1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SCHMITT, et al., 

Plaintiffs,

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

HUSTED, et al.,

Defendants.

_________________________________________/

MOTION FOR PRELIMINARY INJUNCTION

AND/OR TEMPORARY RESTRAINING ORDER

AND ATTACHED MEMORANDUM OF LAW IN SUPPORT

Plaintiffs pursuant to Federal Rules of Civil Procedure 65(a) and (b) move the Court to 

enter a preliminary injunction and/or temporary restraining order that prohibits Defendants from 

enforcing or applying O.R.C. § 3501.11(K), O.R.C. § 3501.38(M)(1)(a), and/or O.R.C. § 

3501.39(A), and/or any other Ohio statute, to deny to Plaintiffs their right to place their 

initiatives on Ohio's ballots. Further, Plaintiffs request that in this same preliminary injunction 

and/or temporary restraining order the Portage County Board of Elections be ordered to 

immediately restore the initiatives described in their Complaint to the Garrettsville and Windham 

ballots.

Plaintiffs certify that counsel for the Portage County Board of Elections (sued through 

Defendants Craig M. Stephens, Patricia Nelson, Doria Daniels and Elayne J. Cross) and counsel 

for Defendant-Secretary of State have been contacted and provided copies of the Complaint 

(together will all Exhibits), this Motion, and Plaintiffs' Proposed Order. Plaintiffs have requested 

of counsel for each of the Defendants a waiver of service of process Federal Rule of Civil 

Procedure 4. 

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Respectfully submitted,

s/Mark R. Brown 

Mark G. Kafantaris Mark R. Brown, Trial Counsel

Ohio Registration No. 80392 Ohio Registration No. 81941

625 City Park Avenue 303 East Broad Street

Columbus, OH 43206 Columbus, OH 43215

(614) 223-1444 (614) 236-6590

(614) 300-5123 (fax) (614) 236-6956 (fax)

mark@kafantaris.com mbrown@law.capital.edu

Attorneys for Plaintiffs

MEMORANDUM OF LAW IN SUPPORT

Plaintiffs, two circulators of the initiatives at issue here and a voter who supported one of 

them, bring this facial First Amendment challenge to Ohio's "gatekeeper" mechanism, see State 

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

officials "serve as gatekeepers, to ensure that only those measures that actually constitute 

initiatives or referenda are placed on the ballot."), for selecting which popular initiatives may be 

included on Ohio's ballots. This procedure (hereinafter "the gatekeeper mechanism"), is codified 

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

have been authoritatively interpreted by the Ohio Supreme Court to authorize local elections 

boards to exercise their discretion as gatekeepers of Ohio's initiative ballots. 

Local elections officials under these statutes act as gatekeepers by exercising discretion to 

select initiatives that are proper subjects for ballots and to exclude those that they, in the 

discretion, believe are not. As explained below, Ohio's law is facially unconstitutional under the 

First Amendment for two separate reasons: (1) it is a content-based restriction on speech that 

cannot pass strict scrutiny; and (2) it is an impermissible prior restraint that fails to abide by the 

First Amendment's established procedural safeguards.

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Facts

Plaintiffs1Schmitt and Thompson are drafters and circulators of two popular initiatives 

that were presented to officials in Garretsville and Windham for inclusion on those villages' 

respective ballots. See Exhibits 1 and 2. Both initiatives included identical ordinances calling for 

the decriminalization of marijuana possession. These two Plaintiffs have drafted and circulated 

several of these initiatives in Ohio. Identical copies of the Garretsville and Windham ordinances 

(circulated by Plaintiffs) were successfully approved for inclusion on ballots in Oregon, Fremont 

and Norwood. See Exhibits 5, 6 and 7. Similar ordinances have already been passed in Toledo, 

Bellaire, Roseville, Newark, Logan and Athens.

