Libertarian Candidates Lose Ohio Ballot Access
(CN) - The Supreme Court on Monday refused to let the Ohio Libertarian Party block a law that invalidates signatures collected for its candidates, forcing them off this month's primary ballots.
At issue is section 3501.38(E)(1) of the Ohio Revised Code, which requires circulators of election petitions to disclose their employer's information. After the 6th Circuit refused to grant the party an injunction against the rule on Thursday, the Supreme Court denied the party's application Monday for a stay and injunctive relief.
Since the secretary of state in Ohio does not have the resources to check all the petitions it receives for compliance with the disclosure requirement, it relies on protests to reveal noncompliance, Ohio Director of Elections Matthew Damshroder had testified.
In a 10-year career as a professional petition circulator, Oscar Hatchett has never had signatures invalidated for his failure to complete the employer-statement box.
"In the absence of a protest, Husted's practice had been not to check petitions to see whether the employer name and address were omitted," the 29-page opinion states.
Hatchett spent this past winter helping the Libertarian Party of Ohio, or LPO, collect the requisite of signatures necessary to get their candidates like Charlie Earl on Ohio's ballot, but as in past years he never filled out the employer-statement box on the form.
It became an issue this year with a challenge by Gregory Felsoci, whom the courts have described as a "guileless dupe" and likely "tool of the Republican Party."
After commissioning a report on the matter, Ohio Secretary of State John Husted, a Republican, invalidated the LPO's signatures, leaving Earl and the other candidates ineligible.
"This was the first occasion on which enforcement of the employer disclosure requirement had resulted in the disqualification of a statewide candidate," Judge Julia Gibbons wrote for a three-judge panel in Cincinnati.
The LPO challenged Husted's decision on First Amendment grounds, but the 6th Circuit affirmed that the party does not deserve an injunction because it "failed to establish a likelihood of success on the merits of its constitutional claims."
"We recognize that absent injunctive relief, the disqualification of the LPO from the 2014 Ohio primary ballot and general election ballots represents a severe and irreparable injury to the LPO," Gibbons wrote. "Without 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. We note that the LPO has struggled to become and remain a ballot-qualified party in Ohio, and we acknowledge that this decision entails that their efforts must continue still. But we also note that we decide one case at a time, on the record before us. In so doing, we preserve the First Amendment's primary place in our democracy over the long run."
Earlier in the decision, S.B. 193 is described as having "changed the criteria for a minor party to obtain ballot access."
"The LPO has provided 'scant evidence' that Ohio's employer disclosure requirement for paid circulators places any burden whatsoever on circulators of petitions for candidacy nominations," Gibbons wrote.
The party was able to find circulators for its petitions even on short notice, in a particularly harsh winter, the court noted.
In effect for 10 years without any prior issue, "it appears that the employer disclosure requirement serves substantial and legitimate state interests," Gibbons added.
"The governmental interest is far more than theoretical since Ohio has experienced fraud by paid circulators," she continued. "The most notable instance of fraud occurred during the circulation of petitions for a minor party candidate, Ralph Nader. The requirement serves an ongoing function of deterring fraud and facilitating its detection."
Though the U.S. Supreme Court invalidated a law prohibiting the distribution of campaign literature that did not contain the name and address of the person handing out the literature in McIntyre v. Ohio Elections Commission, the 6th Circuit found McIntyre easy to distinguish from this case.
"The employer disclosure requirement is a 'far cry' from a blanket prohibition on all anonymous campaign literature," Gibbons wrote. "While we recognize that the employer disclosure requirement necessarily negates the total anonymity of paid circulators of candidacy nomination petitions, the requirement's chill of speech protected by the First Amendment is far less than the freeze-out which the McIntyre court confronted."
The LPO expressed its disappointment with the decision and noted that its "lead attorney Mark Brown is asking the court for a stay, and is appealing the decision to the United States Supreme Court."
The Supreme Court shot the party down without comment in a brief order published Monday afternoon.