On October 7, the very last day for an appeal to be filed in Libertarian Party of Ohio v Husted, the Ohio legislature filed papers to intervene in the case, and to appeal to the 6th circuit. The Secretary of State doesn’t want to appeal, but the legislature does. First the legislature will need to persuade the court to let it intervene. If the legislature is permitted to appeal, then it will ask the 6th circuit to overturn the U.S. District Court order of September 7 that put the party on the 2012 ballot.
The legislature’s action is especially surprising, given that the law passed by the legislature in 2011, HB 194, is now suspended. With HB 194 not in effect, and with the primary set for March instead of May, the statutory deadline for new parties to submit a petition to be on the ballot in 2012 is November 2011, the very same deadline held unconstitutional in 2006 by the 6th circuit. Even if HB 194 weren’t suspended, the deadline would be in December 2011, almost as bad. Furthermore, due process would seem to provide that even if December 2011 were constitutional on its face, such a deadline can’t be imposed on such short notice.
HB 194 is suspended because a referendum petition was recently filed. When new laws are subject to a referendum, they can’t go into effect until the voters vote on the new law. Assuming the referendum petition has enough valid signatures, that vote on HB 194 would be in November 2012.
The 6th Circuit in a divided 2-1 opinion in Bracewell said that it was the combination of the March primary and the 120-day deadline that was the problem.
In Brunner the district court struck down an executive edict by the Secretary of State which would have reduced the deadline to 100 days, because Brunner did not have authority under the US Constitution to prescribe the manner in which federal elections are conducted. It in particular rejected the notion that Brunner was just “interpreting statutes” with regard to the regulations for presidential elections. Despite the rejection of Brunner’s edict as unconstitutional, the decision whined about the legislature’s inaction.
The court then went on say that the even if the regulations had been passed as law, a change in the effective deadline to late November was too early.
In Husted, the court ignored that the primary had been moved, which changed the effective deadline by 90 days, and instead concentrated on the change from 100 to 90 days, and went off on a pissy tirade about the Secretary of State complaining about his workload.
The federal judge (Marbley) seems to have forgotten that it is the legislature that passes laws governing congressional elections, and not the Secretary of State. The USDOJ is trying to force New York to move its primary so that there is time to send out ballots 45 days before an election. He says the change is a “mere 30” days, ignoring that the circuit court (in a 2-1 decision) had emphasized the combination of factors that required filing a year before the election. He also appears to exhibit a political bias, by suggesting that the referendum effort on HB 194 was motivated by the change in the deadline. He might have as easily claimed that people were upset about the switch to a May primary.
If the primary were moved to September, Judge Marbley would still be asserting that 60 days was much too long to organize an election. While Richard Winger can grasp the effect of the combination of the deadline and the primary date, Judge Marbley exhibited no such understanding.
The legislature by intervening is simply reasserting its prerogative to provide the manner in which congressional and other elections are conducted. It is understandable that the judiciary, executive, and lawyers are opposed to this effort to reclaim an area where they have infringed.
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