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Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554
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IN THE FRANKLIN COUNTY
COURT OF COMMON PLEAS
LIBERTARIAN PARTY OF OHIO,
Plaintiff, Case No. 16-cv-554
v Judge David C. Young
JON HUSTED,
OHIO SECRETARY OF STATE, et al.,
Defendants.
REPLY IN SUPPORT OF
MOTION OF DEFENDANTS OHIO SECRETARY OF STATE JON HUSTED AND
OHIO ATTORNEY GENERAL MIKE DEWINE FOR SUMMARY JUDGMENT
In its memorandum in opposition, Plaintiff Libertarian Party of Ohio (“LPO”) fails to
explain any genuine issue of material fact that would allow its case to continue. Instead, the
LPO lists a number of allegations denied by Defendants without explaining how they create a
material issue. Rather, all of the allegations listed are either immaterial or questions of law. For
example, the LPO insists that there is a genuine issue of material fact as to what Art. V § 7 of the
Ohio Constitution requires, or how the Sixth Circuit ruled in Libertarian Party of Ohio v.
Blackwell, 462 F.3d 579 (6th Cir. 2006). (Memo Opp. at p. 2.) Such arguments are the very
definition of questions of law, and no discovery is necessary or relevant to assist this Court. In
addition, no amount of evidence in support of the LPO’s remaining allegations would make any
fact of consequence more or less probable. Evid.R. 401. Whether or not, for example, the
LPO’s candidates were somehow qualified to participate in prior elections is irrelevant to the
LPO’s facial challenge. (Compl. J 64, 68, Demand for Relief.) Accordingly, as no genuine issue
of material fact remains, Defendants are entitled to summary judgment as a matter of law.
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I The LPO’s irrelevant case-law cannot save its Art. V § 7 claim.
Any implication by the LPO that a validly passed enactment is somehow not entitled to
deference is without basis. Rather, “[t]o overcome the presumption of constitutionality, the party
challenging the statute must prove ‘beyond a reasonable doubt that the statute is
unconstitutional.”” Akron y. State, 9th Dist. Summit No. 27769, 2015-Ohio-5243, J 11.
(quotation omitted).
The LPO’s Art. V § 7 claim fails as a matter of law for the two reasons stated in
Defendants’ Motion for Summary Judgment: Art. V § 7 is not a self-executing source of
independent protection, and in any event, $.B. 193 fully complies with it. (MSJ at 3-5.) The
LPO provides no authority treating Art. V § 7 as a “self-executing” provision. Art. V § 7
provides that “[a]ll nominations for elective state, district, county and municipal offices shall be
made at direct primary elections or by petition as provided by law. -” Art. V § 7 (emphasis
added). Enabling legislation, including the legislation the LPO challenges here, sets forth the
procedure through which nominations are to be made at either a primary or by petition in
accordance with Art. V § 7. Accordingly, Art. V § 7 cannot serve as the basis for a claim.
Even if Art. V §7 were self-executing, S.B. 193 comports with it. The plain language of
Art. V §7 allows for nomination by “petition as provided by law.” Contrary to the LPO’s
interpretation, State ex rel. Gottlieb v. Sulligan, 175 Ohio St. 238 (1963), did not limit the
application of that provision to independent candidates. In that case, the Court’s reference to
independent candidates was an attempt to describe Ohio statutory law, not the requirements of
Art. V § 7. Jd. at 272 (“Inasmuch as Section 3513.04, Revised Code, specifically refers to a
‘nominating petition.’ it is necessary to determine the meaning of this phrase under the Ohio
statutes.”) The LPO again cites 2006 Ohio Op. Atty. Gen. 2-318, 2006 WL 2548509, but that
opinion had nothing to do with and did not purport to interpret Art. V § 7. And as mentioned on
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page 5 of Defendants’ Motion for Summary Judgment, the Sixth Circuit in Libertarian Party of
Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) did not even analyze this issue. Finally, the
Court in Williams y. Rhodes, 393 U.S. 23 (1968) does not even mention Art. V § 7, and only
discusses what was at the time “requirement under Ohio law” for ballot access. /d. Incidentally,
the Court in that case found that Ohio’s “requirement of a primary election” at the time for minor
parties—much the opposite of the case at hand—violated the First Amendment. /d. at 32. The
LPO not only ignores the substantive discussion in that case on the burdens of imposing
primaries on minor parties, but it also expressly disavows any First Amendment challenge. Cf
Memo Opp. at 4 (“Plaintiff's case has nothing to do with the First Amendment.”).
