[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Fockler v. Husted, Slip Opinion No. 2017-Ohio-224.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2017-OHIO-224

THE STATE EX REL. FOCKLER ET AL. v. HUSTED. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Fockler v. Husted, Slip Opinion No. 

2017-Ohio-224.] 

Elections—Mandamus—R.C. 3517.01 and 3501.01—Secretary of state did not 

abuse discretion or act in clear disregard of applicable law in denying 

relators’ request for recognition of political-party status, because a 

political party may not be revived based on percentage of vote received by 

candidates who appeared on ballot as independents—Writ denied. 

(No. 2016-1863—Submitted January 13, 2017—Decided January 20, 2017.) 

IN MANDAMUS.

_________________ 

Per Curiam. 

{¶ 1} Relators, John Fockler, Kevin Knedler, M. Ann Leech, Scott 

Pettigrew, and Harold D. Thomas (hereinafter “Fockler”), are the members of the 

committee that nominated Gary Johnson and William Weld to appear on Ohio’s 
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2

November 2016 ballot as independent candidates for president and vice president 

of the United States.1 After Johnson and Weld jointly received 3.17 percent of the 

total votes cast in Ohio for president and vice president, Fockler brought this 

mandamus action seeking to require respondent, Ohio Secretary of State Jon 

Husted, to recognize relators as a political party under R.C. 3517.01. 

{¶ 2} We conclude that relators are not entitled to the writ, because they do 

not qualify as a political party. Their candidates were nominated as independent 

candidates without any political-party affiliation, and R.C. 3501.01 and 3517.01 

permit only established political parties to retain ballot access if they receive at 

least 3 percent of the vote. 

Factual and procedural background 

{¶ 3} Gary Johnson and William Weld appeared as independent 

presidential and vice-presidential candidates on Ohio’s November 2016 ballot. At 

that election, they received 3.17 percent of the vote. 

{¶ 4} On December 2, 2016, relators submitted a letter to Husted requesting 

that he recognize them as a political party under R.C. 3517.01(A)(1)(a) because 

their candidates had received more than 3 percent of the vote at the November 

election. In the letter, they requested recognition with a party identification of 

“Libertarian.” They attached an additional letter from the Libertarian Party of Ohio 

joining in the request and consenting to relators’ use of “Libertarian,” “Libertarian 

Party,” and “Libertarian Party of Ohio” for the purpose of party recognition. 

{¶ 5} Husted denied the request on the grounds that the placement of 

independent candidates on the ballot is insufficient to create a political party in 

Ohio. Fockler then filed this mandamus action seeking to require Husted to 

recognize relators as a political party under R.C. 3517.01(A)(1)(a). 

 

1

 The committee originally nominated Charles Earl and Kenneth Moellman as “placeholder” 

candidates. After Earl and Moellman withdrew their candidacies, the committee filed 

documentation under R.C. 3513.31 to substitute Johnson and Weld as candidates. 
January Term, 2017 

3

{¶ 6} Although Fockler improperly filed the action as an automatically 

expedited election case under S.Ct.Prac.R. 12.08, see __ Ohio St.3d __, 2016-Ohio8271, __ N.E.3d __, we granted his unopposed motion for expedited consideration, 

__ Ohio St.3d __, 2016-Ohio-8459, __ N.E.3d __. 

Analysis 

{¶ 7} Fockler requests a writ of mandamus to compel Husted to recognize 

relators as a political party so that they may hold a primary election as the 

“Libertarian” party and have candidates appear on the ballot as “Libertarian” party 

candidates. Fockler contends that relators are a “group of voters” whose candidates 

received more than 3 percent of the vote for president and vice president. 

Therefore, he argues that relators have met the requirements of R.C. 

3517.01(A)(1)(a) and are entitled to recognition as a political party that may 

conduct a primary election to nominate candidates on May 2, 2017.

Mandamus

{¶ 8} To be entitled to a writ of mandamus, Fockler “must establish a clear 

legal right to the requested relief, a corresponding clear legal duty on the part of the 

secretary of state to provide it, and the lack of an adequate remedy in the ordinary 

course of the law.” State ex rel. Heffelfinger v. Brunner, 116 Ohio St.3d 172, 2007-

Ohio-5838, 876 N.E.2d 1231, ¶ 13. Fockler must prove that he is entitled to the 

writ by clear and convincing evidence. State ex rel. Clough v. Franklin Cty. 

Children Servs., 144 Ohio St.3d 83, 2015-Ohio-3425, 40 N.E.3d 1132, ¶ 10. 

