Citizens in Charge, Inc. v. Jon Husted , 810 F.3d 437 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0013p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CITIZENS IN CHARGE, INC.; OHIOANS FOR ┐
WORKPLACE FREEDOM; CHRISTOPHER LITTLETON; │
CINCINNATI FOR PENSION REFORM, │
│ No. 15-3447
Plaintiffs-Appellees,
│
>
│
v.
│
│
JON HUSTED, Ohio Secretary of State, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:13-cv-00935—Michael H. Watson, District Judge.
Argued: December 10, 2015
Decided and Filed: January 19, 2016
Before: COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.*
_________________
COUNSEL
ARGUED: Ryan L. Richardson, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. Maurice A. Thompson, 1851 CENTER FOR
CONSTITUTIONAL LAW, Columbus, Ohio, for Appellees. ON BRIEF: Ryan L. Richardson,
Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. Maurice A. Thompson, 1851 CENTER FOR CONSTITUTIONAL LAW, Columbus,
Ohio, for Appellees.
*
The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan,
sitting by designation.
1
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_________________
OPINION
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SUTTON, Circuit Judge. Ohio, like many States, has an initiative process that permits
individuals or groups to propose new legislation and constitutional amendments. See Ohio
Const. art. II, §§ 1a, 1b. If an initiative proposal secures enough signatures, it earns a spot on the
next ballot, where Ohio voters may accept or reject it. Id. The catch is that state law requires all
signature gatherers to be Ohio residents. See Ohio Rev. Code § 3503.06(C)(1)(a). Plaintiffs
challenged the residency requirement on First (and Fourteenth) Amendment grounds, claiming
that our court’s invalidation of a prior Ohio statute in this area required the invalidation of this
one. See Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008). The plaintiffs sought to enjoin
enforcement of the new law and to make the Ohio Secretary of State personally liable for several
thousand dollars for enforcing it. The district court declared the law unconstitutional, enjoined
enforcement of it, and denied the Secretary’s qualified-immunity defense. In this interlocutory
appeal, the Secretary challenges the qualified-immunity ruling but not the injunction (or the
ruling of invalidity that goes with it). Because the Ohio legislature made several changes to
these signature-gathering requirements after Nader and because the Secretary had no clearly
established duty to decline enforcement of this properly enacted and presumptively constitutional
statute, we reverse.
I.
The Ohio General Assembly enacted this provision in 2013. It says: “Except for a
nominating petition for presidential electors, no person shall be entitled to circulate any petition
unless the person is a resident of this state and is at least eighteen years of age.” Ohio Rev. Code
§ 3503.06(C)(1)(a). Shortly after the provision took effect, counsel for three non-profit
organizations wrote to Secretary of State Jon Husted, asking whether he planned to “reject[]
petitions where the circulator is domiciled in a state other than Ohio[.]” R. 1-3 at 6. “While a
court may ultimately find this law unconstitutional,” Secretary Husted responded, “that
determination is a decision for the judicial branch, not the Secretary of State. As a result, this
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office and county boards of election will implement this law like any other until such time as the
legislature acts to make a statutory change or a court directs otherwise.” Id. at 8.
At that point, one of the non-profit groups hired a firm to help gather signatures for an
initiative petition, paying a higher-than-usual fee to ensure that the firm hired in-state signature
gatherers. Then all three non-profit organizations, along with one of their members, sued
Secretary Husted in federal court. They sought a declaration that the petition-circulator
residency requirement was unconstitutional, an injunction prohibiting its enforcement, and
damages against Husted “as compensation for extra petition circulation charges.” R. 1 at 15.
The Attorney General intervened to defend the law’s constitutionality on behalf of the State, and
Husted argued that qualified immunity protected him from the plaintiffs’ damages claim. The
district court saw things differently. It granted the plaintiffs a permanent injunction and denied
Husted’s qualified-immunity motion. On appeal, Husted challenges the qualified-immunity
ruling but not the injunction.
II.
The qualified-immunity standard is a familiar one. The doctrine “shield[s]” public
officials from money-damages liability if “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The standard balances competing considerations: At one
end, damages actions may be “the only realistic avenue for vindication of constitutional
guarantees”; at the other end, damages actions “frequently run against the innocent as well as the
guilty—at a cost not only to the defendant officials, but to society as a whole.” Id. at 814.
