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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1;

:

UNITED STEEL, PAPER AND

:

FORESTRY, RUBBER,

: COMPLAINT FOR DECLARATORY

MANUFACTURING, ENERGY, ALLIED : RELIEF AND INJUNCTIVE RELIEF

INDUSTRIAL AND SERVICE

:

WORKERS INTERNATIONAL UNION; INTERNATIONAL UNION, UNITED

: CLASS ACTION :

AUTOMOBILE, AEROSPACE AND

:

AGRICULTURAL IMPLEMENT

:

WORKERS OF AMERICA, LOCAL

:

1005; and INTERNATIONAL UNION,

:

UNITED AUTOMOBILE, AEROSPACE :

AND AGRICULTURAL IMPLEMENT

:

WORKERS OF AMERICA, LOCAL 863, :

and OHIO ORGANIZING

:

COLLABORATIVE,

:

:

Plaintiffs,

:

:

vs.

:

:

JON HUSTED, in his official capacity as

:

Secretary of State of Ohio; TIMOTHY M. :

BURKE, in his official capacity as member :

of the Hamilton County Board of Elections :

and on behalf of similarly situated

:

members of county boards of elections;

:

JEFF HASTINGS, in his official capacity

:

as member of the Cuyahoga County Board :

of Elections and on behalf of similarly

:

situated members of county boards of

:

elections; and DOUGLAS J. PREISSE, in :

his official capacity as member of the

:

Franklin County Board of Elections and on :

behalf of similarly situated members of

:

county boards of elections,

:

Defendants.

