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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
LIBERTARIAN PARTY OF OHIO,
Plaintiff,
vs.
JON HUSTED, et al.,
Defendants.
CASE NO.: 16-cy-554
JUDGE: David C. Young
PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE
TO PLAINTIFF'S MOTION FOR EMERGENCY RELIEF
Mark R. Brown (#81941)
303 E. Broad Street
Columbus, Ohio 43215
Tel: (614) 236-6590
Fax: (614) 236-6956
E-mail: mbrown@law.capital.edu
Mark G. Kafantaris (#80392)
625 City Park Avenue
Columbus, Ohio 43206
Tel: (614) 223-1444
Fax: (614) 300-5123
E-mail: mark @kafantaris.com
Attorneys for PlaintiffFranklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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INTRODUCTION
Defendants argue that Plaintiff frequently loses ballot access challenges. See Defendants’
Memorandum in Opposition (hereinafter "Defendants' Brief") at 10.! They are wrong. Plaintiff
has successfully challenged five laws in Ohio restricting parties’, voters' and candidates’ rights
over the last ten years. These laws have ranged from restrictions on who may circulate
candidates' petitions to who may appear on ballots. See Libertarian Party of Ohio v. Blackwell,
462 F.3d 579 (6th Cir. 2006) (invalidating O.R.C. § 3517.01); Libertarian Party of Ohio v.
Brunner, 567 F. Supp.2d 1006 (S.D. Ohio 2008) (invalidating Directive 2007-09); Libertarian
Party of Ohio v. Husted, 2011 WL 3957259 (S.D. Ohio 2011) (invalidating H.B. 194), vacated
as moot, 497 Fed. Appx. 581 (6th Cir. 2012); Libertarian Party of Ohio v. Husted, No. 13-953
(S.D. Ohio, Nov. 13, 2013) (Doe. No. 18)? (invalidating O.R.C. § 3503.06(C)(1)(a)); Libertarian
Party of Ohio v. Husted, No. 13-953 (S.D. Ohio, Jan. 7, 2014) (Doc. No. 47) (invalidating S.B.
193 as applied to 2014 election) (Exhibit 1).
Defendants devote significant time to the defense of laches. Plaintiff's case (like those
cited above), however, seeks only prospective relief prohibiting future enforcement of an Ohio
election law. Plaintiff has modeled its Complaint and its demand for Emergency Relief on its
prior successes. Plaintiff does not demand that any candidates be placed on any ballots. No
' Plaintiff is not connected to the Libertarian Parties of Kentucky or Michigan. Contrary to
Defendants' claim, "[p]ressing its claims expeditiously" has never been a problem for Plaintiff.
? Documents from Libertarian Party of Ohio v. Husted, No. 13-953, that are cited but not
included as Exhibits may be located on either Pacer or on the Ohio State University Moritz
College of Law Election Law Case Page for Libertarian Party of Ohio v. Husted, No. 13-953
(http://moritzlaw.osu.edu/electionlaw/litigation/LPOHusted.php) (last visited Jan. 30, 2016).
Document Number 18, for example, is located at this page:
http://moritzlaw.osu.edu/electionlaw/litigation/documents/LPOOpinionORderPrelimInj.pdf (last
visited Jan. 30, 2016). All references denoted "Doc. No. __" are to proceedings in District Court.Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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candidates are parties to this case. Plaintiff does not here seek to force changes to any existing
ballots, including ballots for the March 15. 2016* primary. As stated in J 61 of its Complaint:
The present action seeks only declaratory and injunctive relief against Defendants, in
their official capacities as Secretary of State and Attorney General, respectively,
invalidating S.B. 193 under Ohio's Constitution and enjoining its future enforcement.
Plaintiff only seeks to have Ohio's ballot access law (S.B. 193) declared unconstitutional
and its enforcement enjoined. Prospective relief will render S.B. 193 void and unenforceable in
the future. It will redress Plaintiff’s irreparable injuries by restoring the status quo ante. Plaintiff
will once again be a recognized political party and will participate in future elections, including
the November 2016 presidential election (which as discussed below has a qualifying date of
August 10, 2016), the 2017 primary, and all other elections thereafter. That is all Plaintiff seeks
here.*
For this same reason, Defendants’ claim that correcting ballots is unlawful, difficult and
expensive’ is misplaced. No ballots need be corrected to enjoin $.B. 193. No expenses need be
incurred to declare §.B. 193 unconstitutional. These were not concerns in the prospective actions
filed in Blackwell, 462 F.3d 579; Brunner, 567 F. Supp.2d 1006; Husted, 2011 WL 3957259; and
Husted II, No. 13-953 (S.D. Ohio, Jan. 7, 2014), and they are not defenses here.
3 Plaintiff underscores relevant dates for ease of reference.
4 Potential candidates sought to run in Plaintiffs primaries on March 15, 2016, as Plaintiffs
explained to Defendants on several occasions. Defendant-Secretary rejected them. Plaintiff does
not challenge that decision here. It is worth mentioning, however, that following Judge Sargus's
July 17, 2008 order invalidating Directive 2007-09, Defendant agreed to place Plaintiff's
candidates (who had been excluded from the primary) on the November general election ballot.
* Defendants’ demand that security be posted is unprecedented. See Defendants’ Brief at 19. No
court has required that a candidate or party post security in order to enjoin an unconstitutional
election law. Neither Judge Sargus, Judge Marbley, nor Judge Watson required security when
they enjoined Directive 2007-09, H.B. 194 and S.B. 193, respectively.
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PROCEEDINGS IN THE DISTRICT COURT
Defendants argue that Plaintiff was dilatory in federal District Court. Defendants are
wrong. Proceedings in the District Court fell into three distinct phases with three different
challenges to three different Ohio laws. As the attached Docket Sheet, Exhibit 2, makes clear,
Plaintiff acted with the utmost determination and diligence in all three phases.
The first phase involved Plaintiff's challenge to Ohio's law requiring that circulators be
Ohio residents. On June 21, 2013, Ohio amended its law (O.R.C. § 3503.06) to require that
circulators of nominating petitions be Ohio residents. Plaintiff on September 25, 2013 filed its
Complaint, see Doc. No. 1, challenging this amendment. See Doc. No. 3. On October 3, 2013,
notwithstanding that Defendant-Secretary was already defending this law, Ohio intervened to
defend the measure. See Doc. No. 5.
November 6, 2013 ushered in the second phase of the proceedings when S.B. 193 was
enacted. On November 8, 2013, Plaintiff amended its Complaint to challenge S.B. 193. See Doc.
No. 16. Plaintiff on November 10, 2013 sought emergency injunctive relief under both the
federal Constitution and, because Ohio had voluntarily intervened, Ohio's Constitution. See Doc.
No. 17. Both Ohio and the Secretary defended S.B. 193. See Doc. No. 21.
On November 13. 2013, Judge Watson enjoined enforcement of Ohio's circulator-
residence requirement. See Doc. No. 18. His decision was not appealed. On January 7, 2014,
Judge Watson enjoined S.B. 193's application to Ohio's 2014 election. See Doc. No. 47 at
PAGEID # 837-38 (Exhibit 1). Judge Watson agreed that applying S.B. 193 to Ohio's 2014
primary violated federal Due Process. /d. He reserved ruling on future applications of $.B. 193
under either federal law or the Ohio Constitution. /d. at PAGEID # 834-36. Because Plaintiff hadFranklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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been restored to the 2014 ballot, Judge Watson concluded that $.B. 193's future fate need not be
addressed "at this juncture." /d. at PAGEID # 836.6
Federal litigation entered its third phase when Charlie Earl, Plaintiff's candidate for
Governor, was removed from the primary ballot on March 7, 2014. Plaintiff amended its
complaint that very day to challenge Earl's removal and sought immediate emergency relief. See
Docs. No. 56 & 57. Plaintiff's effort failed to restore Earl's candidacy to the 2014 primary ballot.
Only later did Plaintiff discover that the Ohio Republican Party (ORP), with the assistance of the
Kasich Campaign for Governor, had concocted a plot to sabotage Earl's candidacy.”
In the summer months following Earl's removal, Plaintiff discovered that ORP and the
Kasich Campaign had "duped" Gregory Felsoci into protesting Earl's candidacy.® From March 7,
2014 until present, this third phase has been the focus of contentious” and time-consuming”
proceedings in federal court.
°On January 10, 2014, Ohio and the Secretary filed an unsuccessful appeal, see Doc. No. 50,
that was later dismissed.
7 This evidence is thoroughly described in Plaintiff's Memorandum, Doc. No. 335-1 (Exhibit 5),
supporting its Omnibus Motion to Supplement the Record (filed on October 12, 2015).
8 Judge Watson described Felsoci as a "guileless dupe." See Doc. No. 80 at PAGEID # 2148.
° Judge Watson concluded that Defendants had engaged in a pattern of "harassing and
obstructive conduct" designed to delay Plaintiff's case. See Doc. No. 260 at PAGEID # 7104
(Exhibit 3).
‘© Plaintiff was forced to win three federal court orders in the summer of 2014 (including one
directed at Defendant-Secretary) to uncover the conspiracy. See, e.g., Libertarian Party of Ohio
v. Husted, 33 F. Supp.2d 914 (S.D. Ohio 2014) (ordering that Secretary present his agents for
depositions); Libertarian Party of Ohio v. Husted, 302 F.R.D. 472 (S.D. Ohio 2014) (ordering
that Felsoci appear for his deposition); Libertarian Party of Ohio v. Husted, 2014 WL 3928293
(S.D. Ohio 2014) (ordering that Felsoci produce documents identifying who was paying his
lawyers). More discovery orders were to come. See infra. Notwithstanding these delays, Plaintiff
finally uncovered documents showing that ORP and the Kasich Campaign were involved.
remove Earl. ORP, for example, paid at least $300,000 to Felsoci's lawyers to protest Earl and
the Kasich Campaign coordinated all aspects of the protest. See Exhibit 5.
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Although this third phase of the federal litigation was not related to the validity of S.B.
193, it ultimately delayed resolution of Plaintiff's challenge to that statute. Plaintiff was forced to
seek another preliminary injunction in order to respond to ORP's and the Kasich Campaign's
removal of Ear. In addition to the hours spent in discovery and briefing, a hearing was held on
September 29 and 30, 2014 in federal court. In large part because Plaintiff was unable to uncover
ORP's financial arrangement with his lawyers,'! Plaintiff's effort proved unsuccessful. On
October 17, 2014 Judge Watson denied relief. See Exhibit 3. While Earl was not preliminarily
restored to the ballot, this phase of the proceedings remains pending in federal court in light of
what Plaintiff uncovered several months later. See Exhibit 5.
