UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIAM SCHMITT, JR., CHAD THOMPSON,

AND DEBBIE BLEWITT,

Plaintiffs,

v. CASE NO.2:18-cv-966

Judge Edmund Sargus, Jr.

Magistrate Judge Elizabeth Deavers

JON HUSTED,

in his Official Capacity as Ohio

Secretary of State, and 

CRAIG M. STEPHENS, PATRICIA NELSON, 

DORIA DANIELS, AND ELAYNE J. CROSS, 

in their official capacities as members of the

Portage County Board of Elections,

Defendants.

PLAINTIFFS' RESPONSE TO DEFENDANT-SECRETARY'S

BRIEF OPPOSING PLAINTIFFS' FIRST AMENDMENT 

CHALLENGE TO OHIO'S GATEKEEPER MECHANISM

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This is a prospective action (both facially and as-applied) under 42 U.S.C. § 1983 and the 

First and Fourteenth Amendments to the United States Constitution. Plaintiffs challenge Ohio's 

"gatekeeper mechanism" for ballot initiatives as an impermissible prior restraint. See Opinion 

and Order, R. 22, at PAGEID # 162 ("The boards of elections are also required to 'determine 

whether the petition falls within the scope of authority to enact via initiative .... This is known 

as the 'gatekeeper mechanism.'"). This gatekeeper mechanism is recognized and codified in three 

statutes, O.R.C. § 3501.11(K)(2), O.R.C. § 3501.38(M)(1)(a), and O.R.C. § 3501.39(A), which 

have been together interpreted by the Ohio Supreme Court to afford local election boards the 

power to decide which proposed initiatives are permissible (and thus entitled to ballot space) and 

those which are not.1

Ohio's gatekeeper mechanism for initiatives imposes an impermissible prior restraint 

because it vests discretion in local election officials to select initiatives for ballots without 

providing timely and meaningful judicial review. See, e.g., Freedman v. Maryland, 380 U.S. 51, 

58-59 (1965). This Court in its September 19, 2018 Order directing that Plaintiffs’ initiatives be 

restored to the Windham and Garrettsville ballots agreed in finding a “high likelihood of success 

on the merits.” Opinion and Order, R. 22, at PAGEID # 168. The Court explained that it could 

find

no legitimate state interests in preventing an adequate legal remedy for petitioners denied 

ballot access by a board of elections. While the availability of mandamus relief is 

essentially a judicially imposed remedy when the law does not otherwise provide one, the 

high burden on petitioners to prove entitlement to an extraordinary remedy is no 

substitute for de novo review of the denial of a First Amendment right.

Id. at PAGEID # 168.

 

1 Contrary to the Secretary's suggestion, see Secretary's Brief, R. 30, at PAGEID # 206, Plaintiffs 

do not challenge any other subsections or aspects of these statutes. Plaintiffs' sole claim is that 

the gatekeeper mechanism these statutes create amounts to an unconstitutional prior restraint.

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The Court observed that Ohio creates "an original cause of action for review of the 

board's decision [placing an initiative on the ballot] in the Ohio Supreme Court." Id. at PAGEID 

# 163. Meanwhile, "if the board or secretary rejects a petitioner's submission for a substantive 

reason, as in the administrative versus legislative divide, neither the Ohio Constitution nor state 

laws provide a remedy." Id. (citation omitted). "An aggrieved petitioner may seek a writ of 

mandamus," id., but that requires proving

"(1) a clear right to the requested relief, (2) a clear legal duty on the part of the board to 

provide it, and (3) the lack of an adequate remedy in the ordinary course of the law." ... 

When the Ohio Supreme Court ... reviews a decision by a county board of elections, 

such court may only issue the writ if the board "engaged in fraud or corruption, abused its 

discretion, or acted in clear disregard of applicable legal provisions." 

Id. at PAGEID # 164 (citations omitted). Without a legal right to de novo review, the Court 

correctly concluded, Ohio's gatekeeper mechanism violates the First Amendment.

The Court on October 4, 2018, with the consent of the parties, converted the Order into a 

Preliminary Injunction set to expire on November 7, 2018.

2 Order, R. 28. The Court directed the 

parties to file supplemental briefs to address whether its Preliminary Injunction should be 

extended beyond the close of the 2018 general election. Id. 

ARGUMENT

I. Prior Restraints are Facially Unconstitutional.

The Secretary argues that facial attacks are “'disfavored’ by the courts.” Secretary's Brief, 

R. 30, at PAGEID # 206. While this is true of many constitutional challenges, it is not true of 

those made under the First Amendment. "Although facial challenges to legislation are generally 

 

2 Windham's initiative passed by a vote of 237 to 206, while Garrettsville's initiative failed by a 

vote of 515 to 471. See Portage County General Election, Nov. 6, 2018, Summary Report, 

(https://www.co.portage.oh.us/sites/portagecountyoh/files/uploads/final_unofficial_results.pdf) 

(last visited Nov. 7, 2018). 

