Tenth District: Non-Incumbent Candidates No Longer Have to Use “For” to Alert Voters They Don’t Hold the Office

By Dan Trevas, August 5, 2016 

Candidates can’t be required to list words such as “for” in their campaign materials to clarify for voters that they don’t currently hold the office they seek, an Ohio appeals court ruled.

The Tenth District Court of Appeals overturned an Ohio Elections Commission’s (OEC) finding that Kathy Magda violated state election law in 2012 when she failed to put the word “for” between her name and the office she sought, Ashtabula County Treasurer. Magda appealed the decision to the Franklin County Common Pleas Court claiming it was unconstitutional, but the trial court found R.C. 3517.21(B)(1) to be valid and upheld the decision.

The Tenth District, citing the U.S. 6th Circuit Court of Appeals February Susan B. Anthony List v. Driehaus decision, reversed the trial court and vacated the OEC’s finding against Magda. It also permanently blocked the OEC from enforcing the provision, which doesn’t allow the use of the title of an office not currently held by a candidate in a manner that implies the candidate holds the office.

The Tenth District clarified that its decision doesn’t impact judicial candidates and the Ohio Supreme Court’s 2014 In re Judicial Campaign Complaint Against O’Toole was found to be valid on different constitutional grounds. In the O’Toole case, a former judge who was running to return to the bench was sanctioned for campaigning with a name tag with the title “judge,” leaving the impression she was currently holding office.

Federal Court Decision Applied to Related Rule

Magda, and her husband, who was her campaign manager, argued the omission of the word “for” was inadvertent and unintentional and there was no evidence they intended to mislead votes into believing she was the incumbent treasurer. The Magdas challenged the law contending it violated the U.S. Constitution’s First and Fourteenth amendments.

At the time the Magda challenge was being considered in state court, the Susan B. Anthony List organization’s challenge to Ohio’s false statement law was being considered in federal court. The group challenged the constitutionality of R.C. 3517.21 (B)’s subsections (9) and (10).

R.C. 3517.21 (B)(9) prohibits a candidate from “knowingly and with the intent to affect the outcome” of an election to make a false statement concerning the voting record of a candidate or public official. R.C. 3517.21 (B)(10) prohibits a candidate from making a “false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it is false or not, if the statement is designed to promote the election, nomination, or defeat the candidate.”

The Sixth Circuit concluded the sections violated the constitution because they failed to meet the “strict scrutiny” requirement that government restrictions on political speech must serve a compelling government interest and be narrowly tailored to serve the state’s compelling interest.

The provision regarding statements about holding office that are limited by R.C. 3517.21(B)(1) weren’t at issue in the Susan B. Anthony List case.

Lower Court Considered O’Toole Decision

Writing for the Tenth District, Judge Jennifer Brunner explained the trial court thought it was bound by the Ohio Supreme Court’s decision in O’Toole, which found the law met the “strict scrutiny” test. The trial court believed the state had a compelling governmental interest in preventing candidates from misrepresenting that they are already performing the functions of an elected office when they aren’t elected, and that the law was narrowly tailored to serve that need.

Judge Brunner wrote the trial court didn’t correctly identify the compelling government interest in the judicial candidate case. She noted the purpose of the judicial rule against using the title when not in office is not only to protect the integrity of judicial elections, but to protect the state’s interest in protecting public confidence in the judicial system. Citing a separate Sixth Circuit ruling (Carey v. Wolnitzek), Judge Brunner wrote: “Unlike the other branches of government, the authority of the judiciary turns almost exclusively on its credibility and respect warranted by its rulings.”

Judicial elections aren’t impacted by R.C. 3517.21 but by the Ohio Code of Judicial Conduct, specifically Canon 4, which governs judicial elections. Prohibiting campaign material from using the title “judge” by non-office holders protects the interest of promoting an independent, impartial judiciary and that law meets the standards to be considered a constitutional restriction on free speech, Judge Brunner wrote.

Federal Decision Applies to Non-Judicial Candidates

Because R.C. 3517.21(B)(1) doesn’t serve the interest in protecting the integrity of the judicial system, the law is subject to the Sixth Circuit’s Susan B. Anthony List decision, Judge Brunner concluded. She noted the federal court invalidated the two sections regarding false statements for a number of reasons including that it allowed the OEC to sanction a candidate for false statements even if they were “non-material” and that the commission had no process of screening out frivolous complaints, which forced candidates to appear before the commission to defend themselves against claims that had no supporting evidence of being false.

Judge Brunner maintained that the OEC didn’t prove the law is needed and that “counterspeech” by others may easily let voters know the candidate isn’t the incumbent.

“In this instance, the statements on (Magda”s) campaign materials could have been debunked readily and obviously with the counterstatement that Magda was not and has never been the Ashtabula County treasurer,” she wrote.

The Tenth District remanded the case to the trial court with instructions to enter a judgment in favor of the Magda's and to prevent the OEC from enforcing the law.

Judges Julia L. Dorrian and Betsy Luper Schuster concurred in the decision.

Magda v. Ohio Elections Comm., 2016-Ohio-5043
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2016/2016-Ohio-5043.pdf

Civil Appeal from: Franklin County Common Pleas Courts

Judgment Appealed From Is: Reversed

Date of Judgment Entry on Appeal: July 21, 2016

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