Il The LPO’s Ohio constitutional equal protection claim must suffer the same fate as
its previously dismissed federal claim.
The LPO goes to great lengths in an attempt to distance this case from its federal
complaint, but to no avail. In short, the LPO fails to mention that it made an equal protection
argument almost verbatim to the one made here. Libertarian Part of Ohio v. Husted, S.D, Ohio
No. 2:13-cv-00953, Doc 188, PAGEID 3842 (Sept. 11, 2014) (Third Amended Complaint).
The Southern District expressly rejected the notion “that primaries are the only means for voters
to choose to associate with minor parties.” (Ex. 6 to Defs.’ Memo. Opp. Pltf.’s TRO Motion,
Opinion and Order Southern District Case No. 2:13-cv-00953 at p. 17 (March 16, 2015))
(hereinafter “Ex. 6”). The LPO makes the same claim here. Compl. at 46-47. The LPO also
alleges that the law deprives them of the right to hold primaries and “register members.” Compl.
' The LPO attempts to focus on First Amendment arguments, asserting it “did not include a
similar First Amendment count in its federal complaint.”. (Memo Opp. at 4 n.2.) First, that
assertion is false: Libertarian Part of Ohio v. Husted, S.D. Ohio No. 2:13-cv-00953, Doc 188,
PAGEID 3842 (Sept. 11, 2014) (Third Amended Complaint) (“Count Four: Equal Protection and
First Amendment Challenge to §.B. 193”). In addition, while Defendants’ motion for summary
judgment only mentions the First Amendment once in passing, the LPO appears to confuse the
issue by mentioning it 23 times in its memorandum. At the same time, the LPO ignores its equal
protection challenge in this case, nearly identical to the one twice rejected in federal court.
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at { 15-16, 44-47. These statements mirror the LPO’s federal allegations. (Ex. 15 to Def’s MSJ,
Pltfs’ Memo. in Support of MSJ, Southern Dist. No. 2:13-cv-00953, at p. 6-10).
A. The Anderson/Burdick analysis the appropriate framework here.
The federal court clearly rejected the equal protection challenge in that case under the
Anderson-Burdick analysis. See Ex. 5 to Defs.” Memo. Opp. Pltf.’s TRO Motion, Opinion and
Order Southern District Case No. 2:13-cv-00953 (Oct. 14, 2015) (“The parties agree that to
determine whether S.B. 193 passes constitutional muster, the Court must apply the analytical
framework derived from Anderson and Burdick v. Takushi, 504 U.S. 428 (1992).”) After
dismissing the facial challenge in that case, the federal court applied the same analysis to reject
the LPO’s as-applied challenge. (Ex. 6.) As the federal court explained:
Plaintiffs argue that S.B. 193 violates their First Amendment and Equal Protection
rights under the United States Constitution by placing LPO at a political
disadvantage... Plaintiffs make the same arguments, some verbatim, as did
Intervenor Plaintiffs when they moved for summary judgment on the statute’s
facial validity... Without more, Plaintiffs’ as-applied challenge fails.