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disfavored, they have been permitted in the First Amendment context where the licensing 

scheme vests unbridled discretion in the decision maker and where the regulation is challenged 

as overbroad." FW/PBS v. City of Dallas, 493 U.S. 215, 223 (1990); see also Minnesota Voters 

Alliance v. Mansky, 138 S. Ct. 1876 (2018) (successful facial challenge to Minnesota law 

banning political attire in polling place); Lakewood v. Plain Dealer, 486 U.S. 750, 759 (1988) 

(striking local ordinance as facial violation of First Amendment); Kunz v. New York, 340 U.S. 

290, 290-91 (1951) (same); Saia v. New York, 334 U.S. 558 (1948) (same). 

II. Initiatives are Subject to First Amendment Scrutiny.

The Secretary claims that the First Amendment has no application to initiatives. See

Secretary's Brief, R. 30, at PAGEID # 204. This is not true; courts – including the Supreme 

Court and the Sixth Circuit – have repeatedly ruled that the First Amendment applies to 

restrictions placed on initiatives. Just like candidates and news racks – neither of which has an 

absolute First Amendment right to exist – once a state allows initiatives it must comply with the 

First Amendment. See, e.g., City of Lakewood v. Plain Dealer, 486 U.S. 750, 757 (1988) 

(holding that once city chooses to allow news racks on sidewalks it cannot engage in prior 

restraints); Nwanguma v. Trump, 903 F.3d 604 (6th Cir. 2018) (candidate has First Amendment 

protection).

In City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188, 196 

(2003), for example, the Supreme Court emphasized the importance of popular measures and the 

protections the First Amendment provides:

In assessing the referendum as a “basic instrument of democratic government,” we have 

observed that “[p]rovisions for referendums demonstrate devotion to democracy, not to 

bias, discrimination, or prejudice.” And our well established First Amendment 

admonition that “government may not prohibit the expression of an idea simply because 

society finds the idea itself offensive or disagreeable,” dovetails with the notion that all 

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citizens, regardless of the content of their ideas, have the right to petition their 

government.

(Citations omitted). See also Meyer v. Grant, 486 U.S. 414, 421-22 (1988) ("circulation of a 

petition involves the type of interactive communication concerning political change that is 

appropriately described as 'core political speech'.”); Buckley v. American Constitutional Law 

Foundation, 525 U.S. 182, 186 (1999) ("[p]etition circulation [for initiatives] ... is 

'core political speech'") (citation omitted).

In Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 296-97 (6th Cir. 1993), 

the Sixth Circuit stated that although "the right to initiate legislation is a wholly state-created 

right," the First Amendment still restricts states to placing "nondiscriminatory, content-neutral 

limitations on the plaintiffs' ability to initiate legislation." See also Committee to Impose Term 

Limits on the Ohio Supreme Court and to Preclude Special Legal Status for Members of and 

Employees of the Ohio General Assembly v. Ohio Ballot Board, 885 F. 3d 443, 446 (6th Cir. 

2018) (applying First Amendment to restriction on initiative).

3

III. Ohio's Delegation of Discretion to Election Boards Fails First Amendment Scrutiny. 

In order for Ohio's gatekeeper mechanism to survive constitutional scrutiny, the Secretary 

must convince the Court that the First Amendment does not apply -- at all. If Ohio's gatekeeper 

 

3 Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011), which is relied upon by the 

Secretary, did not involve initiatives. The Court there merely ruled (as it has on many occasions, 

see, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006)) that when elected officials act for 

government, they are government: “a legislator's vote is the commitment of his apportioned 

share of the legislature's power to the passage or defeat of a particular proposal. The legislative 

power thus committed is not personal to the legislator but belongs to the people; the legislator 

has no personal right to it.” 564 U.S. at 125-26. Were Defendants correct, a candidate for office –

because she is using “governmental mechanics,” see Secretary's Brief, R. 30, at PAGEID # 223 –

would necessarily be a state actor devoid of First Amendment protection. Of course, this is not 

the case, as both the Supreme Court and the Sixth Circuit have recognized. See, e.g., Libertarian 

Party of Ohio v. Husted, 831 F.3d 382, 396 (6th Cir. 2016).

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mechanism is subject to any First Amendment scrutiny, it fails. This is so because it (1) vests 

discretion in executive agents to restrain speech, and (2) fails to authorize de novo review by 

Ohio's courts. 

A. Ohio's Gatekeeper Mechanism Is Content-Based. 

When a restraint on speech is content-based, the Sixth Circuit has ruled that "the law 

must survive strict scrutiny." Déjà vu of Nashville v. Metropolitan Government of Nashville and 

Davidson County, 274 F.3d 372, 391 (6th Cir. 2001); see also Reed v. Town of Gilbert, 135 S. 

Ct. 2218 (2015) ("Content-based laws—those that target speech based on its communicative 

content—are presumptively unconstitutional and may be justified only if the government proves 

that they are narrowly tailored to serve compelling state interests."). "Systems of prior restraint," 

moreover, "will be upheld only if they provide for prompt judicial review of all decisions 

denying the right to speak, while also passing the appropriate level of scrutiny." Déjà vu of 

Nashville, 274 F.3d at 391 (citing Freedman v. Maryland, 380 U.S. 51, 58-59 (1965)).

