IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WILLIAM SCHMITT, JR., et al., :

:

Plaintiffs, : Case No. 2:18-cv-966

:

v. : Judge Edmund Sargus, Jr.

:

OHIO SECRETARY OF STATE : Magistrate Judge Elizabeth Deavers

JON HUSTED, et al., :

:

Defendants. :

DEFENDANT OHIO SECRETARY OF STATE JON HUSTED’S

BRIEF OPPOSING PLAINTIFFS’ REMAINING FACIAL CHALLENGE TO

O.R.C. §§ 3501.11(K), 3501.38(M)(1)(a), AND 3501.39(A)

Respectfully submitted,

MIKE DEWINE

OHIO ATTORNEY GENERAL

/s/ Sarah E. Pierce

SARAH E. PIERCE (0087799)*

*Lead Counsel

RENATA Y. STAFF (0086922)

Assistant Attorneys General 

Constitutional Offices Section 

30 East Broad Street, 16th Floor 

Columbus, Ohio 43215 

Tel: 614-466-2872 | Fax: 614-728-7592 

sarah.pierce@ohioattorneygeneral.gov

renata.staff@ohioattorneygeneral.gov

Counsel for Defendant 

Ohio Secretary of State Jon Husted

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................................................... vi

I. INTRODUCTION............................................................................................................. 1

II. BACKGROUND ............................................................................................................... 2

A. The Ohio Constitution empowers Ohio citizens to enact certain 

municipal ordinances by initiative, and Ohio law requires 

county boards of election to determine whether ballot 

proposals fall within that initiative power.......................................................... 2

B. A board’s power to determine whether ballot proposals fall 

within the initiative power is limited, and parties may 

challenge ballot-eligibility decisions in mandamus suits................................... 4

C. Plaintiffs allege that Ohio’s initiative-certification laws violate 

the First Amendment, both facially and as applied to them............................. 6

III. LAW AND ARGUMENT................................................................................................. 8

A. Plaintiffs’ facial challenge is subject to a demanding legal 

burden. ................................................................................................................... 9

B. Plaintiffs have alleged a limited injury and therefore lack 

standing to broadly invalidate the laws they challenge. .................................. 10

Plaintiffs’ alleged injuries are limited to the challenged statutes only insofar as they concern a 

board of elections’ review of an initiative petition to enact a local ordinance that is within the 

municipal legislative authority. To the extent Plaintiffs challenge provisions of Ohio law that not 

have not injured them—such as petitions to amend a municipal charter; review for compliance 

with the municipality’s home rule authority; nominating petitions; declarations of candidacy; or 

written protests—Plaintiffs lack standing. See Morrison v. Bd. of Educ., 521 F.3d 602, 608 (6th 

Cir.2008).

C. Plaintiffs fail to allege any burden on protected First 

Amendment speech and therefore fail to state a claim.................................... 12

While the First Amendment protects the political discourse that surrounds an initiative effort, it 

does not protect the ability to make law by initiative, nor grant the right to speak through the 

state’s ballot. See, e.g., Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir. 

2006); Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir.2018); Marijuana Policy 

Project v. United States, 304 F.3d 82, 83 (D.C. Cir.2002). Port of Tacoma v. Save Tacoma 

Water, 422 P.3d 917, 919-20 (Wash. Ct. App. July 25, 2018). Therefore, Plaintiffs fail to identify 

a protected First Amendment interest and their facial challenge must fail. 

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D. Even assuming Plaintiffs have alleged an injury to their First 

Amendment rights, the challenged statutes pass rational basis 

review under the Anderson-Burdick framework.............................................. 18

Because Plaintiffs’ First Amendment rights are not burdened, the challenged statutes’ 

constitutionality “depends on whether the rule has a rational basis, not on the First Amendment.” 

Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 at 938. The challenged statutes further the 

state’s interests in simplifying the ballot, minimizing voter confusion, and ensuring voter 

confidence in the electoral system, and therefore survive rational basis review. Even if Plaintiffs 

could articulate some impairment of their First Amendment rights (which they have not done), 

the challenged statutes are still constitutional under Anderson-Burdick balancing. Any First 

Amendment burden is minimal, if it exists. See Ohio Council 8 Am. Fedn. of State v. Husted, 

814 F.3d 329, 336-37 (6th Cir. 2016); Comm. to Impose Term Limits on the Ohio Supreme Court 

v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir.2018) (“CITL”). And on balance, any minimal 

burden is outweighed by the State’s interests in simplifying the ballot, avoiding voter confusion, 

and maintaining voter confidence. Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 938 (7th 

Cir. 2018); Munro v. Socialist Workers Party, 479 U.S. 189, 194-95 (1986); CITL, 885 F.3d 443, 

448 (6th Cir. 2018); First Natl. Bank v. Bellotti, 435 U.S. 765, 788-89 (1978).

E. An initiative process also does not implicate expressive content 

but, even if it did, the statutes at issue would pass review under 

O’Brien intermediate scrutiny. .......................................................................... 21

The only court to find a First Amendment impairment by state regulation of the initiative process 

applied intermediate scrutiny, and nevertheless upheld the challenged restriction. See

Wirzburger v. Galvin, 412 F.3d 271 (1st Cir.2005). That singular precedent has not been 

followed by other courts and has been explicitly rejected in the Tenth Circuit. This Court should 

do the same. Even if this Court were to engage in heightened review, the challenged statutes 

would survive. Important State interests support the challenged laws and the laws are not aimed 

at suppressing free expression—no particular subject or viewpoint is singled out. CITL, 885 

F.3d 443, 447-48 (6th Cir.2018). Even under an intermediate level of scrutiny, the challenged 

laws do not burden First Amendment protections. See Wirzburger, 412 at 279.

F. Plaintiffs’ remaining arguments for strict scrutiny under the 

public-forum and prior-restraint doctrines also fail as a matter 

of law. ................................................................................................................... 25

1. The ballot is not a public forum............................................................. 26

The ballot is not a public forum, even assuming forum analysis applies to the ballot (which it 

does not). Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 461 

(2008) (Roberts, C.J., concurring). Even assuming the ballot somehow could be characterized as 

a nonpublic forum, the laws Plaintiffs challenge are reasonable and do not discriminate based on 

a particular viewpoint, and are therefore constitutionally sound. CITL, 885 F.3d 443, 448 (6th 

Cir.2018). 

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2. The challenged laws are not subject to the prior 

restraint doctrine. ................................................................................... 28

Plaintiffs cannot cite to any authority applying the prior restraint doctrine or the procedural 

safeguard requirements of Freedman v. Maryland, 380 U.S. 51 (1965), to ballot access statutes. 

Under similar circumstances, an Ohio federal district court has declined to apply prior-restraint 

analysis to a statute regulating a candidate’s access to the ballot. Aey v. Mahoning Cty. Bd. of 

Elections, No. 4:08 CV 405, 2008 U.S. Dist. LEXIS 19247, *16 (N.D.Ohio Feb. 26, 2008). And 

even assuming the ballot is a public forum (which it is not), the Supreme Court “ha[s] never 

required that a content-neutral permit scheme regulating speech in a public forum adhere to the 

procedural requirements set forth in Freedman.” Thomas v. Chicago Park Dist., 534 U.S. 316, 

322 (2002); H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 624 (6th Cir.2009). 

Because the ballot is not a public forum and the challenged restrictions are not content-based, 

Freedman is not applicable to Plaintiffs’ claims. 

3. The challenged laws are not prior restraints on 

protected speech...................................................................................... 32

Even applying the prior-restraint doctrine to the challenged laws, they survive constitutional 

scrutiny. They simply do not touch on protected speech, which is the “ability to communicate 

with other voters about proposed legislation.” Taxpayers United for Assessment Cuts v. Austin, 

994 F.2d 291, 297 (6th Cir.1993). Nor do the statutes unconstitutionally vest unbridled 

discretion in the county boards of elections; the text of the statutes set explicit limits on the 

discretion of county elections officials to deny ballot access. O.R.C. § 3501.38(M)(1)(a); see 

also, e.g., State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, 140 Ohio St.3d 487, 20 

N.E.3d 678, 684-85 (Ohio 2014) (noting the “30 year” history of the “well-established 

distinction between municipal legislative and administrative activity”). Plaintiffs therefore fail to 

demonstrate that the challenged laws impede First Amendment protections in the first instance or 

that they should be subject to strict scrutiny review.

G. The challenged statutes do not impinge upon substantive or 

procedural due process protections................................................................... 33

To the extent that Plaintiffs allege that the challenged statutes cause a deprivation of their 

procedural or substantive due process rights, this claim also fails as a matter of law. Initially, 

because Plaintiffs only raised this issue oral argument, it is therefore forfeited. See Lindsey v. 

Detroit Entm’t, LLC, 484 F.3d 824, 831 n.9 (6th Cir.2007). Even absent waiver, in the election 

context, due process claims are “addressed . . . collectively using a single analytic framework.” 

Dudum v. Arntz, 640 F.3d 1098, 1106 n.15 (9th Cir.2011) (citing Anderson, 460 U.S. at 787 n.7; 

LaRouche v. Fowler, 152 F.3d 974, 987–88 (D.C. Cir.1998)). As outlined above, public forum 

and strict scrutiny analysis do not apply and the challenged statutes satisfy Anderson-Burdick

review. 

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1. The challenged statutes do not violate substantive due 

process...................................................................................................... 34

Even if Plaintiffs had raised any substantive due process claims, such claims could not succeed. 

Plaintiffs have offered no argument or evidence that the challenged statutes have any impact 

whatsoever on the right to vote, much less that they have resulted in any voter 

disenfranchisement or vote dilution. Northeast Ohio Coalition for Homeless v. Husted, 696 F.3d 

580, 597 (6th Cir.2012). Accordingly, to any extent Plaintiffs attempt to bring a substantive due 

process claim against the challenged statutes, it fails.

2. The challenged statutes do not violate procedural due 

process...................................................................................................... 35

Any procedural due process claim likewise fails. Plaintiffs have not identified a fundamental 

interest implicated by the challenged statutes. League of Women Voters v. Brunner, 548 F.3d 

463, 479 (6th Cir.2008). Plaintiffs were also given adequate notice with sufficient time to seek 

relief from the Board’s decision. Accordingly, their claim fails as a matter of law. Even 

assuming a fundamental right is affected, Plaintiffs have adequate procedural protections by way 

of mandamus. Ohio Const., art. IV, § 2(B)(1)(b); Mathews v. Ohio Pub. Emples. Retirement 

Sys., 91 F. Supp. 3d 989, 1002 (S.D.Ohio 2015). The Supreme Court is under a “duty to liberally 

construe municipal initiative provisions to permit the exercise of the power of initiative.” State 

ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 

47. Court procedures enable expedited briefing and decisions to meet elections deadlines. See 

Ohio S.Ct.Prac.R. 12.08. And the Ohio Supreme Court has ordered that initiatives appear on 

ballots. State ex rel. Khumprakob v. Mahoning Board of Elections, Slip Opinion No. 2018-Ohio1602 (Apr. 24, 2018). Accordingly, a procedural due process claim must fail.

