State\'s Reply in Support of Cross-Motion for Summary Judgment

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., Plaintiffs, v. JON HUSTED, Defendant.

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Case No. 2:13-cv-00953 Judge Watson Magistrate Judge Kemp

DEFENDANT SECRETARY OF STATE JON HUSTED’S AND INTERVENINGDEFENDANT STATE OF OHIO’S REPLY IN SUPPORT OF THEIR CROSSMOTIONS FOR SUMMARY JUDGMENT (Doc. 267)

I.

INTRODUCTION Despite having filed a lengthy opposition to the State Defendants’ Motion for Summary

Judgment, Plaintiffs failed to specify a genuine issue of material fact as is required by Fed. R. Civ. P. 56. The State Defendants are therefore entitled to summary judgment. II.

LAW AND ARGUMENT A party opposing a summary judgment motion “must come forward with specific facts

showing that there is a genuine issue for trial.” Kramer v. Bachan Aerospace Corp., 912 F.2d 151, 153 (6th Cir. 1990), citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation omitted).

The State Defendants sought summary judgment on

Counts Six through Nine on two grounds: (1) they are moot, and (2) they fail on the merits. Plaintiffs failed to set forth a single fact showing that there is a genuine issue for trial. Instead, they devote over seven pages of their opposition to arguing why Counts Six through Nine are not moot and offer no rebuttal on the merits. By failing to address the merits of these claims,

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Plaintiffs have abandoned them. Cunningham v. Tennessee Cancer Specialists, PLLC, 957 F.Supp.2d 899, 921 (E.D. Tenn. July 12, 2013) (“It is well understood. . . that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”), quoting Rouse v. Caruso, No. 06-cv-10961-DT, 2011 WL 918327, *18 (E.D. Mich. Feb. 18, 2011).

See also Dage v. Time Warner Cable, 395 F.Supp.2d 668, 679 (S.D. Ohio 2005)

(plaintiff abandoned claim by failing to address it in response to defendant’s summary judgment motion). That Plaintiffs have affirmatively moved for summary judgment on these Counts does not change the waiver analysis. In their own motion for summary judgment, they merely incorporated “all evidence” and prior motions without citing to any specific facts or offering any substantive arguments. (Doc. 261-1, Page ID # 7130) A party’s own properly supported motion for summary judgment may be sufficient to rebut an opposing party’s cross-motion for summary judgment. Internat’l-Matex Tank Terminals-Illinois v. Chemical Bank, No. 1:08-cv-1200, 2009 WL 3270276 (W.D. Mich. Oct. 5, 2009) (declining to find a party’s “perhaps unwise” decision not to respond to opposing party’s summary judgment motion a concession because “it filed affidavits with its own summary-judgment motion” that the court considered “as contesting the corresponding factual allegations made” in the opposing party’s summary judgment brief). But here, Plaintiffs have not pointed to any specific facts refuting Defendants’ entitlement to summary judgment in either their own motion or in opposition to Defendants’ motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment . . . must set forth specific facts

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showing that there is a genuine issue for trial.”) They have waived any merits arguments on Counts Six through Nine. A.

Counts Six Through Nine Are Moot.

Plaintiffs’ recent concessions belie their current argument that their claims are not moot. Specifically, Plaintiffs acknowledge that “their motion for preliminary relief restoring Earl to the ballot is moot.” (Pltfs. Response to Felsoci’s Motion Under Rule 11, Doc. 270, Page ID # 7280, n. 11)

They explain that they chose not to appeal the denial of their Fourth Motion for

Preliminary Injunction over mootness concerns: “It was because of their concern with mootness that Plaintiffs in this case chose not to take an interlocutory appeal. Time was too short, the election was approaching, and their appeal risked being mooted before relief could be granted.” (Id. at Page ID # 7280) If an appeal on the merits was mooted by the election, so are any other merits-based claims. By Plaintiffs’ own admission Counts Six through Nine are moot. Even apart from these concessions, Plaintiffs have completely failed to demonstrate that Counts Six through Nine are not moot. First, the capable of repetition yet evading review doctrine does not apply.

Second, Plaintiffs’ attempt to seek new relief in response to

Defendants’ summary judgment motion is improper and cannot avoid mootness. 1.