On August 15, 2014, the ACLU (which had previously intervened) moved for summary
judgment under its federal challenges to S.B. 193. See Doc. No. 165. Immediately following its
failed attempt to restore Earl to the ballot, on October 23, 2014 Plaintiff likewise moved for
summary judgment reiterating its motion to enjoin S.B. 193. See Doc. No. 261. On March 16,
2015, Judge Watson denied the ACLU's motion for summary judgment. See Doc. No. 285. Judge
Watson did not address Plaintiff's challenge under Ohio's Constitution, nor did he resolve
Plaintiff's federal Equal Protection claim at that time.
Plaintiff's discovery efforts in phase-three of the litigation continued while its challenge
to S.B. 193 was pending. On July 6, 2015, immediately following Plaintiff's discovery that ORP
had paid $300,000 to Felsoci's lawyers to protest Earl, see Exhibit 5, Judge Watson ordered
Plaintiff to continue with its discovery and report when it was concluded. See Doc. No. 305. He
held the case (including Plaintiff's challenge to S.B. 193) in abeyance while Plaintiff pursued
ORP's and the Kasich Campaign's connection to Earl's removal from the ballot. /d.
"| Felsoci's lawyers failed to disclose who was paying them. See Libertarian Party of Ohio v.
Husted, 2014 WL 3928293 (S.D. Ohio 2014).Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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Plaintiffs discovery efforts in the summer of 2015, like their discovery during the
summer of 2014, were met with massive resistance. The District Court as late as September 2,
2015 was forced to again order Felsoci to sit for a deposition. See Doc. No. 322. Matt Borges,
ORP's chair, was directed by Magistrate Judge Kemp shortly thereafter to submit to deposition.
On October 2, 2015, Plaintiffs won another order (bringing their total to five) forcing
Felsoci's confederates to produce documents. See Doc. No. 334. On October 6, 2015, Plaintiff
deposed ORP's chair, Matt Borges and thereafter immediately notified Judge Watson following
Borges's deposition that discovery was complete. Plaintiff on October 12, 2015 filed a
comprehensive motion to supplement the record. See Doc. Nos. 335 and 335-1 (Exhibit 5).
On October 14, 2015 Judge Watson lifted his stay, denied Plaintiff's Equal Protection
challenge to S.B. 193, and dismissed its claim under the Ohio Constitution on jurisdictional
grounds. See Doc. No. 336 (Exhibit 4). On October 16, 2015, Judge Watson instructed the
parties to brief anew ORP's and the Kasich Campaign's involvement. See Doc. No. 337. Briefing
was completed on November 9, 2015. This phase-three matter remains pending in federal court.
On November 18, 2015, after unsuccessfully seeking Rule 54(b) certification, Plaintiff
attempted to appeal the dismissal of its Ohio constitutional claim. See Doc. No. 353. The appeal
was dismissed.'? Neither the Sixth Circuit sitting en banc nor the Supreme Court agreed to
review the dismissal. The Supreme Court's order finally disposing of Plaintiff's appeal was
released on January 14, 2016. This case was filed two business days later.
Defendants’ abrasive charge that Plaintiff "accus[ed]" Judge Batchelder of "judicial
impropriety," see Defendants’ Brief at 5, is demonstrably false and plainly inappropriate. Plaintiff
understandably sought Judge Batchelder's recusal because her husband, Ohio's Speaker of the
House, sponsored S.B. 193. See Doc. No. 359. No factual basis supports Defendants’ charge and
no legitimate interest was served by casting such an aspersion here.
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ARGUMENT
I. The Doctrine of Laches Does Not Apply.
“Tt has often been said that laches is generally not a bar to prospective injunctive relief.”
Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 840 (9th Cir. 2002) (citations
omitted). “A prospective injunction is entered only on the basis of current, ongoing conduct that
threatens future harm. Inherently, such conduct cannot be so remote in time as to justify the
application of the doctrine of laches.” Lyons Partnership, LP v. Morris Costumes, Inc., 243 F.3d
789, 799 (4th Cir. 2001).
Plaintiff's case is purely prospective. See, e.g., Complaint at {[ 61. Plaintiff does not seek
to correct or change ballots. Plaintiff does not seek to place candidates on existing ballots. While
Ohio's courts have applied laches to candidates’ challenges that seek to have their names placed
on ballots, see, e.g., Foster v. Cuyahoga County Bd of Elections, 373 N.E.2d 1274, 1282 (Ohio
App. 1977) (‘The doctrine of laches has been specifically applied to challenges to a
determination by a board of elections of the validity of a candidacy.”), they have never applied
laches to defeat prospective challenges to election laws by political parties (or anyone else).
The significant difference between correcting ballots and awarding purely prospective
relief was recently explained in Navarro v. Neal, 716 F.3d 425, 429 (7th Cir. 2013). The District
Court there used laches to bar not only the plaintiffs’ attempt to change ballots, but also their
prospective challenge to an election law. The Seventh Circuit reversed. It found that the defense
of laches cannot bar prospective claims for declaratory relief: "neither the Board members' brief
nor the district court's order sheds light on how the plaintiffs' delay in filing suit could impact a
purely prospective remedy." /d. at 430.Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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Defendants cite no contrary authority. None, to Plaintiff's knowledge, exists. This is
proved by Ohio's own unsuccessful efforts to defend its ballot access laws over the course of the
last ten years. In Blackwell, 462 F.3d at 583, the District Court invoked laches to dismiss
Plaintiff's claims, which included a prospective challenge to Ohio's ballot access law. The Sixth
Circuit reversed. It struck down Ohio's ballot access law. It rejected laches.
The same was true in Brunner, 567 F. Supp.2d 1006. There, Secretary Brunner on May
21, 2007 issued Directive 2007-09 to again require early-filing by minor parties. Plaintiff
challenged this Directive on June 6, 2008, after it had been denied participation in Ohio's May
primary. /d. at 1010. Even though the primary was over (without Plaintiff and its candidates),
Judge Sargus on July 17, 2008 ruled that Directive 2007-09 was unconstitutional. Laches was
never mentioned. Plaintiff was restored to Ohio's ballot in time for the November 2008 election.
The same was again true in Husted, 2011 WL 3957259, where Judge Marbley ruled that
H.B. 194 was unconstitutional. House Bill 194 was passed on July 1, 2011. Like Ohio's previous
unconstitutional measures, it required thousands of signatures several months before the general
election. /d. at *2. Immediately following Defendant-Secretary's notification on August 5, 2011
that its ballot access had been revoked, Plaintiff challenged H.B. 194 seeking prospective relief.
Judge Marbley agreed on September 7, 2011 that H.B. 194 was unconstitutional. Plaintiff was
restored to the ballot. Plaintiff's candidates ran in the November 2011 election, the 2013 primary,
and the November 2013 general elections. Laches was never discussed.
When Judge Watson on January 7, 2014 enjoined S.B. 193's application to "Ohio's 2014
primary and general elections," Doc. No. 47 at PAGEID #838 (Exhibit 1), he ordered
"Defendants to provide Plaintiffs and their candidates access to the 2014 primary and general
elections ...." Jd. Laches was no bar to this prospective relief.Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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Plaintiffs challenge here is prospective. Plaintiff does not seek to change ballots. No
candidates seek court orders changing the March 15, 2016 primary ballot. Plaintiff desires
prospective relief so that it can once again be a political party in Ohio. It seeks prospective relief
in order to certify its presidential candidate on August 10, 2016. See O.R.C. § 3505.10. It seeks
prospective relief so that it may hold primaries in the future. None of this is barred by laches.
I. Plaintiff's Diligence Satisfies Laches.
Assuming the doctrine of laches is relevant to this case, Plaintiff passes the test. Plaintiff
has diligently pursued its prospective challenge to S.B. 193 for over two years. It challenged S.B.
193 on November 8, 2013, two days after it was signed by the Governor. Its motion for
emergency relief was filed two days later on November 10, 2013. Plaintiff won emergency relief
under the Due Process Clause enjoining S.B. 193's application to the 2014 election on January 7
2014. Because of this relief and Defendants’ "obstructive tactics"! during discovery, Judge
Watson held in abeyance Plaintiff's challenge to S.B. 193 (including its claim under the Ohio
Constitution) until October 14, 2015. Plaintiff's appeal was denied by the Supreme Court on
January 14, 2016. Between November 8, 2013 and present, there is no time at which Plaintiff
was not actively engaged in challenging S.B. 193. To the extent there was delay, moreover, it
was caused by Defendants, who were found to have "obstructed" Plaintiff's case.
'S Defendants argue that the doctrine of laches was invoked against Plaintiff by Judge Watson to
bar its ballot access and suggest that this is somehow relevant to Plaintiff's challenge to S.B. 193.
See Defendants' Brief at 6-7. Defendants are wrong. While it is true that Judge Watson used
laches to deny Plaintiff's motion for a temporary restraining order seeking to restore Charlie Earl
to the 2014 general gubernatorial ballot during phase-three of the proceedings, this had nothing
to do with Plaintiff's challenge to S.B. 193. Further, once Judge Watson was apprised that
Defendant-Secretary and Felsoci had employed "tactics that resulted in delay," Doc. No. 260 at
PAGEID # 7102 (Exhibit 3), he reconsidered his earlier entry and rejected their defense of laches
to Plaintiff's motion for a preliminary injunction: "In light of the obstructive tactics employed by
opposing counsel during discovery, the Court declines to hold those claims barred by laches." /d.
at PAGEID # 7106 (emphasis added).Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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Contrary to Defendants’ claim, Plaintiff's efforts to establish federal jurisdiction over its
Ohio constitutional claim were hardly wasteful. The Supreme Court has recognized that when a
state voluntarily intervenes in federal litigation, it waives its Eleventh Amendment protection.
See Clark v. Barnard, 108 U.S. 436 (1883); Lapides v. Board of Regents of University System of
Georgia, 535 U.S. 613 (2002). Plaintiff's jurisdictional argument, pressed from November 8
2013 until January 14, 2016, was that Ohio's intervention and defense of S.B. 193 waived its
Eleventh Amendment defense to federal jurisdiction.