IV. CONCLUSION ............................................................................................................... 37

CERTIFICATE OF SERVICE ................................................................................................. 38

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TABLE OF AUTHORITIES

Cases Page(s)

Aey v. Mahoning Cty. Bd. of Elections,

No. 4:08 CV 405, 2008 U.S. Dist. LEXIS 19247 (N.D.Ohio Feb. 26, 2008) ...................29, 30

Am. Constitutional Law Found., Inc. v. Meyer,

120 F.3d 1092 (10th Cir.1997) ................................................................................................23

Anderson v. Celebrezze,

460 U.S. 780 (1983)...........................................................................................................19, 20

Angle v. Miller,

673 F.3d 1122 (2012)...............................................................................................................17

Biddulph v. Mortham,

89 F.3d 1491 (11th Cir.1996) ..................................................................................................13

Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182 (1999).................................................................................................................14

Burdick v. Takushi,

504 U.S. 428 (1992).................................................................................................................19

State ex rel. Canales-Flores v. Lucas Cty. Bd. of Elections,

108 Ohio St.3d 129, 841 N.E.2d 757 (2005) .............................................................................4

State ex rel. Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of 

Elections,

115 Ohio St.3d 437, 875 N.E.2d 902 (2007) ...............................................................3, 4, 5, 36

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288 (1984).................................................................................................................24

Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd.,

885 F.3d 443 (6th Cir.2018) ............................................................................................ passim

Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections & Ethics,

441 A.2d 889 (D.C. 1981) (en banc) .......................................................................................13

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,

473 U.S. 788 (1985)...........................................................................................................26, 32

State ex rel. Cramer v. Brown,

7 Ohio St. 3d 5, 454 N.E.2d 1321 (1983) ..................................................................................5

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (Scalia, J., concurring).......................................................................................19

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Cases Page(s)

Deja Vu of Nashville, Inc. v. Metro. Govt. of Nashville & Davidson Cty.,

274 F.3d 377 (6th Cir.2001) ....................................................................................................30

Dudum v. Arntz,

640 F.3d 1098 (9th Cir.2011) ..................................................................................................34

State ex rel. Ebersole v. Delaware Cty. Bd. of Elections,

140 Ohio St.3d 487, 20 N.E.3d 678 (2014) .....................................................................3, 5, 33

State ex rel. Espen v. Wood Cty. Bd. of Elections,

Slip Op. 2017-Ohio-8223, 2017 Ohio LEXIS 2145, (2017)......................................................5

First Natl. Bank v. Bellotti,

435 U.S. 765 (1978).............................................................................................................1, 21

Forsyth County v. Nationalist Movement,

505 U.S. 123 (1990).................................................................................................................29

Freedman v. Maryland,

380 U.S. 51 (1965)........................................................................................................... passim

H.D.V.-Greektown, LLC v. City of Detroit,

568 F.3d 609 (6th Cir.2009) ..............................................................................................31, 32

Hahn v. Star Bank,

190 F.3d 708 (6th Cir.1999) ....................................................................................................35

State ex rel. Heavey v. Husted,

152 Ohio St.3d 579, 99 N.E.3d 372 (2018) .............................................................................20

Heideman v. South Salt Lake City,

348 F.3d 1182 (10th Cir.2003) ................................................................................................23

Initiative & Referendum Inst. v. Walker,

450 F.3d 1082 (10th Cir.2006) ........................................................................................ passim

State ex rel. Jacquemin v. Union County Bd. of Elections,

147 Ohio St.3d 467, 67 N.E.3d 759 (2016) .............................................................................36

Jones v. Markiewicz-Qualkinbush,

892 F.3d 935 (7th Cir.2018) ............................................................................................ passim

Lakewood v. Plain Dealer Pub. Co.,

486 U.S. 750 (1988).....................................................................................................29, 32, 33

LaRouche v. Fowler,

152 F.3d 974 (D.C. Cir.1998)..................................................................................................34

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Cases Page(s)

League of Women Voters v. Brunner,

548 F.3d 463 (6th Cir.2008) ....................................................................................................35

Lindsey v. Detroit Entm’t, LLC,

484 F.3d 824 (6th Cir.2007) ....................................................................................................33

M.I.C., Ltd. v. Bedford Twp.,

463 U.S. 1341 (1983)...............................................................................................................30

Marijuana Policy Project v. United States,

304 F.3d 82 (D.C. Cir.2002)..................................................................................12, 13, 14, 17

Mathews v. Ohio Pub. Emples. Retirement Sys.,

91 F. Supp. 3d 989 (S.D.Ohio 2015) .................................................................................35, 36

McGlone v. Bell,

681 F.3d 718 (6th Cir.2012) ..............................................................................................10, 11

Meyer v. Grant,

486 U.S. 414 (1988).....................................................................................................15, 16, 17

Miller v. City of Cincinnati,

622 F.3d 524 (6th Cir.2010) ....................................................................................................31

Minnesota Voters Alliance v. Mansky,

___U.S.___, 138 S.Ct. 1876 (2018).........................................................................................27

Morrison v. Bd. of Educ.,

521 F.3d 602 (6th Cir.2008) ....................................................................................................11

Munro v. Socialist Workers Party,

479 U.S. 189 (1986).....................................................................................................21, 28, 29

Murray v. U.S. Dep’t of Treasury,

681 F.3d 744 (6th Cir.2012) ....................................................................................................10

State ex rel. N. Main St. Coalition v. Webb,

106 Ohio St.3d 437, 835 N.E.2d 1222 (2005) .....................................................................5, 36

Nev.Comm’n on Ethics v. Carrigan,

564 U.S. 117 (2011).................................................................................................................27

Northeast Ohio Coalition for Homeless v. Husted,

696 F.3d 580 (6th Cir.2012) ....................................................................................................34

O’Toole v. O’Connor,

802 F.3d 783 (6th Cir.2015) ....................................................................................................37

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Cases Page(s)

Obama for Am. v. Husted,

697 F.3d 423 (6th Cir.2012) ....................................................................................................19

Ohio Council 8 Am. Fedn. of State v. Husted,

814 F.3d 329 (6th Cir. 2016) .................................................................................20, 21, 27, 31

Perry Ed. Assn. v. Perry Local Educators’ Assn.,

460 U. S. 37 (1983)............................................................................................................26, 27

Port of Tacoma v. Save Tacoma Water,

422 P.3d 917 (Wash. Ct. App. July 25, 2018) ...................................................................16, 17

Prime Media, Inc. v. City of Brentwood,

485 F.3d 343 (6th Cir. 2007) ...................................................................................................11

Save Palisade FruitLands v. Todd,

279 F.3d 1204 (10th Cir.2002) ................................................................................................14

Schrader v. Blackwell,

241 F.3d 783 (6th Cir.2001) ....................................................................................................27

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975).................................................................................................................30

State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections,

148 Ohio St.3d 176, 69 N.E.3d 696 (2016) ...............................................................................6

Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969).................................................................................................................29

Skrzypczak v. Kauger,

92 F.3d 1050 (10th Cir.1996) (overruled on other grounds) .............................................14, 17

Speet v. Schuette,

726 F.3d 867 (6th Cir. 2013) .....................................................................................................9

State ex rel. Bolzenius v. Preisse, Ohio Sup. Ct. 18-1221, Slip Op. 2018-Ohio3708, 2018 Ohio LEXIS 2186 (2018)............................................................................5, 20, 31

State ex rel. Khumprakob v. Mahoning Board of Elections, Ohio Sup. Ct. 18-

0404, Slip Op. 2018-Ohio-1602, 2018 Ohio LEXIS 881 (2018).........................................5, 37

State ex rel. Maxcy v. Saferin, Ohio Sup. Ct. 18-1242, Slip Op. 2018-Ohio-4035, 

2018 Ohio LEXIS 2362, *6-*7 (2018) ......................................................................................3

Storer v. Brown,

415 U.S. 724 (1974).................................................................................................................19

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Cases Page(s)

Taxpayers United for Assessment Cuts v. Austin,

994 F.2d 291 (6th Cir.1993) ....................................................................................8, 20, 21, 32

Texas v. Johnson,

491 U.S. 397 (1989).................................................................................................................23

Thomas v. Chicago Park Dist.,

534 U.S. 316 (2002).............................................................................................................9, 30

Timmons v. Twin Cities Area New Party,

520 U.S. 350 (1997).................................................................................................................19

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997)...........................................................................................................27, 34

United States v. Kokinda,

497 U.S. 720 (1990).................................................................................................................26

State ex rel. Valore v. Summit Cty. Bd. of Elections,

87 Ohio St.3d 144, 718 N.E.2d 415 (1999) ...............................................................................4

Vance v. Universal Amusement Co.,

445 U.S. 308 (1980).................................................................................................................30

State ex rel. Walker v. Husted,

144 Ohio St.3d 361, 43 N.E.3d 419 (2015) .....................................................................4, 5, 17

Washington State Grange v. Washington State Republican Party,

552 U.S. 442 (2008)...........................................................................................................10, 27

Wirzburger v. Galvin,

412 F.3d 271 (1st Cir.2005)...................................................................................22, 23, 24, 25

Statutes Page(s)

O.R.C. § 731.05 ...............................................................................................................................2

O.R.C. § 731.28 ...............................................................................................................................3

O.R.C. § 3501.11(K)..................................................................................................................4, 37

O.R.C. § 3501.38(M).......................................................................................................................4

O.R.C. § 3501.38(M)(1)(a).................................................................................................... passim

O.R.C. § 3501.39(A)......................................................................................................4, 10, 11, 37

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Statutes Page(s)

Ohio Rev. Code § 311.01...............................................................................................................29

Ohio Rev. Code § 3501.11(K)(1) ..................................................................................................11

Other Authorities Statutes Page(s)

Ohio Const., art. II, § 1f......................................................................................................... passim

Ohio Const., art. IV, § 2(B)(1)(b)............................................................................................35, 36

Ohio Const., art. XVIII, §§ 7-9........................................................................................................3

U.S. Const., First Amendment............................................................................................... passim

U.S. Const., Fourteenth Amendment.......................................................................................19, 34

U.S. Const. amend. XIV, § 1 .........................................................................................................34

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I. INTRODUCTION

Plaintiffs bring a First Amendment facial challenge that lacks an essential, central 

element: any allegation that protected First Amendment speech has been burdened. The Ohio 

Constitution reserves to its citizens the power to enact municipal ordinances by initiative. Ohio 

Const., art. II, § 1f. This power, however, is limited to ordinances within the municipal 

legislative authority. Id. County boards of elections must ensure that each proposed initiative 

falls within a municipality’s legislative authority before it appears on the ballot. See Ohio Rev. 

Code §§ 3501.11(K), 3501.38(M)(1)(a), and 3501.39(A).

Plaintiffs do not challenge this substantive limitation on the initiative power in Ohio. 

They do not argue that they were prevented from circulating their own initiative petitions, or that 

Ohio law will prevent circulation of any other petition. They do not argue that they were 

prevented from speaking in support of their initiative proposals, or that Ohio law will silence 

speech regarding any other initiative proposal. They do not argue that their initiative petitions 

fall within the initiative right granted by the Ohio Constitution and were entitled to appear on the 

ballot. Instead, they contend only that the First Amendment facially prohibits the Ohio boards of 

elections’ role in ensuring that only proposals that are subject to the initiative power are placed 

on the ballot. 

But the challenged statutes comply with the First Amendment, and the Court should deny 

the facial relief Plaintiffs seek. First, Plaintiffs lack standing to challenge laws for which they 

have not alleged past or future injury. See infra Part III.B. Second, federal circuit courts agree 

that laws like the challenged statutes do not regulate core political speech under the First 

Amendment. While the First Amendment protects political speech that surrounds an initiative 

effort, it does not protect the ability to make law by initiative, nor the right to speak through the 

state’s ballot. Because Ohio’s laws do not restrict any protected speech, such as communication 

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between circulators and electors, they do not implicate any First Amendment protections at all. 

