Greg Jolivette v. Jon Husted , 694 F.3d 760 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0336p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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GREG JOLIVETTE,
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Plaintiff-Appellant,
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No. 12-3998
v.
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JON HUSTED; FRANK CLOUD; TOM ELLIS;
Defendants-Appellees. --
JUDITH SHELTON; BRUCE CARTER,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:12-cv-00603—George C. Smith, District Judge.
Argued: September 11, 2012
Decided and Filed: September 14, 2012
Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Donald J. McTigue, McTIGUE & McGUINNIS LLC, Columbus, Ohio, for
Appellant. Aaron D. Epstein, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee ON BRIEF: Donald J. McTigue, J. Corey Colombo,
Mark A. McGinnis, McTIGUE & McGUINNIS LLC, Columbus, Ohio, for Appellant.
Aaron D. Epstein, Michael J. Schuler, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which McKEAGUE, J., joined.
MERRITT, J. (pp. 17–19), delivered a separate dissenting opinion.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Greg Jolivette
(“Jolivette”) appeals the district court’s denial of his request for declaratory relief and
for a preliminary and a permanent injunction that would allow him to run as an
independent candidate for the Office of State Representative for Ohio’s 51st House
District in the upcoming November 6, 2012 general election. Jolivette seeks to prevent
members of the Butler County, Ohio Board of Elections and Ohio’s Secretary of State,
Jon Husted (together, “Defendants”), from blocking his access to the ballot as an
independent candidate. Jolivette claims that the defendants’ denial of his petition for
candidacy as an independent violated his rights to free speech and association guaranteed
by the First and Fourteenth Amendments. Jolivette also challenges differences in Ohio
election statutes regulating independent versus partisan candidates, arguing that these
portions of Ohio’s statutory election framework violate the Equal Protection Clause.
Jolivette brings his constitutional claims to federal court pursuant to 42 U.S.C. § 1983.
The United States District Court for the Southern District of Ohio denied preliminary
and permanent injunctive relief, as well as declaratory relief, finding no merit to any of
Jolivette’s constitutional claims. See Jolivette v. Husted, No. 2:12–cv–603, — F. Supp.
2d —, 2012 WL 3527733, at *16 (S.D. Ohio Aug. 15, 2012). For the reasons discussed
below, we AFFIRM the district court’s judgment.
I. BACKGROUND
Plaintiff Greg Jolivette desires to appear on the ballot at the upcoming November
6, 2012 general election as an independent candidate for the Office of State
Representative for Ohio’s 51st House District in Butler County, Ohio. From
approximately 1997 to 2010, prior to his current attempted independent candidacy,
Jolivette served as a Republican State Legislator and a Republican Butler County
Commissioner. R. 11-3 (Transcript of Bd. of Elections Protest Hearing, May 30, 2012
at 22:8–11) (Page ID #143). Jolivette was also elected to, and served on, the Butler
No. 12-3998 Jolivette v. Husted et al. Page 3
County Republican Party’s Central Committee from 2008 until mid-December 2011,
when he resigned from the position. Id. at 22:12–16 (Page ID #143).
On November 29, 2011, Jolivette filed a Declaration of Candidacy to run as a
Republican for the Office of State Representative for Ohio’s 51st House District. R. 18-
4 (Joint Ex. 13 at 1–9) (Page ID #337–45). Ohio law requires that candidates seeking
to run in a party primary accompany their Declaration of Candidacy with at least fifty
signatures from members of the same political party. OHIO REV. CODE § 3513.05. As
part of his Declaration of Candidacy, Jolivette submitted four part-petitions containing
seventy-two signatures. However, Jolivette failed to sign one of the part-petitions
containing seventeen signatures, and another six signatures on the other signed petitions
were of “questionable validity.” Jolivette, 2012 WL 3527733, at *2. The unsigned part-
petition and the possible invalid signatures meant that Jolivette was possibly ineligible
to run as a Republican. See OHIO REV. CODE § 3513.05.
