CINCINNATI (CN) — The Sixth Circuit heard oral arguments on Thursday in a case set to determine whether a law governing the structure of Ohio’s political parties based on gender is unconstitutional.
Political parties in the state of Ohio are run by controlling committees that handle operations and policies of the parties. State law requires that one man and one woman represent each district of the party's central committee.
Ohioan Brian Ames challenged the law in 2022, claiming the gender quota violates civil rights protections.
“A political party, its members, representatives, and its candidates also have a freedom to speak freely and communicate ideas in a manner they see fit. And a government further has no compelling interest in dictating who political parties choose as their representatives, or how those parties manage their political affairs," Ames wrote in the lawsuit.
"Thus, a state statute cannot dictate the gender(s) that a political party must choose as its representative based upon that representative’s gender identity.”
Ames, a member of the Republican State Central Committee, said in his suit that the law harms members because it prevents them from voting to have two women or two men represent them to the statewide party.
After a federal judge ruled against him, Ames appealed the case to the Sixth Circuit, claiming the lower court improperly found he lacked standing to challenge the Ohio law.
The question of standing dominated the roughly 30-minute oral arguments Thursday.
Representing Ames, attorney Matt Miller-Novak said members of a party should be allowed to challenge governing statues based upon free association grounds; otherwise such rules could be challenged only by the governing body itself, which could better serve those with power than party members.
“I know this is going to sound like an extreme example, but let’s say a political party’s members were 95% Caucasian, and the state passed a law saying that you had to choose a Caucasian male and Caucasian female — and there’s only 5% representation of minorities in that political party," Novak posited. "What real ability would they have to challenge that statute to freely associate with that association?”
U.S. Circuit Judge Rachel Bloomekatz, who was appointed by President Joe Biden, challenged Novak on the premise.
“In your hypothetical wouldn’t they just sue the party? We have cases that say in those contexts they can, and have,” she said.
Novak replied that he didn't believe a political party could be sued in that manner.
Assistant Attorney General Andrew McCartney appeared on behalf of Ohio Secretary of State Frank LaRose, and responded to questions about the same hypothetical scenario, refuting Novak by saying a lawsuit against the party in fact “could be done in those circumstances.”
“This would apply in both that hypothetical and in our case," McCartney said. "Politics is messy and it does involve different movements within parties, different individuals using the leadership and influence skills that they have to bring about change at the local level.”
The judges questioned both sides about the how the court could even remedy the case; evidence wasn't presented that if the court were to strike down the law Ohio’s Republican party would change its procedure.
Miller-Novak said the ruling itself would be important because it would demonstrate that members could challenge the party's rules.
U.S. Circuit Court Judge Alice Batchelder, a President George H.W. Bush appointee, pushed back.
“You still don’t have to have any evidence in the record that shows, if we struck down this statute, that the party in Ohio would say, 'Wow, that’s a relief, now we are going to change our rules,'” Batchelder said.
To Novak, the ruling shouldn't hinge on the lack of evidence.
"I think it’s about the meaningfulness of choice,” Novak said. “Because — why would a party necessarily make the decision, if it doesn’t have to make the decision, to have bylaws that conflict with the statute?”
McCartney took on that argument in a brief, saying Ames lacks standing because the Ohio Republican Party’s rules would remain, and thus the ruling would change nothing.
“Ames was required to either allege facts or present evidence that the ORP opposes the Challenged Provisions and would not include the same restrictions in their Rules absent the statute. But he failed to do either here. Therefore, he failed to carry his burden to plead, let alone establish, the second requirement for standing, causation. Accordingly, he lacks standing for this additional reason,” the brief states.
U.S. Circuit Court Judge Richard Griffin Allen, a President George W. Bush appointee, was the third member of the panel.
The judges did not set a timetable for a ruling.
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