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Plaintiffs Service Employees International Union Local 1 (“SEIU Local 1”); United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”), Local 1005 (“UAW Local 1005”); UAW, Local 863 (“UAW Local 863”); and Ohio Organizing Collaborative (“OOC”) seek declaratory and injunctive relief against Defendants Ohio Secretary of State Jon Husted, Hamilton County Board of Elections member Timothy M. Burke, Cuyahoga County Board of Elections member Jeff Hastings, Franklin County Board of Elections member Douglas J. Priesse, and a defendant class of the remaining members of the eighty-eight Ohio County Boards of Elections pursuant to 42 U.S.C. §1983 and the Declaratory Judgment Act, 28 U.S.C. §§2201 and 2202. As set forth more fully below, Ohio elections law mandates that elections officials disqualify provisional ballots cast by lawfully registered voters for reasons attributable to poll worker error. The failure of Defendant Ohio state and county elections officials to ensure that all votes in federal, state, and local elections cast by the lawfully registered Ohio voters who are required under Ohio law to cast provisional ballots are counted despite poll worker and election official error has resulted and will continue to result in a denial of the fundamental right to vote of Ohio voters, including Plaintiffs’ members, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the right to vote for Congress protected by Article I, Section II and the Seventeenth Amendment to the United States Constitution, and federal voting statutes.
INTRODUCTION 1. In the wake of the 2000 federal election, the United States Congress passed the Help America Vote Act (“HAVA”), 42 U.S.C. §15301 et seq., which requires states to allow
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individuals to cast “provisional” ballots in the event that the voter believes he or she is registered to vote but for some reason does not appear on the list of registered voters at the polls on election day. Congress expressly stated that HAVA’s provisional voting option is to act as a “fail safe” mechanism to prevent the arbitrary disenfranchisement by state officials of lawfully registered voters in federal elections so long as the state or local officials are able to later confirm verify voters’ registration.
2. In 2006, Ohio enacted one of the nation’s most complicated provisional ballot laws. See Ohio. Rev. Code §3505.181-183. Ohio requires at least thirteen categories of voters to cast provisional, rather than regular ballots. As a result, Ohio voters have cast hundreds of thousands more provisional ballots than voters in states with comparable voting populations. In 2008 alone, Ohio voters cast more than 200,000 provisional ballots out of 5.7 million votes. As a result, with a far smaller population, Ohio ranks second only to California in total number of provisional ballots cast. States with comparable voting populations required voters to cast far fewer provisional ballots in the 2008 election: Michigan (approximately 5 million votes, only 3,797 provisional ballots cast); Virginia (approximately 3,750,000 votes, only 4,575 provisional ballots cast); Wisconsin (3 million votes; only 211 provisional ballots cast).
3. In addition to requiring substantial categories of provisional voters to cast provisional ballots, Ohio law also requires the County Boards of Election to reject provisional ballots for many reasons. In the 2008 election, over 40,000 of Ohio’s provisional ballots were rejected and the numbers in other recent elections have also been substantial. And, a very large number of ballots cast by lawfully registered voters in Ohio have been rejected in every recent election for reasons directly attributable to poll worker error.
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4. The most egregious example of widespread disqualification of ballots of registered voters because of poll worker error results from the provisional ballot statute provision, Ohio Rev. Code §3505.183(b)(4)(ii), which requires the County Boards of Election to reject and not count all votes cast on a provisional ballot if the ballot does not correspond to the voter’s assigned precinct. The Ohio Supreme Court in 2011 in State ex rel. Painter v. Brunner, 128 Ohio St.3d 17 (2011), adopted the most strict possible interpretation of this statute, requiring rejection of all wrong-precinct provisional ballots without exception, even where the County Board of Election knows that poll worker error led to the voter being provided with the wrong ballot. This Ohio law requires rejection not just of the votes cast for precinct-level elections, but all votes on the ballot, including votes for President and Vice President, United States Representative and Senator, Governor, and other state and local races.
5. The unfair application of this law has become all the more egregious in light of Ohio’s increasing consolidation of voting precincts into multi-precinct polling locations, where poll workers give a wrong precinct ballot to a voter who has come to vote in the correct polling location, only to have that ballot disqualified in its entirety, with no notice to the voter, after the election. In some counties, one hundred percent of precincts are now located in multi-precinct polling locations. Ohio ranks at near the top of the nation in use of multi-precinct locations.
6. Ohio law also prohibits County Boards of Elections from counting all votes on provisional ballots cast by registered voters, even if cast in the correct precinct, if the poll worker processes a provisional ballot without ensuring that all required information is recorded on the envelope in which the provisional ballot is submitted, despite the obligation under Ohio law for the poll worker to ensure that the envelope properly be completed.
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7. In elections from 2008 through the March 2012 primary elections, thousands of registered Ohio voters did not have their votes counted as a result of poll worker error under these very strict Ohio provisional ballot disqualification laws. Although the rate of provisional ballots cast and rejected, along with the reasons for rejection, varies by county, a very substantial percentage of all provisional ballots rejected in Ohio are rejected because the voter was provided a precinct ballot that did not correspond to the voter’s assigned precinct, or as a result of the poll workers’ failure to ensure the proper completion of voting forms.
8. Under these Ohio election laws, and the corresponding directives to County Boards of Elections issued by Defendant Secretary of State Husted, in the upcoming November 2012 general election the County Boards of Election will reject thousands of provisional ballots cast by qualified, registered voters because the ballots were cast incorrectly as a result of poll worker error, either because the poll worker provided the would-be voter with the incorrect precinct ballot or because the poll worker failed to ensure that the provisional ballot envelope was completed.
9. The arbitrary disqualification of ballots required by Ohio’s provisional ballot laws results in the unconstitutional and disparate treatment of Ohio voters, and is fundamentally at odds with the purposes of provisional voting. This severe burden on the fundamental right to vote – the right preservative of all rights in our democracy – cannot be justified by any state interest, let alone a compelling interest, and violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution, as well as the right to vote in federal congressional elections protected by Article I, Section 2 and the Seventeenth Amendment, and is fundamentally at odds with the purposes and protection of the federal Voting Rights and Help America Vote Acts.
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10. This Court should enjoin the Ohio Secretary of State and the County Boards of Election from enforcing the “wrong precinct” requirement for rejecting provisional ballots, Ohio Rev. Code §3505.183(B)(4)(a)(ii). The enforcement of this rule creates a real and imminent threat that Plaintiffs’ members and thousands of other voters will be unjustly and unlawfully denied their fundamental right to vote in the upcoming November 2012 election. The Court should further enjoin the Ohio Secretary of State and the members of the County Boards of Election from refusing to count provisional ballots on the basis that the provisional ballot envelope was not completed correctly, or on the basis that, following the election, a County Board of Elections determines without notice to the voter that the voter’s signature on the provisional ballot does not match the signature on file with the Board of Elections.
PARTIES Plaintiffs 11. Plaintiff SEIU Local 1 is a local union affiliated with the Service Employees International Union. SEIU Local 1 currently represents approximately 4,000 workers in Ohio. SEIU Local 1 represents numerous low-wage workers who live in large urban counties and who are registered to vote in Ohio, including many voters who are assigned to vote at multi-precinct voting locations. SEIU Local 1 engages in voter registration, education and other electionrelated activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which SEIU Local 1’s members are associated together and is germane to the union’s interests. Article II of the Constitution of the Service Employees International Union provides that one of the union’s primary purposes is to “engag[e] in all such civic, social, political, [and] legal . . . activities, whether on local [or] national . . . levels,” to advance the
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union’s “standing in the community” and to “further the interests of [the] organization and its membership.”
12. Erin Kramer is the SEIU Local 1 Director for Ohio and Indiana, a member of SEIU Local 1, and a registered voter in Franklin County in Ohio. Ms. Kramer plans to vote in the November 2012 election, and wishes to have her ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
13. Plaintiff USW currently represents more than 47,000 workers in Ohio. USW represents workers who live in every one of Ohio’s eighty-eight counties. A large number of USW’s Ohio membership is registered to vote in Ohio, and many USW members are assigned to vote at multi-precinct voting locations. USW engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purpose for which USW’s members are associated together and is germane to the union’s interests. As set forth in USW’s Constitution, one of the organization’s primary purposes is “[t]o engage in educational, legislative, political, civic, . . . community and other activities,” including with the goals of “protect[ing] and extend[ing] our democratic institutions and civil rights and liberties,” and advancing “the cherished traditions of democracy . . . in the United States.”
14. David McCall is the Director of USW District 1, a member of USW, and a registered voter in Franklin County in Ohio. Mr. McCall plans to vote in the November 2012 election, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
15. Plaintiff UAW Local 1005 currently represents approximately 1,400 active members and 3,000 retired workers in Ohio. UAW Local 1005 represents automobile workers and janitorial workers. UAW Local 1005’s members primarily reside in six Ohio counties:
