IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

OHIOAN AGAINST CORPORATE BAILOUTS, LLC,
aka OHIOAN AGAINST CORPORATE BAILOUTS, et (11.,
Plaintiffs,
Case No. 2:19-cv-4466

v. JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson

FRANK LAROSE, in his of?cial capacity as
Ohio Secretary of State, at al.,

Defendants.
OPINION ORDER
This matter is before the Court for consideration of Plaintiffs? Motion for Preliminary
Injunction (ECF No. 32), which alleges that Ohio Revised Code 35 1 9.01 (B) contains restrictions
that severely burden its First Amendment rights. The Court conducted an evidentiary hearing and
oral argument on Plaintiffs? Motion for Preliminary Injunction, which is now ripe for review. For
the reasons that follow, the Court DENIES Plaintiffs Motion for Preliminary Injunction and
CERTIFIES questions to the Supreme Court of Ohio, as explained in this Opinion and Order.
I. INTRODUCTION
Plaintiffs, Ohioans Against Corporate Bailouts a political action committee,
and four individuals, seek a preliminary injunction requiring the Ohio Secretary of State to extend
the length of time during which the committee may collect a suf?cient number of signatures to
invoke the referendum provision of the Ohio Constitution, Article II, Section lc?g. These sections
of the Ohio Constitution provide a legal mechanism by which legislation enacted by the Ohio

General Assembly can be subject to a statewide vote. According to the Ohio Constitution, if six

percent of registered voters sign a referendum petition within ninety days after the passage of the
legislation, the law may not go into effective unless at a future election a majority of electors vote
in favor of the measure.

Few Ohioans are unaware of Amended Substitute House Bill 6, best described in neutral
fashion as an enactment that makes major changes to the regulation of the electric power industry
in Ohio. Immediately after enactment on July 23, 2019, opponents and supporters of the measure
locked horns in what has become one of the most expensive and divisive campaigns in Ohio
history. Plaintiffs claim, and have supported the allegations with sworn testimony, that circulators
of the referendum petitions have been assaulted and harassed.l Plaintiffs assert that the Ohio
Secretary of State has enabled such conduct by enforcing a law that requires disclosure of names
and addresses of all circulators, a position disclaimed by the Secretary and subject to a restraining
order issued earlier in this case.

According to Plaintiffs, the ferocity of the opposition, coupled with a restriction on
circulation of petitions during a so-called ?blackout period,? caused an unconstitutional restraint
on speech by shortening the time to gather signatures. While the Ohio Constitution provides for
90 days to circulate referendum petitions, the Ohio legislature has enacted a requirement that, prior
to circulation, referendum petitions must be presented to the Attorney General, who then
determines whether a required summary is ?fair and truthful.? Ohio Revised Code 
In this case, the Attorney General rejected the ?rst summary submitted by

Plaintiffs. Rather than pursuing an authorized appeal to the Ohio Supreme Court, a second

 

1 In fairness, Plaintiffs presented both a?davit and live testimony as to claimed assaults and injury in?icted by
opponents of the referendum process. The only defendants in this case are the Ohio Secretary of State and the City
Attorney of Columbus. Plaintiffs have not claimed that either defendant had any role in the alleged assaults or
harassment. Neither defendant has any apparent interest in litigating whether such acts did or did not occur. While
the Court has no reason to discredit the testimony, it is also true that no interested party had an opportunity to
contest such claims.

summary from Plaintiffs followed, which was approved by the Attomey General. Plaintiffs
contend that this process unconstitutionally deprived them of 38 of the 90 days provided for in
Article II, Section 10 of the Ohio Constitution.

Yet, the jurisdiction of this Court is de?ned not by the scope of the issues raised in this
highly public, bitter debate. In Article of the United States Constitution, as constrained by the
Eleventh Amendment, for purposes of this case, the Court has jurisdiction to decide cases and
controversies arising only under federal law. As the parties agree, this Court does not have
jurisdiction over any claim that the Secretary of State or the Ohio General Assembly has violated
the referendum provisions of the Ohio Constitution.

For the reasons that follow, this Court denies Plaintiffs? motion for a preliminary
injunction. The alleged unconstitutional diminution of the time to circulate petitions does not state
a colorable claim under the federal constitution. The 90-day window to circulate petitions is only
prescribed in the Ohio, not federal, Constitution. As the Secretary of State notes, no Ohio court
has directly addressed whether the ninety-day period is guaranteed or whether the statutorily
required review by the Attorney General before circulation may begin violates the Ohio
Constitution. The Secretary contends, and the Court agrees, that ?unsettled issues of Ohio law
permeate Plaintiffs? claims.? (ECF No. 32 at 18.) Insofar as this Court lacks subject matter
jurisdiction to determine such state law issues, the Court certi?es a series of state law questions to
the Ohio Supreme Court, as suggested by the Secretary of State.

II. BACKGROUND
A. Ohio?s Referendum Procedure
Under the Ohio Constitution, ?[t]he legislative power of the state shall be vested in a

general assembly consisting of a senate and house of representatives but the people reserve to

themselves the power. . .to adopt or reject [laws and amendments to the constitution] at the polls
on a referendum vote.? Art. 11, sect. 1. ?The referendum. . .is a means for direct political
participation, allowing the people the ?nal decision, amounting to a veto power, over enactments
of representative bodies.? Eastlake v. Forest City Ents., Inc, 426 U.S. 668, 673 (1976). ?The
practice is designed to ?give citizens a voice on questions of public policy?? Id. (quoting James v.
Valtierra, 402 U.S. 137, 141 (1971)). ?This reserved power of referendum applies to every law
passed in this state and provides an important check on actions taken by the government.? State ex
rel. Ohio Gen. Assembly v. Brunner, 115 Ohio St. 3d 103, 104?05 (Ohio 2007). For that reason,
?[l]aws generally do not take effect until 90 days have passed from the date they are ?led by the
governor with the secretary of state, to allow for a possible referendum.? Id. (citing Ohio Const.,
Art. 11, Sect. ?If no referendum petition is ?led in this 90-day period, the law become
effective immediately; if a referendum petition is ?led, the law becomes effective when a majority
of electors approve it or it is determined that the referendum petition lacks a suf?cient number of
valid signatures.? Brunner, 115 Ohio St. 3d at 105 (citation omitted). ?Thus, the 90-day period is
a critical time to initiate the process of giving citizens their voice on a question of public policy.?
Id.

