CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/6/2023 1

Requiring Meaningful Review 

for Keeping an Initiative Off the Ballot 

Schmitt v. Husted 

(Edmund A. Sargus, Jr., S.D. Ohio 2:18-cv-966) 

As an election approached, a district judge enjoined local electionboard discretion—reviewable only by a writ of mandamus—to keep 

an initiative off the ballot. The court of appeals, however, concluded 

that mandamus relief was not so insurmountable as to require federal judicial intervention. 

Subject: Ballot measures. Topics: Ballot measure; getting on the 

ballot; attorney fees. 

Two “drafters and circulators of initiatives calling for reductions of penalties 

in local ordinances in Ohio for those charged with possessing marijuana” 

and a signer of one of their initiatives filed a federal complaint in the Southern District of Ohio on August 28, 2018, challenging the discretion of local 

elections boards to act as gatekeepers in deciding what initiatives to accept 

for the ballot.1

 Named as defendants were three members of a county board 

of elections and Ohio’s secretary of state.2 With their complaint, the plaintiffs 

filed a motion for a temporary restraining order or a preliminary injunction.3

Judge Edmund A. Sargus, Jr., held a telephone conference on the following 

day.4

Judge Sargus set the case for oral argument on September 17.5

 At argument, Judge Sargus and the parties agreed that a decision by September 19 

would not be too late for any remedy the judge provided to be effective.6

On September 19, Judge Sargus issued a temporary restraining order 

provisionally placing on two municipal ballots the plaintiffs’ initiatives.7

Ohio had not justified providing initiative proponents with no avenue for 

review of ballot denial but the high burden of mandamus relief.8

Following an October 4 telephonic status conference, Judge Sargus converted the temporary restraining order to a preliminary injunction to run 

1. Complaint, Schmitt v. Husted, No. 2:18-cv-966 (S.D. Ohio Aug. 28, 2018), D.E. 1; 

Schmitt v. Husted, 363 F. Supp. 3d 842, 847 (S.D. Ohio 2019); Schmitt v. Husted, 341 F. 

Supp. 3d 784, 788 (S.D. Ohio 2018). 

2. Complaint, supra note 1. 

3. Motion, Schmitt, No. 2:18-cv-966 (S.D. Ohio Aug. 28, 2018), D.E. 3; Schmitt, 363 F. 

Supp. 3d at 847; Schmitt, 341 F. Supp. 3d at 788. 

4. Docket Sheet, Schmitt, No. 2:18-cv-966 (S.D. Ohio Aug. 28, 2018). 

5. Order, id. (Aug. 29, 2018), D.E. 9; Notice, id. (Aug. 31, 2018), D.E. 15; see Schmitt, 341 

F. Supp. 3d at 788; Minutes, Schmitt, No. 2:18-cv-966 (S.D. Ohio Sept. 17, 2018), D.E. 21. 

6. Transcript at 26–29, Schmitt, No. 2:18-cv-966 (S.D. Ohio Sept. 17, 2018, filed Apr. 23, 

2019), D.E. 52. 

7. Schmitt, 341 F. Supp. 3d at 792–93; Order, Schmitt, No. 2:18-cv-966 (S.D. Ohio Oct. 3, 

2018), D.E. 26; Schmitt v. LaRose, 933 F.3d 628, 636 (6th Cir. 2019); see Dave O’Brien, Judge 

Orders Marijuana Issues on Portage County Ballots, Akron Beacon J., Sept. 23, 2018, at B10. 

8. Schmitt, 341 F. Supp. 3d at 791. 
Requiring Meaningful Review for Keeping an Initiative Off the Ballot 

2 Federal Judicial Center 10/6/2023 

through the election, and he set oral argument on how the case should proceed after that for December.9

