statutorily recognized minor

political party in the State of Ohio after the November 2014 general election. Respondent’s

Submission of Evid. Ex 1,Walsh Aff. at ¶¶ 7-8. This is because the LPO’s petition circulators

failed to follow Ohio law and disclose who paid them on nominating petitions circulated to place

the LPO’s gubernatorial candidate, Charlie Earl, on the 2014 ballot.1 Id. at ¶¶ 5, 7; Libertarian

Party of Ohio v. Husted (“LPO I”), 751 F.3d 403, 424 (6th Cir. 2014) (upholding the district

court’s denial of a preliminary injunction seeking to place the LPO’s gubernatorial candidates on

the 2014 ballot, and noting that “[w]ithout a gubernatorial candidate on the general election

ballot, given the effect of S.B. 193, the LPO in all likelihood will lose its status as a ballot-

qualified party in Ohio”); Libertarian Party of Ohio v. Husted (“LPO II”), 831 F.3d 382 (6th Cir.

2016) (upholding summary judgment decision dismissing challenge to Earl’s disqualification

from the 2014 ballot and to S.B. 193, Ohio’s minor party ballot access law). As a result, Charlie

Earl’s candidacy was disqualified, leaving the LPO without a gubernatorial candidate, and

therefore, unable to satisfy the applicable vote test to retain minor-party recognition. Id.; see

also Walsh Aff. at ¶¶ 3-8. Ohio law establishes one clear path for the LPO to again obtain

recognized minor-party status—namely, filing a party formation petition. R.C. 3501.01(F)(2)(b).

To date, the LPO has not filed a party formation petition. Walsh Aff. at ¶ 9.

Instead, the LPO has litigated extensively in both state and federal court seeking to avoid

the consequences of Earl’s disqualification and circumvent the clear path to regaining recognized

1 The candidacy of Steven Linnabary, the LPO’s 2014 candidate for Attorney General, suffered the same fate, as one of his circulators also failed to identify who paid him. This Court denied Linnabary’s writ seeking to be placed on the 2014 ballot in State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940.

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minor-party status. See generally Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir.),

rhg. en banc denied, stay denied 134 S.Ct. 2164 (2014); Libertarian Party of Ohio v. Husted,

808 F.3d 279 (6th Cir. 2015), rhg. en banc denied (Jan. 6, 2016); Libertarian Party of Ohio v.

Husted, 831 F.3d 382 (6th Cir.), stay denied 137 S.Ct. 27, cert. pending No. 16-580 (Oct. 31,

2016); Libertarian Party of Ohio v. Husted, Franklin C.P. No. 16CV554 (June 7, 2016) (granting

summary judgment to defendants on the LPO’s Ohio constitutional challenges to S.B. 193),

motion for new trial and stay denied (Sept. 1, 2016), appeal pending 10th Dist. No. 16AP-496.

This case is yet another chapter in the LPO’s over two-year long quest to obtain

minor-party recognition without even attempting to file the required party formation petition.

This time, the LPO seeks minor party status based on the number of votes cast for independent

candidates Gary Johnson and William Weld in the November 2016 general election. They

ignore the reality, however, that an independent candidate, by definition, does not claim any

party affiliation. R.C. 3501.01(I). Johnson and Weld appeared on the 2016 general election

ballot as independent joint-candidates for President and Vice President by following the statutory

procedure by which independents gain access to the ballot. That procedure requires independent

candidates to file a statement of candidacy and nominating petition that identifies a “committee”

to represent them. R.C. 3513.261. In this case, Relators are the individuals who formed that

committee.

The LPO now seeks to join forces with Relators to have the Relators recognized as a

minor party designated as the Libertarian Party. But, Ohio law does not provide such a path to

recognized minor-party status. Ohio law has two paths for minor parties: (1) a group of voters

can remain a minor party if their candidate for governor or president receives three per cent of

the total vote cast, or (2) a group of voters wanting to form a new minor party can submit a

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formation petition. R.C. 3517.01(A)(1). Recognizing that independent candidates cannot satisfy

the vote test, the LPO instructed the United States Supreme Court just a few months ago:

Assuming Johnson/Weld were to be certified as an independent ticket and survive official protests, it (unlike the established parties’ presidential tickets) will still not represent LPO as a political party, will not be listed as the “Libertarian” ticket on Ohio’s ballot, and cannot meet Ohio’s 3% vote test on behalf of LPO in order to win for it qualified political party status in Ohio in future elections.

See Respondent’s Submission of Evid. Ex. 4, Libertarian Party of Ohio v. Husted, Application

for Stay and Emergency Injunction. In short, independent candidates cannot be used as a vehicle

for political parties to obtain recognized minor-party status. Relators have no clear legal right to

recognized minor party status, and the Secretary has no clear legal duty to provide it. Relators’

petition for a writ of mandamus must be denied.

II. S.B. 193’s structure for minor-party recognition.

Effective in 2014, S.B. 193 reformed Ohio’s system for determining minor political party

status and establishing new political parties. In 2006, the Sixth Circuit struck down Ohio’s

previous minor-party ballot-access law. Libertarian Party of Ohio v. Blackwell, 462 F.3d 579

(6th Cir. 2006). Following Blackwell, in the absence of a constitutional legislative scheme for

minor parties to obtain party recognition and access the ballot, previous Secretary of State

directives (issued pursuant to court order) recognized the LPO and others as minor parties in the

state. Effective in 2014, S.B. 193 repealed those directives and allowed a political party to

1) achieve minor-party recognition by filing a formation petition, see R.C. 3501.01(F)(2)(b), or

2) retain minor-party recognition when the party’s candidate for either governor or president

receive three percent of the total vote, see R.C. 3501.01(F)(2)(a).2

2 In 2014, a minor political party only had to obtain two percent of the vote for governor to retain party status for the next four years. Ohio Am. Sub. S.B. 193 §4(B), 130th G.A. (2013), Exhibit 2 to Respondent’s Submission of Evidence.

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Formation by petition requires signatures equal in number to one percent of the total vote

for Governor or presidential electors at the State’s most recent election. R.C. 3513.05,

3517.01(A)(1)(b)(i). The signatures must include 500 qualified electors from each of at least

half of the congressional districts in Ohio. R.C. 3517.01(A)(1)(b)(ii). This petition must be

submitted no later than 126 days before the November general election. R.C.