Plaintiffs' Garrettsville and Windham initiatives were found to both contain the requisite number 

of voters' signatures and meet all of the technical requirements for inclusion on the villages' respective 

ballots. However, the Portage County Board of Elections2on August 20, 2018 ruled that the subjectmatter of the two initiatives was improper and removed them from the villages' respective ballots. The 

Portage County Board of Elections on August 21, 2018 explained to Plaintiffs that:

In State ex rel. Sensible Norwood v. Hamilton County Board of Elections, 2016-Ohio5919, the Oho [sic] Supreme Court said administrative actions are not subject to 

initiative. Reviewing the language in the proposals presented by the Village of 

Garrettsville and the Village of Windham, the $0 fine and no license consequences are 

administrative in nature. The $0 court costs is administrative in nature and is an 

impingement on the judicial function by a legislature. Accordingly, as the Garrettsville 

Village and Windham Village petitions deal with subject matter that is not subject to the 

initiative process, the Board of Elections, in its discretion, has chosen not to certify these 

issues to the ballot.

 

1

Plaintiff Blewitt is a registered voter who lives in Windham who signed Schmitt's and 

Thompson's initiative. She is the mayor of Windham and supports the proposed ordinance and 

would like the opportunity to vote for it. 

2

The individual Board members are here sued in their official capacities under the Supreme 

Court's holding in Ex parte Young, 209 U.S. 123 (1908). See Hunter v. Hamilton County Board 

of Elections, 850 F. Supp.2d 795, 802 & n.4 (S.D. Ohio 2012). Because Plaintiffs seek only 

prospective relief, they accordingly avoid any difficulty under the Eleventh Amendment.

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Exhibit 4 at page 1 (emphasis added).

A. Ohio's Gatekeeper Law -- O.R.C. § 3501.11(K).

Before changes enacted on April 6, 2017 by H.B. 463, what was then O.R.C. § 

3501.11(K) was interpreted by the Ohio Supreme Court to empower local elections boards to act 

as gatekeepers over access to initiative ballots. That statute stated that local elections boards had 

authority to "[r]eview, examine, and certify the sufficiency and validity of petitions and 

nomination papers, and, after certification, return to the secretary of state all petitions and 

nomination papers that the secretary of state forwarded to the board." 

The Ohio Supreme Court stated that O.R.C. § 3501.11(K), and its analog supplying 

power to the Secretary of State, empowered elections officials to "serve as gatekeepers, to ensure

that only those measures that actually constitute initiatives or referenda are placed on the ballot." 

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

added). "It necessarily follows," the Ohio Supreme Court added, "that the boards have discretion

to determine which actions are administrative and which are legal." Id. (emphasis added). The 

former, the Court observed, are not proper subjects of initiatives. Hence, local elections boards 

were awarded discretion to distinguish between initiatives that addressed "administrative" 

subjects and those that did not. Initiatives addressing "administrative" subjects could, at the 

discretion of the local boards, be removed from ballots.

The Ohio Supreme Court further interpreted O.R.C. § 3501.11(K) to allow local elections 

boards to remove initiatives that exceeded local authority. In Walker, for example, local charter 

initiatives that had been circulated in three Ohio counties were certified by their local election 

boards for ballots. Protests were lodged against all three, which Secretary Husted upheld. 

Secretary Husted justified his removal of the charter amendments on two grounds: first, the 

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proposed charters failed to "create an 'alternative form of government' as required by" Ohio law, 

144 Ohio St. 3d at 362, 43 N.E.3d at 422, and second, the "substantive prohibition" in the 

initiative "conflicts with the state's exclusive authority to regulate oil and gas operations in 

Ohio." Id. The Court ruled that while Husted could not reject the initiatives based on his belief 

that they were pre-empted by Ohio's prerogative over oil and gas, id. at 365, 43 N.E.3d at 424-

25, he had "discretion to determine that the proposed charters were invalid because they did not 

set forth the form of government ...." Id. at 366, 43 N.E.3d at 425.