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Cuyahoga County, Medina County, Lorain County, Lake County, Summit County, and Portage County. A large number of UAW Local 1005’s members are registered to vote in Ohio, and many of these registered voters are assigned to vote at multi-precinct polling locations. UAW Local 1005 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which the union’s members are associated together and is germane to the union’s interests. The UAW Constitution provides in its preamble that “Union members must take seriously their responsibilities as citizens and work, through their union and individually, to realize the goals of participatory democracy,” and, in Article II, states that one of the primary objects of the organization is “[t]o engage in legislative, political, educational, civic . . . and other activities which further . . . the joint interests of the membership of th[e] organization.”
16. Steven Frammartino is the President of UAW Local 1005, a member of that union, and a registered voter in Cuyahoga County in Ohio. Mr. Frammartino previously has been assigned to vote in a multi-precinct polling location and, in voting at such plans to such a location, has experienced the difficulty of determining whether, within a multi-precinct location, one is voting in the correct precinct. Mr. Frammartino intends to vote in the November 2012 elections, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming election.
17. Plaintiff UAW Local 863 currently represents approximately 1,500 active members and 4,500 retired workers, many of whom reside in and around Hamilton County, Ohio. UAW Local 863 represents automobile manufacturing workers employed by Ford in Sharonville, Ohio. Many of UAW Local 863’s members are registered to vote in Ohio, primarily in Hamilton County, and many of the members who are registered to vote are assigned to multi-
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precinct polling locations. In the 2012 primary, Hamilton County assigned more than sixty percent of its precincts to multi-precinct polling locations. UAW Local 863 engages in voter education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which the union’s members are associated together and is germane to the union’s interests. As noted above, the UAW Constitution provides in its preamble that “Union members must take seriously their responsibilities as citizens and work, through their union and individually, to realize the goals of participatory democracy,” and, in Article II, states that one of the primary objects of the organization is “[t]o engage in legislative, political, educational, civic . . . and other activities which further . . . the joint interests of the membership of th[e] organization.”
18. Rick Lawwill is the President of UAW Local 863, a member of that union, and a registered voter in Butler County in Ohio. Mr. Lawwill, in past elections, has been assigned to vote in multi-precinct polling locations and personally has been confused about how, within that multi-precinct location, to determine where properly to cast a ballot that will be counted. Mr. Lawwill plans to vote in the November 2012 elections, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming election.
19. Members of Plaintiffs SEIU Local 1, USW, UAW Local 1005 and UAW Local 863 are registered Ohio voters who have been required to vote provisional ballots in recent Ohio elections, for one of the thirteen reasons required by Ohio law for voting provisional ballots. On information and belief, each of the Plaintiff organizations has members who are registered to vote in Ohio, who will attempt to vote in the upcoming 2012 general election, and who will be required by poll workers to cast provisional ballots. On information and belief, each of the Plaintiff organizations has members who are registered to vote in Ohio, will be required to cast
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provisional ballots in upcoming elections, and will not have their ballots opened and counted by Ohio County Boards of Elections for reasons attributable to poll worker error, including for the reason that the ballot was cast in the “wrong precinct” and based on technical deficiencies in the provisional ballot injury. On information and belief, as a result, these voters will have all votes for federal, state and local elections disqualified, and will be thereby be deprived of their right to vote in upcoming elections.
20. Plaintiff Ohio Organizing Collaborative (“OOC”) is a statewide, nonpartisan community organizing and advocacy association comprised of faith-based, labor, and neighborhood organizations that works to build and support community throughout Ohio. OOC has a voter engagement campaign, the primary goal of which is to ensure that all Ohioans who are eligible and want to vote are able to do so. The OOC devotes staff and financial resources toward this end. As a result of OOC’s understanding that poll worker errors jeopardize the ability of voters who cast provisional ballots on Election Day to have those ballots counted, OOC has decided to dedicate a large portion of its limited staff time and resources this summer and fall to addressing this problem, including by putting additional funds into voter registration efforts and into more broadly-applicable voter education efforts. If Ohio County Boards of Elections were not invalidating provisional ballots because of poll worker error, OOC would be using these limited resources on other organizational priorities.
Defendants 21. Defendant Jon Husted is the current Ohio Secretary of State, a public officer of the State of Ohio and is named as Defendant in this action in his official capacity only. In his capacity as Secretary of State, Defendant Husted is the chief elections official of the State and has supervisory control over local election officials. Ohio Rev. Code §3501.05. He is
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responsible for administering all statewide elections, including for federal office, appointing all members of the County Boards of Elections, issuing instructions and promulgating rules for the conduct of elections, publishing manuals of instructions on elections administration for use at polling places, prescribing uniform forms and notices for use in the conduct of elections, instructing county elections officials with respect to election administration and compelling observance, prescribing training of polling place officials, and certifying statewide election results. Id.
22. Defendant Douglas J. Preisse is currently a member and the chairperson of the Franklin County Board of Elections.
23. Defendant Jeff Hastings is currently a member and the chairperson of the Cuyahoga County Board of Elections.
24. Defendant Timothy M. Burke is currently a member and the chairperson of the Hamilton County Board of Elections.
25. Defendants Preisse, Hastings, and Burke are sued on their own behalves in their official capacities as members and chairpersons of County Boards of Elections, and as representatives of all other similarly situated members of the Ohio County Boards of Elections.
26. There are 88 County Boards of Elections, which are organized pursuant to Ohio Rev. Code §3501.06. As members of these Boards, Defendants Preisse, Hastings and Burke, like other similarly situated members of the Boards throughout the State, are responsible for performing the Boards’ duties that are outlined in Ohio Rev. Code §3501.11, including but not limited to: providing for the delivery of ballots, pollbooks, and other required materials to the polling places, investigation of irregularities or nonperformance of duties by election officers and other persons, receipt of the returns of elections, canvasing of the returns and creation of
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abstracts of the returns, and transmission of the abstracts to the proper authorities, and performance of other duties as prescribed by law or the rules, directives and advisories of the Secretary of State. County Boards of Elections collect, review, count, and reject all provisional ballots in Ohio, pursuant to duties imposed by Ohio Rev. Code §§3505.181-183.
JURISDICTION 27. This action for declaratory and injunctive relief arises under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the United States Constitution; Article I, Section 2 of the United States Constitution; the Seventeenth Amendment to the United States Constitution; the Voting Rights Act of 1965, 42 U.S.C. §1971; the Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §15301 et seq.; 42 U.S.C. §1983; and the Supremacy Clause, U.S. Const., Art. VI, cl. 2. This Court has subject matter jurisdiction of this action under 28 U.S.C. §§1331, 1343(3) & (4), and 42 U.S.C. §§1971(d), and 1973j(f). Plaintiffs’ claims for declaratory and injunctive are authorized under 28 U.S.C. §§2201 and 2202. At all times relevant to this action, Defendants have acted under color of state law.
VENUE 28. Venue in this district and division is proper under 28 U.S.C. §1391(b) because this action is predicated upon a federal question and a substantial part of the events or omissions giving rise to the claims alleged herein occurred, and will continue to occur, in this district. Plaintiffs have members who are registered to vote in the district and who will be subject in the district to the unlawful practices described in this Complaint.
INTRADISTRICT ASSIGNMENT 29. Pursuant to Civil L. R. 3-8, this action should be assigned to the Eastern Division of the Southern District of Ohio, because a substantial part of the events and omissions giving
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rise to the claims herein occurred in counties in the Eastern Division. Plaintiffs SEIU Local 1
and USW have numerous members who live and are registered to vote within the Eastern
Division; and the Defendant Secretary of State has his main offices in the Eastern Division.
FACTUAL ALLEGATIONS
A. Provisional Voting
30. In response to numerous problems in the state administration of federal elections
revealed by the 2000 Presidential election,, Congress enacted the Help America Vote Act of
2002 (“HAVA”), 42 U.S.C. §15301 et seq. HAVA mandates that all States permit certain
individuals to cast provisional ballots. One of Congress’ central purposes in enacting HAVA
was to provide a “fail-safe” mechanism to prevent the disenfranchisement of voters on Election
Day as a result of errors in processing voters by states, where voter registration and eligibility to
vote can be verified after Election Day.
31. HAVA requires that all States permit individual whose name does not appear on
the official list of eligible voters for the polling place to cast a provisional ballot, to be verified
after the election:
If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows:
(1) Notification. An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election. (2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is–
(A) a registered voter in the jurisdiction in which the individual desires to vote; and (B) eligible to vote in that election.
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42 U.S.C. §15482(a).
32. HAVA further provides that “[a]n election official at the polling place shall
transmit” a provisional ballot or the written affirmation to an appropriate State or local election
official for verification. 42 U.S.C. §15482(a)(3). HAVA also requires states to provide a
mechanism to voters to learn whether their votes have been counted. Id. §15482(a)(5)(B).
B. Ohio Law Governing Casting and Counting of Provisional Ballots
33. Pursuant to Ohio law, there are thirteen different statutorily-defined circumstances
in which voters are not permitted to cast regular ballots, and instead must use provisional ballots.
Ohio Rev. Code §3505.181(A)(1)-(13). Only one of these is when the voter is not included in
the precinct list. Id. §3505.181(A)(1).
34. Ohio law governs when, and the manner in which, poll workers should provide
