Non Party Candidates may file Lawsuit based on Constitutional Issues

[Frank Bellamy, MAP Masters of Applied Politics]

Ohio's 15th Congressional District Candidate: An Independent or a Republican?

By: Kathleen Clyde, Moritz College of Law Class of 2008
(Part of a new series summarizing and analyzing election law developments, edited by Terri Enns, Senior Fellow)
July 25, 2006

Note:  Morrison filed suit in the Southern District of Ohio on July 27, 2006.  For coverage of that lawsuit, see the bottom of this page.

As the American public follows the national news coverage of former vice-presidential candidate and U.S. Senator Joseph Lieberman's possible re-election candidacy as an independent rather than a Democrat, Franklin County has its own version of the story in the candidacy of Charles R. Morrison II for U.S. Congress. Mr. Morrison wishes to run as an Independent in the November general election following unsuccessful bids in the May primary for seats on the Republican Party Central Committees for both the State of Ohio and Madison County. Secretary of State Blackwell has ruled that Mr. Morrison is not eligible to run as an Independent.



I. Background

On Friday, July 14, 2006, Secretary of State J. Kenneth Blackwell answered a difficult legal question when he ruled that Charles R. Morrison II is not eligible to run as an independent for U.S. Congress in Ohio's 15th District.  Robert Vitale and Mark Niquette, Candidate Kept Off Ballot Over GOP Ties, The Columbus Dispatch, July 15, 2006 [hereinafter "Columbus Dispatch, July 15, 2006"].  Prior to Secretary Blackwell's ruling, the four-member Franklin County Board of Elections split along party lines in response to a protest filed by Madison County and Union County GOP Chairmen.  The two Democrats on the Franklin County Board voted to keep Morrison on the ballot while the two Republicans voted to remove him.   Secretary of State Blackwell's decision was needed to break their tie.  Robert Vitale, Blackwell to Break Tie Vote Over 15th District Candidacy, Columbus Dispatch, June 22, 2006 [hereinafter "Columbus Dispatch, June 22, 2006"].  Morrison plans to challenge Secretary Blackwell's ruling in court.  Columbus Dispatch, July 15, 2006.

In both 2002 and 2004, Morrison lost in the Republican primary for the 15th Congressional District seat to Congresswoman Deborah Pryce, the seven-time incumbent and fourth highest ranking member of the U.S. House of Representatives.  Robert Vitale, GOP Wants Pryce's Challenger Off Ballot, Columbus Dispatch, May 23, 2006 [hereinafter "Columbus Dispatch, May 23, 2006"].  On May 1, 2006, Morrison submitted his candidate petitions to run as an independent in the 15th Congressional District against Congresswoman Deborah Pryce and Democratic candidate Franklin County Commissioner Mary Jo Kilroy.  The next day, on May 2, 2006, Morrison voted in the Republican primary in which he was a candidate for both the State of Ohio and the Madison County Republican Party Central Committees.  He did not win a seat on either Central Committee.  According to several news stories, Morrison circulated his petitions for all three races simultaneously though the Central Committee petitions were submitted earlier.  His declarations of candidacy for the committee spots included affirmations of Republican Party membership.  On May 3, 2006, the day after the 2006 primary elections, Morrison publicly stated he had "no party affiliation."  Columbus Dispatch, June 22, 2006.  Many have speculated that Morrison, a strong conservative, would pull votes from the more moderate Congresswoman Pryce, who already faces a stronger than usual Democratic candidate in Kilroy. 

Although Secretary of State Blackwell directed that Morrison be removed from the ballot, Ohio courts might rule otherwise on appeal.  This article will discuss the effect of Morrison's recent affirmations of Republican Party membership during the 2006 primary elections on his subsequent eligibility to run as an independent candidate in the 15th U.S. Congressional District.



II. Ohio Statutory Law

The definition of "independent candidate" in Ohio Revised Code § 3501.01 recently changed, through HB 3, from one who "does not consider himself affiliated with a political party" to one who "claims not to be affiliated with a political party."  This definitions section does not define what it means to be "affiliated with a political party." 