In Ohio Ballot Board, 885 F. 3d at 447, in contrast, the Sixth Circuit concluded that 

because the number of subjects allowed in an initiative is concrete and content-neutral, Ohio's 

single-subject rule passes First Amendment muster. The Sixth Circuit explained:

Ohio's single-subject rule does not prohibit certain types of constitutional amendments 

based on the topics or ideas contained in those amendments. ... [W]hether Plaintiffs 

violate Ohio's single-subject rule depends not on what they say, but simply on where they 

say it—in one initiative petition or in two. 

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Id. at 448. Had Ohio's law either been content-based or lacked concrete criteria, the Sixth 

Circuit's language implies that its analysis would have changed. Strict scrutiny would have been 

employed.4Further, the doctrine against prior restraints would have had to have been addressed.

5

Ohio's delegation of authority under its statutory gatekeeper mechanism is not contentneutral and does not employ concrete criteria to limit executive discretion. It instead requires 

that executive officials exercise discretion while focusing on the subject and content of proposed 

ordinances to decide which to allow and which to restrain. Elections officials decide "which 

actions are administrative and which are legal." Opinion and Order, R.22, at PAGEID # 162 

(quoting State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 43 N.E.3d 419, 423 (2015)). 

"Administrative actions are not appropriate for the initiative process; legislative actions are." Id.

at PAGEID # 162-63 (citations omitted). In the present case, for example, the Portage County 

Board of Elections rejected the very same initiatives that at least three other local election boards 

had certified as proper. See Verified Complaint, R.1, at PAGEID # 8 & R.1-5, R.1-6, R.1-7. 

This demonstrates that the administrative versus legislative distinction is a far cry from concrete.

 

4

In a case the Sixth Circuit relied upon, Biddulph v. Mortham, 89 F.3d 1491, 1493, 1500 (11th 

Cir. 1996), the Eleventh Circuit sustained a content-neutral requirement that explanatory 

statements not exceeding 75 words and titles not exceeding 15 words be included with 

initiatives. The Eleventh Circuit cautioned, however, that it "would be concerned about free 

speech and freedom-of-association rights were a state to enact initiative regulations that were 

content based or had a disparate impact on certain political viewpoints." Id. at 1500.

5 Because the single-subject rule in Ohio Ballot Board was concrete and objective, there was no 

reason for the Sixth Circuit to address procedural safeguards. A single, concrete numerical rule 

is the exact opposite of executive discretion. In Thomas v. Chicago Park District, 534 U.S. 316, 

322 (2002), which is discussed at page 13, infra, the Court ruled that a content-neutral permit 

scheme that employed concrete criteria (rather than leaving discretion in the decision maker) did 

not need to meet Freedman v. Maryland's procedural safeguards.

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Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015), demonstrates how courts should 

distinguish between content-based and content-neutral restrictions on speech: 

Government regulation of speech is content based if a law applies to particular speech 

because of the topic discussed or the idea or message expressed. This commonsense 

meaning of the phrase 'content based' requires a court to consider whether a regulation of 

speech 'on its face' draws distinctions based on the message a speaker conveys. Some 

facial distinctions based on a message are obvious, defining regulated speech by 

particular subject matter, and others are more subtle, defining regulated speech by its 

function or purpose. Both are distinctions drawn based on the message a speaker 

conveys, and, therefore, are subject to strict scrutiny.

(Emphasis added). Applying this commonsense approach to the sign code at issue in that case, 

the Court concluded that it was plainly content-based: 

It defines 'Temporary Directional Signs' on the basis of whether a sign conveys the 

message of directing the public to church or some other 'qualifying event.' It defines 

'Political Signs' on the basis of whether a sign's message is 'designed to influence the 

outcome of an election.' And it defines 'Ideological Signs' on the basis of whether a sign 

'communicat[es] a message or ideas' that do not fit within the Code's other categories.

Id. 

Using this same commonsense approach here, it is evident that Ohio's delegation of 

discretion to local boards of elections relies on the subject matter and content of the proposed 

initiative. An initiative serving "administrative" goals or "exceeding the scope" of local 

governmental power, as determined by the elections officials, is improper. "Legislative" matters, 

in contrast, are proper subjects for the ballot. What is administrative and what is legislative, 

unfortunately, remains a "difficult" distinction -- even for Justices of the Ohio Supreme Court. 

See, e.g., State ex rel. Flak v. Betras, 152 Ohio St.3d 244, 247, 95 N.E.3d 329, 332 (2016) 

(stating that "it is sometimes difficult to distinguish"). 

Ohio has failed to prove that its gatekeeper mechanism is necessary to achieve a

compelling end. Many states that allow initiatives eschew Ohio's approach in favor of lessburdensome alternatives. See page 15, infra. Given alternatives, Ohio cannot meet strict scrutiny.

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B. Ohio's Gatekeeper Mechanism Is A Prior Restraint.

