Notes for amicus lpo v husted

motion for leave to file

obtain consent from parties.

Caption

interest of amicus

[substitute other amici as needed.]

Robbin Stewart is an Indiana resident. He joined the Liberarian Party in 1976. He is a former chair and vice-chair of the Libertarian Party of Missouri. He has held appointed public office in 4 states and has run for office as a Libertarian, Republican or nonpartisan candidate several times. His LLM thesis at UMKC was “Democratic Pluralism Under State and Federal Constitutions.” He politically associates with Ohio Libertarians, and intends to attend the 2014 Libertarian National Convention in Columbus. He will harmed if the Ohio Libertarian Party loses its ballot status and if its candidates are kept off the ballot. He has previously submitted an amicus brief to the US Supreme Court, and to other courts.

table of contents

table of cases

summary of argument

each of the 4 prongs of the test for injunctive relief is met, and the overriding public interest in a free and open election results in the balance tipping toward granting the injunction. The court below ommitted errors of law and abused its discretion in denying the injunction.

standard for injunction

standard of scrutiny

likelihood of success

irreparable harm

balance of the burdens

public interest.

Summary of Argument:

The court below mistates the standard for injunction, fails to identify a standard of scrutiny,

engages in a rudimentary logical fallacy leading it to fail to spot the irreparable harm, puts its thumb on the scale when balancing the burdens, and fails to account for the important public interest in a free and equal election. The result of this series of errors is that it concludes no prong of the test is satisfied. . This court should review each factor de novo and grant the injunction, while leaving ultimate resolution of the merits for a later date.

Argument:

A: The court below mistates the standard for injunction, fails to identify a standard of scrutiny,

engages in a rudimentary logical fallacy leading it to fail to spot the irreparable harm, puts its thumb on the scale when balancing the burdens, and fails to account for the important public interest in free and equal elections. The result of this series of errors is that it concludes no prong of the test is satisfied. This suggests bias rather than mere error. This court should review each factor de novo, with no deference to the court below, except to fact-finding.

This brief will discuss the factors for injunctive relief, and discuss remedies, before getting more deeply into the merits.

The court has properly accelerated the appeal of the denial of injunctive relief. The issue before the court at this time is whether or not to grant an injunction. Until this matter is resolved one way or the other, the printing of the primary ballots should not go forward, so time is of the essence. The court should not try to resolve the merits at this time, only rule on the injunction. The merits can wait for a less hurried briefing and argument schedule. The issue over overseas ballots is less pressing. Since plaintiff is unopposed in the Libertarian primary, these votes will not be outcome determinative.

1. Where, as here, the balance of harms tilts greatly to the plaintiffs, only “some likelihood” of success on the merits is required, and a “strong likelihood” is not required even when the balance is even. That said, likelihood of success is the strongest of the 4 factors. Here there are several independent arguments each with reasonable chance of success.

2. As a matter of statutory interpretation under ordinary principles of election law, before even getting to constitutional issues, plaintifs can and should prevail. In the ordinary course of elections, it is often the case that some small clerical requirement gets omitted or mishandled. In such cases, court do not ordinarily set aside an election and defeat the will of the people, but rely on the maxim that election administration rules are advisory and not mandatory. Here, there has been a trivial omission, clerical in nature, in the form, but not the substance, of the nominating petitions. The statute is vague and ambiguous, previous practice has been to leave it unenforced, and no prior case law, neither Evans nor (the other one) settles the issue.

The Supreme Court’s brief opinion leaves unclear whether this 

was simply a case of “no harm, no foul”—the circulators included information 

that was not required but would not have misled voters—or whether the 

independent contractors had a duty, apparently performed by some but not all 

independent contractors to disclose who contracted for the work. - Smith.

Here, no harm, no foul would be a suscinct and just maxim to resolve this case.

[insert cite from citizens united or wrtl II about citizens shouldn't need a lawyer.]

One who takes the job of interpreting Title 35 will find that the Ohio

Supreme Court commands a liberal interpretation of election laws: “Courts

must liberally construe election laws in favor of persons seeking to hold public

office to avoid restricting the right of electors to choose from qualified

candidates.” State ex rel. Lynch v. Cuyahoga Cty. Bd. of Elections, (1997), 80 Ohio

St. 3d 341, 343; State ex rel. Davis v. Summit Cty. Bd. of Elections (2013), 137

Ohio St. 3d 222, 226. [See also] State ex rel. Hawkins v.

Pickaway Cty. Bd. of Election (1996), 75 Ohio St. 3d 275.

• Brad Smith as hearing officer below.

Rick Hasen, a noted election scholar, has described these sorts of cases as illustrating a “democracy canon”, a preference in the law for fair and robust elections. Cite needed.

3. However here there are substantial constitutional issues under both the Ohio and federal constitutions, and the canon of constitutional avoidance comes into play. When given a choice between two interpretations, a court should choose the one that avoids difficult constitutional issues. Here, that means that as applied on these facts, signatures should not be voided merely because the circulator was confused by the ambiguity of “employed”, in later filling out some paperwork on the back of the petitions, where the information has now been provided and the oversight is neither a deliberate refusal to comply or any scheme to enable fraud or decideption.

