OHIO ELECTIONS COMMISSION

MARK W.MILLER,

Relator, CASE NO.2018G-019

v. RECEIVED
STEVE DETTELBACH,ET AL, SEP 1 1 2018
Respondents. OHIO ELECTIONS
COMMISSION
PRELIMINARY REVIEW HEARING BRIEF AND REQUEST FOR DISMISSAL OF
THE COMPLAINT BY RESPONDENTS STEVE DETTELBACH,
DETTELBACH FOR OHIO,AND JEFFREY A.RUPPERT

I. INTRODUCTION

This is a frivolous action motivated to embarrass Steve Dettelbach, and calculated to

influence the outcome ofthe election for Ohio Attorney General. The complaint is devoid of

specific facts. The allegations are conclusory and not within Relator's own personal knowledge.

It is without merit.

As a matter offact and Ohio law, Respondents did not promote a "scheme of chance." A

"raffle" did not occur. No "prize" was offered. Every person who responded was invited to the

event. And no campaign funds were used to send the email promoting the fundraiser. The Ohio

Elections Commission should dismiss the complaint at the preliminary review stage.

II. STATEMENT OF FACTS

Dettelbach for Ohio (the "Campaign")held an event featuring &Inner United States

Attorney General Eric Holder on July 27, 2018,in Cincinnati, Ohio (the "Holder Event").1

Before the event, a fundraising solicitation was sent via email. The intent ofthe fundraising

1 The Affidavit ofIan Moskowitz is attached to this Brief, and verifies the facts set forth herein.
(Ex. A.) The Affidavit of Steven Gold, which is attached, verifies fact statements specific to Act
Blue.(Ex. B.)

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 solicitation was to diversify and increase attendance at the event, and to encourage supporters to

attend for a small amount.

For the Holder Event, people were asked to contribute $5,$10,$25,$50, or another

amount. No tickets or entries were sold. No drawing occurred. Rather, every donor who

responded to the solicitation received an invitation.

The Campaign accepts donations through www.actblue.com. ActBlue LLC is a political

organization that develops internet-based tools on its website, www.actblue.com, for use in

soliciting and accepting small-dollar contributions. When a contribution is made on the ActBlue

website to a campaign or organization, ActBlue processes the credit card transaction and collects

a fee from the recipient ofthat contribution to pay for the costs associated with processing it. The

Campaign pays ActBlue only for general payment processing services. Respondents do not pay,

and have not paid, ActBlue to send fundraising solicitations or to promote Campaign events.

They did not pay ActBlue to promote the Holder Event.

III. LAW AND ARGUMENT2

A. Relator presents no more than conclusory allegations outside his personal

knowledge, and has not stated a cognizable claim.

Ohio Administrative Code section 3517-1-02(1)(d) mandates that a complaint filed with

the Commission "[c]learly set forth the specific source or basis ofthe personal knowledge" of

the alleged violation of Ohio election law. It must include "all affidavits, exhibits and other

documents relied upon in alleging the violation or tending to support the allegations." O.A.C.

3517-1-02(1)(e). It also must "[c]learly set forth sufficient facts, supported by affidavits, exhibits

2 As a threshold matter, the Commission lacks jurisdiction over this matter. Respondents reserve,
and do not waive, their jurisdictional defense. The complaint conflates an alleged campaign
finance violation with an alleged violation of Ohio's gambling laws, making ajurisdictional
argument more complex than necessary at this stage. Respondents choose here to focus on the
complaint's lack of merit.

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 and/or other documents to constitute a prima facie violation of Ohio law over which the

commission has jurisdiction." O.A.C. 3517-1-02(1)(f).

Relator has not met, and cannot meet, his basic pleading burden because facts do not

exist to support the allegations. Instead, he summarily contends that Respondents, including

ActBlue,"arranged a political fundraising scheme designed to allow donors to purchase chances

to win a meeting with Eric Holder, the former United States Attorney General (the 'Raffle')."

(Compl., ¶ 7.) He surmises further that "The winner ofthe prize (i.e. the meeting with Eric

Holder) is or was to be selected randomly among those [sic] who purchased chances by donating

through the Raffle webpage operated by ActBlue.com"(Id., ¶ 8.) Finally, Relator states, without

factual support:"The proceeds from the Raffle are to be used to fund Dettelbach's campaign for

Ohio Attorney General, i.e. Dettelbach for Ohio, and to pay ActBlue.com for its services in

operating or assisting in the operation ofthe Raffle."(Id., ¶ 11.)