Assuming that Ohio could meet strict scrutiny, its law still must fail as an impermissible 

prior restraint. A "'prior restraint' exists when the exercise of a First Amendment right depends 

on the prior approval of public officials." Déjà vu of Nashville, 274 F.3d at 400 (citations 

omitted). “Any system of prior restraints comes to this Court bearing a heavy presumption 

against its constitutional validity.” Id. (quoting Freedman, 380 U.S. at 57) (emphasis added). 

Laws that grant discretion to executive agents without concrete guidance -- like Ohio's --

are the quintessential examples of prior restraints. In Shuttlesworth v. City of Birmingham, 394 

U.S. 147 (1969), for example, the Supreme Court struck down a Birmingham demonstration 

permit requirement because it "conferred upon the City Commission virtually unbridled and 

absolute power to prohibit any ‘parade,’ ‘procession,' or ‘demonstration’ on the city's streets or 

public ways." Id. at 150 (footnote omitted). The Court stated: 

This ordinance as it was written fell squarely within the ambit of the many decisions of 

this Court over the last 30 years, holding that a law subjecting the exercise of First 

Amendment freedoms to the prior restraint of a license, without narrow, objective, and 

definite standards to guide the licensing authority, is unconstitutional.

Id. at 150-51 (footnote omitted) (emphasis added).

In Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1990), which invalidated 

a parade permit requirement, the Court reiterated this principle: "A government regulation that 

allows arbitrary application is 'inherently inconsistent with a valid time, place, and manner 

regulation because such discretion has the potential for becoming a means of suppressing a 

particular point of view.'” (Citations omitted). "To curtail that risk, 'a law subjecting the exercise 

of First Amendment freedoms to the prior restraint of a license' must contain 'narrow, objective, 

and definite standards to guide the licensing authority.'” Id. (quoting Shuttlesworth). 

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The Court in City of Lakewood v. Plain Dealer, 486 U.S. 750, 757 (1988), similarly 

invalidated as an impermissible prior restraint a city's permitting scheme for news racks placed 

on public property: "At the root of this long line of precedent is the time-tested knowledge that in 

the area of free expression a licensing statute placing unbridled discretion in the hands of a 

government official or agency constitutes a prior restraint and may result in censorship." 

(Citations omitted).6 

The Secretary argues that Ohio's licensing scheme is proper because it does not place 

unbridled discretion in the hands of executive officials. Ohio's distinction between 

"administrative" and "legislative" matters, the Secretary claims, "sets explicit limits on the 

discretion of county elections officials to deny ballot access." See Secretary's Brief, R.30, at 

PAGEID # 229. 

The Secretary is wrong. Far from setting clear, concrete, explicit limits, Ohio asks its 

elections officials to draw complicated legal conclusions. Complex legal conclusions are the 

antitheses of clear, concrete and neutral guidelines. The Supreme Court's recent decision in 

Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018), makes this clear -- even in the 

context of subsequent punishment imposed on speech in a non-public forum.7There, Minnesota 

forbad any person from wearing a “political badge, political button, or other political insignia ... 

 

6

The Court also explained why a facial challenge is the proper way to challenge prior restraints: 

"the mere existence of the licensor's unfettered discretion, coupled with the power 

of prior restraint, intimidates parties into censoring their own speech, even if the discretion and 

power are never actually abused. Id.

7 Because prior restraints are particularly noxious, they are invalid even when subsequent 

punishment is permitted. See Kunz v. New York, 340 U.S. 290, 295 (1951). Consequently, 

because subsequent punishment using the standard in Mansky was impermissible, a prior 

restraint under this same kind of standard would necessarily be unconstitutional.

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at or about the polling place.” Id. at 1883. “Minnesota election judges—temporary government 

employees working the polls on Election Day—have the authority,” the Supreme Court 

explained, “to decide whether a particular item falls within the ban.” Id. While the election 

judges could not restrain the offensive attire, they were empowered to initiate punitive 

proceedings after-the-fact.

The Supreme Court ruled that because Minnesota failed to “articulate some sensible basis

for distinguishing what may come in from what must stay out.” id. at 1888, its law facially 

violated the First Amendment. The Court explained:

the unmoored use of the term "political" in the Minnesota law, combined with haphazard 

interpretations the State has provided in official guidance and representations to this 

Court, cause Minnesota's restriction to fail even this forgiving test [applied to speech in 

non-public fora]. 

Id. Of particular note, the Court pointed to the legal nature of the distinctions Minnesota asked 

its election judges to draw; they “pose[d] riddles that even the State's top lawyers struggle to 

solve.” Id. at 1891. 

Ohio’s gatekeeper mechanism fails First Amendment scrutiny for the same reasons as 

Minnesota's ban on "political" attire in the polling booth. Ohio's law fails to "articulate some 

sensible basis for distinguishing" proper from improper speech. Ohio elections officials, like 

Minnesota's, are required to answer legal "riddles that even the State's top lawyers struggle to

solve." Ohio's distinction is far from clear and concrete. It is at least as constitutionally 

objectionable as Minnesota's; indeed, because Ohio's is a prior restraint it is even more 

objectionable.