Public officials thus are eligible for qualified immunity if (1) they did not violate any
constitutional guarantees or (2) the guarantee, even if violated, was not “clearly established” at
the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). Both
inquiries are “objective,” as they turn on what the law is today and whether it was clearly
established at the time of the challenged action. Harlow, 457 U.S. at 818–19.
No. 15-3447 Citizens in Charge, et al. v. Husted Page 4
A.
Constitutional violation? At this stage in the case, neither the Attorney General nor the
Secretary claims that the residency requirement satisfies the First Amendment. They instead
maintain that the Secretary never enforced the statute in a way that caused the plaintiffs any
damages. In response to an inquiry from the plaintiffs, Secretary Husted said that he would
enforce the statute until directed by a court to do otherwise. Because the plaintiffs thereafter
obtained an injunction against enforcement of the statute, it is difficult to understand how they
can blame the Secretary for any costs incurred by hiring in-state signature gatherers. If anything,
Husted’s letter told the plaintiffs how to avoid incurring the costs of compliance with the statute:
file a lawsuit to enjoin its enforcement. That would have worked just fine, as later events
confirmed. In response to the lawsuit, the district court declared the statute invalid, the court
enjoined enforcement of the statute, and the Secretary opted not to appeal that part of the court’s
decision.
The plaintiffs nonetheless chose to incur costs based on hiring resident petition
circulators before filing the lawsuit. They of course are free to presume the constitutionality of a
statute (many people do) and incur costs based on that assumption. What is not clear is whether
that means the Secretary of State caused them to suffer damages by violating their constitutional
rights in this setting. Be that as it may, we need not resolve the case on this ground—a ground
that was not fully engaged by the parties below and thus not addressed by the district court. Any
such rights, as it turns out, were not clearly established at the time Secretary Husted wrote his
letter to the plaintiffs.
B.
Clearly established right? At the time Husted acted, no court had declared this residency
requirement unconstitutional and he acted reasonably in saying he would enforce it. When
public officials implement validly enacted state laws that no court has invalidated, their conduct
typically satisfies the core inquiry—the “objective reasonableness of an official’s conduct”—that
the immunity doctrine was designed to test. Harlow, 457 U.S. at 818. State legislators swear to
uphold the state and federal constitutions, see U.S. Const. art. VI, cl. 3; Ohio Const. art. XV, § 7,
and a presumption of constitutionality accompanies their enactments, see Heller v. Doe, 509 U.S.
No. 15-3447 Citizens in Charge, et al. v. Husted Page 5
312, 320 (1993)—a presumption on which executive officials generally may depend in enforcing
the legislature’s handiwork. State law encourages such reliance, with the Ohio Supreme Court
noting with a touch of overstatement (more on that later) that “[t]he secretary of state is not
vested with any jurisdiction to determine judicial questions dealing with the constitutionality of
any law.” Maloney v. Rhodes, 345 N.E.2d 407, 410 (Ohio 1976) (quotation omitted). Because
Secretary Husted acted in the face of legislative action (a duly enacted, presumptively
constitutional law) and judicial inaction (the absence of an on-point decision making the law
unconstitutional), he did not violate clearly established law or otherwise act unreasonably.
Caselaw validates this conclusion. The Supreme Court tells us that public officials
should generally receive qualified immunity when enforcing properly enacted laws. See
Michigan v. DeFillippo, 443 U.S. 31 (1979). In DeFillippo, the Court addressed what came to
be known as the Fourth Amendment’s good-faith exception, which requires the same “objective
reasonableness” showing that the qualified-immunity inquiry demands. See Groh v. Ramirez,
540 U.S. 551, 565 n.8 (2004); United States v. Leon, 468 U.S. 897, 911–12 (1984). The Court
noted that “[t]he enactment of a law forecloses speculation by enforcement officers concerning
its constitutionality—with the possible exception of a law so grossly and fragrantly
unconstitutional that any person of reasonable prudence would be bound to see its flaws.”
DeFillippo, 443 U.S. at 38. The Court was more explicit in Pierson v. Ray, 386 U.S. 547 (1967).