Ex. 6 (emphasis added). Accordingly, the LPO’s present assertion that “the District Court's
never mention[ed] Anderson or Burdick when it rejected Plaintiff's federal Equal Protection
Clause challenge” is misleading at best. (Memo Opp. at 5 n.4)
There is no question under the case-law that the Anderson/Burdick analysis is the
appropriate framework here. For constitutional challenges to election regulations premised on
either the Ohio or United States Constitution, courts apply the Anderson/Burdick analysis. State
ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 2014-Ohio-4022, 142 Ohio St.3d 370, J 14;
Green Party of Tennessee v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015); see also State ex rel.
Brown at J 34 (O’Connor, J., concurring) (“The court made clear in [Crawford v. Marion Cty.
Election Bd., 553 U.S. 181 (2008)] that equal-protection election challenges are subject to the
same Anderson/Burdick analysis as are First Amendment ballot-access challenges.”)
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B. The LPO does not contest that there is no severe burden here.
The LPO does not allege that S.B. 193 imposes a “severe burden” that would take it out
of the rational basis standard of review. (Memo Opp. at 8.) Instead it attempts to argue that a
severe burden is not necessary to invalidate a law, but the cases it cites are inapposite. In Guare
v. State, 167 N.H. 658, 665 (2015), for example, the New Hampshire court found that the
challenged law imposed an unreasonable burden on “the fundamental right to vote,” which the
LPO concedes is not at issue here.
As noted in Defendants’ Motion for Summary Judgment, this Court can find as a matter
of law that S.B. 193 does not impair the LPO’s ability recruit members, disseminate its views, or
select candidates. (MSJ at 7-12.) For example, R.C. 3517.012(C)(1) expressly allows minor
parties to select which candidates to certify for the general election as the party’s nominees for
those offices. To the extent that the LPO now argues that S.B. 193 prevents the LPO from
“participating in Ohio's general election,” this unexplained assertion fails for the same reasons.
(Memo Opp. at 10.)
Furthermore, the LPO’s insistence that its membership is limited by R.C. 3513.05, which
states that “an elector is considered to be a member of a political party if the elector voted in that
party's primary election within the preceding two calendar years,” is undercut by the rest of that
sentence: “or if the elector did not vote in any other party's primary election within the preceding
two calendar years.” Under S.B. 193, any registered Ohio voter who requests an “issues-only”
primary ballot (i.e., a ballot without Republican or Democratic partisan candidates) or who does
not vote in the 2014-2016 primaries, is eligible to sign a minor-party candidate’s nominating
petition. R.C. 3517.012(B)(2)(a)-(b). Similarly, a declaration of political party affiliation is for
the purpose of receiving the proper partisan primary ballot, and therefore provides no
disadvantage to a minor party that is not holding a primary. Ohio Secretary of State, Frequently
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Asked Questions: General Voting & Voter Registration, available at
http://www.sos.state.oh.us/sos/elections/V oters/FAQ/genFAQs.aspx#declare. As the Southern
District explained, under Ohio law, “the chief practical significance of ‘affiliation’ to voters is
that one who is affiliated with one political party generally cannot vote in another party’s
primary,” which “has no effect on [minor] parties or voters” because “minor parties formed by
petition do not participate in primaries.” (Ex. 6 at p. 18).
Cc Rational basis review applies and is easily satisfied.
Given the minimal burden imposed by S.B. 193 and its non-discriminatory nature,
rational basis is the applicable standard of review. (Ex. 6 at p. 35). As noted in Defendants’
Motion for Summary Judgment, the state has ample justification for S.B. 193, and the LPO’s
own expert finds Ohio’s policy choice rational. (MSJ 13-14.) As the Southern District found:
“S.B. 193 represents a rational means to advance important state interests.” (Ex. 6 at p. 36).
This finding stands in stark contrast to Block v. Mollis, 618 F. Supp. 2d 142, 151 (D.R.L 2009),
cited by the LPO, in which the district court held that “under any level of scrutiny, the State has
come forward with no legitimate regulatory interest whatsoever.” Despite the LPO’s attempt to
decide for itself what the “true interest” of legislators was in passing S.B. 193, Memo Opp. at 14,
the LPO cannot overcome its heavy burden on this point: “Under the rational basis standard, a
party challenging the constitutionality of legislation cannot prevail where the rationality of that
legislation is at least debatable.” State ex rel. Wilcoxson v. Harsman, 2d Dist. Montgomery No.