voters with provisional ballots at the polling place. Ohio poll workers must first determine
whether a voter is included on the precinct list of registered voters, and if the voter is required to
vote provisionally for one of the thirteen statutory reasons. Ohio Rev. Code §3505.181(C)(1)
provides:
If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which the individual desires to vote, or if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions.
35. Ohio law further provides that a poll worker should provide a provisional ballot to
a voter not on the precinct list only if the voter has been directed to the proper precinct, and the
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voter “refuses to travel to the polling places for the correct jurisdiction or to the office of the board of elections to cast a ballot.” Ohio Rev. Code §3505.181(C)(2).
36. Once a poll worker determines that an individual must cast a provisional rather than regular ballot, the poll worker is required to provide the voter with an affirmation form and instruct the individual to complete “a written affirmation . . . before an election official at the polling place” stating that she or he is a “registered voter in the jurisdiction in which the individual desires to vote” and “[e]ligible to vote in that election.” Ohio Rev. Code §3505.181(B)(2)(a)-(b).
37. Ohio has created a uniform provisional ballot affirmation form to be printed by all 88 Boards on provisional ballot envelopes. Ohio poll workers have the duty to make sure the voter fills out the provisional ballot affirmation correctly, and must verify that the affirmation has been completed before providing a voter with a provisional ballot. Ohio Rev. Code §§3505.181(B)(6), 3505.182, 3505.183(B)(1); see also Skaggs ex rel. Skaggs v. Brunner, 588 F.Supp.2d 828, 836 (S.D. Ohio 2008).
38. The provisional ballot envelopes, together with the ballots inside those envelopes, are transmitted to the Boards of Elections for their post-election determination of whether “individual[s’] provisional ballot[s] shall be counted as a vote[s] in [the] election.” Ohio Rev. Code §3505.181(B)(4); see also id. §3501.1(L), 3505.183(D). This determination is made pursuant to the requirements set forth in Ohio provisional ballot laws and happens several days after the election, when the results of the regular ballot voting are known. Id. §3505.181(B)(1), (E)(3).
39. To determine the validity of a provisional ballot, the County Board of Elections first must examine its records to determine whether the individual who cast the provisional ballot
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is registered and eligible to vote in the election. Id. §3505.183(B)(1). The Board also examines the information provided by the voter on his or her provisional ballot affirmation statement. Id.
40. After disqualifying all those provisional ballots that cannot be determined to have been cast by registered voters, the Boards then disqualify ballots for other reasons. Ohio Rev. Code §3505.183(B)(4)(a) provides that “[i]f, in examining a provisional ballot affirmation” and certain additional information provided pursuant to the statute, “the board determines that any of the following applies, the provisional ballot envelope shall not be opened, and the ballot shall not be counted: . . .
(ii) The individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot. (iii) The individual did not provide all of the information required under division (B)(1) of this section in the affirmation that the individual executed at the time the individual cast the provisional ballot.” 41. Additionally, Ohio law provides that if, in the Board of Elections’ examination of the provisional ballot affirmation and additional information provided pursuant to statute, the board is “unable to determine” whether “the individual named in the affirmation is eligible to cast a ballot in the precinct . . . in which the individual cast the provisional ballot,” then the “provisional ballot envelope shall not be opened, and the ballot shall not be counted.” Ohio Rev. Code §3505.183(B)(4)(b)(ii). 42. Ohio law, as interpreted by the Ohio Supreme Court in Painter, prohibits County Boards of Election from investigating or counting provisional ballots cast in the incorrect precinct for reasons attributable to poll worker error. 128 Ohio St.3d at 28, 32. Thus, even when a voter is required to cast provisional ballots during early voting at a Board of Elections office,
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and is handed the wrong ballot because Board staff mistakenly looks up the voter’s precinct, Painter requires a Board to ignore that undeniable error and reject the vote. Id. at 32.
43. Similarly, Ohio law prohibits County Boards of Elections from counting provisional ballots that contain incomplete ballot affirmations. See State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506 (2008); see also Ohio Rev. Code §3505.183(B)(4)(a)(iii).
44. In recent elections, the Boards have not recognized any exception to the rule that they must reject provisional ballots that are in envelopes containing incomplete affirmations that are the result of poll worker error. And Secretary of State Husted has instructed Boards to reject provisional ballots on grounds that a voter’s name or signature is in the wrong place on the ballot envelope.
45. Ohio Rev. Code §3505.28 provides that “no ballot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.”
46. Pursuant to a consent decree entered in April 19, 2010 by the State of Ohio, the Ohio Secretary of State, in Northeast Ohio Coalition for the Homeless v. Brunner (“NEOCH”), S.D. Ohio (E.D.) Case No. C2-06-896, and effective through 2013, County Boards of Elections are prohibited from rejecting provisional ballots cast by voters using the last four digits of their Social Security numbers as identification to vote, where the ballots are cast in the wrong precinct or contain technical affirmation errors “for reasons attributable to poll worker error.” B. Large Numbers of Provisional Ballots Cast and Rejected in Ohio
47. In recent general elections, Ohio County Boards of Elections have rejected large numbers of provisional ballots of lawfully registered voters.
48. A very substantial percentage of the rejected provisional ballots in Ohio in recent elections have resulted from voters being given the wrong precinct ballot, including within the
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proper polling location. Under Ohio law, County Boards first determined that these are lawfully registered voters before rejecting the ballots for corresponding to the wrong precinct for that voter.
49. In the 2008 election, Ohio County Boards of Elections rejected more than 14,000 provisional ballots on the basis that the ballot had been cast in the wrong precinct or county.
50. In the most recent general election in 2011, Ohio voters cast a total of 3,380 provisional ballots in the correct polling location but were given the wrong precinct ballot. Of these, 1,826 ballots were rejected, and another 1,554 ballots were counted by the County Boards of Elections only as a result of the Consent Decree in NEOCH v. Husted. In 2011, County Boards of Elections also rejected an additional 2,392 provisional ballots cast by voters in the wrong precinct and wrong polling place.
51. When the county Boards of Elections rejected these ballots, they did not open or count any of the votes on the ballot, regardless of whether precinct lines were relevant to the race, including votes for federal and statewide office. Upon information and belief, precinct divisions within a county are irrelevant to the majority of federal and state races on Ohio ballots.
52. Substantial numbers of provisional ballots also have been rejected by County Boards of Elections when a voter does not sign the provisional ballot envelope; when a voter or poll worker does not print the voter’s name on the provisional ballot envelope; when a printed name or signature is in the wrong place on the provisional ballot envelope; and when, following the election, a County Board of Elections determines that the voter signature on the provisional ballot envelope does not match the signature on the voter’s registration form. Under Ohio law, County Boards first determine that these ballots were cast by lawfully registered voters before rejecting the ballots for incomplete affirmations.
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53. In the 2011 election, County Boards of Elections rejected 240 provisional ballots on the basis that the provisional ballot envelopes were signed but were missing a printed name; 304 provisional ballots on the basis that the provisional ballot envelopes had a printed name but were missing a voter signature; 23 provisional ballots on which the County Board of Elections determined after the election that the signatures on the provisional ballot envelopes did not match the signature exemplars held by the Board; and 1 provisional ballot on the basis that the printed name or signature was in the wrong place on the envelope.
54. The rates by which provisional ballots are rejected for being the wrong precinct ballot or for technical ballot envelope flaws vary arbitrarily and widely from county to county, polling location to polling location, and precinct to precinct, resulting in the arbitrary and unequal counting and rejecting of the ballots of lawfully registered Ohio voters.
55. Ohio County Boards of Elections’ consideration of poll worker error with respect to provisional ballots cast by individuals using Social Security numbers as identification but refusal to consider poll worker error with respect to provisional ballots cast by individuals using any other form of identification results in the arbitrary and unequal counting and rejecting of the provisional ballots of lawfully registered Ohio voters. C. Voters’ Provisional Ballots Are Rejected for Reasons Attributable to Poll Worker
Error 56. Statewide evidence from recent elections demonstrates that: a) poll workers control whether and how voters receive and cast provisional ballots; b) virtually all of the “wrong precinct” ballots rejected by county boards of elections were given to voters as a result of poll worker error; and c) County Boards of Elections are well aware of the extent and nature of poll worker error that leads to wrong precinct ballots and technical flaws in ballot affirmations.
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57. When a voter appears at polling location on Election Day in any county in Ohio, the voter is processed by various poll workers before being allowed to vote.
58. Statewide evidence demonstrates that poll workers are giving voters the incorrect precinct ballots without having complied with the statutory duty to direct a voter to the correct precinct before providing the voter with a provisional ballot.
59. Voters in multi-precinct locations throughout Ohio end up with wrong-precinct ballots due to poll worker error, despite having arrived at the proper polling location. In many multi-precinct locations, voters must first check in with poll workers whose duty it is to determine which precinct ballot the voter is supposed to vote. If the voter is given an incorrect ballot or incorrect information that another poll worker uses to retrieve the incorrect ballot, the fact that this voter casts an invalid ballot is due entirely to poll worker error, not because the voter chose to vote “in the wrong precinct.” Other polling locations process all provisional voters at one table, and the poll worker error is the only reason a voter can be given the wrong ballot at those tables.
