by Jon Morrow | December 20, 2022

From the language above (important language is in red):

All members of controlling committees of a major political party shall be elected by direct vote of the members of the party, except as otherwise provided in section 3517.05 of the Revised Code. Their names shall be placed upon the official ballot, and, notwithstanding division (B) of section 3513.23 of the Revised Code, the persons receiving the highest number of votes for committee persons shall be the members of those controlling committees. Each member of a controlling committee shall be a resident and qualified elector of the district, ward, or precinct that the member is elected to represent. All members of controlling committees of a minor political party shall be determined in accordance with party rules.

There are no provisions in Ohio law that allows a State Central Committee to hire a Chairman from outside the State Central Committee

The language of 3517.02 is not vague nor ambiguous. The language is very specific. Members like Bob Paduchik cannot be hired to be Chairman of the Ohio Republican State Central Committee. They cannot serve on the controlling committee. He could be hired to be CEO as an employee. Per Ohio law - the Chairman (and officers) of an organization are a members of the organization.

Can a State regulate Political Parties

The activities of political parties enjoy significant protection under the First Amendment. For instance, political parties generally are able to assert a freedom of association claim, arguing that they, not the government, have the right to decide who may join the organization or be excluded and how they conduct their internal affairs. It is not always clear, however, who, under the law, is the “political party” and who can assert First Amendment rights.

Who makes up the political party for First Amendment purposes?

For example, is the political party its State Central Committee, primary voters, or potential primary voters? If the former, then can they place limits on who may join or participate in the party? If so, then they may be able to invoke the First Amendment on behalf of the party’s right to exclude individuals. If the party is not the leadership but the voters, then they may be able to invoke the First Amendment to demand admittance.

Political parties are public associations and subject to regulation

One of the first questions surrounding the regulation of political parties is whether a party is a public or a private association. In a series of decisions known as the “White Primary Cases” from Texas in the 1920s to the 1940s, the Supreme Court vacillated between ruling that the Democratic Party primaries in that state were private—and therefore the party could exclude African Americans from participating—or subject to state and congressional regulation such that discrimination could be prohibited.

Eventually, in United States v. Classic (1941) and Smith v. Allwright (1944), the Court ruled that the party primaries were subject to regulation and that African Americans could not be barred from participating.

A Compelling State interest is Maintaining the Integrity of the Election Process

Do we really have a Democratic Republic if the process of selecting party candidates in the primary is so heavily influenced by special interests that the candidates do not adequately represent the will of the people electing them?

U.S. residents were becoming more and more concerned about corruption within the political process in the late nineteenth and early twentieth centuries. These concerns contributed to the growth of Populism, a major reform movement of this era. One reform instituted by Populists in many states was the direct primary. Until the advent of the direct primary, political parties usually chose their candidates in closed-door meetings or at political conventions. As a result of this process, a few influential people were often able to manipulate the party's choice of candidates.

Populists believed that this process led to political corruption and kept elections from being truly democratic. With a direct primary system, the voters chose for themselves who would represent their political party in the regular election.

Wisconsin was the first state to implement the direct primary, and other states soon followed its example. The Reverend Herbert Bigelow of Cincinnati was instrumental in gaining passage of the direct primary in Ohio, which became law in 1906. Ohio's direct primary law required a primary election for candidates running for state, county, and local elections.

In a landmark ruling March Fong Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989), the Supreme Court held that California’s extensive regulation of the internal operations of political parties violated their members’ First Amendment rights of free speech and association.

March Fong Eu challenged several provisions of the California Election Code. In particular, the code prohibited “State Central Committees from endorsing candidates in party primaries.” This ruling in favor of Eu paved the way for liberal billionaires in California to solidly seize control of the State from Republicans by so influencing the State Central Committee so as to handpick the candidates they wanted to be endorsed.

Both the federal district court and the 9th U.S. Circuit Court of Appeals held that the regulations ran afoul of the Constitution.

Eu v. San Francisco County Democratic Central Committee is the case law that those seeking to protect the establishment and the elitists will most often cite in asserting that a state has no legal right to regulate how a party operates.

If this assertion were even remotely true, one would have to ask “how can the state tell the parties that they have to elect their State Central Committee members by the direct primary process?”

The Court said regulations must advance a compelling State Interest

The Supreme Court decision ruled that the regulations imposed on a political party by a state could only be justified if the regulation advanced a compelling interest and did so in a manner narrowly tailored to serve the proffered ends.

Justice Marshall wrote, the state “never adequately explains how banning parties from endorsing or opposing primary candidates advances that interest.”

Thus, “even if a ban on endorsements saves a political party from pursuing self-destructive acts, that would not justify a state substituting its judgment for that of the party.”

Many legal professionals that have analyzed the results of the 1989 ruling point to a lackluster argument and poor legal representation. It is believed by many legal professionals, due to the outright domination of California politics by liberal special interests, that laws prohibiting political parties from making endorsements prior to the primaries could now withstand Constitutional muster and Supreme Court scrutiny with adequate legal counsel.

After rejecting the ban on endorsements, the Court addressed California’s attempted regulation of party internal affairs. Because the state provision implicated First Amendment associational rights, Marshall held that if the provision were to survive, it must withstand strict scrutiny.

Although the state had shown a compelling interest in preserving the integrity of the electoral process, the Court struck down its attempt to regulate the internal affairs of its political parties, because, Marshall wrote, California had not narrowly tailored its law to this objective.

Strict scrutiny is the highest form of judicial review that courts use to evaluate the constitutionality of laws, regulations or other governmental policies under legal challenge. As Justice David Souter famously wrote in his dissenting opinion in Alameda Books v. City of Los Angeles (2002), “Strict scrutiny leaves few survivors.” This means when a court evaluates a law using strict scrutiny, the court will usually strike down the law.

Strict Scrutiny

Strict scrutiny is applied when laws restrict speech rights based on viewpoint or content

In First Amendment free-speech law, content-based and viewpoint-based laws are evaluated under strict scrutiny as opposed to the lower standards of review — intermediate scrutiny or rational basis. Under strict scrutiny, the government must show that there is a compelling, or very strong, interest in the law, and that the law is either very narrowly tailored or is the least speech-restrictive means available to the government.

Can a State Regulate Certain Political Party Functions?

A State sets a standard for major and minor parties and how they must be organized in order to be recognized by the State. Many legal professionals believe that Ohio Revised Codes 3517.02, 3517.03, and 3517.04 do survive the strict scrutiny tests in maintaining the integrity and eliminating corruption of the election process - just as similar statutes survived in court battles in 1906.

Boss Tweed was the impetus that started the reform of the parties through the direct primary and state regulation. Tweed’s corruption of the New York Democrat party is legendary and people across the United States that were dealing with their own corruption had enough. They didn’t want party bosses calling the shots. In 1906, Ohioans agreed - no more party bosses and passed party regulation into law. Similar laws in other States have passed Constitutional muster and survived because they provide for a compelling state interest and survive under the strict scrutiny test.