The capable of repetition yet evading review doctrine does not apply.

Plaintiffs have yet to explain how there is any reasonable expectation or demonstrated probability that the controversies underlying Counts Six through Nine will recur, a requirement for the capable of repetition yet evading review exception to mootness.

Sidestepping this

requirement, Plaintiffs argue that “[t]he public has an interest in knowing whether this sort of political espionage is legal.” (Doc. 268, Page ID #7241) But, the capable of repetition yet

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evading review doctrine does not consider the public interest 1 nor is there any exception to mootness based on public interest. Richardson v. Ramirez, 418 U.S. 24, 36 (1974) (“While the Supreme Court of California may choose to adjudicate a controversy simply because of its public importance, and the desirability of a statewide decision, we are limited by the case-orcontroversy requirement of Art. III to adjudication of actual disputes between adverse parties.”); Wright et al., 13C Fed. Prac. & Proc. Jur., § 3533.9 (3d ed.) (“[T]he Supreme Court has explicitly refused to adopt a public-interest doctrine. . . . Lower courts accept the rule that there is no explicit public-interest exception [to mootness].”) Plaintiffs’ request for an advisory opinion as to the legality of purported “political espionage” does not overcome mootness. Fialka-Feldman v. Oakland Univ. Bd. of Trustees, 639 F.3d 711, 715 (6th Cir. 2011) (“The ‘case or controversy’ requirement prohibits all advisory opinions, not just some advisory opinions and not just advisory opinions that hold little interest to the parties or the public. . . Matters of great public interest are precisely the kinds of issues that demand the federal courts to be most vigilant in this area. . . .”). Plaintiffs’ requests for declaratory and injunctive relief also do not alter the conclusion that the ‘capable of repetition yet evading review’ doctrine does not apply here. They mistakenly contend that because all of the “challenged laws” remain in place there is a chance that a similar controversy might occur and that an election challenge is not mooted by the election. (Doc. 268, Page ID# 7237-7240). But this grossly over-simplifies their burden. That is, to avoid mootness Plaintiffs cannot simply rest on the fact that the laws under which they brought their claims still

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Libertarian Party of Ohio v. Blackwell, 562 F.3d 579, 584 (6th Cir. 2006) (explaining that capable of repetition yet evading review applies when “(1) the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and (2) there is a reasonable expectation or a demonstrated probability that the controversy will recur.”).

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exist.

Instead, “the question in each case is whether the facts alleged, under all the

circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland v. Casualty Co. v. Pacific Co., 312 U.S. 270, 273 (1941) (emphasis added). The Plaintiffs have not—and cannot—point to any facts to show that an immediate and real controversy remains between the parties that warrants declaratory or injunctive relief. They do not claim, or point to any evidence, that their petition circulators will again be protested for their failure to comply with the payor disclosure statute. And they do not claim that in the future they will believe that the law does not apply to independent contractors.

There is even

less reason to believe that any future protest will involve similar underlying facts or a hearing officer with the type of conflict Plaintiffs claim exists here. Asking for declaratory relief does not change the mootness of this controversy. Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1265 (10th Cir. 2004) (“[I]f a case is otherwise moot, the existence of a prayer for declaratory relief does not keep the case alive.”) (McConnell, J., concurring); Friends of Animals v. Salazar, 670 F.Supp.2d 7, 12 (D.D.C. 209) (“[A] request for declaratory relief does not affect [the Court’s] mootness determination.”), quoting Conyers v. Reagan, 765 F.2d 1124, 1128 (D.C. Cir. 1985) (internal quotation omitted). See also Ford v. Wilder, 469 F.3d 500, 504 (6th Cir. 2006) (request for declaratory judgment that voiding of election results was unconstitutional was moot where the voiding already occurred). Likewise, a request to enjoin an act that has “already occurred and cannot be undone” is also moot. Conyers, 765 F.2d at 1127. 2.

Plaintiffs cannot avoid mootness by raising new requests for relief for the first time in response to a summary judgment motion.