24095, 2010-Ohio-4048, {| 46 (citations omitted).
Even if this Court does not use the Anderson-Burdick framework, the LPO’s equal
protection challenge is still subject to a rational basis analysis. The LPO expressly disavows that
it is asserting any fundamental right under the First Amendment, and instead the sole right it
asserts “is a function of Ohio's constitutional guarantee under Article V, §7, which has no
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parallel in the federal Constitution.” (Memo Opp. at at 7 n.5.) As noted above, Art. V §7 does
not provide the basis for any fundamental right—and in any event, S.B. 193 comports with Art.
V §7—so the LPO’s equal protection claim would still be subject to a rational basis test. Arbino
y. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948, J 64 (“If neither a fundamental
right nor a suspect class is involved, a rational-basis test is used.”)
Til. Conclusion
For the reasons above and in Defendants’ Motion for Summary Judgment, Plaintiff’s
claims should be dismissed, and Defendants are entitled to judgment as a matter of law.
Respectfully submitted,
MICHAEL DEWINE (0009181)
Ohio Attorney General
s/ Jordan S. Berman
HALLI BROWNFIELD WATSON (0082466)
JORDAN S. BERMAN (0093075)
SARAH E. PIERCE (0087799)
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
sarah.pierce@ ohioattorneygeneral.gov
Counsel for Defendants Ohio Secretary of State and
Ohio Attorney General
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554
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CERTIFICATE OF SERVICE
Thereby certify that a true copy of the foregoing was served by operation of this court’s
electronic filing system and electronic mail on March 9, 2016, upon the following:
Mark R. Brown
303 E Broad Street
Columbus, Ohio 43215
mbrown@law.capital.edu
Mark G Kafantaris
Kafantaris Law Office
625 City Park Avenue
Columbus, Ohio 43206
mark @kafantaris.com
s/ Jordan S. Berman
JORDAN S. BERMAN (0093075)
Assistant Attorneys General
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554 oc945 - T9 IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS LIBERTARIAN PARTY OF OHIO, Plaintiff, Case No. 16-cv-554 v Judge David C. Young JON HUSTED, OHIO SECRETARY OF STATE, et al., Defendants. REPLY IN SUPPORT OF MOTION OF DEFENDANTS OHIO SECRETARY OF STATE JON HUSTED AND OHIO ATTORNEY GENERAL MIKE DEWINE FOR SUMMARY JUDGMENT In its memorandum in opposition, Plaintiff Libertarian Party of Ohio (“LPO”) fails to explain any genuine issue of material fact that would allow its case to continue. Instead, the LPO lists a number of allegations denied by Defendants without explaining how they create a material issue. Rather, all of the allegations listed are either immaterial or questions of law. For example, the LPO insists that there is a genuine issue of material fact as to what Art. V § 7 of the Ohio Constitution requires, or how the Sixth Circuit ruled in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006). (Memo Opp. at p. 2.) Such arguments are the very definition of questions of law, and no discovery is necessary or relevant to assist this Court. In addition, no amount of evidence in support of the LPO’s remaining allegations would make any fact of consequence more or less probable. Evid.R. 401. Whether or not, for example, the LPO’s candidates were somehow qualified to participate in prior elections is irrelevant to the LPO’s facial challenge. (Compl. J 64, 68, Demand for Relief.) Accordingly, as no genuine issue of material fact remains, Defendants are entitled to summary judgment as a matter of law. Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554 oc945 - T97 I The LPO’s irrelevant case-law cannot save its Art. V § 7 claim. Any implication by the LPO that a validly passed enactment is somehow not entitled to deference is without basis. Rather, “[t]o overcome the presumption of constitutionality, the party challenging the statute must prove ‘beyond a reasonable doubt that the statute is unconstitutional.”” Akron y. State, 9th Dist. Summit No. 27769, 2015-Ohio-5243, J 11. (quotation omitted). The LPO’s Art. V § 7 claim fails as a matter of law for the two reasons stated in Defendants’ Motion for Summary Judgment: Art. V § 7 is not a self-executing source of independent protection, and in any event, $.B. 193 fully complies with it. (MSJ at 3-5.) The LPO provides no authority treating Art. V § 7 as a “self-executing” provision. Art. V § 7 provides that “[a]ll nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law. -” Art. V § 7 (emphasis added). Enabling legislation, including the legislation the LPO challenges here, sets forth the procedure through which nominations are to be made at either a primary or by petition in accordance with Art. V § 7. Accordingly, Art. V § 7 cannot serve as the basis for a claim. Even if Art. V §7 were self-executing, S.B. 193 comports with it. The plain language of Art. V §7 allows for nomination by “petition as provided by law.” Contrary to the LPO’s interpretation, State ex rel. Gottlieb v. Sulligan, 175 Ohio St. 238 (1963), did not limit the application of that provision to independent candidates. In that case, the Court’s reference to independent candidates was an attempt to describe Ohio statutory law, not the requirements of Art. V § 7. Jd. at 272 (“Inasmuch as Section 3513.04, Revised Code, specifically refers to a ‘nominating petition.’ it is necessary to determine the meaning of this phrase under the Ohio statutes.”) The LPO again cites 2006 Ohio Op. Atty. Gen. 2-318, 2006 WL 2548509, but that opinion had nothing to do with and did not purport to interpret Art. V § 7. And as mentioned on 2 Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554 oc945 - T98 page 5 of Defendants’ Motion for Summary Judgment, the Sixth Circuit in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) did not even analyze this issue. Finally, the Court in Williams y. Rhodes, 393 U.S. 23 (1968) does not even mention Art. V § 7, and only discusses what was at the time “requirement under Ohio law” for ballot access. /d. Incidentally, the Court in that case found that Ohio’s “requirement of a primary election” at the time for minor parties—much the opposite of the case at hand—violated the First Amendment. /d. at 32. The LPO not only ignores the substantive discussion in that case on the burdens of imposing primaries on minor parties, but it also expressly disavows any First Amendment challenge. Cf Memo Opp. at 4 (“Plaintiff's case has nothing to do with the First Amendment.”). Il The LPO’s Ohio constitutional equal protection claim must suffer the same fate as its previously dismissed federal claim. The LPO goes to great lengths in an attempt to distance this case from its federal complaint, but to no avail. In short, the LPO fails to mention that it made an equal protection argument almost verbatim to the one made here. Libertarian Part of Ohio v. Husted, S.D, Ohio No. 2:13-cv-00953, Doc 188, PAGEID 3842 (Sept. 11, 2014) (Third Amended Complaint). The Southern District expressly rejected the notion “that primaries are the only means for voters to choose to associate with minor parties.” (Ex. 6 to Defs.’ Memo. Opp. Pltf.’s TRO Motion, Opinion and Order Southern District Case No. 2:13-cv-00953 at p. 17 (March 16, 2015)) (hereinafter “Ex. 6”). The LPO makes the same claim here. Compl. at 46-47. The LPO also alleges that the law deprives them of the right to hold primaries and “register members.” Compl. ' The LPO attempts to focus on First Amendment arguments, asserting it “did not include a similar First Amendment count in its federal complaint.”. (Memo Opp. at 4 n.2.) First, that assertion is false: Libertarian Part of Ohio v. Husted, S.D. Ohio No. 2:13-cv-00953, Doc 188, PAGEID 3842 (Sept. 11, 2014) (Third Amended Complaint) (“Count Four: Equal Protection and First Amendment Challenge to §.B. 193”). In addition, while Defendants’ motion for summary judgment only mentions the First Amendment once in passing, the LPO appears to confuse the issue by mentioning it 23 times in its memorandum. At the same time, the LPO ignores its equal protection challenge in this case, nearly identical to the one twice rejected in federal court. 