4} 3jit tlje *upreme CDurt o f ebi.o STATE, ex iel. STF;VEN LINNABARY, Case No. 2014-0359 Relator, vs. Original Action in Mandamus Expedited Election Case JON HUSTED, O hio Secretary of State, Respondent. MERIT BRIEF OF RESPONDENT JON IIUSTED MARK G. KAFANTARIS* (0080392) *Counsel of Record 625 City Park Avenue Columbus, Ohio 43206 614-223-1444 614-300-5123 mark(' a k afantari s. com MARK R. BROWN (0081941) 303 East Broad Street Columbus, Ohio 43215 614-236-6590 614-236-6956 mbroNNm @law. capital. ed u Counsel for Relator Steven Linnabary MICIIAEL DEWINE Attorney General of Ohio ERIC E. MURPHY'F (0083284) State Solicitor *C'ounsel ofRecord MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor STEPHEN P. CARNEY (0063460) Deputy Solicitor KRISTOPHER J. ARMSTRONG (0077799) Assistant Attorriey General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087 fax eri c.rxiurphy(& ,ohioattorneygen eral. gov C } •. ^".itK :. f" / }s` C30 ^^^':' f^ S -c.i^`?^"•, ^tPff(^,j^f Eif y .. U%3 . . s4'• • $ r£} v"..3^^5 :.it.. Un {?^ ,ii,;;; r'' {'^•i ;^ ': r..,^%C• Counsel for Respondent Jon Husted, Ohio Secretary of State
73
Embed
f ebi - Supreme Court of Ohio and the Ohio Judicial System § 12.03 at ... C1xf'oYd English Dictionary ... in both Evans, 2006-Ohio-4690, and Rothenberg v. llusted, 129 Ohio St. 3d
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4}
3jit tlje
*upreme CDurt of ebi.o
STATE, ex iel. STF;VEN LINNABARY, Case No. 2014-0359
Relator,
vs.
Original Action in Mandamus
Expedited Election Case
JON HUSTED, Ohio Secretary of State,
Respondent.
MERIT BRIEF OF RESPONDENT JON IIUSTED
MARK G. KAFANTARIS* (0080392)*Counsel of Record
625 City Park AvenueColumbus, Ohio 43206614-223-1444614-300-5123mark('a k afantari s. com
MARK R. BROWN (0081941)303 East Broad StreetColumbus, Ohio 43215614-236-6590614-236-6956mbroNNm @law. capital. ed u
Counsel for RelatorSteven Linnabary
MICIIAEL DEWINEAttorney General of Ohio
ERIC E. MURPHY'F (0083284)State Solicitor
*C'ounsel ofRecordMICHAEL J. HENDERSHOT (0081842)Chief Deputy SolicitorSTEPHEN P. CARNEY (0063460)Deputy SolicitorKRISTOPHER J. ARMSTRONG (0077799)Assistant Attorriey General30 East Broad Street, 17th FloorColumbus, Ohio 43215614-466-8980614-466-5087 faxeri c.rxiurphy(&,ohioattorneygen eral. gov
C } •.̂".itK :.f"/}s` C30 ^^^':'f^ S -c.i^`?^"•,^tPff(^,j^f
Eify.. U%3
. . s4'• • $r£} v"..3^^5:.it..
Un {?^
,ii,;;; r'' {'^•i ;^ ':r..,^%C•
Counsel for RespondentJon Husted, Ohio Secretary of State
C. A protest was filed, and the Secretary deterniined that Lin.nabary's failure to complywith the Disclosure Law invalidated enough of his signatures to remove him fromthe bal lot ....... ...... ... .................................... ......... . ... ..... ........................ ............ .. . . .... ... 8
D. The Libertarian Party and Earl-Clark added claims about the Disclosure Law to anongoing federal case, and Linnabary filed this mandanlus case just days later. Thefederal court has just rejected the Libertarian Party's constitutional claims . ......................9
ARGUMENT ............................... .... ....................................................... .... ................1 I
A. Linnabary's last-minute litigation is too late, and that i s reason enough to say no. .......... 11
B. The Disclosure Law requires circulators to identify any party that "ernployed" them,meaning anyone who paid for their services, regardless of the cireulator's status asindependent contractor or employee for other legal purposes . .......................................... -15
1. The statute's plain meaning of "employ" covers all payors, as confirmed bythe statute's purpose arid by case law . .................................... .............................15
2. The Secretary's administrative interpretation of the Disclosure Law is entitledto deference . . ................................. ...... ......... .............................. ....... ........20
C. Linnabary's other attempts to avoid the Disclosure Law's application all fail . ................23
1. Linnabary's part-petitions neither strictly complied with the Disclosure Lawnor substantially cornplied. ....... .............................................. . ..... . ..............23
2. Linnabary's attack on the protestor's standing to challenge his candidacymisreads the statute, and is irrelevant anyway because the Secretary of Statecan disqualify part-petitions for non-compliance without a protest. .........>..........24
3. The doctrine of constitutional avoidance does not apply or help Linnabary.........28
a. Linnabary's "reservation" of federal claims is invalid . ................. ...........28
b. Constitutional avoidance does not apply here . ......... ...............................29
c. Linnabary's constitutional arguments are wrong .......................................30
Opinion and Order, United States District Court, Southern District of OhioEastem Division, March 19, 2014 ......... .................................................................Exhibit 1
ii
TABLE OF AUTHORITIES
CASESPage(s)
Akron v. Rowland,
67 Ohio St. 3d 374 (1993) .... ......... ............................................................ .................... 30
Amet•ican Civil Liberties Union v. HelleY,378 F.3d 979 (9th Cir. 2004) .......... ................... .....:.................................. ......... .......... 33
Blankenship v. Blackwell,
341 F. Supp. 2d 911 (2004) .......................................................................................... 6,19
Bostic v. Connor,37 Ohio St. 3c1 144 (1988)..... ..... ..:.......................................... ...,>................................... 18
Buckley v. American Constitutional Law Foundation,
525 U.S. 182 (1999)..... ..........................,. ....................................... ....,.... ............. 32, 33
Citizens in Charge v. Brunner,689 F. Supp. 2d 992 (S.D. Ohio 2010) ................. ............................................................ 32
Clark v. Martinez,
543 U.S. 371 (2005) .......................................................................................................... 31
Councell v. Douglas,
163 Ohio St. 292 (1955) ........ ................................................. ...................................... 18
Fi•eedom Rd. Found v. Ohio Dept, of Liqiior Control,
80 Ohio St. 3d 202 (1997) .......................... .............,.............................................. ,........ 13
King v. Housel,52 Ohio St. 3d 228 ( 1990) ......... ................................................................ ....... ......... 18
Libertarian Party Uf'L?Qhio v. }1"usled,No. 2:13-cv-953 (Mar. 19; 2014) .................................. ... ...... .................................;.. pcrs.sim
Marshall v. Aaron,
15 Ohio St. 3d 48 (1984) ......... ................................................. . .,.................................... 18
Metropolitan Property & Liab. Ins. Co. v. Kott,62 Ohio St. 2d 114 (1980) ........................:........................................................................ 13
iii
National Organization for Marriage v. 11cKee,
666 F. Supp. 2d 193 (D. Me. 2009) ................................................... ......... ......... .......... 32
Paschal v. Cuyahoga Cty. Bd of Elections,74 Ohio St. 3d 141 (1995).............................................. . .................................................. 12
Rothenherg v. Husted,129 Ohio St. 3d 447, 2011-Ohio-4003 ........................... .....>... ................................. passirn
San Remo Motel, L. P. v. City & Cozinty of SanFNancisco,545 U.S. 323 (2005) ...............:.......................................................................................... 30
Smith v. L andfair,135 Ohio St. 3d 89, 2012-Ohio-5692 .................................................................>............... 30
State ex rel. Ascani v. Stark Cty. Bd of Elections,
83 Ohio St. 3d 490 (1998) ..................................................................................................16
State ex rel, Cleveland Right to Life v. State of Ohio Controlling Bd.,138 Ohio St. 3d 57, 2013-Ohio-5632 ................................................................................ 11
State ex rel. C.'olvin v. Brunner,120 Ohio St. 3d 110, 2008-Ohio-5041 ........................................................................ 17,22
Stute cx rel. Conatnittee for the Referendum of Lorain Ord. No. 77-07 v. LorainCty. Bcl of Elections,96 Ohio St. 3d 308, 2002-Ohio-4194......... . .................................................. . ................... 24
State ex rel. Davis v. Summit Cty, Bd. Of Blections,137 Ohio St. 3d 222, 2013-Ohio-1533 ....... ......... ........................................................... 29
State ex rel. Evans v. Blackwell,11 I Ohio St. 3d 437, 2006-Ohio-5439 .......................................................... ................... 11
State ex Yel. IIamilton Cty. Bd. Uf Comm'rs v. Harnilton Cty. Court of CofnnaonPleas,
126 Ohio St. 3d 111, 2010-Ohio-2467 .............................................................................. 18
State ex r-el. Landis v. Morrow Cty. Bd ofElections,
State ex rel. Lucas Cty. Republican Party Executive Commt, v. Brunner,125 Ohio St. 3d 427, 2010-Ohio-1873 .................. ..................................................... 17,22
State ex rel. Polo v. Cuyahoga Cty. Bd. of F,lections,74 Ohio St. 3d 143 (1995) ......................................................... ........................................16
State ex rel. 7'hurn v. Cuyahoga Cty, Bcl of Elections,72 Ohio St. 3d 289 (1995)....... ...................................................................... .................. 11
iv
,S'tate ex rel. Varnau v. Wenninger,
131 Ohio St. 3d 169, 2012-Ohio-224 ................................................. ........; .................... 28
State ex rel. Vickers v. Sunzmit Cty. Council,
97 Ohio St. 3d 204, 2002-Ohio-5583 ........................................................... ................... 24
Oh. Sec'y St. Directive 2013-17 (Sept. 3, 2013) .......................................................................... 22
Ohio Atty. Gen. Op. No. 2006-004 ............. ......... ...................................................................... 19
C1xf'oYd English Dictionary (2d. ed. 1989) .................................................... ..,........................... 16
vi
INTROI?UCTION
This is a simple case about a candidate who did not follow the law-a law that is plain in
its meaning, that is easy to comply with, and that serves an. important purpose. The law at issue,
R.C. 3501.38(E)(1) (the "Disclosure Law"), governs petitions to get candidates or issues on the
ballot, and it requires those who circulate petitions to disclose who, if anyone, paid them: "the
circulator shall identify the circulator's name, the address of the circulator's permanent
residence, and the name and address of the person employing the circulator to circulate the
petition, if any." Id. Filling out that information is simple enough: Other circulators routinely
do it, and a paid circulator in this case offered to comply-but he did not, and the part-petitions
were filed anyway.
