Exhibit,Appendix: LIBERTARIAN PARTY OHIO Vs OHIO SECRETARY STATE VS.OHIO SECRETARY STATE ET AL

On January 19, 2016 a Exhibit,Appendix was filed involving a dispute between and for OTHER CIVIL in the District Court of Franklin County.

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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
Deborah S. Hunt POTTER STEWART U.S. COURTHOUSE Tel. (513) 564-7000
Clerk CINCINNATI, OHIO 45202-3988 www. SCOUTS. BOV

Filed: July 29, 2016

Mr. Jordan S. Berman
Ms. Sarah E. Pierce
Ms. Halli Brownfield Watson
Office of the Attorney General of Ohio
30 E. Broad Street, 17th Floor
Columbus, OH 43215

Mr. Mark R. Brown
303 E. Broad Street
Columbus, OH 43215

Mr. Mark G. Kafantaris
625 City Park Avenue
Columbus, OH 43206

Mr. Steven Walter Tigges
Mr. John W. Zeiger
Zeiger, Tigges & Little
41S. High Streeet, Suite 3500
Columbus, OH 43215

Mr. Christopher David Wiest
25 Town Center Boulevard, Suite 104
Crestview Hills, KY 41017

Re: Case No. 16-3537, Libertarian Party, et al v. Jon Husted, et al
Originating Case No. : 2:13-cv-00953

Dear Counsel,

The court today announced its decision in the above-styled case.

Enclosed is a copy of the court's opinion together with the judgment which has been entered
in conformity with Rule 36, Federal Rules of Appellate Procedure.

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Yours very truly,

Deborah S. Hunt, Clerk

Cathryn Lovely
Deputy Clerk

ce: Mr. Richard W. Nagel

Enclosures

Mandate to issue.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit !.0.P. 32.1(b)
File Name: 16a0178p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LIBERTARIAN PARTY OF OHIO; KEVIN KNEDLER;
AARON HARRIS; CHARLIE EARL,
Plaintiffs-Appellants,
No. 16-3537
vp

JON HUSTED, Secretary of State,
Defendant-Appelle,

STATE OF OHIO; GREGORY A. FELSOCI,
Intervenors-Appellees.
4

Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:13-cv-00953—Michael H. Watson, District Judge.

Decided and Filed: July 29, 2016

Before: MOORE, CLAY, and DONALD, Circuit Judges.

COUNSEL

ON BRIEF: Mark G. Kafantaris, Columbus, Ohio, Mark R. Brown, Columbus, Ohio, for
Appellant Halli Brownfield Watson, Jordan S. Berman, Sarah E. Pierce, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees Husted and State of Ohio
Steven W. Tigges, John W. Zeiger, ZEIGER, TIGGES & LITTLE LLP, Columbus, Ohio, for
Appellee Felsoci.

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No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 2

OPINION

KAREN NELSON MOORE, Circuit Judge The Libertarian Party of Ohio (the
“Libertarian Party, ne the Party,” or “LPO”), together with members of its party leadership and its
2014 gubernatorial candidate, appeal from the district court’s grant of summary judgment in
favor of Ohio Secretary of State Jon Husted, the State of Ohio, and Gregory Felsoci The
Libertarian Party raises three issues on this appeal (1) whether state actors selectively enforced
Ohio Revised Code § 3501.38(E)(1) against Libertarian Party candidates in violation of the First
and Fourteenth Amendments; (2) whether SB 193 violates the Equal Protection Clause of the
Fourteenth Amendment in requiring newly created minor parties to nominate candidates for the
general election by petition, rather than by primary election; and (3) whether the State of Ohio
was entitled to Eleventh Amendment immunity on the Libertarian Party’s state-law claim. For
the reasons discussed below, we AFFIRM.

I, BACKGROUND

This case arises out of a long history of challenges to Ohio election laws, and specifically
challenges brought by the Libertarian Party to access the ballot in Ohio. To best understand the
current dispute, a brief foray into this background is needed.

