Defendants Richard F. Schoen, Brenda Hill, Joshua Hughes, and David Karmol, in their official capacities as members of the Lucas County Board of Elections, filed a Motion for Judgment on the Pleadings. ECF No. 5. Defendants David Betras, Mark Munroe, Robert Wasko, and Tracey Winbush, in their official capacities as members of the Mahoning County Board of Elections, filed a Motion to Dismiss. ECF No. 22. Defendant Frank LaRose, in his official capacity as the Ohio Secretary of State, also filed a Motion to Dismiss. ECF No. 38. Plaintiffs opposed each motion, ECF Nos. 40, 45, 48, and all defendants replied, ECF Nos. 44, 51, 52. Additionally, the Lucas County Board of Elections Defendants and Defendant LaRose filed supplemental briefing in support of their motions. ECF Nos. 65, 66. Plaintiffs filed a responsive brief. ECF No. 67. The Court heard oral argument as to the pending motions on August 26, 2019.

For the following reasons, the Court grants the Mahoning County Board of Elections Defendants’ motion to dismiss for lack of standing. ECF No. 22. The Court also grants the

(4:19CV260) motion for judgment on the pleadings filed by the Lucas County Board of Elections Defendants and the motion to dismiss filed by Defendant Frank LaRose. ECF Nos. 5, 38.

I. Background

A. Ohio Initiative Process

Ohio permits its citizens to pass laws through an initiative process. This includes the power to enact a county charter, Ohio Const. art. X, § 3, amend a municipal charter, id. art. XVIII, § 7, and enact a municipal ordinance, id. art. II, § 1.

(4:19CV260) Mahoning County Board of Elections Defendants. Following Maxcy, no one contests that, under Ohio law, a board of elections may not review the substance of a proposed municipal charter amendment. See Maxcy, 122 N.E.3d at 1171. There is no live case or controversy as it pertains to the constitutionality of substantive review of a proposed municipal charter amendment. And to the extent Plaintiffs’ claims against the Mahoning County Board of Elections Defendants arise from the possibility of enforcement of Ohio’s ballot initiative statutes permitting review of a county charter petition or proposed municipal ordinance, those claims are speculative. Plaintiffs do not allege that they ever filed, or intend to file, a county charter petition or a proposed municipal ordinance with the Mahoning County Board of Elections. ECF No. | at PageID #: 28.

Plaintiffs claim Babbitt stands for the proposition that a plaintiff has standing to challenge a state’s election procedures, even if the plaintiff does not express an intent to use the challenged election procedures in the future. ECF No. 48 at PageID #: 464-65 (citing Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979)). In Babbitt, the Supreme Court held that the plaintiffs had standing to challenge the constitutionality of Arizona’s statutory election procedures “on the ground that, by failing to account for seasonal employment peaks, it precluded the consummation of elections before most workers dispersed and hence frustrated the associational rights of agricultural employees.” Babbitt, 442 U.S. at 294, 299, The plaintiffs had neither invoked the statutory election procedures in the past, nor expressed any intent to do so in the future. Jd. The Supreme Court nonetheless found standing. The plaintiffs alleged that “agricultural workers are constitutionally entitled to select representatives to bargain with their employers over employment conditions.” /d. The plaintiffs further averred that the employees’ (4:19CV260) union desired to organize Arizona farmworkers and represent them in collective bargaining, having done so on behalf of California farmworkers in nearly 400 elections under election procedures allegedly “amenable to prompt and fair elections.” Id. at 300. The plaintiffs, however, allegedly declined to pursue the procedures in Arizona because Arizona’s statutory election procedures were futile. Id.

Babbitt, however, is inapposite, and Plaintiffs’ reliance on Babbitt is unavailing. The Babbitt plaintiffs wished to organize together under representation of their choosing, but the state’s statutory election procedures precluded them from doing so, whether or not the plaintiffs exercised the statutory election procedures. By preventing the plaintiffs from electing their desired representatives, the challenged statute was “sure to work the injury alleged,” regardless of the plaintiffs’ inaction. See id. The statutory election procedures necessarily had a continuing, present adverse effect on the plaintiffs’ associational rights. Conversely, Plaintiffs, without alleging that they filed an unsuccessful initiative petition with the Mahoning County Board of Elections, or that they plan to file, intend to file, are likely to file, or wish to file an initiative petition in the future, plead no actual present harm or a significant possibility of future harm. Without more, Plaintiffs have not shown a particularized interest against the Mahoning County Board of Elections Defendants “that is distinguishable from the general interest” of every eligible voter. See Hollingsworth v. Perry, 570 U.S. 693, 707 (2013) (no standing for intervening petitioners, the official proponents of a law passed by initiative, in seeking to defend constitutionality of the law, when they had no “direct stake” in defending the enforcement).