And the law is important, as both Ohio's Tenth District and a federal district court found
in rejecting constitutional challenges to the ]aw-with the federal court ruling just yesterday in a
case related to this one. The Tenth District explained, "this type of disclosure makes sense given
the legislature's intent to curb fraud and dishonesty in the petition process," so the "disclosure
requirement, as a general matter, directly serve[s] substantial government interests." In re
Protest ofEvans, 2006-Ohio-4690 ¶¶ 45, 47 (10th 17ist.) (French, J.). The federal court likewise
found that the Disclosure Law is "substantially related, to Ohio's sigtiificant interest in deterring
and preventing fraud in the candidate petition process." Libertarian Party of Olzio v. Hi:isted,
No. 2:13-cv-953 (Mar. 19, 2014) (attached as Appx. 1).
Relator Steven Linnabary, a would-be Libertarian candidate, did not follow the law, and
now asks this Court to grant him relief, claiming that the law does not apply to his paid
circulators, because they were employed as "independent contractors" and not as "employees" as
that terni is used for certain other legal purposes. The Secretary of State, Respondent here,
removed him from the ballot after a protest hearing showed, and a hearing officer concluded, that
Linnabary's paid circulators did not comply. The invalidation of those part-petitions left
Linnabary with too few signatures to qualify. He asks this Court to order the Secretary to restore
him to the ballot, btit the Court should say no, for several reasons.
First, Linnabary is too late. Although he filed here right after he was renioved from the
ballot, he should have knoNvn long ago that this issue was brewing. But he sat for months until
now, when the election is upon us. The statute has been on the books for years, and was applied
in both Evans, 2006-Ohio-4690, and Rothenberg v. llusted, 129 Ohio St. 3d 447, 2011-C)hio-
4003. But Linnabary did not act in November, when he knew he would run, or in December,
when his paid circulator sought the advice of the circulator's payor-employer, the Libertarian
Party, regarding the Disclosure Law. He did not run to court, as his par-ty had already done on
his behalf about another petition-circulator issue. Instead, the party either affirmatively told the
circulator not to fill it out, as the circulator testified, or the party left the issue open, perhaps to
decide later, as was also suggested. Either way, the information was never filled in, and
Linnabary filed the non-compliant petitions in December. Now, as the election process is
beginning-regular absentee ballots are mailed April 1, and ballots to military voters go out this
Saturday, March 22-L'znnabary asks the Court to order a change. The Court has repeatedly
applied laches in denying writs souglit in election cases after delays of a week or a few weeks,
and it should do so here.
Second, the Disclosure Law applies to all paid circulators, as all are "employed" when
they are paid to do a job, regardless of whether they might be "employees" or "independent
contractors" for other legal purposes. The plain meaning of "employ" covers everyone, and so
do other election laws, as well as other uses of "employ" in Ohio law. Nothing in the I)isclosure
Law suggests limiting its application. and indeed, the law would be rendered meaningless if
everyone could avoid it by employing "independent contractors." In fact, it is 4vell-known in
2
political circles that most or all paid petition circulators are short-term contractors, because of the
work's nature, and formal "employees"-in the sense Linnabary defines them-rarely, if ever,
exist. So Linnabary's reading makes no sense. And courts have repeatedly indicated that the
law applies to "independent contractors," in Evans, Rothenberg, and now Libertarian Party. On
top of all that, the Secretary's administrative interpretation deserves deference.
Third, Linnabary is not helped by his grab bag of other attempts to evade the Disclosure
Law. His claim of "substantial compliance" fails, not only because strict compliance applies
here, but because he did not "substantially" comply. His forn2s did not list the wrong payor, or
the xvrong address; the line was intentionally lef blank. Vi-%hatever "substantial" compliance
might mean in other cases, it cannot cover a blank Iine and still have any meaning.
Nor can he avoid the whole problem by attacking the protestor's right to bring this
challenge, as the issue now is whether Linn.abary has a clear legal right to be on the ballot despite
his noncompliance; this is not an appeal in which "standing" below matters. Or, even if a live
issue, Linnabary cannot say that the Secretary had a clear legal duty not to consider the problems
of Linna:bary"s noncompliance, or a duty to turn a blind eye. And in the end, the protestor was a
valid protestor, as he was eligible by Linnabary's own view to be a circulator, and the idea that
party membership for challenges is narrower than for circulation filids no support in law or logic.
Linnabary also fails in trying to invoke the doctrine of constitutional avoidance: He
argues that applying the Disclosure Law to his paid circulators as "independent contractors"
might violate the First Am.endment or due process, so the statute must be interpreted his way to
avoid that problem.. Notably, he does not allege a true constitutional claim, as he insists he
"reserves his federal Constitutional arguments to challenge in federal court." Linnabary Br. at 15
n.7. And in fact, his party and another candidate have litigated those claims in federal court, and
just yesterday, the federal district court rejected those claims. LibeytaNian Party, Appx. 1.
3
His constitutional avoidance claim fails for many reasons. This is a mandamus case, so
he must show a clear legal duty; that means he must show that the statute clearly supports him
or, perhaps if he raised a true constitutional claim, that the constitution clearly supports him. He
cannot claim that an allegedly 2inclear statute and tinclear constitutional claim add up to a clear
legal duty. Equally important, he cannot explain how his reading even avoids the alleged
constitutional problem, as any right to hide payor identity, if it existed, would apply to all paid
circulators, not to "independent contractors" only and not to "formal employees."
And the Disclosure Law is constitutional, as the federal court held in ruling against
Ohio's Libertarian Party, and as the Tenth District held, too. It does "not significantly burden
political speech, and the requirements are substantially related to a significant govemment
interest." Libertarian Parly, Appx. 1, at 22; see Evans, 2006-Ohio--4690 TT 47, 50 (it "directly
serve[s] substantial government interests" and is constittitional). The Disclosure Law does not
violate due process by being "retroactively" applied to independent contractors; both Evans and
Rothenberg said it applied to everyone. As the federal court noted, the "notion that independent
contractors are exempt from the disclosure requirement appears to be little more than urban
legend based on a misreading of Rothenberg." Libeytcrriara Party, Appx. 1, at 25.
In sum, all of these implausible legal claims are simply a last-minute clean-up effort after
getting caught in a deliberate attempt to evade the law. Linnabary's ally, would-be gubernatorial
candidate Charlie Earl, publicly explained that he recognized that the law was clear: "On the
face of it, the way the law is written, I can't say I disagree with [Secretary] Husted's ruling."
Columbus Dispatch, Mar. 8, 2014 at B4. Given that clarity, we do not know tirhy L'zzulabary and
the Libertarians defied the law so blatantly, when compliance was so simple. But that lack of
cornpliance matters.
4
This matters because giving Linnabary a free pass now would greatly harm our system,
both in giving relief after evasion, and in gutting Ohio's Disclosure Law. It is not about whether
he gets on the ballot. Rather, it is harrnful to grant relief to any party tivho adopts the "seek
forgiveness, not permission" approach-that is, one who seeks to avoid a law rather than seek
clarity on the front end-as it encourages more of the sanle. And reading the Disclosure Law his
way would not just allow him on the ballot as a candidate today, but would essentially eliminate
the Law as to all candidates and ballot issues, so that Ohioans would no longer know who pays
for ballot access in our political system.
For these and other reasons below, the Court should deny the writ, and allow Ohio's
Disclosure Law to apply as written.
5
STATEMENT OF THE CASE AND FACTS
A. Ohio requires petition circulators to disclose if they are paid, providing openness tothe Secretary and to voters when they ultimately vote on the candidate or issue.
Ohio adopted the Disclosure Law after discovering significant problems, including fraud,
that occurred during Ralph Nader's 2004 presidential candidacy, and specifically regarding his
circulation of petitions to try to qualify for the ballot in Ohio. Both state and federal courts
acknowledged those problems. In Evans, the Tennth District noted that the Discl.osure Law was a
response to "rampant fraud perpetrated by petition circulators during the 2004 election in Oliio."