{¶ 9} Furthermore, “ ‘[i]n extraordinary actions challenging the decisions 

of the Secretary of State and boards of elections, the standard is whether they 

engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of 

applicable legal provisions.’ ” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 

2009-Ohio-5327, 915 N.E.2d 1215, ¶ 9, quoting Whitman v. Hamilton Cty. Bd. of 

Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. There is no 

allegation of fraud or corruption here. Therefore, the dispositive issue is whether 
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Husted abused his discretion or clearly disregarded the applicable law in 

determining that relators do not qualify as a political party. 

Process for establishing a political party 

{¶ 10} R.C. 3517.01(A)(1) sets forth the process by which a group of voters 

may qualify as a political party: 

A political party within the meaning of Title XXXV of the 

Revised Code is any group of voters that meets either of the 

following requirements: 

(a) Except as otherwise provided in this division, at the most 

recent regular state election, the group polled for its candidate for 

governor in the state or nominees for presidential electors at least 

three per cent of the entire vote cast for that office. A group that 

meets the requirements of this division remains a political party for 

a period of four years after meeting those requirements. 

(b) The group filed with the secretary of state, subsequent to 

its failure to meet the requirements of division (A)(1)(a) of this 

section, a party formation petition that meets all of the following 

requirements: * * *. 

{¶ 11} Fockler contends that R.C. 3517.01(A)(1) is the only relevant 

provision in determining whether relators qualify as a political party. Husted, 

however, argues that this statute must be considered in pari materia with R.C. 

3501.01 in order to make that determination. 

{¶ 12} R.C. 3501.01 defines various terms for purposes of the election law. 

R.C. 3501.01(F) defines “political party” as any group of voters who meet the 

requirements of R.C. 3517.01 for the formation and existence of a political party. 
January Term, 2017 

5

A “minor political party” is a political party that meets either of the following 

requirements: 

(a) Except as otherwise provided in this division, the 

political party’s candidate for governor or nominees for presidential 

electors received less than twenty per cent but not less than three per 

cent of the total vote cast for such office at the most recent regular 

state election. A political party that meets the requirements of this 

division remains a political party for a period of four years after 

meeting those requirements. 

(b) The political party has filed with the secretary of state, 

subsequent to its failure to meet the requirements of division 

(F)(2)(a) of this section, a petition that meets the requirements 

of section 3517.01 of the Revised Code. 

A newly formed political party shall be known as a minor 

political party until the time of the first election for governor or 

president which occurs not less than twelve months subsequent to 

the formation of such party, after which election the status of such 

party shall be determined by the vote for the office of governor or 

president. 

R.C. 3501.01(F)(2). 

{¶ 13} Husted correctly asserts that the political-party-formation law (R.C. 

3517.01) must be interpreted in concert with the election-law definitions of 

“political party” and “minor political party” (R.C. 3501.01). “ ‘ “[A]ll statutes 

which relate to the same general subject matter must be read in pari materia. And 

in reading such statutes in pari materia, and construing them together, this court 

must give such a reasonable construction as to give the proper force and effect to 
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each and all such statutes.” ’ ” State v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305, 

942 N.E.2d 357, ¶ 45, quoting United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 

369, 372, 643 N.E.2d 1129 (1994), quoting Johnson’s Mkts., Inc. v. New Carlisle 

Dept. of Health, 58 Ohio St.3d 28, 35, 567 N.E.2d 1018 (1994). Because R.C. 

3501.01(F) and 3517.01(A) relate to the same subject matter—the recognition of 

political parties—they should be read in pari materia. 

{¶ 14} When considered together, these statutes make clear that a political 

group cannot obtain recognized political-party status based on votes obtained by 

independent candidates. As Husted notes, the 3 percent vote required for a group 

to “remain[ ]” a political party must be received by the “political party’s candidate,” 

as specified in R.C. 3501.01(F)(2)(a). Fockler’s candidates could not be the 

“political party’s candidate[s]” because they were nominated and appeared on the 

ballot as independent candidates, unaffiliated with any political party.2

{¶ 15} Moreover, because relators were not a recognized political party 

prior to the election, they are not eligible to “remain[ ]” a political party based on 

the outcome of the election. As Husted aptly states, only already-recognized 

political parties are eligible to “remain[ ]” a political party. 

{¶ 16} For Fockler to revive a previously recognized political party, Fockler 

must file a party-formation petition that meets the requirements of R.C. 