Relator fails to offer sufficient and specific facts, based upon his own personal

knowledge,that support his claim. First, Relator has no personal knowledge that the alleged

conduct actually occurred. To have personal knowledge, he would need some means of

confirming that Respondents held a drawing and randomly selected a winner. Since a "raffle" did

not occur, such knowledge would not be possible.

Second, Relator lacks personal knowledge ofthe terms under which the Campaign pays

ActBlue. ActBlue is a payment processor. It is paid a percentage of contributions made through

its website and nothing more. Respondents did not pay ActBlue to promote the Holder Event.

Third, the documents attached to the complaint, on their face, do not support a claim that

Respondents promoted an allegedly unlawful "scheme of chance" or "raffle" for a "prize" as

defined in R.C. Chapter 2915. Exhibit 1 promoted an opportunity to meet Mr. Holder at a

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 fundraiser. It did not promote a drawing or other game that meets the definition of"scheme of

chance" or "raffle." No "prize," as that tem'is legally defined, was contemplated. Relator simply

chose to interpret Exhibit 1 to violate R.C. Chapter 2915, which it does not.

Relator has not presented, and indeed cannot present, facts based upon his own personal

knowledge to support his frivolous claim.

B. Respondents did not violate R.C. Ch.2915.

1. Respondents did not promote a "scheme of chance."

The mere use ofthe word "chance" in the solicitation does not satisfy the statutory

definition of"scheme of chance." A "scheme of chance" is one "in which a participant gives a

valuable consideration for a chance to win a prize." R.C. 2915.01(C). The complaint contains no

allegations that satisfy this statutory definition. Exhibit 1 to the complaint is an email fundraising

solicitation that offered "a chance to meet the fon ier AG."(Compl.,Ex. 1.) The email, on its

face, did not sell tickets for a drawing or raffle. (Id.) It promoted an event at which a donor could

meet Mr. Holder. Every person who contributed in response received an invitation. There was no

"scheme of chance" involved.

Additionally, the complaint fails to allege facts that meet the statutory definition of

"valuable consideration." To look at the definitions describing a "scheme of chance" is to

understand that they do not contemplate this alleged situation. "Valuable consideration is

deemed to be paid for a chance to win a prize" when:

(1)Less than fifty per cent ofthe goods or services sold by a scheme of
chance operator in exchange for game entries are used or redeemed by
participants at any one location;

(2)Less than fifty per cent of participants who purchase goods or services at
any one location do not accept, use, or redeem the goods or services sold or
purportedly sold;

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 (3) More than fifty per cent of prizes at any one location are revealed to
participants through an electronic device simulating a game of chance or a
"casino game" as defined in section 3772.01 of the Revised Code;

(4)The good or service sold by a scheme of chance operator in exchange for a

game entry cannot be used or redeemed in the manner advertised;

(5)A participant pays more than fair market value for goods or services
offered by a scheme of chance operator in order to receive one or more game
entries;

(6)A participant may use the electronic device to purchase additional game
entries;

(7)A participant may purchase additional game entries by using points or

credits won as prizes while using the electronic device;

(8)A scheme of chance operator pays out in prize money more than twenty
per cent ofthe gross revenue received at one location; or

(9)A participant makes a purchase or exchange in order to obtain any good or

service that may be used to facilitate play on the electronic device.

As used in this division,"electronic device" means a mechanical, video,

digital, or electronic machine or device that is capable of displaying
information on a screen or other mechanism and that is owned, leased, or
otherwise possessed by any person conducting a scheme of chance, or by that
person's partners, affiliates, subsidiaries, or contractors.

R.C. 2915.01(C).

Here, no goods or services were sold or redeemed at the Holder Event; electronic gaming

devices or casino games were not used to reveal prizes; all donors who responded to the email

solicitation received an invitation to the Holder Event and could meet Mr. Holder; there is no fair

market value for an invitation to a political fundraiser; and, no money was paid to people who

received an invitation to the Holder event. In other words,the allegations in the complaint fail to

meet the legal definition at issue here.

