it please the court then flowers on behalf of secretary rose i would do my best to reserve three minutes for a bottle both for both parties agree that ohio may limit ballot access to initiatives that come within the scope of the initiative power the only question resembling anderson burdick so in my introduction when i say it's not about that what i mean to say is my friend the other side makes none of those arguments the only argument he raises is prior restraint and that argument fails though i'm happy to talk about due process or anything else because i think those arguments fail as well but returning to the prior restraint argument that i think is made it feels for both the trial and practical reasons the dock trial reasons there are two there are two of them the st is that the st amendment does not even applied to laws that govern the process by which are made but i recognize that that question implicates a circuit split and so i want to focus on the nd doctrinal problem which i think would allow this court to resolve the case in our favor without reaching the without wading into the circuit split and that problem is this even if the st amendment applies ballot access procedures let's assume for the sake of argument does even then those procedures are subject to interest and burdock analysis not prior restraint analysis and the reason is as every for every circuit that's addressed the issue has recognized there is no st amendment right to have one's issue placed on the ballot to be sure the initiative process can implicate protected speech so if an issue doesn't make it onto the ballot it can be hard to engage in a signature gathering campaign or to speak out in favor of or against the initiative but there is no right to place the  the law allows initiatives ohio allows initiatives however the county board has the exclusive right to decide whether they want to put it on the ballot and there's no there's no standard to simply do they like it or not the two answers to that the st is that don't think that would be a good the st is what you answers the st is that while that would be a foolish provision i do think states could do that for the reasons th judge table gives them marijuana policy project and judgment common good for the bank th circuit which is that the process for making law is not subject to the st amendment but i want to assume for the sake of argument that it is even then that law that you mention would be subject to inter the question would be how that one would come out and it would be harder if there were absolutely no process for appeal but it counsel i'm sorry you're saying that if if the decision whether or not to let it go assuming it has all the the signatures and all the rest of it that if the decision was solely based on billboard's view of the contents the merits of the contents whether it's a good idea and nothing else but there would be no st amendment issue in that there were dopy and let me explain why the reason why is it's a process of creating legislation when you when you enact initiative it would be like something saying that a senator who wants to bring the bill to the floor has to get the approval of the senate president he would have a st amendment claim and the people would never st amendment claim either because the st amendment is not there on legislation and i would refer your honour's to marijuana policy but then why did you just say you're going to assume for the sake of argument that the st amendment applies so i have two answers to your question the st we do make the argument that it doesn't apply i want to suggest that this case be resolved on the nd problem which is that even if it does apply also assume that for the sake of argument  you almost never get it that's not the case in state court these are a staple of election season they happen constantly and you can look to cases that we cite north main comfort cobb citizen action to brazile youngstown all of those are cases in which part initiative proponents brought in one mandamus suits getting their initiatives placed on the ballot and they did that those are all recent cases that's not even going back in the decades and decades we've been doing this so the question in recent burdick is the burden on speech verses and how it compares the state's interests with the standard being administrative the standard is effectively to know about how it's been explained when you've been mandamus it's clearly go right clearly go duty and no adequate remedy at law but when you look at these cases when they assess whether there's a clear legal right to be on the ballot they don't pay any difference to the boards they simply assessed the matter and in there any authority case case saying that or is this just your reading of what's happening in those ok i suppose a little bit of both it's reading the cases if you look at justice fisher's dissent and  notes that some of the that they're not always consistent with how they describe the standard and then in some cases they do describe the standards paying paying no deference but the most important thing is just on the ground even if they call it the novo and didn't give that over review i don't think that would matter the important thing is what are they in fact doing and in fact which you get with mandamus is guaranteed review in any court in the state including the supreme court of the state seven leading jurists in our state guaranteed review that's effectively de novo on an expedited basis and it's very successful as i mentioned those discretion they'd stay talk about abuse of discretion but in a legal context of course if you misapply the law you've abused the discretion and my friend on the other side can identify one case and i'm not aware of one where the standard that they announce alter the outcome where it would have mattered if they every single one of those cases it's as though they're applying to know every single one i can't find a single exception is there also some avenue going to the trial