A. A Recent History of Minor Party Ballot Access in Ohio

As our Circuit explained in a related opinion, “the LPO has struggled to become and
remain a ballot-qualified party in Ohio through frequent litigation.” Libertarian Party of Ohio v.
Husted, 751 F.3d 403, 405 (6th Cir 2014). Throughout this struggle, “{tfhe LPO has
successtully challenged Ohio laws burdening its access to the ballot,” id., including a significant
victory in 2006 in Libertarian Party of Ohio v. Blackwell, 462 F 3d 879 (6th Cir, 2006)

In Blackwell, we considered Ohio’s then-existing “two methods by which a party cfould]
qualify for the primary election” and reach the general-election ballot. fd. at 582. First, “[a]ny
party that, in the preceding state election, receive[d] at least five percent of the vote for its

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candidate for governor or president automatically qualife[d] for the next statewide election.” Jd.
at 582-83 Second, parties receiving less than the five-percent threshold needed to “file a
petition no later than 120 days prior to the date of the primary election [and 364 days prior to the
general election} that contain[ed] the number of signatures equal to one percent of the total votes
cast in the previous election.” id. at 583. A party that failed to meet these requirements was
barred from “participat[ing] in the primary and [was] thus prevented from appearing on the
general election ballot.” dd.

The Libertarian Party argued that this law violated its First and Fourteenth Amendment
rights, and we agreed. Considering the signature requirement and the extremely early petition-
filing deadline in combination, we held that the law “impose[d] a severe burden on the First
Amendment rights of the LPO,” id. at 591, and that the state failed to justify this burden with a
sufficiently weighty state interest. fd. at 591-95.

Following our decision in Blackwell, “the Ohio General Assembly [took] no action to
establish ballot access standards for minor political parties.” Libertarian Party of Ohio v.
Brunner, 567 F. Supp. 2d 1006, 1009 (S.D. Ohio 2008). In the absence of legislation, in 2007,
Ohio’s Secretary of State issued Directive 2007-09 (the “Directive fd. at 1010 The
Secretary's Directive maintained Ohio’s “requirement that minor parties nominate their
candidates by primary election,” but changed the party qualification process by requiring minor
patties to “obtain petition signatures equal to one-half of one percent of the votes cast for
governor in the” last general election and to “file nominating petitions 100 days before the
primary,” still “nearly a full year before the general election.” fa.

The Libertarian Party hallenged the Directive in federal court, and the district court
granted a preliminary injunction preventing the Directive from going inte effect. First, the
district court concluded that the federal constitution mandates that “only the legislative branch”
of a state, not a state’s Secretary of State, “has the authority to prescribe the manner of
electing candidates for federal office.” dd. at 1011 Moreover, the district court concluded that,
even assuming that the Secretary had the authority to issue the Directive, it was likely
unconstitutional nonetheless because the Directive still imposed impermissible burdens on minor
political parties, dd. at 1013 “fTjn the absence of constitutional, ballot access standards” in

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Ohio, the district court ordered that the Libertarian Party’s candidates “be placed on the 2008
general election ballot for the state of Ohio.” fd. at 1015-16. The Secretary of State granted the
Libertarian Party ballot access through additional direc! 3 in 2011 See Libertarian Party of
Ohio v. Husted, No. 2:11-CV-722, 2011 WL 3957259 (S.D. Ohio Sept. 7 > 2011), vacated as
moot, 497 F. App’x 581 (6th Cir. 2012).

