Secretary of State Jon Husted on Friday dumped two Libertarian candidates from Ohio’s ballot.
Husted disqualified Charlie Earl, a candidate for governor, and Steven Linnabary, a candidate for attorney general. Husted concluded that petition signature gatherers failed to comply with Ohio laws requiring them to be either Libertarian or a political independent and another requiring them to disclose their employer. A court challenge is inevitable.
Husted’s motivations are obvious. The Libertarian candidate likely would draw votes away from Governor John Kasich. This isn’t a secret, even Republican state chairman, Matthew Borges, admitted that the GOP helped with the challenge. And this comes after Republicans tried to change the ballot access laws to make it harder for te Libertarians to get on the ballot – an effort put on hold by a Federal judge.
One of the most interesting aspects to this story is how Husted put his finger on the scale even before the process started.
In deciding to boot the Libertarians off the ballot, Husted relied on a supposedly independent “hearing officer” to gather evidence and make a recommendation.
Here’s the thing: Husted gets to pick the hearing officer. And, in this case, he picked someone who would responsibly the establishment.
Meet Right Wing Election Law Superstar Bradley Smith. A guy with his own page on the Federalist Society webpage.
Smith teaches at Capital and West Virginia law schools. He also writes extensively about the evils of campaign finance restrictions. His work was even quoted in the infamous Citizens United opinion.
Fifteen years ago the Brennan Center identified Smith as a proponent of the type of deregulation of campaign finance laws that would allow corporations to make unlimited campaign contributions. They wrote:
Brad Smith has become the single most aggressive advocate for deregulation of campaign finance in the academy today. Ask any scholar of campaign finance who has spilt the most ink denouncing our current campaign finance laws; the answer will be Brad Smith. Ask any enemy of campaign finance laws to identify the most sought-after witness to make the case to Congress; Brad Smith will be the top answer. And ask any knowledgeable citizen with a deep commitment to faithful enforcement of our campaign finance laws to name the last person they would entrust with the task. Brad Smith would make the top of the list.
Since then, little has changed. Smith filed a brief in the United States Supreme Court in the Caperton case arguing that a judge does not heed to recuse himself from hearing a case even when he received substantial campaign contributions from one of the litigants. The Supreme Court rejected his argument – but according to Smith the Court got it wrong because of “misleading and poorly informed press coverage.”
Our purpose here is not to debate Smith’s radical legal theories. (As much as we would love to.) That is for others. Even his Wikipedia page notes that one of his most famous law review articles, “contains no original research and little that is new in terms of Constitutional theory.”
No, our purpose is to question whether Smith is the best, most unbiased person, to hear an election law dispute on an issue that would potentially harm a Republican candidate. After all, Smith has been in the middle of election law controversies and a staunch advocate of positions that have benefited noted conservatives like the Koch Brothers.
I think we can all agree the answer is an obvious No.
With Charlie Earl pulling up to 6 points away from John Kasich in some polls, and with DeWine embroiled in an emerging pay-to-play scandal, Husted was clearly under pressure to get the Libertarian candidates for Governor and Attorney General off the ballot. And that’s exactly what he did, stacking the deck against the Libertarians by assigning Smith as hearing officer.