On December 14, 2011, the Board of Elections met and considered Jolivette’s
candidacy as a Republican. Jolivette, who was present at this meeting, argued in favor
of certifying his petition to run in the Republican primary. See Jolivette, 2012 WL
3527733, at *2. At the meeting, the Board decided to give Jolivette extra time to gather
additional evidence and arguments to support his position. Id. At this time, the district
court found that Jolivette “still intended to run as a Republican, but was contemplating
his option to run as an independent.” Id.; see R. 11-3 (Transcript of Bd. of Elections
Protest Hearing, May 30, 2012 at 26:6–12) (Page ID #147). The following day,
December 15, 2011, Jolivette met with Husted regarding his candidacy and the possible
invalidity of his Republican petition. The district court concluded that after this meeting,
approval of Jolivette’s candidacy as a Republican by the Board of Elections “remained
uncertain.” Jolivette, 2012 WL 3527733, at *2. On December 19, 2011, Jolivette
withdrew his candidacy as a Republican and resigned from the Butler County
Republican Party Central Committee. R. 2 (Compl. ¶¶ 8–9) (Page ID #4). Jolivette
alleges that at this time, he “left the Republican Party in good faith” and “no longer
wish[ed] to be affiliated with the Republican Party.” Id. ¶ 10 (Page ID #4). Jolivette
No. 12-3998 Jolivette v. Husted et al. Page 4
testified that his relationship with the Republican Party had been deteriorating since
2008, and that the party refused to support him after “tough” budgetary votes he made
as County Commissioner. See R. 27 (August 6, 2012 Evidentiary Hearing Transcript at
10:18–11:6) (Page ID #504–05); Appellant Br. at 13–14. Jolivette subsequently lost the
Republican endorsement for County Commissioner in 2010 and was defeated in the
Republican primary that year. Appellant Br. at 13–14.
On February 22, 2012, Jolivette prepared a nominating petition and Statement
of Candidacy to run as an independent candidate for the same office as his Republican
petition, State Representative for Ohio’s 51st House District. Jolivette, 2012 WL
3527733, at *3. The petition and Statement of Candidacy were filed on March 5, 2012.
Id. Jolivette did not vote in any party primary the following day, March 6, 2012. As of
the time Jolivette submitted his petition for candidacy as an independent, Jolivette had
on file with the Board of Elections a “Designation of Treasurer” which indicated that he
was affiliated with the Republican Party. Id. This Designation of Treasurer had been
filed with the Board of Elections on July 15, 2008, but was not amended until May 4,
2012, when Jolivette filed an amended form identifying himself as an independent.
R. 11-1 (Joint Evid. Ex. I) (Page ID #82–86). Additionally, as of March 5, 2011, when
the independent petition was filed, Jolivette’s campaign committee maintained a website
which indicated he would “be a vote for strong Republican leadership.” R. 11-3
(Transcript of Bd. of Elections Protest Hearing, May 30, 2012 at 29:10–24) (Page ID
#150).
On April 19, 2012, a protest was filed by three members of the Republican Party
challenging Jolivette’s candidacy as an independent on the basis that he was not
unaffiliated from the Republican Party. See R. 2 (Compl. ¶ 14) (Page ID #5); OHIO REV.
CODE § 3513.262. On May 16, 2012, the Butler County Board of Elections approved
Jolivette’s petition, certified him to be on the ballot, and scheduled the protest hearing.
Jolivette, 2012 WL 3527733, at *4. The protest hearing, held on May 30, 2012, resulted
in a tie vote with respect to whether to grant or deny the protest, with the two
Democratic board members voting to deny the protest, and the two Republican board
No. 12-3998 Jolivette v. Husted et al. Page 5
members voting to grant the protest. The matter was then referred to Husted. Husted
voted on June 26, 2012 to grant the protest, thereby breaking the tie, concluding that
Jolivette is “not unaffiliated and cannot run as an independent candidate for this
election.” R. 11 (Joint Evid. Ex. 1, at 2) (Page ID #50). To support his decision, Husted
cited Jolivette’s past voting history in Republican Party primary elections, his prior
service as a Republican legislator and Republican County Commissioner from 1997 to
2010, and his filing of a petition to run for the same office in the same cycle as a
Republican. Id.On July 9, 2012, Jolivette filed this action in the U.S. District Court for the
Southern District of Ohio seeking declaratory and injunctive relief, on the grounds that
Defendants’ refusal to permit him to appear on the ballot as an independent candidate
violated his constitutional rights. R. 2 (Compl. ¶¶ 31, 33, 37) (Page ID #9–10). Jolivette
argues that the decision to block his access to the ballot as an independent candidate
because he was affiliated with a political party violated his First, Fifth, and Fourteenth
Amendment rights, and that the Ohio election framework governing disaffiliation from
a political party violates the Equal Protection Clause. The district court found that
neither preliminary nor permanent injunctive relief was warranted, based on a finding
that none of Jolivette’s constitutional claims had merit, and as a result dismissed the
case. Jolivette, 2012 WL 3527733, at *13, 16. Jolivette timely appealed the order
denying relief to this Court. R. 26 (Notice of Appeal at 1) (Page ID #493).