Tn 2011, Ohio enacted HB 194, which required that minor parties file petitions with the
requisite number of signatures 90 days before the primary, “a mere 30 days” earlier than the law
found unconstitutional in Blackwell. id. at *1. At the same time, the law “did nothing” to
change the quantity of signatures required. /d. Finding that the law imposed an unconstitutional
burden on the ability of minor parties to access the ballot, a federal district court granted a
preliminary injunction and prevented Ohio from implementing the statute’s changes. /d. at *6
HB 194 was later repealed following a referendum. Libertarian Party of Ohio, 497 F. App’x at
583. The Ohio Secretary of State subsequently issued an additional directive in 2013 that
“continued the practice of recognizing minor political parties and granting them access to the
ballot for both the primary and general elections.” Libertarian Party of Ohio v. Husted, No.
2:13-CV-953, 2014 WL 11515569, at *2 (S.D. Ohio Jan. 7, 2014)

The Libertarian Party initiated the current lawsuit against Secretary Husted on September
25, 2013, in the U.S. District Court for the Southern District of Ohio. R. 1 (Compl. at 1) (Page
ID #1). The Libertarian Party’s complaint alleged claims under the First Amendment of the U.S
Constitution against Ohio’s law that imposed residency requirements on petition circulators. Id.
at 6-7 (Page ID #6-7). The State of Ohio intervened as a defendant. R. 5 (Mot. to Intervene)
(Page ID #23). The district court preliminarily enjoined enforcement of Ohio’s circulator law on
November 13, 2013. R. 18 (11/13/13 D. Ct. Op. at 1) (Page ID #143)

B. SB 193 and the Libertarian Party’s Amended Complaint

SB 193 was signed into law on November 6, 2013, and made several changes to the
methods by which minor parties can qualify for the ballot in Ohio. Libertarian Party of Ohio,
2014 WL 11515569, at *2. SB 193 explicitly voided the Secretary’s prior directives that
qualified the Libertarian Party and other minor parties for the ballot, resulting in the requirement

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that these parties would need to qualify for the ballot as new parties. fd; see SB 193, 130th Gen
Assemb., at § 3 (Ohio 2013). The law also amended Ohio law to create two methods by which a
political party can qualify as a “[mJinor political party” in Ohio. See Ohio Rev. Code
§ 3501.01(F)(2).
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.” Jd. 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. § 3501.01(F)(2)(b). A party forming via petition must: (1) collect signatures from
“qualified electors equal in number to at least one percent of the total vote for governor or
president” at the most recent election; (2) file a petition that is signed by at least “five hundred
qualified electors from each of at least ... one-half of the congressional districts in” Ohio; and
(3) file the petition more than 125 days before the upcoming general election.
§ 3517.01(A)(1)(b). The Secretary of State must determine the sufficiency of the petition at least
95 days before the general election. § 3517.012(A)(2)(d).

SB 193 removed the requirement that all parties nominate their candidates for the general
election through a primary {nstead, a petition-formed party must nominate a candidate for the
general election by petition §3517.012 This candidate-nominating petition must be filed
“Injot later than one hundred ten days before the” general lection. § 3517.012(B\1). For
statewide office, the candidate-nominating petition must be “signed by at least fifty qualified
electors who have not voted as a member of a different political party at any primary election
vithin the current year or the immediately preceding two calendar years.” § 3517.012(B2\a)
For local office, five qualifying signatures are required. § 3517.012(B\{2Xb).

SB 193 also established processes by which individuals can protest the filing of a party-
formation petition or a candidate-nominating petition. § 3517.012(B43)() Specitically,
written protests against candidate-nominating petitions “may be filed by any qualified elector
eligible to vote for the candidate whose nominating petition the elector objects to not later than

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the seventy-fourth day before the general election,” and the protest may challenge the sufficiency
of the petition on several grounds. § 3513.263. Candidates who file “insufficient” petitions may
“not appear on the ballot in the general election.” § 3517.012(C)(2).