See infra Part III.C. Third, even if this Court were to engage in Anderson-Burdick balancing, the 

State’s reasonable, nondiscriminatory initiative process withstands scrutiny. The State’s 

procedures apply equally to all subject matters and viewpoints, with no content-based restriction. 

And the challenged statutes protect the State’s important regulatory interests of facilitating an 

orderly ballot that bears only initiatives that fall within a municipality’s legislative authority. See 

infra Part III.D. Fourth, Plaintiffs’ arguments in support of strict scrutiny review fail because the 

ballot is not a public forum and, even if it were, the content-neutral statutes Plaintiffs challenge 

are not subject to Freedman v. Maryland, 380 U.S. 51 (1965). See infra Part III.E. Finally, to 

the extent Plaintiffs bring a due process challenge, their arguments are both waived and 

unavailing. See infra Part III.F.

Because Plaintiffs have failed to meet their high burden to facially invalidate O.R.C. §§ 

3501.11(K), 3501.38(M)(1)(a), and 3501.39(A), their request for such sweeping relief should be 

denied.

II. BACKGROUND

A. The Ohio Constitution empowers Ohio citizens to enact certain municipal 

ordinances by initiative, and Ohio law requires county boards of election to 

determine whether ballot proposals fall within that initiative power.

Although not required to do so by the federal Constitution, Ohio accords robust initiative 

and referendum powers to its citizens and specifically reserves certain initiative and referendum 

powers to the citizens of Ohio municipalities. Ohio Const., art. II, § 1f. Ohio municipalities are 

self-governing and have the legislative authority to enact ordinances, effective within their 

jurisdiction, that are both within their police power and not in conflict with general laws of the 

state. Id., art. XVIII, § 3; see also O.R.C. § 731.05 (mandating that “[t]he powers of the 

legislative authority of a city shall be legislative only, it shall perform no administrative duties”). 

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Citizens of Ohio municipalities retain the authority to enact or amend a municipal charter, Ohio 

Const., art. XVIII, §§ 7-9, and to reject ordinances passed by the municipal legislature, id., art. II, 

§ 1f. See also State ex rel. Maxcy v. Saferin, Ohio Sup. Ct. 18-1242, Slip Op. 2018-Ohio-4035, 

2018 Ohio LEXIS 2362, *6-*7 (2018) (distinguishing between charter amendment initiative and 

ordinance initiative). 

The power to enact municipal ordinances by initiative is at issue in this suit. The Ohio 

Constitution limits the municipal initiative power to enact ordinances to “all questions which 

such municipalities may now or hereafter be authorized by law to control by legislative action.” 

Ohio Const., art. II, § 1f (emphasis added). An appropriate legislative action enacts an 

ordinance, rather than executes or administers an ordinance that already exists. State ex rel. 

Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437, 

875 N.E.2d 902, 909, 911 (2007). While Ohio citizens are able to take municipal legislative 

action by initiative, administrative action—executing or administering an existing ordinance—is 

not authorized. See State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, 140 Ohio St.3d 487, 

20 N.E.3d 678, 684-85 (2014) (noting the “30 year” history of the “well-established distinction 

between municipal legislative and administrative activity” for initiative purposes); see also

O.R.C. § 731.28 (“Ordinances . . . providing for the exercise of any powers of government 

granted by the constitution . . . may be proposed by initiative petition.”). 

Three requirements of Chapter 3501 are relevant in this lawsuit. The first is a board of 

election’s duty to “determine” whether a proposed initiative “falls within the scope of a 

municipal political subdivision’s authority to enact via initiative” and “whether the petition 

satisfies the statutory prerequisites to place the issue on the ballot.” O.R.C. § 3501.38(M)(1)(a). 

This duty is echoed in two other provisions. One is a board’s mandatory duty to “[r]eview, 

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examine, and certify the sufficiency and validity of petitions and nomination papers” of any type, 

and to conduct the review required by O.R.C. § 3501.38(M). O.R.C. § 3501.11(K). The other is

a board’s duty to accept a petition, including nominating petitions, unless a protest hearing is 

held or the board determines that an initiative 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 [O.R.C. § 3501.38(M)].” O.R.C. § 3501.39(A).

B. A board’s power to determine whether ballot proposals fall within the 

initiative power is limited, and parties may challenge ballot-eligibility 

decisions in mandamus suits. 

Ohio boards of elections have only the power to determine whether an initiative proposal 

falls within the initiative power—that is, whether it is something the municipality is “authorized 

by law to control by legislative action[.]” Ohio Const., art. II, §1f. As Ohio courts have long 

held, the initiative right does not exist for administrative, rather than legislative, matters. State 

ex rel. Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of Elections, 115 Ohio 

St.3d 437, 875 N.E.2d 902, 908-909 (2007). Boards of elections therefore have “not only the 

discretion but an affirmative duty to keep such items off the ballot.” State ex rel. Walker v. 

Husted, 144 Ohio St.3d 361, 43 N.E.3d 419, 423 (2015).

Parties may challenge the exercise of that duty (whether in support of a proposed initiative 

or against it) through a mandamus action. See State ex rel. Canales-Flores v. Lucas Cty. Bd. of 

Elections, 108 Ohio St.3d 129, 131, 841 N.E.2d 757 (2005) (holding that the proximity of an 

election establishes the lack of an adequate remedy at law). The reviewing court will determine 

“whether the board engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes 

or pertinent law.” State ex rel. Citizen Action, 875 N.E.2d at 908 (quoting State ex rel. Valore v. 

Summit Cty. Bd. of Elections, 87 Ohio St.3d 144, 145, 718 N.E.2d 415 (1999)). This analysis is 

conducted “consistent with [the court’s] duty to liberally construe municipal initiative provisions to 

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permit the exercise of the power of initiative.” Id. at 911 (quoting State ex rel. N. Main St. 

Coalition v. Webb, 106 Ohio St.3d 437, 835 N.E.2d 1222, 1232 (2005)).

Importantly, “this authority to determine whether a ballot measure falls within the scope 

of the constitutional power of referendum (or initiative) does not permit election officials to sit as 

arbiters of the legality or constitutionality of a ballot measure’s substantive terms.” State ex rel. 

Walker, 43 N.E.3d at 423. Even a substantively unconstitutional initiative proposal may fall 

within the legislative power, and will only become void “when declared unconstitutional by a 

court of competent jurisdiction.” Id. at 424; see also State ex rel. Cramer v. Brown, 7 Ohio St.

3d 5, 6, 454 N.E.2d 1321 (1983) (holding that Ohio Supreme Court “will not consider, in an 

action to strike an issue from the ballot, a claim that the proposed amendment would be 

unconstitutional if approved, such claim being premature”); State ex rel. N. Main St. Coalition, 

835 N.E.2d at 1230 (same). A proposed initiative’s potential illegality, perhaps even as an 

improper exercise of home-rule power, is not grounds for a board of elections to invalidate it. 

See State ex rel. Espen v. Wood Cty. Bd. of Elections, Ohio Sup. Ct. 17-1313, Slip Op. 2017-

Ohio-8223, 2017 Ohio LEXIS 2145, *4-*6 (2017) (plurality op.). 

It is “well-established” that an administrative action—“executing or administering” a preexisting ordinance—is not within a municipality’s legislative authority and therefore cannot be 

taken by initiative. State ex rel. Citizen Action, 875 N.E.2d at 909, 911; see also State ex rel. 

Ebersole, 20 N.E.3d at 684-85 (noting the “30 year” history of the “well-established distinction 

between municipal legislative and administrative activity”). The Ohio Supreme Court has also 

held that municipal legislative authority does not include the ability to create a new cause of 

action. State ex rel. Bolzenius v. Preisse, Ohio Sup. Ct. 18-1221, Slip Op. 2018-Ohio-3708, 

2018 Ohio LEXIS 2186, *7-*9 (2018); see also State ex rel. Khumprakob v. Mahoning Cty. Bd. 

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of Elections, Ohio Sup. Ct. 18-0404, Slip. Op. 2018-Ohio-1602, 2018 Ohio LEXIS 881, *5-*6 

(2018) (holding that proposed charter amendment did not create a new cause of action and 

therefore, despite being potentially unconstitutional, “the board abused its discretion” in 

excluding from the ballot). Similarly, the Ohio Supreme Court has held that an initiative 

proposal that attempts to enact a felony offense is not within the municipal legislative power 

because “the authority to define and to propose penalties for felonies is limited to the General 

Assembly[.]” State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections, 148 Ohio St.3d 

176, 69 N.E.3d 696, 699 (2016).

C. Plaintiffs allege that Ohio’s initiative-certification laws violate the First 

Amendment, both facially and as applied to them. 

Plaintiffs do not directly challenge the substantive decision not to certify their initiative 

proposals because they are not within the municipal legislative authority. Instead, they seek

declarations that O.R.C. §§ 3501.11(K), 3501.38(M)(1)(a), and 3501.39(A) are unconstitutional 

both facially and as-applied per the First Amendment, and an injunction prohibiting their 

enforcement. Compl., Doc. 1, at Prayer. Plaintiffs do not argue that the challenged statutes have 

prevented them from circulating their initiative petitions, from speaking in support of their 

initiative petitions, or from speaking about their views generally. Instead, Plaintiffs essentially 

argue that they have a protected First Amendment interest in placing a local initiative proposal 

on the ballot, regardless of whether it falls within the initiative power granted by the Ohio 

Constitution. Plaintiffs allege two theories: that the challenged laws impose 1) an impermissible

prior restraint upon their protected speech right to have their initiative placed on the ballot

because the laws lack the Freedman v. Maryland, 380 U.S. 51 (1965) requirements; and 2) a 

content-based restriction on their protected speech right to have their initiatives placed on the 

ballot. See Compl., Doc. 1.

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With their Complaint, Plaintiffs also filed a motion for a preliminary injunction and/or a 

temporary restraining order enjoining the enforcement of the statutes. Doc. 3. Defendants 

opposed the motion. Docs. 17 and 18. On September 17, 2018, the Court held a hearing and 

oral argument on Plaintiffs’ motion for preliminary relief, and on September 19, 2018 ordered

the Defendants to place the initiative petitions at issue in the case on the November 2018 ballot. 

Minute Entry, Doc. 21; Op. and Order, Doc. 22 at 10. On October 3, 2018, the Court extended 

the temporary restraining order for an additional 14 days. Order, Doc. 26.

On October 4, 2018, following a telephone status conference with the parties, the Court 

converted the temporary restraining order to a preliminary injunction that expires on November 

7, 2018. Order, Doc. 28. The Court also issued a briefing and argument schedule to decide the 

remaining issue in the case: Plaintiffs’ facial challenge to O.R.C. §§ 3501.11(K), 

3501.38(M)(1)(a), and 3501.39(A). Id. 

Aside from the allegations in their Complaint, Plaintiffs have presented no evidence in 

support of their claims. As alleged, Plaintiffs William Schmitt and Chad Thompson circulated 

petitions to amend the codified ordinances of the Villages of Windham and Garrettsville. 

Compl., Doc. 1, ¶¶ 17-19. Plaintiff Debbie Blewitt signed the Windham petition. Id. ¶ 28. 

Plaintiffs allege that both initiative petitions complied with all relevant law regarding signatures 

and timeliness. Id. ¶ 21.

