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Morrison v. Colley

September 12, 2006

CHARLES R. MORRISON, ET AL., PLAINTIFFS,
v.
MICHAEL F. COLLEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Smith

Magistrate Judge Kemp

OPINION AND ORDER

Plaintiffs Charles R. Morrison, Donald E. Eckhart, and Alexander Smith (hereinafter "Plaintiffs") have filed a Motion for Preliminary and Permanent Injunction against Defendants Michael F. Colley, William A. Anthony, Carolyn C. Petree, Kimberly E. Marinello, and the Franklin County Board of Elections (collectively "FCBOE") seeking to enjoin Defendants from enforcing Ohio's election statute against Plaintiff Morrison and to certify him as a candidate for the November 2006 election for the office of United States Representative for the 15th Congressional District in Ohio. For the reasons that follow, the Court denies Plaintiffs' Motion for Preliminary and Permanent Injunction.

I. BACKGROUND

Plaintiff Charles R. Morrison ("Morrison") is an individual citizen of Ohio. Plaintiffs Donald Eckhart and Alexander Smith are individual citizens and qualified electors who reside in Franklin County, Ohio. Mr. Morrison has been a member of the Republican party for many years. He has been involved in various Republican clubs and other Republican-oriented activities over the years. In addition, Mr. Morrison unsuccessfully sought the Republican nomination to Congress in 2000, 2002, and 2004. Morrison admits that he was a Republican and that others most likely considered him a Republican as well.

On or about December 14, 2005, Mr. Morrison began circulating petitions seeking election to the governing board of the local Republican party, the Madison County Republican Party Central Committee. On or about February 7, 2006, Mr. Morrison began circulating petitions seeking election to the governing board of the state party, the Republican Party State Central Committee. In both of these petitions, Morrison stated that he was a member of the Republican party. Specifically, the petitions read: "I, Charles Morrison, declare under penalty of election falsification that I am a qualified elector of the State of Ohio and reside at the address appearing below my signature; that I am a member of the Republican Party... ." Both the state and local central committee petitions were filed on February 17, 2006. Morrison was ultimately certified as a candidate for both these positions and appeared on the May 2, 2006 Republican primary ballot as a candidate for office.

At essentially the same time Morrison was circulating petitions for the state and local Republican Party Central Committees, he was also circulating petitions to run as an independent for Representative for the 15th Congressional District. In fact, Morrison answered in the affirmative when asked, "So you were asking people to sign, representing yourself as a Republican and as an Independent at the same time?" (FCBOE hearing tr. at 43). Around the same time, Morrison was also advertising, campaigning and holding himself out to the public as a Republican. (FCBOE hearing tr. at 43).

While testifying before the FCBOE, Morrison described his procedure in circulating the petition to be an Independent candidate for Congress. Morrison collected approximately 2,316 signatures, 2,000 of which, he collected himself. In collecting these signatures, Morrison "walked up to each one of them, stuck out my hand, shook their hand, and in the processed [sic] say, 'Hi, I'm Charlie Morrison. I'm running as an Independent for Congress. I need about 2,000 signatures to get my name on the ballot, and I wonder if you could help me out and sign my petition.'" (FCBOE hearing tr. at 39).

In addition to holding himself out to the public as a Republican, Morrison also established a campaign committee, "Charlie Morrison for Congress." To do this, he had to complete Federal Election Committee Form 1, statement of organization, which included designating a party affiliation. Morrison's campaign committee is designated Republican and he has not changed this, however, he did say he would change it once he became a candidate. (FCBOE hearing tr. at 45-46). Mr. Morrison has solicited contributions for this lawsuit and is taking those funds in through that committee. (FCBOE hearing tr. at 46).

On May 1, 2006, the day before the primary election, Mr. Morrison filed a Statement of Candidacy and Nominating Petition*fn1 (the "Petition") with the Franklin County Board of Elections to run as an independent candidate for Representative to Congress for the 15th Congressional District. The Petition contained the requisite number of signatures of qualified electors and contained a declaration signed by Morrison that he is a qualified elector and he desires to be a candidate for election to the office of Representative. Then, on May 2, 2006, Mr. Morrison appeared at his local voting location and requested, received, and voted a Republican party ballot.

Mr. Morrison was unsuccessful in securing a nomination for either the local or state Republican party central committee positions. His political ambitions, however, were still alive because he also submitted the petition to run as a independent candidate for Representative for the 15th Congressional District.

After a petition is submitted to the FCBOE, it is the practice of the Board to verify the signatures on the petition for sufficiency and also to verify that the form of the petition is valid.*fn2 It is not, however, the practice of the FCBOE to check the voting history of the candidate. The FCBOE essentially relies on the honesty of the candidates that they satisfy the requirements for the office they are seeking and that they have truthfully completed the declaration of candidacy. However, there is a check on this policy, allowing for protests to be filed challenging the qualifications of the candidate.