3501.01(F)(2)(b) and 3517.01(A)(1)(b). The Libertarian Party, which was 

previously recognized in Ohio, lost political-party status in 2014 after its failure to 

properly nominate a candidate for the office of governor. See Libertarian Party of 

Ohio v. Husted, 751 F.3d 403, 424 (6th Cir.2014). Without a candidate on the ballot 

at that election, the Libertarian Party could not receive the vote percentage required 

 

2

 “ ‘Independent candidate’ means any candidate who claims not to be affiliated with a political 

party, and whose name has been certified on the office-type ballot at a general or special election 

through the filing of a statement of candidacy and nominating petition, as prescribed in section 

3513.257 of the Revised Code.” R.C. 3501.01(I). 
January Term, 2017 

7

to remain a political party. And after a recognized political party fails to receive 3 

percent of the vote, both statutory provisions require it to “file[ ] with the secretary 

of state” a petition that meets the statutory requirements in order to regain politicalparty status. R.C. 3501.01(F)(2)(b) and 3517.01(A)(1)(b). 

{¶ 17} This conclusion is consistent with two authorities that have 

previously considered the political-party-formation provisions of R.C. 3501.01 and 

3517.01. 

{¶ 18} First, in Libertarian Party of Ohio v. Husted, 831 F.3d 382, 388 (6th 

Cir.2016), the United States Court of Appeals for the Sixth Circuit briefly described 

the process for qualifying as a minor political party in Ohio, stating that a party may 

qualify by obtaining at least 3 percent of the vote and that, alternatively, “new

political parties that were not on the ballot in the preceding election * * * may 

qualify as a minor party through petition.” (Emphasis added.) 

{¶ 19} Second, the Legislative Service Commission’s final analysis of 2013 

Am.Sub.S.B. No. 193, the bill that established the current party-formation process, 

states that the bill “[l]owers the percentage of vote required for a party to retain its 

status as a political party and revises the process for a new party to gain recognition 

by filing a party formation petition.” Ohio Legislative Service Commission, Final 

Analysis of Am.Sub.S.B. No. 193, as passed by the General Assembly (2014), at 

1. “Although this court is not bound” by the analyses prepared by the Ohio 

Legislative Service Commission, “we may refer to them when we find them helpful 

and objective.” Meeks v. Papadopulos, 62 Ohio St.2d 187, 191, 404 N.E.2d 159 

(1980). 

{¶ 20} Therefore, we conclude that Husted properly construed R.C. 

3501.01 and 3517.01 together in determining that only established political parties 

may retain ballot access based on their candidates’ receiving a specified percentage 

of the vote. 
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{¶ 21} Fockler contends, to the contrary, that under the plain language of 

R.C. 3517.01, read alone, relators qualify as a political party. He insists that the 

political-party-formation provisions in R.C. 3501.01 are distinct and inapplicable, 

as they apply only to a “political party,” while the provisions of R.C. 3517.01 apply 

to a “group of voters.” Because Johnson and Weld polled more than 3 percent of 

the vote for president and vice president, Fockler contends that the committee meets 

the requirement of a “group of voters” whose candidates polled at least 3 percent 

and, therefore, that the group “remains a political party” for the next four years. 

{¶ 22} However, Fockler’s interpretation necessarily divides the R.C. 

3517.01 political-party-formation provisions from the definitions of “political 

party” and “minor political party” that apply to the entire election law. See R.C. 

3501.01 (providing that definitions set forth in section 3501.01 apply to “the 

sections of the Revised Code relating to elections and political communications”). 

These provisions cannot reasonably be considered independent of one another. 

{¶ 23} As support for their position, relators cite an affidavit from Richard 

Winger, the editor of Ballot Access News, who purports to set forth the history of 

Ohio’s ballot-access laws.3

 Winger contends that, going back to at least 1914, 

“associations” were statutorily permitted to gain ballot access based on the 

percentage of the vote received by their candidates, with the petition process for 

establishing new parties not enacted until 1929. 

{¶ 24} Even if Winger’s affidavit had been properly sworn, Fockler’s 

reliance on it is misplaced. Based on the affidavit, Fockler contends that “Ohio has 

continuously since 1914” permitted groups of voters to establish political parties 

by running independent candidates for office. But the statute that Winger and 

 

3

 Winger’s affidavit fails to satisfy the requirements of S.Ct.Prac.R. 12.06, which requires affidavits 

to be made on personal knowledge. See State ex rel. Commt. for the Charter Amendment for an 

Elected Law Director v. Bay Village, 115 Ohio St.3d 400, 2007-Ohio-5380, 875 N.E.2d 574, ¶ 12-

13. 
January Term, 2017 

9

Fockler cite as being “continuously” in effect was invalidated in 2006. Libertarian 

Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.2006). Therefore, a votepercentage process for groups of voters to establish political parties has not been in 

continuous effect since 1914. 