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C. Ohio Does Not Employ Proper Procedural Safeguards.

Ohio's gatekeeper mechanism also fails First Amendment scrutiny because it fails to 

incorporate the procedural safeguards mandated by the Supreme Court in Freedman v. 

Maryland, 380 U.S. 51 (1965). In particular, Ohio does not provide immediate de novo judicial 

review, a failure that is fatal to any permitting system that is applied to speech.

Supreme Court and Sixth Circuit precedent make clear that Freedman v. Maryland, 380 

U.S. 51 (1965), requires that a state must not only limit the discretion afforded executive agents 

to restrain speech with concrete, objective standards, it must also provide prompt, de novo8

judicial review. See Bose v. Consumers Union, Inc., 466 U.S. 485, 508 n.27 (1984) ("The simple 

fact is that First Amendment questions of ‘constitutional fact’ compel this Court's de novo 

review."); Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 892 (6th Cir. 2000) (“theoretical 

possibility of expeditious judicial review is not constitutionally sufficient. A guarantee of prompt 

judicial review is necessary ....”);Universal Film Exchange, Inc. v. City of Chicago, 288 F. Supp. 

286, 293 (N.D. Ill. 1968) ("Since Freedman v. State of Maryland, it has been clear that only 

a de novo judicial determination that a motion picture is unprotected by the First Amendment 

can justify a valid final restraint of a motion picture in advance of exhibition."). Last, state 

officials must bear the burden of seeking judicial review.

The Sixth Circuit in Déjà vu of Nashville, 274 F.3d at 400, explained these procedural 

safeguards in the context of zoning restrictions: 

 

8

See Henry P. Monaghan, First Amendment "Due Process," 83 HARV. L. REV. 518, 526 (1970) 

("Freedman requires only that the court make a separate, independent judgment on the 

administrative record."); Note, Allan Tanambaum, "New and Improved": Procedural Safeguards 

for Distinguishing Commercial From Non-Commercial Speech, 88 COLUM. L. REV. 1821, 1825 

n.3 (1988) ("Freedman seems to insist on de novo judicial review.").

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In Freedman, a unanimous Supreme Court found that three procedural safeguards were 

required for a prior restraint scheme to avoid constitutional infirmity. First, the decision 

whether or not to grant a license must be made within a specified, brief period, and the 

status quo must be preserved pending a final judicial determination on the 

merits. Second, the licensing scheme “must also assure a prompt judicial decision, to 

minimize the deterrent effect of an interim and possibly erroneous denial of a 

license.” Third, the licensing scheme must place the burden of instituting judicial 

proceedings and proving that expression is unprotected on the licensor rather than the 

exhibitor. 

(Citations omitted).

After observing that "[l]icensing schemes in a city ordinance regulating sexually oriented 

businesses constitute a prior restraint that must incorporate at least the first two Freedman 

procedural safeguards," id. at 400-01 (citations omitted), the Sixth Circuit concluded that 

Tennessee's common-law review process did not satisfy the first Freedman requirement:

“Whether the common law writ of certiorari will issue is a matter of discretion. It is not issued as 

a matter of right.” Id. (citation omitted). "Thus, the Ordinance, in requiring that aggrieved 

applicants proceed to court via a discretionary route, fails to guarantee a 'final judicial 

adjudication on the merits,' as required under Freedman 's first safeguard." Id. 

Ohio's gatekeeper mechanism fails for all of these reasons. Applying the first two 

Freedman requirements, Ohio law does not maintain the status quo "pending a final judicial 

determination on the merits." Instead, Ohio's framework allows local elections boards to upset 

the status quo and remove initiatives that have previously been certified. Next, the only judicial 

review that does come in Ohio's Supreme Court is by way of mandamus – a writ of last resort. 

As explained by this Court in its September 19, 2018 Order, it is not de novo and is not a matter 

of statutory or constitutional right. Last but not least, the burden of seeking mandamus is 

impermissibly placed on the speaker.

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IV. Even Assuming that Ohio's Gatekeeper Mechanism Were Content-Neutral It 

Would Still Constitute An Impermissible Prior Restraint.

Many of the Supreme Court's prior restraint precedents involve content-neutral time, 

place and manner restrictions. In City of Lakewood v. Plain Dealer, 486 U.S. 750, 757 (1988), 

for example, the city restricted news racks on public property. There was no claim that the city 

restricted news racks based on content. Rather, the restriction was a content-neutral time, place 

and manner restriction. Still, the Supreme Court applied its prior restraint jurisprudence to 

invalidate how the city limited news racks: "even if the government may constitutionally impose 

content-neutral prohibitions on a particular manner of speech, it may not condition that speech 

on obtaining a license or permit from a government official in that official's boundless 

discretion." Id. at 774.