Plaintiffs allege that the Portage County Board of Elections refused to certify both initiative 

proposals to the ballot because “the initiatives are administrative in nature, rather than legislative” 

and “[a]dministrative actions are not appropriate for initiative petitions.” Id. ¶ 22; see also id., Exs. 

1-3. Plaintiffs allege that the Board notified Plaintiffs Schmitt and Thompson that their initiative 

proposals had not been certified on the same day. Id. ¶ 24. The Board explained that the 

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proposals’ change to court costs was “administrative in nature” and the petitions therefore “deal 

with subject matter that is not subject to the initiative process[.]” Id. ¶¶ 25-26.

Pursuant to the Court’s October 4, 2018 Order, the Secretary now files this brief in 

opposition to Plaintiffs’ facial challenge. 

III. LAW AND ARGUMENT

Plaintiffs’ facial challenge fails under every asserted theory. As an initial matter, 

Plaintiffs fail to allege any burden on their First Amendment rights. Plaintiffs do not argue that 

they were prevented from circulating their initiative petitions, or speaking in support of their 

initiative petitions, or even that their initiative petitions fall within the right granted by the Ohio 

Constitution. Instead, they only ask the Court to find that they have a protected First 

Amendment interest in having their initiative petitions, whatever their content, appear on the 

ballot. Courts across the country have held to the contrary: while the First Amendment protects 

political speech that surrounds an initiative effort, it does not protect the ability to make law by 

initiative, nor the right to speak through the state’s ballot. Because Plaintiffs fail to identify a 

protected First Amendment interest to begin with, their facial challenge must fail.

Even assuming that the challenged laws burden protected speech in some way, that 

burden is slight and is outweighed by Ohio’s interests in maintaining an orderly ballot, avoiding 

voter confusion, and supporting voter confidence in the electoral system. As the Sixth Circuit 

recently held, a ballot-eligibility requirement that applies to all initiative proposals, regardless of 

the particular topic they address or the policy viewpoint they take, is content-neutral. Such a 

content-neutral, nondiscriminatory limitation on the initiative process is outweighed by the 

state’s strong orderly-election interests. Comm. to Impose Term Limits on the Ohio Supreme 

Court v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir.2018); Taxpayers United for Assessment 

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Cuts v. Austin, 994 F.2d 291, 297 (6th Cir.1993). Even assuming some First Amendment injury,

the challenged laws survive appropriate rational basis review.

Plaintiffs’ arguments for strict scrutiny review fail for these same reasons. No court has 

ever held that the state’s ballot is a public forum and, even if it were, the Supreme Court “ha[s] 

never required that a content-neutral permit scheme regulating speech in a public forum adhere 

to the procedural requirements set forth in Freedman.” Thomas v. Chicago Park Dist., 534 U.S. 

316, 322 (2002). Again, even assuming that Plaintiffs have alleged an impairment of their First 

Amendment rights (which they have not), their arguments for strict scrutiny fail: the ballot is not 

a public forum and, even if it were, the content-neutral statutes Plaintiffs challenge are not 

subject to Freedman.

Finally, to the extent Plaintiffs challenge laws that they were not injured by, or bring 

legal claims that they have not supported in briefing, they are not entitled to relief. The statutes 

that Plaintiffs broadly challenge contain provisions that do not relate to the injury they allege. 

Even in a First Amendment context, a plaintiff is not entitled to relief from laws that did not 

cause an alleged injury. And to the extent Plaintiffs bring a due process challenge, they have 

failed to support the claim in argument or briefing. Any such claim is therefore waived.

Accordingly, and as argued below, Plaintiffs have failed to meet their high burden to 

facially invalidate O.R.C. §§ 3501.11(K), 3501.38(M)(1)(a), and 3501.39(A) and their request 

for relief should be denied.

A. Plaintiffs’ facial challenge is subject to a demanding legal burden. 

Plaintiffs face a heavy burden on the merits because they seek to facially enjoin 

O.R.C. §§ 3501.11(K), 3501.38(M)(1)(a), and 3501.39(A). A facial attack on a statute “is 

momentous and consequential.” Speet v. Schuette, 726 F.3d 867, 872 (6th Cir. 2013). In a First 

Amendment facial challenge to a statute, a plaintiff “must show substantial overbreadth: that the 

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statute prohibits a substantial amount of protected speech both in an absolute sense and relative 

to [the statute’s] plainly legitimate sweep[.]” Id. (internal quotations omitted). Facial relief is 

“disfavored” by the courts. See Washington State Grange v. Washington State Republican Party, 

552 U.S. 442, 450 (2008). Plaintiffs cannot meet this heavy burden, as argued below, and their 

request for facial relief must therefore be denied.

B. Plaintiffs have alleged a limited injury and therefore lack standing to broadly 

invalidate the laws they challenge.

Plaintiffs lack standing to the extent that they attack statutory provisions that have not 

injured them. Here, Plaintiffs complain that they were injured by a board of election’s 

determination that their proposed initiatives were “administrative” rather than “legislative” and 

therefore outside of the initiative power. Compl., Doc. 1, ¶¶ 22, 26; see also id. at Exs. 3, 4. 

Plaintiffs make no other allegation regarding past or future injury. Their challenge casts a far 

broader net than that one purported snag, however. Plaintiffs generally challenge Ohio Rev. 

Code § 3501.38(M)(1)(a), which includes provisions that were not used to exclude their initiative 

proposals from the ballot, and which they do not allege may injure them in the future. Moreover, 

Plaintiffs generally challenge Ohio Rev. Code §§ 3501.11(K) and 3501.39(A), which extend to 

types of petitions not at issue in this suit (such as nominating petitions and countywide initiative 

petitions). See id. at Prayer. Accordingly, to the extent Plaintiffs challenge Ohio laws that they 

do not allege have injured them, Plaintiffs lack standing even in the First Amendment context. 

“Article III of the Constitution gives federal courts subject matter jurisdiction over actual 

cases or controversies, neither of which exists unless a plaintiff establishes his standing to sue.” 

Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir.2012). Standing “is a threshold 

question in every federal case.” McGlone v. Bell, 681 F.3d 718, 728 (6th Cir.2012). To establish 

standing, Plaintiffs must show that: (1) they have suffered “a concrete and particularized injury,” 

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whether actual or imminent; (2) the injury is traceable to the defendant; and (3) a favorable 

judgment will provide redress. Morrison v. Bd. of Educ., 521 F.3d 602, 608 (6th Cir.2008). The 

injury cannot be merely conjectural or hypothetical. McGlone, 681 F.3d at 729. 

In the present case, the Plaintiffs’ alleged injuries are limited to the challenged statutes 

only insofar as they concern initiative petitions to enact a local ordinance. Their purported 

injuries have nothing to do with other aspects of those laws, such as petitions to amend a 

municipal charter; review for compliance with the municipality’s home rule authority; 

nominating petitions; declarations of candidacy; or written protests. See Ohio Rev. Code 

§ 3501.38(M)(1)(a) (dealing with “petitions” generally and home rule authority); Ohio Rev. 

Code § 3501.11(K)(1) (requiring county boards of elections to review sufficiency of “petitions” 

generally and “nomination papers”); Ohio Rev. Code § 3501.39(A) (governing review of 

“petitions” generally and candidacies where, in part, a written protest is filed). Plaintiffs rest 

their claims on the Portage County Board of Elections’ rejection of their initiatives for the reason 

that the “initiatives are administrative in nature, rather than legislative.” Compl., Doc. 1, ¶¶ 22, 

26; see also id., Exs. 3, 4. Plaintiffs include no allegations to indicate they have suffered any 

injuries with respect to any provision except those authorizing the Board to reject their initiative 

petition if it is administrative. 

Nor can Plaintiffs argue standing by construing their claims as a facial overbreadth attack 

on the statutes. The Sixth Circuit has rejected “the idea that an injury in fact under one provision 

creates standing to challenge other distinct provisions of [an] ordinance” in the First Amendment 

context. Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 350-51 (6th Cir. 2007) (“Prime 

Media’s standing with regard to the size and height requirements does not magically carry over 

to allow it to litigate other independent provisions of the ordinance without a separate showing of 

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an actual injury under those provisions.”). Even if Plaintiffs have articulated standing to 

challenge certain provisions of Ohio law, Plaintiffs are not entitled to challenge provisions that 

have not injured them. Accordingly, to the extent Plaintiffs challenge Ohio laws that are not

alleged to have injured them, Plaintiffs lack standing.

C. Plaintiffs fail to allege any burden on protected First Amendment speech and 

therefore fail to state a claim.

It is important to understand the question that Plaintiffs put to the Court. Plaintiffs do not 

argue that they were prevented from circulating their initiative petitions. Plaintiffs do not argue 

that they were prevented from speaking in support of their initiative petitions. And they do not 

argue that, as a matter of state law, their initiative petitions fall within the legislative power of 

Ohio municipalities. Instead, they ask the Court to find that they have a protected First 

Amendment interest in having initiative petitions, whatever their content, appear on the ballot. 

While the Sixth Circuit has not yet answered that specific question, appellate courts across the 

country have: Plaintiffs have no such right. While the First Amendment protects the political 

discourse that surrounds an initiative effort, it does not protect the ability to make law by 

initiative, nor grant the right to speak through the state’s ballot. Therefore, Plaintiffs fail to 

identify a protected First Amendment interest and their facial challenge must fail.

1. Circuit courts have repeatedly drawn a distinction between “political speech 

incident to an initiative campaign,” which is protected by the First Amendment, and “the right to 

make law, by initiative or otherwise[,]” which it does not. Initiative & Referendum Inst. v. 

Walker, 450 F.3d 1082, 1099 (10th Cir.2006). For example, the D.C. Circuit examined a 

Congressional enactment that prevented the District of Columbia from passing any law, by 

initiative or otherwise, that reduced penalties for drug-related crimes. Marijuana Policy Project 

v. United States, 304 F.3d 82, 83 (D.C. Cir.2002). Plaintiff, an advocacy group, wished to 

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circulate an initiative petition legalizing medical marijuana. Id. at 84. The D.C. Board of 

Elections and Ethics refused to certify the initiative petition for circulation because it did not 

constitute a “proper subject” for an initiative. Id. The plaintiff challenged the limitation on the 

initiative power on First Amendment grounds. Id. The district court agreed and struck the 

restriction, finding that it interfered with “core political speech” and “D.C. citizens’ First 

Amendment rights to use the city’s ballot initiative process to enact medical 

marijuana legislation.” Id. 

But the appellate court reversed, holding that the restriction “implicates no First 

Amendment concerns” because it dealt with a legislative act—the initiative process—rather than 

“urging or opposing the enactment of legislation”—protected speech. Marijuana Policy Project, 

304 F.3d at 83; see also Biddulph v. Mortham, 89 F.3d 1491, 1497 (11th Cir.1996) (“In the 

initiative process people . . . enact change by bypassing their representatives altogether.”). The 

court began by noting that the initiative process is “‘a power of direct legislation by the 

electorate.’” Marijuana Policy Project, 304 F.3d at 85 (quoting Convention Ctr. Referendum 

Comm. v. D.C. Bd. of Elections & Ethics, 441 A.2d 889, 897 (D.C. 1981) (en banc)). While the 

“First Amendment protects public debate about legislation, it confers no right to legislate on a 

particular subject.” Id. Because no speech was implicated in the case—the “[challenged 

enactment] silences no one”—all of the plaintiff’s First Amendment theories failed: there was no 

viewpoint discrimination because no speech was implicated; there were no limitations on private 

political speech because no speech was implicated; and there was no public-forum analysis 

needed because no speech was implicated. Id. at 86-87. “In sum, the [] limitation on District of 

Columbia legislative authority restricts no First Amendment right.” Id. at 87.