4. If neither of the above approaches works, the court can go on to reach the constitutional issues. These include that the required disclaimer violates the first amendment, in a line of cases including Meyer v. Grant - 486 US 414 (1988)(payment of petitioners), Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) (compelled speech of petitioners), Williams v. Rhodes, 393 U.S. 23 (ohio ballot access), anderson v celebezze (ohio ballot access), ,Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974),(loyalty oath) , Norman v Reed, 502 U.S. 279 (1992) (ballot access), McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (Ohio election disclaimers),Watchtower Society v. Village of Stratton, 536 U.S. 150 (2002),(Ohio door to door canvassing)

Anderson v Celebreeze sets out a standard of scrutiny.

In resolving constitutional challenges to a State's election laws, a court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the interests asserted by the State to justify the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of these interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the court in a position to decide whether the challenged provision is unconstitutional. Anderson v Celebrezze.

Because this is a ballot access case, Anderson may be the applicable test. See Crawford v. Marion County Election B'd., 553 U.S. 181 (2008) But because the state here is regulating the content of the petitions, as in the disclaimer cases,(McIntyre, Talley v California, 362 U.S. 60 (1960)) and not just what information is later disclosed, it may be that strict scrutiny is the appropriate standard. Under either analysis, the state's legitimate interests in disclosure do not require or permit it to throw out otherwise valid signatures merely because the employment disclaimer does not appear on the document itself, but was provided seperately.

There are also equal protection and due process arguments under the 14^th A. [Because this is a state rather than federal election, the privileges and immunities clause probably does not apply.] These arguments have been covered in plaintiffs' brief.

Several provisions of the Ohio constitution factor into the analysis. Plaintiff has not brought causes of action directly under the Ohio constitution, but any court should look to these either to interpret the meaning of the statute, or to understand what are properly “state interests” in balancing federal rights. The governor, and the GOP faction of the legislature allied with him, has motive to invidiously discriminate again his Libertarian opponent who may cost him the election. For this reason, federal courts have traditionally used strict scrutiny in regulating elections. Voting rights are preservative of all other rights. Yick Wo v Hopkins. But the governor's interests and the interests of Ohio, which the court may recognize and balance, are not the same.

Section 2. All political power is inherent in the people. Government is instituted 

for their equal protection and benefit, and they have the right to alter, reform, or abolish 

the same, whenever they may deem it necessary; and no special privileges of 

immunities shall ever be granted, that may not be altered, revoked, or repealed by the 

General Assembly. 

Section 3. The people have the right to assemble together, in a peaceable 

manner, to consult for their common good; to instruct their Representatives, and to 

petition the General Assembly for the redress of grievances. 

Section 11. Every citizen may freely speak, write, and publish his sentiments on 

all subjects, being responsible for the abuse of the right; and no law shall be passed to 

restrain or abridge the liberty of speech or of the press.

Petitioning to place a candidate on the ballot is protected under section 2 as an approved method by which Ohioans alter and reform their government. Petitioning is overtly protected by section 3.

Exactly what standard of scrutiny applies is not clear. But under the Ohio constitution, a personal preference by government officials to interpret a statute in a new way which would just happen to eliminate their competition, as only the most recent in series of maneuvers to keep their opponents off the ballot, cannot be taken at face value. Some weight must be given to the way Ohio's founders anticipated this sort of problem and incorporated protections within the state's Bill of Rights.

The Secretary's preferred, if strained, construction of the statute should be given no deference by federal courts when it, as here, conflicts with the policies set out in the Ohio Bill of Rights.

Plaintiffs make at least two distinct types of argument against the invaldiation of their signatures.

One is facial, the other is applied. Of these, the as-applied challenge is far stronger here.

The will of the people, as shown by the over-500 signatures on the petitions, is that the Libertarian Party candidate for governor shall be nominated for the primary, where as far as we know he is unopposed. This in turn is needed for the Libertarian Party to get at least 2% in the governor's race to maintain its ballot status. Offsetting that, the petitions at issue lacked a disclaimer on the back setting

out that it was the Libertarian Party who paid for the Libertarian Party's petitions, not exactly a state secret. The circulator, who no one contends was an employee of the party in the usual sense of that term, was required to list the party as his employer, although he was in fact an independent contractor.

The statute, in the secretary's interpretation, requires that he lie or at least mislead, and he is willing to do so, and would have done so, if only the instructions had been clear. It was at most a scrivener's error. The two cases on point only increase the confusion. Neither holds that an independent contractor must list the ultimate payee. One case is silent on this point while the other case says he should not. This case is curious, because it means Evilcorp, Inc. can hire Nice People LLC to circulate their petitions,and those petitions will not list Evilcorp as the payor, so the usual rationale for a dislosure regime on petitions is not present. But plaintiffs don't contest that case, they merely correctly argue that neither of the previous cases covers their situation. Futher, they have reasonable grounds to believe they are being selectively prosecuted, in that the statute has never been enforced in this way before and it occurred in the context of a long running attempt to interfere in the party's rights of petition and nomination and ballot access, as shown by the previous rounds of this litigation.

argument

FRAP 29 Brief of an Amicus Curiae

(a) When Permitted. The United States or its officer or agency or a state may file an

amicus-curiae brief without the consent of the parties or leave of court. Any other amicus

curiae may file a brief only by leave of court or if the brief states that all parties have

consented to its filing.