Evans, 2006-Ohio-4690 T 27. And, as Evans quoted, id, a federal court had also cited the
"numerous and substantial instances of fraud on the part of petition circulators" for Nader,
l3lankenship v. Blackwell, 341 F. Supp. 2d 911, 923 (2004). The federal court in the current
parallel case has likewise found that the Nader problems led to the lavv. Libertarian Purty,
Appx. 1, at 5.
In response to those problems and others, the Governor called a special session of the
Ohio General Assembly to reform Ohio's campaign finance and other electiori laws. Evczns,
2006-Ohio-4690 T 28 (citing Ohio Atty. Gen. Op. No. 2006-004, at 2 (Feb. 13, 2006)). During
that special session, the Assembly amended R.C. 3501.38(E)(1) to include a requirement that
paid circulators identify the source of their payments.
Since its enactment, circulators have routinely followed the Disclosure Law. Matt
Damschroder, Nvho now serves as Ohio's Deputy Assistant Secretary of State and Director of
Elections; and previously served as the pranlflin County Board of Elections' Director and Deputy
Director, has detailed that compliance. "It has been my experience that most circulators who are
paid for their work accurately complete the `employer box' on their part-petitions." Secretary's
Ev. Ex. A, Daznschroder Aff. ¶ 3. Brandon Lynaugh, who runs a firm that provides petition-
circulating services, among other things, testified in the parallel federal case that compliance is
6
simple and routine, and the court found his testimony "credible"and "deserv[ing] some weight."
Libertarian Party, Appx. 1, at 18-21.
The Disclosure Law's enforcement has also been litigated. As detailed in the legal
arguznent below, the Tenth District invalidated ballot-initiative petitions wllere the circulators did
provide payor information, but provided information regarding an entity that the court found to
be the wrong payor. Evans, 2006-Ohio-4690, IiT, 9, 30. And in Rothenberg, this Court addressed
a challenge to petitions based on the Disclosure Law, and although the Court rejected the
challenge on the facts there, it showed that the law was in force. Rothenberg, 2011 -Ohio-4003.
The Disclosure Law requires that the information be provided on the forn-i when it is
submitted, so it may be filled in just before filing with the Secretary. The in.formation does not
need to be completed before circulation, so nothing in the law requires disclosure to would-be
signers of the petition. Evans, 2006-Ohio-4690 '(i 45. Thus, the information is available after
filing to the Secretary, or to any would-be challengers who wish to protest that the information is
incorrect. And it is available to any voters who simply wish to know, in. considering whether to
vote for a candidate or issue, who might have paid to advance that candidate or issue.
D. Linnabary and his Libertarian Party chose neither to challenge the law nor tocomply with it.
Relator Steven Linnabary sought to become a candidate in the Libertarian Party's
primary, seeking to become the Libertarian nominee to run f.or Attorney General in 2014. The
Libertarian Party hired paid circulators to obtain the 500 valid signatures that Linnabary needed
to qualify for the primary ballot. The Party also paid those circulators to obtain signatures for
Charles 1?,ari and Sherry Clark, who sought to become the Libertarian Party's joint candidates for
Governor and Lieutenant Governor.
Oscar Hatchett, Jr., and Sara Hart were paid to circulate the petitions for Linnabary and
Earl-Clark. Hatchett was unsure about completing the payor inforrnation on his and Hart's
7
petitions, so he spoke to Robert Bridges, Political Director of the Libertarian Party, who told him
not to provide that information. Specifically, Hatchett said, "I just asked him, if I should fill it
out (the paid circulator statement) and he said I didn't." Linnabary's Ev. Ex. C, Hearing
Transcript at 95; see also id. at 97. Hatchett also suggested that it was left an open issue, and
that he told Bridges the he remained available to fill in the information later. Id. at 96. Bridges
said that he did not give specific instructions not to fill out the form. Id at 62. In the end, the
part-petitions circulated by Hatcliett and Hart that were later submitted by Linnabary (and Earl-
Clark) for filing with the Secretary of State did not include the inform.ation revealing the riazne
and address of the person who paid them to circulate the petitions. E.g., Secretary's Ev. Ex. B-2,
at 30-31.
Linnabary and Earl-Clark filed their nominating petitions with Secretary of State Husted,
and, on February 18, 2014, the Secretary certified Linnabary as a candidate for Attorney General
(and certified Earl-Clark as joint candidates for Governor and L'zeutenant Governor).
Linnabary's Ev. Ex. B, Hearing Officer's Report at 1,
C. A protest was filed, and the Secretary determined that Linnabary's failure tocomply with the Disclosure Law invalidated enough of his signatures to remove himfronl the ballot.
Exercising his statutory right to challenge this candidacy, Carl Michael Akers timely filed
a protest against the certification of Linnahary. (Gregory Felsoci and Tyler K:ing timely fi_led
protests against the Earl-Clark joint candidacy.)
The Secretary of State appointed Professor Brad Smith as a hearing officer, and on March
4, 2014, Smith held a hearing pursuant to R.C. 3513.05. At the hearing, King withdrew his
protest against the Earl-Clark joint candidacy. The remaining protestors clainied that the
petitions submitted by both Linnabary and Earl-Clark failed to comply with the Disclosure Law
because Hatchett, a paid circulator, failed to "identify the name and address of the person
8
employing the circulator to circulate the petition." Linnabary Ev. Ex. B at 2. Felsoci raised the
same claim about part-petitions circulated by Sara Hart on behalf of Earl-Clark. Icl. Both
protestors also claimed that some of the part-petitions circulated on behalf of the two challenged
candidacies were circulated by individuals who were not members of the Libertarian Party. Id
at 3.
On March 7, Professor Smith issued his report and recommendation to the Secretary of
State. Professor Smith rejected the claim that the part-petitions were circulated by individuals
who were not members of the Libertarian Party. Id. at 17. However, Professor Smith sustained
the protests against Earl-Clark and Linnabary, finding that the paid circulators failed to disclose
their employers as required by R.C. 3501.38(E)(1). Id. at 18. On the same day, Secretary of
State I-Iusted adopted the report and recommendation of Professor Smith and upheld the protest.
Thus, Secretary Husted determined that:
[T]he signatures gathered for Steven R. Linnabary by circulator Hatchett,and signatures gathered for Charles R. Earl and Sherry L. Clark by circulatorsHatchett and Hart are invalid and, as a result, neither Steven R. Linnabary, norCharles R. Earl and Sherry L. Clark have the requisite number of valid signatures tobe elzgiblefor nomination as Libertarian candidates for the offices of AttorneyGeneral and Governor and Lt. Govcrnor, respectively, at the May 6, 2014 PrimaryElection.
Linnabary Ev. Ex. A, 2.
D. The Libertarian Party and Earl-Clark added claims about the Disclosure Law to anongoing federal case, and Linnabary filed this mandamus case just days later. Thefederal court has just rejected the Libertarian Party's constitutional claims.
On March 7, 2014, the same day that the Secretary removed the candidates from the
ballot, the Libertarian Party and Earl-Clark challenged that act in federal court, by adding that
claim to an ongoing lawsuit. "I'he party and Earl-Clark had sued the Secretary in 2013,
challenging Ohio's system for minor-party ballot access, and specifically challenging a law
requiring petition circulators to be Ohio r.esidents. On March 7, they filed an amended complaint
9
adding claims challenging the Disclosure Law on federal constitutional and state-law grounds,
and seeking a preliminary injunction.
The following Monday. March 10, Linnabary filed this mandainus case in this Court,
through the same counsel who represent the Libertarian Party in the federal case.
Yesterday, March 19, the federal court rejected the Libertarian Party's constitutional
claims, and denied the request for preliminary injunction. Libertarian Party, Appx. 1, at 22.
Relevant details of that holding are included in the argument below. In short, the court rejected
both a First Amendment claim and a due process claim based on alleged retroactive application;
in other words, the court rejected both of the claims that Linnabary invokes here as part of his
argument for constitutional avoidance. See id.; see Linnabary Br. at 15-23. 'I'he Party and Earl-
Clark are appealing that ruling.
lo
ARGUMENT
Linnabary seeks a wr.it of mandamus, which requires him to show, by clear and
convincing evidence, "(1) a clear legal right to the requested relief, (2) a clear legal duty on the
part of the relevant agency or governmental unit to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law." State ex Yel. Cleveland Right to Life, v. State of Ohio
Controlling Bd., 138 Ohio St. 3d 57, 2013-Ohio-56322. Linnabary fails to show a clear legal
right or duty here. The Secretary agrees that at this point, a vvrit is the proper remedy rather than
any legal remedy, but notes that Linnabary's earlier options, as detailed below, might have
included legal remedies as well as an earlier-filed writ action. But his duty to file earlier falls
under the defense of laches, or delay, rather than under the adequate-remedy-at-Ia`v prong.
Separately, Linnabary perhaps should proceed in prohibition rather than mandamus, but
the question is academic, because his lack of entitlement to any writ is straightforward. That is,
the Court has previously held that "prohibition-and not mandamus-[is] the appropriate
remedy when [a] statutory protest procedure" is available before the Secretary of State. State ex
rel. Evans v, Blacfiti,ell; 111 Ohio St. 3d 437, 2006-Ohio-5439 TI 27; see also State ex rel. Thurn
v. Cuyahoga Cty. Bcl of `lections, 72 Ohio St. 3d 289, 291 (1995) ("mandamus does not lie" in
regard to hearing involving "quasi-judicial authority in dezlying [the] protest and deciding to
place the proposed ordinances on the ballot"). The Court in Thurn converted, sua sponte, a
mandamus request into one for prohibition, but it need not do so. But again, it does not matter,
because Linnabary is not entitled to any writ, of any type, because he is wrong on the law.