2. A "raffle" did not occur.

Revised Code 2915.01(CC)defines a raffle as follows:

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 "Raffle" means a form of bingo in which one or more prizes are won by one
or more persons who have purchased a raffle ticket. The one or more winners
ofthe raffle are deteimined by drawing a ticket stub or other detachable
section from a receptacle containing ticket stubs or detachable sections
corresponding to all tickets sold for the raffle.

The complaint does not state allegations that support a claim that Respondents conducted

a raffle for one simple reason: a raffle did not occur. First, Respondents did not sell raffle tickets.

They solicited campaign contributions from prospective donors. Second, Respondents did not

deten line winners "by drawing a ticket stub or detachable section from a receptacle containing

ticket stubs or detachable sections corresponding to all tickets sold." Third, every person who

contributed in response to the fundraising solicitation, regardless of amount, was invited to the

Holder Event.

3. No "prize" was offered as part of the fundraising solicitation.

Neither attending an event nor meeting a person constitutes a "prize" as defined in R.C.

2915.01(AAA)(2)(c). A `"[p]rize' means any gift, award, gratuity, service, credit, reward, or any

other thing of value that may be transferred to a person, whether possession ofthe prize is

actually transferred, or placed on an account or other record as evidence ofthe intent to transfer

the prize." Attending a political fundraiser is hardly a "prize." Moreover, an opportunity to meet

Eric Holder does not convert a fundraiser into a "prize" as defined by Ohio law.

C. Respondents did not violate R.C. 3917.13(0).

1. Respondents did not pay ActBlue to send a fundraising solicitation

email for the Holder Event.

Relator's Exhibit 1 expressly states:

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 Paid for by ActBlue {aclblue•corn) and not authorized
by any candidate or candidate's committee

Contributions or gifts to ActBlue are not deductible as

charitable contributions for Federal income tax
purposes

This is dispositive of Relator's claim that Mr. Dettelbach, Dettelbach for Ohio, and Mr. Ruppert

used campaign funds to send Exhibit 1.

2. Respondents did not convert campaign funds for personal use.

Revised Code 3517.13(0) prohibits conversion of campaign funds for personal use. It

states:

(0)No beneficiary of a campaign fund or other person shall convert for

personal use, and no person shall knowingly give to a beneficiary of a
campaign fund or any other person, for the beneficiary's or any other person's
personal use, anything of value from the beneficiary's campaign fund;
including, without limitation, payments to a beneficiary for services the
beneficiary personally performs, except as reimbursement for any of the
following:

(1)Legitimate and verifiable prior campaign expenses incurred by

the beneficiary;

(2)Legitimate and verifiable ordinary and necessary prior

expenses incurred by the beneficiary in connection with duties as
the holder of a public office, including, without limitation,
expenses incurred through participation in nonpartisan or
bipartisan events ifthe participation ofthe holder ofa public office
would nomially be expected;

(3)Legitimate and verifiable ordinary and necessary prior

expenses incurred by the beneficiary while doing any ofthe
following:

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 (a)Engaging in activities in support of or opposition to a
candidate other than the beneficiary, political party, or
ballot issue;

(b)Raising funds for a political party, political action

committee, political contributing entity, legislative
campaign fund, campaign committee, or other candidate;

(c)Participating in the activities of a political party,

political action committee, political contributing entity,
legislative campaign fund, or campaign committee;

(d)Attending a political party convention or other political

meeting.

For purposes of this division, an expense is incurred whenever a

beneficiary has either made payment or is obligated to make payment, as
by the use of a credit card or other credit procedure or by the use of goods
or services received on account.

Respondents have not paid, and do not pay, ActBlue.com to solicit campaign

contributions via email or otherwise. ActBlue.com provides a web-based payment platform for

political campaigns. In exchange, ActBlue.com receives a percentage of each contribution made

through its website as compensation for its services. Fees associated with payment processing are

"legitimate and verifiable campaign expenses." Even ifthe Commission determined that

Respondents paid ActBlue.com for the email fundraising solicitation at issue here, which it did

not, the expenditure meets the exceptions set forth above.

Respondents did not violate R.C. 3917.13(0).