On November 8, 2013, the Libertarian Party amended its complaint in the Southern
District of Ohio to add counts challenging SB 193 R. 16 (Am. Compl. at 16) (Page 1D #101).
Count Three alleged a due process and First Amendment challenge to SB 193 against Secretary
Husted, Count Four alleged an Equal Protection and First Amendment challenge to $.B. 193
against Secretary Husted; and Count Five alleged a challenge under the Ohio Constitution
against both Secretary Husted and the intervenor-defendant State of Ohio. Id. at 15-18 (Page ID
#101-04). The State of Ohio answered and asserted Eleventh Amendment immunity to Count
Five. R. 21 (State of Ohio Answer at 11) (Page ID #222

”7
On January 7 2014, the district court preliminarily enjoined SB 193 from taking effect
for the 2014 election, finding that because the Libertarian Party expected to be ballot-qualified
for the 2014 election under the Secretary’s 2013 Directive, the retroactive application of SB 193
to that election oiding the Secretary’s Directive and requiring that the Libertarian Party start
from scratch to qualify for the ballot—violated due process Libertarian Party af Ohio v.
Husted, No. 2:13-CV-953, 2014 WL 11515569, at *10-11 (8.D. Ohio Jan. 7, 2014). The district
court did not address claims that related to the Ohio Constitution or the federal Equal Protection
Clause.

Cc. The 2014 Election and Felseci’s Protest of LPO Candidates

As a result of the district court’s injunction, the Libertarian Party remained a recognized
political party in Ohio, and it continued its efforts to nominate candidates to appear on the ballot
for the 2014 primary election. The political drama that ensued forms a large basis of the current
appeal In November 2013, the Libertarian Party hired Oscar Hatchett and Sara Hart to collect
signatures for the Party’s statewide candidates such as Charlie Earl, the 2014 LPO gubernatorial
candidate. Libertarian Party of Ohio, 751 F.3d at 407. Hatchett and Hart, together with other
circulators, collected a sufficient number of signatures; after the signatures were verified by the

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local boards of elections, Secretary Husted certified Earl as a Libertarian candidate for the 2014
primary. fd. at 407-09.

On February 21, 2014, Earl’s certification was protested by Gregory Felsoci, an apparent
member of the Libertarian Party. /d. at 409. In a prior opinion, we described Felsoci as a likely
“tool of the Republican Party.” /d. After being shown documents from “a Republican friend,
John Musca,” Felsoci came to believe that “LPO was gathering ‘votes’ without disclosing that
those who gathered them were being paid to do so.” Id. Musca asked Felsoci to get involved
vith pursuing the matter, and Felsoci agreed. “Soon afterward, the Zeiger, Tigges, and Little law
firm contacted Felsoci and offered its assistance.” Jd. Felsoci did not pay legal fees to Zeiger,
nor was Felsoci aware of who was paying the attorney fees. Td. Felsoci protested Earl’s
certification on the basis of Ohio Revised Code § 3501. 38(E)(1), arguing that the statute
“requires independent contractors, not just employees, to complete the employer information
box,” which certain circulators failed to do. fd.

After voluminous discovery in the district court, the Libertarian Party learned more about
the facts leading up to Felsoci’s protest. This information primarily centered on Terry Casey, an
appointed member of the Ohio Board of Personnel Review, self-employed political consultant,
and member of the Republican Party. R. 241-1 (8/28/14 Casey Dep. at 8-12) (Page ID #6215.
19}. Beginning on February 14, 2014, one week before the filing of Feisoci’s protest, Casey sent
several emails to the personal email addresses of Matt Carle, Dave Luketic, and Jeff Polesovsky,
individuals associated with John Kasich’s gubernatorial carmpaign and with the Ohio Republican
Party. See R. 335-3 (July 6 Docs. at 24) (Page ID #8438-40), R. 335-2 (@/16/15 Casey Dep. at
8-10) (Page ID #8345--47). Casey discussed a conversation that he had had with his lawyer,
John Zeiger, concerning the signature-gathering efforts of Libertarian candidates and the legal
bases upon which the signatures might be challenged under Ohio law. R. 335-3 (uly 6 Does. at
3-4) (Page ID #843940), Casey continued to send similar emails throughout the week, noting 4
“need to keep digging and digging on Oscar [Hatchett] He could be a key ‘star’ in this future
production/show.” id. at 6 (Page ID #8442), see alse R. 240-1 (Casey Email Ex. at 7} (Page ID
#6164)

