On November 13, 2013, Judge Michael H. Watson of the U.S. District Court for the Southern District of Ohio issued a preliminary injunction to bar the enforcement of Ohio’s residency requirement for nominating and ballot issue circulators. The new petition circulation laws passed as part of Senate Bill 47, which was signed by Governor Kasich earlier this year and went into effect in June. Other reforms to Ohio’s petition process enacted in SB 47 remain in effect. (Read our bulletin from March 2013 for more on these reforms.)
SB 47, introduced by Senator Bill Seitz (R-Cincinnati), revises Ohio’s election law in a number of ways, including a prohibition against using non-residents to circulate initiative petitions and nominating petitions, other than a nominating petition for presidential electors. The challenge was raised in two separate cases: Citizens in Charge, Inc. v. Husted and Libertarian Party of Ohio v. Husted. Because both cases involve a challenge to the same law and turn on the same legal questions, the court considered their motions for a preliminary injunction together.
In granting the preliminary injunction to the Plaintiffs, the court concluded that the Plaintiffs have a strong likelihood of success on the merits of the case, based on the controlling cases Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) and Nadar v. Blackwell, 545 F.3d 459 (2008). In both cases, restrictions on petition circulators were struck down as failing to meet the strict scrutiny standard because the statutes were not narrowly tailored to serve compelling state interest. While the court noted that there is a compelling interest for the state to prevent election fraud, the law as written does not serve this interest because there are less restrictive means available to combat election fraud.
The court rejected arguments from the state that the residency requirement places only a minimal burden on the Plaintiffs’ protected political speech, finding that Plaintiffs presented evidence of the added cost to find and train in-state circulators. Additionally, the court acknowledged that a ruling by the U.S. Supreme Court in Judd v. Libertarian Party of Va. , S. Ct. No. 13-231 could resolve the split on the issue between various federal courts and may overturn Nadar, the controlling case from the federal circuit, which includes Ohio. In deciding to proceed with the case at hand, the court noted that, not only has Judd not yet been granted certiorari, but “the public welfare…is best served by protecting the First Amendment rights of the Plaintiffs and others similarly situated” sooner than the U.S. Supreme Court might act.
As a result of the court’s ruling, the state cannot enforce the Ohio law prohibiting out-of-state circulators until a final ruling from the court on the matter. Meanwhile, other provisions of SB 47 remain in effect.