Free Speech on the Docket

Ferner v. Husted

Status:
Closed
Case Dates:
Thursday, 1 March, 2012 - Saturday, 22 September, 2012
Facts:

In 2006, the General Assembly passed HB 3 which made numerous changes to Ohio elections law including several provisions pertaining to petition circulation and voter registration. One of those provisions, Section 2961.01(B), targets people with felony convictions. It prohibits people with felony convictions from circulating or serving as a witness for the signing of any declaration of candidacy petition; voter registration application; or nominating, initiative, referendum, or recall petition. Under Ohio law, persons with felony convictions have their right to vote immediately restored upon release from incarceration. However, the right to circulate petitions or register voters is not immediately restored. Instead, the right to circulate is not restored until the ex-felon has completed the terms of probation, parole, or post-release control (commonly referred to as being “on paper”). An Attorney General Opinion interpreted the law to only apply prospectively, to individuals with felony convictions on or after the bill’s effective date in 2006.

Legal Theory:

There are two key constitutional problems with the bar to felon petition circulation. It violates individuals’ right to core political speech and the right to petition government for redress of grievances under the First Amendment. It also violates individuals’ rights under Equal Protection by drawing a distinction between immediate restoration of the right to vote and later restoration of the right to circulate petitions.

Status:

We have signed retainer agreements from two individual plaintiffs as well as an organizational client. The complaint was filed on March 1, 2012 in the Northern District of Ohio and was assigned to Judge Christopher Boyko. Judge Boyko raised the issue as to whether the Northern District was the proper venue for the case. On March 13, 2012 we filed our brief in support of venue, arguing that the Secretary of State conducts business in all of Ohio’s 88 counties and, as such, venue was proper in the forum we had chosen. Also on March 13, 2012, Defendant filed his brief in response to the judge’s question, essentially arguing that venue is an affirmative defense and the Secretary of State would not be raising improper venue as a defense. The Secretary of State filed a Motion to Dismiss on May 21, 2012 alleging lack of jurisdiction, lack of standing and failure to state a constitutional claim. We agreed with the conclusion that the plaintiffs lacked standing and dismissed the case without prejudice.