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Chris Schrimpf, the Ohio Republican Party’s Communications Director, submitted a
public-records request to the Secretary of State’s Office on February 13, 2014, “for all Form 14’s
filed for all Libertarian candidates for statewide office.” R. 335-3 (uly 6 Docs. at 9) (Page ID
#8445). On February 18, 2014, Luketic forwarded the forms that Schrimpf received to Casey
id. at 8-9 (Page ID #8444-45). Casey emailed his attorneys on February 18—with Polesovsky,
Luketic, and Carle blind copied and noted that Hatchett and Hart's petitions did not “hafve]
anything filled out to reflect that they admitted being paid for this petition work.” R. 240-1
(Casey Email Ex. at 8} (Page ID #6165) On February 19, Luketic sent the group a “validity
report” analyzing the validity of Earl’s petition signatures. fd. at 13 (Page ID #6170).

On February 19, 2014, Casey emailed Polesovsky and Luketic and indicated his ongoing
search for “a Libertarian potential client.” R. 335-3 (July 6 Does. at 13) (Page ID #8449)
According to Casey, he “asked a number of different people around the state if they knew of any
Libertarian folks... who might have an interest in filing.” R. 335-2 (9/16/15 Casey Dep. at 29-
30) (Page ID #8366-67). At some point, Felsoci was identified as a potential Libertarian Party
member who would have standing to file protest against a Libertarian candidate. See id, at 34-
35 (Page 1D #8. 23 37TA7212 }. Luketic forwarded Felsoci’s voting history to Casey on February 20,
236.2
2014. R. 339-3 (July 6 Does. at 23) (Page ID #8459). On February 21, 2014, Polesovsky gave
Casey the contact information for an attorney, and Casey sent Felsoci’s name and phone number
to the attorney to assist Felsoci in signing the documents needed for filing his protest. R. 335-3
(July 6 Docs. at 35} (Page ID #8471); R. 335-10 (Oct. 6 Does, at 22) (Page ID #8589), see also
R. 335-2 (9/16/15 Casey Dep. at 36) (Page ID #8373).

The cast of characters relevant to this appeal also includes Matthew Damschroder, the
Director of Elections for the Ohio Secretary of State. R. 227-1 (8/26/14 Damschroder Dep. at 7)
{Page ID #5226) in December 2013, Luketic sent Damschroder a text message asking
Damschroder if there were “any petitions gathering from [] Charlie Earl the LIB candidate?” R
227-1 (8/26/14 Damschroder Dep. at 305 (Ex. 16}} (Page ID #5524). Damschroder responded
that he had not heard anything but that he would “keep [his] ear to [the] ground.” Jd Casey
testified that, at some point around the date of February 17, he “mentioned” to Damschroder that
he “wias] looking at doing some kind of” protest filing. R. 241-1 (8/28/14 Casey Dep. at 34-55)

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(Page ID #6261-62). On February 18, 2014, Damschroder emailed members of his staff and
indicated that he “got a call tonight that a protest is likely to come by Friday against Earl,
probably from an unaffiliated voter and [it] will be based on” payment disclosure
information R 227-1 (8/26/14 Damschroder Dep. at 257 (Ex. 3)) (Page ID #5476)
Damschroder does not remember who made the phone call that he referenced in his email,
although he testified that “[i]t could have been” Casey. R. 247 (9/29/14 H’rg Tr. Vol. 1 at 123)
(Page ID #6609)
The deadline for filing a protest was February 21, 2014, at 4:00 PM. Damschroder
emailed his staffat 3:32 PM on February 21 and stated that “[i]f any protests are filed, please let
me know as soon as they come in.” R. 227-1 (8/26/14 Damschroder Dep. at 259 (Ex. 5)) (Page
ID #5478). Damschroder also emailed his staff earlier in the afiernoon and instructed them that
“Gf we get a protest filed with us today, even if it is after 4pm, please accept it, date/timestamp it,
and give it to Sally [Warren] to disseminate.” /d. at 260 (Ex. 6) (Page ID #5479).