Plaintiffs improperly attempt to avoid mootness by raising a new claim for the first time in opposition to summary judgment. They ask this Court to assume that, if Plaintiff-Earl had

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been on the ballot, he would have received the requisite two percent of the votes for Governor to retain party status such that the LPO should be recognized as a ballot qualified party in Ohio. (Doc. 268, Page ID # 7233-7234) Although Plaintiffs never made any such allegations or sought such relief in their Third Amended Complaint, they claim this relief may be granted because they requested “such other and further relief as may be just and proper.” (Id., Page ID# 7234) Courts have repeatedly rejected similar attempts to avoid mootness through requests for relief not contained in the complaint.

The United States Supreme Court has specifically

cautioned that a new claim “extracted late in the day from” a “general prayer for relief and asserted solely to avoid otherwise certain mootness” warrants “close inspection.” Arizonans for Official English v. Arizona, 520 U.S. 43, 1071 (1997), citing Fox v. Board of Trs. of State Univ. of N.Y., 42 F.3d 135, 137 (2d Cir. 1995). Fox refused to allow plaintiffs to avoid mootness based upon a claim for damages not mentioned in the complaint and that could not “be inferred from” its language through a boilerplate demand for “such other relief as the court deems just and proper.” Id. at 141-42 See also Lillibask ex rel. Mauclaire v. State of Conn. Dept. of Educ., 397 F.3d 77, 91 (2nd Cir. 2005) (plaintiff could not “revive” moot claim by seeking compensatory relief not mentioned in the complaint through request for “other such relief as the Court deems appropriate”); Boucher v. Syracus Univ., 164 F.3d 113, 118 (2d Cir. 1999) (“A request for damages, however, will not avoid mootness if it was inserted after the complaint was filed in an attempt to breathe life into a moribund dispute.”) (internal quotation omitted).

See also

Youngstown Publishing Co. v. McKelvey, 189 Fed. Appx. 402, 407-08 (6th Cir. 2006) (rejecting plaintiffs’ attempt to avoid mootness by asserting damages claim for the first time on appeal based on complaint’s general demand for “such other relief that the Court deems necessary and appropriate” when “there is no specific mention in the complaint for damages”).

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Even outside the context of mootness, a boilerplate demand does not arm Plaintiffs with the ability to seek entirely new relief not sought in any other pleading. Abernathy v. Corinthian Colleges, Inc., No. 2:10-cv-131, 2014 WL 4272723, at *28 (S.D. Ohio Aug. 29, 2014), report and recommendation adopted, No. 2:10-cv-131, 2014 WL 4829612 (S.D. Ohio Sept. 29, 2014) (request for “such other and further relief as may be just and equitable” did not put defendant or the court on notice of plaintiff’s intent to seek prejudgment interest warranting denial of such request). Allowing plaintiffs to assert this new relief—that is, minor party status based on the presumption that Charlie Earl would have met the general election “vote test”—for the first time in opposition to summary judgment would unfairly prejudice Defendants. Tucker v. Union of Needletrades, Industrial and Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005), citing Guiffre v. Local Lodge No. 1124, No. 90-3540, 1991 WL 135576, at *5 (6th Cir. July 24, 1991) (unpublished) (refusing to hear claims raised for the first time in opposition to summary judgment because “[h]aving received no notice of them, the defendants had no opportunity to investigate them when they conducted their own discovery”). Further, Plaintiffs’ request for this presumption is an attempt to improperly benefit from their own delay in pursuing Count Nine. This Court has already held that Plaintiffs’ due process/“conflict of interest” claim is barred by laches. (Doc. 260, Opinion and Order, Page ID # 7105). Plaintiffs now seek to avoid this bar and jockey for a better position than they would be in had they diligently pursued this claim. Their request to do so is strategic. That is, Plaintiffs want to bypass their obligation to satisfy the vote test that every other “minor party” is required to satisfy, and in some cases did satisfy (See 2014 general election results, Anita Rios, Green Party

gubernatorial

candidate,

receiving

3.3%

of

the

total

gubernatorial

vote,

https://vote.ohio.gov/Results.aspx?race=Governor, last visited, Dec. 8, 2014), to retain party