Plaintiff's effort to establish federal jurisdiction was justified. Plaintiff not only presented
what it believed to be strong jurisdictional arguments, its effort to establish federal jurisdiction
was practically and procedurally necessary. Plaintiff, after all, was challenging S.B. 193 under
federal law. The ACLU had joined the case to similarly challenge S.B. 193. Regardless of
Plaintiff's action, S.B. 193 would therefore be challenged in federal court under federal law. If it
were later determined that Ohio had waived its Eleventh Amendment defense, Plaintiff's failure
to join its state-law challenges to S.B. 193 in one single federal proceeding risked claim
preclusion. See Migra v. Warren City School District, 465 U.S. 75 (1984) (holding that failure to
join federal and state claims in single proceeding barred subsequent action under Ohio law).
Plaintiff needed to insure that federal jurisdiction either did, or did not, exist. If it did,
Plaintiff's state and federal claims needed to be joined. See State ex rel. Schacter v. Ohio Public
Employees Retirement Board, 905 N.E.2d 1210, 1215-16 (Ohio 2009). If not, Plaintiff was free
to later file its state claims in state court. See Richard A. Nogareda, The Preexistence Principle
and the Structure of Class Actions, 103 COLUM. L. REV. 149, 222 (2003) ("The prospect
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of claim splitting, after all, is the central preoccupation of claim preclusion law.")"* Either way,
jurisdictional certainty was imperative. Plaintiff needed to determine whether, given Ohio's
intervention and defense of S.B.193, the federal court possessed jurisdiction.
The Ohio Supreme Court ruled in State ex. rel. Scott v. Franklin County Board of
Elections, 10 N.E.3d 697, 698-99 (Ohio 2014), that laches cannot be used against a litigant who
has diligently (though unsuccessfully) pursued its claim in an "appropriate forum:"
the board faults Scott for filing his complaint in the Tenth District Court of Appeals,
rather than as an original action in this court, when he should have known that the matter
could not be fully adjudicated, including appeals, before the start of voting. Laches
applies to litigants who sit on their rights and fail to seek timely relief in some
appropriate court. Scott did not sit on his rights. He moved quickly to seek relief, and the
Tenth District Court of Appeals was an appropriate forum.
Plaintiff diligently pursued its challenge to S.B. 193 in federal court. Federal court offered an
"appropriate forum."'° If laches applies, it is satisfied by Plaintiff's diligence in federal court.
Ill. Plaintiff Suffers Irreparable Harm.
Defendants claim that Plaintiff has not established irreparable harm. Defendants are
wrong. Judges Sargus, Marbley and Watson all previously concluded that Ohio's denial of ballot
access to Plaintiff causes irreparable harm. See, e.g., Brunner, 567 F. Supp.2d at 1014 ("The
irreparable harm to the Libertarian Party and its candidates is denial of access to the ballot.");
Husted, 2011 WL 3957259 at *6 ("The irreparable harm to the Libertarian Party and its
candidates is denial of access to the ballot.").
* Splitting its Ohio constitutional claim from its federal challenge to S.B. 193 would have also
risked federal court abstention under Railroad Commission of Texas v. Pullman Co., 312 U.S.
496 (1941). This would have delayed resolution of Plaintiff's federal challenge. See, e.g., Askrew
v. Hargrave, 401 U.S. 476 (1971).
'S State ex rel. Manos v. Delaware County Board of Elections, 701 N.E.2d 371 (Ohio 1998),
relied on by Defendants, see Defendants’ Brief at 9, is not to the contrary. The challengers there
inexplicably failed to file a protest before proceeding to state court. They did "not suggest any
excuse for not submitting their protest to the board at an earlier date." /d. at 372.
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Judge Marbley perhaps put it best: "The ultimate goal of any political party is to govern.
Ballot access is fundamental to achieving this goal and preserving the autonomy of political
parties. Yet [Ohio's ballot access] requirements impose a tremendous burden on those parties that
seek to field candidates for election, but may have fewer resources than the two major
parties.” Jd. at *5 (emphasis added).
Qualified parties in Ohio are the only organizations allowed to formally sponsor
candidates for elective office. Sponsorship includes having a political party's name appear on the
ballot alongside its candidates’ names. Candidates gain direct access to the general election
ballot, moreover, by winning a recognized party's primary. Parties that are not recognized, like
Plaintiff now, cannot run candidates.
Plaintiff, moreover, seeks to have its presidential candidate run in the November 2016
general election. Ohio requires that recognized political parties’ presidential candidates be
certified by August 10, 2016.'° See O.R.C. § 3505.10. Assuming S.B. 193 were declared
unconstitutional, Plaintiff would be able to certify its candidate by August 10, 2016. Plaintiff
must be a qualified political party to do so.
Running presidential candidates is understandably important to party-building efforts. It
makes it much easier to recruit candidates for other offices, obtain funding, and register
members. Parties, like Plaintiff, that are not recognized to run candidates do not share these
'6 Presidential candidates, under Ohio law, are actually nominated by national conventions.
Minor parties under O.R.C. § 3505.10(B)(3) are permitted to “[c]ertifly] to the secretary of state
for placement on the presidential ballot” the name of their candidates. A minor party's
presidential candidate is selected by “authorized officials of [that] minor political party that has
held a state or national convention for the purpose of choosing those candidates or that may,
without a convention, certify those candidates in accordance with the procedure authorized by its
party rules.” /d. Participation in Obi sch 15,2016 primary is optional for this certification.
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advantages. They cannot run candidates for President. Their fundraising suffers, as do their
recruitment efforts. Their injury is irreparable. See Exhibit 6 (Bridges Affidavit).
Political-party-status, moreover, carries benefits beyond those that are directly tied to
ballots -- especially in Ohio. Ohio is the only state where party membership is defined by
primaries. See, e.g., O.R.C. § 3513.05 ("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"); Jon Husted, Ohio Secretary of State, Frequently Asked Questions: General Voting &
Voter Registration ("Under Ohio election law, you declare your political party affiliation by
requesting the ballot of a political party in a partisan primary election.").!”
This primary-created political party membership has serious legal implications in Ohio.
Ohio imposes party-membership requirements on those who sign and circulate candidates’
nominating petitions. See O.R.C. § 3513.05. Members of different political parties cannot sign
and/or circulate these petitions.'® Senate Bill 193 codifies this requirement. Even if Plaintiff were
to re-qualify under S.B. 193's terms, its candidates would still need to submit additional
nominating petitions signed by voters who had not voted in another party's primary over the
course of the last two years. See $.B. 193, § 1 (amending O.R.C. § 3517.012). They would have
to rely on unaffiliated voters, since Plaintiff has no members under Ohio law.
Last but not least, political-party-status directly affects how organizations raise and spend
money. Political parties in Ohio are allowed to raise and contribute much more money than other
" http://www.sos.state.oh.us/sos/elections/V oters/FA Q/genFA Qs.aspx#declare(last visited Novy.
17, 2015).
8 Party membership carries practical benefits, too. Membership lists are often bought and sold.
See O.R.C. § 3517.19 (allowing political parties in Ohio to sell their membership lists created by
the State). "[L]ists are invaluable in organizing campaigns, enlisting party workers and raising
funds.” Baer v. Meyer, 577 F.S. 838, 843 (D. Colo. 1984).
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types of organizations. The Campaign Finance Chart created by Defendant-Secretary reveals that
a political party may contribute up to $706,823.95 to a state-wide candidate. Plaintiff,
meanwhile, is limited to contributing $12,532.34, fifty-times less. See Ohio Campaign
Contribution Limits.'® Campaign finance rules, in short, favor recognized political parties.
Plaintiff is not a recognized political party. It suffers irreparable harm. See Exhibit 6.
IV. Plaintiff Was a Recognized Political Party Before The Enactment of S.B. 193.
Following his ruling invalidating Directive 2007-09, Judge Sargus in Brunner, 567 F.
Supp.2d 1006, ordered Defendant-Secretary to treat Plaintiff as a qualified political party during
the 2008 general election (and beyond). Rather than appeal, Defendant-Secretary entered into a
consent decree insuring Plaintiff's continuing ballot access in the absence of valid ballot access
legislation.
Judge Marbley described this consent decree three years later when the General
Assembly once again (unsuccessfully) attempted to pass a valid law:
Following the decision in Brunner, this Court found that the LPO had the requisite
community support to merit ballot access, and ordered that the LPO, along with three
other minor parties, be placed on Ohio's 2008 election ballot. The Secretary entered into a
consent decree agreeing not to enforce her interim requirements, and adopted Directive
2009-21, which guaranteed that the LPO (and_the three_other_minor parties) had
continued ballot access. On January 6, 2011, the Secretary reinstated Directive 2009-21
in Directive 2011-01, which continued ballot access for the LPO in 2011 and beyond.
Husted, 2011 WL 3957259 at *1 (emphasis added). Because of the consent decree entered in
Brunner, Defendant-Secretary had no choice but to recognize Plaintiff as a political party. It had
no choice but to restore Plaintiff's candidates to the November 2008 general election ballot --
even though they had not been allowed to run in the primary. This consent decree established the
status quo ante in this case.
0 http://www.sos.state.oh.us/sos/upload/candidates/2013limitchart.pdf (last visited Jan. 26,
2016).
14Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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Judge Marbley’s holding in Husted, 2011 WL 3957259, makes this clear. The General
Assembly had passed H.B. 194 in September of 2011 to revoke Plaintiff's ballot access. Judge
Marbley in Libertarian Party of Ohio v. Husted, 2011 WL 3957259 *6 (S.D. Ohio 2011),
rejected H.B. 194's cosmetic changes to Ohio ballot access law -- they "did little to change the
rules governing ballot access" -- and ordered again that Plaintiff be restored to Ohio's ballot:
the State should have no problem complying with this Court's order in 2011. This Court
will not instruct the State how to manage its elections in 2012, but requires it to take the
steps to enact ballot access laws that address the constitutional deficiencies identified
here, in Brunner, and in Blackwell.
Id. at *6, When S.B. 193 was passed on November 6, 2013, Plaintiff enjoyed political party
status under the consent decree entered in Brunner. Directive 2009-21 (Dec. 31, 2009),
Directive 2011-01 (Jan. 6, 2011),”' Directive 2013-02 (Jan. 31, 2013).”* each memorialized this
agreement. Senate Bill 193 revoked this understanding, these Directives, and ostensibly the
consent decree on which they were based. It changed the status quo ante.