A. Linnabary's last-minute litigation is too late, and that is reason enough to say no.
Linnabary's request should be denied for the simple reason that he has filed too late to be
entitled to an extraordirtary writ in an election case.
Il
This Court has repeatedly applied laches, the equitable doctrine requiring parties not to
delay and sit on their rights, with particular force in elections cases-especially those seeking to
change who is on the ballot on election eve. See, e.g., State ex rel. Landis v. Morrow Cty. Bd. Uf
Paschal v. Cuyahoga Cty. Bd of Elections, 74 Ohio St. 3d 141 (1995) (election cases require
"extreme diligence") State ex rel. Polo v. Cuyahoga Cty. Bd of Elections, 74 Ohio St. 3d 143
(1995); State ea: yel. Ascani v. Stazk Ct3^ Bd of Elections, 83 Ohio St. 3d 490, 493-94 (1998). ln
those cases, the Court rejected parties who waited as little as nine days (Paschal) and seventeen
days (Polo) from when they should have known to press their rights.
In holding parties to high expectations for timing, the Court has looked at both ends of
the tirneline-how long did the party wait once it knew it should act, and how close did the party
allow ballot printing or other deadlines to loom before acting? Here, Linnabary fails on both
ends, as he should have acted months ago, and the election process is underway.
First, while Linnabary did file this case on Monday, March 10, just after the Secretary
ruled against him on priday, March 7, he was woefully late because he knew or should have
known of this issue long ago. He does not ask this Court to review particular facts of his
situation, or anything that grew out of the recent hearing. Instead, this is a pure statutory dispute:
He says the statute does not cover paid circulators who operate as "independent contractors," but
tlie Secretary says it does cover thein-and that is a longstanding position.
The Disclosure Law has been on the books since 2005, see Ohio Atty. Gen. Op.
No. 2006-004 at 1, and Linnabary could have started an action to interpret the statute any time
since. He certainly need not have waited until the eve of the primary election to seek statutory
interpretation. As soon as he decided to run, he almost certainly could have sought a statutory
interpretation through a declaratory judgment. See, e.g., FYeedanz Rd. Found v. Ohio Dept. of
12
Liquor Control, 80 Ohio St. 3d 202, 204 (1997) (seeking "[j]udicial construction of' a statute
that would "resolve whether" an agency "correctly interpreted" the statute") (Cook, J.) (plurality
opinion); 1Wetf•opolitan Pyoperty & Liab. Ins. Co. v. .ts;ott, 62 Ohio St. 2d 114, 115 (1980)
(reviewing declaratotv judgment interpreting statute). Or perhaps he could have sought a writ at
an appropriate point.
The Court need not decide which path was his best path, and the Court need not decide
precisely when he should have acted. All it need decide is that he sliould have done something,
somehow, earlier than now. And that much is plain from the timeline.
Linnabary has known about the Disclosure Law since at least early 2010. In that year,
Lizulabary sought tlj-e Libertarian nomination for U.S. Senate in the May primary. Like his 2014
efforts, Linnabary collected signatures for that nomination. As a result, then Secretary of State
Jennifer Bruner instructed the local boards of election about counting the part petitions
Linnabary submitted. See Oh. Sec'y St. Directive 2010-31 (Feb. 22, 2010). That Directive told
the boards that a part petition "must contain" the "nanle and address" of the "employer who has
employed the circulator to circulate the petition." Id. at 1. Lizmabary has know-n since 2010 that
circulators who are hired to perform that task must disclose soyneone as the "person employing"
them. R.C.3501.38(I;).
Thus, once Linnabary decided to become a candidate, it was his job to learn what laws he
had to follow, and he could have raised any questions last fall, whether in November or
December or whenever he began to plan his petition circulation.
Most important, Linnabary had indisputable knowledge of this issue regarding part-
petitions in December, when a hired circulator called to ask about complying ^rith the statute.
That circulator testified during the protest that he asked for advice about the forrn while
collecting signatures in December 2013, and he said that the Libertarian Party official told him
13
that he need not fill in the employer box mandated by R.C. 3501.38(E). Linnabary Ev. Ex. C at
95-97. True, the circulator did hedge that acknowledgement by suggesting that there was
perhaps no affirmative instruction from the Party not to fill out the form, but merely an absence
of any instruction, leaving him to his own devices to leave it blank. Id. And the party official
said that he did not instruct the circulator either way. Id. at 62. But it matters not whether the
instruction was direct or absent, as it is undisputed that the party and Linnabary accepted the
petitions from the circulator and filed them without ensuring cnnixrliance, and that alone was
negligence at best, if not deliberate evasion of the law.
And again, Linnabary need not have even resorted to litigation, given the Secretary's
affirniation of the Disclosure Law's scope in I:.nthenberg. Linnabary's choice to make this an
expedited election matter now, instead of seeking court guidance (or make a pllone call) a few
weeks ago, bars his request for extraordinary relief.
Not only did Linnabary wait too long from when he should have acted, but his delay has
also put us up against the beginning of the election. While the primary election is on May 6,
absentee ballots will be mailed to regular absentee voters as early as April 1. Further, ballots to
military voters will be sent on March 22--just two days away from this filing, and. likely already
passed by the time the Court rules. See Ascani, 83 Ohio St. 3d at 493-94("[B]y the time the
expedited briefing schedule was completed, the date for providing absentee ballots had passed.")
Everyone in the process-the Secretary, candidates, this Court and all courts-should not
want more of this tactic in the future, regardless of the particular legal issue. Earlier, calmer
resolution-with more time for deliberation, and the ability to fix a problem before deadlines
have passed-is in everyone's interest. Eveti i.f; at best, Linitabary and his party were merely
negligent as to their legal duties, that is still something to discourage. They created this problern;
they must live with the consequences.
14
That is reason enough to deny the requested writ, and the Court should.
B. The Disclosure Law requires circulators to identify any party that "employed"them, meaning anvone who paid for their services, regardless of the circulator'sstatus as independent contractor or employee for other legal purposes.
If the Court looks beyond Linnabary's delay and addresses the merits, he is still not
entitled to a vvrit, as he cannot show a clear legal right to be on the ballot after his failure to
comply with the Disclosure Law. Linnabary says that he did not have to comply because the
statute applies only to those paid circulators who become "employees" of their payors, in the
sense of being on a payroll with tax withholding and other indicia used in other areas of law that
distinguish between employees and "independent contractors." But he is wrong, as the
Disclosure Law applies to all paid circulators, as all are "employed" when they are paid to do a
job, regardless of the nature of the legal relationship for other purposes.
1. The statute's plain meaning of "employ" covers all payors, as confirmed bythe statute's purpose and by case law.
First, the Disclosure Law reaches all paid circulators because the plain meaning of
"employ" is "to hire," whether as an employee or an itidependent contractor. See, e,g., Qxford
hnglish Dictionary (2d. ed. 1989) (defining employ as: "To use the services of (a persoTa) in. a
professional capacity, or in the transaction of some special business, to have or rnainta7n
(persons) in one's service.''). To "employ" covers far more than the act of making someone an
employee. It includes "to use," to "deploy," and to "hire" (even as an independent contractor).
It is therefore common to say that a client employs an attorney or a homeowner employs a
plumber, even though neither the attorney nor the plumber becomes an employee. This
straightforward meaning of the text is what the General Assembly intended, and no further
interpretation is needed.
The plainness of tlie text ends this case. Because Linnabary must show that the Secretary
had a "clear legal duty" to read the statute differently, State ex rel. TTIczters v. Spaeth, 131 Ohio
15
St.3d 55, 2012-Ohio-69 `[ 6, he cannot prevail by offering any argument that the text is
ambiguous, vague, or open to interpretation. Instead, he must prove that the statute can be read
only as equating "employ" with "make an employee." But all signs point to the opposite, that
employ means hire, and nothing more. That interpretation is confirmed in several ways.
First, it accords with other election statutes. Revised Code 3501.38](A)(1) requires
those who will "receive compensation" to supervise, manage, or organize petition circulators file
with the Secretary of State disclosing that fact. These are the people or entities who "employ"
the petition circulators mentioned in R.C. 3501.38(E). The statute's language of "supervising,
nlanaging, or otherwise organizing" gives broad. meaning to "eniploy" in R.C. 3501.38(E.), and
that means that the two laws, which work together, cannot be limited to only a certain type of
employer-employee relationship. Election statutes, like all statutes on the same subject, must be
construed "in pari materia," and "must be construed together to give full effect to the
provisions." State ex rel. Lucas Cty. Republican Party ExectltiveCommt. v. Brunner, 125 Ohio
St. 3d 427, 2010-O11io-1873 ^j14; State ex rel. Colvin v. Brunner, 120 Ohio St. 3d 110, 2008-
Ohio-5041 ¶ 46. If all employing entities that hire petition circulators must disclose their role as
payors to the Secretary of State, it makes no sense to read the Disclosure Law to require only
some of the corresporxding payees to report. That is especially so given the short-term nature of
petition circulation. In that context, independent contractors are apparently the norm, and few if
any "employees," in the sense Linnabary advocates, even exist.