D. Respondents engaged in political speech protected by the First and

Fourteenth Amendments of the United States Constitution.

The First Amendment to the United States Constitution provides that "[c]ongress shall

make no law * * abridging the freedom ofspeech." When a law burdens core political speech,

it must survive strict scrutiny. Corsi v. Elections Comm., 2012-Ohio-4831,¶ 10 (citing Fed.

Election Comm. v. Wisconsin Right to Life, Inc., 551 U.S. 449,4611 65 (2007))."Under that

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 review, the state must prove that the law is narrowly tailored to further a compelling government

interest." Corsi v. Elections Comm., 2012-Ohio-4831, ¶ 10."Other burdens, such as reporting,

disclaimer and disclosure requirements, may burden the ability to speak, but they impose no

ceiling on campaign-related activities and do not prevent anyone from speaking." Id.(citing

Citizens United v. Fed. Election Comm., 558 U.S. 310, 130 S.Ct. 876, 914(2010)). For this

reason, such burdens are subjected only to an "exacting scrutiny," which requires a substantial

relation between the requirement and a sufficiently important governmental interest. Id.(citing

Citizens United, 558 U.S. 310, 130 S.Ct. at 914; Doe v. Reed, U.S. 130 S.Ct. 2811,

2818(2010). To withstand this scrutiny, "the strength ofthe governmental interest must reflect

the seriousness ofthe actual burden on First Amendment rights." Id. (internal citations and

quotation marks omitted).

"Soliciting for political contributions falls within the rubric of protected First

Amendment speech." United Auto Workers, Local Union 1112 v. Philomena, 121 Ohio App.3d

760, 778 (citing United States v. Kokinda, 497 U.S. 720, 725 (1990)). As such, this is an as-

applied challenge to R.C. 2915.01 and 2915.02. Corsi, 2012-Ohio-4831,¶ 11 (citing Yajnik v.

Akron Dept. ofHealth, Hous. Div., 101 Ohio St.3d 106,2004-Ohio-357,¶ 14. An "as applied"

challenge asserts that a statute is unconstitutional as applied to the challenger's particular

conduct. Id.(citing Columbus v. Meyer, 46,2003-Ohio-1270, ¶ 31).

Under these circumstances, barring the use of political speech soliciting campaign

donations violates the First Amendment. Revised Code 2915.01 and 2915.02 define and

criminalize certain forms of gambling in the State of Ohio. But neither statute defines the

solicitation of political contributions as a gambling offense. And neither criminalizes the use of

the word "chance." The mere use ofthat phrase, or the word "chance," does not automatically

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 implicate R.C. 2915.01 and 2915.02 at least not with respect to the First Amendment's

protections for political speech. Political speech that offers an opportunity to meet someone at a

campaign fundraiser should not be chilled. Finding that the mere use ofthe word "chance" in a

political fundraising communication violated Ohio law would chill future political speech and

violate the First Amendment. It is black-letter law that statutes should be construed, if possible,

to avoid constitutional defects. Brookbank v. Gray, 74 Ohio St.3d 279,287(1996). Here, given

the Relator's failure to provide any evidence that Respondents violated R.C. 2915.01, 2915.02,

and 3517.13(0), the Commission need not reach the constitutional question. Instead, it should

apply the relevant statutes as written and dismiss the complaint.

IV. CONCLUSION

Relator's complaint is nothing more than a political stunt designed to embarrass and

harass Mr. Dettelbach. Relator and his counsel widely publicized the complaint via press release,

various websites, and social media the day ofthe Holder Event. One ofRelator's lawyers, Mr.

Shrive, even appeared on talk radio to discuss it. Their intent never was to advance a meritorious

claim It was solely to try to grab a headline and promote the candidacy of Mr. Dettelbach's

opponent. Making that point even more clear is the fact that Mr. Finney, another of Relator's

lawyers, has donated to Mr. Dettelbach's opponent in an amount far greater than the solicitation

at issue in the Complaint. The Commission should not allow itself to be used as a campaign

prop.

The complaint should be dismissed.

