In the Case of Niel Petersen
Ohio's Primary and General Election laws have shown great weakness by allowing tomfoolery between Democrats becoming Republicans to game the system and pushing out legitimate unaffiliated candidates.
Disclosure
We do not support Ohio’s “open primaries”, with that being said, Ohio’s primaries are “open or considered a modified primary” and it is the law of the land. What this means is that you have the freedom to pull any affiliated or unaffiliated ballot. In Ohio, an unaffiliated ballot - is an issues-only ballot with no political races. The Committee for a Better Ohio strongly advocates for closed primaries where Ohioans have the freedom to declare an association/affiliation to a political party or not to declare an association. We do not support the present system where the Secretary of State determines an Ohioan’s political affiliation without a declaration.
Most Ohioans do not know….. that if they don’t regularly vote in the primary of their political party of choice - that they are not considered affiliated - even if they volunteer and donate regularly to that party. Additionally, the Ohio Secretary of State makes erroneous adjustments to Ohioan’s political affiliation on a regular basis - and without a transparent and easy process to challenge such mistakes. This makes any affiliation, or lack of affiliation, asserted by the Ohio Secretary of State of Ohioans even more dubious of a distinction.
Freedom of Association
The Supreme Court has long held that the First Amendment's protection of free speech, assembly, and petition logically extends to include a “freedom of association." Generally, this means we have the freedom to associate with others who have similar political, religious, or cultural beliefs. This includes political parties or specific candidates.
Ohio's method of determining party affiliation creates an unconstitutional burden on the right of free association by denying the right to “not associate.”
Unlike other states, Ohio has an open (modified) primary, and political affiliation is not determined by the voter through declaration or affidavit. There is no freedom to declare an association with a political party in Ohio. What this is to say is - if you are a registered Republican or Democrat in Ohio and you want to become an independent you have to pull an issues-only ballot. Unfortunately, many times, there are no issues only ballots to pull during a primary election for a great deal of Ohioans. This in effect, prevents Ohioans from freely associating with another party or disassociating themselves from a party. The Ohio Secretary of State determines party affiliation by primary ballot request and this methodology effectively prevents freedom of association with a specific candidate but not with a candidate’s party. In LUBIN V. PANISH, 415 U.S. 709, 716 (1974) - Justice Stevens remarked “As we have repeatedly recognized, voters can assert their preferences only through candidates or parties or both. "It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.”
Additionally, in the case of Ohio’s split primary for 2022 held on May 3rd and August 2nd, the Secretary of State is allowing an impermissible advantage for those that vote for major parties - that they can change their party affiliation from May 3rd to August 2nd. Meaning that you could vote as a Republican in the May 3rd election and vote as a Democrat in the August 2nd election - or vice versa. If we allow split affiliation such as this, in a primary, is there really any good faith expectation of party affiliation.
What we are saying is that if you can vote for Mike DeWine on May 3rd as a Republican and then for Democrat candidates on August 4th, then Niel Petersen should logically be able to vote as a Republican on May 3rd and have the freedom to choose to be unaffiliated and run as an independent for the General election.
Ohio does not provide a method for those that only wish to only associate with a particular candidate of a major party and not with a political party in the primary. It is not at all clear to the public-at-large that party affiliation is determined solely by which party ballot is pulled. There is no good faith affirmation for electors or candidates - without a declaration or affidavit indicating the preference to associate with a political party.
Good Faith
Voters who live in states with closed primaries are required to register with a political party in order to vote in that party’s primary. If you wanted to vote in the Republican primary in New York, you have to register as a Republican. Oftentimes, third-party voters are locked out of the Republican and Democratic primaries. But some states, like Oklahoma, are a bit of a hybrid and let independent voters choose which primaries they want to participate in.
If Petersen is prevented from running because of a “good faith” issue in determining party affiliation, Ohio’s election law will place an unequal burden on Independent candidates - this violates the 14th Amendment to the US Constitution. Petersen’s request for an issues-only ballot for August 2nd - shows good faith (Democrats and Republicans can change their affiliation during the primary but an elector cannot become an Independent/unaffiliated during the same time if your area lacks an issues-only ballot.) This is important because the status of Petersen’s eligibility as an independent comes into play when his petitions are certified on July 15th (an arbitrary date set by the Secretary of State)
Equal Application of the Law
Candidates that participate in the August 2nd primary will most likely not have their election results certified until at least the middle of August if not until September 1st (30 days).