Because it ?mctions as a veto, the referendum process may begin only after the Governor
?les a law in the of?ce of the Secretary of State. Then, petitioners must ?rst designate a committee
of three to ?ve individuals to represent them in all matters relating to the referendum petition. Ohio
Rev. Code 3519.02. Next, petitioners may ?le an initial written petition (?Initial Petition?) with
the Ohio Attorney General and Secretary of State. To be valid, an Initial Petition must contain at
least 1,000 proper signatures and the text and a summary of the law or section of the law to be

referred. See Ohio Rev. Code Within one business day of ?ling the Initial Petition

with the Secretary of State, petitioners must also ?le the same full text and summary of the law
with the Ohio Attorney General. See id.

Within ten business days of receiving the Initial Petition, the Secretary of State must verify
the number of valid signatures and compare the full text of the law or section of the law on ?le. If
the text is correct and a requisite number of signatures are deemed valid, the Secretary of State
must certify the Initial Petition. Within that same allotted period, the Attorney General must
determine whether the petitioners? summary is a ?fair and truthful statement? of the referred law.
Once an Initial Petition is certi?ed by both the Attorney General and Secretary of State (?Approved
Petition?), petitioners can then begin the next step?gathering signatures. But if any portion of the
Initial Petition is rejected, petitioners must restart the Initial Petition process.2

Before circulating may begin, any person compensating or receiving compensation for
supervising, managing, or otherwise organizing any effort to obtain signatures must ?le a speci?c
form (?Form 15?) with the of?ce of the Secretary of State. The Form 15 requires those individuals
to provide their name, home address, email address, and phone number.

Under Ohio law, a referendum petition that is circulated must contain the summary
language approved by the Attorney General, as well as the Secretary of State?s certi?cation. Ohio
Rev. Code 3519.05. The Ohio Constitution provides that the total number of signatures on the
petition must equal at least six percent of the total vote cast for the of?ce of governor at the last
gubernatorial election. The Constitution also provides that these signatures must have been
obtained from at least 44 of the 88 counties in Ohio, and, ?om each of these 44 counties, there
must be signatures equal to at least 3 percent of the total vote cast for governor in that county at

the last election.

 

2 Ohio law permits petitioners to appeal to the Ohio Supreme Court the Attorney General?s initial rejection of their
Initial Petition. See Ohio Rev. Code 3519.01 (C). Plaintiffs did not do so.

5

B. Factual Background

On July 23, 2019, the Ohio General Assembly passed Amended Substitute House Bill 6
That same day, Governor DeWine signed H.B.6 and ?led it with the Secretary of State.
Plaintiff OACB is a ballot issue political action committee seeking to subject H.B.6 to referendum.
To do so, OACB was required to submit 265,774 signatures to the Secretary of State by October
22,2019.

On July 29, 2019, OACB ?led an Initial Petition regarding H.B.6?including 2,866
signatures and the text and summary of H.B.6?with the Ohio Secretary of State and Attorney
General. On August 12, 2019, the Ohio Attorney General rejected Initial Petition because
the summary was not a ?fair and truthful statemen of H.B.6. That same day, the Secretary of
State noti?ed OACB that it would not certify the submitted signatures or full text of H.B.6 without
the summary approval of the Ohio Attorney General. OACB did not appeal the Ohio Attorney
General?s rejection of the summary.

On August 16, 2019, OACB ?led a second Initial Petition to subject H.B.6 to referendum
with the Secretary of State and Attorney General. On August 29, 2019, the Attorney General
certi?ed that the second Initial Petition?s summary was ?fair and truthful.? The next day, the
Secretary of State noti?ed OACB that the second Initial Petition contained at least 1,000 valid
signatures. Consequently, 38 days after H.B.6 became subject to referendum and 52 days before
H.B.6 went into effect, OACB satis?ed the statutory requirements necessary to obtain an
Approved Petition.

At an evidentiary hearing held on October 22, 2019, OACB noti?ed the Court that it had
not ?led a referendum petition with the Secretary of State because it had failed to collect the

265,774 necessary signatures. Instead, OACB had gathered 221,092 signatures.

OACB presented witness testimony ?om William Rogers, President of Advanced Micro
Targeting who was hired by OACB to manage the referendum?s signature gathering
operation. Rogers? testimony focused on two matters: the hardship AMT faced during its
operations in Ohio and its ability to collect the requisite number of signatures, if AMT was granted
an additional 38 days.

First, Rogers averred that Ohio?s procedure for referendum caused serious hardship due to
disclosure requirements and impossible timing standards. Rogers testi?ed that he had never
encountered a ?more hostile environment? in any other state in which he had conducted a petition
campaign during his three-decade career. According to Rogers, problems began shortly
after its employees and contractors ?lled out Form 155, which disclosed the names, addresses,
email addresses, and phone numbers of petitioners, organizers, managers, and circulators to the
public, including the rcferendum?s opponents.3 Rogers testi?ed that opponents used this
information to ?nd circulators and harass, assault, or pay them to leave the petition operation and
Ohio, altogether. In his view, many AMT circulators left because ?blockers,? people hired by the
Opposition, surrounded and harassed circulators. Based on the interference circulators were
facing, two weeks after the petition drive began Rogers noti?ed OACB that AMT would not be
able to gather the 265,744 signatures. As a result, AMT began subcontracting with pay-per-

signature ?rms in late September.

 

3 Ohio Revised Code states that ?[a]ny person who will receive compensation for supervising,
managing, or otherwise organizing any effort to obtain signatures for. . .a statewide referendum petition shall ?le a
statement to that effect with the of?ce of the secretary of state before any signatures are obtained for the petition or
before the person is engaged to supervise, manager, or otherwise organize the effort to obtain signatures for the
petition, whichever is later.? Plaintiffs took the position that a Form 15 was required for every paid circulator
engaged to circulate referendum petitions, though Defendant LaRose contended the statute did not apply to paid
circulators. On October 11, 2019, this Court issued a Temporary Restraining Order enjoining enforcement of ?the
otherwise organizing any effort to obtain signatures? language of the statute against paid individuals whose primary
function is circulating a petition for signatures for statewide referendum. (ECF No. 26 at 7.)