Because Jolivette’s complaint raises constitutional claims, the district court had
jurisdiction under 28 U.S.C. § 1331. See Morrison v. Colley, 467 F.3d 503, 505–06
(6th Cir. 2006). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
We review the district court’s denial of preliminary and permanent injunctive
relief for abuse of discretion. See ACLU of Ohio, Inc. v. Taft, 385 F.3d 641, 645
(6th Cir. 2004). Accordingly, we review “the district court’s legal conclusions de novo
and its factual findings for clear error.” Taubman Co. v. Webfeats, 319 F.3d 770, 774
(6th Cir. 2003) (quoting Owner-Operator Indep. Drivers Ass’n v. Bissell, 210 F.3d 595,
No. 12-3998 Jolivette v. Husted et al. Page 6
597 (6th Cir. 2000)); see Worldwide Basketball and Sport Tours, Inc. v. NCAA, 388 F.3d
955, 958 (6th Cir. 2004). We also review for abuse of discretion the district judge’s
decision not to grant declaratory relief. See Taft, 385 F.3d at 645 (“Although the district
court did not specifically rule on the [plaintiff’s] request for declaratory relief, instead
dismissing the case in toto after ruling on the [plaintiff’s] motion for preliminary
injunctive relief, we review a ‘district court’s exercise of discretion under the
Declaratory Judgment Act, 28 U.S.C. § 2201(a), for abuse of discretion.’” (quoting
Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 967 (6th Cir. 2000))).
In considering whether preliminary injunctive relief should be granted, a court
considers four factors: “(1) whether the movant has a strong likelihood of success on
the merits; (2) whether the movant would suffer irreparable injury without the
injunction; (3) whether issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served by issuance of the
injunction.” Chabad of S. Ohio v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir. 2004)
(quoting Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110
F.3d 318, 322 (6th Cir. 1997)). “Although no one factor is controlling, a finding that
there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l
Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000). “In general, ‘[t]he standard
for a preliminary injunction is essentially the same as for a permanent injunction with
the exception that [for a preliminary injunction] the plaintiff must show a likelihood of
success on the merits rather than actual success.’” ACLU of Ky. v. McCreary Cnty.,
607 F.3d 439, 445 (6th Cir. 2010) (quoting Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531, 546 n.12 (1987)). The district court found that none of Jolivette’s
constitutional claims had merit, and that when balanced with the other factors, injunctive
relief was not warranted. Jolivette, 2012 WL 3527733, at *16. We consider each of
Jolivette’s arguments on appeal in turn.
III. FIRST AMENDMENT CLAIM
Jolivette first argues that Defendants’ determination that he is ineligible to run
as an independent candidate because he is affiliated with a political party violates his
No. 12-3998 Jolivette v. Husted et al. Page 7
First Amendment rights to free speech and association. See Appellant Br. at 8. The
focus of our inquiry is thus on this constitutional question.1 The grant of the protest
against Jolivette’s independent candidacy by the Board of Elections and Husted was
based on Ohio’s requirement that independent candidates claim, no later than four p.m.
on the day before the primary elections, that they are not affiliated with a political party.
See OHIO REV. CODE §§ 3501.01(I); 3513.257. Ohio law defines an “Independent
Candidate” as “any candidate who claims not to be affiliated with a political party, and
whose name has been certified . . . through the filing of a statement of candidacy and
nominating petition, as prescribed in section 3513.257 of the Revised Code.” Id.
§ 3501.01(I). In turn, § 3513.257 requires independent candidates to file a statement of
candidacy and nominating petition no later than four p.m. the day before the day of the
primary elections. See id. § 3513.257.2 Jolivette’s First Amendment argument is
essentially an attack on the application of these ballot-access restrictions to his petition
for candidacy.
The Supreme Court’s approach to constitutional challenges to election
regulations requires balancing a state’s “broad power” to regulate elections against the
“fundamental rights” of candidates and voters, including the right to “freedom of
political association.” See Tashjian v. Republican Party of Conn., 479 U.S. 208, 217
(1986); see also Lawrence v. Blackwell, 430 F.3d 368, 372–73 (6th Cir. 2005)
(explaining that in evaluating election regulations, “[c]ourts must undertake the difficult
task of considering and weighing the asserted injury to fundamental constitutional rights,
the precise interest of the state in the regulation at issue, and the extent to which it is
necessary to burden important rights in order to achieve any important state interests.”).
On the one hand, the Court has recognized that in structuring the election process,
“States may, and inevitably must, enact reasonable regulations of parties, elections, and
1
Jolivette’s complaint does not include a state-law claim that the disqualification of his
independent candidacy violated Ohio law. See R. 2 (Compl.) (Page ID #2–12)
2
Although the requirement for an independent candidate to “claim[] not to be affiliated with a
political party” is contained in the text of § 3501.01(I), it is carried through to § 3513.257 by reference to
an “independent candidate.” We will continue to use the convention of other courts of referring to
§ 3513.257 as requiring a claim of non-affiliation.