Felsoci filed his protest in advance of the 4 PM deadline. The Secretary’s Office then
“referred the protest to Bradley Smith, a hearing officer, to conduct a hearing and issue a report
and recommendation as to the disposition of the protest.” Libertarian Party af Ohio, 751 F 3d at
409-10. A hearing was held on March 4, 2014, and Smith issued a report on March 7, 2014,
concluding that the circulators failed to make necessary disclosures in the employer-information
box. fd. at 410. Smith recommended that these petition papers be ruled invalid. Jd. Secretary
Husted adopted Smith’s recommendation; as a result of Secretary Husted invalidating these
signatures, Earl did not have enough signatures to be eligible to appear as a candidate in the
primary election. éd.

Seeking to avoid the serious consequences of this disqualification, the Libertarian Party
filed a second amended complaint in the district court on March 7, 2014, R. 56-1 (Second Am
Compl. at 1) (Page ID #989), in addition to a motion for a preliminary injunction and temporary
restraining order. R. 57 (Pi. Mot. for Prelim. Inj. and TRO at 1) (Page ID #1041). The
Libertarian Party’s second amended complaint brought several challenges against the employer-
disclosure requirements of § 3501.38(E)(1). Felsoci moved to intervene as a defendant, and the
district court granted his motion on March 20, 2014. R. 85 (03/20/14 D. Ct. Order at 3) (Page [ID

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#2189) After holding an evidentiary hearing, the district court denied the Libertarian Party’s
motion for a preliminary injunction on March 19, 2014. R. 80 (03/19/14 D. Ct. Op. at 1) (Page
ID #2146). The Libertarian Party appealed the denial of the preliminary injunction to this court,
and we affirmed on May 1, 2014, concluding that the Libertarian Party had not “establishfed] a
substantial likelihood of success on the merits of its due process challenge” or its First
Amendment overbreadth challenge. 751 F.3d at 421, 424

D. Third Amended Complaint and Proceedings Below

The Libertarian Party filed a third amended complaint on September 11, 2014. R. 188
(Third Am. Compl.) (Page ID #3796). Among other claims, the Libertarian Party asserted that
Felsoci, Casey, and the Secretary of State’s office selectively enforced the employer-disclosure
requirements of § 3501.38(E)(1) against the Libertarian Party in violation of the First and
Fourteenth Amendments. id. at 50 (Page ID #3845). On September 15, 2014, the Libertarian
Party filed motions for a preliminary injunction and a temporary restraining order, seeking to
place its candidates’ names on the ballot for the 2014 general election. R. 192 (PL. Fourth Mot.
for Prelim. Inj.} (Page ID #3877); R. 194 (Mot. for TRO) (Page ID #3911) The district court
denied the Libertarian Party’s request for a temporary restraining order on the basis of laches, R
225 (9/24/14 D. Ct. Op. at 2) (Page ID #5142), and denied the Libertarian Party’s motion for a
preliminary injunction because the Party could not establish that Secretary Husted’s decision was
influenced by political aninius or that Felsoci engaged in state action in filing his protest, R. 260
(10/17/44 D. Ct. Op. at 19, 22) (Page ID #7092, 7095}.