3 Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554 oc945 - T9 at { 15-16, 44-47. These statements mirror the LPO’s federal allegations. (Ex. 15 to Def’s MSJ, Pltfs’ Memo. in Support of MSJ, Southern Dist. No. 2:13-cv-00953, at p. 6-10). A. The Anderson/Burdick analysis the appropriate framework here. The federal court clearly rejected the equal protection challenge in that case under the Anderson-Burdick analysis. See Ex. 5 to Defs.” Memo. Opp. Pltf.’s TRO Motion, Opinion and Order Southern District Case No. 2:13-cv-00953 (Oct. 14, 2015) (“The parties agree that to determine whether S.B. 193 passes constitutional muster, the Court must apply the analytical framework derived from Anderson and Burdick v. Takushi, 504 U.S. 428 (1992).”) After dismissing the facial challenge in that case, the federal court applied the same analysis to reject the LPO’s as-applied challenge. (Ex. 6.) As the federal court explained: Plaintiffs argue that S.B. 193 violates their First Amendment and Equal Protection rights under the United States Constitution by placing LPO at a political disadvantage... Plaintiffs make the same arguments, some verbatim, as did Intervenor Plaintiffs when they moved for summary judgment on the statute’s facial validity... Without more, Plaintiffs’ as-applied challenge fails. Ex. 6 (emphasis added). Accordingly, the LPO’s present assertion that “the District Court's never mention[ed] Anderson or Burdick when it rejected Plaintiff's federal Equal Protection Clause challenge” is misleading at best. (Memo Opp. at 5 n.4) There is no question under the case-law that the Anderson/Burdick analysis is the appropriate framework here. For constitutional challenges to election regulations premised on either the Ohio or United States Constitution, courts apply the Anderson/Burdick analysis. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 2014-Ohio-4022, 142 Ohio St.3d 370, J 14; Green Party of Tennessee v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015); see also State ex rel. Brown at J 34 (O’Connor, J., concurring) (“The court made clear in [Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)] that equal-protection election challenges are subject to the same Anderson/Burdick analysis as are First Amendment ballot-access challenges.”) 4 Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554 oc945 - U1 B. The LPO does not contest that there is no severe burden here. The LPO does not allege that S.B. 193 imposes a “severe burden” that would take it out of the rational basis standard of review. (Memo Opp. at 8.) Instead it attempts to argue that a severe burden is not necessary to invalidate a law, but the cases it cites are inapposite. In Guare v. State, 167 N.H. 658, 665 (2015), for example, the New Hampshire court found that the challenged law imposed an unreasonable burden on “the fundamental right to vote,” which the LPO concedes is not at issue here. As noted in Defendants’ Motion for Summary Judgment, this Court can find as a matter of law that S.B. 193 does not impair the LPO’s ability recruit members, disseminate its views, or select candidates. (MSJ at 7-12.) For example, R.C. 3517.012(C)(1) expressly allows minor parties to select which candidates to certify for the general election as the party’s nominees for those offices. To the extent that the LPO now argues that S.B. 193 prevents the LPO from “participating in Ohio's general election,” this unexplained assertion fails for the same reasons. (Memo Opp. at 10.) Furthermore, the LPO’s insistence that its membership is limited by R.C. 3513.05, which states that “an elector is considered to be a member of a political party if the elector voted in that party's primary election within the preceding two calendar years,” is undercut by the rest of that sentence: “or if the elector did not vote in any other party's primary election within the preceding two calendar years.” Under S.B. 193, any registered Ohio voter who requests an “issues-only” primary ballot (i.e., a ballot without Republican or Democratic partisan candidates) or who does not vote in the 2014-2016 