7

Rogers averred that the blockers were not the only interference that AMT faced during its
signature gathering operation. He testi?ed that parties opposing the referendum began circulating
a ?fake petition??one that had no legal signi?cance, was not intended for submission, and
therefore was not subject to validity requirements. Rogers testi?ed that this caused confusion to
the public and enabled the opposition to ?raid? circulators by paying more per signature.
According to Rogers, in early October, employees and contractors were receiving offers
to cease circulating for AMT, which paid around $120 per day, and instead circulate the ?fake
petition,? for pay up to $2,100 per day.4 As a result, Rogers avers, turnover was higher
than its hiring rate. To illustrate, Rogers testi?ed that AMT had 1,100 circulators collecting
signatures for the referendum petition on September By October 215?, the company only had
200 circulators.5 Therefore, Rogers concluded, the Secretary of State provided its competitors with
a ?roadmap? to disrupt operation and defeat the referendum petition.

Rogers also testi?ed that AMT could obtain the additional necessary signatures, if given
an additional 38 days. To start, Rogers explained that when AMT previously operated a petition
campaign in Ohio in 2017, it collected over 4,100 signatures each day. Based on that estimate,
Rogers testi?ed that he could have obtained the 265,774 necessary signatures for the H.B.6
referendum in 75 days. And, even if not all of those signatures were validated, Rogers averred that
with the 10-day ?cure period,? AMT could obtain the additional valid votes necessary to subject

H.B.6 to referendum.

 

4 Rogers averred that AMT circulators received offers to circulate the ?fake petition? for $500 and $8 per ?raw
signature.? He also testi?ed that any circulator could easily obtain 200 ?raw signatures? per day.

5 Rogers testi?ed that turnover rate during this operation (85?90%) is unprecedented. According to Rogers,
typical turnover rate during a 60-day operation is about 30%.

8

C. Procedural Background

On October 7, 2019, Plaintiffs ?led a three count Complaint against Defendants Secretary
of State Frank LaRose and City Attorney of Columbus Zach Klein (collectively ?Defendants?)
seeking injunctive relief enjoining Defendants ?om enforcing certain restrictions regarding
Plaintiffs? referendum rights under the Ohio Constitution and First and Fourteenth Amendment
rights under the Federal Constitution. (See generally Pls.? Compl. No. On October 8,
2019, Plaintiffs ?led an Application for a Temporary Restraining Order regarding their ?rst count,
which alleges that Ohio Revised Code 3501.381 is unconstitutional. (ECF No. 2.) On October
11, 2019, the Court held oral argument regarding Plaintiffs? Application for a Temporary
Restraining Order, which, on that same day, the Court granted in part and denied in part with an
Opinion and Order. (ECF No. 26.)

On October 15, 2019, Plaintiffs ?led their Motion for Preliminary Injunction (See Pls.?
Mot. for Prelim. Inj. No. 32]) with respect to their second count, which alleges that Ohio
Revised Code 35 1 9.01 (B) contains restrictions that severely burden their First Amendment rights
as provided by the United States Constitution. Plaintiffs requested an injunction ?affording the
[Plaintiff an additional 38 days in which to continue its referendum-petition efforts for an
additional 38 days and, should [Plaintiff not have a suf?cient number of signatures to
tender to the Ohio Secretary of State on October 21, 2019, they request the Court retroactively stay
the effective date of H.B. 6 or otherwise provide that [Plaintiff is afforded the 11111 90-day
period provided for in the Ohio Constitution for the circulation of referendum petitions.? (ECF No.

32 at 19.)6 On October 21, 2019, Defendants ?led their Response. (ECF No. 39.) That same day,

6 Because Plaintiffs did not submit the referendum petitions by the October 21, 2019 deadline, their Reply brief
requests an injunction: affording the COMMITTEE an additional 38 days in which to continue engaging in core
political speech with the voters of Ohio through the circulation of its referendum petition and, upon the
COMMITTEE tendering a suf?cient number of signatures at the conclusion of that period, directing the Secretary

9

the Court conducted an evidentiary hearing and oral argument on Plainti?'S? Motion for
Preliminary Injunction, which is now ripe for review.
STANDARD

A district court must balance four factors when considering a request for a preliminary
injunction: (1) whether the claimant has demonstrated a strong likelihood of success on the merits;
(2) whether the claimant will suffer irreparable injury in the absence of a stay; (3) whether granting
the stay will cause substantial harm to others; and (4) whether the public interest is best served by
granting the stay. Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir. 2007). ?These factors are not
prerequisites that must be met, but are interrelated considerations that must be balanced together.?
Cooey (Biros) v. Strickland, 5 89 F.3d 210, 218 (6th Cir. 2009) (quoting Mich Coal. of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). ??When a party seeks a
preliminary injunction on the basis of the potential violation of the First Amendment, the
likelihood of success on the merits often will be the determinative factor.? Libertarian Party of
Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) (quoting Connection Distrib. Co. v. Reno, 154
F.3d 281, 288 (6th Cir.1998)). ?With regard to the factor of irreparable injury, for example, it is
well-settled that loss of First Amendment ?'eedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.? Id. (internal quotations omitted).

IV. ANALYSIS

Plaintiffs claim that the Ohio Constitution grants them 90 days to circulate referendum

petitions. (Mot. for Prelim. Inj., ECF No. 32 at 1.) They further contend that the ?extra-

constitution requirements of Ohio Revised Code ?steals several days from the full

 

of State to proceed pursuant to the Ohio Constitution and state law as though such petition was tendered within the
constitutionally-mandated 90-day period; and (ii) to the extent necessary, to retroactively stay the effective date of
H.B. 6 until the conclusion of that 38-day period.? (ECF No. 44 at 8-9.)

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90-day period provided for in the Ohio Constitution? and creates ?a Blackout Period during which
the proponents of a referendum petition are precluded from engaging in core political speech.? (Id.
at 5.) Once this ?Blackout Period? is over, Plaintiffs claim that ?the remaining and narrow time
left to engage in a successful referendum-petition effort is so constrained and limited that the core
political speech of those advocating for a referendum, advocating for governmental change
and accountability, has been and will continue to be unduly and signi?cantly burdened.? (Id. at
17.)

