William T. Schmitt; Chad Thompson; Debbie Blewitt, Plaintiffs-Appellees,
Frank LaRose, Ohio Secretary of State, Defendant-Appellant.
Argued: June 26, 2019
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:18-cv-00966-Edmund A.
Sargus, Jr., Chief District Judge.
Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant.
R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio, for
Benjamin M. Flowers, Michael J. Hendershot, Stephen P.
Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,
R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio, Mark
G. Kafantaris, Columbus, Ohio, for Appellees.
Before: CLAY, WHITE, and BUSH, Circuit Judges.
J., delivered the opinion of the court in which CLAY, J.,
joined, and BUSH, J., joined in part.
N. WHITE, CIRCUIT JUDGE.
William T. Schmitt and Chad Thompson submitted proposed
ballot initiatives to the Portage County Board of Elections
that would effectively decriminalize marijuana possession in
the Ohio villages of Garrettsville and Windham. The Board
declined to certify the proposed initiatives after concluding
that the initiatives fell outside the scope of the
municipalities' legislative authority. Plaintiffs then
brought this action asserting that the statutes governing
Ohio's municipal ballot-initiative process impose a prior
restraint on their political speech, violating their rights
under the First and Fourteenth Amendments. The district court
issued a permanent injunction against the Portage County
Board of Elections and Defendant Frank LaRose, in his
official capacity as the Secretary of State of Ohio,
prohibiting the enforcement of the statutes in any manner
that failed to provide adequate judicial review. Defendant
LaRose now appeals.
the Ohio statutes at issue do not violate Plaintiffs'
First or Fourteenth Amendment rights, we
REVERSE the district court's order and
VACATE the permanent injunction.
Ohio Constitution reserves the power of legislation by
initiative "to the people of each municipality on all
questions which such municipalities may now or hereafter be
authorized by law to control by legislative action."
Ohio Const. art. II, § 1f. "Because citizens of a
municipality cannot exercise [initiative] powers greater than
what the [Ohio] Constitution affords," an initiative may
only propose "legislative action," as opposed to
"administrative action." State ex rel. Ebersole
v. Del. Cty. Bd. of Elections, 20 N.E.3d 678, 684 (Ohio
2014) (per curiam). "The test for determining whether an
action is legislative or administrative is whether the action
taken is one enacting a law, ordinance, or regulation, or
executing a law, ordinance or regulation already in
existence." Id. (citation and internal
quotation marks omitted).
Ohio law, "[e]lection officials serve as gatekeepers, to
ensure that only those measures that actually constitute
initiatives or referenda are placed on the ballot."
State ex rel. Walker v. Husted, 43 N.E.3d 419, 423
(Ohio 2015) (per curiam). Specifically, Ohio Revised Code
(O.R.C.) § 3501.11(K) requires county boards of
elections to "[r]eview, examine, and certify the
sufficiency and validity of petitions," and to
"[e]xamine each initiative petition . . . to determine
whether the petition falls within the scope of authority to
enact via initiative and whether the petition satisfies the
statutory prerequisites to place the issue on the ballot as
described [by Ohio law]." O.R.C. § 3501.38(M)(1)
further provides that, "[u]pon receiving an initiative
petition," the relevant board of elections "shall
examine the petition to determine":
Whether the petition falls within the scope of a municipal
political subdivision's authority to enact via
initiative, including, if applicable, the limitations placed
by Sections 3 and 7 of Article XVIII of the Ohio Constitution
on the authority of municipal corporations to adopt local
police, sanitary, and other similar regulations as are not in
conflict with general laws, and whether the petition
satisfies the statutory prerequisites to place the issue on
the ballot. The petition shall be invalid if any portion of
the petition is not within the initiative power[.]
Id. § 3501.38(M)(1)(a). If a petition
"falls outside the scope of authority to enact via
initiative or does not satisfy the statutory prerequisites to
place the issue on the ballot," neither the board of
elections nor the Ohio Secretary of State may accept the
initiative. Id. § 3501.39(A)(3). The
ballot-initiative statutes do not set forth the
legislative-administrative distinction. However, the Ohio
Supreme Court has explained that, "[b]ecause [an
initiative] on an administrative matter is a legal nullity,
boards of elections have not only the discretion but an
affirmative duty to keep such items off the ballot."
Walker, 43 N.E.3d at 423 (citation omitted).
"It necessarily follows that the boards have discretion
to determine which actions are administrative and which are
board of elections declines to place an initiative on the
ballot on the basis that it proposes an administrative
action, the proponent has no statutory right to immediate
judicial review. Instead, the proponent must seek a writ of
mandamus in Ohio state court requiring the board of elections
to put the initiative on the ballot. To show entitlement to
mandamus relief, the petitioner must prove by clear and
convincing evidence: "(1) a clear legal right to the
requested relief, (2) a clear legal duty on the part of the
board members to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law." State ex
rel. Bolzenius v. Preisse, 119 N.E.3d 358, 360 (Ohio
2018) (per curiam) (citation omitted). In reviewing a
decision by a board of elections, an Ohio court may only
issue the writ if the board members "engaged in fraud or
corruption, abused their discretion, or acted in clear
disregard of applicable legal provisions." Id.
