Ohio Council 8 American Federation of State v. Husted

814 F.3d 329, 2016 FED App. 0034P, 2016 U.S. App. LEXIS 2338, 2016 WL 537398
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 11, 2016
Docket14-3678
StatusPublished
Cited by18 cases

This text of 814 F.3d 329 (Ohio Council 8 American Federation of State v. Husted) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ohio Council 8 American Federation of State v. Husted, 814 F.3d 329, 2016 FED App. 0034P, 2016 U.S. App. LEXIS 2338, 2016 WL 537398 (6th Cir. 2016).

Opinion

OPINION

ROGERS, Circuit Judge.

Ohio elects its state judges through a hybrid process. Judicial candidates are first selected through partisan primary elections. On the general-election ballot, however, their names show no partisan affiliation, even though judicial candidates may affiliate with political parties throughout the entirety of their campaigns. The plaintiffs' — the Ohio Democratic Party, three individuals who were candidates for state-court judgeships in the 2010 election, and a statewide labor organization— brought suit below challenging the constitutionality of the Ohio law that precludes the inclusion of judicial candidate party affiliations on the general-election ballot. While the plaintiffs argue that Ohio’s electoral system burdens their First and Fourteenth Amendment rights, the burden .is minimal and is outweighed by Ohio’s interest in minimizing partisanship in judicial elections. Consequently, the district court correctly granted the Ohio Attorney General’s motion for summary judgment.

Judicial candidates in Ohio must first compete in partisan primary elections in which they are listed on their political party’s primary election ballot, known as an “office type ballot.” Ohio Rev.Code § 3505.03. However, unlike their legislative and executive counterparts, the winners of the judicial primary elections must then participate in a nonpartisan general election. Ohio Rev.Code § 3501.01(J). Ohio Rev.Code § 3505.04 — the statute which the plaintiffs challenge — precludes judicial candidates from being associated with their political parties on the general-election ballot:

No name or designation of any political party nor any words, designations, or emblems descriptive of a candidate or his political affiliation, or indicative of the method by which such candidate was nominated or certified, shall be printed under or after any nonpartisan candidate’s name which is printed on the ballot.

*333 Although the general election must be nonpartisan in the sense that the ballot may not contain judicial candidates’ party affiliations, judicial candidates are not restricted from associating with political parties in other contexts. As they campaign for the general election, judicial primary winners may continue to identify with their political parties, and political parties may campaign and advertise on candidates’ behalf. Political parties may even communicate with voters outside of polling places on the day of the general election and distribute sample ballots identifying their preferred candidates, which voters may take with them into the voting booth. Thus, judicial candidates in Ohio may affiliate with political parties — and in fact must do so in the primaries — throughout the course of the general election. But they do not appear on the general-election ballot with their party designations next to their names.

Ohio’s justification for this two-tiered approach is that it wishes to minimize reliance on political parties in judicial elections while still establishing a formal role for political parties in the nomination process. Ohio explains that its system “leaves to political parties the right to place candidates for judicial offices in nomination” while also “withdrawing] candidates for judicial offices from partisan politics” in recognition of the fact that judges “can serve no party, promulgate no partisan theories of government, encourage no partisan economic measures.” State ex rel. Weinberger v. Miller, 87 Ohio St. 12, 99 N.E. 1078, 1085 (1912). While Ohio has been electing its judges under this system since 1851, id. at 1086, few other states employ a similar method. 1

On July 28, 2010, the plaintiffs filed a complaint in the district court against various Ohio state officials, alleging that § 3505.04 violates their First and Fourteenth Amendment rights to freedom of expression and association. The plaintiffs also requested a temporary restraining order and preliminary injunction that would permit judicial candidates to list their political party affiliations on the 2010 general election ballot. The Ohio Attorney General later intervened to defend the statute.

At the hearing for the temporary restraining order, testimony established that many voters are uninformed about judicial races. Additionally, many voters abstain from voting in nonpartisan judicial races despite having cast a vote in other races on the same ballot, a phenomenon known as “voter drop off.” For example, in the 2008 general election, about one percent of voters failed to vote for President, but approximately thirty percent did not cast a vote in a race for state Supreme Court Justice. Overall, voter drop off in Ohio judicial elections ranged between 20-32% in the 1980s, 1990s, and 2000s. Evidence also established that voter drop off is greater in nonpartisan judicial races than in other “low-information” partisan races — that is, races in which voters are just as likely as in judicial races to be uninformed about the candidates. An expert witness concluded that voter drop off in Ohio’s judicial races is therefore caused at least in part by the elections’ nonpartisan nature.

*334 The district court denied the plaintiffs’ request for a temporary restraining order and preliminary injunction. We affirmed the district court’s order. Ohio Council 8 Am. Fed’n of State, Cty. & Mun. Emps., AFL-CIO v. Brunner, 462 Fed.Appx. 557, 559 (6th Cir.2012) (per curiam). While the appeal of the denial of the preliminary injunction was still pending, Ohio filed a motion for summary judgment in the district court. Following our affirmance of its order denying the preliminary injunction, the district court granted Ohio’s motion for summary judgment. Ohio Council 8 Am. Fed’n of State, Cty. & Mun. Emps., AFL-CIO v. Brunner, 24 F.Supp.3d 680, 683 (S.D.Ohio 2014).

Employing the “flexible” Anderson-Burdick balancing test, the district court first concluded that § 3505.04 does not impose a severe burden on the plaintiffs’ First and Fourteenth Amendment rights. Brunner, 24 F.Supp.3d at 686-98 (citing Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)). The district court then reasoned that any burden that the statute does place on the plaintiffs is justified “if the statute serves an important regulatory interest of the State.” Id. at 698. Ohio claimed as its only interest “minimizing partisanship in judicial elections.” Id. The district court described Ohio’s “Solomonic approach” to carrying out its stated interest as “half-hearted at best,” noting that Ohio “steeps the judicial selection process in partisan politics everywhere but in the voting booth on election day.” Id. at 699-701.

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814 F.3d 329, 2016 FED App. 0034P, 2016 U.S. App. LEXIS 2338, 2016 WL 537398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-council-8-american-federation-of-state-v-husted-ca6-2016.