Contrary to the Secretary's claim, see Secretary's Brief, R.30, at PAGEID # 226, the 

Supreme Court only reiterated this point in Thomas v. Chicago Park District, 534 U.S. 316, 323 

(2002):

Of course even content-neutral time, place, and manner restrictions can be applied in 

such a manner as to stifle free expression. Where the licensing official enjoys unduly 

broad discretion in determining whether to grant or deny a permit, there is a risk that he

will favor or disfavor speech based on its content. We have thus required that a time, 

place, and manner regulation contain adequate standards to guide the official's decision 

and render it subject to effective judicial review. 

(Citations omitted).9The question is whether Ohio has truly limited executive discretion with 

concrete, definite, and neutral criteria. As explained above, it has not. For this reason alone it has 

imposed an impermissible prior restraint.

 

9

See also Six Star Holdings v. City of Milwaukee, 821 F.3d 795, 799 (7th Cir. 2016) ("Prior 

restraints that are viewpoint- and content-neutral and impose a limitation only on the time, place, 

and manner of speech are more likely to pass muster. They are permissible if, and only if, there 

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V. Treating Its Initiative Process as a Non-Public Forum Does Not Cure Ohio's Law.

The Secretary argue that initiatives, like polling places, are non-public fora. See

Secretary's Brief, R.30, at PAGEID # 223 (citing Minnesota Voters Alliance v. Mansky, 138 S. 

Ct. 1876 (2018).10 Restraints in a non-public forum, however, are subject to the same procedural 

protections applied to prior restraints in more traditional public settings. Calling Ohio's initiative 

a non-public forum does not cure its violation of the doctrine against prior restraints.

The Sixth Circuit made this clear in Miller v. City of Cincinnati, 622 F.3d 524, 528 (6th 

Cir. 2010), which invalidated under the First Amendment a city's rule (Administrative 

Regulation # 5) that delegated discretion to "Department Heads" to decide who should be 

allowed to solicit in municipal buildings. Although the interior of a public building was "at most, 

a limited public forum," id. at 535, 11 the Sixth Circuit applied established prior restraint doctrine: 

This distinction is irrelevant, however, because in City of Lakewood the Court held that 

an arbitrary prior restraint on protected speech provides standing regardless of the forum. 

Hence, when a plaintiff's protected-speech activities are subject to restriction at the 

government's unfettered discretion, the plaintiff has suffered an injury in fact. 

Id. at 528. See also Barrett v. Walker County School District, 872 F.3d 1209, 1226 (11th Cir. 

2017) ("the unbridled-discretion doctrine can serve the same purpose in a limited public forum 

that it serves in a nonpublic forum: combating the risk of unconstitutional viewpoint 

 

are procedural safeguards that ensure that the decision maker approving the speech does not have 

'unfettered discretion' to grant or deny permission to speak.").

10 As explained above, Mansky supports Plaintiffs' First Amendment claim by demonstrating that 

legal determinations are too confusing to expect elections officials to use them to punish or 

restrict speech.

11 Non-public and limited public fora are subject to the same test: restrictions must be reasonable 

and viewpoint neutral. See Miller, 622 F.3d at 535-36 ("government limitations on speech in 

both a limited public forum and a nonpublic forum receive the same level of scrutiny. In both 

instances, any restrictions must be “reasonable and viewpoint neutral.”).

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discrimination. Naturally, then, the unbridled-discretion doctrine applies in a limited public 

forum."); Amandola v. Town of Babylon, 251 F.3d 339, 344 (2d Cir. 2001) (same).

Consequently, even assuming Ohio's initiative is the equivalent of a non-public forum, its 

vesting discretion in executive officials constitutes an impermissible prior restraint.

VI. No Gateway Mechanism Like Ohio's Has Survived First Amendment Scrutiny.

Contrary to the Secretary's claim, no court has sustained an executive pre-election 

clearance mechanism for initiatives like the one used in Ohio. One reason for this is that few 

states delegate this breadth of discretion to executive officials. A number of states, like Nevada, 

California, and Washington, prohibit elections officials altogether from addressing whether the 

content or subject of initiatives is proper. See Las Vegas Taxpayer Accountability Committee v. 

City Council of City of Las Vegas, 125 Nev. 165, 174 & n.2, 208 P.3d 429, 435 & n.2 (2009) 

(holding that Nevada election officials do not have this authority and noting that neither do 

officials in California and Washington) (citations omitted).

Other states authorize executive officials (like attorneys general) to render "non-binding 

advice on the form or substance" of initiatives to their proponents. See Scott L. Kafker & David 

A. Rusccol, The Eye of the Storm: Pre-election Review By The State Judiciary of Initiative 

Amendments to State Constitutions, 2012 MICH. ST. L. REV. 1279, 1291 (footnotes omitted). 

Some allow executive pre-election review for "the form of the amendment," but "defer[]

questions of substance" until after elections. Id. (footnote omitted). And others "require a more 

searching review to ensure that the amendment meets subject-matter and other substantive and 

procedural requirements," but unlike Ohio do this "before time, energy, and money are spent on 

gathering signatures." Id. 