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Other Circuits agree. The Tenth Circuit held that a constitutional provision requiring a 

supermajority to pass an initiated law related to wildlife management “does not implicate the 

First Amendment at all,” and affirmed the dismissal of the plaintiffs’ First Amendment claims 

for failure to state a claim. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th 

Cir.2006). Just as in Marijuana Policy Project, the Tenth Circuit noted the distinction between 

laws “that regulate or restrict the communicative conduct of persons advocating a position in a 

referendum, which warrant strict scrutiny,” and, on the other hand, laws “that determine the 

process by which legislation is enacted, which do not.” Id. at 1099-1100 (emphasis added); see 

also Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1208-1211 (10th Cir.2002) (holding First 

Amendment speech not implicated by an initiative process for home-rule counties but not 

statutory counties); Skrzypczak v. Kauger, 92 F.3d 1050, 1053 (10th Cir.1996) (overruled on 

other grounds) (finding removal of a ballot measure during a pre-screening process did not 

implicate plaintiff’s First Amendment rights because it did not prevent speech and no authority 

“establish[ed] a right to have a particular proposition on the ballot”).

The court found that the supermajority requirement at issue did not actually regulate 

speech, but was instead a limitation on the state-created right to an initiative process; plaintiffs’ 

First Amendment claim therefore arose “from a basic misunderstanding” of that distinction. 

Walker, 450 F.3d at 1101. Unconstitutional laws that regulate speech during the initiative 

process include “a requirement that petition circulators be registered voters, a requirement that 

petition circulators wear a name badge, and certain reporting requirements applicable to 

proponents of an initiative.” Id. at 1099 (citing Am. Constitutional Law Found., Inc. v. Meyer, 

120 F.3d 1092, 1100-05 (10th Cir.1997), aff’d sub nom. Buckley v. Am. Constitutional Law 

Found., Inc., 525 U.S. 182, (1999)). Another example is a law that makes it a felony to pay a 

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petition circulator. Id. at 1099 (citing Meyer v. Grant, 486 U.S. 414, 416 (1988)). Because the 

supermajority requirement did not restrict the dissemination of ideas, or the speech of circulators 

or proponents, it did not implicate the First Amendment and did not burden core political speech

at all. Id. at 1101.

For the same fundamental reason, the Tenth Circuit rejected the plaintiffs’ remaining 

First Amendment theories. Plaintiffs argued that the supermajority requirement discriminated on 

the basis of viewpoint or subject matter. The court explained that in order to be a content-based 

speech restriction, a provision must actually contain some restriction of protected speech in the

first instance. Without a regulation of protected speech, the question of “[w]hether it 

discriminates on the basis of viewpoint is [] beside the point.” Id. at 1104. The court also 

rejected the plaintiffs’ overbreadth and chill arguments. Again, the court held that because the 

supermajority requirement did not invade any First Amendment rights to begin with, the 

overbreadth doctrine (and any corresponding “chill” on future speech) simply was not 

applicable. Id. at 1105.

Most recently, the Seventh Circuit examined an Illinois law that limited the number of

initiatives that could appear on the ballot to the first three proposals certified. Jones v. 

Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir.2018). Under Illinois’ initiative process, 

citizen-initiated proposals had to meet signature-gathering requirements that were not applicable 

to municipalities. Id. at 936. This system allowed a municipality to “get its own proposals on 

the ballot first—even if the real goal of those proposals is just to prevent the private ones from 

appearing.” Id. at 937. The plaintiff argued that this system, effectively barring citizen-initiated 

proposals from the ballot by “allowing a unit of government to fill the available slots,” violated 

the First Amendment. Id.

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The Seventh Circuit disagreed. It first observed that “[n]othing in the Constitution 

guarantees direct democracy[,]” including the First Amendment. Id. at 937. For that reason, no 

federal court has “ever concluded that the ballot is a public forum that must be opened to 

referenda, let alone to as many referenda as anyone cares to propose.” Id. While a state can, of 

course, grant the right to propose initiative measures, that state-created right is one “that the First 

Amendment does not guarantee.” Id. at 938 (citing Meyer v. Grant, 486 U.S. 414 (1988)). Once 

again, because the law at issue did not implicate a speech component, the case did not present a 

First Amendment question at all. Id.

And a recent state appellate case, relying on Ninth Circuit jurisprudence, rejected 

arguments almost identical to the Plaintiffs’ here. In Port of Tacoma v. Save Tacoma Water, the 

plaintiffs began to circulate initiative petitions to amend a municipal charter. 422 P.3d 917, 919-

20 (Wash. Ct. App. July 25, 2018). During the circulation process, opponents of the proposed 

charter amendments filed a complaint in court to prevent the placement of the initiatives on the 

ballot. Id. at 920. The trial court enjoined county officials from placing the initiatives on the 

ballot, finding that they exceeded the local initiative power. Id. Supporters of the initiatives 

appealed, alleging that the trial court’s injunction violated their First Amendment rights.

The appellate court disagreed, again recognizing the distinction between protected speech 

that attends an initiative effort, and the legislative process of promulgating an initiative measure

itself. Id. at 925. The court began by recognizing that “‘the circulation of a[n initiative] petition 

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

described as ‘core political speech.’” Id. at 924-25 (emphasis added) (quoting Meyer v. Grant, 

486 U.S. 414, 421-22 (1988)). But the supporters’ First Amendment argument reduced to a 

different question: whether they have “a constitutional right to place an initiative on the ballot, 

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whether or not authorized by state or local law.” Id. at 925. The plaintiffs, the court noted, 

failed to “cite[ ] any authority for the proposition that one has a free speech right to have a local 

measure beyond the scope of the initiative power appear on the ballot.” Id. (emphasis added). 

Indeed, “[t]his argument was rejected by the Ninth Circuit in Angle v. Miller, 673 F.3d 1122, 

1133 (2012).” Id. (citing Meyer v. Grant, 486 U.S. 414, 424 (1988)). 

2. Plaintiffs’ claims in this case suffer from exactly the same “fundamental 

misunderstanding” at issue in Marijuana Policy Project, in Walker, in Jones, and in Port of 

Tacoma. Plaintiffs do not allege that they were prevented from circulating their petitions. See 

Compl., Doc. 1, ¶¶ 18-19. They do not allege that they were prevented from speaking in support 

of their petitions. They do not argue that the State cannot limit the proper subjects of an 

initiative petition. See Pls.’ Reply, Doc. 19, at 11 (“States have the power, just like the Congress, 

to restrict initiatives to select subjects and topics.”). And they do not argue here that, as a matter 

of state law, their petition fell within an appropriate subject for an initiative. Their First 

Amendment argument therefore presents the same question posed in Port of Tacoma: whether 

there is a First Amendment right to place a particular petition on the ballot, whether or not it falls 

within the state-created initiative right. 

The answer must be no. A state may appropriately limit the subjects available for 

initiative, and there is no protected speech implicated by denying the initiative option to certain 

subjects. Marijuana Policy Project v. United States, 304 F.3d 82, 87 (D.C. Cir.2002); Port of 

Tacoma v. Save Tacoma Water, 422 P.3d 917, 925 (Wash. Ct. App. July 25, 2018). Even 

assuming Plaintiffs’ petitions fall within Ohio’s initiative power, a process that endeavors to 

screen out unauthorized petitions does not implicate the First Amendment. See Marijuana 

Policy Project v. United States, 304 F.3d 82, 84 (D.C. Cir.2002); Skrzypczak v. Kauger, 92 F.3d 

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1050, 1053 (10th Cir.1996) (overruled on other grounds). Again, regulation of the initiative 

process itself—like a supermajority requirement for passing a wildlife management law, or a 

limitation on the number of initiative ballot slots available—does not implicate protected speech. 

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1101 (10th Cir.2006); Jones v. 

Markiewicz-Qualkinbush, 892 F.3d 935, 938 (7th Cir.2018). The Ohio Constitution reserves the 

power of initiative “to the people of each municipality on all questions which [it is] authorized 

by law to control by legislative action[,]” but only in the manner “provided by law.” Ohio 

Const., Art. II, § 1f. The laws challenged by Plaintiffs simply do not implicate protected speech, 

but rather a procedural component of a limited, state-created right as to which a state-created 

mandamus remedy exists. Without protected speech, Plaintiffs’ First Amendment claims fail as 

a matter of law.

D. Even assuming Plaintiffs have alleged an injury to their First Amendment 

rights, the challenged statutes pass rational basis review under the AndersonBurdick framework.

The Court need not engage in any balancing analysis because Plaintiffs’ First 

Amendment claims fail as a matter of law. See supra Part III.C. Here, Plaintiffs have not 

articulated any infringement or burdens on a right protected by the First Amendment. Because 

Plaintiffs’ First Amendment rights are not burdened, the challenged statutes’ constitutionality 

“depends on whether the rule has a rational basis, not on the First Amendment.” Jones, 892 F.3d 

at 938. There is no question that the challenged statutes further the state’s interests in 

simplifying the ballot, minimizing voter confusion, and ensuring voter confidence in the electoral 

system. See infra at 21. In light of these important state interests, the statutes must stand.

But even if Plaintiffs could articulate some impairment of their First Amendment rights 

(which they have not done), the challenged statutes are still constitutional under AndersonBurdick balancing. The Sixth Circuit has confirmed the applicability of this standard in a wide 

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variety of election challenges, including situations “[w]hen a plaintiff alleges that a state has 

burdened voting rights[.]” Obama for Am. v. Husted, 697 F.3d 423, 429 (6th Cir.2012). This 

approach conforms to the Supreme Court’s application of Anderson-Burdick balancing to a 

“broad[ ] range of voting rights contexts.” Id. (citing Crawford v. Marion Cnty. Election Bd., 

553 U.S. 181, 204 (Scalia, J., concurring) (“To evaluate a law respecting the right to vote—

whether it governs voter qualifications, candidate selection, or the voting process—we use the 

approach set out in Burdick[.]”). 

The Supreme Court has emphasized the importance of state regulation of elections, 

stating that “as a practical matter, there must be a substantial regulation of elections if they are to 

be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic 

processes.” Storer v. Brown, 415 U.S. 724, 729-30 (1974). As a result, courts consider 

constitutional challenges under the “flexible framework” developed by the Supreme Court in 

Anderson v. Celebrezze, 460 U.S. 780 (1983). The test requires that the court in the first instance 

“consider the character and magnitude of the asserted injury to the rights protected by the First 

and Fourteenth Amendments that the plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789; see 

also Burdick v. Takushi, 504 U.S. 428, 432-34 (1992). Thus, “when a state election law

provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and 

Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally 

sufficient to justify’ the restrictions.” Anderson, 460 U.S. at 789; see also Timmons v. Twin 

Cities Area New Party, 520 U.S. 350, 351 (1997). That is, “minimally burdensome and 

nondiscriminatory regulations are subject to a less-searching examination closer to rational basis 

and the State’s important regulatory interests are generally sufficient to justify the restrictions.” 

Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd., 885 F.3d 443, 448 

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(6th Cir.2018) (“CITL”) (quoting Anderson, 460 U.S. at 627); see also Taxpayers United for 

Assessment Cuts v. Austin, 994 F.2d 291, 297 (6th Cir.1993) (applying less-searching review 

under Anderson to a ballot-eligibility requirements for initiative petitions).

The statutes challenged here pass constitutional muster under this test. As explained 

above, these statutes do not impose any burden on the Plaintiffs’ First Amendment rights. See 

supra Part III.C. But even assuming the possibility of some First Amendment injury, any such

burden is minimal. See Ohio Council 8 Am. Fedn. of State v. Husted, 814 F.3d 329, 336-37 (6th 

Cir. 2016) (indulging plaintiffs’ inference that challenged law burdened First Amendment rights 

but finding any injury minimal). Plaintiffs do not argue that they have an initiative right to enact 

a non-legislative ordinance. They do not contest that this limitation on the initiative right applies 

to all initiative proposals, no matter their content. See CITL, 885 F.3d at 447-48 (holding singlesubject requirement for statewide initiatives is not content-based because it applies to all 

initiatives); see also State ex rel. Bolzenius v. Preisse, Ohio Sup. Ct. 18-1221, Slip Op. 2018-

Ohio-3708, 2018 Ohio LEXIS 2186, *11 (2018) (finding statute is not content-based “because it 

applies to all municipal initiative proposals—not just relators’—regardless of the proposal’s 

content”). Plaintiffs do not argue that they lack other avenues to “convey [their] message.” Ohio 

Council 8, 814 F.3d at 336. They disagree only with a board of elections’ duty to ensure that 

their initiative proposal is eligible for placement on the ballot. 

But boards of elections make determinations on any number of ballot-eligibility issues

without offending the First Amendment. For example, boards determine the eligibility of all 

signatories to an initiative petition. See Taxpayers United for Assessment Cuts, 994 F.2d at 293

(analyzing review of initiative petition signatures per statute). And to challenge any number of

ballot-eligibility determinations, the affected party files a lawsuit. See, e.g., State ex rel. Heavey 

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v. Husted, 152 Ohio St.3d 579, 99 N.E.3d 372, 373 (2018) (challenging in mandamus the 

verification of signatures on a declaration of candidacy and petition). Plaintiffs have cited no 

legal authority finding that this recourse burdens First Amendment rights. These duties do not 

implicate a First Amendment interest, id. at 296-97, but, even if they did, any injury would be

minimal, Ohio Council 8, 814 F.3d at 337.

The state has strong interests justifying its nondiscriminatory requirement that local 

initiatives fall within a municipality’s legislative authority. Otherwise, a municipality could 

enact by citizen-initiated ordinance a measure that it has no legislative authority to pass. And the 

State has an important interest in keeping unauthorized initiative proposals off the ballot itself. It 

simplifies the ballot. See Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 938 (7th Cir.2018) 

(“[S]tates have a strong interest in simplifying the ballot.”); see also Munro v. Socialist Workers 

Party, 479 U.S. 189, 194-95 (1986) (noting the Supreme Court has “never required a State to 

make a particularized showing of the existence of voter confusion [or] ballot overcrowding . . . 

prior to the imposition of reasonable restrictions on ballot access”). It prevents voter confusion. 

See CITL, 885 F.3d at 448 (finding Ohio’s single-subject requirement helps to avoid voter 

confusion). And it furthers the State’s interest in maintaining voter confidence in the 

government and electoral process. See First Natl. Bank v. Bellotti, 435 U.S. 765, 788-89 (1978) 

(recognizing that “equally” of the highest importance is the “[p]reservation of the individual 

citizen’s confidence in government”). These interests justify any minimal burden that Ohio law 

imposes on Plaintiffs’ First Amendment rights, assuming any burden in the first place.

E. An initiative process also does not implicate expressive content but, even if it 

did, the statutes at issue would pass review under O’Brien intermediate 

scrutiny.

The majority of courts examining a First Amendment challenge to a regulation of a state 

initiative process have identified no impairment of First Amendment rights in the first instance. 

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See supra Part III.C. The only court to diverge from this authority appears to be the First Circuit, 

which identified an expressive conduct component within the initiative process and therefore 

applied intermediate scrutiny to a limitation on that state-created right. See Wirzburger v. 

Galvin, 412 F.3d 271 (1st Cir.2005). No other Circuits have followed that precedent, however, 

and the Tenth Circuit has expressly disagreed with the reasoning underlying the Wirzburger

decision. This Court should do the same. But even if this Court disagrees and applies 

intermediate scrutiny to the laws challenged in this case, the result will be the same. Applying 

intermediate scrutiny, the Wirzburger court upheld the initiative restriction at issue; the laws at 

issue in this case will similarly withstand even a heightened First Amendment review. 

In Wirzburger, the First Circuit examined a constitutional limitation on the initiative 

power reserved to Massachusetts’ citizens, which prevented any change by initiative to the 

state’s constitutional prohibition on providing public financial support to private schools, and to 

matters dealing with religious institutions. Id. at 274-75. The plaintiffs wished to amend the 

Massachusetts Constitution to allow public financial support to be directed toward private, 

religiously-affiliated schools. Id. at 274. They submitted their proposed initiative to the 

Massachusetts Attorney General for certification. The Attorney General denied certification 

because the state constitution expressly excluded the subject of the measure from the initiative 

process. Id. at 274-75.

Plaintiffs challenged these restrictions on First Amendment grounds, arguing that they 

were content-based restrictions on core political speech subject to strict scrutiny. Id. at 275. The 

First Circuit recognized that “[t]he difficulty with the appellants’ argument is that a state 

initiative procedure, although it may involve speech, is also a procedure for generating law, and 

is thus a process that the state has an interest in regulating, apart from any regulation of the 

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speech involved in the initiative process.” Id. at 275. Because the restrictions were not aimed at 

communicative impact but instead were designed to prevent a harm independent of speech—“the 

use of the initiative process for the passage of certain types of laws believed to be unsuited to 

that process”—the First Circuit concluded that the restrictions should not be presumed 

unconstitutional and should not be subject to strict scrutiny. Id. The court clearly recognized the 

distinction between laws regulating the act of creating law via an initiative process versus laws 

“such as those considered in Meyer and its progeny [which] were aimed at directly regulating the 

means that initiative proponents could use to reach their audience of potential petition signers.” 

Id. at 277 (emphasis original). The court therefore declined to apply strict scrutiny to analyze the 

challenged restrictions. Id. 

Instead, the court determined that the restrictions should be subject to intermediate 

scrutiny, concluding that the regulated course of conduct contains both speech and non-speech 

components. Id. at 275, 279. This formulation has not been followed by other courts, and has 

been specifically rejected by the Tenth Circuit. Initiative & Referendum Inst. v. Walker, 450 

F.3d 1082, 1102 (10th Cir.2006). First, the Tenth Circuit disagreed that there exists an 

“expressive conduct” component—akin to flag burning or nude dancing—involved in the 

initiative process itself. Rather, an initiative process is a means of direct legislative action by the

people, a structural component of government. While a subject-matter restriction on the 

initiative process might conceivably affect some speech, it does not prohibit expressive conduct 

in the same way that, for example, a criminal statute prohibiting draft card burning does. Id. at 

1102 (citing Heideman v. South Salt Lake City, 348 F.3d 1182, 1192 (10th Cir.2003) (dealing 

with nude dancing), O’Brien, 391 U.S. 367, 376-77 (1968) (involving criminal penalties for draft 

card mutilation); Texas v. Johnson, 491 U.S. 397 (1989) (involving criminal penalties for flag 

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burning), and Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) (involving 

restrictions on camping in national parks)). 

Second, the Tenth Circuit observed that the “argument for intermediate scrutiny is 

fundamentally at odds with the idea of constitutional limitations on the democratic process.” Id. 

at 1102. For example, the constitutional prohibition against cruel and unusual punishment makes 

the passage of a law permitting torture very difficult, if not impossible. Id. at 1104. There is, 

however, no First Amendment component to that prohibition.

Finally, the Tenth Circuit objected to making federal courts the deciders of “the virtues 

and vices of the particular initiatives that are affected by the limitation.” Id. at 1103. That is, in 

assessing whether a restriction on a particular topic serves a “substantial government interest,” a 

court will necessarily be making its own judgment about the significance of various initiative 

topics. Id. The determination of “which subjects should be insulated from democratic change” 

is properly left to “the people and their representatives, and not judges[.]” Id. The Tenth Circuit 

therefore declined to follow the First Circuit and apply intermediate scrutiny under O’Brien. 

This Court should do the same.

Even if this Court were to engage in that review, the challenged statutes would survive. 

Under intermediate scrutiny, challenged regulations are appropriate if “(1) the regulation is 

within the constitutional power of the Government; (2) it furthers an important or substantial 

governmental interest; (3) the governmental interest is unrelated to the suppression of free 

expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater 

than is essential to the furtherance of that interest.” Wirzburger, 412 F.3d at 279 (internal 

quotations omitted). In Wirzburger, the court had “no difficulty finding” that the state “has a 

substantial interest in maintaining the proper balance between promoting free exercise and 

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preventing state establishment of religion” and in “restricting the means by which these 

fundamental rights can be changed.” Id. The challenged restrictions were also “aim[ed] at 

preventing certain uses of the initiative process, not at stemming expression[.]” Id. The court 

had rejected the plaintiffs’ “non-speech-related [Free Exercise and Equal Protection] 

constitutional challenges” and therefore found that the challenged restriction were within the 

government’s power. Id. The final O’Brien requirement was also met because “the restriction 

on speech is no more than is essential.” Id. The Wirzburger court therefore found that the 

challenged restrictions on the initiative process did not violate the First Amendment.

The same is true for Ohio. Ohio has an important interest in ensuring that only measures 

within the legislative power of municipalities appear on the ballot, that the structural distribution 

of legislative power in the state is maintained, and that public confidence in the mechanics of 

government and voting are preserved. These interests are not aimed at suppressing free 

expression—no particular subject or viewpoint is singled out. See Comm. to Impose Term Limits 

on the Ohio Supreme Court v. Ohio Ballot Bd., 885 F.3d 443, 447-48 (6th Cir.2018) (holding 

single-subject requirement for statewide initiatives is not content-based because it applies to all 

initiative proposals). And as in Wirzburger, other than removing these types of measures from 

the initiative process and ballot, there is “no other way in which [the state] could achieve its 

interest in safeguarding” the division of legislative power throughout Ohio. Wirzburger, 412 

F.3d at 279. Even under an intermediate level of scrutiny, the challenged laws do not burden 

First Amendment protections.

F. Plaintiffs’ remaining arguments for strict scrutiny under the public-forum 

and prior-restraint doctrines also fail as a matter of law.

Without citation to any relevant legal authority, Plaintiffs attempt to apply to Ohio’s 

initiative process the prior-restraint doctrine as considered in the context of public forums. This 

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argument fails. First, the ballot is not a public forum. Second, Plaintiffs fail to show that the 

prior restraint doctrine applies to ballot regulations. Finally, even if the prior restraint doctrine 

applies to the challenged statutes, they pass constitutional muster.

1. The ballot is not a public forum.

Plaintiffs fail to show any infringement on protected speech because Plaintiffs have no 

First Amendment right to have any particular initiative proposal appear on the ballot. See supra

Part III.C. But even assuming forum analysis applies to the ballot (which it does not), Plaintiffs’ 

argument must fail. 