No. 12-3998 Jolivette v. Husted et al. Page 8
ballots to reduce election- and campaign-related disorder.” Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 358 (1997); see Storer v. Brown, 415 U.S. 724, 730 (1974)
(“[A]s a practical matter, there must be a substantial regulation of elections if they are
to be fair and honest and if some sort of order, rather than chaos, is to accompany the
democratic process.”). On the other hand, states’ broad authority to regulate elections
must be carefully balanced against the “fundamental” right to associate freely for the
advancement of political ideas. See Anderson v. Celebrezze, 460 U.S. 780, 787–88
(1983); Williams v. Rhodes, 393 U.S. 23, 30 (1968) (holding that the right to freedom
of political association “rank[s] among our most precious freedoms”).
The level of scrutiny applied to a state election regulation depends on the burden
imposed by the regulation on the constitutional rights of voters and candidates. See
Burdick v. Takushi, 504 U.S. 428, 434 (1992). In evaluating an election regulation
against a constitutional challenge, “we weigh the ‘character and magnitude’ of the
burden the State’s rule imposes” on citizens’ constitutional rights against “the interests
the State contends justify that burden, and consider the extent to which the State’s
concerns make the burden necessary.” Timmons, 520 U.S. at 358 (quoting Burdick,
504 U.S. at 434). If the regulation imposes a severe burden on plaintiffs’ rights, the
regulation must be “narrowly tailored and advance a compelling state interest.” Id.“Lesser burdens, however, trigger less exacting review, and a State’s important
regulatory interests will usually be enough to justify reasonable, nondiscriminatory
restrictions.” Id. (internal quotation marks omitted).
In Morrison v. Colley, we upheld against a First Amendment challenge the
application of § 3513.257 to disqualify a would-be independent candidate from running
in the general election because he was found to be affiliated with a political party.
467 F.3d at 508. We held that § 3513.257 requires a claim of independence to be made
“in good faith.” Id. at 509. In Morrison, the plaintiff, Morrison, filed a petition to run
as an independent candidate for office as United States Representative in Ohio’s
Fifteenth Congressional District. Id. at 504. Subsequent to filing his independent
petition, Morrison voted in a Republican primary, and he also appeared on the
No. 12-3998 Jolivette v. Husted et al. Page 9
Republican primary ballot for his county’s Republican Party Central Committee and the
Ohio Republican Party State Central Committee. Id. at 505. On these facts, we found
that Morrison’s claim of independence was not made in good faith, because
simultaneous to his claim of independence, Morrison “evinced a desire to be affiliated
with the Republican Party” by “registering Republican, running as a Republican in the
primary, and voting in the Republican primary.” Id. at 510. We further found that
§ 3513.257 did not violate First or Fourteenth Amendment freedoms under the facts of
that case. Id. at 508. We explained that the district court “concluded correctly that Ohio
Rev. Code § 3513.257 does not impose a severe restriction” on candidates or voters, and
that it is “merely a reasonable, nondiscriminatory regulation to require would-be
independent candidates to claim . . . that they are free of affiliation with any political
party.” Id. at 507–08.
In this case, there are objective facts in the record indicating that Jolivette was
affiliated with Republican Party at the time he filed his petition as an independent. As
of the time his independent petition was submitted, Jolivette had on file a Designation
of Treasurer indicating that he was affiliated with the Republican Party. This
Designation of Treasurer was not amended until May 5, 2012. R. 11-1 (Joint Evid. Ex.
I) (Page ID #82–86). In addition, at the time Jolivette’s independent petition was filed,
his campaign committee maintained a website which stated that Jolivette would be a
“Vote for Strong Republican Leadership.” R. 11 (Joint Evid. Ex. F) (Page ID #68).
Further, after he filed as an independent, Jolivette continued to maintain a Facebook
page that indicated he was affiliated with various Republican organizations, including
the Ohio-Republican Party and Positively Republican!, among others. R. 11 (Joint Evid.
Ex. G) (Page ID #70). These objective factors are “inconsistent with [Jolivette’s] claim
that he is unaffiliated with a political party.” State ex rel. Livingston v. Miami Cnty. Bd.
of Elections, 963 N.E.2d 187, 192 (Ohio Ct. App. 2011). Although Jolivette argues that
he has not actively participated in partisan activities or promoted himself as a partisan
candidate since his disaffiliation, there is evidence in the record indicating that Jolivette
did not completely undo his affiliation with the Republican Party in advance of filing his
petition to run as an independent.