(4:19CV260)

Without pleading a particularized harm sufficient to constitute an injury-in-fact, Plaintiffs’ claims against the Mahoning County Board of Elections Defendants amount to “generalized grievance[s] .. . insufficient to confer standing.” See Hollingsworth, 570 U.S. at 707. Accordingly, the Court dismisses Plaintiffs’ claims against the Mahoning County Board of Elections Defendants for lack of standing.’

B. First Amendment

Plaintiffs assert facial and as-applied claims under the First Amendment against Defendants for enforcing Ohio’s ballot access scheme. Counts One and Two allege that Ohio’s pre-screening ballot procedure is a content-based restriction on core political speech and the right to vote, for which “Defendants do not have any interests that could justify such burdens as to survive strict scrutiny or any other standard of review... .” ECF No. | at PageID #: 52-53. Counts Three and Four allege that Ohio’s pre-screening ballot procedure “impose[s] severe burdens and unreasonable restrictions on ballot access” and 1s therefore a prior restraint on core political speech. Jd. at PageID #: 53-55. Plaintiffs also bring, under Count Five, a First Amendment claim alleging a violation of their right to assembly and to petition the government for redress of grievances. /d. at PageID #: 55-56.

1. Prior Restraint (Counts Three and Four)

“In the alternative, the Court’s analysis on the merits as to Plaintiffs’ claims against the Lucas County Board of Elections Defendants and Defendant LaRose apply with equal force as to Plaintiffs’ claims against the Mahoning County Board of Elections Defendants. Accordingly, dismissal with prejudice of Plaintiffs’ federal claims against the Mahoning County Board of Elections Defendants is proper.

(4:19CV260)

“A prior restraint is any law forbidding certain communications when issued in advance of the time that such communications are to occur.” Schmitt v. LaRose, --- F.3d --- , No. 19- 3196, 2019 WL 3713886, at *4 (6th Cir. Aug. 7, 2019) (quotations omitted). There is a heavy presumption against the constitutional validity of any system of prior restraints. Freedman y. Maryland, 380 U.S. 51, 57 (1965). Content-neutral laws that do not directly target core expressive conduct, however, are generally not subject to Freedman’s heightened procedural requirements as a prior restraint on free expression. See Thomas v. Chicago Park Dist., 534 US. 316, 321-24 (2002); Schmitt, 2019 WL 3713886, at *4.

Plaintiffs offer nothing more than conclusory allegations that the ballot initiative statutes were applied based on content. Because the ballot initiative regulations challenged by Plaintiffs apply, and were applied, “without regard to the subject matter or viewpoint of the initiative[,]” they are content-neutral restrictions. See Schmitt, 2019 WL 3713886, at *6 n.3.

Plaintiffs argue that, because “[p]roposed measures and the political campaigning around them are core political speech . . . [and] placing proposed measures on the ballot and advocating for them is expressive activity,” restricting this activity would necessarily target core expressive conduct. ECF No. 40 at PageID #: 376-77. In ruling on the same statutory scheme as the one before the Court, however, the Sixth Circuit rejected an identical argument. Schmitt, WL 3713886, at *4 (““Ohio’s ballot initiative laws, in contrast, do not directly restrict core expressive conduct; rather, the laws regulate the process by which initiative legislation is put before the electorate, which has, at most, a second-order effect on speech.”). A board of elections’ authority to make structural decisions regulating the initiative process “inevitably affects the individual’s (4:19CV260) right to speak about political issues and to associate with others for political ends.” Id. (quotations omitted). But, these regulations are “a step removed from the communicative aspect of core political speech, and therefore do not involve the same risk of censorship inherent in prior-restraint cases.” Id. (quotation omitted). Moreover, because “ballots serve primarily to elect candidates, not as forums for political expression . . . the heightened procedural requirements imposed on systems of prior restraint . . . are inappropriate in the context of ballot-initiative preclearance regulations.” Id. at *5 (alterations in original).