However, ORC § 3513.19, in a section dealing specifically with challenges to the eligibility of individual voters, identifies explicit criteria for determining party affiliation for the purposes of that section. These criteria seem to conflict with the ORC § 3501.01 independent candidate definition that relies on a candidate's "claim."  The criteria include examining the person's voting record from the current and preceding two years. ORC § 3513.19.   A person would qualify as a Republican, for example, if he or she had voted in the Republican primary over the current and past two years or if the person did not vote in any other party's primary election over the current and past two years.  ORC § 3513.191, dealing with the qualifications of candidates, has a slightly narrower definition, limiting party primary candidates to those who have not voted as a member of a different political party at a primary within the current or preceding two years.

Ohio Revised Code § 3513.04 contains a "sore loser" provision.  According to the statute, "No person who seeks [the] party nomination for an office or position at a primary election" by declaring his or her candidacy or intent to be a write-in candidate and who loses in that primary "shall be permitted to become a candidate by nominating petition or by declaration of intent to be a write-in candidate at the following general election for any office," except for a short list of specific offices such as state school board.  Id.

Ohio Revised Code § 3513.07 describes the contents of a partisan candidate petition, which includes a declaration of candidacy.  The following language is required on a candidate's petition:

"I, ................... (Name of Candidate), the undersigned, hereby declare under penalty of election falsification that . . . I am a member of the ........ Party."  ORC § 3513.07.  Further, according to the statute, "WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE."  Id.  This language is accompanied with the candidate's signature.  An elector signs the petition that contains the following statement: "We, the undersigned, qualified electors . . . hereby certify that . . . [the candidate] is a member of the ......... Party."  Id. 



Finally, ORC § 3513.261 requires the following language on an independent candidate's petition: "I hereby declare that I desire to be a candidate for election to the office of _____________." ORC § 3513.261.  The petition does not include any statements about independence or lack of affiliation with a political party. 

III.  Analysis

Based on the above statutory law, the main issues to explore are whether Charles Morrison II's claims to independence are canceled out by (A) his voting record or (B) his Republican Party Central Committee candidacy in the 2006 primary election.

A.  The effect of Morrison's voting record

Morrison has a Republican voting record and voted in the most recent 2006 Republican primary.  Despite this record, Morrison claims he is an independent.  The Ohio Supreme Court has held that a candidate cannot run in a Democratic primary after voting in Republican primaries within the past four years, per 3513.191 (since amended to two years), regardless of his or her claim to be a Democrat. State ex rel. Bible v. Board of Elections of Hamilton County, 258 N.E.2d 227 (Ohio 1970).   In rejecting a candidate's argument that he was a Democrat regardless of his voting record, the Ohio Supreme Court said that, under 3513.19 (statute governing electors), "only one who is affiliated with a party may vote at that party's primary. 'Thus, when one votes at a primary he necessarily establishes some party affiliation or membership.'" Id. at 228.  Therefore, the primary voting record establishes party affiliation for a primary candidate. 

The Eighth District Court of Appeals held that a candidate may run in a Republican primary after voting in Democratic primaries.  State ex rel. Kelly v. Board of Elections of Cuyahoga County, 1994 WL 133039 (Ohio Ct. App. 8th Dist. April 13, 1994).  The candidate's declaration of candidacy containing a statement pledging her allegiance to the Republican Party, along with "not voting in any party's primary for the preceding two calendar years is sufficient foundation to establish new party affiliation" for the purposes of primary candidacy. Id. at 4.  The Eighth District Court of Appeals, further discussing the parameters of ORC § 3513.191 (statute governing primary candidates) and quoting the Ohio Supreme Court, the court stated that ORC § 3513.191 "does not prevent a person from changing party affiliation within the specified period.  A person may change parties at any time by aiding the party in its campaigns and objectives. "The person may also, during such period, vote at primary elections as a member of the party. The only thing he cannot do is run in a party primary as a candidate for that party until the disqualification imposed by R.C. 3513.191 is removed." Kelly, 1994 WL 133039, at *4 (quoting Bible, 258 N.E.2d at 229). 

The Eleventh District Court of Appeals, interpreting ORC § 3513.191 slightly differently, requires an "affirmative act" to change prior affiliation, such as registering and voting in the new party's primary.  State ex rel. Bouse v. Cickelli, 120 N.E.2d 898 (Ohio Ct. App. 11th Dist. 1954).  This act is required even if the statutory waiting period has expired.  Id. at 899. All three courts indicate that this definition of party affiliation only applies to determine eligibility for primary candidacy, and a person generally can change party affiliation any time, regardless of voting record. 