No. 12-3998 Jolivette v. Husted et al. Page 10
Jolivette tries to distinguish the facts of his case from the facts in Morrison,
mainly by arguing that the Board of Elections in this case—unlike in
Morrison—considered conduct from before he filed as an independent. See Appellant
Br. at 8. In his tie-breaking vote, Husted considered Jolivette’s voting history in recent
past Republican primaries, his holding of office as a Republican Legislator and
Republican County Commissioner until 2010, and his pursuit of access to the Republican
primary ballot as a candidate for the 51st House District in the 2012 election cycle up
until it was clear that his Republican petition did not have sufficient valid signatures.
R. 11 (Joint Evid. Ex. 1) (Page ID #50). As a result, Husted agreed with the Board of
Elections’ members who found Jolivette’s claim of non-affiliation to be “disingenuous,”
see R. 11-2 (Joint Evid. Ex. 5) (Page ID #105), and found that “Jolivette is not
unaffiliated and cannot run as an independent candidate for this election.” R. 11 (Joint
Evid. Ex. 1) (Page ID #50). Relying in part on a candidate’s conduct prior to his or her
filing as an independent candidate is permissible under Ohio law. See Livingston,
963 N.E.2d at 192; Ohio Sec’y of State, Advisory Op. No. 2007-05, at 4 (June 4, 2007)
(allowing the Board to consider: “past voting history, information submitted on required
election-related filings, political advertisements, participation as a political party officer
or member, or holding a public office for which the office holder was nominated through
a political party’s primary election and elected on a partisan ticket”). Cf. OHIO REV.
CODE § 3513.19(A)(3) (stating that a voter will be considered affiliated with a political
party if he or she voted in that party’s primary in the immediately preceding two
calendar years, for purposes of determining eligibility to vote in a party primary
election). Although no Ohio case to date has upheld the disqualification of an
independent candidate “solely on the basis of prefiling conduct or activity,” such
conduct may be considered in the Board of Elections’ overall determination. Livingston,
963 N.E.2d at 192 (rejecting the disqualification of an independent candidate when the
evidence of lack of good faith in disaffiliating was based solely on pre-filing conduct).
No. 12-3998 Jolivette v. Husted et al. Page 11
Jolivette argues that such consideration of an independent candidate’s pre-filing
conduct is impermissible as a matter of constitutional law.3 See Appellant Br. at 8
(stating that the issue in the case is “[w]hether a Board of Election’s determination to
deny an independent candidate’s access to the ballot based on evidence of party
affiliation that occurred prior to the candidate’s filing of an independent candidate
petition . . . violates the candidate’s First Amendment speech and association rights”);
id. at 20–23. This argument is unavailing. A ballot access restriction is not per se
unconstitutional solely because it permits a decisionmaker to look backward in time
from the filing of a petition for independent candidacy to determine if a candidate
disaffiliated; indeed, the Supreme Court upheld a backward-looking election restriction
requiring a per se one-year waiting period for candidates seeking to run as independents
who disaffiliated from a political party. See Storer, 415 U.S. at 736. The Court found
that the per se waiting period helps avoid “independent candidacies prompted by short-
range political goals, pique, or personal quarrel.” Id. at 735. The state’s interests in “the
stability of its political system” and preventing “splintered parties and unrestrained
factionalism” outweighed the burden placed on would-be independent candidates who
disaffiliate from a political party. Id. at 736; see also Van Susteren v. Jones, 331 F.3d
1024, 1026 (9th Cir. 2003) (upholding California’s one-year waiting period disaffiliation
statute).
In Morrison, we concluded that the application of § 3513.257’s requirement that
“independent candidates [] claim on the day before the primary that they are not
affiliated with any political party” was constitutionally permissible. Morrison, 467 F.3d
at 508. First, our holding that § 3513.257 imposed only a small burden on would-be
candidates renders inapposite Jolivette’s argument that strict scrutiny applies. See
Appellant Br. at 18–19. Rather, because the requirement that independent candidates
make a good-faith claim of non-affiliation on the day before the primary imposes only
3
To the extent that Jolivette’s First Amendment argument is really a claim that the good-faith
requirement lacks objective standards and is thus void for vagueness, we do not address his argument here.
As discussed infra, Jolivette did not make a void-for-vagueness argument at the district court, and thus it
is waived on appeal.
No. 12-3998 Jolivette v. Husted et al. Page 12
a small burden, the state “need only show that this requirement advances an important
state interest.” Morrison, 467 F.3d at 508.
Section 3513.257 does not inhibit Jolivette’s ability freely to write, speak,
organize campaigns, or promote any set of political beliefs that he wishes. See Jenness
v. Fortson, 403 U.S. 431, 438 (1971). Instead, § 3513.257 is a means of restricting the
candidates who may appear on the ballot, and does so by requiring that independent
candidates make a good-faith claim that they are free of affiliation with a political party
at the time they submit their petitions for independent candidacy. Such a restriction on
ballot access “is expressive of a general state policy aimed at maintaining the integrity
of the various routes to the ballot.” Storer, 415 U.S. at 733. The Supreme Court has
found that the state may legitimately “avoid[] overcrowded ballots” and “protect the
integrity of its political processes from frivolous or fraudulent candidacies.” Bullock v.