60. When voters cast provisional ballots at a Board’s office, it is practically impossible for the voter, through some fault of the voter’s, to cast a ballot in the incorrect precinct because a poll worker will provide the voter with the ballot to be cast. Yet, for example, in 2011 in Cuyahoga County, the Board rejected 47 wrong precinct provisional ballots cast “in house” at the Board’s office on the basis that Painter required such rejection.
61. Evidence from counties throughout Ohio reflects that poll workers err in a number of ways in processing voters’ provisional ballots, beginning from the time the voter arrives at a polling location and continuing through the voter’s completion of the provisional ballot envelope and ballot.
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62. Poll workers throughout Ohio misunderstand Ohio law and therefore give provisional ballots to anyone not on the precinct register without attempting to discern the correct precinct, in a misguided effort to help people vote.
63. Poll workers throughout Ohio mistakenly think the voter is in the correct precinct, even when they are not able to locate the voter in the poll book.
64. Poll workers throughout Ohio direct voters to the wrong precincts; or, within a multi-precinct location where poll workers have access to ballot for several precincts, give voters the wrong precinct ballot.
65. Poll workers throughout Ohio fail to give correct precinct information because they make errors in reading the counties’ complicated street guides, particularly where streets are split between precincts by odd and even addresses and where there may be more than one residence with the same street number and street name within a county.
66. Poll workers throughout Ohio are not available to inform voters of where and how they should cast their ballots.
67. Poll workers throughout Ohio do not inform voters that if they vote a provisional ballot in the wrong precinct, it will not count.
68. Poll workers throughout Ohio direct voters to vote provisionally without instructing voters on how and/or where they could cast a regular ballot or a correct precinct provisional ballot.
69. Poll workers throughout Ohio provide voters with provisional ballots without first informing voters of their correct precinct and without voters refusing to cast a ballot in that correct precinct.
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70. Poll workers throughout Ohio fail to ensure that voters correctly sign and print their names on provisional ballot envelopes before casting a provisional ballot.
71. Poll workers throughout Ohio borrow ballots or ballot envelopes from another precinct table because they run out of the necessary materials.
72. On information and belief, virtually all of the voters whose provisional ballots are rejected by County Boards of Elections because they were cast in incorrect precincts, were not properly informed of their correct precincts and did not refuse to travel to those precincts before casting their ballots.
73. On information and belief, virtually all of the voters whose provisional ballot envelopes are rejected by County Boards of Elections for missing a signature or a printed name, or because there is a misplaced signature or printed name, were not informed by poll workers that they had failed fully or properly to complete the envelope before receiving provisional ballots from the poll workers.
74. When meeting to consider provisional ballots cast in elections from the 2008 general election through the recent 2012 primary, numerous County Boards of Elections have acknowledged that poll worker error results in voters being given wrong precinct ballots and in processing ballots that contain incomplete affirmation forms.
75. Despite acknowledging the existence of poll worker error, County Boards of Elections are required by Ohio law to reject provisional ballots cast by registered voters on the basis that the ballots are cast in the incorrect precinct and contain incomplete or incorrect affirmations and provisional ballot envelopes.
76. County Boards of Elections also use a variety of means to document voter and poll worker questions, problems, and concerns on Election Day, including incident reports and
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logs. These documents from counties throughout Ohio for the recent 2008 through 2012 elections demonstrate that poll worker errors lead to voters casting provisional ballots on incorrect precinct ballot forms and to voters failing to complete the affirmation and provisional ballot envelopes. On information and belief, other documents in possession and control of the County Boards of Elections demonstrate the extent to which poll worker error exists and results in provisional ballots being disqualified.
77. In taking the actions described herein, Defendants have acted and will be acting under color of state law.
CLASS DEFINITION AND ALLEGATIONS 78. Plaintiffs bring this case as a defendants’ class action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure against a proposed defendant class of “all members of County Boards of Elections.” Defendants Burke, Hastings and Preisse (hereinafter “named County Defendants”) are members of the proposed class of all members of County Boards of Elections. 79. This action is appropriately certified as a defendants’ class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure because: (i) the class is so numerous that joinder of all members is impracticable; (ii) there are questions of law or fact common to the class; (iii) the defenses of the representative parties are likely typical of the defenses of the class; (iv) the representative parties will fairly and adequately protect the interests of the class; and (v) injunctive relief and corresponding declaratory relief is appropriate with respect to the defendant class as a whole.
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80. The proposed defendant class is so numerous that separate joinder of each class member is impracticable. Each of Ohio’s 88 County Boards of Elections has four members. Thus, the proposed class of members of County Boards of Elections consists of 352 individuals.
81. There are questions of fact and law common to the claims and defenses of the named County Defendants and all members of the Class of members of County Boards of Elections. These questions include, but are not limited to, the following:
(a) Whether Ohio’s provisional ballot counting statute, Ohio Rev. Code §3505.183(B)(4)(a)(ii), which requires members of County Boards of Elections not to open and count provisional ballots cast by individuals in an incorrect precinct as a result of poll worker error, is consistent with the U.S. Constitution and federal voting laws;
(b) Whether Ohio’s provisional ballot counting statute, Ohio Rev. Code §3505.183(B)(4)(a)(iii), which requires members of County Boards of Elections not to open and count provisional ballots in ballot envelopes that contain incomplete or incorrect ballot affirmations as a result of poll worker error, is consistent with the U.S. Constitution and federal voting laws;
(c) Whether declaratory relief, holding unconstitutional the enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(ii) and (iii) where the reasons for rejection of provisional ballots are attributable to poll worker error, is appropriate; and
(d) Whether injunctive relief, requiring members of the County Boards of Elections, absent affirmative evidence that county poll workers have complied with their statutory duties, to open and count provisional ballots that are cast in incorrect precincts and in ballot envelopes that have incomplete or incorrect affirmations, is appropriate.
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82. The claims or defenses of the named County Defendants are identical to those of all class members. The named County Defendants, like every other member of the County Boards of Elections, are charged with following Ohio statutory law and Ohio law as interpreted by the Ohio Supreme Court, and with implementing directives of the Defendant Secretary of State. The named County Defendants, like every other member of every County Board of Elections in Ohio, are statutorily required to reject provisional ballots cast by registered voters that are cast in an incorrect precinct, and to reject such ballots where the ballots’ envelopes contain incomplete or incomplete affirmations. Thus, the defenses of the named defendants are typical of, indeed identical to, that of class members because the named County Defendants and all class members are all charged with implementing the same unconstitutional state law.
83. The named County Defendants can fairly and adequately represent the interests of the class because their interests are identical to those of class members. As public officials, the named County Defendants will properly defend this action.
84. Because the predominant thrust of Plaintiffs’ claims is that the provisional ballotcounting statute is unconstitutional and because Plaintiffs seek identical relief against each class member, certification of a defendant class is appropriate under Rule 23(b)(2) of the Federal Rules of Civil Procedure.
FIRST CLAIM FOR RELIEF Rejection of “Wrong Precinct” Ballots – Severe Burden on Fundamental Right to Vote in Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983 85. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
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86. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots without exception, as set forth in Ohio Rev. Code §3505.183(B)(4)(a)(ii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decision of Painter, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by causing a severe and arbitrary denial of the fundamental right to vote of registered Ohio voters. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this rule are rejected for reasons attributable to poll worker error.
87. Defendants’ actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
SECOND CLAIM FOR RELIEF Rejection of Ballots for “Technical Deficiencies” in Ballot Envelope –
Severe Burden on Fundamental Right to Vote in Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983
88. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
89. Ohio’s strict provisional ballot law requiring disqualification of ballots when the provisional ballot envelope contains sufficient information for the county to identify the lawfully registered voter but when that envelope is missing or has a misplaced voter signature or printed name, without exception, as set forth in Ohio Rev. Code §3505.183(B)(4)(a)(iii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by causing the severe and arbitrary
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denial of the fundamental right to vote of registered Ohio voters. No legitimate state interest justifies such an extraordinary burden on the right to vote where virtually all ballots rejected pursuant to this rule were processed by poll workers who failed to comply with their duty to ensure the completion of Ohio’s voting forms.
90. Defendants’ actions implementing the Ohio state law prohibiting the counting of provisional ballots with “technical deficiencies” in the ballot envelope deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
THIRD CLAIM FOR RELIEF Unnecessary Burden on the Right to Vote for U.S. Representative– Violation of Article I, Section Two of the United States Constitution;