court for relief we think there is in with x explain to me what that would be and how that's different than relief if you look at a case called miers this is really brought up in miers the supreme court affirmed an injunction ordering a county clerk not to put an issue on the ballot or granted that was by an opponent of initiative not a proponent but there'd be no reason to treat them differently the reason mandamus is what people generally see is that number one because of the expedited nature of these things usually mean if you can't bring it far enough in advance to get the injunctive relief plus an appeal nd frankly mandamus is better again get guaranteed relief in the supreme court of our state if you look at these opinions are not summary dispositions they are very thoroughly reasoned opinions assessing these issues and i can't find one where the standard of review mattered and we pointed that out in several briefs i believe it has and still they've not done that so it's not the extreme remedy it in federal court in federal court mandamus a very different animal than state court briefly not the practical issues with the prior restraint doctrine that my friend argues we know that every state that we're aware of has some sort of pre clearance process for putting issues on the ballot if there's a st amendment right to put an issue on the ballot then every one of those laws a prior restraint many of them would fail the prior restraint analysis that would require striking down these laws what would that lead to overcrowding on the ballots which decreases democratic participation the reason for that is the fifty issues on the ballots you can't possibly inform yourself about all those in this process to this sort of a difficult situation because you're you're arguing something that has nothing to process and i do think that to the extent you agree with that they still have the argument and so the proper course would be to reverse because they waive the only argument that he made well what you're saying judge sarkis did not do a st amendment analysis in the permit in the preliminary great respect for judge starkest but i believe the error here and holding that this wasn't adequate and part of it was based on a misunderstanding of the law i think he cites section article two section one of our constitution saying correctly that that section  guarantees a direct appeal to individuals who who are proponents are up points of a ballot initiative being placed on but not proponents that provision doesn't apply here we're talking about municipal initiative legislations those are governed by one f she relates exclusively to statewide ballot initiatives so i think there was a misunderstanding there so what are you saying they have to go with mandamus also opponents and proponents both to seek an extraordinary read yes it might be prohibition instead of youngstown all of those are recent cases in which people have prevailed in the births of the britons no is not great and it's certainly not greater than a directing of appeal which is what judge starr guess suggested the state should provide instead and so all we need to show is a rational basis in the process of screening out in providing for review in this time tested way that the state's been utilizing for decades protection protects the right to get on the ballot while at the same time making sure that we don't see overcrowding and things of that nature that does it ok i'm sorry does it matter that you have the exact same petition submitted to different municipalities and the decided different ways it doesn't because that's also true in the federal courts of course district courts make mistakes would not be placed on the ballot instead of seeking relief from the state courts as they were required to do they filed a federal lawsuit no no no we're out you're out of time here but let me just ask you your your argument is that there's no  amendment doesn't apply because it would in these circumstances because it would constitute a prior restraint so neither one of you are trying to ensure and the first amendment compare the burdens that a lot of those on the st amendment versus the benefits to the state if the burdens are minor you're close to rational basis review that's the cia case from this court last year and the burden on the st amendment is exceptionally slight because you if you get a guaranteed appeal is in effect to the supreme court of our state seven leading justices in our state will review your complaints effectively to no parties often succeed and so that's not a burden and if it is a burden of st amendment rights it's no greater burden than a direct appeal i personally would rather have a writ of mandamus to our supreme court than appeal to a single common pleas court in ohio and probably not time for a further appeal so the burden is light the rational basis is that this procedure guarantees that we can prevent the concerns of overcrowding that would come from putting every single initiative on the ballot which is what my friend cents on the other side we should be doing and it also frankly protects the reliance interest of ohio citizens if all these things are going on the ballot and then later being held unconstitutional they might organize their businesses or their allies around laws that they think apply but are alternately held by courts not to and so high i was interested funneling thing in making sure there's some review that can be done quickly more than meets the rational basis ok and you're saying there's no due process  hold otherwise clavin last year held that that's an adequate process for protecting against misapplications of state law and i think that's why my friend the other side concedes that just our guest judge argus was unjustified in relying on the due process doctrine though they  terms of whether they have a right now whether they have a protected interest the chief justice is opinion when he was judge roberts in the d c circuit universal city is directly on