Second, it is consistent with other non-election statutes. The General Assembly used
ccenlploy" in the D1sclosLlre Law just as it has in other statutes to mean "hire," not "make one an
employee." Consider R.C. 309.09(B), which empowers township trustees to "employ" special
counsel. That surely does not mean that trustees hire special counsel as employees in the sense
of having them as full-time, on-staff counsel, especially when the statute specifies that they niay
16
be retained for "a particular matter." See R.C. 309.09(B)(1) ("When the board of township
trustees finds it advisable or necessary to have additional legal counsel, it may ernploy an
czttorney other than the township law director or the prosecuting attorney of the county, either for
a particular matter or on an annual basis, to represer.t the township and its officers, boards, and
commissions in their official capacities and to advise them on legal matters.'') (emphasis added).
Likewise, R.C. 109.33 authorizes the Attorney General to "employ" experts, but he does
not make them traditional employees. See R.C. 109.33 ("'I'he attorney general may also employ
experts for assistance in any specific matter at a reasonable rate of compensation."). When the
Attorney General hires special-counsel attorneys or experts for litigation or investigation, he
employs them in the same sense as candidates or their supporters employ petition circulators
under the Disclosure Law.
'l'hirtl, it is consistent with this Court's cases outside of elections litigation. When this
Court confronted questions about the special-prosecutor statute, it used "employ" in the same
broad sense as in the Disclosure Law when describing the relationship between a county and a
special-counsel attomey. State ex rel. Hccrnilton Cty. Bd. of Con2mrs u. Hamilton Cty. Coi.crt of
Common Pleas, 126 Ohio St. 3d 111, 2010-Ohio-2467 Ti 23 (describing the statute as authorizing
the board of county conmmissioners to "employ an attorney"). The special prosecutors in that
case were never the employees of the Hamilton County Commissioners. And when the Court
considered the ethical rule about dividing lawyers' fees, it described the transaction as one
attorney "enaploying" another even though the rule covered only those attorneys not in an
employer-employee relationship. See King v. I-Iousel, 52 Ohio St. 3d 228 syl. T 1 (1990) ("An
attorney who employs another attorney to assist him in the representation of a client has a duty to
fully disclose to his client the fee agreement with the employed attorney.").
17
Those are not isolated examples. When this Court describes the difference between an
employee and an independent contractor, it repeatedly draws the line between "emplover and
employee" on one hand and "employer and independent contractor" on the other. Marshall v.
AaNon, 15 Ohio St. 3d 48, 49 (1984) (emphasis added); see also Bostic v. Connor, 37 Ohio St. 3d
144, 146 (1988) (collecting cases); Councell v. Douglas, 163 Ohio St. 292 syl. T 1 (1955). In
light of that consistent usage, reading "person employing" as referring exclusively to an
employer-employee relationships with all the tax and other regulatory implications it entails is
implausible. Indeed, as a matter of statutory construction-which always seeks the General
Assembly's izitent-reading the statute that way is unimaginable.
Fourth, reading the Disclosure Law to cover all paid circulators is consistent with
legislative intent, while reading it Linnabary's way undennines the statute dramatically.
R.C. 1.49 (directing courts to examine "[t]he object sought to be attained" when statutes are
axnbiguous). Ohio enacted the Disclosure Law in 2005 after encountering "widespread" fraud
"ainong petition circulators" during the 2004 election cycle. Blankenship v. Blackwell, 341 F.
Supp. 2d 911, 923 (S.D. Ohio 2004); appeal disnaissed as moot 429 p.3d 254 (2005). One factor
contributing to the frau.d was "the payment of petition circulators." Ohio Atty. Gen. Op.
No. 2006-004 at 2. The General Assembly responded to these problems with, among other
requirements, the payor identification obligation for petition circulators who are "employed"
(paid) to collect petition signatures. 150 Ohio Laws (IV) 5,293 (effective March 31, 2005) (Am.
Sub.1-1.B. 1, "to revise the campaign finance law").
With that backdrop, the goal of the legislation is to require "the disclosure of the person
or entity paying a circulator," particularly "the entity that not only directly controls the manner
and means of the circulator's work, but also directly pays the circulator." In re Protest of Evans,
2006-Ohio-4690 ^ 29 (F'rench, J.); ef. In re Protest qf Brooks, 155 Ohio App. 3d 370, 2003-
18
Ohio-6348 ^, 48 (3d Dist.) (affirming invalidation of part petition for "invalid" payor address)
(Cupp, J.). It mak-es little sense to read the statute as requiring only the disclosure of those who
employ circulators as long-ternl employees with benefits and tax corisequences. `I'hat narrow
reach simply does not map to the reality of paid circulators. Petition gathering is episodic; few
people or entities "employ" full-time petition gatherers like they do teachers, engineers,
machinists, or computer programmers. If the statute is to have any force, it must require
disclosure of those who control the circulators and pay them, even if only as "independent
contractors." In re 1'rotest of Evans at ^ 20.
Fifth, both the Tenth District in Evans and this Court in Rothenberg eonfirzned, directlv
or indirectly, that the Disclosure Law applies to independent contractors. In Evans, the question
was whether the circulators complied when they failed to list Arno Political Consultants, the
signature-gathering firm that directly engaged the circulators, aaid the circulators instead listed
the American Cancer Society, the once-removed entity that paid Amo to gather signatures.
Evans, 2006-Ohio-4690 T 20. The court held that Amo was the proper emplover to list, so the
failure to list Arno was fatal, and the petitions wereinvalidated. Id. ^(TI 1, 5-6. Critically, that
was so even though, as the coitrt noted, Arno "retained and paid [the] circulators as independent
contractors." Id. Ii 20 (emphasis added).
Linnabary m.istakenly relies on. Evans as supporting him, based on some discussion of
traditional employmeiit principles regarding degree of control, as in full employment
relationships versus independent contractors. Linnabary Br. at 9-12; Eiyans, 2006-Ohio-4690
¶S 16-19. But that discussion was to show that ACS was plainly not the right employer, and to
show that Amo, as compared to ACS, was the one directly engagirtg the circulators. Evans
caiinot possibly be read to support Linnabary's view that independent contractors need not list
any payor, or the outcome in Evans would have been different. If the independent contractors in
19
Evans did not have to list anyone, by virtue of that independent status, then they did not need to
list Arno or the American Cancer Society. Their choice to mistakenly list American Cancer
Society would not have been held against them if they had no duty to list anyone, so their
petitions would have been approved, not invalidated. The Evans holding was that the failure to
list Arno was fatal, even though Arno "retained and paid [the] circulators as independent
contractoY.r," id. !i 20 (emphasis added), and that supports the Secretary, not Linnabary.
This Court's RothenbeYg decision is also consistent with the Secretary's view. To be
sure, the Court did not face the precise question of independent contractors who did not list
anyone, as here, but the Court did say it was proper for such independent contractors to list their
contractual payors: "Part-petitions of compensated circulators are not improperly verified and
subject to invalidation simply because the circulators, who might actually be independent
contractors, listed the ezitity or individual engaging or paying them to circulate the petition as
`the person employing' them." 2011-Ohio-4003 T 2. In addition, tlie Court noted that "the
secretary of state's construction of the applicable statutory provisions is reasonable and is
entitled to deference," id., and the Secretary's position there was the same as here: The
Disclosure Law covers all paid circulators.
In sum, the statute's plain meaning, purpose, and case law all support the Secretary, and
surely show that there cannot be a "clear legal duty" going the other way. And if any doubt
remained, the issue identified in Rothenberg-deference to the Secretary-seals the deal, as
explained below.
2. The Secretary's administrative interpretation `of the Disclosure Law isentitled to deference.
Even if the text a.nd case law did not answer the question, administrative deference to the
Secretary's interpretation of the statute would. This Court has long deferred to the Secretary's
interpretation. of elections statutes. And the Secretary has interpreted this very statute both in a
20
directive to local boards of elections and in litigation before this Court. These interpretations-
which long predate Linnabary's need to know what the statue means-bar any claim that the
Secretary has a clear legal duty to change his interpretation of the statute on the eve of an
election.
Indeed, the Court has already resolved the question at the heart of the petition. As noted
above, in Rothenberg, it deferred to the Secretary's interpretation of this very provision. 2011-
Ohio-4003 J[ 2. While the decision refers only briefly to the contractor status, approving
contractors' listing of payors, the Secretary's brief further confirms that such listing is required,
not just allowed. Specifically, tlie brief explains that the Disclosure Law provides no "exemption
from the disclosure requirement for circulators who are `independent contractors."' Br. of the
Secretary of State in Rothenberg v. Husted, No. 2011-1344 at 1(Aug. 9, 2011). That dooms the
request for a NvTit even without the several persuasive reasons that "employed" cannot mean
"made an employee o£"
The Court's deference in Rothenberg followed a w€ll-worn path. "[W]ell-settled
precedent" dictates that courts "must defer to" the Secretary's "reasonable interpretation[s]" of
election laws. State ex Nel. Colvin v. Bi-ut.anet°, 120 Ohio St. 3d 110, 200$-Ohio-5041 T., 57
(collecting cases); Rothenberg, 2011-nhio-4003 ^, 2. The separation-of-powers principles that
inform that deference are in full bloom in this case because the Court has already deferred to the
Secretary's interpretation of this statute. See id. And the deference owed the Secretary is amped
still further because Linnabary seeks election-eve statutory interpretation in a posture that
demands he prove a clear legal duty by the Secretary to view the statute a.s he does. In
maiidamus, showing a clear legal duty on the part of the Secretary means proving that he
"engaged in fraud, corruption, or abuse of discretion or acted. in clear disregard of applicable
legal provisions." State ex r°el. Ohio Libeyty Council v. Brunner, 125 Ohio St. 3d 315, 2010-
21
Ohio-1845 '[ 30. Eveii if the statute were unclear (and it is not), it is hard to see how there could
be abuse of discretion or clear disregard in the Secretary's choosing one of two plausible
meanings of an election statute, when this Court had already affirzned the reasonableness of the
Secretary's view. See .Lucas County ¶¶ 23-24; Rothenberg, 2011-Ohio-4003 ¶ 2.