3517.01(A)(1)(b)(iii).

A minor party that files a successful formation petition will earn recognized party status

for at least twelve months, and will henceforth retain party status by passing the three percent

vote threshold at the first election for governor or president that occurs at least twelve months

after it forms. R.C. 3501.01(F)(2)(b). If a minor party obtains at least three percent of the vote

for either governor or president, the minor party retains minor-party status and ballot access for

four years. R.C. 3501.01(F)(2)(a).

Minor parties who retain status by the vote-counting method may hold primary elections

to nominate their candidates to appear on the general election ballot. Id.; R.C. 3513.01(A). On

the other hand, minor parties that achieve status by petition, but have yet to retain status through

the three-percent vote count, determine their general election candidates through nominating

petitions. R.C. 3517.012(A)(1).

III. The Johnson/Weld ticket’s appearance on the November 2016 general election ballot as independent joint candidates for President and Vice President.

Independent joint candidates for President and Vice President can access the ballot by

complying with sections 3513.257 and 3513.261. Section 3513.257 requires an independent

candidate to file “a statement of candidacy and nominating petition as provided in

section 3513.261 of the Revised Code” and sets forth, among other things, the filing deadline and

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signature requirements for the petitions. The filing deadline and required number of signatures

differ depending on the office the candidate seeks. R.C. 3513.257(A)-(C). Section 3513.261

sets forth the requirements for the statement of candidacy and nominating petition. That statute

requires that the candidate, on the statement of candidacy, list five people as the “committee to

represent me.” R.C. 3513.261. The statutes refer to these five individuals as a “committee” not

a “group of voters.” The primary, if not sole, post-filing statutory function of the “committee” is

to timely fill a vacancy created by the death or withdrawal of the candidate nominated by the

petition. See R.C. 3513.31(F).

Relators were named as the committee to represent Charles Earl and Kenneth Moellman

as independent joint candidates for the offices of president and vice president. Compl. at ¶ 10,

Ex. A. Earl and Moellman subsequently withdrew, and Relators filed to substitute Gary Johnson

and William Weld for them. Id. at ¶ 11.3 Relators invoked section 3513.31(F) to accomplish

that substitution. Compl. at ¶ 11. Section 3513.31(F) provides:

If a person nominated by petition as an independent or nonpartisan candidate for election at the next general election withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy so created may be filled by a majority of the committee of five, as designated on the candidate's nominating petition, if a member of that committee certifies in writing and under oath to the election officials with whom the candidate filed the candidate’s nominating petition, not later than the eighty-sixth day before the day of the general election, the name of the person selected to fill the vacancy. The certification shall be accompanied by the written acceptance of the nomination by the person whose name is certified and shall be made in the manner provided for a major political party. (emphasis added).

Section 3513.31(F) also uses the term “committee” not “group of voters.” Relators, the

committee representing the Earl/Moellman ticket and later the Johnson/Weld ticket, clearly

3 Relators reference this filing in their Complaint, but do not attach it. This filing is attached hereto as Respondent’s Submission of Evid. Ex. 1, Walsh Aff. Ex. C.

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sought to substitute Earl and Moellman as independent candidates for president and vice

president.

While the law is not entirely clear as to whether the procedure in section 3513.31(F) may

be invoked by independent presidential candidates, the Secretary believed the spirit of ballot

access should prevail and permitted the substitution. Walsh Aff. ¶ 13 and Ex. D. In a document

explaining the applicable law and the decision to permit the substitution, the Secretary

specifically noted: “The presence of independent joint-candidates for president and vice-

president, even when endorsed by, or affiliated with, a national political party or that of another

state, is not sufficient under Senate Bill 193 to create a minor political party for future election

cycles.” Id. Ex. D at 6. The Secretary certified Johnson and Weld to the ballot as independent

joint candidates for president and vice-president without any party designation. Id. at ¶ 14,

Ex. E. The Johnson/Weld ticket received 3.17 percent of the total votes cast for president and

vice president. Compl. at ¶ 15.

Relators and the LPO central committee submitted a request to Respondent on December

2, 2016, asking Respondent to recognize the LPO as a minor party based on the percentage of

votes cast for independent joint candidates Gary Johnson and William Weld. Id. at ¶ 17, Ex. B.

Relators, the committee designated to represent the Earl and Moellman candidacies,

“demand[ed] immediate certification of our ‘group of voters’ exceeding 3% of the vote for

recognition as a political party with full party status for the next four years” and requested that

their party be identified as “Libertarian.” Id. Ex. B. Relators’ letter attached the request and

concurrence of LPO representatives that also requested that the LPO be a recognized party.

On December 16, 2016, the Secretary, through counsel, denied Relators request. Compl.

at ¶ 19. In that denial, the Secretary referenced his prior explanation that, under S.B. 193, the

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presence of the Johnson/Weld ticket on the 2016 ballot could not lead to minor-party recognition

for the LPO. Walsh Aff. at Ex. G. The Secretary also referenced Relators’ counsel’s prior

agreement with that conclusion in the LPO’s United States Supreme Court application. Id.

Relators filed this suit on December 19, 2016.

ARGUMENT

IV. Legal standard.

It is well established that relief in the form of mandamus is extraordinary relief. See, e.g.,

State ex rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220, ¶ 2. To

be entitled to the requested writ of mandamus, Relators must establish by clear and convincing

evidence three elements: (1) the relator has a clear legal right to the requested relief; (2) the

respondent is under a clear legal duty to perform the requested act; and (3) the relator has no

plain and adequate remedy at law. State ex rel. Linnabary v. Husted, 138 Ohio St.3d 535,

2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. This standard mandates that “all three of these

requirements must be met in order for mandamus to lie.” State ex rel. Kirtz v. Corrigan, 61 Ohio

St.3d 435, 438, 575 N.E.2d 186 (1991). “Moreover, ‘[i]n extraordinary-writ actions challenging

a decision of the secretary of state, the standard is whether the secretary engaged in fraud,

corruption, or abuse of discretion, or acted in clear disregard of applicable law.” Linnabary, at

¶ 14, quoting State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio

St.3d 427, 2010-Ohio-1876, 928 N.E.2d 1072, ¶ 9. Relators make no allegations of fraud or

corruption, “so the dispositive issue is whether Husted abused his discretion or clearly

disregarded applicable law.” Id. And, “[w]hen an election statute is subject to two different, but

equally reasonable, interpretations, the interpretation of the Secretary of State, the state’s chief

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election officer, is entitled to more weight.” Id. at ¶ 23, quoting State ex rel. Herman v.