A. Federal Claims

Plaintiffs acknowledge that there is no federal constitutional right to a referendum; Ohio
law creates the right. (Id. at 3, 10.) But they claim, correctly, that once the right is created, a state
cannot unduly restrict the First Amendment rights of its citizens who support the referendum effort.
They argue Ohio Revised Code does just that:

[T]wo distinct run afoul of the First Amendment as they directly impact and

unconstitutionally burden the 90-day period in which to circulate a referendum

petition: the Blackout Period during which no signatures may be obtained on a

referendum petition operates as an absolute ban on core political speech during the

constitutionally-mandated 90 days in which to circulate a referendum petition and

during which the law that is the target of the referendum is not yet effective; and

(ii) because of the inherent delay resulting while awaiting governmental pre-

approval of a referendum-petition effort, an undue and constitutional burden is

imposed upon the 90-day period which, in fact, results in a signi?cantly more
narrow period of time to advocate in favor of a referendum effort because it creates

a ban on circulating until the Attorney General provides its certi?cation an ?steals?

precious days ?om the circulation effort.

(Id. at 10-11.) But as Plaintiffs acknowledge, the 90-day period is a creation of the state,
not the federal Constitution. Instead, Plaintiffs claim that the ?blackout period? violates the First
Amendment of the US. Constitution by operating as a ban on core political speech because it
prohibits petition circulation until the required certi?cation ?om the Attorney General and

Secretary of State is received. (ECF No. 32 at 5.) As this Court has previously recognized, ?The

11

Supreme Court has held that petition circulation is ?core political speech? for which First
Amendment protection is ?at its zenith.? Citizens in Charge v. Brunner, No. 2010
WL 519814, at *2 (SD. Ohio Feb. 10, 2010) (quoting Buckley v. Am. Constitutional Law Found.
(ACLF), 525 US. 182, 186?87 (1999)). Plaintiffs claim that ?with respect to the Blackout Period
and the effective ban on core political speech wrought by it as it concerns seeking signatures on a
petition, the State of Ohio must satisfy the requirements of strict scrutiny.? (ECF No. 32 at 12.)

Defendant LaRose argues that the certi?cation requirement does not restrict ?expressive
conduct,? but instead is an ?election-mechanics rule? that ?sets forth certain procedures for the
referendum process.? (ECF No. 39 at 10.) He claims that ?nothing about Ohio Revised Code 
forbids the referendum committee or anyone else from speaking out in favor of the
petition or attempting to centralize the referendum in public discourse? and that it survives
rational-basis review. (ECF No. 39 at 11.)

This Court has found no controlling precedent holding requirements similar to the those in
Ohio Rev. Code as unconstitutional under the First Amendment. The Ninth Circuit,
however, has addressed a similar First Amendment challenge to Nevada statutory requirements
for referendum initiatives and petitions.

In PEST Committee v. Miller, 626 F.3d 1097 (9th Cir. 2010), the Ninth Circuit considered
a First Amendment challenge to Nevada?s statutory single-subject, description-of-effect, and pre-
election challenge provisions. Under the Nevada Constitution, a copy of an initiative or referendum
petition must be ?led before circulation can begin. Id. at 1100 (citing Nev. Const. art. 19, 1). A
Nevada statute required that the petition contain a single subject and a description of the effect of
the initiative or referendum. Id. (citing Nev.Rev.Stat. 295.009). A related provision allowed pre-

election challenges to the initiative or referendum as to whether it satis?es the single-subj ect and

12

description of effect requirements. Id. at 1101 (citing Nev.Rev.Stat. A ballot
advocacy group whose ballot initiative effort was subject to a pre-election challenge claimed the
statutory requirements violated the First and Fourteenth Amendments. Id. at 1102.

The district court held ?neither the single-subj ect nor the description-of-effect requirement
severely burden speech ?because, on their face, they are content neutral and do not restrict the
overall quantum of speech?? and ?upheld the constitutionality of the requirements as reasonable,
non-discriminatory means of furthering the important state interest of protecting the integrity of
Nevada's election process, by preventing voter confusion and promoting informed decision
making.? Id. at 1 103. The district also held that the pro?election challenge provision did not burden
political speech: ??It is not, as Plaintiffs suggest, an underhanded attempt by the Legislature to
thwart the initiative process by allong political opponents to bring legal challenges to stall
petition circulation. Rather, NRS 295.009 protects initiative proponents? speech rights by ensuring
that any legal challenge based on the single-subject and description-of?effect requirements are
brought?and resolved?early.? Id. at 1104. The plaintiff argued that that the district court erred
because ?Nevada?s single-subject and description-of?effect requirements, together with its pre-
election challenge provision, burden core political speech or otherwise heavily burden First
Amendment rights and, as such, must be subjected to strict scrutiny and narrowly tailored to serve
a compelling state interest.? Id. at 1103.

The Ninth Circuit acknowledged the Supreme Court?s holding in Meyer v. Grant, 486 U.S.
414 (1988), that petition circulation is ?core political speech? because it involved ?interactive
communication concerning political change.? Id. at 1105. (internal citations omitted). The court
also noted that in Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), ?the

Supreme Court applied heightened scrutiny to Colorado?s name badge and reporting requirements

13

for petition circulators, concluding that the restrictions in question signi?cantly inhibit
communication with voters about proposed political change because the one-on?one
communication involved in petition circulation requires circulators to endeavor to persuade
electors to sign the petition.? Id. (internal citations omitted). The Ninth Circuit cited to Justice
Thomas? concurrence in Buckley, however, for the proposition that there is a distinction between
regulations affecting core political speech and those regulating ?the mechanics of the electoral
process.? Id. Under the Ninth Circuit?s precedent, the burdens on core political speech or severe
burdens on other rights are subject to strict scrutiny and must be narrowly tailored to serve a
compelling government interest. Id. at 1106 (citing Buckley, 525 US. at 207). ?Lesser burdens,
however, trigger less exacting review, and a State?s important regulatory interests will usually be
enough to justify reasonable, nondiscriminatory restrictions.? Id. at 1106 (citing Prete v. Bradbury,
438 F.3d 949 (9th Cir.2006)).