Following the district court’s denial of a preliminary injunction, the parties filed motions
and cross-motions for summary judgment See, e.g, R. 261-1 (Mem. in Supp. of Mot. for
Summ. J.) (Page ID #7112); R. 267 (Def. Resp. and Cross-Motion for Summ. J. at 1) (Page ID
#7191). These motions addressed the Libertarian Party’s claims that SB 193 violates the Ohio
Constitution and the Equal Protection Clause claims that the district court did not address in its
January 7, 2014 preliminary-injunction ruling—in addition to the claim that § 3501.38(E)(1) was
selectively enforced in violation of the First and Fourteenth Amendments. See, e.g., id. at 11, 17

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(Page ID #7209, 7215).1 The district court denied the Libertarian Party’s claim that SB 193
violated the Equal Protection Clause, both on its face, R. 285 (03/16/15 D. Ct. Op. at 32) (Page
ID #7516), and as applied, R. 336 (10/14/15 D. Ct. Op at 14) (Page ID #8700). The district
court also dismissed Count Five (regarding the Ohio Constitution) as barred by the Eleventh
Amendment. id. at 18 (Page ID #8704).

The district court permitted discovery to continue with regards to the Libertarian Party’s
selective-enforcement claim, id. at 21 (Page ID #8707), and the parties filed additional summary-
judgment motions that addressed the selective-enforcement claim alone, see R. 338 (PI. Renewed
Mot. for Summ. J. at 1) (Page ID #8717); R. 344 (Husted Count Seven Mot. for Summ. J. at 1)
(Page ID #8747), R. 346 (Felsoci Count Seven Cross Mot. for Summ. J. at 1) (Page ID #8767)
On May 20, 2016, the district court granted summary judgment in favor of the defendants on the
selective-enforcement claim. Libertarian Party of Ohio v. Husted , --- F. Supp. 3d ----, 2016 WL
2977286, at *1 (S.D. Ohio May 20, 2016). The district court entered final judgment on the same
at,
day, R. 37 0 Gudgment at 1) (Page ID #8948), and LPO timely appealed, R. 371 (Notice of
Appeal at 1) (Page ID #8957).

II. DISCUSSION

A. Federal Claims

On appeal, the Libertarian Party raises two challenges under the U.S. Constitution. First,
the Libertarian Party contends that Felsoci, Casey, the Ohio Republican Party, and Damschroder
selectively enforced Ohio Revised Code § 3501.38(E)(1) against the Libertarian Party in
violation of the First and Fourteenth Amendments. Second, the Libertarian Party argues that SB
193 violates the Equal Protection Clause because SB 193 denies the Party the opportunity to
participate in the primary election.

‘Other third parties not currently before us intervened as plaintiffs and asserted Equal Protection and First
Amendment challenges to SB 193; these intervening plaintiffs also filed motions for summary judgment, R. 165
(Intervening Pl. Mot. for Summ. J. at 1) (Page ID #3261), to which the state responded and moved for cross-
summary judgment, see, e.g., R. 185 (State Cross-Mot. for Summ. J. on Intervenor-Plaintiff Challenge at 1). LPO
joined in the intervening plaintiffs’ motion for summary judgment in filing its motion for summary judgment, and
Secretary Husted responded to LPO’s motion for summary judgment by referring to his prior cross-motion. For
simplicity, we avoid an exhaustive account of this complicated procedural history.

Attachment 2, p | 13
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Franklin County.
Ohio Cleric of Caurtsiaf
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No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 12

1. Mootness

Prior to addressing the merits, we must first determine our jurisdiction to hear this case
“[A] federal court has a continuing duty to ensure that it adjudicates only genuine disputes
between adverse parties, where the relief requested would have a real impact on the legal
interests of those parties.” Blackwell, 462 F.3d at 584. “If ‘the issues presented are no longer
live or the parties lack a legally cognizable interest in the outcome,’ then the case is moot and the
court has no jurisdiction.” /d. (quoting Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979)).
Here, LPO’s claims arose in advance of the 2014 election, an election that has already occurred.
There is an exception to the mootness doctrine, however, for “disputes capable of repetition, yet
evading review.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007).
“The exception applies where (1) the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.” Id. (internal quotation marks
omitted)