The Bible and Kelly cases both require that a candidate not have voted in a different party's primary within the two-year period prescribed in ORC § 3513.191 if the candidate wishes to run as a candidate for nomination or election in a partisan primary, because that voting record establishes affiliation with a different political party.  By these standards, Morrison is a Republican.  The Bouse case, which the Morrison protestors rely on, requires an affirmative act in order to affiliate with a new party, such as voting or registering in the new party's primary. 

However, all three cases are determining party affiliation for the purposes of primary eligibility.  Morrison is not running for a partisan primary nomination; he is running for a general election seat.  Also, he is not trying to establish allegiance to the opposite political party, but to the concept of independence.   There is no affirmative act, such as voting in an independent primary, that Morrison could have used to show his independence.  Independent primaries do not exist.

If a court of law deciding on this issue uses the Bible, Kelly, or Bouse cases to help clarify "affiliated with a political party" in ORC § 3501.01's definition of "independent candidate," Morrison could have a problem.  However, he could just as easily use the cases to say that ORC § 3513.191 only defines "party affiliation" for party primary candidates, and he is an independent candidate for the general election because he "claims not to be affiliated," which is all that is required under ORC 3505.01's definition of an independent candidate.

B.  The effect of Morrison's candidacy for Republican Party Central Committee

The "sore loser" statute, Ohio Revised Code 3513.04, does not apply to exclude independent candidates who ran for partisan party committee seats during the primary election from running in the general election.  State ex rel. Moss v. Franklin County Board of Elections, 432 N.E.2d 210 (Ohio Ct. App. 10th Dist. 1980). The Tenth District Court of Appeals reasoned that the General Assembly distinguishes between seeking party nomination to an office and seeking election to an office in ORC § 3513.04.  The court held that seeking election to a party central committee is not the equivalent of seeking party nomination and thus Mr. Moss was not precluded from running as an independent after having sought election to the party central committee in the primary.  Addressing the issue of a general election candidate's independence, the court also stated "There is no statutory prohibition against an officer of a political party seeking election for an office by filing nominating petitions as an independent candidate    . . . . Under Ohio law, 'independent candidate' does not mean one that is not a member of a political party. Rather, it merely means that the person is seeking election to an office as an independent candidate, rather than pursuant to party nomination at the primary election." Id. at 215.



This analysis is supported by the language required in an independent candidate's petition.  An independent's declaration of candidacy does not require a claim of independence or a claim not to be affiliated with a political party.  See ORC § 3513.261.  A candidate simply declares his or her "desire to be a candidate."  Id.  Moss's claim to independence, or "desire to be a candidate" as required under ORC § 3513.261 is what made him eligible as an independent.

In Foster v. Cuyahoga County Board of Elections, the Eighth District Court of Appeals held that 3513.04 excludes a candidate from a partisan write-in county election after he lost in the primary for a federal office, even though federal offices are not specifically mentioned by 3513.04.  Foster v. Cuyahoga County Board of Elections, 373 N.E.2d 1274 (Ohio Ct. App. 8th Dist. 1977).  On the independence of a partisan primary candidate, the court stated that "a loser in a party primary is not an independent in terms of political philosophy; party allegiance was demonstrated by candidacy in the primary election."  Id. at 1286.  The court identified the purpose of the "sore loser" statute as preventing "a disappointed party candidate who has failed to be selected as a nominee in the primary from again trying to be placed on the elective ballot by entering the arena as an independent candidate." Id. at 1286. Although this again is referring to a candidate who sought "nomination" in the primaries, it is illustrative of the statute's overall purpose. This shows that other courts may be willing to construe the language of 3513.04 more broadly than did the Moss court, perhaps broadly enough to cover party committee candidates in general elections.

However, after the Ohio Supreme Court's decision in State ex rel. Purdy v. Clermont County Board of Elections, in which the court held that a candidate who lost in the party primary for Congress could not run for a non-partisan state school board seat, the General Assembly changed the "sore loser" statute to exempt state school board candidates and other nonpartisan offices. See State ex rel. Purdy v. Clermont County Board of Elections, 673 N.E.2d 1351, 1356 (Ohio 1997).  Thus, the General Assembly has signaled its intent that the "sore loser" statute has limited application, perhaps limited enough to preclude a challenge under the kind of reasoning used by the court in Foster.  In fact, the court in Purdy stated that, "compliance with R.C. 3505.04 [nonpartisan election requirements] does not necessarily mean that a person who decides to run for a nonpartisan office is not affiliated with a particular party." Id. at 1366.