The Ninth Circuit concluded that the district court was correct in holding that neither the
single-subject nor description-of-effect requirements were direct regulation of core political
speech or imposed a severe burden on the plaintiffs? First Amendment rights:

The Nevada requirements are prerequisites to the circulation of initiative and

referendum petitions. They do not implicate protections for core political speech

because they do not directly affect or even involve one-on-one communications

with voters. Instead, the district court correctly concluded that the requirements

advance Nevada?s important interests in avoiding confusion, promoting informed

decision-making, and preventing ?logrolling.? The provisions represent a

permissible regulation of the mechanics of the electoral process. They do not, in

and of themselves, have the effect of limiting the overall quantum of speech

available to the electorate.

Id. at 1107. (internal citations omitted) (emphasis added). Because the restrictions were

content-neutral, and there was no evidence that they were applied in a discriminatory manner, the

14

district court did not err in applying ?the more ?exible balancing test to those requirements and
determining that they serve important state interests.? Id. at 1108.

The Ninth Circuit then considered the pro-election challenge provision, ?nding it was a
?closer question? because the plaintiff had presented some evidence that pro?election challenges
can tie up petitions in litigation for extended periods of time and had even ?left the proponents
without suf?cient time to gather signatures in advance of the ?ling deadlines for a particular
election cycle.? Id. at 1109. The court held:

Although it is the actual circulation process (and the attendant one?on-one

communication with potential voters) that has been determined to be ?core political

speech,? the fact that the pre-election challenges may, in some cases, prevent
petitions from being placed on the ballot could be viewed as implicating core
political speech concerns. However, the PEST Committee has not established that

Nevada's process for preparing an initiative or referendum petition for circulation

constitutes, or otherwise directly affects, the type of ?interactive communication

concerning political change? that is properly considered core political speech. The
pre-election challenge procedure does not involve one-on?one communication with

voters, and the PEST Committee has not argued or demonstrated that initiative

or referendum proponents have, or should have, a right to engage in one-on-

one communication with voters about their political ideas before Nevada's

single-subject and description-of-effect requirements are satis?ed.

Id. (emphasis added). The court held that the pre-election challenge procedure did not
implicate core political speech, and ?iat the remaining inquiry was whether the statute imposed a
severe burden on speech by restricting ?the overall quantum of speech available.? Id. The court
concluded that even assuming that the pro-election challenges could burden First Amendment
rights by delaying or preventing the circulation of petitions in an initiative or referendum effort,
there was ?no basis for determining that permitting political opponents to vet petitions for

compliance with the single-subject and description-of-effect requirements functions in anything

other than a content?neutral and non-discriminatory manner.? Id. at 1109. Moreover, any burden

15

there was not created by statute, but simply a codi?cation of the existing common law writ process.
Id.

While the Ninth Circuit?s reasoning is not controlling on this Court, it was adopted recently
by Judge James L. Graham in Committee to Impose Term Limits v. Ohio Ballot Board, 275
F.Supp.3d 849 (SD. Ohio 2017) in a challenge to the single-subject requirement in the initiative
procedure in Ohio Rev. Code the initiative counterpart to the statute challenged by
Plaintiffs here (Ohio Rev. Code In Committee to Impose Term Limits, the plaintiffs
claimed the single-subj ect requirement of ?ie initiative procedure imposed an undue burden on the
exercise of their First Amendment rights. Id. at 854. This Court recognized that petition circulation
is ?core political speec for which First Amendment protections are at their ?zenith.? Id. at 855
(quoting Meyer, 486 U.S. at 424 and Buckley, 525 U.S. at 186). But the court also recognized that
?States have ?considerable leeway to protect the integrity and reliability of the initiative process as
they have with respect to election processes generally.? Id. at 855-856 (citing Buckley, 525 U.S.
at191, 119 636).

This Court stated that ?[t]he distinction between core political speech and the mechanics
of the election process is often ?eeting because even election-mechanics ?regulations o?en will
directly restrict or otherwise burden core political speech and associational rights.? Id. at 856.
(quoting Buckley, 525 U.S. at 206, 119 636 (Thomas, ., concurring in die judgment)).
Sometimes, the court noted, it is clear that a statute is a pure regulation of speech. Id. (citing
McIntyre v. Ohio Elections Comm 514 U.S. 334, 346 (1995)). But when it is not clear, the court
looks to the burden imposed on a plaintiffs? free speech and applies the ?Anderson-Burdick?
?-amework developed by the Supreme Court: ?[w]hen a State's rule imposes severe burdens on

speech or association, it must be narrowly tailored to serve a compelling interest; lesser burdens

16

trigger less exacting review, and a State?s important regulatory interests are typically enough to
justify reasonable if ?a ballot-access provision chills First Amendment speech,
the level of scrutiny to be applied depends on the severity of the burden.?? Id. at 856 (internal
citations omitted).

This Court ?'amed the issue as: ?how much of a burden is Ohio's separate-petitions rule??
Id. The court noted that ?[t]he Supreme Court appears to take the position that single-subject rules
for voter initiatives?like the rule at issue here?are part of regulating the electoral process and do
not impose a severe burden on free speech rights.? Id. at 856. Under Buckley and related cases, it
was possible that initiative-petition regulations could be subject to strict scrutiny, but only in
narrow circumstances when they constituted a severe burden?if they signi?cantly inhibited
communication with voters, applied a facially neutral law in a discretionary manner, or were
content-based or disparately impacted a particular viewpoint. Id. at 857.

This Court held that there was no meaning?ll distinction between the plaintiffs? challenge
and the challenge in Pest Committee:

Here, the separate-petitions rule is not a direct regulation of core political
speech, it does not signi?cantly inhibit communication with voters, it does
not disparately impact any particular viewpoint, and it is content-neutral.

The separate petitions rule is a ?prerequisite[ to the circulation of initiative
and referendum petitions. [It does] not implicate protections for core
political speech because [it does] not directly affect or even involve one-on-
one communications with voters.? Pest Committee, 626 F.3d at 1107.
Ohio?s rule does not burden the interchange of ideas; indeed, nothing
prevents petition circulators from proposing both amendments to would-be
signatories in the same encounter?the would-be signatory will now be
presented with separate proposed constitutional amendments and can sign a
petition for neither, one, or both. Just like the rules in Pest Committee,
Ohio's separate-petitions rule doesn?t constitute a direct regulation of core
political speech. In fact, anything, requiring proponents to pursue
separate initiatives on separate subjects might encourage more speech on
each such subjec Campbell, 203 F.3d at 745. And in this way, the

17

separate-petitions rule does not limit the ?quantity of speech available? to
Plaintiffs. Id.