Secretary Husted and the State of Ohio do not assert that the Equal Protection challenge
to SB 193 is moot, and for good reason. Courts have repeatedly emphasized that “[lJegal
disputes involving election laws almost always take more time to resolve than the election cycle
permits,” and thus election-law challenges typically satisfy the first prong of the exception
»
“easily. Blackwell, 462 F.3d at 584. Moreover, parties that assert challenges to ballot-access
laws frequently satisfy the second prong as well because it is “likely that the [party] will once
again seek to place candidates” on the ballot and these parties will once again “face the
requirements” imposed by a still-existent election law when they do. Id. at 584-85; see also
Lawrence vy. Blackwell, 430 F.3d 368, 371-72 (6th Cir. 2005). LPO’s constitutional challenge to
SB 193’s requirements is not moot

Secretary Husted and the State of Ohio do contend, however, that the conclusion of the
2014 election has mooted the Libertarian Party’s’ selective-enforcement claim. Husted Appellee
Br. at 13. We disagree. As stated above, the Libertarian Party intends to run candidates in the
future. Reply Br. at 19. The Libertarian Party asserts that members of the Ohio Republican
Party and Ohio state government have conspired and will continue to conspire to selectively

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Qhio Cleric of Caurtsiaf
the: Common Pleas: 204 @- Ang 03511:19:AME16GV000554 (15 of 33)

No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 13

enforce election laws against it in order to remove its candidates from the ballot. See id. at 19-
20. “The Supreme Court has stated that the purpose of the second prong [of the capable-of-
repetition exception] is to determine ‘whether the controversy was capable of repetition and not
whether the claimant had demonstrated that a recurrence of the dispute was more probable
than not.” Lawrence, 430 F.3d at 371 (quoting Honig v. Doe, 484 U.S. 305, 319 n.6 (1988)).

The selective-enforcement controversy alleged by the Libertarian Party is capable of recurring,
particularly given the «we somewhat relaxed’ repetition standard” that our Circuit recognizes in
election cases. Blackwell, 462 F.3d at 585 (quoting Lawrence, 430 F.3d at 372). We thus turn to
the merits.

2. Selective-Enforcement Claim

The Libertarian Party first argues that the district court erred in granting summary
judgment in favor of the defendants on the Libertarian Party’s selective-enforcement claim. We
review the district court’s grant of summary judgment de novo. Green Party of Tenn. v. Hargett,
767 F.3d 533, 542 (6th Cir. 2014). Summary judgment is appropriate only “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Credibility determinations, the weighing of the evidence
and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The Libertarian Party argues that Felsoci, Casey, Damschroder, and others conspired to
selectively enforce Ohio Revised Code § 3501.38(E)(1) in violation of the Libertarian Party’s
First and Fourteenth Amendment rights. The Libertarian Party brought this action under
42 U.S.C. § 1983. “Section 1983 makes liable only those who, while acting under color of state
law, deprive another of a right secured by the Constitution or federal law.” Romanski v. Detroit
Entm’t, L.L.C., 428 F.3d 629, 636 (6th Cir. 2005). A selective-enforcement claim requires the
plaintiff to demonstrate the following elements.

First, [the state actor] must single out a person belonging to an identifiable group,
such as ... a group exercising constitutional rights, for prosecution even though
he has decided not to prosecute persons not belonging to that group in similar
situations. Second, he must initiate the prosecution with a discriminatory

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Qhio Clerc of Caurtsiaf
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No. 16-3537 Libertarian Party of Ohio v. Husted, et al. Page 14

purpose. Finally, the prosecution must have a discriminatory effect on the group
which the defendant belongs to.

Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997) (internal quotation marks
omitted). The district court entered summary judgment in favor of the defendants because the
Libertarian Party could not establish state action. Libertarian Party of Ohio, 2016 WL 2977286,

Case Info

Judge

DAVID C YOUNG Track Judge’s New Case

Case No.

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Document Filed Date

August 05, 2016

Case Filing Date

January 19, 2016

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