10th District finds Ohio political campaign law unconstitutional

In a decision that becomes increasingly relevant as election season draws near, the 10th District Court of Appeals held unconstitutional a portion of the Ohio Revised Code that prohibits candidates from using a title that they don't currently hold in political campaigns. ORC 3517.21(B)(1) provides that a candidate for political office cannot use the title of the office that they are running for in a way that implies they already hold that office.

The 10th District overturned a decision by the Ohio Elections Commission (upheld on summary judgment by the Franklin County Court of Common Pleas) which had found that Kathy Magda, candidate for Ashtabula County Treasurer, violated the statute when she used campaign materials that did not include the word "for" between her name and the office she sought. Magda argued that she did not intend to mislead voters into believing she was already serving as the treasurer with the materials.

While the case was pending, the 6th Circuit struck down other portions of ORC 3517.21, finding that they violated the 1st and 14th Amendments to the US Constitution. Those sections prevented campaigns from making false statements about a candidate's voting record, or knowingly or recklessly make false statements about a candidate at all if done to help the candidate win or lose an election. In Susan B. Anthony List v. Driehaus the court found ORC 3517.21(B)(9) and (10) could not survive strict scrutiny because they were content based restrictions on political speech that were not narrowly tailored to the compelling government interest in fair elections. Using the same analysis for ORC 3517.21(B)(1), the 10th District found it also could not stand.

The court also considered the case in light of the 2014 Ohio Supreme Court decision in In Re Judicial Campaign Against O'Toole, in which a former judge ran for office using campaign materials showing her wearing robes and referring to her as Judge O'Toole. We discussed this case in detail when it was handed down. In O'Toole, a five-judge panel appointed by the Ohio Supreme Court found that O'Toole had violated a provision of the Code of Judicial Conduct that prevented judicial candidates from making false statements about a judicial candidate. O'Toole challenged this provision under the First Amendment, but the Ohio Supreme Court found it valid because it promoted the compelling interest of ensuring the public confidence in the judiciary in a narrowly tailored way.

The 10th District distinguished this case, as O'Toole applied to judicial elections only, and was governed by the Ohio Rules of Judicial Conduct, not ORC 3517.21. In writing for the 10th District, Judge Jennifer Brunner noted that, in O'Toole, the state's interest went beyond protecting the integrity of elections to protecting public confidence in the judiciary, which was a different interest than that at stake here.

The 10th District ultimately found ORC 3517.21 unconstitutional, and ordered the lower court to enjoin the Ohio Election Commission from enforcing it. For more information about this case, see this article from Court News Ohio.