Vv. Ballots Can Be Corrected.
As Plaintiff explains above, it does not seek to change or correct any ballots. It does not
seek to force itself or its candidates onto the March 15, 2016 primary ballot. It would prefer to
participate in that election, and believes that it could easily be included, but it does not here seek
that relief. It only moves to have S.B. 193 declared unconstitutional and prospectively enjoined,
just as Directive 2007-09 and H.B. 194 were enjoined in 2008 and 2011, respectively, by Judges
7 http://www.sos.state.oh.us/SOS/Upload/elections/directives/2009/Dir2009-21.pdf (last visited
Jan. 26, 2016).
21 http://www.sos.state.oh.us/SOS/Upload/elections/directives/2009/Dir2009-21.pdf (last visited
Jan. 26, 2016).
2 http://www.sos.state.oh.us/SOS/Upload/elections/directives/2009/Dir2009-21.pdf (last visited
Jan. 26, 2016).
15Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
0Cc884 - T42
Sargus and Marbley. Because Defendants incorrectly insist that Plaintiff seeks to alter ballots
and erroneously claim that ballots cannot be corrected, Plaintiff here responds to those claims. In
sum, Defendants are wrong about the law and wrong on the facts.
A. Financial Costs Cannot Determine Whether Ballots Must Be Corrected.
The Ohio Supreme Court has made clear that erroneous ballots must be corrected. This
remains true when an election is only days away. In State ex rel. Scott v. Franklin County Board
of Elections, 10 N.E.3d 697, 699 (Ohio 2014), the Ohio Supreme Court on April 21, 2014
ordered that the May 6, 2014 Democratic primary ballots be corrected:
The Franklin County Board of Elections is ordered to add Scott's name to the May 6,
2014 primary ballot with all possible speed. This relief is prospective only. The board is
not required to take any action with respect to ballots that have already been mailed to
voters and/or cast at the board of elections.
It rejected elections officials’ claims that time was too short. It rejected their defense of laches. It
rejected their claim that it would cost too much. Even though absentee and overseas ballots had
already been mailed, the remaining ballots were ordered corrected. This is the law in Ohio.
Scott teaches that costs and difficulties that might accompany correcting ballots are not
controlling. What is important is getting ballots right. Defendants cite no case holding that costs
and hardships justify using erroneous ballots. Plaintiff is aware of none. Courts have routinely
ordered that ballots be corrected in the weeks and days before elections. See, e.g., McCarthy v.
Briscoe, 429 U.S. 1317, 1323 n.4 (1976) (ordering on September 27 that independent
presidential candidate Eugene McCarthy be added to November ballot); Norman v. Reed, 502
U.S. 279 (1992) (ordering on October 25 that candidate be added to November ballot); Williams
v. Rhodes, 393 U.S. 23 (1968) (ordering on September 10 that George Wallace's name be added
to Ohio's November presidential); Illinois State Board of Elections v. Socialist Workers Party,
440 U.S. 173 (1979) (ordering on March 14 that candidate be added to April 19 ballot); Gjersten
16Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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v. Board of Election Commissioners for the City of Chicago, 587 F. Supp. 1134 (N.D. Ill. 1984)
(ordering candidates added to March 20 ballot on March 8). Not one of these holdings has
inquired of financial costs or administrative inconvenience. Defendants' claim has no support.
B. No Legal or Practical Problems Prohibit Correcting Ballots.
Federal law, referred to by its acronyms of UOCAVA and MOVE, requires the
transmission of federal election ballots to overseas voters 45 days before primary and general
elections. “UOCAVA's requirements apply only to absentee ballots used to elect candidates
for federal office.” Doe v. Walker, 746 F. Supp.2d 667, 674 (D. Md. 2010) (emphasis added).
Even then, UOCAVA and MOVE provide an exception for "legal contests" that delay
transmissions. See 52 U.S.C. § 20302(g)(2)(B)(ii) (stating that where a "State has suffered a
delay in generating ballots due to a legal contest" it need not comply). Even with federal
candidates, overseas ballots may be lawfully delayed and changed when they are incorrect.
Ballots transmitted under UOCAVA/MOVE are not the same ballots used for in-person
voting. They are not even the same ballots sent to absentee voters in Ohio (which are, for their
part, not even finalized until February 17, 2016). Overseas ballots are simple write-in ballots,
including SWABs (special write-in absentee ballots prepared by states), and FWABs (federal
write-in absentee ballots printed by the federal government). The latter are available at all
military installations. Election boards commonly mail out printed lists of candidates for overseas
voters, who then simply pencil in their selections on FWABs. Ohio counties do this all the time;
Defendant-Secretary provides the form.”* Lists of candidates can easily be changed with any
laptop computer, as the examples in footnote 23, supra, indicate.
3 See, e.g., Allen County Board of Elections 2016 Primary Ballot (SoS Form No. 120)
(hitte://www.alencountvohio.com/boe/fwab/2016 Primary FWAB pdf) (last visited Jan. 29,
2016); Richland County Board of Elections 2014 General Election Ballot (SoS Form No. 120)
17Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
0c884 - T44
Judged by the last presidential election, Ohio will likely transmit approximately 1000 of
these overseas ballots for the March 15, 2016 primary.” During the last two primaries, Plaintiff's
vote-total, which included at most 3135 voters in 2014, see Ohio 2014 Primary Data (Libertarian
Party Results),”> has amounted to less than one-fifth of 1% of the total votes (1,307,351) cast. Id.
One-fifth of one percent of 1000 overseas ballots translates into approximately two or three
overseas voters.
Absentee ballots for Ohio voters are not finalized until February 17, 2016. See ORC §
3509.11. The raw number of voters who would seek to participate in a Libertarian primary using
absentee ballots, meanwhile, is small. While 1,307,351 total votes were cast in Ohio's 2014
primary, 227,083 of these were cast absentee. See Ohio 2014 Primary Data (Absentee Ballot
Report).?°Four out of five primary votes were therefore cast in-person on election day.
Extrapolating from this data, were a Libertarian primary even held, only 500 or 600 absentee
ballots would be needed. This is hardly an alarming, all-hands-on-deck number.
Jiywwrichiandcountyoh. us/Board% 20Elections/Docs/20i4/General 1114/2014%20Gener
i i “Epa (last visited Jan. 29, 2016).
” During the 2012 primary in Ohio, there were 1010 overseas ballots transmitted to civilians and
military personnel. See Ohio Secretary of State, 2012 Election Results, Primary Election, March
6, 2012 (hereinafter "Ohio 2012 Primary Data") (Absentee Ballot Report)
(http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results.aspx) (last
visited Jan. 25, 2016).
% See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2014Results.aspx
(last visited Jan. 25, 2016). This figure was arrived at by adding all the votes cast for all the
Libertarian Party of Ohio candidates. It errors on the large side in terms of identifying how many
voters requested Libertarian ballots, since many of the voters would have voted for both local
and state-wide Libertarian candidates. Because the LPO's top state-wide candidate received 797
votes in 2014, somewhere between 797 and 3135 voters requested Libertarian ballots. The true
figure of ballots requested by Libertarian voters is likely between 1500 and 2000.
%6 http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2014Results.aspx (last
visited Jan. 25, 2016).
18Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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Because even in-person voting in minor party primaries is small, few changes would be
required. Again, in 2014 Plaintiff (Ohio's premier minor party) had at most 3135 voters
participate in its primary. As Defendants state, the Scott case involved changing approximately
9000 or 10,000 ballots. Even if Plaintiff here demanded a Libertarian primary on March 15, 2016
and attempted to force Defendants to provide one -- which it does not -- it would not be any
more difficult for election boards to print 3135 ballots over the course of six weeks than it was to
correct 9000+ ballots in sixteen days. Defendants’ systemic arguments to the contrary are
exaggerated; they are hardly persuasive.
VI. Ohio's Constitutional Primary Requirement is Judicially Enforceable.
Defendants devote little effort to the merits of Plaintiff's constitutional complaint. The
reason is simple; the merits leave no credible defense. The Ohio Supreme Court's decision in
State ex rel. Gottlieb v. Sulligan, 193 N.E.2d 270, 272 (Ohio 1963), speaks for itself. Ohio's
Attorney General has himself observed that "State ex rel. Gottlieb v. Sulligan thus determined
that the phrase 'nominating petition,’ as used in R.C. § 3513.04, is limited to petition papers filed
by an independent candidate." See 2006 Ohio Op. Atty. Gen. 2-318, 2006 WL 2548509 (Aug.
10, 2006) (emphasis added). In Ohio, nominating petitions are for independent candidates;
primaries are for political parties.
The Sixth Circuit's ruling in Blackwell, 462 F.3d 579, had no difficulty reaching this
result. Ohio's Constitution, it ruled, "requires that all political parties, including minor parties,
nominate their candidates at primary elections." /d. at 582 (Citing Art. V, §7). While independent
candidates may be relegated to nominating petitions, minor political parties (which obviously
seek to build membership) are entitled to primaries.
19Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554
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Defendants now seek to avoid Article V, § 7's plain command by asserting that it is
vague; no one understands it. It is not judicially enforceable. The Ohio Supreme Court, Sixth
Circuit, and Ohio Attorney General had no problem understanding it. No court has ever ruled
that it is unenforceable. The Ohio Supreme Court enforced Article V, § 7 in Sulligan by holding
that it did not authorize parties’ substitutions of candidates.”” No case cited by Defendants
supports their claim. Section 7 of Article V was enforced in Sulligan and can be enforced here.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that its Motion be GRANTED.
Respectfully submitted,
S/_M.G. Kafantaris
Mark R. Brown (# 81941) Mark G. Kafantaris (#80392)
303 E. Broad Street 625 City Park Avenue
Columbus, Ohio 43215 Columbus, Ohio 43206
Tel: (614) 236-6590 Tel: (614) 223-1444
Fax: (614) 236-6956 Fax: (614) 300-5123
E-mail: mbrown@law.capital.edu E-mail: mark @kafantaris.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
Thereby certify that this Reply was filed using the Court's electronic transmission service
and will be served on counsel of all parties of record. Plaintiff has also electronically delivered to
Halli Watson and Jordan Berman, c/o Halli.Watson@ohioattorneygeneral.gov and
Jordan.Berman @ ohioattorneygeneral.gov, Attorneys for the Defendants, copies of this Motion
this 1st Day of February, 2016.