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status. They argue that they are somehow entitled to such status even though they did not comply with Ohio’s employer disclosure law. Simply put, they want to benefit from the same delay that this Court already held bars their claims. Plaintiffs’ reliance on Navarro v. Neal for the proposition that laches is no longer available as a defense post-election is misguided. (Doc. 268, Page ID # 7234, n. 16, citing Navarro v. Neal, 716 F.3d 425, 429 (7th Cir. 2013). In Navarro, candidates excluded from the 2012 general election ballot filed suit for injunctive and declaratory relief claiming that Illinois’s ballot access law was unconstitutional. The district court dismissed the case finding that laches barred their claims. The Navarro plaintiffs did not appeal the dismissal of their claim for injunctive relief and the Seventh Circuit concluded that they could not reasonably do so. But the Seventh Circuit found that laches did not bar the declaratory judgment claims because the court could still grant relief for future elections. But unlike in Navarro, Count Nine does not challenge Ohio’s ballot access laws and seek relief for future elections. It does not even seek declaratory relief. Rather, Count Nine is a fact-specific due process claim that is entirely inappropriate for declaratory relief. As in Navarro, Plaintiffs’ claim for injunctive relief in Count Nine is barred by laches and they have failed to defeat the Secretary’s summary judgment motion. B.

Count Five, Plaintiffs’ Ohio Constitutional Challenge, is Jurisdictionally Barred.

The Eleventh Amendment does not prevent this Court from deciding whether S.B. 193 violates the United States Constitution, but does prevent it from determining whether this state law comports with Ohio’s Constitution.

Plaintiffs brought Count Four, their federal

constitutional challenge, against the Secretary in his official capacity. The distinction between Secretary Husted and the State of Ohio in this instance is a legal fiction and of no practical

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consequence for purposes of Plaintiffs’ federal constitutional challenge. 2 Westside Mothers v. Haverman, 289 F.3d 852, 861 (6th Cir. 2002) (“Of course, Ex parte Young is a ‘fiction’ to the extent it sharply distinguishes between a state and an officer acting on behalf of the state. . . .”) But this is not true when it comes to Plaintiffs’ Ohio constitutional challenge.

Plaintiffs

acknowledge as much. (Pltfs.’ MSJ, Doc. 261-1, PAGEID # 7123) Both Secretary Husted and the State of Ohio are immune from this state law claim, and it may not be adjudicated in this Court without a waiver. Id. The State’s defense of a federal constitutional challenge for which there is no Eleventh Amendment immunity does not constitute an unequivocal expression of an intent to waive immunity on a state law claim. Vibo Corp., Inc. v. Conway, 669 F3d 675, 691 (6th Cir. 2012), citing Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306-07 (1990) (internal quotation omitted). Plaintiffs have not cited any authority to the contrary. Even if there has been a waiver of Eleventh Amendment immunity as to Plaintiffs’ federal constitutional challenge, such a waiver would not extend to their Ohio constitutional claim.

The state may waive immunity as to one claim, but not another.

Hornberger v.

Tennessee, 782 F.Supp.2d 561, 569 (M.D. Tenn. 2011) (“A state may limit its waiver of sovereign immunity to certain claims and to particular courts.”) (emphasis in original). “[S]overeign immunity is a divisible concept. The Supreme Court has repeatedly recognized that sovereign immunity is a flexible defense with multiple aspects that states can independently relinquish without affecting others.” Stroud v. McIntosh, 722 F.3d 1294, 1307 (11th Cir. 2013)

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This distinguishes the instant matter from Alabama v. Pugh, 438 U.S. 781 (1978), where the distinction between the State and its officers was “not merely academic” because the lower court issued an injunction requiring Alabama to take affirmative steps to improve prison conditions causing Alabama to have “in interest in being dismissed. . . in order to eliminate the danger of being held in contempt if it should fail to comply with the mandatory injunction.” Id. at 781-782. Here, the State of Ohio has no such interest and the distinction between it and Secretary Husted on the federal constitutional challenge to S.B. 193 is merely academic.