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A few states authorize executive agents to make initial decisions about whether "a 

proposed amendment, or its title or summary" is proper; but those that do generally provide 

"expedited judicial review." Id. (footnote omitted). States that vest discretion in elections 

officials alone (without de novo review) to decide whether the subjects of initiatives are proper

are rare. And those states that do (or did) this, like Maine and New York, have found their 

processes seriously and successfully challenged under the First Amendment. See Wyman v. 

Secretary of State, 625 A.2d 307, 309 (Me. 1993); Herrington v. Cuevas, 1997 WL 703392 * 9 

(S.D.N.Y. 1997) (Sotomayor, J.) (reviewing New York's law which allowed election clerks to 

decide whether a popular measure presented a proper subject and directing the parties to brief 

whether the law was content-based and subject to strict scrutiny).12

In Wyman, 625 A.2d 307, Maine did what Ohio does now; it delegated to its secretary of 

state the authority to decide whether the subject of an initiative was proper before allowing it on 

the ballot. Using this gateway mechanism, a citizen (Wyman) submitted an initiative only to 

have it rejected by the secretary based on its content: "the Secretary informed Wyman that he 

was disapproving circulation to the voters of the petition form as presented because the initiative 

if enacted would, in his opinion and that of the Attorney General, be unconstitutional." Id. 

The Supreme Judicial Court of Maine ruled that vesting this sort of authority in an 

executive officer violated the First Amendment:

The potential invalidity of the subject of an initiative petition, however, is not a sufficient 

reason to pre-empt the petition process itself or to bar the discussion of the issues raised 

in the petition. Moreover, the Secretary's concerns of voter confusion and wasted 

resources if potentially invalid questions are included on the ballot are not implicated 

during the initial signature collection phase. Because the petition process is protected by 

the first amendment and the Secretary has advanced no compelling interest in executive 

 

12 The Herrington case was eventually dismissed as moot on March 6, 2002 after being 

reassigned to another judge. No decision was ever rendered.

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oversight of the content of the petition prior to its circulation for signature, his refusal to 

furnish the petition form based on the content of the proposed legislation impermissibly 

violated Wyman's rights protected by the first amendment.

Id. at 312 (emphasis added). 

In contrast to Wyman, the cases cited by the Secretary are inapposite for at least three

reasons: they either (1) sustained content-neutral laws like those restricting the number of 

subjects, initiatives or voters required to place matters on ballots; (2) addressed whether 

governments may vertically apportion powers between superior and inferior governmental 

bodies (they can); or (3) sustained procedures that are different from those found in Ohio.

Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir. 2018), falls squarely into the 

fist category. Like the Sixth Circuit's decision in Ohio Ballot Board, 885 F. 3d 443, Jones

sustained a concrete, content-neutral restriction on the number (three) of initiatives that may be 

certified to a ballot. See also Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th

Cir. 2006) (rejecting challenge to content-neutral supermajority requirement for initiatives).13

Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir. 2002), is in the second 

category. It holds that government may vertically apportion powers within its branches. Far from 

deciding whether an executive gatekeeper mechanism for initiatives constitutes an impermissible 

prior restraint,14 the court addressed only whether "the First Amendment restrict[s] Congress's 

 

13 Aye v. Mahoning County Board of Elections, 2008 WL 554700 (N.D. Ohio 2008), likewise 

involved concrete, content-neutral requirements (e.g., education, experience, term limits) placed 

on candidates: "[Ohio law] does not give discretionary authority to the Sheriff ... and clearly 

defines the threshold requirements that any candidate for office must satisfy."Palisade 

FruitLands v. Todd, 279 F.3d 1204 (10th Cir. 2002), rejected an equal protection challenge to a 

Colorado law that allowed voters in some but not all counties to use initiatives. It had nothing to 

do with how elections officials selected initiatives for ballots. 

14 Further, the plaintiffs in Marijuana Policy Project did not challenge any discretion vested in 

executive officers to pick and choose initiative topics; they instead argued that a well-defined 

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ability to withdraw the District [of Columbia's] authority to reduce marijuana penalties?" Id. at 

85. "Congress [under the Barr Amendment] denied the District authority to 'enact ... any law' 

reducing penalties associated with possession, use, or distribution of marijuana." Id. at 83. The 

challengers claimed that whether pre- or post-election, Congress was precluded by the First 

Amendment from restricting the District's power to regulate marijuana. The court disagreed: 

"The Barr Amendment merely requires that, in order to have legal effect, their [i.e., voters'] 

efforts must be directed to Congress rather than to the D.C. legislative process." Id. at 270.15 

Port of Tacoma v. Save Tacoma Water, 422 P.3d 917 (Wash. App. 2018), falls into the 

third category. Washington denies to executive officials the authority to decide what is and what 

is not a proper subject for initiatives. Its process is therefore unlike Ohio's. The question in Save 

Tacoma Water was whether a court could, consistent with the First Amendment, conclude before 

an election that an initiative is improper. Id. at 920.16 In Save Tacoma Water, a pre-election 

judicial challenge to an initiative was bought by groups who wanted to keep an initiative off a

ballot. Id. They were properly saddled with the burden of going to court. More importantly, the 

court there was not deferring to a pre-election executive decision; it was acting de novo. Given 

this procedural posture, the court in Save Tacoma Water was perfectly justified in addressing 

whether the initiative at issue fell outside the scope of the state's initiative process. 