This necessarily means that major party candidates get a much longer time to determine who their candidates for the General election are. The determination by the Secretary of State for Independent candidates’ verification of signatures is July 15th - this determines the independents in the General Election. The deadline for when petition signatures had to be submitted by Independents was May 3rd and was not extended for independent candidates when the Ohio primary became split.
An earlier determination and submission deadline than what is necessary may have a substantial impact on independent-minded voters. In election campaigns, particularly those which are national in scope, the candidates and the issues simply do not remain static over time. Various candidates rise and fall in popularity; domestic and international developments bring new issues to center stage and may affect voters' assessments of national problems. Such developments will certainly affect the strategies of candidates who have already entered the race; they may also create opportunities for new candidates. The Ohio Secretary of State erred when he did not extend the deadline for submission of petition signatures for independent candidates and erred again in setting the July 15th date as the determination of the Independent candidates that will be on the November 9th ballot. ANDERSON V. CELEBREZZE determined that arbitrarily early dates imposed on independent candidates are not reasonable and will not be upheld.
Differing Standards
Ohio’s election process requires an independent candidate to skip the primary process altogether and go straight to the General Election - only if they collect five times the signatures that a major-party candidates need to get on the primary ballot. By requiring an independent candidate for Ohio Governor to secure five times more signatures than a major party candidate, and in providing a different individuous process - the State of Ohio has violated the equal protection clause of the Fourteenth Amendment of the US Constitution.
Ohio’s election law for independent candidates is an impermissible burden above and beyond that of major party candidates. These requirements and other restrictive statutory provisions severely handicap independent candidates qualifying for ballot positions.
The State of Ohio has asserted that the following interests are served by the restrictions it imposes:
It claims that the State may validly promote a two-party system in order to encourage compromise and political stability. The fact is, however, that the Ohio system does not merely favor a "two-party system"; it favors two particular parties — the Republicans and the Democrats — and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past.
Ohio makes a variety of other arguments to support its very restrictive election laws. It points out, for example, that if three or more parties are on the ballot, it is possible that no one party would obtain 50% of the vote, and the runner-up might have been preferred to the plurality winner by a majority of the voters. Concededly, the State does have an interest in attempting to see that the election winner by the choice of a majority of its voters. But to grant the State power to keep all political parties off the ballot until they have enough members to win would stifle the growth of all new parties working to increase their strength from year to year. Considering these Ohio laws in their totality, this interest cannot justify the very severe restrictions on voting and associational rights which Ohio has imposed.
The State also argues that its requirement of a party structure and an organized primary insures that those who disagree with the major parties and their policies "will be given a choice of leadership as well as issues" since any leader who attempts to capitalize on the disaffection of such a group is forced to submit to a primary in which other, possibly more attractive, leaders can raise the same issues and compete for the allegiance of the disaffected group. But while this goal may be desirable, Ohio's system cannot achieve it. Since the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected "group" will rarely if ever be a cohesive or identifiable group until a few months before the election. Thus, Ohio's burdensome procedures, requiring extensive organization and other election activities by a very early date, operate to prevent such a group from ever getting on the ballot and the Ohio system thus denies the "disaffected" not only a choice of leadership but a choice on the issues as well.
Finally, Ohio claims that its highly restrictive provisions are justified because without them a large number of parties might qualify for the ballot, and the voters would then be confronted with a choice so confusing that the popular will could be frustrated. But the experience of many States, including that of Ohio prior to 1948, demonstrates that no more than a handful of parties attempt to qualify for ballot positions even when a very low number of signatures, such as 1% of the electorate, is required. It is true that the existence of multitudinous fragmentary groups might justify some regulatory control but in Ohio, at the present time this danger seems to us no more than "theoretically imaginable." No such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case.
The Equal Protection Clause of the Fourteenth Amendment permits the States to make classifications and does not require them to treat different groups uniformly. Nevertheless, it bans any "invidious discrimination." Invidious discrimination has been defined as a classification that is irrational and not reasonably related to a legitimate purpose.
Quite clearly - there is no legitimate reason why independent (unaffiliated) candidates should not face off against each other and secure the same 1,000 signatures needed to qualify for the primary ballot as major-party candidates do. This would in effect allow access to candidates that choose not to associate with any party. This would provide a level-playing field and would bring greater competition and freedom of choice to the political parties. This equally applied system would ensure that a grotesque amount of candidates do not flood the General election - yet provides legitimate competition and choice. By adding a runoff election in case no candidate gets 50% of the vote in the primary and general election - we can be assured the winner reflects the will of the people.
Voting for Petersen will split the vote and put Whaley in office. I don't like DeWine BUT he is our only choice now.