primaries, is eligible to sign a minor-party candidate’s nominating petition. R.C. 3517.012(B)(2)(a)-(b). Similarly, a declaration of political party affiliation is for the purpose of receiving the proper partisan primary ballot, and therefore provides no disadvantage to a minor party that is not holding a primary. Ohio Secretary of State, Frequently 5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554 oc945 - U2 Asked Questions: General Voting & Voter Registration, available at http://www.sos.state.oh.us/sos/elections/V oters/FAQ/genFAQs.aspx#declare. As the Southern District explained, under Ohio law, “the chief practical significance of ‘affiliation’ to voters is that one who is affiliated with one political party generally cannot vote in another party’s primary,” which “has no effect on [minor] parties or voters” because “minor parties formed by petition do not participate in primaries.” (Ex. 6 at p. 18). Cc Rational basis review applies and is easily satisfied. Given the minimal burden imposed by S.B. 193 and its non-discriminatory nature, rational basis is the applicable standard of review. (Ex. 6 at p. 35). As noted in Defendants’ Motion for Summary Judgment, the state has ample justification for S.B. 193, and the LPO’s own expert finds Ohio’s policy choice rational. (MSJ 13-14.) As the Southern District found: “S.B. 193 represents a rational means to advance important state interests.” (Ex. 6 at p. 36). This finding stands in stark contrast to Block v. Mollis, 618 F. Supp. 2d 142, 151 (D.R.L 2009), cited by the LPO, in which the district court held that “under any level of scrutiny, the State has come forward with no legitimate regulatory interest whatsoever.” Despite the LPO’s attempt to decide for itself what the “true interest” of legislators was in passing S.B. 193, Memo Opp. at 14, the LPO cannot overcome its heavy burden on this point: “Under the rational basis standard, a party challenging the constitutionality of legislation cannot prevail where the rationality of that legislation is at least debatable.” State ex rel. Wilcoxson v. Harsman, 2d Dist. Montgomery No. 24095, 2010-Ohio-4048, {| 46 (citations omitted). Even if this Court does not use the Anderson-Burdick framework, the LPO’s equal protection challenge is still subject to a rational basis analysis. The LPO expressly disavows that it is asserting any fundamental right under the First Amendment, and instead the sole right it asserts “is a function of Ohio's constitutional guarantee under Article V, §7, which has no 6 Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554 oc945 - U3 parallel in the federal Constitution.” (Memo Opp. at at 7 n.5.) As noted above, Art. V §7 does not provide the basis for any fundamental right—and in any event, S.B. 193 comports with Art. V §7—so the LPO’s equal protection claim would still be subject to a rational basis test. Arbino y. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948, J 64 (“If neither a fundamental right nor a suspect class is involved, a rational-basis test is used.”) Til. Conclusion For the reasons above and in Defendants’ Motion for Summary Judgment, Plaintiff’s claims should be dismissed, and Defendants are entitled to judgment as a matter of law. Respectfully submitted, MICHAEL DEWINE (0009181) Ohio Attorney General s/ Jordan S. Berman HALLI BROWNFIELD WATSON (0082466) JORDAN S. BERMAN (0093075) SARAH E. PIERCE (0087799) 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 sarah.pierce@ ohioattorneygeneral.gov Counsel for Defendants Ohio Secretary of State and Ohio Attorney General Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 09 1:37 PM-16CV000554 oc945 - U4 CERTIFICATE OF SERVICE Thereby certify that a true copy of the foregoing was served by operation of this court’s electronic filing system and electronic mail on March 9, 2016, upon the following: Mark R. Brown 303 E Broad Street Columbus, Ohio 43215 mbrown@law.capital.edu Mark G Kafantaris Kafantaris Law Office 625 City Park Avenue Columbus, Ohio 43206 mark @kafantaris.com s/ Jordan S. Berman JORDAN S. BERMAN (0093075) Assistant Attorneys General