Klopfleisch, 72 Ohio St.3d 581, 586, 651 N.E.2d 995 (1995).

Here, Relators have no clear legal right to minor-party recognition for the LPO, and the

Secretary has no clear legal duty to provide it. The Secretary’s interpretation of the governing

law is, at a minimum, reasonable, and he has not acted in clear disregard of applicable law. In

addition, Relators have an adequate remedy at law and a writ of mandamus “must not be issued

when there is plain and adequate remedy in the ordinary course of the law.” R.C. 2731.05. “In

order for an alternative remedy to constitute an adequate remedy at law, it must be complete,

beneficial, and speedy.” State ex rel. N. Main St. Coal. v. Webb, 106 Ohio St.3d 437,

2005-Ohio-5009, 835 N.E.2d 1222, ¶ 41. Relators seek recognized party status, but they have

and have had for over two years an alternative remedy that is complete and beneficial. When the

LPO lost its minor-party status in 2014, it had a remedy in the ordinary course of law—they

could submit a formation petition under R.C. 3517.01(A)(1)(b). This remedy would have been

much speedier than waiting two years for the presidential election, filing Earl/Moellman as

placeholders then substituting them out for more nationally-known candidates, and then arguing

a novel reading of the law. Relators do not and cannot claim that the petition avenue was

unavailable to them. Indeed, according to the LPO’s website, the LPO is currently circulating a

petition to achieve ballot access as permitted by S.B. 193. See https://www.lpo.org/news/732-

ohio-libertarians-hit-the-ground-running-for-2018 (last visited January 6, 2017). Relators cannot

satisfy their heavy burden to establish entitlement to the relief requested; thus, the writ should be

denied.

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V. The Secretary has no legal duty to recognize a minor party based on the percentage of votes cast in favor of independent candidates.

Applicable statutory law confirms the common-sense notion that a political group may

not attain recognized minor-party status based on the votes obtained by independent candidates

at a prior election. “[A]ll statutes which relate to the same general subject matter must be read in

pari materia” and a reviewing court “must give such a reasonable construction as to give the

proper force and effect to each and all such statutes.” State v. Cook, 128 Ohio St.3d 120,

2010-Ohio-6305, 942 N.E.2d 357, ¶ 45 (quotation omitted). Sections 3501.01 and 3517.01 of

the Ohio Revised Code relate to the same subject matter and must be read in pari materia. A

plain reading of these statutes demonstrates that the writ must be denied.

Analysis of the applicable statutory provisions demonstrates that the path to minor-party

recognition Relators and the LPO pursue here is not permitted under Ohio law. Section 3501.01

provides definitions for certain terms “used in the sections of the Revised Code relating to

elections and political communications.” Section 3501.01(F) provides:

“Political party” means any group of voters meeting the requirements set forth in section 3517.01 of the Revised Code for the formation and existence of a political party. (1) “Major political party” means any political party organized under the laws of

this state whose candidate for governor or nominees for presidential electors received not less than twenty per cent of the total vote cast for such office at the most recent regular state election.

(2) “Minor political party” means any political party organized under the laws of this state that meets either of the following requirements:

(a) Except as otherwise provided in this division, the political party’s

candidate for governor or nominees for presidential electors received less than twenty per cent of the total vote cast for such office at the most recent regular state election. A political party that meets the requirements of this division remains a political party for a period of four years after meeting those requirements.

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(b) The political party has filed with the secretary of state, subsequent to its failure to meet the requirements of division (F)(2)(a) of this section, a petition that meets the requirements of section 3517.01 of the Revised Code.

A newly formed political party shall be known as a minor political party until the time of the first election for governor or president which occurs not less than twelve months subsequent to the formation of such party, after which election the status of such party shall be determined by the vote for the office of governor or president. (emphasis added).

“Party candidate” is defined to mean

any candidate who claims to be a member of a political party and who has been certified to appear on the office-type ballot at a general or special election as the nominee of a political party because the candidate has won the primary election of the candidate’s party for the public office the candidate seeks, has been nominated under section 3517.012, or is selected by party committee in accordance with section 3513.31 of the Revised Code.

R.C. 3501.01(K). Section 3501.01(F) is clear that it must be the party’s candidate that received

at least three percent of the vote for the party to retain ballot access. An independent candidate

cannot, by definition, be a party’s candidate. R.C. 3501.01(I).

Section 3501.01(F) expressly requires that, to be a political party, a group must satisfy

section 3517.01’s requirements. Section 3517.01(A)(1) similarly provides:

A political party within the meaning of Title XXXV of the Revised Code is any group of voters that meets either of the following requirements: (a) Except as otherwise provided in this division, at the most recent regular state

election, the group polled for its candidate for governor in the state or nominees for presidential electors at least three percent of the vote case for that office. A group that meets the requirements of this division remains a political party for a period of four years after meeting those requirements.

(b) The group filed with the secretary of state, subsequent to its failure to meet the requirements of division (A)(1)(a) of this section, a party formation petition that meets all of the following requirements . . . . (emphasis added).

This statute also requires that a party’s candidate satisfy the applicable vote test in order for that

party to retain recognized party status. Ohio law does not permit the committee of five listed on

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an independent joint candidate’s nominating petition for President and Vice President to, after an

election is over, declare affiliation with a group seeking minor-party status and lend the

independent candidates’ vote count to that effort.

The Sixth Circuit has recognized that there are only two paths to recognized party status

under Ohio law. In Blackwell, the Sixth Circuit explained that “Ohio law provides two methods

by which a party can qualify for the primary election” to reach the general election ballot. 462

F.3d at 583. The Court explained those methods: filing a party formation petition or retaining

party status by passing the applicable vote test in the preceding election. Id. at 582-83. The

Court concluded that Ohio’s minor-party-ballot-access scheme was unconstitutional. Id. at 595.

