Wednesday, February 19, 2014

Oral argument date set for April 22 as COAST takes on OEC at the Supreme Court

It is exciting times for COAST and its legal team, as the United States Supreme Court has set April 22 as oral argument date for its showdown with the Ohio Elections Commission over enforcement of Ohio's False Claims statute.

Ohio is one of 17 states that criminalizes supposed false statements in the context of an election campaign, using a kangaroo court (consisting in part of non-attorneys and non-judges) at the Ohio Elections Commission who sit in judgment of the truth or falsity of such statements. The predictable outcome is a partisan and arbitrary determination of what is and is not "false" campaign speech. And the potential penalties include up to six months in jail for offenders.

This bizarre regime has withstood decades of legal challenges not because the Courts have determined that the statute is constitutional, but because the Federal District Courts for Ohio and the Federal Appeals Court for the 6th Circuit refuse to allow "standing" for any litigants ever to actually appear in court and challenge the law. In a bizarre series of decisions, the Courts have determined that before, during and after OEC proceedings, it is never timely to challenge the law in federal court.

The result is that an unconstitutional law sits on the books and intimidates candidates and others who participate in election campaigns year after year. In the 2010 election, the Susan B. Anthony List, a pro-life group from Washington D.C. wanted to post billboards in the 1st Congressional District telling voters that Steve Driehaus' vote for ObamaCare was a vote to fund abortions. Driehaus, attempting to squelch that speech, filed a claim before the Ohio Elections Commission -- and the Commission in a 2-1 partisan democrat vote -- determined that there was indeed "probable cause" that the statement was false, setting the matter up for a full trial after the election.

When Driehaus lost, he dropped the Ohio Elections Commission Complaint but proceeded to sue the SBA List for defamation, his damages being losing the election.

COAST joined with the Susan B. Anthony List in suing the Elections Commission over the statute, with COAST asserting that it wanted to make the same statements as SBA List but was chilled in doing so because of the threat of enforcement actions by the OEC.  Federal Judge Black, hearing both the COAST and SBA List complaints granted summary judgment on the standing issue, tossing out the case, saying that at no stage of the proceedings -- before an OEC action is brought (as with COAST), while one is pending (as with SBA List), after it is dropped (as with SBA List) or otherwise -- does a litigant ever have standing before the Court to actually challenge the constitutionality of the law. The Sixth Circuit concurred in that decision.

Fortunately, on January 10 of this year, the United States Supreme Court met and decided to accept the case -- which it does in fewer than 1% of all petitions -- and allow the standing issue to be heard before them.  Oral argument in that action will be April 22, and a decision should be rendered before the end of June when the Court adjourns for the summer.   COAST is optimistic that the Supreme Court then will allow consideration of the merits of the unconstitutional OEC statue, placing the issue back before the District Court. COAST is then hopeful those proceedings will result in the statute, much belatedly, being ruled as unconstitutional by the Courts.

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