Id. at 858. The court held that the plaintiffs could not claim the separate-petitions rule was
applied against them in a discriminatory manner, and that the rule was content-neutral under Reed
v. Town of Gilbert, Ariz., U.S. ,135 2218, 2227, 192 L.Ed.2d 236 (2015). Id. at 858-
59. The court concluded that a more ?relaxed standar applied under the Anderson-Burdick
framework: ?whether a State?s important regulatory interest is enough to justify reasonable
restrictions.? Id. at 859 (citing Buckley, 525 US. at 206, 119 636 (Thomas, ., concurring in
the judgment) (citing Burdick, Timmons, and Anderson?. The court held that the state?s interest of
?[v]oting on each proposal separately avoids confusion, promotes informed decision-making, and
prevents logrolling? and concluded these were ?important government interests recognized by
other courts.? Id. at 859 (citing Pest Comm, 626 F.3d at 1107). ?Ohio?s separate-petitions rule
serves important state interests without impermissibly burdening ?ee speech. Therefore, under
less exacting scrutiny, the rule is constitutional.? Id. The Sixth Circuit af?rmed the district court?s
holding that regulation was not content-based and its application of Anderson-Burdick. Comm. to
Impose Term Limits v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018)?

Additionally, the Supreme Court and other federal courts have upheld requirements for
obtaining a certain number of signatures within a prescribed time frame. Duncan v. Husted, 125
F. Supp. 3d 674, 681 (SD. Ohio 2015), aff?d (Mar. 7, 2016); see also Storer v. Brown, 415 US.

724, 740, 94 1274, 39 L.Ed.2d 714 (1974) (?nding that, ?standing alone, gathering 325,000

 

7 Notably, the initiative procedure challenged in Committee to Impose Term Limits also includes a requirement that
an initiative petition include a summary of the proposed law or amendment, and that the Attorney General certify
within 10 days whether the summary is a fair and truthful statement of the proposed law or constitutional
amendment before forwarding the petition to the Ohio Ballot Board. Ohio Rev. Code That case did
not address, however, the constitutionality of the certi?cation requirement in that subsection.

18

signatures in 24 days,? was ?a substantial requirement,? but ?would not appear to be an impossible
burden?).

This Court agrees with the reasoning of Judge Graham in Committee to Impose Term Limits
and ?nds Plaintiffs are not likely to succeed on the merits of their claim of First Amendment
infringement based upon the ?blackout period? of Ohio Revised Code Because
Plaintiffs are not likely to succeed on the merits of the claim, they are not likely to suffer irreparable
injury, and it would not be in the public interest, and would be cause harm to Defendants, if the
Court were to enjoin enforcement of the statute. Accordingly, this Court denies Plaintiffs? motion
for a preliminary injunction.

B. State Law Issues

Defendant LaRose argues that ?Plaintiffs? request for preliminary injunction begins and
ends with unsettled questions of Ohio law. Those questions must be certi?ed to the Supreme Court
of Ohio.? (ECF No. 39 at 17). Pursuant to Rule 9.01 of the Rules of Practice of the Ohio Supreme
Court, a federal court may certify questions of law to the Ohio Supreme Court when ?there is a
question of Ohio law that may be determinative of the proceeding and for which there is no
controlling precedent in the decisions of this Supreme Court.?

Defendant LaRose contends that there is ?fundamental problem? with Plaintiffs? motion??
that, ?in Plaintiffs? own words they are seeking relief under Ohio law. They are asking for the
exact amount of time that they claim the Ohio Constitution grants them?3 8 more days?that they
claim an Ohio statute, Ohio Rev. Code 3519.01, takes away.? (ECF No. 39 at 16.) Defendant
LaRose argues that Plaintiffs essentially claim an Ohio statute violates a right granted by the Ohio
Constitution. But, he says, ?no Ohio Court has decided that issue, and this Court does not have

jurisdiction to consider it.? (ECF No. 39 at 16.)

19

A claim that a state of?cial violates state law in carrying out his or her of?cial duties is a
claim against the State, which is barred by the Eleventh Amendment, depriving a federal court of
jurisdiction to hear the matter. Pennhurst State School Hosp. v. Haidemmn, 465 US. 89, 101
(1984). Accordingly, a claimant under 42 U.S.C. 1983, under which this suit is brought, may not
obtain injunctive relief against state of?cials based on alleged violations of state law. Doe v. Ohio,
No. 2012 WL 12985973 at *12, n.13 (S.D. Ohio Feb. 16, 2012).

This Court therefore does not consider whether Ohio Rev. Code violates the
Ohio Constitution?this Court only has jurisdiction over a claim that Ohio Rev. Code 35 1 9.01 (B)
violates the federal Constitution. But Defendant LaRose claims that ?guidance from the Ohio
Supreme Court on precisely how (and whether) Ohio?s fair-and-truth?il review impacts the 90-
day referendum period is dispositive of [Plaintiffs?] First Amendment claims. If Plaintiffs wanted
a de?nitive resolution of these issues, they could have?and should have?asked the Ohio state
courts to determine whether violates the Ohio Constitution. Instead, Plaintiffs ask
this Court to wade into the minutiae of state referendum procedures.? (Id. at 17.)

Defendant LaRose states that ?[u]nsettled issues of Ohio law permeate Plaintiffs? claims
and the outcome of their constitutional challenge turns on the proper interpretation of Ohio law?
and contends that Ohio Court has considered? the following questions:

1.) Whether the right to referendum set forth in Article II, Section 1 of the Ohio

Constitution guarantees those circulating petitions in support of a referendum a full
ninety days solely for the purpose of circulating petitions?

2.) If so, whether Ohio Rev. Code 3519.01 violates the Ohio Constitution by shortening
the ninety days to accommodate the fair-and?truth?il review?

3.) If the Ohio Constitution guarantees a petitioner ninety days to circulate petitions,
whether the number of days attributable to a petitioner?s own errors in submitting a
referendum petition under Ohio Rev. Code 3519.01 is ?credited? to the petitioner, or
deducted from the ninety days?