S.B. 193 was enacted to cure the issues that led to the outcome in Blackwell, but it did not alter

the two paths for how minor parties retain or achieve party status: obtaining a certain percentage

of the vote in the preceding election or filing a party formation petition. See Am. Sub. S.B. 193,

Respondent’s Submission of Evidence at Ex. 2.4 Just months ago, the Sixth Circuit again

explained the “two methods by which a political party can qualify as a minor political party”

under S.B. 193:

First, a political party may qualify by obtaining at least “three percent of the total vote cast” for governor or president “at the most recent regular state election.” § 3501.01(F)(2)(a). A party that obtains minor-party status via this vote-counting method remains qualified as a minor party “for a period of four years.” Id. Second, for new political parties that were not on the ballot in the preceding election or for parties that failed to meet the three-percent threshold in the prior election, SB 193 provides that a political party may qualify as a minor party through petition.

LPO II, 831 F.3d at 388.

4 S.B. 193 is also available at http://archives.legislature.state.oh.us/bills.cfm?ID=130_ SB_193.

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While neither of these cases expressly addressed the issue presented here, their

explanation of the paths to minor-party recognition under Ohio law is not mere dicta. In both of

those cases, understanding the entire minor party ballot access scheme was essential to the Sixth

Circuit’s analysis because the Court had to “consider ‘the combined effect of the applicable

election regulations,’ not simply each law in isolation” and look to “‘the associational rights at

issue, including whether alternative means are available to exercise those rights; the effect of the

regulations on the voters, the parties and the candidates; [and] evidence of the real impact the

restriction has on the process.’” Id. at 400, quoting Blackwell, 462 F.3d at 586-87. The

existence of a third option for achieving minor-party status under Ohio law would have

undoubtedly been relevant.

The Ohio Legislative Service Commission’s Final Analysis of S.B. 193 similarly

explains that these are the two avenues to minor-party recognition under Ohio law.

Respondent’s Submission of Evid. Ex. 3, LSC Final Analysis of Sub. S.B. 193.5 That analysis

does not contemplate the path to minor-party recognition Relators pursue here.

VI. Relators ignore applicable statutes and misinterpret case law.

In advocating for a third path to party status, Relators ignore section 3501.01, the rest of

section 3517.01, and misread section 3517.01(A)(1)(a). But statutes must be interpreted so that

effect is given to every word and clause. State ex rel. McQueen v. Cuyahoga Cty. C.P., Prob.

Div., 135 Ohio St.3d 291, 2013-Ohio-65, 986 N.E.2d 925, ¶ 12. A reviewing court must

examine a statute as a whole, and “cannot pick out one sentence and disassociate it from the

context.” Risner v. Ohio Dept. of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278,

2015-Ohio-3731, 42 N.E.3d 718, ¶¶ 12, 19 (quotation omitted). Even Relators agree that these

5 This analysis is also available at http://archives.legislature.state.oh.us/analyses.cfm? ID=130_SB_193&ACT=As%20Enrolled (last visited December 29, 2016).

13

statutes must be read together. Relators’ Br. at p. 10. They do not contend that they conflict. Id.

But, their interpretation fails to construe the plain language of these statutes.

Relators are simply incorrect when they insist: “Under its plain terms, ‘any group of

voters’ may under R.C. 3517.01(A)(1)(a) become a ‘political party’ in Ohio by polling for their

candidate for presidential electors 3% of the entire vote cast for that office.” Relators’ Memo.

in Supp. of Writ at 5 (emphasis added). The statute provides that a party that satisfies the vote

test “remains a political party for a period of four years after meeting those requirements.”

R.C. 3517.01(A)(1)(a) (emphasis added). Section 3517.01(A)(1) mirrors section 3501.01(F) as

both statutes contemplate that a party can remain a party by having its candidate receive at least

three percent of the vote. A group cannot remain something it was not to begin with. “Remain”

means, inter alia, “to stay in the same place,” “to continue; go on being,” and “to continue to

exist; endure; persist; last.” See Webster’s New World Dictionary, Second College Ed., 1201

(1980).6 For parties who do not retain party status by passing the applicable vote test, the

option is to form by petition. This is an option that has been open to the LPO since November

2014, but that it has yet to attempt. Walsh Aff. at ¶ 9. Significantly, in the extensive litigation

the LPO has lodged against S.B. 193, the LPO has never contended that the petition formation

requirements themselves are unconstitutional or somehow overly burdensome; and in fact,

coinciding with this litigation, the LPO is collecting signature to comply with S.B. 193’s

petition bath to ballot access. See https://www.lpo.org/news/732-ohio-libertarians-hit-the-

ground-running-for-2018 (last visited January 6, 2017).

6 Relators maintain that the “LPO’s premier argument” in the federal litigation “is that it (LPO) remained a recognized political party in Ohio.” Relators’ Br. at p. 23. The LPO has pursued various litigation strategies in an effort to obtain recognized minor-party status since it lost that status following the November 2014 election. Those strategies, however, have been unsuccessful, and the LPO has not been recognized as a minor party in the State of Ohio since November 2014. Walsh Aff. at ¶¶ 3-10.

14

Relators’ argument that section 3517.01(A)(1)(a) should be liberally construed “in favor

of free and competitive elections” is misguided. Relators’ Br. at p. 19-20. Although courts

generally construe election statutes liberally “in favor of the right to vote,” State ex rel. Colvin v.

Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 62, “[t]here is no need to

liberally construe a statute whose meaning is unequivocal and definite,” Lake Hosp. Sys., Inc. v.

Ohio Ins. Guar. Assn., 69 Ohio St.3d 521, 525, 643 N.E.2d 611 (1994). See also Linnabary,

2014-Ohio-1417 at ¶ 41 (noting the courts duty to liberally construe election statutes, but noting

that the Secretary’s interpretation was nonetheless correct). Likewise here, the statutes are clear

and unequivocal. There is no need to liberally construe them because, on their face, the ability to

retain party status by obtaining three percent of the vote applies only to a political party that

seeks to “remain[] a political party.” Any “liberal” construction of the statute to conform to

Relators’ interpretation would require either adding words or omitting words, which is not

permitted. See Risner, 2015-Ohio-3731 at ¶ 12 (nothing that courts “refrain from adding or

deleting words”); Klopfleisch, 72 Ohio St.3d at 586 (noting that courts must “give effect to the

words used and not to insert words not used”).