“A policeman’s lot is not so unhappy,” it reasoned, “that he must choose between being charged
with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in
damages if he does.” Id. at 555.
The Court’s deeds have matched its words. So far as the parties’ research has revealed
and so far as our own research has uncovered, the Supreme Court has never denied qualified
immunity to a public official who enforced a properly enacted statute that no court had
invalidated. This indeed would seem to be the paradigmatic way of showing objectively
reasonable conduct by a public official.
Our court has adopted similar reasoning in granting qualified immunity to public officials
who enforced validly enacted laws. See Risbridger v. Connelly, 275 F.3d 565, 573–74 (6th Cir.
2002); Hanna v. Drobnick, 514 F.2d 393, 397 (6th Cir. 1975), repudiated on other grounds by
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Thomas v. Shipka, 818 F.2d 496 (6th Cir. 1987); cf. Wolfel v. Morris, 972 F.2d 712, 719–20 (6th
Cir. 1992). Other circuits have done the same, treating the fact that an officer enforced a
presumptively constitutional law as creating “a heavy presumption in favor of qualified
immunity.” Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 104 (2d Cir. 2003); see
Swanson v. Powers, 937 F.2d 965, 968–69 (4th Cir. 1991); Doe v. Heck, 327 F.3d 492, 516, 525,
527 (7th Cir. 2003); Grossman v. City of Portland, 33 F.3d 1200, 1210 (9th Cir. 1994); Cooper
v. Dillon, 403 F.3d 1208, 1220 (11th Cir. 2005); cf. Lederman v. United States, 291 F.3d 36, 47
(D.C. Cir. 2002).
Any other approach would place risky pressures on public officials to second-guess
legislative decisions. When faced with a statute of questionable validity, executive actors would
find themselves forced to choose between applying the law (and subjecting themselves to
monetary liability) or declining to do so (and subjecting themselves to a mandamus lawsuit).
When personal liability is added to the mix, one could well imagine the balance tipping toward
non-enforcement in close cases, all the while sacrificing the legislature’s considered judgments
about a statute’s constitutionality. That is not a recipe for good government or for encouraging
public officials to act independently.
None of this should be taken to mean that state officials must enforce duly enacted
statutes. Just like state legislators and judges, state executive-branch officials swear their own
“Oath or Affirmation[] to support th[e] [federal] Constitution,” U.S. Const. art. VI, cl. 3; see 4
U.S.C. § 101, and their state constitution, see Ohio Const. art. XV, § 7. The Supremacy Clause
“invalidates state laws that interfere with, or are contrary to, federal law.” Hillsborough County
v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985) (quotation omitted); see U.S. Const. art
VI, cl. 2. Executive officials have an “independent obligation[] to interpret and uphold the
Constitution,” Boumediene v. Bush, 553 U.S. 723, 798 (2008), and they may conclude in good
faith that a particular statute is unenforceable. In that sense, the Ohio Supreme Court
overreached when it said that “the question of [a law’s] constitutionality . . . is of a judicial
character, not executive,” and that the Secretary of State lacks “jurisdiction to determine judicial
questions dealing with the constitutionality of any law.” Maloney, 345 N.E.2d at 410. Maloney
involved the duty under the Ohio Constitution of the Secretary of State to file duly enacted
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legislation. Id. That ruling of course does not insulate the Secretary of State from his duty under
the United States Constitution to obey federal law. That is just what Secretary Husted’s
predecessor, Jennifer Brunner, did when she declined to enforce an earlier version of today’s
statute based on her interpretation of federal law. What Secretary Brunner may do, however,
does not prove what Secretary Husted must do.
The enforcement of a presumptively valid law, it is also true, does not automatically
entitle officials to qualified immunity. Some laws may be “so grossly and flagrantly
unconstitutional” that any reasonable officer would decline to enforce them. DeFillippo, 443
U.S. at 38. This exception means that, contrary to plaintiffs’ concerns, the Secretary would not
receive qualified immunity for enforcing an “involuntary servitude” law or one that required
“separate but equal racial accommodations,” even if such laws somehow were enacted by the
Ohio General Assembly. Appellees’ Br. 39. (As it turns out, the Ohio General Assembly’s
record in this area is not beyond reproach. After ratifying the Fourteenth Amendment in 1867, it
voted to undo its ratification vote in 1868, though it re-ratified the amendment in 2003. See
Gabriel J. Chin, Ratifying the Fourteenth Amendment in Ohio, 28 W. New Eng. L. Rev. 179,
179–81 (2006).)