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 Respectfully submitted,

Brian J. Laliberte 071125)

Tucker Ellis LLP
175 South Third Street
Suite 520
Columbus, OH 43215
Tel: 614.358.9717
Fax: 614.358.9712
E-mail: brian.laliberte@tuckerellis.com

Attorneyfor Respondent Steve Dettelbach,

Dettelbachfor Ohio, and Jeffrey A. Ruppert

CERTIFICATE OF SERVICE

I hereby certify that on September 11, 2018 a copy ofthe foregoing was filed with the

Ohio Elections Commission and served upon Brian Shrive, Finney Law Film, LLC,4270 Ivy

Pointe Boulevard, Suite 225, Cincinnati, Ohio,45245,Brian@FinneyLawFiumcom, by e-mail.

,5
i , 1

ri
B an J. Lalibert (0071125)

Attorneyfor Respondent Steve Dettelbach,

Dettelbachfor Ohio, and Jeffrey A. Ruppert

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 AFFIDAVIT OF IAN MOSKOWITZ

State of Ohio

SS:

County of Cuyahoga :

I,Ian Moskowitz, being duly cautioned and sworn, hereby state that the Statement of

Facts set forth in the foregoing Brief is based upon my own personal knowledge is a true and

accurate statement.

Sworn and Subscribed before me this I day of September 2018.

r•

Notary Public

CATHLEEN M.BOLEK,ATTORNEY
NOTARY PUBLIC • STATE OF OHIO
My Ccomtnission has no a*Iration date
Settion 147.03 Q.R.C.

3916439.1
 MILLER v. DETTELBACH,et. al.
OHIO ELECTIONS COMMISSION
CASE NO.2018R-019
AFFIDAVIT OF STEVEN GOLD
GENERAL COUNSEL OF ACTBLUE

I,Steven Gold, General Counsel of ActBlue, LLC, being duly sworn, state the following
upon information and belief:

1. ActBlue is a political organization which develops internet-based tools on its

website, www.actblue.com,for use in soliciting and accepting small-dollar
political contributions.
2. ActBlue's tools are made available to all Democratic campaigns and
organizations to use for their own fundraising activities. ActBlue does not
fundraise for any political candidate or organization other than itself.
3. When a contribution is made on the ActBlue website to a campaign or
organization, ActBlue processes the credit card transaction and collects a fee
from the recipient of that contribution to pay for the costs associated with
processing the contribution.
4. The Dettelbach for Ohio campaign created one or more webpages on
ActBlue's website for the purpose of soliciting and accepting campaign
contributions. Contributions were made through these webpages, and
ActBlue processed those contributions. ActBlue was not involved in the
creation of the webpages or the solicitation of contributions to the campaign.
S. For each contribution made to the Dettelbach campaign and processed by
ActBlue, ActBlue collected a fee. It also collected information related to the
contributor for purposes of providing that information to the campaign so
that the campaign might meet their legal obligations to report campaign
contributions and maintain a relationship with their contributors. This
information was shared with the campaign.

1
 6. ActBlue did not organize and was not involved in the fundraising activities of
the Dettelbach campaign,relating to any raffle or otherwise. ActBlue was not
a part of any "political fundraising scheme."
7. ActBlue was not paid out of the proceeds of any raffle. ActBlue was paid a fee
by the Dettelbach campaign for the general transaction processing services it
performed at the request of the campaign.
8. ActBlue did not provide the Dettelbach campaign with any contributor
information for the purpose of facilitating a raffle.
9. ActBlue did not establish, promote,operate, or knowingly engage in conduct
that facilitated a scheme of change under Ohio law and did not violate any
statutes or regulations as a result of providing services to the Dettelbach
campaign.

Steven Gold
General Counsel
Dated: c/.3-3(1e-
Commonwealth of Massachusetts
County of Middlesex

'
On thisz17 - day of ait4U/X
( , 201 before me,the undersigned notary

public, personally appeared 5on Lou. , proven to me through

1 tm dfi\66U,uAa
,
,
satisfactory evidence of identification, which were
5M-141433 to be the person whose name is signed on the preceding or
the
attached document, and who swore or affirmed to me that the contents of
belief.
document are truthful and accurate to the best of his or her knowledge and

Z
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MEAGAN PETERSEN
Notary Public Meagan Petersen
Commonwealth of Massacfweetis Notary Public
My Conanissien Expires
May 25, 2023