On October 21, the Ohio Libertarian Party filed this brief in the Ohio State Court of Appeals. The case is Libertarian Party of Ohio v Ohio Secretary of State, 16APE-07-496. The issue is whether the 2013 bill passed by the Ohio legislature, setting out the current definition of “party” and provision for new parties to get on the ballot, violates the Ohio Constitution. The 2013 law, combined with the Republican Party’s successful challenge of the LP’s gubernatorial candidate in 2014, has kept the party off the ballot this year and given it no easy way to ever recover its party status.

The main basis for the lawsuit is the Ohio Constitution, Article V, sec. 7, which says, “All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law.” The 2013 law appears to violate this provision because it says that newly-qualifying parties can’t have a primary, but nominate by their own devices. The legislature attempted to evade this problem in 2013 when it wrote that a new party not only needs a very difficult party petition (which will probably require over 50,000 signatures in 2018), but also each nominee of a new party needs his or her own separate candidate petition. But the Ohio Libertarian Party brief points out that this provision of the Ohio Constitution has already been interpreted by the Ohio Supreme Court (in 1963) and by the Sixth Circuit, to not refer to party nominations at all. Instead “by petition” has always in the past referred only to independent candidates.

The brief also argues that it violates Equal Protection to deprive newly-qualifying parties of a primary, because under Ohio election law, party “members” are defined by their decision to vote in a particular party’s primary. Without a primary, a newly-qualifying party won’t have any legal “members”, whereas the old parties do have very valuable membership lists.

The Ohio State Court of Appeals will decide this case after the 2016 election is over. Courts do a better job when they adjudicate cases such as this after an election, instead of before an election. Everyone, including the judges themselves, will be more relaxed and more able to do an objective job.