Typically, the "proximity of the [next] election"
satisfies the requirement that there be no adequate remedy in
the ordinary course of the law. See, e.g., State
ex rel. Harris v. Rubino, 119 N.E.3d 1238, 1246 (Ohio
2018); Ebersole, 20 N.E. at 491.
early 2018, Plaintiffs William Schmitt and Chad Thompson
submitted two proposed ballot initiatives to the Portage
County Board of Elections (the Board). The initiatives
eliminated criminal penalties associated with possession of
marijuana in Garrettsville and Windham, two villages within
Portage County, by abolishing criminal fines, court costs,
and consequences related to driver's licenses. Although
the proposed initiatives met Ohio's statutory
prerequisites-each addressed only a single subject and
contained the requisite number of signatures-the Board
declined to certify the petitions. In an August 21, 2018
email to Plaintiffs, a representative of the Board explained
that the initiatives were rejected because the Board deemed
them administrative, rather than legislative:
Reviewing the language in the proposals presented by the
Village of Garrettsville and the Village of Windham, the $0
fine and no license consequences are administrative in
nature. The $0 court costs is administrative in nature and is
an impingement on the judicial function by a legislature.
Accordingly, as the Garrettsville Village and Windham Village
petitions deal with subject matter that is not subject to the
initiative process, the Board of Elections, in its
discretion, has chosen not to certify these issues to the
(R. 1-4, PID 35.)
than petitioning for mandamus relief, Plaintiffs filed this
action, bringing facial and as-applied challenges to the Ohio
ballot-initiative statutes under 42 U.S.C. § 1983 and
the First and Fourteenth Amendments to the United States
Constitution. Plaintiffs allege that the statutes impose a
prior restraint on their protected political speech, and that
the ballot-initiative process must therefore comply with the
procedural safeguards set forth in Freedman v.
Maryland, 380 U.S. 51 (1965). Because the process fails
to provide de novo judicial review of a board's decision,
Plaintiffs argued, it fails to satisfy the Freedman
requirements. Plaintiffs sought a temporary restraining order
and preliminary injunction against the Portage County Board
of Elections members Craig Stephens, Patricia Nelson, Doria
Daniels, and Elayne Cross, as well as then-Ohio Secretary of
State Jon Husted.
hearing, the district court issued a temporary restraining
order directing the Ohio Secretary of State and the Portage
County Board of Elections to place both initiatives on the
ballot for the November 2018 election. Schmitt v.
Husted, 341 F.Supp.3d 784 (S.D. Ohio 2018). Applying the
balancing test set forth in Anderson v. Celebrezze,
460 U.S. 780 (1983), and Burdick v. Takushi, 504
U.S. 428 (1992), the district court determined that the
Plaintiffs' right to ballot access was impermissibly
burdened by the statutory framework:
Recognizing [the state's interest in regulating
elections], the Court finds no legitimate state interests in
preventing an adequate legal remedy for petitioners denied
ballot access by a board of elections. While the availability
of mandamus relief is essentially a judicially imposed remedy
when the law does not otherwise provide one, the high burden
on petitioners to prove entitlement to an extraordinary
remedy is no substitute for de novo review of the denial of a
First Amendment right.
Schmitt, 341 F.Supp.3d at 791. The district court
later converted the temporary restraining order to a
preliminary injunction that would expire the day after the
election. On election day, the two proposed ordinances met
different fates; the Windham initiative passed by a vote of
237 to 206, but the Garrettsville initiative failed 471 to
the election, the district court ordered additional briefing
on Plaintiffs' facial challenge. Plaintiffs maintained that
the ballot-initiative statutes constituted a prior restraint
in violation of the First Amendment "because [they]
vest discretion in local election officials to select
initiatives for ballots without providing timely and
meaningful judicial review." (R. 32, PID 240.)
Plaintiffs alternatively argued that the statutes authorized
content-based review by local boards of elections and were
therefore subject to strict scrutiny. Ohio, on the other
hand, argued that the ballot-initiative statutes were not
susceptible to a First Amendment challenge because they
merely set forth the process by which legislation is made,
and therefore did not implicate any expressive interests.
Ohio also argued that even if the First Amendment is
implicated, the state's interests in regulating
elections, reducing voter confusion, and simplifying the
ballot all justify the alleged infringement on
Plaintiffs' constitutionally protected interests.
district court found that Plaintiffs were entitled to de novo
review of the denial of their ballot initiative, and issued a
permanent injunction barring the Ohio Secretary of State
"from enforcing the gatekeeper function in any manner
that fails to provide a constitutionally sufficient review
process to a party aggrieved by the rejection of an
initiative petition." Schmitt v. LaRose, 2019
WL 1599040, at *2 (S.D. Ohio Apr. 15, 2019). Notably, the
district court did not analyze Plaintiffs' claim under
the First Amendment, but rather under procedural due process.
This approach had no basis in the pleadings or arguments
below; the complaint did not separately state a procedural
due process claim, and the parties' supplemental briefing
did not invoke due process. On appeal, neither party defends
the district court's analysis in its order granting the
permanent injunction. The State disputes the merits of the
procedural due process claim, and Plaintiffs insist their
claim is founded only on First Amendment law. Because
Plaintiffs did not raise a procedural due process argument
below, and did not address it in their appellate briefing, we
would ordinarily deem the issue waived. See Watson v.