Today’s election statute is not a “grossly and flagrantly unconstitutional” law. At the
same time that the Tenth Circuit has invalidated residency requirements for initiative-petition
circulators, see Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1025–27, 1031 (10th Cir.
2008); Chandler v. City of Arvada, 292 F.3d 1236, 1238–44 (10th Cir. 2002), the Eighth Circuit
has upheld such a requirement, see Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616–
17 (8th Cir. 2001). Jaeger held that North Dakota’s residency restriction advanced the State’s
“compelling interest in preventing fraud” without “unduly restrict[ing] speech,” noting that non-
residents had “many alternative means . . . to communicate their views on initiative measures.”
Id. Whether our court would accept the Eighth Circuit’s reasoning if presented with the same
question matters not. What matters is that the existence of a circuit split by itself amply supports
Husted’s position that he could reasonably conclude that Ohio’s residency requirement was
constitutional. See Wilson v. Layne, 526 U.S. 603, 618 (1999). If judges can reasonably
No. 15-3447 Citizens in Charge, et al. v. Husted Page 8
disagree about the meaning of the Constitution, we should not punish public officials for
reasonably picking one side or the other of the debate.
Also supporting Husted is the nature of the multi-factor, interest-balancing test used to
evaluate residency requirements. The Supreme Court has repeatedly warned that, while “the
circulation of a petition involves . . . ‘core political speech,’” Meyer v. Grant, 486 U.S. 414, 421–
22 (1988), “no litmus-paper test . . . separate[s] valid ballot-access provisions from invalid
interactive speech restrictions,” Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182,
192 (1999) (quotation omitted); see Storer v. Brown, 415 U.S. 724, 730 (1974). The Court
typically proceeds by distinguishing regulations that impose “severe burdens” from those that
create “[l]esser burdens”; the former must survive strict scrutiny, while the latter “trigger less
exacting review.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); see
Burdick v. Takushi, 504 U.S. 428, 434 (1992). The distinction between “severe burdens” and
“lesser” ones is often murky, see Buckley, 525 U.S. at 207 (Thomas, J., concurring in the
judgment), and Husted could reasonably have determined (as the Eighth Circuit did, see Jaeger,
241 F.3d at 617) that the residency requirement did not impose a “severe burden” on petition
circulators. Even if Husted decided that strict scrutiny applied, he reasonably could have
concluded that the regulation survived it (perhaps relying on the Eighth Circuit’s statement that
residency requirements advance the State’s “compelling interest in preventing fraud,” id. at 616).
Courts generally accord public officials wide latitude (for qualified-immunity purposes) when
the constitutionality of their acts comes down to the subtleties of interest balancing and narrow
tailoring, especially when courts have reached different conclusions on the point. See Borucki v.
Ryan, 827 F.2d 836, 848 (1st Cir. 1987).
The plaintiffs respond that Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008), seals
Husted’s fate. True enough, that decision invalidated a prior version of this statute. But it does
not resolve today’s case. The prior statute read, “No person shall be entitled to . . . circulate any
declaration of candidacy or any nominating, initiative, referendum, or recall petition, unless the
person is registered as an elector and will have resided in the county and precinct where the
person is registered for at least thirty days at the time of the next election.” Id. at 473 (Boggs,
C.J., lead opinion) (quotation omitted). During the 2004 presidential election, the Ohio Secretary
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of State enforced this provision to deny ballot access to third-party candidate Ralph Nader,
because some of his petition circulators were not Ohio residents or registered voters. Id. at 465–
67. Nader sued the Secretary and, in the course of granting him qualified immunity, the three
opinions for the court held the residency and registration requirements unconstitutional. Id. at
473–78; id. at 478 (Moore, J., opinion for the court); id. at 478–79 (Clay, J., opinion for the
court). This decision, say the plaintiffs, should have alerted Husted that he could not enforce the
amended statute.