In reaching its result in Walker, the Ohio Supreme Court made much of its limited 

authority to review an election gatekeeper's conclusion: "As is well-established, abuse of 

discretion means more than an error of law or of judgment." Id. at 365, 43 N.E.3d at 424. "In 

close cases, therefore, we might very well be compelled to find that the secretary reasonably 

disqualified a ballot measure, in the exercise of his discretion, even if we, in the exercise of our 

constitutional duties, would deem the measure unconstitutional." Id.

Subsequent cases attempted to elaborate on what constitute "administrative" matters, 

what matters exceed local power, and what subjects may be included as initiatives on ballots. 

State ex rel. Sensible Norwood v. Hamilton County Board of Elections, 148 Ohio St.3d 176, 69 

N.E.3d 696 (2016), involved an initiative that sought to include a marijuana decriminalization 

ordinance on a local ballot. Its language included a provision reducing local penalties for not 

only misdemeanor marijuana possession, but also felonies. The local elections board refused to 

place the initiative on the ballot because it believed the initiative exceeded local authority in 

attempting to define felonies. Id. at 177, 69 N.E.3d at 697. The board also concluded that the 

initiative impermissibly "imposed administrative restrictions on the enforcement of existing 

laws" by limiting the powers of police officers, prohibiting forfeiture, and restricting drivers' 

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license revocation. Id. at 179-80, 69 N.E.3d at 700. The Ohio Supreme Court sustained the 

local elections board's decision on both points: "Relators have failed to establish a clear legal 

right to their requested relief and a clear legal duty on the part of the board to provide it." Id. 

The Ohio Supreme Court in State ex rel. Youngstown v. Mahoning County Board of 

Elections, 144 Ohio St.3d 239, 241, 41 N.E.3d 1229, 1232 (2015), meanwhile, ruled that a local 

elections boards cannot "determine whether a ballot measure falls within the scope of the 

constitutional power of referendum or initiative." An elections board may conclude that an 

initiative is "administrative" and reject it, or may determine that it exceeds local power and reject 

it, but it may not reject an initiative because it exceeds local authority by violating Ohio's 

constitutional home-rule amendment. 

The following year, in State ex rel. Flak v. Betras, 152 Ohio St.3d 244, 247, 95 N.E.3d 

329, 332 (2016), the Ohio Supreme Court ruled that a local board possessed discretion to reject 

an initiative that purported to create a private cause of action; the subject matter fell "beyond the 

scope of the municipality's authority" according to the local elections board. In refusing to set 

this decision aside, the Court admitted that its distinctions were "difficult:"

Our jurisprudence has distinguished between an elections board's determining that a 

proposed initiative may be unconstitutional and an elections board's determining that a 

proposed initiative falls outside the scope of the permissible subject matter of a municipal 

initiative. ... It is fair to say that it is sometimes difficult to distinguish between a 

provision that a municipality is not authorized to adopt by legislative action (something 

an elections board may determine per Sensible Norwood) and one that is simply 

unconstitutional (something an elections board may not determine, per Youngstown). But 

that is the line our caselaw has drawn.

Id. at 247, 95 N.E.3d at 332.

In sum, O.R.C. § 3501.11(K) has been authoritatively interpreted by the Ohio Supreme

Court to enable local elections boards to act as gatekeepers, armed with discretion to block 

initiatives from ballots based on those initiatives' subject and content. Exercising their 

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discretion -- and reviewed only for an abuse of this discretion -- local election boards are charged 

with distinguishing between "administrative" and "legal" subjects, as well as "difficult" 

distinctions between which initiatives exceed local power. All decisions are content-based.

B. House Bill 463.

On April 6, 2017, H.B. 463 took effect. While keeping the language found in O.R.C. 

O.R.C. § 3501.11(K) and construed to create the gatekeeper function,3it added new language, 

codified as O.R.C. § 3501.11(K)(2), stating that local elections boards shall:

[e]xamine each initiative petition, or a petition filed under section 307.94 or 307.95 of the 

Revised Code, received by the board to determine whether the petition falls within the 

scope of authority to enact via initiative and whether the petition satisfies the statutory 

prerequisites to place the issue on the ballot, as described in division (M) of section 

3501.38 of the Revised Code. The petition shall be invalid if any portion of the petition is 

not within the initiative power.