20

4.) Whether a petitioner who does not claim to be ?aggrieved? by the fair-and-tru?iful
determination and thus fails to appeal the denial of a certi?cation under Ohio Rev.
Code 35 9.01 (C) is entitled to credit toward the ninety days for the time spent ?xing
de?ciencies in a fair-and-truthful statement?

5.) Whether a petitioner gets credit toward the ninety days for the time before, or between,

a petition submission when the Attorney General and Secretary of State do not have a
petition to review and consider under Ohio Rev. Code 3519.01?

(ECF No. 39 at 19).

Defendants? arguments are well-taken. In describing their First Amendment claims,
Plaintiffs refer to the burden as one on the 90-day period. Speci?cally, Plaintiffs claim: ?[w]ith
respect to the pre-approval requirements imposed on all referendum-petition efforts by the
Summary Statute, ?two distinct aspects run afoul of the First Amendment as they directly impact
and unconstitutionally burden the 90-day period in which to circulate a referendum 
(ECF No. 32 at 10?1 1.) As Plaintiffs acknowledge, this 90-day period they claim is burdened arises
from the Ohio, not the federal, Constitution. Whether the Ohio Constitution guarantees a full 90-
day period for petition circulation, and whether the statute?s requirements ?burden the 90-day
period? is a question beyond the jurisdiction of this Court.

Instead, these questions should be resolved by the Ohio Supreme Court. Several Ohio
Supreme Court decisions have tangentially discussed, without deciding, the issues raised in this
case. In 1972, the Ohio Supreme Court declined to address the constitutionality of ?the overall
concept of the Attorney General statutory power of the concept of preliminary examination
concerning proposed constitutional amendments under R.C. Chapter 3519.? State ex rel. Talley v.
Brown, 29 Ohio St.2d 235, 237 (Ohio 1972). Two justices dissented because they believed the
statute to be unconstitutional. Justice Brown stated that even though no party raised the

constitutionality of the statute, it struck him as ?being unconstitutional on its face, since due

process of law demands that the public be allowed to rely on the wording of a mere summary

21

thereof. Such restricts and circumvents, rather than facilitates, the people?s important right to know
what they are actually petitioning for.? Id. at 240. And Justice Schneider said ?requiring a
?preliminary? petition for the consideration of a summary of a proposed constitutional amendment
by initiative for the purpose of including that summary on the initiative petition itself (see R.C. 
3519.05), con?icts with the plain terms of Section 1 g, Article II of the Ohio Constitution, which
requires the initiative petition to contain the title and text of the proposed amendment and sanctions
no such summary of that text.? Id. at 239.

In State ex rel. Barren v. Brown, 51 Ohio St.2d 169 (Ohio 1977), the Attorney General
had refused to certify the referendum proponents? summary because he did not believe the matters
were subject to referendum. Id. at 171. The Ohio Supreme Court allowed a writ of mandamus
directing him to certify the summary, noting that his refusal to do so ?impose[d] a great hardship
upon electors wishing a referendum because of the relatively short 90-day period. Such action may
have the effect of denying the electors of Ohio their constitutional right to referendum.? Id.

Ohio courts of appeal have provided some guidance on Ohio Rev. Code but
to a mixed result. In State ex rel. Alexander v. Brown, 51 Ohio App.3d 26 (10th Dist. 1988), the
Tenth District Court of Appeals considered a petitioner?s challenge to the constitutionality of Ohio
Rev. Code claiming that ?because the time required to perform the duties imposed
on the Attorney General and Secretary of State by RC. 3519.01 and 3519.05 takes away from the
time allowed to obtain signatures on a referendum petition, the statutes infringe upon the right of
referendum granted under Section lc, Article II of the Ohio Constitution, and are therefore
unconstitutional.? Id. at 127. The Tenth District Court of Appeals did not decide the merits of his
claim, instead ?nding that his delay in ?ling his suit foreclosed his challenge:

In this instance, appellant knew as of the date the petitions were attempted to be
?led, May 5, 1986, there were insuf?cient signatures but still waited over two

22

months before ?ling suit. Rather than ?ling an original action in mandamus in the
Ohio Supreme Court or in this court to compel the granting of an additional twenty-
nine days to gather signatures, and raising the constitutionality of RC. 3519.01 and
3519.05, appellant ?led in common pleas court, where the appeal process and ?nal
determination of the issue would extend well past the date of the election. By the
time appellant ?led suit, R.C. 4513.263 had already become law.

*Blnk

As discussed above, appellant's delay in ?ling suit made it impossible for ?nal

determination of the issues raised to be made before the November 1986 election,

the election at which the referendum should have been submitted to the voters.

Id. at 128-130. The closest case, cited by both parties, is Schaller v. Rodgers, 10th Dist.
Franklin No. 08AP-591, 2008-Ohio-4464. There, the Tenth District Court of Appeals af?rmed the
trial court in ?nding petitioners were not likely to succeed on the merits of their challenge to Ohio
Rev. Code The appellants claimed that Ohio Rev. Code and Ohio
Rev. Code 3519.05, were unconstitutional because the statutes limited and restricted the right of
referendum and the ?eedom of speech, assembly, and petition rights under the Ohio Constitution.
Id. at 5. Speci?cally, the appellants claimed that the statutes violated the right of referendum by
allowing the Attorney General 10 business days to review and certify the summary as fair and
truthful. The appellants cited State ex rel. Durell v. Celebrezze 63 Ohio App.2d 125 (10th Dist.
1979), where the court refused to enjoin the secretary of state from transmitting petition to the
Ohio General Assembly because of a procedural error by the Attorney General in certifying a
proposed summary without the required 1,000. Schaller, 2008-Ohio-4464 at 1] 41. In Darrell, the
court concluded:

Strictly speaking, the statutory procedure under RC. 3519.01 is not part of the

initiative process but is a statutory requirement prior to commencement of the

initiative process under the Constitution. The statutory process is complete upon

the certi?cation by the Attorney General that the is accurate. It is at this
point that the constitutional initiative process commences.

