Ohioans Against Corporate Bailouts, LLC v. LaRose

414 F.Supp.3d 1058

OHIOANS AGAINST CORPORATE BAILOUTS, LLC, aka Ohioans Against Corporate Bailouts, et al., Plaintiffs,

v.Frank LAROSE, in His official capacity as Ohio Secretary of State, et al., Defendants.

Case No. 2:19-cv-4466

United States District Court, S.D. Ohio, Eastern Division.

Signed October 11, 2019

Brian C. Shrive, Christopher P Finney, Finney Law Firm, LLC, Curt Carl Hartman, Cincinnati, OH, Patrick M Quinn, Brunner Quinn, Columbus, OH, Joseph A. Vanderhulst, Pro Hac Vice, Langdon Law LLC, West Chester, OH, for Plaintiffs.

John Doe # 2, pro se.

Bridget C Coontz, Ohio Attorney General's Office, Ann Yackshaw, Ohio Attorney Generals Office Constitutional Offices Section, Andrew Donald Matthew Miller, Columbus City Attorney's Office Civil Litigation Section, Lara N Baker-Morrish, Columbus City Prosecutor's Office, Columbus, OH, for Defendants.

ORDER

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE

Plaintiffs are "sponsors, managers, circulators, and signers of a referendum petition" seeking to subject Amended Substitute House Bill 6 ("H.B. 6") to a referendum at the general election in 2020. (ECF No. 2 at 6). To gain access to the 2020 general election ballot, Plaintiffs must submit to the Secretary of State a petition containing the required signatures no later than October 22, 2019. Before this Court is Plaintiffs' Application for a Temporary Restraining Order enjoining enforcement of Ohio Revised Code § 3501.381. (ECF No. 2). Oral argument was held on October 11, 2019. For the reasons set forth below, the Court GRANTS in part and DENIES in part Plaintiffs' Application for a Temporary Restraining Order.

I.

The Ohio Constitution reserves to the people the power to adopt or reject any law at the polls on a referendum vote. Oh. Const. Art. II, § 1. But before a referendum may be placed on the statewide ballot, a petition signed by six percent of Ohio electors must be filed and verified by the Ohio Secretary of State. Oh. Const. Art. II, § 1c.¹

Plaintiffs contend that an Ohio statute governing the collection of signatures for referendum petitions violates the First and Fourteenth Amendments to the United States Constitution. (ECF No. 2 at 14-15). Ohio Revised Code § 3501.381 states:

(A)(1) Any person who will receive compensation for supervising, managing, or otherwise organizing any effort to obtain signatures for a declaration of candidacy, nominating petition, or declaration of intent to be a write-in candidate for a person seeking to become a statewide candidate or for a statewide initiative petition or a statewide referendum petition shall file a statement to that effect with the office of the secretary of state before any signatures are obtained for the petition or before the person is engaged to supervise, manage, or otherwise organize the effort to obtain signatures for the petition, whichever is later. [emphasis added]

Any person who violates Ohio Revised Code § 3501.381 is guilty of a first-degree misdemeanor and therefore subject to serve up to 180 days in jail, pay a fine up to $1,000, or both. Additionally, the petition for which the offender "was compensated for supervising, managing, or otherwise organizing the effort to obtain signatures" is entirely invalid. Ohio Rev. Code § 3501.381(C) ; see Ohio Renal Assoc. v. Kidney Dialysis Patient Protection Amend. Comm. , 154 Ohio St. 3d 86, 92, 111 N.E.3d 1139, 1145, 2018-Ohio-3220, ¶ 26 (2018).

The statement required to be filed under Ohio Revised Code § 3501.381 is done on Form 15s. Plaintiffs claim that they have coordinated the preparation, signing, processing, and filing of approximately 1,175 Form 15s from its managers, supervisors, and circulators containing those individuals' names, addresses, and other contact information. (ECF No. 2 at 12). Plaintiffs assert that the pre-registration requirements of Ohio Revised Code § 3501.381 "has directly resulted in enabling the organized, well-funded and overly aggressive opposition harass, block and threaten the petition circulation efforts" and that petition circulators have encountered "prevalent harassment and violence." (ECF No. 2 at 33).

II.