Nader leans in plaintiffs’ direction on the constitutional issue, but it does not show that
Husted violated clearly established law. Nader challenged the residency restriction as “applied
to circulators working on a presidential candidate’s campaign,” Appellant’s Brief, Nader,
545 F.3d 459 (No. 07-4350), 2008 WL 2740667, at *10, and after undertaking a “close analysis
of the particular facts of the case,” our court invalidated the specific residency requirement at
issue, 545 F.3d at 476–77 (Boggs, C.J., lead opinion).
The Ohio General Assembly amended the law in response. The new law differs from the
old law in several ways. It creates an exemption for presidential nominating petitions (such as
the one at issue in Nader), meaning that circulators of such petitions need not meet the residency
requirement. Ohio Rev. Code § 3503.06(C)(1)(a). And it detaches the residency restriction from
the requirement that petition circulators be registered voters, so that circulators no longer need to
reside in “the county and precinct” of registration but may instead reside anywhere in the State.
Id. § 3503.06(A), (C)(1)(a). These revisions confirm the legislature’s good-faith attempt to pass
a more narrowly tailored law than the one Nader invalidated, and Husted could reasonably credit
that effort by deciding to enforce the new law.
Husted could fairly believe that the State has a heightened interest in imposing a
residency requirement on initiative petition circulators, because initiatives enact changes to state
or local laws while presidential elections affect the entire nation. Or he could fairly believe, as
the Seventh Circuit has suggested, that restrictions on presidential nominating petitions impose
greater burdens on speech than restrictions on initiative petitions do. “[T]he ballot initiative
proponent will generally seek support for the one narrow issue presented in the initiative, while
the typical candidate embodies a broad range of political opinions, and thus those who solicit
No. 15-3447 Citizens in Charge, et al. v. Husted Page 10
signatures on their behalf must speak to a broader range of political topics.” Krislov v. Rednour,
226 F.3d 851, 861 (7th Cir. 2000). Or he could fairly believe, as the Second Circuit has
suggested, that the Ohio General Assembly created a “less burdensome requirement[]” when it
expanded the in-precinct residency restriction to an in-state residency restriction. See Lerman v.
Bd. of Elections, 232 F.3d 135, 150 & n.14 (2d Cir. 2000). In the face of these variables, Husted
could fairly conclude that the new statute would be subject to less-than-strict scrutiny or that,
even if strict scrutiny applied, the law was sufficiently narrowly tailored to survive it. Although
Nader noted that “[i]nitiative-petition circulators . . . resemble candidate-petition signature
gatherers,” see 545 F.3d at 475 (Boggs, C.J., lead opinion) (quoting Buckley, 525 U.S. at 191), it
did not say that initiative and candidate nominating petitions are identical—or that they are
subject to the same First Amendment analysis. If qualified immunity protects all but the “plainly
incompetent,” Malley v. Briggs, 475 U.S. 335, 341 (1986), it protects Husted’s reasonable
assessment that the legislature’s more narrowly tailored statute permitted him to enforce it.
Caselaw from other circuits bolsters this conclusion. Connecticut ex rel. Blumenthal v.
Crotty, 346 F.3d 84, 88–89 (2d Cir. 2003), addressed a New York law that imposed limitations
on the lobstering permits granted to out-of-state residents. After concluding that the law violated
Article IV’s Privileges and Immunities Clause, see id. at 93–100, the Second Circuit granted
qualified immunity to the state officials who had enforced the statute, even though several courts
had invalidated a comparable law relating to shellfish permits, see id. at 100–09. The court
acknowledged that the disparities between the shellfish law and the lobstering law were
“distinction[s] without a difference insofar as [the] Privileges and Immunities analysis is
concerned.” Id. at 107. But these disparities nonetheless “mudd[ied] the waters for purposes of
qualified immunity by casting doubt in the minds of reasonable officials about whether
invalidation of the Nonresident Shellfish Law would translate into invalidation of the
Nonresident Lobster Law.” Id.