Relators’ reading also ignores the requirements of section 3501.01(F)(2)(a) that it be

“the political party’s candidate” who receives a certain percentage of the vote to retain party

status and section 3501.01(I)’s definition of an independent candidate as one claiming no party

affiliation. “Party candidate” is a defined term, and Johnson and Weld were not party

candidates as they did not appear on the ballot because either “won the primary of the

candidate’s party for the public office the candidate seeks, has been nominated under

section 3517.012, or is selected by party committee in accordance with section 3513.31 of the

Revised Code.” R.C. 3501.01(K). They sought and were granted access to the Ohio ballot as

15

independent candidates. They were not party candidates, and they cannot achieve party

recognition for any party.

State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, cited

by Relators, also does not support their interpretation. In that case, Robert Waters sought a writ

of mandamus to compel Warren County election officials to certify his candidacy for

membership on the Warren County Republican Party Central Committee on the 2012 primary

ballot. Id. at ¶¶ 3-4. Waters voted in the 2010 Libertarian Party primary election. Id. at ¶ 2.

Section 3513.131(A) prohibits a person’s candidacy in a political party’s primary if that person

voted in a different political party’s primary within the preceding two years. Id. at ¶ 9.

Accordingly, the writ was denied. Id. at ¶ 19. Waters argued that section 3517.01(A)(1) did not

preclude his candidacy because the LPO did not satisfy the five percent vote test set forth in the

version of section 3517.07(A)(1) in effect at the time and was not a party. Id. at ¶ 11. This

Court rejected this argument noting, among other things, that “state election officials must

follow the applicable requirements of federal election law, including pertinent federal court

orders.” Id. at ¶ 15. This Court noted the Sixth Circuit’s decision in Blackwell striking down

Ohio’s minor party ballot access scheme—in effect before S.B. 193—as unconstitutional and

explained that “notwithstanding R.C. 3517.01(A)(1), federal precedent requires the treatment of

the Libertarian Party as a ‘political party’ for purposes of the election laws.” Id. That case in

no way stands for the proposition that a party can achieve recognized party status using the

method the LPO pursues here.

Allowing party recognition for Relators under the circumstances presented here

undermines the purpose of ballot access regulations. S.B. 193’s requirements further the state’s

interest in ensuring that new or minor parties have “a significant modicum of support” before

16

they are awarded ballot access. Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29

L.Ed.2d 554 (1971) (“There is surely an important state interest in requiring some preliminary

showing of a significant modicum of support before printing the name of a political

organization’s candidate on the ballot—the interest, if no other, in avoiding confusion,

deception, and even frustration of the democratic process at the general election.”).

Recognizing a minor party and granting it ballot access based on the votes received by

candidates running without any party designation received does nothing to establish that the

party has a “significant modicum of support.”

VII. Even if section 3517.01(A)(1) was subject to more than one interpretation, the Secretary’s interpretation is reasonable and entitled to more weight.

Although the statute is clear on its face and does not create any duty for the Secretary to

recognize Relators as a political party, even assuming that the statute is susceptible to more than

one interpretation, the Secretary’s position is reasonable; and therefore, Relators are not entitled

to a writ of mandamus.

In construing statutes, the “paramount concern” is legislative intent. Linnabary,

2014-Ohio-1417, at ¶ 22 (quotations omitted). To discern intent, a statute must be read “in

context according to the rules of grammar and common usage.” Id. (quotations omitted).

Additionally, words may not be added or omitted, Klopfleisch, 72 Ohio St.3d at 586, and courts

must “construe statutes to avoid unreasonable or absurd results,” State ex rel. Cincinnati Post v.

Cincinnati, 76 Ohio St.3d 540, 543, 668 N.E.2d 903 (1996).

“[W]hen an election statute is subject to two different, but equally reasonable,

interpretations, the interpretation of the Secretary of State, the state’s chief election officer, is

entitled to more weight.” Klopfleisch, 72 Ohio St.3d at 586 (emphasis added). Indeed, it is

17

“well-settled precedent” that “the court must defer to [the Secretary’s] reasonable interpretation.”

State ex rel. Colvin, 2008-Ohio-5041, at ¶ 57 (emphasis added).

Here, Secretary Husted interprets section 3517.01(A)(1)(a) as applying to political parties

who seek to remain political parties. This interpretation is reasonable as it gives meaning to all

the words in the statute and avoids the absurd result of Relators’ interpretation. As previously

noted, the statute states that a group who meets the vote-counting requirement “remains a

political party.” R.C. 3517.01(A)(1)(a). To assert that this provision also allows a group to

“become” a political party ignores the common meaning of the word “remain” and actually adds

language that is not present in the statute. Under Relator’s interpretation, the Court would need

to reread the statute to say a group that meets the requirements “becomes or remains a political

party.” However, the legislature did not draft the statute as such, and adding that language

would thwart the legislative intent.

Furthermore, the Sixth Circuit interpreted the statute as creating two methods to qualify

as a minor political party—(1) political parties may qualify through the vote-counting method

and remain a political party for four years or (2) new political parties may qualify through

petition. LPO II, 831 F.3d at 388. Additionally, the Ohio Legislative Service Commission’s

final analysis of the statute stated that it “[l]owers the percentage of vote required for a party to

retain its status as a political party and revised the process for a new party to gain recognition by

filing a party formation petition.” Respondent’s Submission of Evid. Ex. 3. If two other bodies,

including a federal appellate court, came to the same conclusion as Secretary Husted, the

Secretary’s interpretation must be, at a minimum, a reasonable interpretation.

Because the Secretary’s interpretation is reasonable, it is entitled to more weight and this

Court “must defer to that reasonable interpretation.” Brunner, 2008-Ohio-5041 at ¶ 57.

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Accordingly, Relators cannot establish that Secretary Husted’s interpretation of

section 3517.01(A)(1) clearly disregards applicable law or abuses his discretion; and therefore,

Relators are not entitled to a writ of mandamus.