The FCBOE determined that Mr. Morrison's petition contained a sufficient number of signatures and was otherwise valid. On May 22, 2006, the Board was scheduled to meet to consider Mr. Morrison's candidacy. However, that same day, three qualified electors from the 15th Congressional District filed a written protest challenging Mr. Morrison's candidacy pursuant to Ohio Revised Code Section 3501.39. The protestors were the chairmen of the Republican Party of each of the counties that comprise the 15th Congressional District. The protestors argue that Morrison was not an independent candidate as defined in Ohio Revised Code section 3501.01(I), which provides: an "independent candidate is any candidate who claims not to be affiliated with a political party, and whose name has been certified on the office-type ballot at a general or special election through the filing of a statement of candidacy and nominating petition, as prescribed in section 3513.257 of the Revised Code.

On June 21, 2006, the FCBOE held a hearing on the protest regarding Mr. Morrison's candidacy. Each side was given the opportunity to present evidence, including live testimony, as well as present written and oral arguments. The protestors argued that because Morrison appeared on the ballot as a candidate for local and state Republican central committee prior to and on May 2, 2006, and based on his voting as a Republican in the past, including May 2, 2006, which occurred after submitting his petition as an independent, that he is not an independent candidate.

Mr. Morrison, however, argued at the hearing that the definition of independent candidate is not a substantive requirement that must be satisfied before a candidate may be certified to the ballot, but is merely a description of a candidate who satisfied the petition requirement set forth in the statute. In the alternative, Morrison argued that even if the first part of the definition is a substantive requirement, he satisfied it in his sworn statement at the hearing that he is "not affiliated with a political party."

At the conclusion of the hearing, the FCBOE tied 2-2 on whether to certify Mr. Morrison to the ballot. Then, pursuant to Ohio law, the Motion to certify Morrison to the ballot was submitted to the Secretary of State to break the tie. As part of the tie-breaking process, the two members of the Board who voted for certifying Morrison to the ballot submitted a letter explaining their reasoning to the Secretary of State and the other two members who voted against certification also submitted a letter. In a letter to the FCBOE dated July 14, 2006, Assistant Secretary of State Monty Lobb broke the tie, voting against certification. The letter set forth the Secretary's interpretation and construction of the Statute and his rationale for voting against certifying Morrison to the ballot. Based upon the rulings by the Board and the Secretary of State, Morrison was not certified as an independent candidate for Representative to Congress for the 15th Congressional District.

Morrison had therefore run out of traditional options to have his name on the ballot, so he initiated this suit seeking to enjoin Defendants from enforcing Ohio's election statue against Plaintiff Morrison and to certify him as a candidate for the November 2006 election for the office of United States Representative for the 15th Congressional District in Ohio.

Plaintiffs assert that Ohio Revised Code Section 3513.257, which sets forth the requirements for a person desiring to become an independent candidate, is unconstitutionally vague, in violation of Plaintiffs' due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and also that it burdens Plaintiffs' rights to the freedom of speech and association, and to the equal protection of the laws, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. II. STANDARD OF REVIEW The Court must consider four factors in determining whether to issue a preliminary injunction and/or permanent injunction: (1) whether the movant has a strong or substantial likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the relief requested; (3) whether issuance of the injunction will cause substantial harm to others; and (4) whether the public interest will be served by issuance of the injunction. Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004). The factors are not prerequisites; rather, they must be balanced. Capobianco, D.C. v. Summers, 377 F.3d 559, 561 (6th Cir. 2004).

III. DISCUSSION

A. Likelihood of Success on the Merits

Plaintiffs bring their claim under 42 U.S.C. § 1983, arguing that Ohio Revised Code Section 3513.257 violates Plaintiffs' First and Fourteenth Amendment rights to freedom of speech and association, due process and the equal protection of the laws.

Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

A § 1983 claim must satisfy two elements: "1) the deprivation of a right secured by the Constitution or laws of the United States and 2) the deprivation was caused by a person acting under color of state law." Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995).

1. Vagueness

Plaintiffs claim that O.R.C. § 3513.257 is void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment.*fn3 Plaintiffs maintain that the statute is unconstitutionally vague because: (1) it fails to specify what a person desiring to become an independent candidate must do to be certified to the ballot; and (2) because it lacks objective standards for enforcement. Pls' Mot. at 26. This Court disagrees.

The Supreme Court, in Grayned v. City of Rockford, 408 U.S. 104 (1972), enunciated standards for evaluating a vagueness claim: "[f]irst . . . we insist that the laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited . . . [s]econd, laws must provide explicit standards for those who apply them." Id. at 109. The Supreme Court, in Hynes v. Mayor of Oradell, 425 U.S. 610, 621-22 (1976), added the requirement that the applicable coverage of the statute must be clear.

The degree of vagueness that the Constitution tolerates "depends in part on the nature of the enactment." Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). In deciding void-for-vagueness challenges, the courts have created a sliding scale to determine the applicable degree of scrutiny. The Supreme court has "expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Id. at 498-99 (footnote omitted). For example, economic legislation "is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action." Id. at 498 (footnotes omitted).

The Sixth Circuit, in Kay v. Austin, 621 F.2d 809 (6th Cir. 1980), in considering whether a ballot access statute was void for vagueness, articulated the applicable degree of scrutiny for ballot access statutes: "although the right of a candidate to ballot access may not necessarily be entitled to the rigorous standard of review given disenfranchisement cases, restrictions on that access must be justified by important state interests at a minimum." Id. at 811 (internal citations omitted). The Kay Court, in ...


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