After Rothenberg, the current Secretary again interpreted the relevant statute. See
Directive 2013-17. That Directive instructs that if a "circulator was elnployed to circulate the
petition" it must list the employer's name and address, and "[i]f a circulator identifies an
employer on the circulator's statement but does not provide a coiTesponding address, the Board
must invalidate the entire part-petition." Oh. Sec'y St. Directive 2013-17 at 2 (Sept. 3, 2013)
(instructions for initiative petitions, but interpreting the same statutory language). That
interpretation confrms this Court's holding in Rothenberg. And it gave Linnabary yet another
reminder that if he had a problem with the legal requirement that paid circulators disclose the
name of their payor, he should have challenged the requirement before the election machinery
for the 2014 primary was up and running.
One last point about administrative deference. Reading the statute to excuse compliance
by independent contractors would contradict the axiom that "in mandamus proceedings, the
creati.on of the legal duty that a relator seeks to enforce is the distinct function of the legislative
branch of government, and courts are not authorized to create the legal duty." Z;ucas Count,7J,
19 (citations omitted). This Court has already recognized that the Disclosure Law is the kind
of statute where administrative deference is appropriate. Rothenberg, 2011-Ohio-4003 2.
Issuing a writ in this case would therefore create, not enforce, a duty--specifically, a duty to
ignore the Disclosure Law's better reading----despite the General Assembly's decision to require
circulators to disclose who paid them and despite the General Assembly's decision to leave to
the Secretary, not the cour-ts; the administrative task of interpreting any open questions in that
22
command. The Secretary has no clear legal duty to act contrary to the wishes of the General
Assembly and to this Court's earlier deference to his interpretation of the statute.
C. Linnabary's otl ►er attempts to avoid the Disclosure Law's application all fail.
Aside from clainling that the Disclosure Law actually does not apply to him, Linnabary
offers several other rationalizations to excuse his non-compliance, invalidate the hearing
procedurally, or stretch the statute's meaning by quasi-constitutional claizns. Those all fail.
1. Linnabary's part-petitions neither strictly complied with the Disclosure Lawnor substantially complied.
Limlabary mistakenly claims that he is required only to "substar7tially comply" with the
Disclosure Law, and that he has done so. He is wrong on both counts. This law requires strict
compliance, and even if did not, leaving the relevant part of the form entirely blank is not even
close to "substantial" conlpliance.
First, the Court has long held that strict compliance is the default for election laws, and
that is lowered oilly if the provision at issue says so: "The settled rule is that election laws are
mandatory and require strict co.m.pliance and that substantial compliance is acceptable only when
an election provision expressly states that it is." State ex r-el Vickers v. Summit Cty. Council, 97
Ohio St. 3d 204, 2002-Ohio-5583 ^ 32 (cluoting State ex rel. Cosnnfittee for the Referenclum of
Lorain Ord. No. 77-01 v. Lor-ain Cty. Bd. Uf Elections, 96 Ohio St. 3d 308, 2002-Ohio-4194
149). The Disclosure Law does not expressly state that substantial compliance is acceptable.
R.C. 3501.38; see also Oh. Sec'y St. Directive 2011-22 (July 7, 2011) (in which the Secretary
Linnabary of course cannot find arny lowering of the standard in the Disclosure Law
itself, so he mistakenly seeks to rely on R.C. 3513.261, a completely different statute, which
does expressly state that candidates need only "substantially ... follow[]" it. And he cites State
ex Yel: Osborn v. Fai^field County Boarci of Elections, 65 Ohio St. 3d 194195 (1992), which
23
also considered a statute expressly requiring only "substantial" compliartce. But neither the other
statute nor Osborn helps him, as under Vickers, any lowering from strict to substantial
compliance must be indicated by the actual proWsion at issue, namely, the Disclosure Law.
Moreover, even if substantial compliance x,ere the standard, a paid circulator's simply
leaving the employer statement blank would not amount to substantial compliance-it would
amount to no compliance. Even if an independent contractor who listed him- or herself as the
"employer" would somehow have a claim to substantial compliance, one who simply ignored the
requirement altogether does not. Mistakenly believing you do not have to comply, or forgetting
to comply, is not substantially complying. In the end, though, this debate is academic, because
the statute requires strict compliance.
2. Linnabary's attack on the protestor's standing to challenge his candidacymisreads the statute, and is irrelevant anyway because the Secretary of Statecan disqualify part-petitions for non-compliance without a protest.
Linnabary fares no better in seeking to undercut the legitimacy of the Secretary's hearing
by claimizig that the protestor, Carl Michael Akers, was not a member of the Libertarian Party of
Ohio, and that Akers therefore lacked standing to file the protest, and that therefore everything
flowing from it wasinvalid. This is not an appeal of a decision below, in which lack of standing
is a fatal defect. This is an extraordinary writ case, so he must still show that he has an ultimate
clear legal right to be on the ballot, to earn that as relief. Even if Akers's status as a challenger
could be undermined (and it cannot), that does not excuse Linnabary's noncompliance with the
Disclosure Law.
Or, at most, if standing in the administrative process could be challenged in mandamus, it
would still be framed in terms of mandamus, so Linnabary would have to prove, by clear and
convincing evidence, that the Secretary had a clear legal duty not to consider the protest. And
even if he could show that the Secretary was required to reject the Akers-initiated protest, that
24
still gets Linnabary nowhere, as he cannot show that the Secretary had a clear legal duty not to
investigate and act upon Linnabary's non-compliance once he learned of it. But nothing in the
law prevents the Secretary from acting when he learns of a problem, from whatever means; to
the contrary, he has broad discretionary power. See R.C. 3501.39(A)(3); Ohio Atty. Gen. Op.
No. 2006-004 syl. 1; 3. Consequently, Liiu^ahary's argument regarding Akers's status is
irrelevant, as Linnabary cannot deny that the Secretary could have enforced the Disclosure Law
anyway. Whether he would have discovered the issue or acted as a factual matter, without
Akers's protest, does not change that.
Moreover, Akers was a valid protestor under Ohio law, and any doubts should be
resolved, as with the merits issue, in favor of the Secretary's reasonable reading of the statute.
The protest statute, R.C. 3513.05, Paragraph 13, provides that:
Protests against the candidacy of any person filing a declaration of candidacy forparty nomination or for election to an office or position, as provided in this section,may be filed by any qualified electoy° u,ho is a meinber of'the saTne political payty asthe candidate and who is eligible to vote at the pi°itnaiy election foNthe candidatewhose declaration of candidacy the elector objects to ....
R.C. 3513.05, ^ 13 (emphasis added). Paragraph 13 provides no further definition of what it
means to be a "member of the same political party" as the candidate. However, six paragraphs
earlier, in 11'aragraph 7, R.C. 3513.05 provides that:
For purposes of signing or circulating a petition of candidacy for party nominationor election, an elector is considered to be a member of a political party if the electorvoted in that party's primary election within the preceding two ca.lendaryears. or ifthe elector did not vote in any other party's primary election within the precedingtwo calendar years.
R.C. 3513.05, ^ 7. Under this definition, a voter who has not voted in any party's primary within
the previous two calendar years is a member of the party whose petition the voter signs or
circulates. Based on Professor Smith's report, the Secretary found here that, in the absence of
any indication in the Revised Code that the General Assembly had a contrary intent, this
25
definitioii also "provides a logical place to look" when interpreting "member of the same
political party" in Paragraph 13. Linnabary Ev. Ex. B at 9. Under that definition, Akers had
standing to file the protest. Id.
In contrast to the Secretary's reasonable interpretation of the statute, Linnabary argues
that the definition for protests must be narrower than for circulators and signers. That is, he says
a looser statutory definition. of "party member" (those who have not voted in aily primary in the
preceding two calendar years) applies only to circulators and signers of petitions, but that a
stricter definition-taken not from the Ohio Revised Code, but from the LPO's own bylaws-
applies to protestors of those same petitions. Linnabary wants, and needs, to have it both ways,
with a strict meaning for protestor standing but a loose one for circulators. Without that
anomalous treatment, Linnabary has no claim to be on the ballot, because his petition circulators
would undoubtedly not qualify as Libertarian Party members under his self-created definition.
That would lead to the absurd result that many voters could circulate petitions-----or even run as
candidates-but be excluded from the narrow set of people eligible to challenge them. And that
anomaly would apply not just in odd cases like this, but in the typical case, in which a rival
primary candidate and her supporters seek to invalidate another candidate. In such cases,
perhaps none of the rival's circulators, or even the candidate herself, could stand up and protest,
because that power would be limited to those blessed by party bylaws.