Moreover, Ohio’s ballot-initiative process does not empower the county boards of elections with unfettered discretion over determining whether to certify an initiative petition. See Thomas, 534 U.S. at 323 (requiring content-neutral restrictions to “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.”). Ohio permits mandamus review of elections cases through the Ohio Supreme Court. The standard of review for ballot-initiative challenges is close to de novo, and does not require the reviewing court to accord any deference to the board of elections’ interpretation of state election law. Schmitt, 2019 WL 3713886, at *6. And “[b]ecause of the necessity of a prompt disposition” of such cases, the Ohio Supreme Court provides an expedited pleading and briefing schedule for writs of mandamus relating to pending elections. Ohio S. Ct. Prac. R. 12.08.

Plaintiffs also contend Schmitt, in determining that the Ohio ballot-initiative process is not a prior restraint, did so “without addressing the repeated pronouncements of Ohio’s highest (4:19CV260) court that . . . Ohio does not allow pre-election judicial review over substance5 and the vote must be allowed to take place.” ECF No. 67 at PageID #: 607. But Schmitt concluded Ohio’s ballot-initiative process is not a prior restraint because the statutes regulated the process by which initiative legislation is put before the electorate, rather than directly restricting core expressive conduct. Schmitt, 2019 WL 3713886, at *4. Whether Ohio law permitted pre-election review has no bearing on whether the statutory scheme directly burdened core expressive conduct. Because it does not, Plaintiffs’ prior restraint claims fail.

Accordingly, the Court dismisses Plaintiffs’ third and fourth causes of action for prior restraint as to the Lucas County Board of Elections Defendants and Defendant LaRose.

(4:19CV260) framework[,]’”’ derived from the Supreme Court’s holdings in Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992). Comm. to Impose Term Limits on Ohio Supreme Court & to Preclude Special Legal Status for Members & Employees of Ohio Gen. Assembly v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018).

The Anderson-Burdick three-step framework is applied in the following manner: The first, most critical step is to consider the severity of the restriction. Laws imposing severe burdens on plaintiffs’ rights are subject to strict scrutiny, but lesser burdens . . . trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions. Regulations that fall in the middle warrant a flexible analysis that weighs the state’s interests and chosen means of pursuing them against the burden of the restriction. At the second step, we identify and evaluate the state’s interests in and justifications for the regulation. The third step requires that we assess the legitimacy and strength of those interests and determine whether the restrictions are constitutional. Schmitt, 2019 WL 3713886, at *5 (internal citations and quotation marks omitted).

“The hallmark of a severe burden is exclusion or virtual exclusion from the ballot.” Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016). Courts have found a severe burden when the plaintiffs have been categorically excluded from participation in the election process. See, e.g., Lubin v. Panish, 415 U.S. 709, 719 (1974) ($701.60 filing fee for ballot-access petition excluded indigent candidates, and there was no reasonable alternative means of access); Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 582-83 (6th Cir. 2006) (Ohio law requiring minor political parties seeking access to the general election ballot to

° The Sixth Circuit approved the application of Anderson-Burdick at the motion- to-dismiss stage. Comm. Impose Term Limits on Ohio Supreme Court & to Preclude Special Legal Status for Members & Employees of Ohio Gen. Assembly v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018).

(4:19CV260) participate in the March primary and, 120 days prior to the March primary, file a petition with signatures equal to one percent of the votes cast in the previous statewide election, effectively precluded minor parties from ballot access).

Plaintiffs, however, have not been burdened with exclusion or virtual exclusion from participating in the election process. Rather, they have been restricted from placing initiatives on the ballot that were determined by state officials to exceed the scope of legislative authority. They remain free to exercise the initiative power in compliance with Ohio’s initiative ballot statutes. Such a restriction does not severely burden Plaintiffs’ rights, under the First Amendment, to engage in political expression. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997) (holding no severe burden on First Amendment rights by restricting an individual’s appearance on the ballot as a party’s candidate). Nor can it be that Plaintiffs are categorically entitled to add initiatives to the ballot that plainly exceed the scope of the initiative power. See Burdick, 504 U.S. at 438 (rejecting plaintiff’s claim that he is “entitled to cast and Hawaii required to count a ‘protest vote’ for Donald Duck . . . and that any impediment to this asserted ‘right’ is unconstitutional.”); see also id. at 440 n.10 (“It seems to us that limiting the choice of candidates to those who have complied with state election law requirements is the prototypical example of a regulation that, while it affects the right to vote, is eminently reasonable. . . . The dissent’s suggestion that voters are entitled to cast their ballots for unqualified candidates appears to be driven by the assumption that an election system that imposes any restraint on voter choice is unconstitutional. This is simply wrong.”). And to the extent Plaintiffs argue the onus of expending time and effort to pursue relief from an erroneous (4:19CV260) determination of state law constitutes a severe burden, that argument fails. See Schmitt, 2019 WL 3713886, at *6 (the cost of obtaining legal counsel to challenge a board of elections’ decision not to certify an initiative through a writ of mandamus is a burden that is neither severe nor minimal).