The Purdy and Foster cases both affirmed the constitutionality of the "sore loser statute." They both relied in part on the U.S. Supreme Court's reasoning that upheld such a statute in California because it serves the legitimate state interests of preventing ballot crowding, voter confusion, and intraparty struggles, while reserving the general election ballot for major contests.  See Storer v. Brown, 415 U.S. 724 (1974).  An intraparty struggle is strongly suggested by the "independent candidacy in the general election of a defeated primary party candidate."  Foster, 373 N.E.2d at 1286.  Reserving the general election ballot for major contests means that candidates should be either the representatives of a major political party or a group independent of a major political party "to prevent two candidates of similar political philosophy and party background from splitting the vote and thereby allowing a candidate whose party has only minority support from winning."  Id.

Keeping Morrison off the ballot would likely further the legitimate state interests described by the Ohio courts when upholding the constitutionality of the "sore loser" statute. Morrison's candidacy could cause voter confusion, since he has been a Republican candidate for this Congressional race in the recent past, and ran as a Republican in the 2006 primary, albeit for a different position.  Also, the protesters of Morrison's candidacy are two Republican Party county chairmen.  The two votes against Morrison on the Franklin County Board of Elections were Republicans.  Finally, there is much speculation that Blackwell's decision will impact Blackwell's support within the Republican Party for his gubernatorial bid.  Columbus Dispatch, May 23, 2006.  Despite Morrison's argument that this very rejection by party leaders caused him to claim his independence from the Republican Party, his candidacy has clearly caused an intraparty struggle.  If speculation is true that Morrison would take votes from Pryce in a close race, it is also possible that his candidacy disrupts a major contest. 

However, if the Tenth Circuit Court of Appeals in Moss allowed Moss to run as an independent after running for central committee in the primary, Morrison, whose case would be heard in the same circuit, should be allowed as well.  It did not matter to the court that Moss, like Morrison, signed declarations of candidacy as required under ORC § 3513.07 swearing he was a member of a political party, or that he ran or voted in a partisan primary.  The relevance of Foster could be discredited using the Moss reasoning that, while the sore loser statute applies to those who seek nomination in the primary such as the candidate in Foster, it does not apply to those who seek election to a party central committee, as did Morrison.  Plus, the General Assembly's response to Purdy, and the Purdy opinion itself, demonstrates that the "sore loser" statute should be construed narrowly.

IV. Conclusion

Secretary Blackwell's decision focused on Morrison's affirmative acts of Republican party affiliation, such as running for Republican Party Central Committee and voting in the 2006 Republican primary.  There were no affirmative acts showing Morrison's independence.  Further, according to Storer v. Brown, 415 U.S. 724 (1974), states have the right to limit independent candidacy to those who are truly independent.  Charles Morrison II, with his affirmative acts of Republican party affiliation rather than independence, according to Blackwell's analysis, is not truly an independent.   

An "independent candidate" is one who claims not to be affiliated with a political party.  ORC § 3501.01. Charles Morrison claims that despite his voting record and primary candidacy for Republican Party Central Committee, he is an independent.  His protesters and the Secretary of State say he is a Republican.  When deciding whether to let Morrison stay on the ballot, a judge could choose to focus on this newly changed definition of "independent," which seems to empower candidates to announce their party affiliation regardless of voting record or past candidacies.  Bible and Moss could be relied on to say that voting record and partisan primary candidacy do not cancel out a candidate's claim to this independence.  In contrast, using Foster, a judge could embark on a more purposive approach and apply the reasoning for the "sore loser" statute to keep Morrison off the ballot in order to avoid intraparty struggles.  Regardless of which way the courts ultimately rule, clarification is needed for interpreting these conflicting statutes and their definitions of "independence" and "party affiliation."

Update

Morrison v. Colley

Page last updated 8/10/06

United States District Court for the Southern District of Ohio

Case No. 2:06-cv-00644-GCS-TPK

Summary:

On July 27, 2006, Morrison and two supporters who would like to vote for him sued the Franklin County Board of Elections and its members.  The suit claimed that an Ohio statute defining the process aspiring independent candidates must follow to gain access to the ballot (R.C. 3513.257) is unconstitutionally vague in violation of Plaintiffs' rights to due process, rights to equal protection, and First Amendment rights of free speech and association. 