5/M.G. Kafantaris
Mark Kafantaris
°7 Defendants argue that State v. Jackson, 811 N.E.2d 68, 73 (Ohio 2004), somehow supports
their claim. In Jackson a criminal defendant who had tampered with election ballots claimed that
the introduction of those ballots as evidence violated Ohio's secret ballot requirement. He hoped
the Court would use Article V, § 2 to create an exclusionary rule. The court declined.
20
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T26 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO LIBERTARIAN PARTY OF OHIO, Plaintiff, vs. JON HUSTED, et al., Defendants. CASE NO.: 16-cy-554 JUDGE: David C. Young PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR EMERGENCY RELIEF Mark R. Brown (#81941) 303 E. Broad Street Columbus, Ohio 43215 Tel: (614) 236-6590 Fax: (614) 236-6956 E-mail: mbrown@law.capital.edu Mark G. Kafantaris (#80392) 625 City Park Avenue Columbus, Ohio 43206 Tel: (614) 223-1444 Fax: (614) 300-5123 E-mail: mark @kafantaris.com Attorneys for PlaintiffFranklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0Cc884 - T27 INTRODUCTION Defendants argue that Plaintiff frequently loses ballot access challenges. See Defendants’ Memorandum in Opposition (hereinafter "Defendants' Brief") at 10.! They are wrong. Plaintiff has successfully challenged five laws in Ohio restricting parties’, voters' and candidates’ rights over the last ten years. These laws have ranged from restrictions on who may circulate candidates' petitions to who may appear on ballots. See Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) (invalidating O.R.C. § 3517.01); Libertarian Party of Ohio v. Brunner, 567 F. Supp.2d 1006 (S.D. Ohio 2008) (invalidating Directive 2007-09); Libertarian Party of Ohio v. Husted, 2011 WL 3957259 (S.D. Ohio 2011) (invalidating H.B. 194), vacated as moot, 497 Fed. Appx. 581 (6th Cir. 2012); Libertarian Party of Ohio v. Husted, No. 13-953 (S.D. Ohio, Nov. 13, 2013) (Doe. No. 18)? (invalidating O.R.C. § 3503.06(C)(1)(a)); Libertarian Party of Ohio v. Husted, No. 13-953 (S.D. Ohio, Jan. 7, 2014) (Doc. No. 47) (invalidating S.B. 193 as applied to 2014 election) (Exhibit 1). Defendants devote significant time to the defense of laches. Plaintiff's case (like those cited above), however, seeks only prospective relief prohibiting future enforcement of an Ohio election law. Plaintiff has modeled its Complaint and its demand for Emergency Relief on its prior successes. Plaintiff does not demand that any candidates be placed on any ballots. No ' Plaintiff is not connected to the Libertarian Parties of Kentucky or Michigan. Contrary to Defendants' claim, "[p]ressing its claims expeditiously" has never been a problem for Plaintiff. ? Documents from Libertarian Party of Ohio v. Husted, No. 13-953, that are cited but not included as Exhibits may be located on either Pacer or on the Ohio State University Moritz College of Law Election Law Case Page for Libertarian Party of Ohio v. Husted, No. 13-953 (http://moritzlaw.osu.edu/electionlaw/litigation/LPOHusted.php) (last visited Jan. 30, 2016). Document Number 18, for example, is located at this page: http://moritzlaw.osu.edu/electionlaw/litigation/documents/LPOOpinionORderPrelimInj.pdf (last visited Jan. 30, 2016). All references denoted "Doc. No. __" are to proceedings in District Court.Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0C884 - T28 candidates are parties to this case. Plaintiff does not here seek to force changes to any existing ballots, including ballots for the March 15. 2016* primary. As stated in J 61 of its Complaint: The present action seeks only declaratory and injunctive relief against Defendants, in their official capacities as Secretary of State and Attorney General, respectively, invalidating S.B. 193 under Ohio's Constitution and enjoining its future enforcement. Plaintiff only seeks to have Ohio's ballot access law (S.B. 193) declared unconstitutional and its enforcement enjoined. Prospective relief will render S.B. 193 void and unenforceable in the future. It will redress Plaintiff’s irreparable injuries by restoring the status quo ante. Plaintiff will once again be a recognized political party and will participate in future elections, including the November 2016 presidential election (which as discussed below has a qualifying date of August 10, 2016), the 2017 primary, and all other elections thereafter. That is all Plaintiff seeks here.* For this same reason, Defendants’ claim that correcting ballots is unlawful, difficult and expensive’ is misplaced. No ballots need be corrected to enjoin $.B. 193. No expenses need be incurred to declare §.B. 193 unconstitutional. These were not concerns in the prospective actions filed in Blackwell, 462 F.3d 579; Brunner, 567 F. Supp.2d 1006; Husted, 2011 WL 3957259; and Husted II, No. 13-953 (S.D. Ohio, Jan. 7, 2014), and they are not defenses here. 3 Plaintiff underscores relevant dates for ease of reference. 4 Potential candidates sought to run in Plaintiffs primaries on March 15, 2016, as Plaintiffs explained to Defendants on several occasions. Defendant-Secretary rejected them. Plaintiff does not challenge that decision here. It is worth mentioning, however, that following Judge Sargus's July 17, 2008 order invalidating Directive 2007-09, Defendant agreed to place Plaintiff's candidates (who had been excluded from the primary) on the November general election ballot. * Defendants’ demand that security be posted is unprecedented. See Defendants’ Brief at 19. No court has required that a candidate or party post security in order to enjoin an unconstitutional election law. Neither Judge Sargus, Judge Marbley, nor Judge Watson required security when they enjoined Directive 2007-09, H.B. 194 and S.B. 193, respectively. 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T29 PROCEEDINGS IN THE DISTRICT COURT Defendants argue that Plaintiff was dilatory in federal District Court. Defendants are wrong. Proceedings in the District Court fell into three distinct phases with three different challenges to three different Ohio laws. As the attached Docket Sheet, Exhibit 2, makes clear, Plaintiff acted with the utmost determination and diligence in all three phases. The first phase involved Plaintiff's challenge to Ohio's law requiring that circulators be Ohio residents. On June 21, 2013, Ohio amended its law (O.R.C. § 3503.06) to require that circulators of nominating petitions be Ohio residents. Plaintiff on September 25, 2013 filed its Complaint, see Doc. No. 1, challenging this amendment. See Doc. No. 3. On October 3, 2013, notwithstanding that Defendant-Secretary was already defending this law, Ohio intervened to defend the measure. See Doc. No. 5. November 6, 2013 ushered in the second phase of the proceedings when S.B. 193 was enacted. On November 8, 2013, Plaintiff amended its Complaint to challenge S.B. 193. See Doc. No. 16. Plaintiff on November 10, 2013 sought emergency injunctive relief under both the federal Constitution and, because Ohio had voluntarily intervened, Ohio's Constitution. See Doc. No. 17. Both Ohio and the Secretary defended S.B. 193. See Doc. No. 21. On November 13. 2013, Judge Watson enjoined enforcement of Ohio's circulator- residence requirement. See Doc. No. 18. His decision was not appealed. On January 7, 2014, Judge Watson enjoined S.B. 193's application to Ohio's 2014 election. See Doc. No. 47 at PAGEID # 837-38 (Exhibit 1). Judge Watson agreed that applying S.B. 193 to Ohio's 2014 primary violated federal Due Process. /d. He reserved ruling on future applications of $.B. 193 under either federal law or the Ohio Constitution. /d. at PAGEID # 834-36. Because Plaintiff hadFranklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T30 been restored to the 2014 ballot, Judge Watson concluded that $.B. 193's future fate need not be addressed "at this juncture." /d. at PAGEID # 836.6 Federal litigation entered its third phase when Charlie Earl, Plaintiff's candidate for Governor, was removed from the primary ballot on March 7, 2014. Plaintiff amended its complaint that very day to challenge Earl's removal and sought immediate emergency relief. See Docs. No. 56 & 57. Plaintiff's effort failed to restore Earl's candidacy to the 2014 primary ballot. Only later did Plaintiff discover that the Ohio Republican Party (ORP), with the assistance of the Kasich Campaign for Governor, had concocted a plot to sabotage Earl's candidacy.” In the summer months following Earl's removal, Plaintiff discovered that ORP and the Kasich Campaign had "duped" Gregory Felsoci into protesting Earl's candidacy.® From March 7, 2014 until present, this third phase has been the focus of contentious” and time-consuming” proceedings in federal court. °On January 10, 2014, Ohio and the Secretary filed an unsuccessful appeal, see Doc. No. 50, that was later dismissed. 7 This evidence is thoroughly described in Plaintiff's Memorandum, Doc. No. 335-1 (Exhibit 5), supporting its Omnibus Motion to Supplement the Record (filed on October 12, 2015). 8 Judge Watson described Felsoci as a "guileless dupe." See Doc. No. 80 at PAGEID # 2148. ° Judge Watson concluded that Defendants had engaged in a pattern of "harassing and obstructive conduct" designed to delay Plaintiff's case. See Doc. No. 260 at PAGEID # 7104 (Exhibit 3). ‘© Plaintiff was forced to win three federal court orders in the summer of 2014 (including one directed at Defendant-Secretary) to uncover the conspiracy. See, e.g., Libertarian Party of Ohio v. Husted, 33 F. Supp.2d 914 (S.D. Ohio 2014) (ordering that Secretary present his agents for depositions); Libertarian Party of Ohio v. Husted, 302 F.R.D. 472 (S.D. Ohio 2014) (ordering that Felsoci appear for his deposition); Libertarian Party of Ohio v. Husted, 2014 WL 3928293 (S.D. Ohio 2014) (ordering that Felsoci produce documents identifying who was paying his lawyers). More discovery orders were to come. See infra. Notwithstanding these delays, Plaintiff finally uncovered documents showing that ORP and the Kasich Campaign were involved. remove Earl. ORP, for example, paid at least $300,000 to Felsoci's lawyers to protest Earl and the Kasich Campaign coordinated all aspects of the protest. See Exhibit 5. 4Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T31 Although this third phase of the federal litigation was not related to the validity of S.B. 193, it ultimately delayed resolution of Plaintiff's challenge to that statute. Plaintiff was forced to seek another preliminary injunction in order to respond to ORP's and the Kasich Campaign's removal of Ear. In addition to the hours spent in discovery and briefing, a hearing was held on September 29 and 30, 2014 in federal court. In large part because Plaintiff was unable to uncover ORP's financial arrangement with his lawyers,'! Plaintiff's effort proved unsuccessful. On October 17, 2014 Judge Watson denied relief. See Exhibit 3. While Earl was not preliminarily restored to the ballot, this phase of the proceedings remains pending in federal court in light of what Plaintiff uncovered several months later. See Exhibit 5. On August 15, 2014, the ACLU (which had previously intervened) moved for summary judgment under its federal challenges to S.B. 193. See Doc. No. 165. Immediately following its failed attempt to restore Earl to the ballot, on October 23, 2014 Plaintiff likewise moved for summary judgment reiterating its motion to enjoin S.B. 193. See Doc. No. 261. On March 16, 2015, Judge Watson denied the ACLU's motion for summary judgment. See Doc. No. 285. Judge Watson did not address Plaintiff's challenge under Ohio's Constitution, nor did he resolve Plaintiff's federal Equal Protection claim at that time. Plaintiff's discovery efforts in phase-three of the litigation continued while its challenge to S.B. 193 was pending. On July 6, 2015, immediately following Plaintiff's discovery that ORP had paid $300,000 to Felsoci's lawyers to protest Earl, see Exhibit 5, Judge Watson ordered Plaintiff to continue with its discovery and report when it was concluded. See Doc. No. 305. He held the case (including Plaintiff's challenge to S.B. 193) in abeyance while Plaintiff pursued ORP's and the Kasich Campaign's connection to Earl's removal from the ballot. /d. "| Felsoci's lawyers failed to disclose who was paying them. See Libertarian Party of Ohio v. Husted, 2014 WL 3928293 (S.D. Ohio 2014).Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0Cc884 - T32 Plaintiffs discovery efforts in the summer of 2015, like their discovery during the summer of 2014, were met with massive resistance. The District Court as late as September 2, 2015 was forced to again order Felsoci to sit for a deposition. See Doc. No. 322. Matt Borges, ORP's chair, was directed by Magistrate Judge Kemp shortly thereafter to submit to deposition. On October 2, 2015, Plaintiffs won another order (bringing their total to five) forcing Felsoci's confederates to produce documents. See Doc. No. 334. On October 6, 2015, Plaintiff deposed ORP's chair, Matt Borges and thereafter immediately notified Judge Watson following Borges's deposition that discovery was complete. Plaintiff on October 12, 2015 filed a comprehensive motion to supplement the record. See Doc. Nos. 335 and 335-1 (Exhibit 5). On October 14, 2015 Judge Watson lifted his stay, denied Plaintiff's Equal Protection challenge to S.B. 193, and dismissed its claim under the Ohio Constitution on jurisdictional grounds. See Doc. No. 336 (Exhibit 4). On October 16, 2015, Judge Watson instructed the parties to brief anew ORP's and the Kasich Campaign's involvement. See Doc. No. 337. Briefing was completed on November 9, 2015. This phase-three matter remains pending in federal court. On November 18, 2015, after unsuccessfully seeking Rule 54(b) certification, Plaintiff attempted to appeal the dismissal of its Ohio constitutional claim. See Doc. No. 353. The appeal was dismissed.'? Neither the Sixth Circuit sitting en banc nor the Supreme Court agreed to review the dismissal. The Supreme Court's order finally disposing of Plaintiff's appeal was released on January 14, 2016. This case was filed two business days later. Defendants’ abrasive charge that Plaintiff "accus[ed]" Judge Batchelder of "judicial impropriety," see Defendants’ Brief at 5, is demonstrably false and plainly inappropriate. Plaintiff understandably sought Judge Batchelder's recusal because her husband, Ohio's Speaker of the House, sponsored S.B. 193. See Doc. No. 359. No factual basis supports Defendants’ charge and no legitimate interest was served by casting such an aspersion here. 6Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T33 ARGUMENT I. The Doctrine of Laches Does Not Apply. “Tt has often been said that laches is generally not a bar to prospective injunctive relief.” Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 840 (9th Cir. 2002) (citations omitted). “A prospective injunction is entered only on the basis of current, ongoing conduct that threatens future harm. Inherently, such conduct cannot be so remote in time as to justify the application of the doctrine of laches.” Lyons Partnership, LP v. Morris Costumes, Inc., 243 F.3d 789, 799 (4th Cir. 2001). Plaintiff's case is purely prospective. See, e.g., Complaint at {[ 61. Plaintiff does not seek to correct or change ballots. Plaintiff does not seek to place candidates on existing ballots. While Ohio's courts have applied laches to candidates’ challenges that seek to have their names placed on ballots, see, e.g., Foster v. Cuyahoga County Bd of Elections, 373 N.E.2d 1274, 1282 (Ohio App. 1977) (‘The doctrine of laches has been specifically applied to challenges to a determination by a board of elections of the validity of a candidacy.”), they have never applied laches to defeat prospective challenges to election laws by political parties (or anyone else). The significant difference between correcting ballots and awarding purely prospective relief was recently explained in Navarro v. Neal, 716 F.3d 425, 429 (7th Cir. 2013). The District Court there used laches to bar not only the plaintiffs’ attempt to change ballots, but also their prospective challenge to an election law. The Seventh Circuit reversed. It found that the defense of laches cannot bar prospective claims for declaratory relief: "neither the Board members' brief nor the district court's order sheds light on how the plaintiffs' delay in filing suit could impact a purely prospective remedy." /d. at 430.Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T34 Defendants cite no contrary authority. None, to Plaintiff's knowledge, exists. This is proved by Ohio's own unsuccessful efforts to defend its ballot access laws over the course of the last ten years. In Blackwell, 462 F.3d at 583, the District Court invoked laches to dismiss Plaintiff's claims, which included a prospective challenge to Ohio's ballot access law. The Sixth Circuit reversed. It struck down Ohio's ballot access law. It rejected laches. The same was true in Brunner, 567 F. Supp.2d 1006. There, Secretary Brunner on May 21, 2007 issued Directive 2007-09 to again require early-filing by minor parties. Plaintiff challenged this Directive on June 6, 2008, after it had been denied participation in Ohio's May primary. /d. at 1010. Even though the primary was over (without Plaintiff and its candidates), Judge Sargus on July 17, 2008 ruled that Directive 2007-09 was unconstitutional. Laches was never mentioned. Plaintiff was restored to Ohio's ballot in time for the November 2008 election. The same was again true in Husted, 2011 WL 3957259, where Judge Marbley ruled that H.B. 194 was unconstitutional. House Bill 194 was passed on July 1, 2011. Like Ohio's previous unconstitutional measures, it required thousands of signatures several months before the general election. /d. at *2. Immediately following Defendant-Secretary's notification on August 5, 2011 that its ballot access had been revoked, Plaintiff challenged H.B. 194 seeking prospective relief. Judge Marbley agreed on September 7, 2011 that H.B. 194 was unconstitutional. Plaintiff was restored to the ballot. Plaintiff's candidates ran in the November 2011 election, the 2013 primary, and the November 2013 general elections. Laches was never discussed. When Judge Watson on January 7, 2014 enjoined S.B. 193's application to "Ohio's 2014 primary and general elections," Doc. No. 47 at PAGEID #838 (Exhibit 1), he ordered "Defendants to provide Plaintiffs and their candidates access to the 2014 primary and general elections ...." Jd. Laches was no bar to this prospective relief.Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T35 Plaintiffs challenge here is prospective. Plaintiff does not seek to change ballots. No candidates seek court orders changing the March 15, 2016 primary ballot. Plaintiff desires prospective relief so that it can once again be a political party in Ohio. It seeks prospective relief in order to certify its presidential candidate on August 10, 2016. See O.R.C. § 3505.10. It seeks prospective relief so that it may hold primaries in the future. None of this is barred by laches. I. Plaintiff's Diligence Satisfies Laches. Assuming the doctrine of laches is relevant to this case, Plaintiff passes the test. Plaintiff has diligently pursued its prospective challenge to S.B. 193 for over two years. It challenged S.B. 193 on November 8, 2013, two days after it was signed by the Governor. Its motion for emergency relief was filed two days later on November 10, 2013. Plaintiff won emergency relief under the Due Process Clause enjoining S.B. 193's application to the 2014 election on January 7 2014. Because of this relief and Defendants’ "obstructive tactics"! during discovery, Judge Watson held in abeyance Plaintiff's challenge to S.B. 193 (including its claim under the Ohio Constitution) until October 14, 2015. Plaintiff's appeal was denied by the Supreme Court on January 14, 2016. Between November 8, 2013 and present, there is no time at which Plaintiff was not actively engaged in challenging S.B. 193. To the extent there was delay, moreover, it was caused by Defendants, who were found to have "obstructed" Plaintiff's case. 'S Defendants argue that the doctrine of laches was invoked against Plaintiff by Judge Watson to bar its ballot access and suggest that this is somehow relevant to Plaintiff's challenge to S.B. 193. See Defendants' Brief at 6-7. Defendants are wrong. While it is true that Judge Watson used laches to deny Plaintiff's motion for a temporary restraining order seeking to restore Charlie Earl to the 2014 general gubernatorial ballot during phase-three of the proceedings, this had nothing to do with Plaintiff's challenge to S.B. 193. Further, once Judge Watson was apprised that Defendant-Secretary and Felsoci had employed "tactics that resulted in delay," Doc. No. 260 at PAGEID # 7102 (Exhibit 3), he reconsidered his earlier entry and rejected their defense of laches to Plaintiff's motion for a preliminary injunction: "In light of the obstructive tactics employed by opposing counsel during discovery, the Court declines to hold those claims barred by laches." /d. at PAGEID # 7106 (emphasis added).Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T36 Contrary to Defendants’ claim, Plaintiff's efforts to establish federal jurisdiction over its Ohio constitutional claim were hardly wasteful. The Supreme Court has recognized that when a state voluntarily intervenes in federal litigation, it waives its Eleventh Amendment protection. See Clark v. Barnard, 108 U.S. 436 (1883); Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (2002). Plaintiff's jurisdictional argument, pressed from November 8 2013 until January 14, 2016, was that Ohio's intervention and defense of S.B. 193 waived its Eleventh Amendment defense to federal jurisdiction. Plaintiff's effort to establish federal jurisdiction was justified. Plaintiff not only presented what it believed to be strong jurisdictional arguments, its effort to establish federal jurisdiction was practically and procedurally necessary. Plaintiff, after all, was challenging S.B. 193 under federal law. The ACLU had joined the case to similarly challenge S.B. 193. Regardless of Plaintiff's action, S.B. 193 would therefore be challenged in federal court under federal law. If it were later determined that Ohio had waived its Eleventh Amendment defense, Plaintiff's failure to join its state-law challenges to S.B. 193 in one single federal proceeding risked claim preclusion. See Migra v. Warren City School District, 465 U.S. 75 (1984) (holding that failure to join federal and state claims in single proceeding barred subsequent action under Ohio law). Plaintiff needed to insure that federal jurisdiction either did, or did not, exist. If it did, Plaintiff's state and federal claims needed to be joined. See State ex rel. Schacter v. Ohio Public Employees Retirement Board, 905 N.E.2d 1210, 1215-16 (Ohio 2009). If not, Plaintiff was free to later file its state claims in state court. See Richard A. Nogareda, The Preexistence Principle and the Structure of Class Actions, 103 COLUM. L. REV. 149, 222 (2003) ("The prospect 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0Cc884 - T37 of claim splitting, after all, is the central preoccupation of claim preclusion law.")"