23

Darrell, 63 Ohio App.2d at 131.8 The court in Schaller, however, concluded that Darrell
had no impact on the matter before them, and held that ?while the court expressed its Opinion that
the statutory initiative process was separate ?'om the constitutional initiative process, it expressed
no opinion about when the constitutional referendum process, which has a 90?day time frame that
includes the time for certi?cations under R.C. begins.? 2008-Ohio-4464 at 11 42.

The court considered the summary requirement in detail:

We also consider whether the summary requirement contained within R.C.
1) facilitates the process. Requiring a summary of the law sought to be
repealed arguably helps potential signers understand the content of the law more
ef?ciently than if they had to rely solely on a review of the entire law, especially
where the law sought to be repealed is complicated or dif?cult to navigate.
To be sure, Section 1 gives potential signers the right to rely upon the actual text
of the law, as Justice Brown observed in his Talley dissent, but R.C. 
and 3519.05 protect that right by not only requiring the petition to include a
summary, but also requiring it to include the ?ill text of the law.

Requiring a summary on the petition may also help deter circulation fraud and
abuse by deterring circulators ?'om misrepresenting the contents or impact of the
law sought to be repealed. While the full text of the law is available to potential
signers, the summary is an accessible check against misrepresentations and
misstatements, especially where it is not practical for a signer to review the entire
law.

The heart of appellants? arguments is their objection to the requirement, contained
within R.C. that the summary must be submitted to the attorney
general for review. If the requirement of a summary facilitates the referendum
petition process, however, the requirement of attorney general review and
certi?cation of that summary arguably would also facilitate the process. A summary
is valuable to a potential signer only if it is fair and truth?il, just as a summary
deters circulation ??aud and abuse only if it is fair and truthful. While there may be
any number of ways to ensure the integrity of the summary itself, requiring review
by the attorney general, the top law of?cer for the state, may be a reasonable method
for doing so.

 

8 The Tenth District Court of Appeals in Darrell also declined to weigh-in on the constitutionality of the statute
challenged here: ?Like the Supreme Court, however, we feel it unnecessary to resolve the issue as to whether or not
the requirements of R.C. 3519.01, including those requiring that a written petition be ?led with the Attorney
General, are constitutional, inasmuch as, even if such section is constitutional, the error of the Attorney General in
failing to require strict compliance with the provisions of the statute does not at this stage vitiate the subsequent
proceedings.? Id. at 130.

24

Id. at 111] 46-48. The appellants? main concern, as is Plaintiffs? here, was time. Id. at 11 49.
Appellants argued that the time afforded to the Attorney General ?deprive[d] them of valuable
time within their limited, 90-day time frame. Those ten business days, they argue, can actually
encompass up to 16 calendar days when the ten-business-day window includes two weekends and
a legal holiday.? Id. at 1} 50. The Schaller court concluded that the Attorney General could not
block a petition effort altogether because of the 10 day limit. Id. at 1] 51. However, the court did
acknowledge the ?daunting task facing potential petitioners? before af?rming the lower court?s
judgment:

While the population of Ohio grows, so grows the number of signatures required to

meet the 6 percent constitutional requirement. Appellants have argued that the ten-

business-day review could cripple a petitioner's efforts at gathering the necessary

signatures to meet the 90?day deadline. Arguably, however, the ten?business?day
provision would not always cripple such efforts. The fact that the ten-business-day
provision might work to restrict, rather than facilitate, the referendum process under

some plausible set of circumstances is insuf?cient to render the trial court's denial

of relief an abuse of discretion.

Id. at 1T 52. In State ex rel. Ethics First-You Decide Ohio Political Action Commt. v.
De Wine, 147 Ohio St.3d 373 (Ohio 2016), the Ohio Supreme Court considered a challenge to the
initiative procedure. The court speci?cally addressed the requirement that the Ohio Ballot Board
review an initiative proposal and subdivide it if it contains more than one amendment. The relators
claim that in Ohio Revised Code and unconstitutionally limited the
right of initiative and violated the First Amendment to the federal Constitution. Id. at 375. The
Ohio Supreme Court adopted the reasoning of the Schaller opinion implying that the ?modest
burden? on the petitioners imposed by the summary requirement was outweighed by the bene?t to
the voters and process in general. Id. at 377. The Supreme Court concluded that when the Ballot

Board divides a petition, 3505 merely requires the submission of new summaries to

the attorney general. That modest imposition does not unduly restrict the right of initiative, given

25

the bene?t the voters enjoy of being able to vote separately on the proposals.? Id. The court
concluded that the provision was not content-based because it applied ?to all petitions, irrespective
of the substantive message the petition seeks to communicate.? Id. at 378. While the Supreme
Court did ?adopt the reasoning of Schaller,? it was considering the constitutionality of Ohio Rev.
Code not the challenged statute here of Ohio Rev. Code 

Defendant LaRose claims that ?Plaintiffs? federal constitutional claim depends entirely on
their personal interpretation of Ohio law. But it is not a foregone conclusion that the Ohio Supreme
Court would interpret Ohio?s fair-and-truth?? laws in the same manner as Plaintiffs. If it does not,
Plaintiffs? federal question may be avoided all together.? (ECF No. 39 at 19.)

Defendant LaRose?s arguments are well-taken. At the heart of Plaintiffs? claims is
proposition that the Ohio Constitution affords them 90 days to circulate a referendum petition, and
that their First Amendment rights are violated by the statute because of the blackout period. But
Ohio courts have not held whether the 90-day period is guaranteed for circulating or whether the
required review by the Attorney General violates the Ohio Constitution.

Moreover, the Ohio Supreme Court could afford Plaintiffs the remedy they seek?a stay
of HE. 6 and additional time to circulate their petitions. In State ex rel. LetOhio Vote. org v.
Brunner, 123 Ohio St. 3d 322, 336 (Ohio 2009), the Ohio Supreme Court ensured the relators had
90 days for their referendum effort. After determining it had jurisdiction, that mandamus was an
appropriate remedy, and that the provisions were subject to referendum, the Ohio Supreme Court
ordered:

In conformity with our decision in Ohio 69 Ohio St.3d at 236?237, 631

582, and as acknowledged by the respondents at oral argument, relators are

entitled to an extension of the 90?day period in which to submit a referendum

petition on the VLT provisions to the secretary of state. We therefore stay the
amendments to R.C. 3770.03 and the enactment of R.C. 3770.21, which are the

26