Nonetheless, the burden is not so minimal as to warrant rational-basis review. “[B]oards of elections wield the discretionary authority to decline to certify initiatives, and the burden thus falls on the aggrieved proponent” to obtain legal counsel and pursue relief through the courts. at *6, As in Schmitt, the cost of challenging an adverse ruling through the courts would “disincentivize[] some ballot proponents from seeking to overturn the board’s decision, thereby limiting ballot access.” Jd. Accordingly, the Court applies a “flexible analysis that weighs the state’s interests and chosen means of pursuing them against the burden of the restriction.” /d. at *5 (quoting Grimes, 835 F.3d at 574).

Plaintiffs do not argue whether Defendants have a strong interest in ensuring that only ballot-eligible initiatives go to the voters and maintaining voter confidence in the electoral process. Nor can they. “Keeping unauthorized issues off the ballot reduces the odds that an initiative is later held invalid on the ground that the voters exceeded their authority to enact it.” Schmitt, 2019 WL 3713886, at *7. It also avoids overcrowding ballots with initiatives that constitute a “legal nullity.” See id.; State ex rel. Walker v. Husted, 43 N.E.3d 419, 423 (Ohio 2015). As Plaintiffs concede, Defendants additionally have a strong interest in maintaining the integrity of its initiative process and ensuring the fair and honest operation of its elections. See (4:19CV260) id. These interests, as they pertain to Defendants’ application of Ohio’s ballot initiative process, are both legitimate and substantial.

Instead, Plaintiffs contend that, because Defendants’ interests are outweighed by the burden Ohio’s ballot initiative laws have placed on their right to vote, the restrictions are unconstitutional. ECF No. 67 at PageID #: 611-12. But Plaintiffs fail to adequately explain how being prevented from voting on ballot measures exceeding the scope of state law is, itself, a substantial burden on First Amendment rights. And Defendants’ significant interests in protecting the integrity and reliability of the initiative process, ensuring voter confidence in the electoral process, and avoiding the overcrowding of ballots justifies any such burden on Plaintiffs’ First Amendment rights. See Walker, 43 N.E.3d at 423 (“[B]oards of elections have not only the discretion but an affirmative duty to keep . . . items [constituting a legal nullity] off the ballot.”).

Plaintiffs assert that “the best way to ensure elections are run fairly and honestly and the best way to maintain the integrity of the initiative process is to adopt a bright line rule and clear prohibition against any pre-enactment review of a proposed initiative’s content by election officials or the judiciary.” ECF No. 67 at PageID #: 612. But the question in front of the Court is the constitutionality, rather than prudence, of Ohio’s pre-enactment review of initiative petitions. In light of the significance of Defendants’ interests in regulating the electoral process, and because Plaintiffs have not alleged a sufficiently significant burden on their First Amendment rights to overcome those interests, Plaintiffs’ First Amendment challenge against (4:19CV260) Defendants fails.’ See Schmitt, 2019 WL 3713886, at *7 (“Although the State’s chosen method for screening ballot initiatives may not be the least restrictive means available, it is not unreasonable given the significance of the interests it has in regulating elections.”).

The Court accordingly dismisses Plaintiffs’ first, second, and fifth causes of action as to the Lucas County Board of Elections Defendants and Defendant LaRose.

C. Substantive Due Process (Count Six)

The Sixth Circuit has “identified substantive due-process claims as falling into two categories: (1) deprivations of a particular constitutional guarantee; and (2) actions that shock the conscience.” EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 861 (6th Cir. 2012) (quoting Valot v. S.E. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997)) (quotation marks omitted).

Plaintiffs frame their substantive due process claim as arising from their “inherent and fundamental right of local, community self-government[.]”* ECF No. 1 at PageID #: 56-58. Yet Plaintiffs fail to point to a single case in which a court has recognized local, community self-government as a fundamental right under the United States Constitution. Rather, “[n]othing in

’ Because Plaintiffs’ facial challenges are not meaningfully different from their as-applied challenges, the Court’s analysis of Plaintiffs’ as-applied First Amendment claims is also dispositive of Plaintiffs’ facial challenges.

* To the extent Plaintiffs’ substantive due process claims are duplicative of their First Amendment claims, they fail. See Albright v. Oliver, 510 U.S. 266, 286 (1994) (“[A] cause of action cannot be based on substantive due process where a more specific constitutional provision is applicable.”).