The D.C. Circuit reached a similar conclusion when two members of the Capitol Police
arrested a protestor who violated the Capitol Police Board’s regulations by distributing leaflets in
a “no-demonstration zone.” Lederman, 291 F.3d at 39–40. The court held that the
demonstration ban violated the First Amendment, see id. at 41–46, but granted qualified
No. 15-3447 Citizens in Charge, et al. v. Husted Page 11
immunity to the arresting officers, see id. at 46–48. “While we find the ban’s sheer breadth
astonishing,” the D.C. Circuit said, “we recognize that the Police Board made some attempt at
tailoring” by “exempt[ing] expressive tee-shirts and buttons” from the ban. Id. at 47. “Although
those qualifiers [could not] begin to satisfy the narrow tailoring requirement, . . . their inclusion
in the ban [kept] it from being ‘so grossly and flagrantly unconstitutional’ . . . that the officers
should have recognized its flaws.” Id. (quoting DeFillippo, 443 U.S. at 38). Just so here, where
the plaintiffs’ arguments about the law’s unconstitutionality may be winning ones but where the
Secretary’s decision to enforce the law was not objectively unreasonable.
The plaintiffs invoke several out-of-circuit cases that struck down petition-circulator
residency requirements. But these cases engaged in fact-intensive analyses to determine that the
specific residency requirement at issue was unconstitutional, and most of them arose when
circulators of candidate nominating petitions challenged the governing statute. See Lerman, 232
F.3d at 139, 145–53; Libertarian Party v. Judd, 718 F.3d 308, 310–12, 316–19 (4th Cir. 2013);
Krislov, 226 F.3d at 855–66; Nader v. Brewer, 531 F.3d 1028, 1031–32, 1035–38 (9th Cir.
2008). None of these cases put Husted on notice that Ohio’s revised law was clearly invalid,
especially when the Eighth and Tenth Circuits have issued conflicting decisions on the
constitutionality of initiative-circulator residency requirements. Compare Jaeger, 241 F.3d at
616–17, with Savage, 550 F.3d at 1025–27, 1031.
The plaintiffs worry that permitting public officials to rely on a presumption of
constitutionality will convert qualified immunity into absolute immunity whenever an executive
officer enforces a validly enacted law. They note that, while courts have expressed concern
about imposing personal liability on police officers who enforce presumptively legitimate
statutes, the same anxieties do not apply to the Secretary of State, who has the legal staff and the
budget to assess a law’s constitutionality. But the DeFillippo inquiry does not create an absolute
bar, and we may still hold executive officers liable for “grossly and flagrantly unconstitutional”
conduct, see 443 U.S. at 38, as we have done before, see Leonard v. Robinson, 477 F.3d 347,
358–59 (6th Cir. 2007). And while police-officer cases may raise some different concerns than
the present one, we have never suggested that the qualified-immunity inquiry differs depending
on the precise official at issue.
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The plaintiffs wonder why Husted did not follow the lead of his predecessor, Secretary
Brunner, who declined to enforce the residency requirement against initiative-petition
circulators. One possible reason is that Brunner acted after our decision in Nader but before the
Ohio General Assembly enacted the revised statute in 2013. Nader held the residency
requirement “unconstitutional as applied to Ralph Nader” but also noted that our decision “ha[d]
the same practical effect as a declaration” that the relevant provisions were “facially
unconstitutional.” 545 F.3d at 479 (Clay, J., opinion for the court) (emphasis added). Relying
on this language, Brunner might have concluded that the statute was unconstitutional as applied
to initiative-petition circulators, not just to presidential nominating-petition circulators. That
conclusion was a reasonable one, and it was consistent with Brunner’s oath-driven duty “to
support” the National Constitution. U.S. Const. art. VI, cl. 3. But when the legislature enacted a
more narrowly tailored statute in 2013, it was just as reasonable for Husted to conclude that he
could enforce the new law without violating his own oath. Brunner’s independent assessment of
the law’s constitutionality no more compels Husted to follow in her footsteps than it requires one
judge to agree with another about a tricky constitutional question.
The plaintiffs conclude by arguing that Ohio’s residency requirement is clearly
unconstitutional under the Dormant Commerce Clause. But they do not point to a single case
(nor have we found one) in which a court struck down a petition-circulator residency
requirement under this clause. Far from being clearly established, the plaintiffs’ rights under the
Dormant Commerce Clause have not yet been established at all.
For these reasons, we reverse the district court’s decision on qualified immunity, direct
the court to grant summary judgment to Husted on the plaintiffs’ money-damages claims, and
remand for further proceedings consistent with this opinion.