Moreover, the Revised Code contains no support for such importation of bylaws into
Paragraph 13 of R.C. 3515.05, let alone a clear legal right to have party member defined that
way. Linnabary's statutory parsing is mistaken. He says that if the "unaffiliated voter"
definition applied to protestors, then the portion of Paragraph 13 requiring protestors to be
"members of the same political party as the candidate" would be supertluous. A protestor must
be: (1) a qualified elector; (2) a member of the same political party as the candidate; and (3)
26
eligible to vote at the primary election for the candidate. Any qualified elector is "eligible to vote
at the upcoming primary," whether or not they have voted in another party's primary within the
last two years. That is, anyone who voted in another party's primary is eligible to switch gears
on primary day, and cannot switch in advance in Ohio. Voting in a different party's primary is
how a voter changes his or her party affiliation. Requiring the protestor to also be a`tmember of
the party" therefore adds an additional requirement beyond eligibility to vote in the upcoming
primary; it requires that the protestor have voted in the party's primary or not have voted in
another party's primary within the last two years. Thus, the phrase is not surplusage. And in any
event, Linnabary cannot show that the General Assembly clearly meant for "party member"' to
be narrower for protestors than for circulators, so he cannot show a clear legal duty to reject this
protest.
None of the cases that Linnabary cites help his cause. In two cases, the would-be
protestors were candidates outside the party tivhose process they sought to protest; one was
another party's candidate and one was an independent. See Zukovvski v. 13runner, 125 Ohio St.
3d 53, 2010-Ohio-1652 T 9(Republican candidate sought to protest Democratic candidacy);
.Stcrte ex rel. Varnau v. Wenninger, 131 Ohio St, 3d 1 G9, 2012-Ohio-224 T 18 (independent
candidate sought to protest a party's candidate). Of course, a Republican cannot be a Democrat
to challenge a Deniocrat. That says nothing about whether a previously unaffiliated voter can
legitimately become a party member for protest purposes before arriving at the primary to
confirm his new view.
Finally, Linnabary is not helped-but the Secretary is-- -by State ex rel. Davis v. Summit
Cay. Bd of Elections, 137 Ohio St. 3d 222, 2013-Ohio-1533 ^ 17. Davis applied a`°good faith"
standard to party disaffiliation, where a former party member sought to disavow his party and
run as an independent. Linnabary tries to distinguish party czffilicrtion from party clisqffiliation,
27
arguing that a party may not prevent people from leaving on good faith, but it can lock the door
and keep him out by using a tighter standard. The better view is that a voter's good faith lets him
enter or exit a party, and that supports the Secretary. At a minimum, though, Davis does not
support Linnabary.
3. The doctrine of constitutional avoidance does not apply or help Linnabary.
Finally, Lirulabary seeks to buttress his statutory argument by appealing to the doctrine of
constitutional avoidance, claiming that the Disclosure Law must be read his way to avoid
constitutional problems that would arise if the Law continued to apply as the Secretary and
several courts have read it. Notably, he does not raise actual constitutional claims, and expressly
disclaims that he is doing so, saying he reserves those for federal court. He does not specify
whether he means the federal case that his Party has just lost in federal court (and that his Party
is appealing), or if he thinks he can still go to federal court separately later. But in any case, that
disclaimer is invalid, as detailed below.
More important, his argument fails, first, because constitutional avoidance does not apply
in this situation, and, second, because he does not raise any valid constitutional concerns, even
for avoidatice purposes, as the federal court just found.
a. Linnabary's "reservation" of federal claims is invalid.
Linnabarry wants to have it both ways---to suggest constitutional problems without
proving them, but to "reserve," Br. at 15 n.7, any real arguments he has for a federal court.
Linnabary cannot leave his constitutional arguments for another day. Aside from whether he is
de facto a party to his Party's federal case (an issue that can. be set aside for now), he must bring
any valid federal claims, if he had any, here and now. England reservation is misplaced, as that
is a "procedure to be followed in Pulln2an abstention situations." Erwin Chemerinsky, Federal
JuNisdiction, § 12.03 at 808 (5th ed. 2007). It does not give a litigant license to divide federal
28
and state claims at will (a tactic barred by principles of preclusion); it merely gives litigants who
chose a federal forum the right to reserve federal claims ifabstention principles send their federal
case to state court. See, e.g., San Reyno Hotel, L.P. v. City & C'oasnty of San Francisco, 545 U.S.
323, 339 (2005) (holding in England allowed plaintiff to "reserve his right to return to federal
court" if "a federal court abstains from deciding a federal constitutional issue to enable t11e state
courts to address an antecedent state-law issue"). Thus, by not raising his federal claims openly,
he has waived them. ( f Smithv. Landfair, 135 Ohio St. 3d 89, 2012-Ohio-5692 j( 13 (declining
to rule on. a"constitutional issue that [was] not before" the Court).
b. Constitutional avoidance does not apply here.
The doctrine of constitutional avoidance, as a statutory canon, requires several elements.
First, the statute must first be susceptible of either competing interpretation as a fair reading.
Second, one reading must render the statute unconstitutional or at least raise serious
constitutional problems. Third, the other reading must avoid the constitutional problem.
Linnabary fails on all counts.
First, as shown above, Linnabary's view of the statute is not even a plausible one, as
there is no basis for reading an "independent contractor exemption" into the Disclosure Law.
This Court will not avoid a constitutional question "under the guise of construction"' when that
interpretation bears no "reasonable relation to the language." Akron v. RoM>Zanci, 67 Ohio St. 3d
374, 380 (1993). Thus, the "canon of constitutional avoidance comes into play only when., after
the application of ordinary textual analysis, the statute is found to be susceptible of more than
one construetion ...." Clark iy. llfartinez, 543 U.S. 371, 381 (2005). And even if it were
ambiguous somehow, using this approach also does not mesh with the mandainus context, `vhich
requires a clear legal duty or right, not an anibiguous rigllt that gets nudged into clarity by other
29
canons. In other words, Linnabary seeks to combine an allegation of an unclear statute with an
unclear (or less-than-conclusively-established) constitutional claim to arrive at a clear legal duty.
Second, as shown in part 3-c below, Linnabary does not show that the plain reading (i.e.,
that employ means employ) raises serious constitutional doubts.
Finally, Linnabary does not show his proposed alternate interpretation (that employ
means make an employee) actually solves his imagined constitutional problems of campaign
disclosures for those who pay petition circulators. That is, if there were a constitutional problem
with rcquiring disclosure, that should logically apply to all paid circulators, regardless of their
contractual status. Surely First Amendment rights of circulators do not vary based on whether
they take full staff positions. Put another way, exempting independent contractors does not
preserve the law's constitutionality; it would remain unconstitutional for those "full employees"
who are not litigants today.
In sum, the canon is "not a method of adjudicating constitutional questions by other
means" and is not a license to "`interpret"' statutes by gerrymandering them" in a way that
"happens to describe a party's case." United States v. Apel, 134 S. Ct. 1144, 1153 (2014)
(rejecting effort to "repackage" a First Amendment objection as a statutory interpretation
argument based on constitutional avoidance").
c. Linnabary's constitutional arguments are wrong.
Linnabary's argument fails because the statute does not implicate substantial
constitutional problems. The avoidance doctrine only kicks in if a competing interpretation
"raises serious constitutional doubts." Clark; 543 U.S.1a.t 381 (emphasis added). Here, the law is
constitutional-as the federal court just found in rejecting the Libertarian Party's claims.
Libet°taYian Party, Appx. I at 22, 24.
30
"States ... have considerable leeway to protect the integrity and reliability of ... election
processes generally." Buckley v. A,naericanConstitutionalLcrw Foundation, 525 U.S. 182, 191
(1999). The State interest in disclosure of who pays petition circulators is strong and well
recognized. In Buckley, the Supreme Court aff rzned a decision upholding a State's requirements
for "the disclosure of payors, in particular, proponents' names and the total amount they have
spent to collect signatures for their petitions." 525 U.S. at 202 (emphasis in original). The Court
specifically noted the state's "substantial interest" in such disclosure, stating that: "Through the
disclosure requirements that remain in place, voters are informed of the source and amount of
money spent by proponents to get a measure on the ballot; in other words, voters will be told
`who has proposed [a measure],' and `who has provided funds for its circulation. "' M. at 203.
Summarizing its holding, the Court "reiterate[d] [that], the State legitimately requires sponsors of
ballot initiatives to disclose who pays petition circulators, and how much." Id: at 205 (emphasis
added); see also, e.g., National Organization for Marriexge v. McKee, 666 F. Supp. 2d 193, 205
(D. Me. 2009) (Buckley "said that a state could require the sponsors of ballot initiatives to
disclose the identities of those paying petition circulators and how much they paid.").
Linnabary's suggestion (again, he raises no actual constitutional claim) that the
Disclosure Law violates the First Amendment cannot be squared with Buckley and cases
applying it. The cases he cites distinguish themselves. Citizens in Charge v. Brunner, 689 F.
Supp. 2d 992 (S.D. Ohio 2010), related to committees, and struck down required disclosure of
anzounts paid (not at issue here) of ballor or initiative petitions (not at issue here). The court
quotes Buckley^ when it noted that "ballot initiatives do not involve the risk of `quid pro quo'
corruption present when money is paid to, or for, candidates." Id. (citations omitted).