point and that case movie studios had the ability to claim royalties but they had to time the submit requests basically under federal law and what he said is that unless you follow that procedure unless you use that procedure to to actually make a timely claim you don't have a right at all so is that an exhaustion position exhausting your state r not sure if i know it's not quite that that the point is that when state law creates the process for claiming a state right like the right to get on the ballot you have to utilize the state process before you even get the right so for example if i have an initiative that i never submit i don't have a right to put that on good afternoon and may please the court but after the general flours is made a strong made a weak case for the plaintiffs the he claims we've conceded virtually everything and waived several things and just like to respond to the real quickly what we did make st amendment arguments we made progress during an argument which is a st amendment argument and we also made the rest of the st amendment argument which is if you make content based distinctions you have to comply with restraint well it is it is a part of that also has this court has recognized in the deja vu case this court sad that was the adult business case with a license in this court said that if you have a prior restrain know under the st amendment you i'm speaking of course not to the court i'm speaking just the plaintiffs and you know litigants in general you have two arguments one of the arguments is procedural safeguards under friedman against maryland which was you just want to get this straight earlier and you're saying that you argued to judge sarik is that you win under verdict and you anderson and you win under prior restraint injunction i'm just making it permanent so i reference all of that comes under the permanent relief and then he starts talking about procedure the reason he was doing that is because the doctrine against   strikes incorporates procedural due process that's where the procedural safeguards come from if you look at the friedman case back in sixty five dollars it's an ok go back to sixty five dollars the st amendment was are potentially ok are you saying that all that you have a right to put all initiatives before the people or on ok are you saying that all in es get the due process requirements of freeman it depends on what the state downs with the initiative if the state imposes what ohio does here which is a content based discretionary executive decision that's exactly what ohio does that the supreme court where house mccormick's that clear the the board of elections has discretion the portage county board of elections here said that we are exercising our discretion burden if there is a severe burden strict scrutiny if there is not a severe burden something less balance and then we get into some blasters here in your rational basis this court has said if it is content based is severe which means under andersen burdick if you've got a content based restriction you apply and i'm not telling the court what did i'm just against making you a blue plastic skirt what about the ohio place case where the election judges got pick and choose oh you're wearing political insignia you can't wear that the supreme court said in that case you're asking the election judges to make legal determinations and when you're making legal determinations that's  the court even says that goals are to be completed and reasonable but whether something has to subjects can certainly be far more complicated and nuanced than going one to much more exactly that's the problem ok but you just said it's not content based which the distinction between administrative and legal his content whether such whether ate an initiative involves more than one subject is not simply counting one hundred and twenty one has to make an evaluation based on the face of it whether there is really one or whether it's really two so how do you distinguish that from this i agree ron or there are shades of grey even with the counting numbers wanted to but i must confess it's a lot easier to count the to distinguish between administrative and legal and whether something is wrong with them a constitutional power or a constitutional so is this way but isn't it sort of a little heavy handed to to enjoin all application of this process when you might have situations that  i mean what is wrong with this process for the rest of the questions that need to be decided what's wrong with this process for whether you have enough signatures what's wrong with this process for something that clearly goes beyond the power been issued of your honor we're we're not saying that we're not saying that you cannot require a sufficient number signatures we're not saying you cannot apply any content content neutral criteria you can the law is clear in the states of so hell so our distinction is this goes beyond concrete content criteria what's the injunction that was and it's against using content based discretion to pick and choose amongst the exact same thing that you had mentioned it's having portage county car well i was just telling co counsel that a lawyer in columbus who does a lot of election law stuff did just that at the same time we went to federal court he had a case that came up before the franklin county board of elections and the franklin county board of elections kept the initiative off the ballot and he took it up to the house supreme court and he lost in the reason is who knows what it's a pardon my french it's a it's a shit it's a roll of the dice in the house supreme court but was there a written opinion in house supreme court justice fisher has said this is crazy and even a majority of the justices if that the decisions that the election boards are authorized to make the content they subject matter decisions i can see why this lawsuit wouldn't be resolved in a way that we would go back to a process that would involve the decisions of the county boards of