Carter, 405 U.S. 134, 145 (1972). Further, the state has an interest in regulating ballot
access in order to avoid “confusion, deception, and even frustration of the democratic
process at the general election.” Schrader v. Blackwell, 241 F.3d 783, 789 (6th Cir.
2001) (quoting Jenness, 403 U.S. at 442). Ohio’s law, though not structured as a per se
waiting period, serves these same interests as applied to Jolivette. Cf. OHIO REV. CODE
§ 3513.257 (noting that the purposes of requiring an independent candidate to claim he
or she is not affiliated with any political party on the day before the primary elections
serves the state’s interests in “prevent[ing] splintered parties and unrestrained
factionalism,” “avoid[ing] political fragmentation,” “maintain[ing] the integrity of the
ballot,” and “ensuring fair and honest elections”). By requiring independent candidates
to make a good-faith claim of non-affiliation by the day before the primary, Ohio seeks
to maintain the integrity of its different routes to the ballot—the partisan primary and the
independent petition.
Under the circumstances of this case, we conclude that the disqualification of an
independent candidate based on “a finding that the candidate’s claim to have disaffiliated
with a political party was not made in good faith because the candidate is not actually
No. 12-3998 Jolivette v. Husted et al. Page 13
unaffiliated,” Livingston, 963 N.E.2d at 192, is constitutionally permissible.4 We thus
hold that the application of § 3513.257 to disqualify Jolivette as an independent
candidate did not impose a constitutionally impermissible burden on his right to
associate freely for the advancement of his political beliefs.
IV. VAGUENESS CLAIM
Next, Jolivette argues that the Ohio election framework is unconstitutionally
vague, because it contains “no standards or criteria to evaluate a candidate’s claim of
independence.” See Appellant Br. at 21; id. at 26–30. Jolivette cannot succeed on this
argument because he did not explicitly raise it at the district court. See R. 3 (Mot. for
Prelim. Inj. at 7–13) (Page ID #20–26) (failing to make an argument relating to the void-
for-vagueness doctrine). As a rule, we will not review issues if they are raised for the
first time on appeal. See In re Hood, 319 F.3d 756, 760 (6th Cir. 2003) (“‘It is well-
settled that this court will not consider arguments raised for the first time on appeal
unless our failure to consider the issue will result in a plain miscarriage of justice.’”
(quoting Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir.
2002))). Jolivette’s efforts to re-describe his argument about the arbitrariness of the
determination that his claim of independence was not made in good faith into a
vagueness challenge is a stretch from what was actually argued at the district court. See
Appellant Reply Br. at 15–18. The district court opinion did not consider or rule on a
vagueness challenge. See Jolivette, 2012 WL 3527733. Because Jolivette did not
develop the vagueness claim at the district court, we will not consider the argument here.
See Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (“[T]he failure
to present an issue to the district court forfeits the right to have the argument addressed
on appeal.”).
4
Because we need only decide the constitutional question to dispose of this case, we do not
address what standard of evidence applies under Ohio law to sustain a protest for lack of disaffiliation
under § 3513.257, and whether that standard was met in this case. See Livingston, 963 N.E.2d at 192
(holding that a clear and convincing standard of evidence applies). Jolivette cannot succeed on his federal
constitutional claims because he has not shown that the application of Ohio law’s “good faith” standard
for disaffiliation to his case violated his constitutionally protected rights as a candidate.
No. 12-3998 Jolivette v. Husted et al. Page 14
V. EQUAL PROTECTION CLAIMS
Jolivette’s third and fourth arguments challenge portions of the Ohio election
statutory framework under the Equal Protection Clause of the Fourteenth Amendment.