(Emphasis added). House Bill 463 also added O.R.C. § 3501.38(M), which O.R.C. §

3501.11(K)(2) cross-references. Relevant here is O.R.C. § 3501.38(M)(1)(a), which requires a 

board of elections, upon receiving a municipal initiative petition, to examine the petition to 

determine

[w]hether the petition falls within the scope of a municipal political subdivision's 

authority to enact via initiative, including, if applicable, the limitations placed by 

Sections 3 and 7 of Article XVIII of the Ohio Constitution on the authority of municipal 

corporations to adopt local police, sanitary, and other similar regulations as are not in 

conflict with general laws, and whether the petition satisfies the statutory prerequisites to 

place the issue on the ballot. The petition shall be invalid if any portion of the petition is 

not within the initiative power.

(Emphasis added). Finally, H.B. 463 amended O.R.C. § 3501.39(A) to provide:

[A] board of elections shall accept any petition described in section 3501.38 of the 

Revised Code unless one of the following occurs: ...

 

3 That exact same language is now located in O.R.C. § 3501.11(K)(1).

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(3) In the case of an initiative petition received by the board of elections, the petition falls 

outside the scope of authority to enact via initiative or does not satisfy the statutory 

prerequisites to place the issue on the ballot, as described in division (M) of section 

3501.38 of the Revised Code. The petition shall be invalid if any portion of the petition is 

not within the initiative power.

(Emphasis added).

House Bill 463 therefore not only reaffirmed local elections boards' roles as gatekeepers 

for initiatives as construed by the Ohio Supreme Court, its terms added to their discretion. They 

are now afforded discretion to decide whether a subject falls "within the initiative power,"

exceeds a local political body's constitutional home-rule powers, or otherwise "conflict with 

general laws." They accordingly have more authority and more discretion.

The argument that H.B.463 increased local elections boards' discretion was pressed in 

State ex rel. Espen v. Wood County Board of Elections, 2017-Ohio-8223, __ N.E.3d __, 2017 

WL 4701143, where a local election board certified to Bowling Green's election ballot an 

initiative titled "Community Rights to a Healthy Environment and Livable Climate." The board's 

decision was protested under H.B. 463 on the ground that "it exceeded the municipal powers of 

self-government set forth in the Ohio Constitution." Id. at *1. 

Relying on its prior holding in Youngstown, a plurality of three Justices concluded that 

the protest lacked merit and the local board did not abuse its discretion in rejecting it. Id. at *3. 

That same plurality added that "the statutory amendments made by [H.B. 463] do not change this 

result." Id. Three Justices opined that "[t]his attempt by the General Assembly to grant review 

power to the election boards violates the [Ohio] Constitution because 'the administration of 

justice by the judicial branch of the government cannot be impeded by the other branches of the 

government in the exercise of their respective powers." Id. "To the extent that R.C. 

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3501.38(M)(1)(a) authorizes and requires boards of elections to make substantive, preenactment 

legal evaluations, it violates the separation-of-powers doctrine and is unconstitutional." Id.

Because the fourth vote supporting the result (that of Justice O'Donnell) was not added to 

the opinion, the Court's conclusion that H.B. 463 did not and could not enlarge local boards' 

gatekeeper function is not the law in Ohio. See State ex rel. Khumprakor v. Mahoning Board of 

Elections, 2018-Ohio-1602, 2018 WL 1960645 at *3 (Fischer, J., concurring) ("Espen does not 

resolve this case because the lead opinion in that case, joined by only three justices, did not 

articulate a holding of this court."). Consequently, although it is clear that local boards have 

discretion to remove initiatives from ballots, whether H.B. 463 enlarges this discretion has not 

been finally established.