42 U.S.C. §1983 91. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 92. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots and ballots with technical flaws in the ballot envelope form, without exception, as set forth in Ohio Rev. Code §§3505.183(B)(4)(a)(ii)-(iii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, imposes an unnecessary burden on the right to cast and have counted a ballot for United States Representative in violation of Article I, Section 2 of the United States Constitution. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this law are rejected for reasons attributable to poll worker error.
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93. Defendants’ actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
FOURTH CLAIM FOR RELIEF Unnecessary Burden on the Right to Vote for U.S. Senator– Violation of the Seventeenth Amendment of the United States Constitution;
42 U.S.C. §1983 94. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 95. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots and ballots with technical flaws in the ballot envelope form, without exception, as set forth in Ohio Rev. Code §§3505.183(B)(4)(a)(ii)-(iii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, imposes an unnecessary burden on the right to cast and have counted a ballot for United States Senator in violation of the Seventeenth Amendment to the United States Constitution. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this law are rejected for reasons attributable to poll worker error. 96. Defendants’ actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
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FIFTH CLAIM FOR RELIEF Unequal Treatment of Provisional Voters – Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983 97. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 98. Plaintiffs’ members and other registered voters required by Ohio law to cast provisional ballots are treated arbitrarily and unequally from county to county, polling location to polling location, and precinct to precinct with respect to the counting and rejection of provisional ballots based on: the wrong precinct rule, incomplete or misplaced information on the provisional ballot envelope, and comparison of the voter’s signature on the provisional ballot envelope to a signature previously provided to the Board by the voter. These voters are subject to inconsistent practices by poll workers and County Boards of Elections from county to county. This arbitrary rejection of voters’ ballots violates the uniformity required by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV. 99. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
SIXTH CLAIM FOR RELIEF Unequal Treatment of Provisional Voters Based on Form of Identification –
Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983
100. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
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101. Plaintiffs’ members and other individuals required by Ohio law to vote provisional ballots are treated differently based on the type of identification they use to vote. Ohio County Boards of Elections’ consideration of poll worker error with respect to ballots cast by individuals using Social Security numbers as identification but refusal to consider poll worker error with respect to ballots cast by individuals using any other form of identification results in the arbitrary and unequal counting and rejecting of the ballots of lawfully registered Ohio voters in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
102. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
SEVENTH CLAIM FOR RELIEF Violation of the Substantive Due Process Clause of the Fourteenth Amendment
of the United States Constitution; 42 U.S.C. §1983 103. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 104. Ohio’s strict provisional ballot laws requiring disqualification of entire ballots of lawfully registered voters for reasons attributable to poll worker error, including the rejection of and refusal to count wrong precinct provisional ballots and provisional ballots with “technical deficiencies” in the ballot envelopes, renders Ohio’s provisional ballot laws fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
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105. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
EIGHTH CLAIM FOR RELIEF Violation of the Procedural Due Process Clause of the Fourteenth Amendment
of the United States Constitution; 42 U.S.C. §1983 106. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 107. Defendants’ rejection of provisional ballots without notice to voters on the basis of a Board’s post-election determination that a voter’s signature on a provisional ballot envelope does not match the signature previously provided by the voter to the Board violates the Procedural Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV. 108. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
NINTH CLAIM FOR RELIEF Violation of the Voting Rights Act of 1965, 42 U.S.C. §1971; 42 U.S.C. §1983;
Violation of Supremacy Clause of the United States Constitution 109. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 110. Under Section 1971(a)(2) of the Voting Rights Act, “[n]o person acting under color of law shall . . . (B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act
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requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such an election.”
111. Ohio law requires the denial of the right of registered voters to vote because of ballot and ballot envelope errors that are not material to determining whether the voters are qualified to vote in the election contests on the ballot:
112. When voters cast provisional ballots in the wrong precinct as a result of poll worker error, the fact that the ballots were cast in the wrong precinct is not material to determining the voters’ qualifications to vote in the election.
113. When voters cast provisional ballots that have technical deficiencies in the ballot affirmations and envelopes as a result of poll worker error, those deficiencies are not material to determining the voters’ qualifications to vote in the election.
114. Defendants’ actions pursuant to this Ohio law, violate Section 1971(a)(2) of the Voting Rights Act.
115. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the federal laws of the United States, in violation of 42 U.S.C. §1983, and are inconsistent with Section 1971(a)(2) of the Voting Rights Act and are preempted by the Supremacy Clause of the U.S. Const., art. IV.
TENTH CLAIM FOR RELIEF Violation of Rights Granted Under the Help America Vote Act of 2002, 42 U.S.C. §15301 et seq.; Violation of Supremacy Clause of Article 6 of the United States
Constitution; 42 U.S.C. §1983 116. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
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117. Under HAVA, states must provide a “fail safe” voting mechanism. HAVA requires that a voter be given the opportunity to vote provisionally in a federal election if the individual affirms in writing that she is “a registered voter in the jurisdiction in which the individual desires to vote,” and that she is “eligible to vote in that election.” 42 U.S.C. §15482(a)(2)(A)-(B).
118. HAVA’s provisional voting requirements are intended to approximate conditions in which voters interact with a voting system free of human error. Thus, “[i]f a person presents at a polling place and seeks to vote, and if that person would be allowed to vote by an honest election worker with perfect knowledge of the facts and law, then the person’s vote should count.” Sandusky County Dem. Pty. v. Blackwell, 387 F.3d 565, 570 (6th Cir. 2004).
119. Under HAVA, Plaintiffs’ members who are required by Ohio to cast provisional ballots have a federal right to have those ballots counted if an election official acting with perfect knowledge of the facts and law would have determined the members were eligible to vote in the election.
120. Ohio’s refusal to count provisional ballots of registered Ohio voters for reasons that are attributable to poll worker error directly contravenes the purpose of HAVA and its mandate that an individual be permitted to cast provisional ballots that will be counted if an election worker had had “perfect knowledge” at the time the individual sought to cast a regular ballot.
121. Defendants’ actions therefore deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the federal law, in violation of 42 U.S.C. §1983, are inconsistent with and stand as an obstacle to the purposes of HAVA, and are preempted by the Supremacy Clause of the U.S. Const., art. IV.
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IRREPARABLE HARM 122. Defendants’ actions, as alleged herein, have resulted in, and will continue to result in, irreparable injury to Ohio voters including Plaintiffs and their members for which Plaintiffs and their members have no plain, speedy, or adequate remedy at law. Some of Plaintiffs’ members will suffer irreparable injury in that they will be deprived of their right to cast a ballot in upcoming elections that will be counted. 123. Defendants’ actions will also result in harm to the Plaintiff organizations, which dedicate significant resources to voter education and voter registration in Ohio, efforts that will be undermined by Defendants’ unlawful conduct. Additionally, Plaintiffs will be harmed by Defendants’ unlawful conduct because they will need to divert limited resources to address the effects of that conduct. 124. The balance of harms favors entering an injunction because the harm suffered by individuals denied their fundamental right to vote in violation of the Constitution and federal law outweighs any potential interest Defendants may articulate in support of rejecting the votes of lawfully registered Ohio voters. No such legitimate interest exists to support this strict disqualification law. It is in the public interest that the Court grant an injunction to ensure that Plaintiffs, their members, and the electorate of Ohio that lawfully registered voters not have their votes discarded as a result of poll worker error.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies: a) Assume jurisdiction over this action and maintain continuing jurisdiction until Defendants are in full compliance with every order of this Court;
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b) Certify this case as a defendants’ class action against a class of all members of County Board of Elections;
c) Declare that Ohio Rev. Code §3505.183(B)(4)(a)(ii) and Defendants’ enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(ii) violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, Article I, Section 2, and the Seventeenth Amendment of the U.S. Constitution, the Voting Rights Act, the Help America Vote Act, and 42 U.S.C. §1983, and are preempted by the Supremacy Clause;
d) Declare that Ohio Rev. Code §3505.183(B)(4)(a)(iii) and Defendants’ enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(iii) with respect to missing or misplaced voter and poll worker signatures and printed names on the provisional ballot envelope violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, Article I, Section 2, and the Seventeenth Amendment of the U.S. Constitution, the Voting Rights Act, the Help America Vote Act, and 42 U.S.C. §1983, and are preempted by the Supremacy Clause;
e) Declare that Defendant County Boards of Elections’ rejection of provisional ballots without notice to voters on the basis a voter’s signature does not match the voter’s signature previously submitted by the voter to the Board violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, and 42 U.S.C. §1983;
f) Grant a preliminary and permanent injunction enjoining Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them from:
i) implementing Ohio Rev. Code §3505.183(B)(4)(a)(ii) to prohibit the counting of a provisional ballot cast by a lawfully registered voter in a 35