Appellant Br. at 30, 38; see R. 2 (Compl. ¶¶ 33, 37) (Page ID #9–10). Jolivette’s first
contention is that the Ohio election statutes are unconstitutional because they leave “to
the discretion of a county board of elections whether to allow an individual affiliated
with a political party to become unaffiliated, i.e. independent,” but permit candidates to
switch from one party to another “freely.” Appellant Br. at 31. Section 3513.191 of the
Ohio Revised Code allows candidates previously affiliated with a political party to run
in a different party’s primary under certain defined circumstances. OHIO REV. CODE
§ 3513.191. In contrast, the eligibility of candidates seeking to disaffiliate from a
political party and run as independents is governed by the “good faith” standard as
explained in Morrison. 467 F.3d at 508–09. Second, Jolivette takes issue with the code
provisions relating to who may bring protests against the nominating petitions of partisan
versus independent candidates. See Appellant Br. at 38. In Ohio, although “any
qualified elector eligible to vote for the candidate whose nominating petition he objects
to” may file a written protest against the nominating petition of an independent
candidate, see OHIO REV. CODE § 3513.262, only a “qualified elector who is a member
of the same political party as the candidate and who is eligible to vote in the primary
election for the candidate” may protest the candidacy of a person seeking a party
nomination. Id. § 3513.05. Jolivette argues that these differences in the statutes
governing independent versus partisan candidates constitute unjustified “unequal
treatment.” Appellant Br. at 39.
We examine Jolivette’s equal-protection challenges to the Ohio statutory
framework using the same balancing framework as his First Amendment challenge. See
Burdick, 504 U.S. at 434; Anderson, 460 U.S. at 789. The Equal Protection Clause of
the Fourteenth Amendment states that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. This is
“‘essentially a direction that all persons similarly situated should be treated alike.’”
No. 12-3998 Jolivette v. Husted et al. Page 15
Bower v. Vill. of Mount Sterling, 44 F. App’x 670, 676 (6th Cir. 2002) (quoting City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). A successful equal-
protection claim requires that “the government treated the plaintiff disparately as
compared to similarly situated persons . . . .” Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (internal quotation marks omitted).
Jolivette’s equal-protection claims do not get off the ground because independent
candidates and partisan candidates are not similarly situated for purposes of election
regulations. See Jenness v. Fortson, 403 U.S. 431, 440–41 (1971). In Jenness v.
Fortson, the Supreme Court upheld Georgia’s election regulations that required non-
partisan candidates to collect signatures from 5% of voters before their names were
printed on the ballot, but had no such requirement for partisan candidates who won their
party primary. Id. at 434, 440–41. The Court held that the state permissibly recognized
two alternate paths to the ballot–the party primary and non-partisan candidate
petitions–“neither of which [could] be assumed to be inherently more burdensome than
the other.” Jenness, 403 U.S. at 441. Because the partisan candidate must win the
majority of votes in a party primary, whereas the independent candidate must gather
signatures from 5% of the total electorate, the two pathways to the ballot were different,
and thus partisan candidates were not similarly situated to independent candidates. Id.at 440–42. Other federal appellate courts have come to the same conclusion, that for
purposes of an Equal Protection Clause challenge to an election regulatory framework,
partisan candidates and independent candidates are not similarly situated. See, e.g.,
Curry v. Buescher, 394 F. App’x 438, 447 (10th Cir. 2010); Van Susteren, 331 F.3d at1026–27. As the Ninth Circuit pointed out in Van Susteren, whereas the primary process
is “integral to the election [] because it serves the important function of winnowing out
competing partisan candidates,” the independent candidate is excused from this process,
and thus different restrictions for their access to the ballot are permissible. Van Susteren,
331 F.3d at 1027. Because of the differences between the pathways to the ballot of
partisan versus independent candidates in Ohio, we agree with the district court that
Jolivette’s equal-protection arguments lack merit. See Jolivette, 2012 WL 3527733, at
*14–16.
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After examining Jolivette’s constitutional claims and finding that none of them
have merit, we find no abuse of discretion in the district court’s decision to deny
Jolivette’s requests for a preliminary injunction, a permanent injunction, and declaratory
relief. See Taft, 385 F.3d at 645.
VI. CONCLUSION
For the reasons discussed above, we AFFIRM the district court’s judgment
denying declaratory as well as preliminary and permanent injunctive relief.
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_______________
DISSENT
_______________
MERRITT, Circuit Judge, dissenting. I do not agree with the result in this case
barring Jolivette from running as an Independent for the state legislature or with the
majority’s interpretation of Ohio law as set out in the recent case of Livingston v. Miami
County Board of Elections, 196 Ohio App. 3d 263, 963 N.E.2d 187, decided September
8, 2011, or with the majority’s interpretation of the seminal ballot access case on the
First Amendment, Anderson v. Celebrezze, 460 U.S. 780 (1983). The bottom line is that
Jolivette clearly wants to leave the Republican Party — his long fight in this case is
certainly evidence of that choice, along with his many earlier statements to that effect
— because the party now rejects him after many years of public service as a Republican.
He has nowhere else to turn except as an independent candidate if he is to continue his
public service. What stands in his way is the adverse ruling of the Ohio Secretary of
State, a partisan official elected statewide as a Republican, who disagrees with the
interpretation given the state’s ballot access statute by the highest state court to decide
the issue.