The indeterminacy generated by Ohio's gatekeeper mechanism led Justice Fischer in 

Khumprakor to write a lengthy plea for changes in the system.4Justice Fischer complained that 

local elections boards are called upon to make decisions that even courts cannot make. They are 

delegated discretionary authority to "make a substantive, pre-enactment legal determination that 

a proposed measure exceeds a municipality's legislative power." Id. at *9. The Court's deferential 

standard of review, Justice Fischer pointed out, complicated this result by "relinquishing some 

authority in favor of boards of elections and facilitating inconsistent results among various 

boards of elections." Id.

 

4

In Khumprakor, a local election board had refused to certify an initiative because it exceeded 

the city's legislative power. Id. at *1. The Court ultimately disagreed, stating that "although the 

proposed amendment would not necessarily be constitutional or legally enforceable if enacted, 

the board abused its discretion in finding that the measure exceeds Youngstown's legislative 

power." Id. at *2. Justice Fischer concurred with this result, but explained he did not join the 

opinion because he felt the entire approach was improper.

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In the end, Justice Fischer concluded that Ohio's approach was so "unnecessarily 

confusing" and "without meaning" that it "defied workability":

Questions on both sides of the distinction can present home-rule issues, but there is no 

clear reason why elections boards have been allowed to decide questions on one side but 

not questions on the other. ... Indeed, it is puzzling why an elections board might have 

authority to make legal determinations about state-law preemption (even though we have 

rejected the concept) but lacks authority to determine a home-rule-conflict question (even 

if we have decided a case directly on point).

Our existing case law on R.C. 3501.11(K)(1) has shown itself to be unworkable in one 

other way: ...it does not lead to consistent results among various county boards of 

elections. By leaving behind the interpretation of R.C. 3501.11(K)(1) articulated 

in Youngstown, Sensible Norwood, and Flak, this court not only would maintain the 

separation of powers but also would ensure greater uniformity in elections board 

decision-making throughout the state. ... [T]here is no reason why elections boards 

cannot decide future cases under a more constrained scope of review without disruption 

or difficulty.

Id. at *8 - *9. House Bill 463, according to Justice Fischer, only made matters worse by 

expanding the local elections board's discretion: "the H.B. 463 amendments ... purport to 

authorize election boards to make legal determinations about subject-area preemption that even 

courts cannot make." Id. at *6.

* * *

Plaintiffs do not wade into whether H.B. 463 adds to local elections boards' discretion. 

Whether it does is not relevant. At best Ohio's gatekeeper mechanism as authoritatively 

construed by the Ohio Supreme Court employs "confusing" and "unworkable" content-based 

standards to limit local boards' discretion. Should H.B. 463 expand local boards' discretion --

which its terms literally do -- Ohio's gatekeeper mechanism in O.R.C. § 3501.11(K) would be 

even worse. It would leave local election boards with complete and unfettered discretion. 

Further, it would still be content-based and fail to employ the required procedural safeguards. 

Either way, as explained below, Ohio's gatekeeper mechanism violates the First Amendment. 

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Argument

“[A]lthough the Constitution does not require a state to create an initiative procedure, if it 

creates such a procedure, the state cannot place restrictions on its use that violate the federal 

Constitution ....” Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 

1993). There are numerous cases proving this point and holding that First Amendment 

limitations apply to direct democracy and the initiative process. See, e.g., Buckley v. American 

Constitutional Law Foundation, 525 U.S. 182 (1999) (applying First Amendment to invalidate 

restrictions on circulation of initiatives); 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 Ohio's single-subject requirement for initiatives).

When a restriction is content-based, the Sixth Circuit has ruled, "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. State of Maryland, 380 U.S. 51, 58-59 (1965)).

Moreover, a facial First Amendment challenge offers the appropriate mechanism for 

pursuing relief. "[A] facial challenge lies whenever a licensing law gives a government official 

or agency substantial power to discriminate based on the content or viewpoint of speech ...." 