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precinct other than the one to which the voter is assigned, absent specific affirmative evidence from the poll worker that the voter was directed to the polling place for the precinct in which he or she appeared to be eligible to vote, was informed that his or her vote would not count, and insisted on voting an invalid ballot in the wrong precinct; ii) implementing Ohio Rev. Code §3505.183(B)(4)(a)(iii) to prohibit the counting of a provisional ballot cast by a lawfully registered voter that is missing or has a misplaced signature or printed name, absent specific affirmative evidence that the poll worker complied with his or her statutory duty and properly instructed the voter that the affirmation form was incomplete and the voter refused to complete the form; and iii) rejecting any provisional ballots without notice to the voters on the grounds that the signature on the provisional ballot envelope does not match a signature previously provided by the voter to a Board of Elections; g) Award the Plaintiffs the costs of this action and reasonable attorneys’ fees pursuant to 42 U.S.C. §§1988, 12133, 12205; and as otherwise may be allowed by law; and h) All such other and further relief as the Court deems to be just and equitable.

Dated: June 22, 2012

Respectfully submitted
/s/Michael J. Hunter MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230
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Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com Attorneys for All Plaintiffs STEPHEN P. BERZON (pro hac vice application pending) STACEY M. LEYTON (pro hac vice application pending) BARBARA J. CHISHOLM (pro hac vice application pending) DANIELLE LEONARD (pro hac vice application pending) Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, and UAW Local 863 PENDA HAIR (pro hac vice application pending) DONITA JUDGE (pro hac vice application pending) UZOMA NKWONTA (pro hac vice application pending) Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org Attorneys for Plaintiff OOC
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 Case: 2:12-cv-00562-ALM-TPK Doc #: 25 Filed: 06/29/12 Page: 1 of 19 PAGEID #: 3525

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1, et :

al.,

: JUDGE ALGENON L. MARBLEY

:

Plaintiffs

: Magistrate Judge Terence P. Kemp

:

vs.

: PLAINTIFFS’ MOTION FOR

: CERTIFICATION OF DEFENDANT

JON HUSTED, et al.,

: CLASS; MEMORANDUM OF LAW IN

: SUPPORT OF PLAINTIFFS’ MOTION

Defendants.

: FOR CERTIFICATION OF

: DEFENDANT CLASS

PLAINTIFFS’ MOTION FOR CERTIFICATION OF DEFENDANT CLASS Plaintiffs Service Employees International Union, Local 1 (“SEIU Local 1”), United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”), Locals 863 and 1005 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (collectively “UAW Locals”), and the Ohio Organizing Collaborative (“OOC”), hereby move this Court for an order certifying a defendant class comprising the 352 members of Ohio’s 88 County Boards of Elections, for the following reasons. Plaintiffs contend that Ohio law requires Defendants Ohio Secretary of State Jon Husted and members of the Ohio County Boards of Elections (“County Boards”) to deny Ohio voters the right to have their provisional ballots counted as a result of poll worker error, in violation of the United States Constitution and federal voting laws. Ohio law imposes the duty to count or reject provisional ballots cast by Ohio voters on the members of these Boards of Elections, with the Secretary of State intervening only in the event of a tie vote. Ohio Rev. Code §§3501.11(X),
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3505.183. Any injunctive relief requiring counting of ballots in the upcoming 2012 elections should run against both the Secretary of State and the members of the County Boards. Thus, in addition to suing Secretary of State Jon Husted, Plaintiffs bring this case as a defendants’ class action pursuant to Rule 23 of the Federal Rules of Civil Procedure against a proposed defendant class of all members of Ohio’s County Boards of Elections. Given that Plaintiffs have moved the Court for preliminary injunctive relief (see Docket No. 4), Plaintiffs ask this Court at the same time to rule on this request for certification of a defendant class, to ensure the uniform implementation of any injunctive relief in all 88 counties during those upcoming elections.
Defendants Timothy M. Burke, Jeff Hastings, and Douglas J. Preisse (hereinafter “named County Defendants”) are members of the proposed class of all members of County Boards of Elections. Complaint ¶¶22-25. The proposed defendant class satisfies the requirements of Rule 23(a) of the Federal Rules of Civil Procedure, because: (i) the class is so numerous that joinder of all County Board members is impracticable; (ii) there are questions of law or fact common to the class; (iii) the claims or defenses of the named County Defendants are likely typical of the claims or defenses of the class; and (iv) the named County Defendants will fairly and adequately protect the interests of the class. In addition, this action is appropriately certified as a defendants’ class action pursuant to Rule 23(b)(1)(A), Rule 23(b)(1)(B), and Rule 23(b)(2).
First, the proposed defendant class is so numerous that separate joinder of each class member is impracticable. Each of Ohio’s 88 County Boards of Elections has four members. Ohio Rev. Code §3501.06. Thus, the proposed class of members of County Boards of Elections consists of 352 individuals.
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Second, there are questions of fact and law common to the claims and defenses of the named County Defendants and all members of the class of members of County Boards of Elections. These questions include, but are not limited to, the following:
(a) Whether Ohio’s provisional ballot counting statute, Ohio Rev. Code §3505.183(B)(4)(a)(ii), which requires members of County Boards of Elections not to open and count provisional ballots cast by individuals in an incorrect precinct as a result of poll worker error, is consistent with the U.S. Constitution and federal voting laws;
(b) Whether Ohio’s provisional ballot counting statute, Ohio Rev. Code §3505.183(B)(4)(a)(iii), which requires members of County Boards of Elections not to open and count provisional ballots in ballot envelopes that contain incomplete or incorrect ballot affirmations as a result of poll worker error, is consistent with the U.S. Constitution and federal voting laws;
(c) Whether declaratory relief, holding unconstitutional the enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(ii) and (iii) where the reasons for rejection of provisional ballots are attributable to poll worker error, is appropriate; and
(d) Whether statewide uniform injunctive relief, requiring members of all County Boards of Elections, absent affirmative evidence that county poll workers have complied with their statutory duties, to open and count provisional ballots that are cast in incorrect precincts and in ballot envelopes that have incomplete or incorrect affirmations, is appropriate.
Third, the claims or defenses of the named County Defendants are identical to those of all class members. The named County Defendants, like every other member of the County Boards
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of Elections across the State, are charged with following Ohio election law, and with implementing directives of the Defendant Secretary of State. Ohio Rev. Code §3501.11. The named County Defendants, like every other member of every County Board of Elections in Ohio, are required by Ohio law to reject provisional ballots cast by registered voters that are cast in an incorrect precinct, and to reject such ballots where the ballots’ envelopes contain incomplete affirmations. Ohio Rev. Code §3505.183(B)(4)(a)(ii) and (iii); State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782 (2011). Thus, the defenses of the named County Defendants are typical of, and indeed identical to, those of class members, because the named County Defendants and all class members are all charged with implementing the same unconstitutional state law.
Fourth, the named County Defendants can fairly and adequately represent the interests of the class because their interests are identical to those of class members. As public officials, the named County Defendants will properly defend this action.
Certification of a defendant class at this time is appropriate under Rule 23(b)(1)(A) of the Federal Rules of Civil Procedure, because the prosecution of separate actions against the members of each Ohio county’s Board of Elections could create a risk of inconsistent or varying adjudications concerning the counting of ballots by individual Boards of Elections that could establish incompatible standards of conduct. The uniform implementation of statewide ballot counting standards is constitutionally necessary to avoid equal protection violations. Bush v. Gore, 531 U.S. 98, 107 (2000); see also Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219 (6th Cir. 2011); Hunter v. Hamilton County Bd. of Elections, No. 1:10CV820, 2012 WL 404786 (S.D. Ohio Feb. 8, 2012).
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Certification of a defendant class action is also independently appropriate under Rule

23(b)(1)(B), because without any separately prosecuted actions against the members of the

individual County Boards, any judgment in this action against the named County Defendants on

a non-class basis would, as a practical matter, be dispositive of the interests of the other members

of the proposed class. Constitutional equal protection principles require all members of County

Boards of Elections to apply the same rules when providing and counting provisional ballots.