In Livingston, the state court overruled a decision rejecting the independent
candidacy of two candidates for local office because they had voted in Republican
primary elections, signed petitions in support of Republican candidates a few months
before the election, and previously won office as a Republican candidate for local office.
And one of them, Livingston, was a member of the local Republican Executive
Committee until he resigned just before filing a petition as an independent candidate.
In reversing the decision rejecting their independent candidacies, the court said:
Consistent with the liberal construction of the laws in favor of
candidates, a finding that the candidate’s claim was not made in good
faith must be supported by clear and convincing evidence . . . . The
record supports a finding that both relators may have acted on a
calculation that they would have a better chance of winning as
independent candidates. However, that fails to rise to the level of clear
and convincing evidence that their claims of disaffiliation from the
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Republican Party were not made in good faith because the claim is a
sham or deceitful — that is, that either actually remains affiliated with
the Republican Party. Such proof is necessary to find an impropriety in
their claims sufficient to permit the board to invalidate their petitions
pursuant to R.C. 3501.39(A) on a finding of a lack of good faith.
196 Ohio App. 3d at 270-71, 963 N.E.2d at 192-93 (citation omitted). Likewise, in the
present case, there is no “clear and convincing” evidence that Jolivette is lying about his
choice and no one claims his application is a sham. He has attempted to remove all
doubt that he is still a Republican by eliminating former references on a website that he
is a Republican and in other ways. He has privately and publicly consistently renounced
his membership in the Republican Party. The Livingston case is directly contrary to the
Ohio Secretary of State’s view that Jolivette remains affiliated with the Republican
Party. Under Ohio law, the Secretary may try to persuade Jolivette to remain with the
GOP but he may not indenture him to the party or deprive him of the right to change his
partisan views and associations.
That should be the end of this case and make it unnecessary to reach a First
Amendment question. But our court’s approval of the rulings below makes it necessary
to reach the federal question arising under the First Amendment. Ohio has a number of
cases in which the Supreme Court has reversed Ohio’s rejection of ballot access by
independent candidates or parties thus allowing incumbents to insulate themselves
against challengers. See, e.g., Williams v. Rhodes, 393 U.S. 23 (1968). More recently,
an Ohio case in the Supreme Court, Anderson v. Celebrezze, 460 U.S. 780 (1983),
reversed a Sixth Circuit case upholding Ohio’s effort to bar an independent candidacy
and further entrench and stabilize the two major parties in their dominant positions.
In Anderson, the Court struck down an Ohio effort to require minor parties and
independent candidates to file much earlier than the major party candidates. This Ohio
policy would prevent the candidacy of individuals and minor parties who become
disenchanted during the primary process and decide to quit the party. In this case the
candidate was John Anderson, who unsuccessfully sought the Republican nomination
for President, but then decided to bolt and to seek the office independently. The
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Supreme Court’s opinion by Justice John Paul Stevens sets out general First Amendment
standards that apply up and down the political hierarchy:
A burden that falls unequally on new or small political parties or
on independent candidates impinges, by its very nature, on associational
choices protected by the First Amendment. It discriminates against those
candidates and — of particular importance — against those voters whose
political preferences lie outside the existing political parties. Clements
v. Fashing, [457 U.S. 957, 964-65 (1982)] (plurality opinion). By
limiting the opportunities of independent-minded voters to associate in
the electoral arena to enhance their political effectiveness as a group,
such restrictions threaten to reduce diversity and competition in the
marketplace of ideas. Historically political figures outside the two major
parties have been fertile sources of new ideas and new programs; many
of their challenges to the status quo have in time made their way into the
political mainstream. Illinois Elections Bd. v. Socialist Workers Party,
440 U.S. at 186; Sweezy v. New Hampshire, 345 U.S. 234, 250-251
(1957) (opinion of Warren, C.J.). In short, the primary values protected
by the First Amendment — “a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and
wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)
— are served when election campaigns are not monopolized by the
existing political parties.
460 U.S. at 793-94 (footnote and parallel citations omitted).
I believe the Livingston case standards meet the First Amendment test, but the
standards applied by my colleagues do not. The Livingston case standards do not
“discriminate[] against those candidates and — of particular importance — against those
voters whose political preferences lie outside the existing political parties.” Id. But the
majority opinion “restrictions threaten to reduce diversity and competition in the
marketplace of ideas.” Id. The majority opinion undermines our “profound national
commitment to the principle that debate on public issues should be uninhibited, robust,
and wide open.” The majority opinion once again prefers the corporate or establishment
side of the case against the iconoclastic individual on his soap box in Hyde Park. I have
no idea what Jolivette might do or propose, but he should be given his shot rather than
be indentured to the Republican Party because he used to be a Republican.