Because “[n]othing in the Constitution requires the Government freely to grant access to 

all who wish to exercise their right to free speech on every type of Government property,” the 

Supreme Court has long held that the “forum” doctrine governs the constitutionality of speech 

restrictions on government-controlled property. Cornelius v. NAACP Legal Defense and Educ.

Fund, Inc., 473 U.S. 788, 799 (1985). Under that analysis, courts determine whether “the 

Government’s interest in limiting the use of its property to its intended purpose outweighs the 

interest of those wishing to use the property for other purposes.” United States v. Kokinda, 497

U.S. 720, 726 (1990) (internal quotation omitted). Regulations of speech in traditional public 

forums, “places which by long tradition or by government fiat have been devoted to assembly

and debate” are subject to strict scrutiny. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460

U. S. 37, 45-46 (1983).

In contrast, in a nonpublic forum—a space that “is not by tradition or designation a forum 

for public communication”—the government has significant flexibility to fashion rules limiting 

speech. Perry Ed. Assn., 460 U.S. at 46. The government may reserve such a forum “for its 

intended purposes, communicative or otherwise, as long as the regulation on speech is 

reasonable and not an effort to suppress expression merely because public officials oppose the 

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speaker’s view.” Id. Thus, restraints on speech in a nonpublic forum will be upheld unless they 

are unreasonable or rely on impermissible viewpoint discrimination. 

Without any apparent support from case law, Plaintiffs argue that the ballot is a public 

forum. Pls.’ Mot., Doc. 3, at 15-18; Pls.’ Reply to Defs.’ Responses, Doc. 19, at 13-15. But “the 

State controls the content of the ballot, which we have never considered a public forum.” Wash. 

State Grange v. Wash. State Republican Party, 552 U.S. 442, 461 (2008) (Roberts, C.J., 

concurring). Rather than vehicles to be used as a means of communicating, “[b]allots serve 

primarily to elect candidates, not as fora for political expression.” Timmons v. Twin Cities Area 

New Party, 520 U.S. 351, 362-63 (1997); Ohio Council 8 Am. Fedn. of State v. Husted, 814 F.3d 

329, 336 (6th Cir.2016) (finding “a political party has no First Amendment right to use the 

general-election ballot for expressive activities”). Indeed, the Supreme Court similarly held that 

a “polling place in Minnesota qualifies as a nonpublic forum [because it] is, at least on Election 

Day, government-controlled property set aside for the sole purpose of voting.” Minnesota Voters 

Alliance v. Mansky, ___U.S.___, 138 S.Ct. 1876, 1886 (2018). In short, the Supreme Court has 

“rejected the notion that the First Amendment confers a right to use governmental mechanics to 

convey a message.” Nev.Comm’n on Ethics v. Carrigan, 564 U.S. 117, 127 (2011).

The Sixth Circuit has also never found the ballot to be a public forum. Rather than 

subjecting ballot-access laws to the stringent standards afforded to regulation of protected speech 

in public forums, it has time and again upheld reasonable and nondiscriminatory State regulation 

of ballot content. See Ohio Council 8, 814 F.3d 329; Commt. to Impose Term Limits on the Ohio 

Supreme Court v. Ohio Ballot Bd., 885 F.3d 443, 445 (6th Cir.2018) (“CITL”); Schrader v. 

Blackwell, 241 F.3d 783 (6th Cir.2001). 

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Even assuming the ballot somehow could be characterized as a nonpublic forum, the laws 

Plaintiffs challenge are reasonable and do not discriminate based on a particular viewpoint. 

Nondiscriminatory restrictions on the initiative process are constitutionally sound. CITL, 885 

F.3d at 448. In CITL, the Sixth Circuit held that the separate-petition requirement was contentneutral because “[i]t applies to all initiative petitions, no matter the topic discussed or idea or 

message expressed.” Id. at 447. Likewise, the statutes challenged here apply regardless of the 

message conveyed in the initiative petition. The limitations on local initiative authority apply 

with equal force regardless of the content of a proposed petition; the requirements apply equally 

across all subject matters and no matter the viewpoint expressed. In sum, by applying equally to 

all initiatives, the challenged statutes are content-neutral. 

Separately, the challenged statutes are reasonable. As CITL acknowledged, state statutes 

regulating ballots serve “legitimate and strong state interests” such as “avoid[ing] confusion” and 

“promot[ing] informed decision-making[.]” CITL, 885 F.3d at 448 (internal quotation omitted);

see also Munro v. Socialist Workers Party, 479 U.S. 189, 194-95 (1986) (noting the Supreme 

Court has “never required a State to make a particularized showing of the existence of voter 

confusion, ballot overcrowding . . . prior to the imposition of reasonable restrictions on ballot 

access”). Ensuring that local initiatives fall within a municipality’s legislative authority furthers 

the state’s reasonable interests in preventing ballot overcrowding and confusion. 

Accordingly, to the extent that a state ballot is characterized as a nonpublic forum, the 

challenged statutes are reasonable and do not discriminate based on viewpoint and thus are not 

subject to strict scrutiny review.

2. The challenged laws are not subject to the prior restraint doctrine.

Relying on inapplicable public forum case authority, Plaintiffs argue that the challenged 

statutes operate as a prior restraint on speech by vesting unbridled discretion in the county boards 

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of elections. Pls.’ Mot., Doc. 3, at 15-18. But their only cited authority involves application of 

this doctrine to restrictions on expressive speech in public forums. Id. For example, the 

plaintiffs in Forsyth County v. Nationalist Movement challenged regulations that implicated 

public demonstrations in public roads. 505 U.S. 123, 130 (1990). Likewise, Shuttlesworth v. 

City of Birmingham involved a challenge to ordinances restricting public demonstrations on 

public streets. 394 U.S. 147, 153 (1969) (“We have consistently condemned licensing systems 

which vest in an administrative official discretion to grant or withhold a permit upon broad 

criteria unrelated to proper regulation of public places.”). This is also the case with Lakewood v. 

Plain Dealer Publishing Company, where a newspaper challenged a licensing scheme that 

restricted newspaper racks in public streets. 486 U.S. 750, 776 (1988). 

Here, Plaintiffs fail to cite to any authority to support their argument that prior restraint 

analysis applies to the state’s regulation of ballot eligibility. Under similar circumstances, an 

Ohio federal district court has declined to apply prior-restraint analysis to a statute regulating a 

candidate’s access to the ballot. See Aey v. Mahoning Cty. Bd. of Elections, No. 4:08 CV 405, 

2008 U.S. Dist. LEXIS 19247, *16 (N.D.Ohio Feb. 26, 2008) (“Plaintiff fails to cite any 

authority in support of the proposition that prior restraint licensing analysis should be applied to 

a ballot access statute.”). In that case, the plaintiff sought to enjoin Ohio Rev. Code § 311.01, 

which specifies qualifications for those seeking the elected office of sheriff, as a violation of his 

rights under the First and Fourteenth Amendments. Id. at *10. Applying Anderson-Burdick, the 

court held that the statute was content-neutral and thus did not severely burden plaintiffs’ rights. 

Id. at *10-*13. Next, the court held that the statute facilitated the State’s interest in setting 

minimum qualifications for candidates for sheriff. Id. at *13-*14. Finally, the court rejected 

plaintiff’s argument that the statute operated as a prior restraint on speech for, among other 

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reasons, plaintiff’s failure “to cite any authority in support of the proposition that prior restraint 

licensing analysis should be applied to a ballot access statute.” Id. at *16. Accordingly, the 

court declined to grant injunctive relief. 

Citing to Freedman v. Maryland, Plaintiff also argues that the challenged statutes violate 

First Amendment protections because the county boards of elections’ decision to certify an 

initiative to the ballot is not subject to provisions for judicial review. Pls.’ Mot., Doc. 3, at 17-

18. But, again, Plaintiffs cannot point to any authority applying the Freedman requirements to 

ballot access statutes. Instead, Freedman required such procedural safeguards in a licensing 

regime that explicitly censored and restricted expression in movie theaters. 380 U.S. 51 (1965). 

The procedural-safeguards requirement has been applied by the Supreme Court in limited 

situations, “when a State undertakes to shield the public from certain kinds of expression it has 

labeled as offensive,” such as nudity or depictions of sexual conduct. M.I.C., Ltd. v. Bedford 

Twp., 463 U.S. 1341, 1343 (1983) (citing, inter alia, Se. Promotions, Ltd. v. Conrad, 420 U.S. 

546, 560-62 (1975) (involving denial of license for theater production of Hair) and Vance v. 

Universal Amusement Co., 445 U.S. 308, 316 (1980) (involving potential injunction barring 

operation of adult movie theater)); see also Deja Vu of Nashville, Inc. v. Metro. Govt. of 

Nashville & Davidson Cty., 274 F.3d 377, 401 (6th Cir.2001). And even with respect to 

licensing schemes regulating public forums, the Supreme Court “ha[s] never required that a 

content-neutral permit scheme regulating speech in a public forum adhere to the procedural 

requirements set forth in Freedman.” Thomas v. Chicago Park Dist., 534 U.S. 316, 322 (2002). 

“To read the [Supreme] Court’s language otherwise[,]” the Sixth Circuit has held, “would negate 

its earlier holding that content-neutral time, place, and manner restrictions need not contain 

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Freedman safeguards.” H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 624 (6th 

Cir.2009) (citing Thomas v. Chicago Park Dist., 534 U.S. 316, 322 (2002)).

Plaintiffs’ reliance on Miller v. City of Cincinnati likewise offers no help. 622 F.3d 524 

(6th Cir.2010). There, the Sixth Circuit applied forum analysis to affirm a preliminary injunction 

of an ordinance requiring that private events held inside city hall be sponsored by a city 

department or official. Id. at 535-36. The purpose of city hall, the court found, is to allow 

employees to carry out official duties, not attend private events. Id. Therefore, “the sponsorship 

or collaboration requirement . . . bears little relationship to any official duties” and was not 

“reasonably related to the purpose of the forum.” Id. at 536. Indeed, this case did not address 

the prior-restraint doctrine other than to find that by alleging the city’s ordinance barred them 

from unlawfully exercising their First Amendment rights, the plaintiffs sufficiently alleged 

standing to pursue their claims. Id. at 531-32. 

Plaintiffs cannot show that statues regulating ballot access are required to include 

provisions for a particular sort of judicial review. First, of course, the ballot is not a public 

forum like a theater or a public street. Ohio Council 8 Am. Fedn. of State v. Husted, 814 F.3d 

329, 336 (6th Cir.2016) (no right to use ballot for expressive activities); Jones v. MarkiewiczQualkinbush, 892 F.3d 935, 937 (7th Cir.2018) (“Nor has any federal court ever concluded that 

the ballot is a public forum that must be opened to referenda[.]”). Moreover, the challenged 

restrictions are not content-based—they apply equally to all local initiative proposals, no matter 

the particular topic they address or the particular viewpoint their supporters espouse. See CITL, 

885 F.3d at 447-48 (holding single-subject requirement for statewide initiatives is not contentbased); see also State ex rel. Bolzenius v. Preisse, Ohio Sup. Ct. 18-1221, Slip Op. 2018-Ohio3708, 2018 Ohio LEXIS 2186, *11 (2018) (finding statute is not content-based “because it 

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applies to all municipal initiative proposals—not just relators’—regardless of the proposal’s 

content”). Freedman is therefore not applicable to Plaintiffs’ claims. H.D.V.-Greektown, 568 

F.3d at 624.