(4:19CV260) the Constitution guarantees direct democracy.” Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 937 (6th Cir. 2018). “Counties, cities, and towns are municipal corporations created by the authority of the [state] legislature,” and derive their all of their power from state law. Town of Mt. Pleasant v. Beckwith, 100 U.S. 514, 524 (1879). Accordingly, the right to local, community self-government is governed by state law. It is not a fundamental right under the United States Constitution. See John Doe No. I v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J., concurring) (noting that it is “instead up to the people of each State . . . to decide whether and how to permit legislation” through “mechanisms of direct democracy” such as the initiative power and referendum power); see also Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 297 (6th Cir. 1993) (“[T]he right to initiate legislation is a wholly state-created right[.]”).

Additionally, Plaintiffs claim that Defendants’ conduct is “conscience shocking insofar as Defendants repeatedly and arbitrarily oppress the exercise of direct democracy.” ECF No. | at PageID #: 59, “Shock the conscience” claims generally do not apply to cases that do not involve physical force. See, e.g., Cassady vy. Tackett, 938 F.2d 693, 698 (6th Cir. 1991); Braley v. City of Pontiac, 906 F.2d 220, 226 (6th Cir. 1990). Nor do Plaintiffs explain how Defendants’ application of Ohio’s pre-screening ballot initiative procedure is the rare case that could succeed under a “shock-the-conscience” theory.

Accordingly, the Court dismisses Plaintiffs’ sixth cause of action as to the Lucas County Board of Elections Defendants and Defendant LaRose.

D. Ninth Amendment (Count Seven)

(4:19CV260)

The Ninth Amendment “does not confer substantive rights in addition to those conferred by... governing law.” Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991). Plaintiffs concede this, but contend that their claim is unique because it relies on the right of local, community self-government. ECF No. 40 at PageID #: 383; ECF No. 45 at PageID #: 445. The right to local, community self-government, however, is not a right guaranteed under the United States Constitution. Plaintiffs have not cited any authority to the contrary. Accordingly, the Court dismisses Plaintiffs’ seventh cause of action as to the Lucas County Board of Elections Defendants and Defendant LaRose.

E. Separation of Powers under Ohio Law (Count Eight)

Actions brought against the State or an “arm of the state” are subject to the doctrine of sovereign immunity under the Eleventh Amendment. Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005). The “arm of the state” includes state officials in their official capacity. Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007). The county boards of elections and their members are also arms of the state. State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections, 617 N.E.2d 1120, 1122 (Ohio 1993) (“The board of elections . . . is strictly a board and an arm of the state government.”). “The federal courts are simply not open to such state law challenges to official state action, absent explicit state waiver of the federal court immunity found in the Eleventh Amendment.” Farris, 503 F.3d at 521.

Plaintiffs’ eighth cause of action is based on the separation of powers doctrine under Ohio law. ECF No. | at PageID #: 60. They claim, without support, that “the Eleventh Amendment’s (4:19CV260) rationale for barring a federal court from considering state law claims does not apply.” ECF No. 40 at PageID #: 384. Nor do they provide any authority stating that Ohio has explicitly waived federal court immunity against claims brought under the separation of powers doctrine.’

Because the Lucas County Board of Elections Defendants and Defendant LaRose are immune, the Court dismisses Plaintiffs’ eighth cause of action without prejudice."

IV. Conclusion

For the foregoing reasons, the Court grants the Lucas County Board of Elections Defendants’ motion for judgment on the pleadings (ECF No. 5), the Mahoning County Board of Elections Defendants’ motion to dismiss (ECF No. 22), and Defendant LaRose’s motion to dismiss (ECF No. 38).

IT IS SO ORDERED.

August 30, 2019 /s/ Benita Y. Pearson Date Benita Y. Pearson United States District Judge

Eleventh Amendment immunity does not attach to suits “filed against a state official for purely injunctive relief enjoining the official from violating federal law.” Ernst, 427 F.3d at 358-59 (citing Ex parte Young, 209 U.S. 123, 155-56 (1908)). Plaintiffs’ eighth cause of action, however, arises under Ohio law, not federal law. The Ex Parte Young exception to immunity does not apply to Plaintiffs’ separation of powers claim.

'° A dismissal on the basis of Eleventh Amendment sovereign immunity is a dismissal for lack of jurisdiction, and “dismissals for lack of jurisdiction should generally be made without prejudice.” Ernst, 427 F.3d at 366.