VIII. The affidavit of Richard Winger proffered by Relators is improper and irrelevant.

There are multiple problems with the affidavit of Richard Winger, Relators’ proffered

expert. First, it fails to comply with Sup. Ct. Prac. R. 12.06 and Evid R. 602. Second, it fails to

demonstrate the basis for the “expert” testimony he proffers. Finally, his testimony does not

involve matters outside the comprehension of a lay person and is not proper expert testimony. In

substance, Relators attempt to use Mr. Winger’s affidavit as a short cut to properly cited legal

research and argument. And, while Mr. Winger’s affidavit purports to provide a historical look

at Ohio’s ballot access structure, it neglects to mention that Mr. Winger reached the same

conclusion as the Secretary, as he stated on his website:

As a result [of the United States Supreme Court denying the LPO’s stay application], if Johnson receives more than 3% of the vote for President in Ohio, the party will not remain on the ballot in 2018 and 2020. If ‘Libertarian’ were on the ballot next to his name, and he received 3% or more, the party would be on the Ohio ballot for the next four years.

See Richard Winger, U.S. Supreme Court Refuses to Order Ohio to Put “Libertarian” on Ballot

Next to Gary Johnson’s Name, Ballot Access News (Aug. 29, 2016), http://ballot-

access.org/2016/08/29/u-s-supreme-court-refuses-to-order-ohio-to-put-libertarian-on-ballot-next-

to-gary-johnsons-name. His affidavit should not be considered.

Sup. Ct. Prac. R. 12.06 provides, in pertinent part, that “[a]ffidavits shall be made on

personal knowledge, setting forth facts admissible in evidence, and showing affirmatively that

the affiant is competent to testify to all matters stated in the affidavit.” Mr. Winger’s affidavit

fails to state that it is based on personal knowledge, does not set forth facts admissible in

19

evidence, and does not affirmatively show that he is competent to testify to all matters stated in

the affidavit. Evid. R. 602 similarly provides that “[a] witness may not testify to a matter unless

evidence is introduced to support a finding that the witness has personal knowledge of the

matter.” “Personal knowledge” means “‘[k]nowledge of the truth in regard to a particular fact

or allegation, which is original, and does not depend on information or hearsay.’” Brannon v.

Rinzler, 77 Ohio App.3d 749, 756, 603 N.E.2d 1049 (2d Dist. 1991), quoting Black’s Law

Dictionary (6th Ed. 1990). The staff notes to Rule 602 explain: “A witness is required to testify

from first-hand knowledge which has been acquired by perceiving a fact through one or more of

his five senses.” Mr. Winger’s affidavit purports to set forth historical facts and legal history,

but fails to provide any indication that he has any personal knowledge of the matters it

addresses. It is difficult to imagine how he could. Tolson v. Triangle Real Estate., 10th Dist.

Franklin No. 03AP-715, 2004-Ohio-2640, ¶ 11 (May 25, 2004) (striking portion of affidavit

based on lack of personal knowledge when affiant attested to facts of an event at which he was

not present). Legal conclusions are also not admissible in evidence. Id. at ¶ 12.

Mr. Winger’s affidavit also fails to comply with Evid. Rules 702, 703, and 705. Evid.

R. 702 sets forth the requirements for when an expert may testify. Among the Rules’

requirements is that “[t]he witness’ testimony is based on reliable scientific, technical, or other

specialized information.” Evid. R. 702(C). Mr. Winger’s affidavit fails to establish that his

testimony is based on any reliable technical or other specialized information. It fails to identify

or explain the basis for his testimony. Aside from some citation to legal authorities, he provides

no source for the information he provides. Evid. R. 705 provides that an “expert may testify in

terms of opinion or inference and give the expert’s reasons therefor after disclosure of the

20

underlying fact or data.” Again, aside from citation to legal authority, Mr. Winger’s affidavit

fails to identify the source of the facts or data underlying his opinions.

Finally, Mr. Winger’s testimony does not involve matters outside the comprehension of

a lay person and is improper under Evid. R. 702(A). Mr. Winger proffers testimony about what

the law is and has been as well as past events. The law is not a proper subject of expert

testimony. “Experts are supposed to interpret and analyze factual evidence,” and “[t]hey do not

testify about the law because the judge’s special legal knowledge is presumed to be sufficient.”

United States v. Curtis, 782 F.2d 593, 599 (6th Cir. 1986). What happened in the past is also

something lay people can understand and is not the proper subject of expert testimony. The

facts of an event or occurrence can be established by other forms of evidence, not expert

testimony.

In short, Relators use Mr. Winger’s affidavit as a short cut to legal argument supported

by proper citation to legal authority. The issue in this mandamus case is whether the Secretary

has a clear legal duty to recognize the Libertarians as a minor party under current Ohio law.

This is an issue of statutory construction and not the proper subject of expert testimony. The

affidavit is improper and should not be considered.

Even if Mr. Winger’s affidavit is considered, it is irrelevant and unhelpful to Relators’

claims. Mr. Winger’s affidavit fails to point to a single situation in which a political group has

attained recognized party status under similar circumstances and law. His affidavit points to the

recognition of the Progressive Party in 1912 and the Reform Party in 1998. Winger Aff. at

¶¶ 11, 31-34, See also Relators’ Br. at p. 19. For the Progressive Party’s alleged recognition in

1912, the only source cited in Mr. Winger’s affidavit is State ex rel. Murphy v. Graves, 91 Ohio

St. 36, 109 N.E. 590 (1914). But, all that case establishes is that the Progressive Party had a

21

primary in 1914. It does not speak to how the Progressive Party became a recognized party.

Even assuming that the Progressive Party became a recognized party in the manner Mr. Winger

identifies, his affidavit also establishes a clear difference between the law in 1912 and current

law. His affidavit states that, in 1947, Ohio law was changed to prohibit independent candidates

from identifying themselves with a party or principle. Winger Aff. at ¶ 21. As noted above,

current law is similar and expressly defines an independent candidate as one who does not claim

affiliation with a party.

The only other example that Relators provide to support their historical arguments is the

recognition of the Reform Party for the 1996 presidential election.7 Relators’ Br. at p 19. But,

Mr. Winger’s affidavit explains that the Reform Party submitted a party formation petition and

that Secretary Taft allowed them to cure the signature deficiency in its submission. Winger Aff.

at ¶¶ 32-33. Even according to Mr. Winger’s affidavit, the Reform Party did not obtain

recognition based on the number of votes cast for Ross Perot when he ran as an independent in

1992. Id. at ¶¶31-32. His affidavit states: “There is no record of whether [Perot] or his group of

supporters sought to exercise their right to be a political party in Ohio following the 1992

election.” Id. at ¶ 31. In short, Mr. Winger’s affidavit does not establish any practice of

permitting party recognition in the manner Relators advocate here.