Because Plaintiffs have failed to articulate any basis for applying the prior restraint 

doctrine to the challenged laws, Plaintiffs fail to prove the challenged laws are subject to strict 

scrutiny review.

3. The challenged laws are not prior restraints on protected speech.

Finally, even applying the prior-restraint doctrine to the challenged laws, they survive 

constitutional scrutiny. To prove a First Amendment prior restraint claim, Plaintiffs bear the 

burden of showing that they attempted to engage in activity protected by the First Amendment 

but were prohibited from doing so. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 

U.S. 788, 797 (1985). This is a showing Plaintiffs fail to make. The challenged statutes do 

nothing to control or prohibit any speech by petition circulators or signers regarding any 

viewpoints or content. They simply do not touch on the “ability to communicate with other 

voters about proposed legislation.” Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 

291, 297 (6th Cir.1993). When a county board of elections does not certify a petition issue to the 

ballot after determining that it falls outside the municipality’s legislative authority, the board 

does not forbid any communication about the topics addressed by that initiative. Simply put, 

Plaintiffs fail to show that they have a First Amendment right to vote on a particular initiative on 

a ballot. See supra Part III.C.

Nor do the statutes unconstitutionally vest unbridled discretion in the county boards of 

elections. “[T]he usual rule is that a law requiring permits for specified activities is not 

unconstitutional because it vests discretion in administrative officials to grant or deny the 

permit.” Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 776 (1988). In contrast to 

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Plaintiffs’ cited cases, the text of the challenged statutes sets explicit limits on the discretion of 

county elections officials to deny ballot access. Boards of elections are to review petitions to 

determine “whether the petition falls within the scope of a municipal political subdivision’s 

authority to enact via initiative.” O.R.C. § 3501.38(M)(1)(a). These statutes delineate 

parameters guiding the board of elections’ review of local initiatives, in contrast to the 

challenged provisions in Forsyth, Shuttlesworth, Freedman, and Lakewood, which included no 

explicit limits on decision makers’ authority. See, e.g., State ex rel. Ebersole v. Delaware Cty. 

Bd. of Elections, 140 Ohio St.3d 487, 20 N.E.3d 678, 684-85 (2014) (noting the “30 year” 

history of the “well-established distinction between municipal legislative and administrative 

activity”).

Because the challenged statutes do not unconstitutionally prohibit protected First 

Amendment speech, and therefore do not grant elections officials unfettered discretion to censor 

protected First Amendment speech, Plaintiffs fail to demonstrate that the challenged laws impede 

First Amendment protections in the first instance or that they should be subject to strict scrutiny 

review.

G. The challenged statutes do not impinge upon substantive or procedural due 

process protections.

To the extent that Plaintiffs allege that the challenged statutes cause a deprivation of their 

procedural or substantive due process rights, this claim also fails as a matter of law. See Op. & 

Order, Doc. 22, at 5 (noting “[a]t oral argument, however, Plaintiffs argued that the Ohio 

procedure for proposing initiatives violates constitutional due process protections”). Plaintiffs 

have not briefed or attempted to present any evidence to support these theories. Because 

Plaintiffs only raised this issue oral argument, it is therefore forfeited. See Lindsey v. Detroit 

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Entm’t, LLC, 484 F.3d 824, 831 n.9 (6th Cir.2007) (noting issues not raised prior to oral 

argument are waived). 

Even if the arguments are not waived, in the election context, due process claims are 

“addressed . . . collectively using a single analytic framework.” Dudum v. Arntz, 640 F.3d 1098, 

1106 n.15 (9th Cir.2011) (citing Anderson, 460 U.S. at 787 n.7; LaRouche v. Fowler, 152 F.3d 

974, 987–88 (D.C. Cir.1998)). As outlined above, public forum and strict scrutiny analysis do 

not apply and the challenged statutes satisfy Anderson-Burdick review. See supra Parts III.D and 

III.F. Thus, Ohio’s important regulatory interests also justify the challenged statutes under a due 

process analysis. See Dudum, 640 F.3d at 1114 (analyzing due process claims under AndersonBurdick); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358-59, 365 (1997) 

(analyzing Fourteenth Amendment associational rights claim under Anderson-Burdick).

1. The challenged statutes do not violate substantive due process.

Even if Plaintiffs had raised any substantive due process claims, such claims could not

succeed. By its terms, the Due Process Clause applies only when a “State deprive[s] any person 

of life, liberty, or property.” U.S. Const. amend. XIV, § 1. The challenged laws do not impact or 

even address electors’ fundamental right to vote. Nor have Plaintiffs pointed to any authority 

establishing that the Due Process Clause is implicated when a state regulates local initiatives on a 

ballot. Rather, the Sixth Circuit has made clear that“[t]he Due Process Clause protects against 

extraordinary voting restrictions that render the voting system fundamentally unfair.” Northeast 

Ohio Coalition for Homeless v. Husted, 696 F.3d 580, 597 (6th Cir.2012) (internal quotation

omitted). “[G]arden variety election irregularities” do not rise to that level.” Id. 

Plaintiffs cannot prove the challenged statutes “result in significant disenfranchisement 

and vote dilution.” Id. Indeed, Plaintiffs have offered no argument or evidence that the 

challenged statutes have any impact whatsoever on the right to vote, much less that they have 

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resulted in any voter disenfranchisement. Accordingly, to any extent Plaintiffs attempt to bring a 

substantive due process claim against the challenged statutes, it fails.

2. The challenged statutes do not violate procedural due process.

If Plaintiffs meant to raise a procedural due process claim, it likewise fails. See Op. & 

Order, Doc. 22, at 5. To establish a procedural due process claim, a plaintiff must prove a 

deprivation of a life, liberty, or property interest without constitutionally adequate process. Hahn 

v. Star Bank, 190 F.3d 708, 716 (6th Cir.1999). Again, Plaintiffs have not identified a 

fundamental interest implicated by the challenged statutes. See League of Women Voters v. 

Brunner, 548 F.3d 463, 479 (6th Cir.2008) (“The League contends that Ohio’s voting system 

deprives Ohioans of ‘their liberty interest in voting and does so without adequate pre- or postdeprivation process.’ However, the League has not alleged a constitutionally protected interest.”) 

Moreover, Plaintiffs do not argue that the challenged statutes fail to provide notice of an adverse 

decision from boards of elections. Rather, the Plaintiffs here were given adequate notice with 

sufficient time to seek relief from the Board’s decision. See Compl., Doc. 1, ¶¶ 24-26. 

Accordingly, their claim fails as a matter of law. 

Importantly, too, even assuming the challenged statutes affect a fundamental right, 

Plaintiffs are afforded adequate procedural protections by way of mandamus. See Ohio Const., 

art. IV, § 2(B)(1)(b). “Ohio law offers mandamus as an appropriate remedy where no statutory 

right of appeal is available to correct an abuse of discretion by an administrative body.” 

Mathews v. Ohio Pub. Emples. Retirement Sys., 91 F. Supp. 3d 989, 1002 (S.D.Ohio 2015)

(internal quotation omitted). In Mathews, the plaintiff argued that mandamus did not provide an 

adequate hearing opportunity to seek relief from the termination of his disability benefits by an 

administrative agency. Id. The court found that the disability benefits constituted a 

constitutionally-protected property interest. Id. at 999. Next, the court analyzed the adequacy 

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of the process afforded to the plaintiff following the termination of his disability benefits. Id. at 

1001-02. On this point, the court found that state statutes governing disability benefits did not 

include any provision for administrative or judicial appeal of the agency’s termination decision. 

Id. at 1002. However, the plaintiff could have filed a mandamus proceeding in state court to 

challenge this benefits termination. Id. at 1002-03. Mandamus, the court held, provided plaintiff 

with “an adequate state remedy to redress the termination of his disability benefits.” Id. 

Mandamus provided an adequate remedy regardless of whether plaintiff would have ultimately 

prevailed on his claims. Id.

Here, Plaintiffs and others seeking to reverse an initiative decision by a county board of 

elections are afforded the constitutionally sound option of seeking recourse through mandamus 

in the Ohio Supreme Court. The Ohio Supreme Court has original jurisdiction to hear 

mandamus actions, and its review is not discretionary as in an appeal. See Ohio Const., art. IV, 

§ 2(B)(1)(b). When reviewing local initiative cases, the Supreme Court is under a “duty to 

liberally construe municipal initiative provisions to permit the exercise of the power of 

initiative.” State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 835 N.E.2d 1222, 

1232 (2005); State ex rel. Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of 

Elections, 115 Ohio St.3d 437, 875 N.E.2d 902, 911 (2007). The court reviews challenges to 

county boards’ of elections decisions to ensure boards have not “engaged in fraud or corruption, 

abused its discretion, or acted in clear disregard of applicable legal provisions.” State ex rel. 

Jacquemin v. Union County Bd. of Elections, 147 Ohio St.3d 467, 67 N.E.3d 759, 762 (2016). 

Moreover, court procedures enable parties to expedite briefing and decisions to meet pressing 

elections-related deadlines. See Ohio S.Ct.Prac.R. 12.08 (governing expedited election cases). 

And the Ohio Supreme Court has ordered that initiatives appear on ballots. Plaintiffs concede as 

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much. Pls.’ Mot., Doc. 3, at 9 n.4 (citing State ex rel. Khumprakob v. Mahoning Board of 

Elections, Ohio Sup. Ct. 18-0404, Slip Op. 2018-Ohio-1602, 2018 Ohio LEXIS 881 (2018)). 

Accordingly, to the extent that Plaintiffs bring a procedural due process claim against the 

challenged statutes, this claim also fails.

IV. CONCLUSION

Plaintiffs have not shown that any of O.R.C. § 3501.11(K), O.R.C. § 3501.38(M)(1)(a), 

and O.R.C. § 3501.39(A)’s applications are unconstitutional, let alone a substantial number of 

such applications. Therefore, Plaintiffs have failed to show that the challenged statutes are 

unconstitutional on their face. O’Toole v. O’Connor, 802 F.3d 783, 791 (6th Cir.2015). 

Plaintiffs have failed to demonstrate their entitlement to a permanent injunction and their claims 

should be dismissed. 

Respectfully submitted,

MIKE DEWINE

OHIO ATTORNEY GENERAL

/s/ Sarah E. Pierce

SARAH E. PIERCE (0087799)*

*Lead Counsel

RENATA Y. STAFF (0086922)

Assistant Attorneys General 

Constitutional Offices Section 

30 East Broad Street, 16th Floor 

Columbus, Ohio 43215 

Tel: 614-466-2872 | Fax: 614-728-7592 

sarah.pierce@ohioattorneygeneral.gov

renata.staff@ohioattorneygeneral.gov

Counsel for Defendant 

Ohio Secretary of State Jon Husted

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CERTIFICATE OF SERVICE

I hereby certify that on November 2, 2018, the foregoing was filed electronically. Notice 

of this filing will be sent to all parties for whom counsel has entered an appearance by operation 

of the Court’s electronic filing system. Parties may access this filing through the Court’s system. 

I further certify that a copy of the foregoing has been served by e-mail or facsimile upon all 

parties for whom counsel has not yet entered an appearance and upon all counsel who have not 

entered their appearance via the electronic system.

/s/ Renata Y. Staff

RENATA Y. STAFF (0086922)

Assistant Attorney General

Case: 2:18-cv-00966-EAS-EPD Doc #: 30 Filed: 11/02/18 Page: 49 of 49 PAGEID #: 234