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(internal citation omitted). Stroud expressly acknowledged that “a state. . . can retain immunity from liability for a particular claim even if it waives immunity from suit in federal courts.” Id. at 1301. This case law is incompatible with Plaintiffs’ arguments that a state’s waiver of immunity as to one claim is a waiver as to any related claims. Plaintiff’s own authority, Board of Regents of the University of Wisconsin System v. Phoenix International Software, Inc., 653 F.3d 448, 463 (7th Cir. 2011), declined to recognize the type of broad waiver Plaintiff advocates. That case analyzed the existing case law and found that “when a state waives its sovereign immunity by litigation conduct, that waiver opens the door to counterclaims regarded as compulsory within the meaning of Federal Rule of Civil Procedure 13(a).” Id. at 470. It expressly declined to address whether a waiver extends “more broadlyperhaps to the entire constitutional case or controversy.” Id. As the State has no affirmative claims, Plaintiffs’ Ohio constitutional challenge cannot be considered a compulsory counterclaim. See Fed. R. Civ. P. 13(a) (defining a compulsory counterclaim as one that “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.”). Plaintiffs have cited no authority that allow for the broad implied waiver they seek. C.

Plaintiff’s Ohio Constitutional Challenge Also Fails on the Merits.

Plaintiffs have not and cannot point to any authority finding that Ohio Constitution Art. V § 7, or a similar provision, is self-executing or that it requires a party to nominate candidates through primaries.

Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006),

involved a federal constitutional challenge and has no bearing on Plaintiff’s Ohio constitutional challenge. In that case, the Court stated in dicta that Ohio’s Constitution requires a candidate for party designation to access the general election ballot through a party primary. It did not analyze Art. V, Sec 7. And, at the time of the Court’s writing, Ohio’s ballot-access statute in fact

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“provided by law” no mechanism for parties to reach the general-election ballot solely by petition (as opposed to through a primary election). Under the ballot-access law then in effect, the Court’s statement was correct, but that does not mean that the legislature could not provide, as it has in S.B. 193, for ballot access via petition as the clear text of Art. V, Sec. 7 allows. D.

Count Three is Moot.

Plaintiffs improperly attempt to avoid the mootness of Count Three through new theories premised on unsupported factual and legal assertions.

Count Three alleges:

“S.B. 193

retroactively disqualifies Plaintiff-LPO and its candidates from participating in Ohio’s 2014 primary in violation of the First Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” (Doc. 188 at ¶ 339, Page ID # 3842) This Court resolved this Claim when it granted the relief Plaintiffs sought and enjoined Defendants from applying S.B. 193 to the 2014 election cycle. (Doc. 47, Page ID # 811) But that election cycle is over and there is no further relief Plaintiff can obtain from this Count. Regardless, Plaintiffs now contend that they need additional relief because they allegedly relied upon this court’s prior injunction to make certain filings with state and federal authorities and so as to prevent various “collateral consequences” including “future challenges” to its campaign finance filings and donations. (Pltf.’s Reply, Doc. 268, PAGEID # 7222-7224) But, there are no allegations in the Third Amended Complaint about this purported reliance or these potential collateral consequences. And even if there were such allegations, Plaintiffs have not pointed to any evidence in the record to support them. Plaintiffs may not raise new theories in an opposition to summary judgment. Desparois v. Perrysburg Exempted Village School Dist., 455 Fed. Appx. 659, 666 (6th Cir. 2012) (“a plaintiff may not expand his claims to assert new theories for the first time in response to a

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summary judgment motion”); In re National Century Financial Enterprises, Inc. Investment Litig., 905 F.Supp.2d 814, 831 (S.D. Ohio 2012) (same).

In Desparois, the Sixth Circuit

concluded that the trial court properly declined to consider new claims raised for the first time in opposition to summary judgment that were “factually distinct from the original claims” as allowing the new claims would prejudice the defendant. Id. at 667. The court reasoned that the new claim “cannot fairly be understood to have been asserted in the” the operative complaint. Id. at 666. Here too, Plaintiffs’ Third Amended Complaint cannot fairly be construed as asserting any claims regarding its reliance upon any prior court determinations or various collateral consequences. To allow Plaintiffs to pursue these new theories at this late date would unfairly prejudice Defendants. Tucker, 407 F.3d at 788; Guiffre, 1991 WL 135576 at *5. Even if the Third Amended Complaint could be construed to assert such claims (and it cannot) Plaintiffs failed to present any evidence of their reliance on the preliminary injunction or any actual “collateral consequences.” Instead, they invite this Court to issue an advisory opinion that Plaintiffs’ campaign filings and other actions were proper without any context and in the absence of a developed record. This they cannot do. United Public Workers of America v. Mitchell, 330 U.S. 75, 116 (1947) (“It is clear that the declaratory judgment procedure is available in the federal courts only in cases involving actual controversies and may not be used to obtain an advisory opinion in a controversy not yet arisen.”).