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Lakewood v. Plain Dealer, 486 U.S. 750, 759 (1988). Plaintiffs accordingly bring this First 

Amendment facial challenge5to O.R.C. § 3501.11(K), O.R.C. § 3501.38(M)(1)(a), and O.R.C. § 

3501.39(A), as well as the Portage County Board of Elections' removal of Plaintiffs' initiatives 

from the ballots of Garretsville and Windham. 

I. Ohio's Law is Content-Based and Cannot Survive Strict Scrutiny.

In 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 (6th Cir. 2018), the Sixth Circuit concluded that although Ohio's initiative process 

is subject to First Amendment scrutiny, Ohio's single-subject rule for initiatives passes 

constitutional muster. Ohio's single-subject rule passed scrutiny because it is not content-based:

We agree with this overwhelming weight of authority that Ohio's single-subject rule is 

not content based. ... It applies to all initiative petitions, no matter the topic discussed or 

idea or message expressed. It may be justified without reference to the content of any 

initiative petitions: the rule, among other things, “afford[s] the voters freedom of choice 

and prevent[s] ‘logrolling’ or the combining of unrelated proposals in order to secure 

approval by appealing to different groups which will support the entire proposal in order 

to secure some part of it although perhaps disapproving of other parts.” And finally, this 

is not a law that was adopted by the government because of disagreement with the 

message of any initiative petition.

Id. at 447 (citations omitted). 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. 

Id. at 448.

The Sixth Circuit continued that "[b]ecause Ohio's single-subject rule is content neutral," 

it would not apply strict scrutiny, but would "apply the more flexible Anderson–

 

5

Plaintiffs also assert as-applied First Amendment challenges against the Portage County Board 

of Elections and Defendant-Secretary based on their application of Ohio's law to Plaintiffs'

decriminalization initiatives.

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Burdick framework which requires us to weigh the competing interests of Plaintiffs and 

Defendants." Id.

Had Ohio's law been content-based, in contrast, the analysis would have changed 

dramatically. Strict scrutiny would have been employed. For example, in a case the Sixth Circuit 

heavily relied upon, Biddulph v. Mortham, 89 F.3d 1491, 1493, 1500 (11th Cir. 1996), the Court 

sustained as content-neutral Florida's requirements that explanatory statements not exceeding 75 

words and titles not exceeding 15 words be included with initiatives. It 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. "The restriction at issue in this case is not subject to strict scrutiny," the 

Court concluded, because the plaintiff "does not contend that Florida's procedures disparately 

impact a particular viewpoint or are content-based." Id. 

Ohio's delegation of decision-making authority to local elections boards depends on 

content. Local elections boards are charged with reviewing the subject matter of initiatives to 

assess whether they are "within the initiative power." They are allowed, in their discretion, to 

pick and choose based on whether they believe an initiative addresses "administrative" matters or 

"exceeds" local power. To use the present case as an example, the Portage County Board of 

Elections rejected Plaintiffs' initiative because it addressed "administrative" matters. No other 

local elections board agreed; at least three certified identical language to local ballots.

In Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015), Justice Thomas's majority 

opinion reiterated the distinction 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 

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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.6

Applying this commonsense approach to the sign code at issue, Justice Thomas found it plainly 

and facially 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 

authority to local boards of elections relies on content. Ohio's local elections boards inquire of 

the "subject matter" of initiatives and search for their "function or purpose." An initiative serving 

"administrative" goals or "exceeding the scope" of local governmental power is improper. If 

H.B. 463 enlarges local elections boards' authority, they have even more discretion any initiative 

that they deem is not "within the initiative power" may be excluded.7 

 

6

Justice Thomas added in Reed that the Court's "precedents have also recognized a separate and 

additional category of laws that, though facially content neutral, will be considered contentbased regulations of speech: laws that cannot be “ ‘justified without reference to the content of 

the regulated speech,’ ” or that were adopted by the government “because of disagreement with 

the message [the speech] conveys.” Id. (citation omitted). 