election being reviewed by the oh how supreme court if there's adequate process and here if we decide if we disagree with your st amendment i mean and the sad that this whole matter is subject to content neutral balancing it was saying that the appropriate avenue to resolve this dispute would be in the house supreme court because we're depending upon whether you are prohibition and the house supreme court and that's happening as i understand it that's happened before in these kinds of cases so why oh why i am from a due process standpoint that would be an adequate  process and it would seem so why wouldn't we why wouldn't we vacate the order of the district court and and let's just let the parties resolve this through their avenues that even with the strip club the government cannot do these things but you're right but the state they're telling us they can do it with an initiative that in my opinion that's got completely backwards i think initiatives are much more important than strip clubs but in  to the west of the prime restrain a problem and if you don't like the decision you go to the house supreme court and there's our day they get paid very well to take care of the state related election matter so they do a fine is that does that make it unconstitutional if it's unclear as as the supreme court the supreme court addressed this exact problem in man skate which was the ballot polling place case the the state of minnesota argued you know what what's allowed and what's not we can figure all this out as we go along and justice roberts it was a facial challenge just like ours and our chief justice roberts came back and said now that chill speech if you're just figuring it out as you go along it's the challenge speech that's the reason we allow facial st amendment challenges that's the danger ok but i think i hear you saying that if supreme if a state supreme court is rendering ambiguous decision as they try to figure out what something means and so you really don't know that's unconstitutional that we're that it's not a matter of the executive branch is they have too much discretion and had to in force it but you're actually saying that if state supreme court decisions are confusing that's a constitutional violation we're not saying that what we're saying is it's the executives conclusion without any guidance with ambiguous god passed with confusing guidance with what are just a special call and he had several great adjectives for that even the supreme court majority said difficult guidelines ok and that's what violates all who the seminal he wrote the seminal works on all of this that the supreme court used in friedman and i cited some of his works he said the same thing as a matter of constitutional requirement or constitutional law as a matter st amendment constitutional law i appreciate your honor's longer but a high dose is gone for a while so i'll try to be brief just a few quick points it should have been brought as an as applied challenge in state court the as applied challenge is moot because there there about the initiative was eventually put on the ballot here but what happened it was put on the ballot on not hearing you i don't think this court's decision would have any bearing on its continued validity because it was put on the ballot and it did pass ok but the question then is whether it was validly on the ballot and if we just a nd if we vacate the or the injunction what happens to that to the initiative that was crass i someone could challenge it and say that it wasn't properly on the ballot but that would fail because it was probably was a legislative action i don't see any basis our entire application of the legislative authority statutes so if your honour's think this is really as applied challenge i'd read the whole thing is moot and that would be fine as long as the lower court's injunctions vacated so that we're not bound by going ok and when i what understanding of what was enjoyed i frankly don't know the most likely reading as i think he said you just can't apply these laws at all so everything has to go on the ballot subject to a post election challenge and this is not in the record but i can tell you from our experience we're constantly getting calls from county boards of election that have no idea what they're supposed to be doing right now but that's the reason you need a decision by when we'd like to wrap up all appeals by august th and i do appreciate your honor's hearing this on an expert and that's because you have to give the word one where the other two the boards to be for the next election so that which is in november this year but yeah i believe that's right but i know august th is the date that we needed by for the next election but if i can quickly know tha content base point he's not challenging the content paste aspect of the law page twenty nine of thirty of the brief says schmidt this is a quote does not question ohio's power to find what may be put to the voters through initiatives in other words legislative or initiative schmidt's claim is that ohio gatekeeper law fails because it violates the procedural protections required by the doctrines against prior restraints in other words by putting things in mandamus versus giving a direct appeal that distinct that part of the law is content neutral have one last question you had indicated there are conflicts but on whether or not st amendment applies do you believe the th circuit has ruled on i don't i think the closest they've come is probably c i t l but it was they didn't rule on it because no one argued that the st amendment didn't applied and if you look at taxpayers united in that case out of michigan which is a challenge to a signature requirement followed by mandamus the court said that it pas burdick because it did not and did not regulate speech not regulate the kinds of speech you gave engage with in going into in promoting an initiative it just regulated whether you could actually get on the ballot arguably that's the same view that judge