 The initiative failed in one municipality and 

passed in the other, in addition to passing in other municipalities in the 

state.10

“At the December 19, 2018 hearing, the parties stipulated that Plaintiffs’ 

motion for injunctive relief is ripe for review because Plaintiffs intend to 

submit identical initiative petitions in upcoming voting cycles.”11

On February 11, 2019, Judge Sargus granted the plaintiffs permanent relief.12

In the ballot initiative process, . . . the State of Ohio has not provided Plaintiffs an adequate review process. Instead, the gatekeeping function enables a 

board of elections—an executive body—to make legal determinations without providing denied petitioners a right to review. The only possibility of 

review requires an aggrieved petitioner to convince a court of appeals or the 

Supreme Court of Ohio to exercise its discretion under heightened standards.13

The court of appeals vacated the injunction on August 7, determining 

that mandamus relief was not a severe enough burden to invalidate the 

board’s discretion.14

It is reasonable to conclude that the cost of obtaining legal counsel and 

seeking a writ of mandamus disincentivizes some ballot proponents from 

seeking to overturn the board’s decision, thereby limiting ballot access. As a 

result, the burden imposed by the Ohio ballot-initiative process is somewhere between minimal and severe . . . .15

The court observed, 

Plaintiffs have identified no case in which the Ohio Supreme Court questioned the legal determination of a board of elections but nevertheless deferred to its discretion. Rather, the cases show that notwithstanding the 

stated standard of review, the court considers the proposed initiative and 

makes an independent reasoned determination whether it is within the 

Ohio Constitution’s grant of legislative authority. . . . 

9. Order, Schmitt, No. 2:18-cv-966 (S.D. Ohio Oct. 4, 2018), D.E. 28; Notice, id. (Oct. 6, 

2018), D.E. 33 (resetting oral argument for December 19); Schmitt, 933 F.3d at 636; Schmitt 

v. Husted, 363 F. Supp. 3d 842, 847 (S.D. Ohio 2019); see Docket Sheet, supra note 4 

(minutes, D.E. 36); Notice, Schmitt, No. 2:18-cv-966 (S.D. Ohio Oct. 4, 2018), D.E. 27 (setting oral argument for December 18). 

10. See Michael Sangiacomo, Marijuana Reform Passed, but . . ., Cleveland Plain Dealer, 

Nov. 19, 2018, at A1. 

11. Schmitt, 363 F. Supp. 3d at 847; Transcript at 3, Schmitt, No. 2:18-cv-966 (S.D. Ohio 

Dec. 19, 2018, filed Apr. 23, 2019), D.E. 53 (“THE COURT: . . . So we all understand then 

that at least at this stage, you’re all agreeing that there is an issue of repetition here and it is 

an election case so we’ll go forward on the merits.”); see Order, id. (Apr. 15, 2019), D.E. 50, 

2019 WL 1599040 (clarifying relief). 

12. Schmitt, 363 F. Supp. 3d 842; Schmitt, 933 F.3d at 637. 

13. Schmitt, 363 F. Supp. 3d at 849.

14. Schmitt, 933 F.3d 628, cert. denied, 590 U.S. ___, 140 S. Ct. 2803 (2020). 

15. Id. at 641. 
Requiring Meaningful Review for Keeping an Initiative Off the Ballot 

Federal Judicial Center 10/6/2023 3

. . . We also note that because Ohio Supreme Court rules provide for 

expedited briefing and decision in election cases, aggrieved citizens who 

challenge an adverse decision are able to seek timely redress.16

The court of appeals determined, moreover, that it was proper for the 

elections boards to determine whether the proposed initiatives were for valid 

legislation and not merely administrative proposals in light of state law on 

the use of marijuana.17

On June 15, 2021, the court of appeals affirmed Judge Sargus’s December 

4, 2019, denial of a fees award.18

16. Id. at 639–40. 

17. Id. at 641. 

18. Opinion, Schmitt v. LaRose, No. 20-4025 (6th Cir. June 15, 2021), D.E. 15, 2021 WL 

4592524 (“The rejection of a party’s key legal argument on appeal counts at a minimum as a 

special circumstance justifying a district court’s decision to deny fees.”), aff’g Opinion, 

Schmitt v. Husted, No. 2:18-cv-966 (S.D. Ohio Dec. 4, 2019), D.E. 71, 2019 WL 6527976, 

cert. denied, 595 U.S. ___, 142 S. Ct. 466 (2021); see Opinion, Schmitt, No. 2:18-cv-966 (S.D. 

Ohio Sept. 21, 2020), D.E. 79, 2020 WL 5626891 (denying reconsideration).