A district court must balance four factors when considering a request for a temporary restraining order: (1) whether the claimant has demonstrated a strong likelihood of success on the merits; (2) whether the claimant will suffer irreparable injury in the absence of a stay; (3) whether granting the stay will cause substantial harm to others; and (4) whether the public interest is best served by granting the stay. Workman v. Bredesen , 486 F.3d 896, 905 (6th Cir. 2007). "These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together." Cooey (Biros) v. Strickland , 589 F.3d 210, 218 (6th Cir. 2009) (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog , 945 F.2d 150, 153 (6th Cir. 1991) ). " ‘When a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.’ " Libertarian Party of Ohio v. Husted , 751 F.3d 403, 412 (6th Cir. 2014) (quoting Connection Distrib. Co. v. Reno , 154 F.3d 281, 288 (6th Cir. 1998) ). "With regard to the factor of irreparable injury, for example, it is well-settled that loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. (internal quotations omitted).

III.

The central issue before this Court at this stage is whether the pre-registration requirements of Ohio Revised Code § 3501.381 apply to paid petition circulators, "The Supreme Court has held that petition circulation is ‘core political speech’ for which First Amendment protection is ‘at its zenith.’ " Citizens in Charge v. Brunner , No. 2:10-CV-95, 2010 WL 519814, at *2 (S.D. Ohio Feb. 10, 2010) (quoting Buckley v. Am. Constitutional Law Found. (ACLF) , 525 U.S. 182, 186-87, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) ). "[T]he Supreme Court has reviewed First Amendment challenges to disclosure requirements in the electoral context under what it has termed ‘exacting scrutiny.’ " Libertarian Party of Ohio v. Husted , 751 F.3d 403, 413 (6th Cir. 2014) (quoting John Doe No. 1 v. Reed , 561 U.S. 186, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010)). "To withstand exacting scrutiny, the Supreme Court has explained, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights." Libertarian Party of Ohio v. Husted , 751 F.3d 403, 414 (internal quotations omitted). "The burden a ballot-access disclosure requirement imposes on a First Amendment right may be sufficiently serious as to require strict scrutiny." Libertarian Party of Ohio , 751 F.3d at 414 (citing ACLF , 525 U.S. at 192 n.12, 119 S.Ct. 636 ).

In ACLF , the Supreme Court affirmed invalidation under the First Amendment of portions of a Colorado statute requiring monthly and final reports disclosing paid petition circulators' names, addresses, and amounts paid to those circulators. ACLF , 525 U.S. at 201-204, 119 S.Ct. 636. The Supreme Court held that: "[l]isting paid circulators and their income from circulation forc[es] paid circulators to surrender the anonymity enjoyed by their volunteer counterparts" and that "no more than tenuously related to the substantial interests disclosure serves, Colorado's reporting requirements, to the extent that they target paid circulators, fai[l] exacting scrutiny." Id. at 204, 119 S.Ct. 636 (quotations omitted). Relying on ACLF , this Court found an Ohio statute requiring disclosure of the names and addresses of paid circulators, and the amounts paid to those circulators, unconstitutional and granted a permanent injunction enjoining enforcement of the statute. Citizens in Charge v. Brunner , 689 F. Supp. 2d 992, 992 (S.D. Ohio 2010).

First Amendment protections for paid petition circulators are thus well-established. If the pre-registration requirements of Ohio Revised Code § 3501.381 extend to paid petition circulators, the statute is indistinguishable from that of the statutes struck down in ACLF and Citizens in Charge and would be unlikely to survive exacting scrutiny. The analysis of the burden created by the disclosure requirement is "fact-intensive[.]" Citizens for Tax Reform v. Deters , 518 F.3d 375, 383 (6th Cir. 2008). In addition, Plaintiffs have offered evidence of the burden of the pre-registration requirements on the First Amendment rights of paid petition circulators—namely, alleged harassment and intimidation of petition supports. John Doe No. 1 v. Reed , 561 U.S. 186, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) (noting that the Supreme Court has recognized that parties may prevail under the First Amendment if they can show disclosure will result in "threats, harassment, or reprisals."). The Complaint provides examples of harassment and intimidation of individuals and vendors that have been widely reported in news media. (See Compl., ECF No. 1 at ¶¶ 59-60). Plaintiff Brandon Lynaugh declares that he has "been made aware of at least two petition circulators [who] have been physically assaulted and have had their property damaged by referendum petition opponents." (See Decl. of Lynaugh, ECF No. 4 at ¶ 24). These reports were significant enough to compel the Ohio Attorney General to send a letter to the U.S. Attorneys for the Northern and Southern Districts of Ohio regarding reports "of petition circulators being targeted, harassed and intimidated by individuals opposed to the referendum effort" and possible federal and state criminal penalties for those actions. (See ECF No. 2 at 9 n.7).

Defendant Frank LaRose contends that Ohio Revised Code § 3501.381 has no application to petition circulations, thereby having no relation to the statute invalidated in ACLF . Instead, he argues that the statute "applies only to the managers, supervisors, and organizers of signature-gathering efforts,...