 

subject could not be reserved to the Congress. Because the prohibited subject in Marijuana 

Policy Project was well-defined, it left no discretion at all in ballot officials. 

15 Plaintiffs here do not challenge Ohio's authority to apportion authority over any subject -- let 

alone marijuana -- between the State and its local subdivisions. Plaintiffs concede that Ohio has 

that authority; the First Amendment does not mandate anything to the contrary. 

16 Plaintiffs do not deny that a court can, in an action instituted by a censor, do exactly that 

(assuming the Freedman safeguards are otherwise met).

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Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005), likewise falls into this third category. 

There, the court sustained Massachusetts' pre-election review process for initiatives that vested 

initial review authority in the state attorney general. That process differed from Ohio's in three 

important ways: (1) the attorney general had no discretion; (2) the excluded subjects were 

specifically defined, "including, inter alia, appointment or compensation of judges; the powers, 

creation or abolition of the courts; and specific appropriation of state money," id. at 275; and (3) 

the decision was subject to de novo judicial review before the election. See Mazzone v. Attorney 

General, 432 Mass. 515, 520, 736 N.E.2d 358, 364 (2000) ("Our review of that certification is de 

novo.") (citation omitted). After ruling that the law was subject to First Amendment scrutiny, 

the court concluded it was content-neutral and passed intermediate scrutiny. Wirzburger, 412 

F.3d at 276. Because immediate de novo review was available under Massachusetts law, 

Freedman was never raised and could not have been violated.17

VII. The Balance of Equities Weighs in Favor of Continuing the Previously Ordered 

Preliminary Relief.

In its initial temporary restraining order returning Plaintiffs' two proposed ordinances to 

the Windham and Garrettsville ballots, the Court ruled that "Plaintiffs have a high likelihood of 

success on the merits." Opinion and Order, R.22 at PAGEID # 168. That remains true; nothing 

has changed since that Order was issued and nothing has changed following the election. No 

relevant intervening decisions have been handed down.

 

17 Skrypzak v. Kauger, 92 F.3d 1050 (10th Cir. 1996), is similar in that it involved a state law that 

authorized pre-election, de novo judicial review of initiatives. The challengers claimed that the 

Oklahoma Supreme Court's authority to review initiatives before elections violated the First 

Amendment. The Tenth Circuit dismissed it on standing grounds, a conclusion that was later 

overturned by Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006).

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Plaintiffs, meanwhile, are threatened with the same substantial and irreparable harm. See 

Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even 

minimal periods of time, unquestionably constitutes irreparable injury."). "Ohio's regulatory 

scheme," this Court correctly concluded in its prior Order, "unreasonably infringes on Plaintiffs' 

First Amendment rights by allowing an executive board to determine disputed legal and even 

constitutional issues, thereby potentially blocking initiatives from the ballot, and then denying 

rejected petitioners a right to review." Id. at PAGEID # 169. 

Ohio's unconstitutional restriction continues to cause Plaintiffs irreparable harm 

following the 2018 election. Plaintiffs seek to place similar ordinances on municipal ballots 

through Ohio's initiative process as early as the May 7, 2019 election. See Declaration of 

Plaintiff-Schmitt (Exhibit 1); Declaration of Plaintiff-Thompson (Exhibit 2).

18 Plaintiffs in the 

absence of injunctive relief will be forced to submit their initiatives for executive review under 

Ohio's gatekeeper mechanism on or around February 19, 2019. Time remains of the essence even 

though the 2018 election is complete. As this Court previously observed, "the public is unlikely 

to suffer significant harm from the injunctive relief that Plaintiffs seek." Opinion and Order, 

R.22, at PAGEID # 170. For this and the reasons expressed above, preliminary injunctive relief

should be continued until final judgment is rendered.

CONCLUSION

Plaintiffs respectfully request that continuing preliminary relief be GRANTED.

 

18 Ohio law does not preclude the placement of initiatives on local ballots during odd-year 

primary election cycles. See generally JON HUSTED, OHIO SECRETARY OF STATE, OHIO BALLOT 

QUESTIONS AND ISSUES HANDBOOK 6-16 (July 2018)

(https://www.sos.state.oh.us/globalassets/elections/eoresources/general/questionsandissues.pdf)

(last visited, Nov. 8, 2018).

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Respectfully submitted,

s/Mark R. Brown 

 

Mark R. Brown, Trial Counsel

Ohio Registration No. 81941

303 East Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

mbrown@law.capital.edu

Mark G. Kafantaris

Ohio Registration No. 80392

625 City Park Avenue

Columbus, Ohio 43206

(614) 223-1444

(614) 300-5123(fax)

mark@kafantaris.com

CERTIFICATE OF SERVICE

I certify that this Response was filed using the Court's electronic filing system and 

thereby will be served on all parties to this proceeding.

s/Mark R. Brown 

Mark R. Brown

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