Conclusion 

{¶ 25} Fockler is unable to demonstrate that he is entitled to a writ of 

mandamus, because he has failed to show that Husted either abused his discretion 

or acted in clear disregard of the applicable law. Husted correctly determined that 

in order for the “Libertarian” party to regain ballot access, it must file a petition that 

meets the statutory requirements. R.C. 3501.01 and 3517.01 do not authorize the 

formation of a new or revived political party based on the percentage of the vote 

received by candidates who appeared on the ballot as independents. 

Writ denied. 

O’CONNOR, C.J., and O’DONNELL, FISCHER, and DEWINE, JJ., concur. 

KENNEDY and FRENCH, JJ., concur in judgment only. 

O’NEILL, J., dissents, with an opinion. 

_________________ 

O’NEILL, J., dissenting.

{¶ 26} Respectfully, I must dissent. Relators have filed this action by virtue 

of the fact that their candidates captured more than 3 percent of the statewide vote 

for president and vice president in the 2016 general election. They seek recognition 

as the Libertarian Party to participate in Ohio’s 2017 primary election and beyond. 

Respondent, Ohio Secretary of State Jon Husted, opposes relators’ request based 

on the fact that relators’ candidates did not run under the Libertarian Party banner 

in 2016. That is, at best, circular reasoning. It would not have been possible for 

Gary Johnson and Bill Weld to run as the candidates of the Libertarian Party as 

there was no such party recognized by the state of Ohio. That is what this lawsuit 

is all about. Political parties have to start somewhere. Relators followed the rules 
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10 

that define what constitutes a political party, and now the state’s chief elections 

officer asks this court to twist those rules around to keep the seeds of democracy 

from sprouting. 

{¶ 27} I agree that reasonable administrative interpretations of the Revised 

Code are owed deference from the courts; however, I do not think that respondent’s 

interpretation of R.C. 3501.01 and 3517.01, read together in pari materia, is 

reasonable. At issue in this matter are the statutory definitions of the terms 

“political party” in R.C. 3517.01(A)(1) and “minor political party” in R.C. 

3501.01(F)(2). Respondent would like us to read these provisions together to 

conclude that relators cannot be a “political party” because they do not qualify as a 

“minor political party.” This interpretation is unreasonable. The umbrella section 

immediately above the definition of “minor political party,” R.C. 3501.01(F), 

defines “political party” as “any group of voters meeting the requirements set forth 

in section 3517.01 of the Revised Code for the formation and existence of a political 

party.” (Emphasis added.) Using the same phrase, “any group of voters” (emphasis 

added), R.C. 3517.01(A)(1) provides that a group of voters may acquire politicalparty status by meeting either of two alternative requirements, (a) or (b). R.C. 

3517.01(A)(1)(a) provides that the definition of “political party” is met if “at the 

most recent regular state election, the group polled for its candidate for governor in 

the state or nominees for presidential electors at least three per cent of the entire 

vote cast for that office.” (Emphasis added.) That is exactly what happened here. 

{¶ 28} R.C. 3501.01(F)(2) and 3517.01(A)(1) define different terms. 

Respondent’s interpretation would require this court to supplement the plain 

language of these statutes to make one definition subordinate to the other, which is 

an improper invasion of the role of the General Assembly. 

{¶ 29} The state must hold primary elections “for the purpose of nominating 

persons as candidates of political parties for election to offices to be voted for at 

the succeeding general election.” R.C. 3513.01(A). (Emphasis added.) The only 
January Term, 2017 

11 

question remaining for this court to answer is whether the named relators are, as 

they allege, a “group” that “polled for its * * * nominees for presidential electors at 

least three per cent of the entire vote cast for that office,” R.C. 3517.01(A)(1)(a). 

Relators allege that they are the “group of voters” that nominated Johnson and Weld 

to appear on the most recent presidential-election ballot, that the candidates they 

nominated received 3.17 percent of the total votes cast in that election, and that they 

would now like recognition as a political party. Respondent denies only one of 

these allegations in his answer: that relators were the people who nominated 

Johnson and Weld. Relators have provided more than sufficient evidence in 

support of their statement that they were the group that nominated Johnson and 

Weld, and respondent has offered evidence that only confirms their allegation. 

{¶ 30} Whether or not relators want to be called the “Libertarian Party”—

they do not say so in their complaint—is not dispositive. That they received support 

from a group calling itself the Libertarian Party of Ohio is equally irrelevant. The 

Revised Code says nothing about that. These five people could call themselves the 

Pizza Party, for all that matters. Left with the plain language of the statutes, the 

factual questions stated above, and the plain evidence in the record, I would grant 

the writ and order the relief requested. 

{¶ 31} Accordingly, I dissent. 

_________________ 

Mark R. Brown, for relators. 

Michael DeWine, Attorney General, and Halli Brownfield Watson and 

Jordan S. Berman, Assistant Attorneys General, for respondent. 

_________________