CINCINNATI (CN) - Ohio Secretary of State Jon Husted cannot be held personally liable for enforcing a law that a federal judge declared unconstitutional, the Sixth Circuit ruled Tuesday.
The Ohio Legislature in 2013 passed a law that prohibited people from circulating a petition unless they were an Ohio resident and at least 18 years old.
In a 2008 ruling, Nader v. Blackwell, the Sixth Circuit invalidated an Ohio law that required presidential petition circulators to be registered to vote in Ohio and to reside in the precinct where they gathered signatures.
Husted, while acknowledging that "a court may ultimately find this [new] law unconstitutional," said he would enforce the 2013 law until a court directed him otherwise.
Lead plaintiff Citizens in Charge then hired a firm to gather signatures for an initiative petition, paying a higher-than-normal fee to ensure that it hired only Ohio residents.
Then it sued Husted, along with Ohioans for Workplace Freedom, and Cincinnati for Pension Reform, challenging the law as unconstitutional and holding Husted personally responsible for the extra money it spent due to his decision to enforce it.
A federal judge declared the law unconstitutional, and denied Husted qualified immunity for enforcing it.
On appeal, Husted challenged the denial of qualified immunity - but not the injunction. The Sixth Circuit reversed and remanded, "direct(ing) the court to grant summary judgment to Husted on the plaintiffs' money-damages claims, and remand(ing) for further proceedings consistent with this opinion.
The Sixth Circuit questioned whether it was Husted's fault that Citizens in Charge incurred additional costs to hire resident petition circulators before filing a lawsuit, but said it did not need to make its decision on that ground.
"At the time Husted acted, no court had declared this residency requirement unconstitutional and he acted reasonably in saying he would enforce it," Judge Jeffrey Sutton wrote for the three-judge panel.
Nader declared the residency restriction unconstitutional as applied to circulators working on a presidential candidate's campaign, but the new law created an exemption for presidential nominating petitions. It also expanded the residency restriction, allowing any Ohio citizen to work as a petition circulator without a voting precinct residence requirement.
"Because Secretary Husted acted in the face of legislative action (a duly enacted, presumptively constitutional law) and judicial inaction (the absence of an on-point decision making the law unconstitutional), he did not violate clearly established law or otherwise act unreasonably," Sutton found.
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