Simply put, Plaintiffs cannot

defeat summary judgment with allegations not raised in the Third Amended Complaint and that are wholly unsupported by the record. E.

Even if Plaintiffs had not abandoned their merits arguments, their recent concessions defeat their claims.

As this Court is aware, during the course of the parties’ summary judgment briefing the Plaintiffs and the Intervenor-Defendants have filed, responded to, and/or threatened cross-

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motions for Rule 11 Sanctions. (Docs. 269; 270). The State Defendants are not involved in that process. However, they are aware of two notable (and dispositive) concessions made by the Plaintiffs during it. The first relates to Count Seven, Plaintiffs’ “as-applied” challenge in which they claim that the Defendant-Secretary’s (along with Intervenor-Defendant and Terry Casey) objective in selectively applying Ohio’s payor disclosure law to Plaintiff-Earl was politically based in violation of the First and Fourteenth Amendment. (Doc. 188, ¶ 362). Plaintiffs now claim that they do not have to present evidence that Intervenor-Defendant and Terry Casey’s politically based actions “infected [Secretary] Husted’s decision” because “[Secretary] Husted is an innocent agent.” (Doc. 270, Page ID# 7272, n. 4). There can be no genuine issue of material fact that the Secretary’s objective was not unconstitutional when Plaintiffs concede that he was “innocent.” Summary judgment is therefore appropriate as to Count Seven. The second relates to Count Six, Plaintiffs’ claim that, on its face, Ohio’s payor disclosure law chills First Amendment activity. (Doc. 188, ¶¶ 355-358). Specifically, the Plaintiffs do not even attempt to rebut Intervenor-Defendant’s argument that they have failed to produce any evidence of chill. (Doc. 270, Page ID# 7272, n. 4, citing, Doc. 269, Page ID# 7252). Instead, they concede their own lack of evidence, wave it off as unnecessary, and state that their facial challenge “does not depend on Plaintiffs’ proving that they were themselves chilled by Ohio’s law.” (Id.). But herein lies the rub: the Plaintiffs failed to prove that anyone was chilled by Ohio law. And they lack standing to assert a facial challenge on behalf of someone else.

Standing is a

“bedrock requirement” of federal jurisdiction. Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982).

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standing, a plaintiff must show that an injury is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138, 1146 (2013) (internal citation and quotation omitted). A litigant bringing an action on behalf of third parties “must have suffered an injury-in-fact, thus giving him or her a sufficiently concrete interest in the outcome of the issue in dispute . . . .” Metz v. Supreme Court of Ohio, 46 F. App’x 228, 233-34 (6th Cir. 2002), quoting Powers v. Ohio, 499 U.S. 400, 410-11 (1991). Plaintiffs’ admission that they have not been chilled dooms their standing to assert a First Amendment challenge to Ohio’s payor disclosure law on behalf of a third party. Thus, Count Six should be dismissed not just on the merits, but as a jurisdictional matter. III.

CONCLUSION For all the foregoing reasons, Defendant Ohio Secretary of State Jon Husted and

Intervening-Defendant State of Ohio requests summary judgment on all Counts of Plaintiffs’ Third Amended Complaint. MICHAEL DEWINE Ohio Attorney General /s/ Bridget C. Coontz Bridget C. Coontz (0072919) Halli Brownfield Watson (0082466) Sarah E. Pierce (0087799) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872; Fax: 614-728-7592 [email protected] [email protected] [email protected] Counsel for the Secretary of State and State of Ohio

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CERTIFICATE OF SERVICE I hereby certify that the foregoing was filed electronically on this 8th day of December, 2014. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt.

/s/ Bridget C. Coontz BRIDGET C. COONTZ (0072919) Assistant Attorney General

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