7 Reinforcing this conclusion is the fact that local elections boards are rendering opinions about 

the law. Legal decision-making is necessarily subject- and content-based. Indeed, the Second 

Circuit in Velasquez v. Legal Services Corp., 164 F.3d 757, 769 (2d Cir. 1999), ruled that legal 

argumentation is view-point based, a conclusion that was ratified by the Supreme Court in Legal 

Services Corp. v. Velasquez, 531 U.S. 533 (2001) (holding that restriction on lawyer's challenge 

to federal entitlement program violated the First Amendment).

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Because Ohio's law requires that local boards look to content, the burden is on the 

Defendants to justify the law and their actions under strict scrutiny. They must demonstrate that 

the law is absolutely necessary to achieve a compelling interest. They cannot meet that test. As 

Justice Fischer said, "there is no reason why elections boards cannot decide future cases under a 

more constrained scope of review without disruption or difficulty."

II. Ohio's Law is an Impermissible Prior Restraint.

Even assuming that the Defendants meet strict scrutiny, Ohio's law facially8fails the First 

Amendment for another, even more basic reason. It is 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). In order to 

overcome this "heavy presumption," not only must a content-based restriction satisfy strict 

scrutiny, it must also satisfy the First Amendment's procedural limitations on prior restraints. In 

particular, the First Amendment demands that a decision-maker not possess any measure of

discretion; he or she must follow pre-existing objective standards. 

A. Ohio Has No Objective Standards.

The First Amendment's demand that licensing and permitting processes employ objective 

standards is long-standing and well-rehearsed. In Shuttlesworth v. City of Birmingham, 394 U.S. 

 

8

Prior restraints are subject to facial First Amendment challenges just as content-based 

restrictions are subject to facial First Amendment challenges. See, e.g., FW/PBS v. City of 

Dallas, 493 U.S. 215, 223 (1990) ("Although facial challenges to legislation are generally 

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.").

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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).

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. (citations omitted). 

And in City of Lakewood v. Plain Dealer, 486 U.S. 750, 757 (1988), which invalidated as 

an impermissible prior restraint a city's permitting scheme for news racks placed on public 

property, the Court stated: "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). It continued:

And these evils engender identifiable risks to free expression that can be effectively 

alleviated only through a facial challenge. ... [T]he 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.

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Id.

Local elections boards, according to long-standing Ohio Supreme Court precedent, have 

discretion to decide which initiatives to include on ballots. This discretion is only cabined by 

"confusing" and "meaningless" inquiries into content and subject-matter. Ohio's standards are 

hardly content-neutral, objective, concrete and definite. 

Further, whatever decision a local board makes is only reviewed for abuse of discretion. 

In City of Lakewood v. Plain Dealer, 486 U.S. at 771, the Supreme Court ruled that Ohio's 

procedure authorizing writs of mandamus was not sufficient to save an ordinance that vested 

discretion in an executive officer: "that review comes only after the mayor and the City Council 

have denied the permit. ... Even if judicial review were relatively speedy, such review cannot 

substitute for concrete standards to guide the decision-maker's discretion."

For these same reasons, post-removal mandamus review in the Ohio Supreme Court is 

not sufficient to adequately cabin local boards of elections' discretion. 

B. Ohio Does Not Employ Procedural Safeguards.

Even assuming that Ohio's law survived strict scrutiny and adequately limited the 

discretion of local boards of elections with concrete, objective standards, it still fails as an 

impermissible prior restraint. It does not incorporate the procedural safeguards mandated by the 

United States Supreme Court in Freedman v. Maryland, 380 U.S. 51 (1965).

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

safeguards required of prior restraints: 

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 

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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),9the 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 initiative law fails for these same 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 judicial review that does 

come in Ohio's courts, if any, is by way of discretionary mandamus. The Ohio Supreme Court 

defers to local elections boards' decisions. 

Further, Ohio's mechanism fails the third Freedman requirement. Ohio places the burden 

on supporters of initiatives to challenge local elections boards' decisions. Freedman requires that 

the burden to seek timely judicial review rests on the censor, here the local election boards. 