* Either way, jurisdictional certainty was imperative. Plaintiff needed to determine whether, given Ohio's intervention and defense of S.B.193, the federal court possessed jurisdiction. The Ohio Supreme Court ruled in State ex. rel. Scott v. Franklin County Board of Elections, 10 N.E.3d 697, 698-99 (Ohio 2014), that laches cannot be used against a litigant who has diligently (though unsuccessfully) pursued its claim in an "appropriate forum:" the board faults Scott for filing his complaint in the Tenth District Court of Appeals, rather than as an original action in this court, when he should have known that the matter could not be fully adjudicated, including appeals, before the start of voting. Laches applies to litigants who sit on their rights and fail to seek timely relief in some appropriate court. Scott did not sit on his rights. He moved quickly to seek relief, and the Tenth District Court of Appeals was an appropriate forum. Plaintiff diligently pursued its challenge to S.B. 193 in federal court. Federal court offered an "appropriate forum."'° If laches applies, it is satisfied by Plaintiff's diligence in federal court. Ill. Plaintiff Suffers Irreparable Harm. Defendants claim that Plaintiff has not established irreparable harm. Defendants are wrong. Judges Sargus, Marbley and Watson all previously concluded that Ohio's denial of ballot access to Plaintiff causes irreparable harm. See, e.g., Brunner, 567 F. Supp.2d at 1014 ("The irreparable harm to the Libertarian Party and its candidates is denial of access to the ballot."); Husted, 2011 WL 3957259 at *6 ("The irreparable harm to the Libertarian Party and its candidates is denial of access to the ballot."). * Splitting its Ohio constitutional claim from its federal challenge to S.B. 193 would have also risked federal court abstention under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). This would have delayed resolution of Plaintiff's federal challenge. See, e.g., Askrew v. Hargrave, 401 U.S. 476 (1971). 'S State ex rel. Manos v. Delaware County Board of Elections, 701 N.E.2d 371 (Ohio 1998), relied on by Defendants, see Defendants’ Brief at 9, is not to the contrary. The challengers there inexplicably failed to file a protest before proceeding to state court. They did "not suggest any excuse for not submitting their protest to the board at an earlier date." /d. at 372. 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0C884 - T38 Judge Marbley perhaps put it best: "The ultimate goal of any political party is to govern. Ballot access is fundamental to achieving this goal and preserving the autonomy of political parties. Yet [Ohio's ballot access] requirements impose a tremendous burden on those parties that seek to field candidates for election, but may have fewer resources than the two major parties.” Jd. at *5 (emphasis added). Qualified parties in Ohio are the only organizations allowed to formally sponsor candidates for elective office. Sponsorship includes having a political party's name appear on the ballot alongside its candidates’ names. Candidates gain direct access to the general election ballot, moreover, by winning a recognized party's primary. Parties that are not recognized, like Plaintiff now, cannot run candidates. Plaintiff, moreover, seeks to have its presidential candidate run in the November 2016 general election. Ohio requires that recognized political parties’ presidential candidates be certified by August 10, 2016.'° See O.R.C. § 3505.10. Assuming S.B. 193 were declared unconstitutional, Plaintiff would be able to certify its candidate by August 10, 2016. Plaintiff must be a qualified political party to do so. Running presidential candidates is understandably important to party-building efforts. It makes it much easier to recruit candidates for other offices, obtain funding, and register members. Parties, like Plaintiff, that are not recognized to run candidates do not share these '6 Presidential candidates, under Ohio law, are actually nominated by national conventions. Minor parties under O.R.C. § 3505.10(B)(3) are permitted to “[c]ertifly] to the secretary of state for placement on the presidential ballot” the name of their candidates. A minor party's presidential candidate is selected by “authorized officials of [that] minor political party that has held a state or national convention for the purpose of choosing those candidates or that may, without a convention, certify those candidates in accordance with the procedure authorized by its party rules.” /d. Participation in Obi sch 15,2016 primary is optional for this certification. 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T39 advantages. They cannot run candidates for President. Their fundraising suffers, as do their recruitment efforts. Their injury is irreparable. See Exhibit 6 (Bridges Affidavit). Political-party-status, moreover, carries benefits beyond those that are directly tied to ballots -- especially in Ohio. Ohio is the only state where party membership is defined by primaries. See, e.g., O.R.C. § 3513.05 ("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"); Jon Husted, Ohio Secretary of State, Frequently Asked Questions: General Voting & Voter Registration ("Under Ohio election law, you declare your political party affiliation by requesting the ballot of a political party in a partisan primary election.").!” This primary-created political party membership has serious legal implications in Ohio. Ohio imposes party-membership requirements on those who sign and circulate candidates’ nominating petitions. See O.R.C. § 3513.05. Members of different political parties cannot sign and/or circulate these petitions.'® Senate Bill 193 codifies this requirement. Even if Plaintiff were to re-qualify under S.B. 193's terms, its candidates would still need to submit additional nominating petitions signed by voters who had not voted in another party's primary over the course of the last two years. See $.B. 193, § 1 (amending O.R.C. § 3517.012). They would have to rely on unaffiliated voters, since Plaintiff has no members under Ohio law. Last but not least, political-party-status directly affects how organizations raise and spend money. Political parties in Ohio are allowed to raise and contribute much more money than other " http://www.sos.state.oh.us/sos/elections/V oters/FA Q/genFA Qs.aspx#declare(last visited Novy. 17, 2015). 8 Party membership carries practical benefits, too. Membership lists are often bought and sold. See O.R.C. § 3517.19 (allowing political parties in Ohio to sell their membership lists created by the State). "[L]ists are invaluable in organizing campaigns, enlisting party workers and raising funds.” Baer v. Meyer, 577 F.S. 838, 843 (D. Colo. 1984). 13Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T40 types of organizations. The Campaign Finance Chart created by Defendant-Secretary reveals that a political party may contribute up to $706,823.95 to a state-wide candidate. Plaintiff, meanwhile, is limited to contributing $12,532.34, fifty-times less. See Ohio Campaign Contribution Limits.'® Campaign finance rules, in short, favor recognized political parties. Plaintiff is not a recognized political party. It suffers irreparable harm. See Exhibit 6. IV. Plaintiff Was a Recognized Political Party Before The Enactment of S.B. 193. Following his ruling invalidating Directive 2007-09, Judge Sargus in Brunner, 567 F. Supp.2d 1006, ordered Defendant-Secretary to treat Plaintiff as a qualified political party during the 2008 general election (and beyond). Rather than appeal, Defendant-Secretary entered into a consent decree insuring Plaintiff's continuing ballot access in the absence of valid ballot access legislation. Judge Marbley described this consent decree three years later when the General Assembly once again (unsuccessfully) attempted to pass a valid law: Following the decision in Brunner, this Court found that the LPO had the requisite community support to merit ballot access, and ordered that the LPO, along with three other minor parties, be placed on Ohio's 2008 election ballot. The Secretary entered into a consent decree agreeing not to enforce her interim requirements, and adopted Directive 2009-21, which guaranteed that the LPO (and_the three_other_minor parties) had continued ballot access. On January 6, 2011, the Secretary reinstated Directive 2009-21 in Directive 2011-01, which continued ballot access for the LPO in 2011 and beyond. Husted, 2011 WL 3957259 at *1 (emphasis added). Because of the consent decree entered in Brunner, Defendant-Secretary had no choice but to recognize Plaintiff as a political party. It had no choice but to restore Plaintiff's candidates to the November 2008 general election ballot -- even though they had not been allowed to run in the primary. This consent decree established the status quo ante in this case. 0 http://www.sos.state.oh.us/sos/upload/candidates/2013limitchart.pdf (last visited Jan. 26, 2016). 14Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - TAl Judge Marbley’s holding in Husted, 2011 WL 3957259, makes this clear. The General Assembly had passed H.B. 194 in September of 2011 to revoke Plaintiff's ballot access. Judge Marbley in Libertarian Party of Ohio v. Husted, 2011 WL 3957259 *6 (S.D. Ohio 2011), rejected H.B. 194's cosmetic changes to Ohio ballot access law -- they "did little to change the rules governing ballot access" -- and ordered again that Plaintiff be restored to Ohio's ballot: the State should have no problem complying with this Court's order in 2011. This Court will not instruct the State how to manage its elections in 2012, but requires it to take the steps to enact ballot access laws that address the constitutional deficiencies identified here, in Brunner, and in Blackwell. Id. at *6, When S.B. 193 was passed on November 6, 2013, Plaintiff enjoyed political party status under the consent decree entered in Brunner. Directive 2009-21 (Dec. 31, 2009), Directive 2011-01 (Jan. 6, 2011),”' Directive 2013-02 (Jan. 31, 2013).”* each memorialized this agreement. Senate Bill 193 revoked this understanding, these Directives, and ostensibly the consent decree on which they were based. It changed the status quo ante. Vv. Ballots Can Be Corrected. As Plaintiff explains above, it does not seek to change or correct any ballots. It does not seek to force itself or its candidates onto the March 15, 2016 primary ballot. It would prefer to participate in that election, and believes that it could easily be included, but it does not here seek that relief. It only moves to have S.B. 193 declared unconstitutional and prospectively enjoined, just as Directive 2007-09 and H.B. 194 were enjoined in 2008 and 2011, respectively, by Judges 7 http://www.sos.state.oh.us/SOS/Upload/elections/directives/2009/Dir2009-21.pdf (last visited Jan. 26, 2016). 