(b) Motion for Leave to File. The motion must be accompanied by the proposed brief and

state:

(1) the movant’s interest; and

(2) the reason why an amicus brief is desirable and why the matters asserted are relevant

to the disposition of the case.

(c) Contents and Form. An amicus brief must comply with Rule 32. In addition to the

requirements of Rule 32, the cover must identify the party or parties supported and indicate

whether the brief supports affirmance or reversal. An amicus brief need not comply with

Rule 28, but must include the following:

(1) if the amicus curiae is a corporation, a disclosure statement like that required of

parties by Rule 26.1;

(2) a table of contents, with page references;

(3) a table of authorities cases (alphabetically arranged), statutes and other

authorities with references to the pages of the brief where they are cited;

(4) a concise statement of the identity of the amicus curiae, its interest in the case, and

the source of its authority to file;

(5) unless the amicus curiae is one listed in the first sentence of Rule 9(a), a statement

that ind(5) unless the amicus curiae is one listed in the first sentence of Rule 9(a), a statement

that indicates whether:

(A) a party’s counsel authored the brief in whole or in part;

67(5) unless the amicus curiae is one listed in the first sentence of Rule 9(a), a statement

that indicates whether:

(A) a party’s counsel authored the brief in whole or in part;

67(B) a party or a party’s counsel contributed money that was intended to fund

preparing or submitting the brief; and

(C) a person other than the amicus curiae, its members, or its counsel

contributed money that was intended to fund preparing or submitting the brief

and, if so, identifies each such person;

(6) an argument, which may be preceded by a summary and which need not include a

statement of the applicable standard of review; and

(7) a certificate of compliance, if required by Rule 32(a)(7).

(d) Length. Except by the court’s permission, an amicus brief may be no more than one-half

the maximum length authorized by these rules for a party’s principal brief. If the court grants

a party permission to file a longer brief, that extension does not affect the length of an amicus

brief.

(e) Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing

when necessary, no later than 7 days after the principal brief of the party being supported is

filed. An amicus curiae that does not support either party must file its brief no later than 7

days after the appellant’s or petitioner’s principal brief is filed. A court may gra

standard for injunction

standard of scrutiny

likelihood of success

irreparable harm

balance of the burdens

public interest.

Irreparable harm:

Injunctions only issue to avoid irreparable harm. Many cases are just about money and can be adequately quanitified without injunctions being needed. Election cases are different, and injunctions are not only frequently used, but may be the only available means of meaningful redress.

The court below quotes the oft-quoted Elrod v Burns for the proposition that denial of First Amendment freedoms are irreparable harm, and then argues that because it finds no First Amendment violation, then there has been no harm. This argument is too circular.

If the petitions are not counted, Plaintiff will not appear on the ballot in the primary, and as a result will not appear on the ballot in the fall general election, and as a result the LPO will lose its ballot status.

This will harm each of the thousand-plus signers of the petition, who intended by their signaures to nominate the plaintiff. Should they be held responsible for not reading the back, anticipaing that they circulator would not later fill it out, and the challenger would find a new loophole for not counting their petitions?

It will harm the plaintiff, and those like the undersigned amicus who associate with him. It will harm the voters of Ohio, who instead of a genuine election between the three candidates, will only be able to participate in a Potemkin election between the other two candidates, with the result that we won't ever know who would have actually won. This will harm the winner of the Potemkin mock election, by undermining public confidence in whether or not he was or would have been the actual winner of a free and open election. And it will harm the people. We often see in countries like North Korea mock elections at which one can only vote for the incumbent. The result, without the injunction, would be similar. One of the candidates would have been “disappeared.”

There is harm. We can dispute whether, on these facts, the harm was really self-inflicted, as claimed below. The next question is whether the harm is irreparable. The deadlines for adminstering the primary rapidly approach.

The Secretary has reasonable concerns that the primary process go forward without unneeded delay or disruption. I want to propose a few other options that might reconcile the concerns of both plaintiffs and election officals. This court could order that, because of the disruption to the ordinary workings of the primary process which have resulted from the several rounds of this litigation, it is too late to place plaintiff on the ballot for the primary, and instead the Libertarian Party should choose its candidate for governor at a convention, to be held in plenty of time for the Secretary to print general election ballots.

Or it could order that plaintiff __ be placed on the fall ballot, since it seems undisputed that he is the party's candidate of choice. Failing this, the court could order that he won't appear on the ballot, but that the party will retain ballot status for an extra 4 (4?) years as though he had.

-

note: proposed settlement: contact the state, see if they'd consent to a settlement that the party retain ballot status in return for dropping the current action.