IX. The LPO previously acknowledged that it cannot obtain recognized party status based on the votes cast for Johnson/Weld.

The LPO acknowledged just a few months ago that it could not obtain recognized party

status based on the number of votes cast for Johnson and Weld. Respondent’s Submission of

Evid. Ex. 4. But now, the LPO has combined with Relators to request just that. Relators

7 Paragraph 33 states that Secretary Taft certified the Reform Party to run Ross Perot on April 16, 2016. That date is clearly incorrect.

22

contend that the Secretary’s position has somehow been inconsistent and that his prior briefs

support their position here. They do this without actually filing with this Court any of the federal

pleadings they discuss extensively. The Secretary submits all the federal filings referenced by

Relators for the Court’s convenience. See Respondent’s Submission of Evid. Ex. 4-11. Those

filings demonstrate that the Secretary has never stated or even implied that an independent

candidate’s committee constitutes a “group of voters” who can, after an election is over, identify

itself as a party and seek party recognition based on the number of votes the independent

candidate received. To the extent these filings show any inconsistency with the present case, it is

the LPO that has changed position. As the LPO told the United States Supreme Court just a few

months ago:

Assuming Johnson/Weld were to be certified as an independent ticket and survive official protests, it (unlike the established parties’ presidential tickets) will still not represent LPO as a political party, will not be listed as the “Libertarian” ticket on Ohio’s ballot, and cannot meet Ohio’s 3% vote test on behalf of LPO in order to win for it qualified political party status in Ohio in future elections.

See Respondent’s Submission of Evid. Ex. 4.

23

X. Conclusion

Relators have failed to establish their entitlement to the relief they seek by the required

clear and convincing evidence. Relators are not entitled to obtain recognized party status for the

LPO based on the number of votes cast for an independent candidate. Granting the LPO party

status would be contrary to law. The Secretary properly followed Ohio law in denying their

request. At a minimum, his interpretation of the law is reasonable and entitled to deference. The

writ should be denied.

Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General s/ Halli Brownfield Watson HALLI BROWNFIELD WATSON (0082466)*

*Counsel of Record JORDAN S. BERMAN (0093075) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-728-7592 halli.watson@ohioattorneygeneral.gov jordan.berman@ohioattorneygeneral.gov Counsel for Respondent Ohio Secretary of State

24

CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Respondent’s Merit Brief was served by

regular U.S. mail, postage prepaid, and email on January 6, 2017, upon the following:

Mark R. Brown (0081941) 303 East Broad Street Columbus, Ohio mbrown@law.capital.edu Counsel for Relators

s/ Halli Brownfield Watson HALLI BROWNFIELD WATSON (0082466) Assistant Attorney General

APPENDIX

3501.01 Definitions, OH ST § 3501.01

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

KeyCite Yellow Flag - Negative Treatment

 Unconstitutional or PreemptedPrior Version Held Unconstitutional as Applied by Libertarian Party of Ohio v. Blackwell, 6th Cir.(Ohio), Sep. 06, 2006

 KeyCite Yellow Flag - Negative TreatmentProposed Legislation

Baldwin's Ohio Revised Code AnnotatedTitle XXXV. Elections (Refs & Annos)

Chapter 3501. Election Procedure; Election Officials (Refs & Annos)General Provisions

R.C. § 3501.01

3501.01 Definitions

Effective: September 29, 2015Currentness

As used in the sections of the Revised Code relating to elections and political communications:

(A) “General election” means the election held on the first Tuesday after the first Monday in each November.

(B) “Regular municipal election” means the election held on the first Tuesday after the first Monday in November ineach odd-numbered year.

(C) “Regular state election” means the election held on the first Tuesday after the first Monday in November in eacheven-numbered year.

(D) “Special election” means any election other than those elections defined in other divisions of this section. A specialelection may be held only on the first Tuesday after the first Monday in May, August, or November, or on the dayauthorized by a particular municipal or county charter for the holding of a primary election, except that in any year inwhich a presidential primary election is held, no special election shall be held in May, except as authorized by a municipalor county charter, but may be held on the second Tuesday after the first Monday in March.

(E)(1) “Primary” or “primary election” means an election held for the purpose of nominating persons as candidates ofpolitical parties for election to offices, and for the purpose of electing persons as members of the controlling committeesof political parties and as delegates and alternates to the conventions of political parties. Primary elections shall be heldon the first Tuesday after the first Monday in May of each year except in years in which a presidential primary electionis held.

(2) “Presidential primary election” means a primary election as defined by division (E)(1) of this section at which anelection is held for the purpose of choosing delegates and alternates to the national conventions of the major politicalparties pursuant to section 3513.12 of the Revised Code. Unless otherwise specified, presidential primary elections areincluded in references to primary elections. In years in which a presidential primary election is held, all primary electionsshall be held on the second Tuesday after the first Monday in March except as otherwise authorized by a municipal orcounty charter.

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(F) “Political party” means any group of voters meeting the requirements set forth in section 3517.01 of the RevisedCode for the formation and existence of a political party.

(1) “Major political party” means any political party organized under the laws of this state whose candidate for governoror nominees for presidential electors received not less than twenty per cent of the total vote cast for such office at themost recent regular state election.

(2) “Minor political party” means any political party organized under the laws of this state that meets either of thefollowing requirements:

(a) Except as otherwise provided in this division, the political party's candidate for governor or nominees for presidentialelectors received less than twenty per cent but not less than three per cent of the total vote cast for such office at the mostrecent regular state election. A political party that meets the requirements of this division remains a political party fora period of four years after meeting those requirements.

(b) The political party has filed with the secretary of state, subsequent to its failure to meet the requirements of division(F)(2)(a) of this section, a petition that meets the requirements of section 3517.01 of the Revised Code.

A newly formed political party shall be known as a minor political party until the time of the first election for governoror president which occurs not less than twelve months subsequent to the formation of such party, after which electionthe status of such party shall be determined by the vote for the office of governor or president.