 

9

The Supreme Court ruled in FW/PBS v. City of Dallas, 493 U.S. 215, 223 (1990), that 

Freedman's third requirement does not apply to the licensing of adult entertainment. See 

generally United States v. Frandsen, 212 F.3d 1231, 1238-39 (11th Cir. 2000) (explaining the 

Supreme Court's reasoning).

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III. Plaintiffs Are Entitled to Preliminary Relief.

“When a district court is asked to issue a preliminary injunction, it ... balances four 

factors ...: (1) the likelihood that the party seeking the preliminary injunction will succeed on the 

merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm 

without the grant of the extraordinary relief; (3) the probability that granting the injunction will 

cause substantial harm to others; and (4) whether the public interest is advanced by the issuance 

of the injunction.” Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1108-09 (6th Cir. 1995).10

Plaintiffs are entitled to preliminary relief from both Defendants. The Portage County 

Board of Elections is responsible for having removed Plaintiffs' initiatives based on their subjectmatter and content. Defendant-Secretary of State is charged by Ohio law with enforcing Ohio’s 

ballot-access restrictions, including those found in the statute being challenged here. See O.R.C. 

§ 3501(M) (stating that Secretary of State has power to “[c]ompel the observance by election 

officers in the several counties of the requirements of the election laws”); Rosen v. Brown, 970 

F.2d 169, 171 (6th Cir. 1992) (observing that Secretary of State “compel[s] compliance with 

election law requirements by election officials”). Both Defendants are proper parties and both 

may be subjected to this Court's enforcement powers.

A. Likelihood of Success

As explained above, Plaintiffs' First Amendment challenge is likely to succeed. Ohio's 

gatekeeper law is content-based, vests discretion in the local boards of elections, and fails to 

adhere to the procedural safeguards required of prior restraints.

 

10 The substantive standard for issuing a temporary restraining order is essentially the same. See 

Bryant v. Matvieshen, 904 F. Supp.2d 1034, 1042 (E.D. Cal. 2012). 

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B. Irreparable Harm

Plaintiffs are threatened with irreparable injury because their initiatives have been 

removed from ballots.Any impediment on First Amendment rights, even for brief periods, causes 

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."). 

Further, the November 2018 election is approaching and injunctive relief is needed on an interim 

basis to restore the status quo and insure the initiatives are included on the ballots.

C. Defendants Will Suffer No Injury

Defendants will suffer no injury should the Court enjoin the enforcement of Ohio's law. § 

3503.06(C)(1)(a). Ohio has for the past several election cycles held primaries including the 

minor parties. There is no evidence of any injury to voters or anyone else. 

D. The Public Will Benefit

Preliminary relief will benefit the public because it will insure that the people in 

Garrettsville and Windham are allowed to practice their First Amendment rights.

E. No Security is Required

The Sixth Circuit has observed that security is not mandatory under Rule 65(c), and can 

be dispensed with in the discretion of the court. See Moltan Co. v. Eagle-Picher Industries, Inc.,

55 F.3d 1171, 1176 (6th Cir. 1995). No security is needed in this case, as it threatens no financial 

harm to Defendants.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully move the Court to issue preliminary 

relief.

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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 copies of the Complaint, this Motion and accompanying Memorandum in 

Support, and the attached Proposed Order, were filed using the Court's electronic filing system; I 

further certify that I e-mailed copies of each to Sarah Pierce, Associate Assistant Attorney 

General – Constitutional Offices, Office of Ohio Attorney General Mike DeWine, Attorney for 

the Secretary of State, at sarah.pierce@ohioattorneygeneral.gov, and to Christopher Meduri, 

Assistant Prosecuting Attorney, Portage County Prosecutor's Office, 241 South Chestnut Street, 

Ravenna, OH 44266, Attorney for the Portage County Board of Elections, at 

CMeduri@portageco.com, on this day, August 28, 2018. 

s/Mark R. Brown 

Mark R. Brown

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