The same is true of (WIN) tVushington Initiatives Now v. Rippie, 213 F.3d 1132, 1139
(9th Cir. 2000). After observing that a State's interest in combatting fraud is ziot as heightened in
^1
the context of initiative campaigns as it is in candidate contests (citing Buckley), the Court
explained how that case differed from Linnabary's; "The State's interest in educating voters
through campaign finance disclosure is more adequately served by a panoply of the State's other
requirements that have not been challenged. Tlu•ough [another, unchallenged section of law],
`voters are informed of the source and amoimt of money spent by proponents to get a measure on
the ballot; in other words, voters [can learn] who has proposed a measure and who has provided
funds for its circulation. "' .Id. (citation omitted) (emphasis added).
American Civil Liberties Union v. 7ireller°, 378 F.3d 979 (9th Cir. 2004), is equally
unhelpful, as it addressed regulation of electioneering materials themselves, not the funding of
petitions. There, the Court explained the distinction between "campaign statutes that go beyond
requiring the reporting of funds used to finance speech to affect the content of' the
communication itself." .lcl. at 987 (noting the "distinction between direct regulation of the
content of political speech," which was prohibited, "and requiring the later reporting of the
funding of speech," which was permitted) (emphasis original).
I,innabarry's authorities do not help him. Nor does his failure to offer evidence that the
Disclosure Statute actually affects the ability to gather signatures. Indeed, the evidence points
the opposite way. Libertarian Pariy, Appx. 1 at 21.
Linnabary's other quasi-constitutional claim-that the law is being applied retroactively
and thus violates due process--fares no better. Neither the requirement to comply strictly nor
the requirement of independent contractors to disclose the entity paying them to circulate
petitions is being applied retroactively, for the same reasons that Linnabary's claim is barred by
the doctrine of laches (see Section A, above): Linnabary knew or should have known of both
requirements before beginning his petition circulation efforts.
32
Retroactive statutes are those that destroy a substantial or vested right. S'ee, e.g.,
Taxpayers for the Animas-La I'lata Referendunn v. Animas-I a Plata Water° C'onversancy Dist.,
739 F.2d 1472 ( lOth Cir. 1984) ("[T]he Supreme Court decisions reveal the necessity of
asserting an impact upon `vested rights' in claims founded upon the retroactivity of legislation in
violation of the United States Constitution."). Linnabary cannot demonstrate that he has a vested
right not to comply with Ohio law.
As established above, the Secretary's interpretation of the Disclosure Law is consistent
with long-standing case law and directives. ;In Evans, the Tentll District held that the correct
employer to be listed on the form as the circulators' "employer" under R.C. 3501.38(E)(1) was
the professional petition-circulating company (Arno) that actually employed them. And the
court in Evans made is absolutely clear that Arno employed the circulators as independent
contractors. In r°e Protest of'Evans, 2006-Ohio-4690 Ti 20-21, 23.
Then, in Rothenberg, this Court held that "Part-petitions of conipensated circulators are
not improperly verified and subject to invalidation simply because the circulators, who nlight
actually be independent contractors, listed the entity or individual engaging or paying them to
circulate the petition as `the person employing' them." .i`d. '; 2. Rothenberg establishes that the
circulator's status as an "independent contractor" or an "employee" for employment law
purposes is irrelevant to the definition of "employer" under the Disclostire Law. See id.
Rothenhey-g does not hold that it is permissible for the circulator's identification of his or her
employer to be incorrect (as Plaintiffs argue), but rather that the circulator's listing of the paying
entity as his or her "employer" is not iaacorrect--even if the circulator is engaged as an
independent contractor. See id. Lizunabary has therefore been on notzce since Evans was decided
in 2006, and from later notifications, that cornpliance with the Disclosure Law is required and
that independent-contractor circulators must disclose who is paying them.
33
Linnabary's reliance on Directive 2006-5 8 and Directive 2007-14 to justify a retroactivity
argument regarding strict compliance with this requirement is misplaced in light of Directive
2011-22, which reads:
"Election laws are mandatory and require strict compliance, and substantialcompliance is acceptable only when an election provision says that it is. &ate exirel. Vickers v. Sunarrzit Cty. Council, (2002) 97 Ohio St.3d 204. . . . R.C. 3501.38and R.C. 3519.05 do not say that substantial compliance is permissible.Accordingly, the law requires strict compliance."
(Oh. Sec'y St. Directive 201 l-22(July 7, 2011)). Similarly, Directive 2013-17, issued over five
months ago, reiterated that "[i]f a circulator identifies an employer on the circulator's statement
but does not provide a corresponding address, the Board must invalidate the entire part-petition."
(Oh. See'y St. Directive 2013-17).
This is not a case of "moving the goalposts." Rather, the Disclosure Law's application in
this case is entirely consistent with Evans (2006), Rothenberg (2011), and the Secretary"s own
2011 and 2013 directives. Linnabary's claim of unconstitutional retroactivity therefore fails.
34
CONCLUSION
The Court should deny the writ.
Respectfully Submitted,
MICHAEL DEWINEAttozl-iey Gen4of O
ERIC E. MU 2 )State Solicitor
*Courzsel ofRecordMICHAEL J. HENDERSHOT (0081.842)Chief Deputy SolicitorSTEPHEN P. CARNEY (0063460)Deputy SolicitorKRISTOPI-IER J. ARMSTRONG (0077799)Assistant Attorney General30 East Broad StTeet, 17th FloorColumbus, Ohio 43215614-466-8980614-466-5087 [email protected]
Counsel for RespondentJon Husted, Ohio Secretary of State
35
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Merit 13rief of Respondent Ton Husted was
served by e-mail this 20th day of March, 2014, upon the following counsel:
Republican Party orchestrated the protest that Felsoci signed. That inference,
while serving as color commentary. Instead, the Court is called upon to
determine the constitutionality of Ohio Revised Code § 3901.38(E)(1 ) on its face
and as applied. Nonetheless, it seems fair to acknowledge the inference,
especially in light of the fact that Felsoci's attorrleys elicited evidence
demonstrating that the Ohio Democratic Party, or its operatives or supporters,
provided assistance to Plaintiffs in their efforts to gather petition signatures to
qualify for the Ohio May 2014 primary ballot.
B. Ohio Revised Code § 3501.38(E){1 }
The statute at issue states as follows:
On each petition paper, the circulator shall indicate the number ofsignatures contained on it, and shall sign a statement made underpenalty of election falsification that the circulator witnessed the affixingof every signature, that all signers were to the best of the circulator'sknowledge and belief qualified to sign, and that every signature is to thebest of the circulator's knowledge and belief the signature of the personwhose signature it purports to be or of an attorney in fact actingpursuant to section 3501.382 of the Revised Code. On the circulator'sstatement for a declaration of candidacy or nominating petition for aperson seeking to become a statewide candidate or for a statewideinitiative or a statewide referendum petition, the circulator shall identifythe circulator's name, the address of the circulator's permanentresidence, and the name and address of the person employing thecirculator to circulate the petition, if any.
Ohio Rev. Code § 35C19 .38(E)(1) (emphasis added). As a practical matfer, the
statute requires paid circulators of candidate petitions to provide the name and
address of the person or entity who paid them in the "employer information box"
Amendment rights, and the requirement serves Ohio's significant interest in
detecting and deterring fraud in the signature gathering process.
The Sixth Circuit Court of Appeals recently explained the difference
between facial and as applied challenges:
A facial challenge to a law's constitutionality is an effort "to invalidatethe law in each of its applications, to take the law off the bookscompletely.°" Connection Distrib. Co: v. Holder, 557 F.3d 321, 335 (6thCir. 2009) (en banc); see also Vi1i. of Hoffman Estates v. Flipside,Hoffman Estates, Inc., 455 U.S, 489, 495, n. 5, 102 S.Ct. 1186, 71L.Ed.2d 362 (1982) ("a `f'acia(' chafienge ... means a claim that the lawis `invalid in toto-and therefore incapable of any valid application.,,'(quoting Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39L.Ed.2d 505 (1974))). In contrast to an as-applied challenge, whichargues that a law is unconstitutional as enforced against the plaintiffsbefore the court, a facial challenge "is not an attempt to invalidate thelaw in a discrete setting but an effort `to leave nothing standing[j"'Connection Distrib. Co., 557 F.3d at 335 (en banc) (quoting WarshaiCv. United States, 532 F.3d 521, 528 (6th Cir. 2008} (en banc)).Sustaining a facial attack to the constitutionality of a state law, as thedistrict court did, is momentous and consequential. It is an "exceptianairemedy.'f Carey v. Wolnitzek, 614 F.3d 189, 201 (6th Cir. 2010).
Speet v. Schuette, 726 F.3d 867, 871-72 (6th Cir. 2013). "<`Facial challenges are
disfavored.°" Citizens United, 588 U.S. at 398 (quoting Wa. State Grange v. Wa.
State Republican Party, 552 U.S. 442, 450 (2008)}.
In support of their contention that Ohio Revised Code § 3501.38{E}(1) is
unconstitutional on its face, Plaintiffs rely primadly on three decisions: Buckley v.
Am. Constitutional Law Found., 525 U.S. 182 (1999); Citizens in Charge v.
Brunner, 689 F. Supp.2d 992 (S.D. Ohio 2010) (Sargus, J.); and (WIN) Wa.