The complaint attacked R.C. 3513.257 on its face because the "Statute is arbitrary, devoid of objective standards... allowing Defendants to selectively deny ballot access for politically-motivated or other illegitimate reasons ...."  Complaint ¶ 37.  It also attacked Defendants' interpretation of the statute because it "imposes an unreasonable and discriminatory burden on Morrison which is unjustified by a substantial or compelling governmental interest ...."  Id. ¶ 38.  According to the complaint, "Defendants have... selectively and discriminatorily enforced the Statute against Morrison in violation of his right to the equal protection of the laws ...."  Id. at ¶ 40.    The complaint sought a preliminary and permanent injunction to prevent Defendants from using the statute against Morrison and to force them to certify him as an independent candidate in the November 7, 2006, election.

Four days after the complaint, Morrison filed his motion for a preliminary injunction.  To obtain a preliminary injunction, Morrison must show, among other things, a likelihood of success at trial.  To do this, Morrison relied most heavily upon Hynes v. Mayor of Oradell, 425 U.S. 610 (1976), to make the argument that the statute was vague as written and as interpreted by the Defendants and the Secretary of State.  Hynes invalidated a municipal ordinance regulating political canvassing because "men of common intelligence must necessarily guess at its meaning," i.e., because it was vague.  Id. at 620-621. 

As in his complaint, in his motion Morrison attacks both the language of the statute and the way that Defendants have interpreted that language.  First, he claims that it is unclear whether 3501.01(I)'s definition of an "independent candidate" as "any candidate who claims not to be affiliated with a political party" amounts to a requirement candidates must fulfill in order to be certified for the ballot, or whether this language merely describes "a person who has [already] satisfied the requirements set forth" by R.C. 3513.257.  Motion at 11.  He also claims that "it is unclear ... whether the aspiring candidates must merely have 'claim[ed] not to be affiliated with a political party,' or whether they must truly be unaffiliated with a political party."  Id. at 11-12.

Furthermore, Morrison argues that this confusion is "only exacerbated by the conflicting constructions of the Statute offered by Defendants and the Secretary ...."  Id. at 13.  For instance, referencing Defendants' construction of the statue contained in a letter to the Secretary of State, Morrison attacks the Defendants' interpretation of the statute as requiring aspiring independent candidates to take an "affirmative act" that shows they are "unfettered by membership in or affiliation with a political party."  Id. at 13.  Morrison claims that this interpretation "leaves aspiring candidates with no guidance as to what they must do (or not do) to comply with its terms."  Id.

"[W]hat 'affirmative act' of disassociation is required to comply with this requirement?  And when must it occur?  Is the candidate required to complete this 'affirmative act' of disassociation before he files his nominating petition, or can it be completed after the petition is filed? ...  Who must witness the affirmative act of disassociation?  Is the candidate required to take this 'affirmative act' in the presence of an elections official, or is some other setting appropriate? ...  What does it mean to be a 'member[]' of a political party?  What does it mean to be 'affiliated with' a political party?"

Id. at 14.

These are the questions Morrison claims the Defendants' interpretation of the statute impermissibly leaves unanswered.  Morrison claims that the Secretary of State's interpretation of the statute expressed in another letter attached to the complaint likewise fails to answer these questions and others.  Id. at 16-17.  He also claims that the lack of clarity in the statute and the Defendants' interpretation of it allows partisan officials in the Board of Elections and Secretary of State's office "unfettered and unreviewable discretion ... to deny ballot placement to a person desiring to become an 'independent candidate'"—a factor that contributed to the Supreme Court's invalidation of the statute in Hynes, supra.  Id. at 17.

[cc4]

Shouldn't this start with the next primary season in fairness to the candidates currently running?  How far back does the ruling go?  Might this affect the election of Jay Williams, who ran an as Independent?

[Frank Bellamy, MAP Masters of Applied Politics]

Non Party Candidates may file Lawsuit based on Constitutional Issues

Today all statewide Independent Party Candidates set to compete in the November General Elections got a jolt of bad news.  It appears that, if a potential Independent Party Candidate voted in the preceding [Partisan] Primary Election, that candidate forfeits their Independent status and would then default to the party of primary vote.

Sadly, the Appeals Court Ruling has some level of strength and court fights are expected statewide.  Will the local Independent Party Candidates with Certified Petitions, file a court action challenging this on Constitutional and Inadequate Notification Laws?  This may take spending some money...I've got 5 On It!

Good Luck to All of the Candidates....No matter what Party, just vote!