21 http://www.sos.state.oh.us/SOS/Upload/elections/directives/2009/Dir2009-21.pdf (last visited Jan. 26, 2016). 2 http://www.sos.state.oh.us/SOS/Upload/elections/directives/2009/Dir2009-21.pdf (last visited Jan. 26, 2016). 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0Cc884 - T42 Sargus and Marbley. Because Defendants incorrectly insist that Plaintiff seeks to alter ballots and erroneously claim that ballots cannot be corrected, Plaintiff here responds to those claims. In sum, Defendants are wrong about the law and wrong on the facts. A. Financial Costs Cannot Determine Whether Ballots Must Be Corrected. The Ohio Supreme Court has made clear that erroneous ballots must be corrected. This remains true when an election is only days away. In State ex rel. Scott v. Franklin County Board of Elections, 10 N.E.3d 697, 699 (Ohio 2014), the Ohio Supreme Court on April 21, 2014 ordered that the May 6, 2014 Democratic primary ballots be corrected: The Franklin County Board of Elections is ordered to add Scott's name to the May 6, 2014 primary ballot with all possible speed. This relief is prospective only. The board is not required to take any action with respect to ballots that have already been mailed to voters and/or cast at the board of elections. It rejected elections officials’ claims that time was too short. It rejected their defense of laches. It rejected their claim that it would cost too much. Even though absentee and overseas ballots had already been mailed, the remaining ballots were ordered corrected. This is the law in Ohio. Scott teaches that costs and difficulties that might accompany correcting ballots are not controlling. What is important is getting ballots right. Defendants cite no case holding that costs and hardships justify using erroneous ballots. Plaintiff is aware of none. Courts have routinely ordered that ballots be corrected in the weeks and days before elections. See, e.g., McCarthy v. Briscoe, 429 U.S. 1317, 1323 n.4 (1976) (ordering on September 27 that independent presidential candidate Eugene McCarthy be added to November ballot); Norman v. Reed, 502 U.S. 279 (1992) (ordering on October 25 that candidate be added to November ballot); Williams v. Rhodes, 393 U.S. 23 (1968) (ordering on September 10 that George Wallace's name be added to Ohio's November presidential); Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (ordering on March 14 that candidate be added to April 19 ballot); Gjersten 16Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0Cc884 - T43 v. Board of Election Commissioners for the City of Chicago, 587 F. Supp. 1134 (N.D. Ill. 1984) (ordering candidates added to March 20 ballot on March 8). Not one of these holdings has inquired of financial costs or administrative inconvenience. Defendants' claim has no support. B. No Legal or Practical Problems Prohibit Correcting Ballots. Federal law, referred to by its acronyms of UOCAVA and MOVE, requires the transmission of federal election ballots to overseas voters 45 days before primary and general elections. “UOCAVA's requirements apply only to absentee ballots used to elect candidates for federal office.” Doe v. Walker, 746 F. Supp.2d 667, 674 (D. Md. 2010) (emphasis added). Even then, UOCAVA and MOVE provide an exception for "legal contests" that delay transmissions. See 52 U.S.C. § 20302(g)(2)(B)(ii) (stating that where a "State has suffered a delay in generating ballots due to a legal contest" it need not comply). Even with federal candidates, overseas ballots may be lawfully delayed and changed when they are incorrect. Ballots transmitted under UOCAVA/MOVE are not the same ballots used for in-person voting. They are not even the same ballots sent to absentee voters in Ohio (which are, for their part, not even finalized until February 17, 2016). Overseas ballots are simple write-in ballots, including SWABs (special write-in absentee ballots prepared by states), and FWABs (federal write-in absentee ballots printed by the federal government). The latter are available at all military installations. Election boards commonly mail out printed lists of candidates for overseas voters, who then simply pencil in their selections on FWABs. Ohio counties do this all the time; Defendant-Secretary provides the form.”* Lists of candidates can easily be changed with any laptop computer, as the examples in footnote 23, supra, indicate. 3 See, e.g., Allen County Board of Elections 2016 Primary Ballot (SoS Form No. 120) (hitte://www.alencountvohio.com/boe/fwab/2016 Primary FWAB pdf) (last visited Jan. 29, 2016); Richland County Board of Elections 2014 General Election Ballot (SoS Form No. 120) 17Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T44 Judged by the last presidential election, Ohio will likely transmit approximately 1000 of these overseas ballots for the March 15, 2016 primary.” During the last two primaries, Plaintiff's vote-total, which included at most 3135 voters in 2014, see Ohio 2014 Primary Data (Libertarian Party Results),”> has amounted to less than one-fifth of 1% of the total votes (1,307,351) cast. Id. One-fifth of one percent of 1000 overseas ballots translates into approximately two or three overseas voters. Absentee ballots for Ohio voters are not finalized until February 17, 2016. See ORC § 3509.11. The raw number of voters who would seek to participate in a Libertarian primary using absentee ballots, meanwhile, is small. While 1,307,351 total votes were cast in Ohio's 2014 primary, 227,083 of these were cast absentee. See Ohio 2014 Primary Data (Absentee Ballot Report).?°Four out of five primary votes were therefore cast in-person on election day. Extrapolating from this data, were a Libertarian primary even held, only 500 or 600 absentee ballots would be needed. This is hardly an alarming, all-hands-on-deck number. Jiywwrichiandcountyoh. us/Board% 20Elections/Docs/20i4/General 1114/2014%20Gener i i “Epa (last visited Jan. 29, 2016). ” During the 2012 primary in Ohio, there were 1010 overseas ballots transmitted to civilians and military personnel. See Ohio Secretary of State, 2012 Election Results, Primary Election, March 6, 2012 (hereinafter "Ohio 2012 Primary Data") (Absentee Ballot Report) (http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results.aspx) (last visited Jan. 25, 2016). % See http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2014Results.aspx (last visited Jan. 25, 2016). This figure was arrived at by adding all the votes cast for all the Libertarian Party of Ohio candidates. It errors on the large side in terms of identifying how many voters requested Libertarian ballots, since many of the voters would have voted for both local and state-wide Libertarian candidates. Because the LPO's top state-wide candidate received 797 votes in 2014, somewhere between 797 and 3135 voters requested Libertarian ballots. The true figure of ballots requested by Libertarian voters is likely between 1500 and 2000. %6 http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2014Results.aspx (last visited Jan. 25, 2016). 18Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T45 Because even in-person voting in minor party primaries is small, few changes would be required. Again, in 2014 Plaintiff (Ohio's premier minor party) had at most 3135 voters participate in its primary. As Defendants state, the Scott case involved changing approximately 9000 or 10,000 ballots. Even if Plaintiff here demanded a Libertarian primary on March 15, 2016 and attempted to force Defendants to provide one -- which it does not -- it would not be any more difficult for election boards to print 3135 ballots over the course of six weeks than it was to correct 9000+ ballots in sixteen days. Defendants’ systemic arguments to the contrary are exaggerated; they are hardly persuasive. VI. Ohio's Constitutional Primary Requirement is Judicially Enforceable. Defendants devote little effort to the merits of Plaintiff's constitutional complaint. The reason is simple; the merits leave no credible defense. The Ohio Supreme Court's decision in State ex rel. Gottlieb v. Sulligan, 193 N.E.2d 270, 272 (Ohio 1963), speaks for itself. Ohio's Attorney General has himself observed that "State ex rel. Gottlieb v. Sulligan thus determined that the phrase 'nominating petition,’ as used in R.C. § 3513.04, is limited to petition papers filed by an independent candidate." See 2006 Ohio Op. Atty. Gen. 2-318, 2006 WL 2548509 (Aug. 10, 2006) (emphasis added). In Ohio, nominating petitions are for independent candidates; primaries are for political parties. The Sixth Circuit's ruling in Blackwell, 462 F.3d 579, had no difficulty reaching this result. Ohio's Constitution, it ruled, "requires that all political parties, including minor parties, nominate their candidates at primary elections." /d. at 582 (Citing Art. V, §7). While independent candidates may be relegated to nominating petitions, minor political parties (which obviously seek to build membership) are entitled to primaries. 19Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Feb 01 12:54 PM-16CV000554 0c884 - T46 Defendants now seek to avoid Article V, § 7's plain command by asserting that it is vague; no one understands it. It is not judicially enforceable. The Ohio Supreme Court, Sixth Circuit, and Ohio Attorney General had no problem understanding it. No court has ever ruled that it is unenforceable. The Ohio Supreme Court enforced Article V, § 7 in Sulligan by holding that it did not authorize parties’ substitutions of candidates.”” No case cited by Defendants supports their claim. Section 7 of Article V was enforced in Sulligan and can be enforced here. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that its Motion be GRANTED. Respectfully submitted, S/_M.G. Kafantaris Mark R. Brown (# 81941) Mark G. Kafantaris (#80392) 303 E. Broad Street 625 City Park Avenue Columbus, Ohio 43215 Columbus, Ohio 43206 Tel: (614) 236-6590 Tel: (614) 223-1444 Fax: (614) 236-6956 Fax: (614) 300-5123 E-mail: mbrown@law.capital.edu E-mail: mark @kafantaris.com Attorneys for Plaintiff CERTIFICATE OF SERVICE Thereby certify that this Reply was filed using the Court's electronic transmission service and will be served on counsel of all parties of record. Plaintiff has also electronically delivered to Halli Watson and Jordan Berman, c/o Halli.Watson@ohioattorneygeneral.gov and Jordan.Berman @ ohioattorneygeneral.gov, Attorneys for the Defendants, copies of this Motion this 1st Day of February, 2016. 5/M.G. Kafantaris Mark Kafantaris °7 Defendants argue that State v. Jackson, 811 N.E.2d 68, 73 (Ohio 2004), somehow supports their claim. In Jackson a criminal defendant who had tampered with election ballots claimed that the introduction of those ballots as evidence violated Ohio's secret ballot requirement. He hoped the Court would use Article V, § 2 to create an exclusionary rule. The court declined. 20