(G) “Dominant party in a precinct” or “dominant political party in a precinct” means that political party whose candidatefor election to the office of governor at the most recent regular state election at which a governor was elected receivedmore votes than any other person received for election to that office in such precinct at such election.

(H) “Candidate” means any qualified person certified in accordance with the provisions of the Revised Code forplacement on the official ballot of a primary, general, or special election to be held in this state, or any qualified personwho claims to be a write-in candidate, or who knowingly assents to being represented as a write-in candidate by anotherat either a primary, general, or special election to be held in this state.

(I) “Independent candidate” means any candidate who claims not to be affiliated with a political party, and whose namehas been certified on the office-type ballot at a general or special election through the filing of a statement of candidacyand nominating petition, as prescribed in section 3513.257 of the Revised Code.

(J) “Nonpartisan candidate” means any candidate whose name is required, pursuant to section 3505.04 of the RevisedCode, to be listed on the nonpartisan ballot, including all candidates for judicial office, for member of any board ofeducation, for municipal or township offices in which primary elections are not held for nominating candidates bypolitical parties, and for offices of municipal corporations having charters that provide for separate ballots for electionsfor these offices.

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(K) “Party candidate” means any candidate who claims to be a member of a political party and who has been certified toappear on the office-type ballot at a general or special election as the nominee of a political party because the candidatehas won the primary election of the candidate's party for the public office the candidate seeks, has been nominated undersection 3517.012, or is selected by party committee in accordance with section 3513.31 of the Revised Code.

(L) “Officer of a political party” includes, but is not limited to, any member, elected or appointed, of a controllingcommittee, whether representing the territory of the state, a district therein, a county, township, a city, a ward, a precinct,or other territory, of a major or minor political party.

(M) “Question or issue” means any question or issue certified in accordance with the Revised Code for placement on anofficial ballot at a general or special election to be held in this state.

(N) “Elector” or “qualified elector” means a person having the qualifications provided by law to be entitled to vote.

(O) “Voter” means an elector who votes at an election.

(P) “Voting residence” means that place of residence of an elector which shall determine the precinct in which the electormay vote.

(Q) “Precinct” means a district within a county established by the board of elections of such county within which allqualified electors having a voting residence therein may vote at the same polling place.

(R) “Polling place” means that place provided for each precinct at which the electors having a voting residence in suchprecinct may vote.

(S) “Board” or “board of elections” means the board of elections appointed in a county pursuant to section 3501.06of the Revised Code.

(T) “Political subdivision” means a county, township, city, village, or school district.

(U) “Election officer” or “election official” means any of the following:

(1) Secretary of state;

(2) Employees of the secretary of state serving the division of elections in the capacity of attorney, administrative officer,administrative assistant, elections administrator, office manager, or clerical supervisor;

(3) Director of a board of elections;

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(4) Deputy director of a board of elections;

(5) Member of a board of elections;

(6) Employees of a board of elections;

(7) Precinct election officials;

(8) Employees appointed by the boards of elections on a temporary or part-time basis.

(V) “Acknowledgment notice” means a notice sent by a board of elections, on a form prescribed by the secretary of state,informing a voter registration applicant or an applicant who wishes to change the applicant's residence or name of thestatus of the application; the information necessary to complete or update the application, if any; and if the applicationis complete, the precinct in which the applicant is to vote.

(W) “Confirmation notice” means a notice sent by a board of elections, on a form prescribed by the secretary of state,to a registered elector to confirm the registered elector's current address.

(X) “Designated agency” means an office or agency in the state that provides public assistance or that provides state-funded programs primarily engaged in providing services to persons with disabilities and that is required by the NationalVoter Registration Act of 1993 to implement a program designed and administered by the secretary of state for registeringvoters, or any other public or government office or agency that implements a program designed and administered by thesecretary of state for registering voters, including the department of job and family services, the program administeredunder section 3701.132 of the Revised Code by the department of health, the department of mental health and addictionservices, the department of developmental disabilities, the opportunities for Ohioans with disabilities agency, and anyother agency the secretary of state designates. “Designated agency” does not include public high schools and vocationalschools, public libraries, or the office of a county treasurer.

(Y) “National Voter Registration Act of 1993” means the “National Voter Registration Act of 1993,” 107 Stat. 77, 42U.S.C.A. 1973gg.

(Z) “Voting Rights Act of 1965” means the “Voting Rights Act of 1965,” 79 Stat. 437, 42 U.S.C.A. 1973, as amended.

(AA) “Photo identification” means a document that meets each of the following requirements:

(1) It shows the name of the individual to whom it was issued, which shall conform to the name in the poll list or signaturepollbook.

(2) It shows the current address of the individual to whom it was issued, which shall conform to the address in the polllist or signature pollbook, except for a driver's license or a state identification card issued under section 4507.50 of the

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3501.01 Definitions, OH ST § 3501.01

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Revised Code, which may show either the current or former address of the individual to whom it was issued, regardlessof whether that address conforms to the address in the poll list or signature pollbook.

(3) It shows a photograph of the individual to whom it was issued.

(4) It includes an expiration date that has not passed.

(5) It was issued by the government of the United States or this state.

CREDIT(S)(2015 H 64, eff. 9-29-15; 2015 H 153, eff. 9-9-15; 2013 S 109, eff. 2-25-14; 2013 S 193, eff. 2-5-14; 2013 H 59, eff. 9-29-13;

2012 S 295, eff. 8-15-12; 2009 S 79, eff. 10-6-09; 2007 H 119, eff. 9-29-07; 2006 H 3, eff. 5-2-06 (Implemented eff. 6-1-06);2002 H 445, eff. 12-23-02; 1999 H 471, eff. 7-1-00; 1999 H 157, eff. 9-20-99; 1995 H 99, eff. 8-22-95; 1994 S 300, eff.1-1-95; 1994 H 8, eff. 6-8-94; 1993 S 150, eff. 12-29-93; 1987 H 231; 1986 S 185; 1983 S 213; 1981 H 235; 1980 H 1062;1974 H 662; 1971 S 460; 1969 S 35; 1953 H 1; GC 4785-3)

Notes of Decisions (58)

R.C. § 3501.01, OH ST § 3501.01Current through Files 128, 130, 131, 133 to 138 and 143 of the 131st General Assembly (2015-2016).

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

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