Bush, 531 U.S. at 107. Even if this case were brought only against the three named County

Defendants, County Boards of Elections across the State would risk running afoul of the

Constitution were they to count ballots in a manner different from any court order in this case.

Finally, certification of a defendant class is independently appropriate under Rule

23(b)(2), because the predominant thrust of Plaintiffs’ claims is that the provisional ballot-

counting statute is unconstitutional and because Plaintiffs seek identical injunctive relief against

each class member.

For these reasons, and for the reasons set forth in the accompanying Memorandum of

Law, Plaintiffs respectfully request that the Court certify a defendant class of all members of

Ohio’s County Boards of Elections.

Dated: June 29, 2012

Respectfully submitted,

/s/Michael J. Hunter MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com

Attorneys for All Plaintiffs

STEPHEN P. BERZON, pro hac vice pending

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STACEY M. LEYTON, pro hac vice pending BARBARA J. CHISHOLM, pro hac vice pending DANIELLE LEONARD, pro hac vice pending Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, and UAW Local 863 PENDA HAIR, pro hac vice pending DONITA JUDGE, pro hac vice pending UZOMA NKWONTA, pro hac vice pending Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org Attorneys for Plaintiff OOC
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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR CERTIFICATION OF DEFENDANT CLASS Plaintiffs contend that Ohio’s provisional ballot laws, which require the rejection of thousands of ballots cast by lawful voters in the upcoming November 2012 elections, violate the United States Constitution and federal voting laws. Ohio law delegates to the members of the 88 Ohio County Boards of Elections the duty to count and reject provisional ballots cast by Ohio voters. Ohio Rev. Code §3505.183. In addition to suing Ohio Secretary of State Jon Husted, the chief election official, who can appoint, remove and break tie votes of those Boards, Plaintiffs have brought this action against a proposed defendant class of “all members of County Boards of Elections” in Ohio. Plaintiffs respectfully request the prompt resolution of this motion along with Plaintiffs’ motion for preliminary injunction (Docket No. 4), so that any potential injunctive relief will bind all members of the Boards, and to ensure that voters are subject to one uniform standard for the counting of provisional ballots statewide during the upcoming 2012 elections. This case, a constitutional challenge to a state statute administered by local officials, presents the classic case for a defendants’ class action. See, e.g., CBS, Inc. v. Smith, 681 F.Supp. 794, 801-02 (S.D. Fla. 1988) (certifying defendant class of all county Supervisors of Elections in Florida in constitutional challenge to state election law in connection with issuance of preliminary injunction against enforcement of law); NBC, Inc. v. Cleland, 697 F.Supp. 1204, 1215-17 (N.D. Ga. 1988) (certifying defendant class of all county Superintendents of Elections in Georgia in constitutional challenge to state election law); Akron Ctr. for Reprod. Health v. Rosen, 110 F.R.D. 576, 579, 583 (N.D. Ohio 1986) (certifying defendant class of city prosecutors in constitutional challenge to state abortion parental notification law; holding that “since all potential defendants are required to enforce the unconstitutional statute, certification of the defendant class is warranted”).
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Federal Rule of Civil Procedure 23(a) establishes four prerequisites to a class action: numerosity, commonality, typicality, and adequacy of representation. A class action can then be maintained under any of the three subparts of Rule 23(b). Under Rule 23(b)(1)(A), a class action may be maintained where “inconsistent or varying adjudications with respect to individual class members . . . would establish incompatible standards of conduct for the party opposing the class.” Independently, under Rule 23(b)(1)(B), a class action may be maintained where “adjudications with respect to individual class members . . . , as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.” Finally, under Rule 23(b)(2), a class action may alternatively be maintained where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” This case meets each of the requirements for a class action under Federal Rule of Civil Procedure 23(a), and a class should be certified under Rule 23(b)(1)(A), Rule 23(b)(1)(B), and Rule 23(b)(2).
BACKGROUND In 2006, Ohio enacted one of the most complicated provisional ballot laws in the country, in response to the federal Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §15301 et seq., which requires all states to permit individuals who do not appear on the official list of eligible voters for a polling place to cast a provisional ballot as a “fail safe” voting mechanism. 42 U.S.C. §15482(a), §15483(b)(2)(B). Ohio identified thirteen different circumstances in which voters are not permitted to cast regular ballots, and instead must use provisional ballots – only one of which is when the voter is not included in the precinct list. Ohio Rev. Code §3505.181(A)(1); see also id. §3505.181(A)(2)-(13).
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Provisional ballots are not counted on election day. Instead, each Ohio County Board of Elections is responsible for “determin[ing] whether a provisional ballot is valid and entitled to be counted” several days after the election in which individuals have cast their ballots. Ohio Rev. Code §3505.183(B)(1), (E)(3). First, the Board is required to “examine [its] records and determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election.” Id. After determining that the ballot was cast by a registered voter, the Board is nonetheless required to reject the ballot in a number of circumstances, including:
(ii) The individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot. (iii) The individual did not provide all of the information required under division (B)(1) of this section in the affirmation that the individual executed at the time the individual cast the provisional ballot. Ohio Rev. Code §3505.183(B)(4)(a)(ii), (iii); see also id. §3503.183(B)(3)(a)-(c) (provisional ballots may be counted only if “individual named on the affirmation is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot”). Thus, when a registered voter is permitted to cast a provisional ballot that corresponds to a precinct that election officials later determine not to be that individual’s assigned precinct, the individual’s votes for every federal, state and local contest on that ballot must be rejected. The Secretary implements Ohio election law by issuing Directives to the County Boards. Secretary of State Husted has issued Directives with respect to the counting of provisional ballots during the 2012 elections. See, e.g., Directive 2012-01 (January 4, 2012) (available at http://www.sos.state.oh.us/SOS/Upload/elections/directives/2012/Dir2012-01.pdf). The Ohio Secretary of State does not, however, directly participate in the counting of provisional ballots after election day. The Secretary may be called upon to break a tie vote by a Board of Elections. Ohio Rev. Code §3501.11(X).
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ARGUMENT A. The Proposed Defendant Class of County Board of Elections Members Satisfies The
Requirements of Rule 23(a). 1. Numerosity. The members of the proposed class are “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). This Court has “found that as few as twenty-three class members could satisfy the requisite numerosity.” Salvagne v. Fairfield Ford, Inc., 264 F.R.D. 321, 325 (S.D. Ohio 2009) (citing Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 105 F.R.D. 506, 508 (S.D. Ohio 1985)). Each of Ohio’s 88 counties has a Board of Elections with four members. Ohio Rev. Code §3501.06. Thus, the proposed class of all members of County Boards of Elections consists of 352 individuals. It would be impracticable to require joinder of all members of the class. See CBS, 681 F.Supp. at 802 (holding that “Defendant class of Supervisors of Elections for each of the 67 counties in Florida is so numerous that joinder of all members is impracticable”). 2. Commonality. The criterion of commonality is satisfied where the class representatives’ claims or defenses “depend upon a common contention . . . that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims [or defenses] in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). What matters for purposes of commonality is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (internal quotation marks, italics, and citation omitted). “[F]or purposes of Rule 23(a)(2) even a single common question will do.” Id. at 2556 (internal quotation marks, brackets, and citation omitted). Here, there are questions of fact and law common to the claims and defenses of named Defendants Timothy M. Burke, Jeff Hastings, and Douglas J. Preisse (hereinafter “named County Defendants”) and all members of the class of
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members of County Boards of Elections, and these questions can be resolved through common answers. These questions include, but are not limited to, the following:
(a) Whether Ohio’s provisional ballot counting statute, Ohio Rev. Code §3505.183(B)(4)(a)(ii), which requires members of County Boards of Elections not to open and count provisional ballots cast by individuals in an incorrect precinct as a result of poll worker error, is consistent with the U.S. Constitution and federal voting laws;
(b) Whether Ohio’s provisional ballot counting statute, Ohio Rev. Code §3505.183(B)(4)(a)(iii), which requires members of County Boards of Elections not to open and count provisional ballots in ballot envelopes that contain incomplete or incorrect ballot affirmations as a result of poll worker error, is consistent with the U.S. Constitution and federal voting laws;
(c) Whether declaratory relief, holding unconstitutional the enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(ii) and (iii) where the reasons for rejection of provisional ballots are attributable to poll worker error, is appropriate; and
(d) Whether statewide uniform injunctive relief, requiring members of the County Boards of Elections, absent affirmative evidence that county poll workers have complied with their statutory duties, to open and count provisional ballots that are cast in incorrect precincts and in ballot envelopes that have incomplete or incorrect affirmations, is appropriate.
Because the named County Defendants and all members of the proposed Defendant Class have the statutory duty to implement Section 3505.183, the question of the statute’s
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constitutionality is of common interest to all class members, and the resolution of that common question will have the same impact on all class members.
3. Typicality. Typicality is easily satisfied in this case because the named Defendants have the identical public duties as the class members. In a defendant class action, “Rule 23(a)(3) will be satisfied if the defenses raised by [the representative defendants] are typical of those raised by the entire class.” Alexander Grant & Co. v. McAlister, 116 F.R.D. 583, 588 (S.D. Ohio 1987). A representative’s claims or defenses “‘need not always involve the same facts or law’” as the claims or defenses of other class members, “‘provided there is a common element of fact or law.’” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (quoting Senter v. Gen. Motors Corp., 532 F.2d 511, 525 n. 31 (6th Cir. 1976)).
The named County Defendants, like every other member of the County Boards of Elections, are charged with following Ohio statutory law and Ohio law as interpreted by the Ohio Supreme Court, and with implementing directives of the Defendant Secretary of State. Ohio Rev. Code §3501.11. The named County Defendants, like every other member of every County Board of Elections in Ohio, are statutorily required to reject provisional ballots cast by registered voters that are cast in an incorrect precinct, and to reject such ballots where the ballot envelopes contain incomplete or incomplete affirmations. Id. §3505.183(B)(4)(a)(ii) & (iii); see State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 28, 32 (2011); State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506, 515-17 (2008). Thus, the defenses of the named County Defendants are typical of – and indeed identical to – those of class members, because the named County Defendants and all class members are charged with implementing the same unconstitutional state law. See CBS, 681 F.Supp. at 802 (typicality satisfied where Supervisor of Elections “empowered with the same election law enforcement and oversight functions as every other county Supervisor” in
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Florida and thus defenses raised by named defendant were “surely typical of the defenses of the entire Defendant class”); NBC, 697 F.Supp. at 1216-17 (named Superintendent of Elections had same duty to enforce law as every member of class of Superintendents of Elections and so “[a]ny defenses asserted by the [named defendants] will be typical of the defenses of the defendant class”).
4. Adequacy. The adequacy inquiry under Rule 23(a)(4) is satisfied where, as here, the class representatives “‘have common interests with unnamed members of the class,’” and “‘the representatives will vigorously prosecute the interests of the class through qualified counsel.’” Beattie, 511 F.3d at 562-63 (quoting In re American Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996)). Because, as set forth above, the named County Defendants have “the same duties and responsibilities as all other” members of County Boards of Elections, the representatives have interests in common with – and indeed identical to – the proposed class members, and thus “can fairly and adequately protect the interests of the defendant class.” NBC, 697 F.Supp. at 1217; see CBS, 681 F.Supp. at 802. As public officers, the named County Defendants can be expected to properly litigate this action. B. Certification of this Action is Proper Under Rule 23(b)(1)(A), Rule 23(b)(1)(B), and
Rule 23(b)(2). 1. Rule 23(b)(1)(A). This action is properly maintained as a class action under Rule 23(b)(1)(A), because the prosecution of separate constitutional lawsuits against the members of each Ohio county’s Board of Elections could “create a risk of . . . inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct” for voters, as well as for the Secretary of State and members of the County Boards of Elections. Fed. R. Civ. P. 23(b)(1)(A); see CBS, 681 F.Supp. at 801-02 (defendant class action against Florida Supervisors of Elections properly certified under Rule 23(b)(1)(A));
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NBC, 697 F.Supp. at 1217 (same for defendant class action against Georgia Superintendents of Elections); cf. Planned Parenthood Ass’n of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 67 (1990) (defendant class properly certified under state law analogue to Rule 23(b)(1)(A)).1 The uniform implementation of statewide ballot counting standards is constitutionally necessary to avoid equal protection violations. Bush v. Gore, 531 U.S. 98, 107 (2000); see also Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219 (6th Cir. 2011); Hunter v. Hamilton County Bd. of Elections, No. 1:10CV820, 2012 WL 404786 (S.D. Ohio Feb. 8, 2012).
2. Rule 23(b)(1)(B). This action may independently be maintained under Rule 23(b)(1)(B), because “adjudications with respect to individual class members . . . , as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1)(B). Constitutional equal protection principles and Ohio law require all members of County Boards of Elections to apply the same rules when providing and counting provisional ballots. Bush, 531 U.S. at 107; Ohio Rev. Code §§3501.11, 3505.181-183. Even if this case were brought only against the three named county defendants, County Boards of Elections across the State would risk running afoul of the Constitution were they to count ballots in a manner different from any court order in this case. The case is therefore proper for certification as a class under Rule 23(b)(1)(B). See Stewart v. Waller, 404 F.Supp. 206, 213 (N.D. Miss. 1975) (certifying defendant class under Rule 23(b)(1)(B) of all municipal officials in municipalities affected by challenged state law requiring at-large municipal elections, because “invalidation of the system of at-large municipal elections would, as a practical matter, be
1 Ohio’s class action rule mirrors Fed. R. Civ. P. 23. See Planned Parenthood Ass’n of Cincinnati, 52 Ohio St.3d at 62 n.5 (1990).
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dispositive of the claims of all defendant class members”); Pennsylvania Ass’n for Retarded Children v. Com. of Pa., 343 F.Supp. 279, 291-92 (E.D. Pa. 1972) (certifying defendant class
under Rule 23(b)(1)(B) of school districts and local government entities known as “intermediate
units” in suit challenging constitutionality of certain state statutes, because “as a practical matter,
once the issues are decided against one school district within an intermediate unit, or one
intermediate unit within the Commonwealth[,] all other districts or intermediate units will ultimately be bound by the result”).2
3. Rule 23(b)(2). This action may also independently be maintained under Rule 23(b)(2)
because the predominant thrust of Plaintiffs’ claims is that the provisional ballot-counting statute
is unconstitutional, and “the relief plaintiffs seek is identical as to each member of the defendant
class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” NBC, 697 F.Supp. at 1217; see Akron Ctr. for Reprod. Health,
110 F.R.D. at 583 (“[S]ince all potential defendants are required to enforce the unconstitutional
statute, certification of the defendant class [under Rule 23(b)(2)] is warranted.”).
“Where, as here, a statute with statewide application is challenged on the ground of its
unconstitutionality, allowing the action to proceed against the class of officials charged with its
2 In Gaunt v. Brown, 341 F.Supp. 1187, 1193 (S.D. Ohio 1972), this Court declined to certify a defendant class of members of County Boards of Elections in a suit challenging the constitutionality of a state election law, reasoning that “the need for a defendant class is not apparent,” because the named defendants included the Secretary of State. The Sixth Circuit subsequently has made clear, however, that where, as here, the requirements of Rule 23(a) and either Rule 23(b)(1) or 23(b)(2) are satisfied, class certification may not be denied on the ground that a court sees “no need for the action to go forward as a class action.” Penland v. Warren County Jail, 797 F.2d 332, 334-35 (6th Cir. 1986) (citing Penland v. Warren County Jail, 759 F.2d 524, 531 (6th Cir. 1985) (en banc)). In any event, certification of a defendant class is appropriate here, because the members of the County Boards of Elections, not the Secretary of State, determine whether to reject or count each provisional ballot. See Ohio Rev. Code. §3505.183.
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enforcement is in accordance with the interests of judicial administration and justice which Rule
23 is meant to further,” and certification under Rule 23(b)(2) is appropriate. Redhail v. Zablocki, 418 F.Supp. 1061, 1066 (D. Wis. 1976), aff’d on other grounds, 434 U.S. 374 (1978); cf.
Thompson v. Bd. of Educ. of Romeo Cmty. Sch., 709 F.2d 1200, 1204 (6th Cir. 1983) (noting that
courts have recognized that defendant class actions are appropriate under Rule 23(b)(2) “where
the individual defendants are all acting to enforce ‘a locally administered state statute or similar
administrative policies’”) (quoting Greenhouse v. Greco, 617 F.2d 408, 413, n.6 (5th Cir.1980));
Brown v. Kelly, 609 F.3d 467, 479 (2d Cir. 2010) (“‘[I]t is now settled that 23(b)(2) is an
appropriate vehicle for injunctive relief against a class of local public officials.’”) (quoting
Marcera v. Chinlund, 595 F.2d 1231, 1238 (2d Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915 (1979)).3
C. This Court Should Resolve This Motion for Certification of the Defendant Class Along With Plaintiffs’ Motion for Injunctive Relief.
Certification of the defendant class in connection with Plaintiffs’ motion for a
preliminary injunction is appropriate so that the injunction can provide meaningful and uniform
relief for voters across Ohio during the upcoming 2012 elections. See CBS, 681 F.Supp. at 806
3 Plaintiffs have standing to assert claims against all members of the proposed defendant class on the basis that “all defendants are juridically related,” meaning that “‘all members of the defendant class are officials of a single state and are charged with enforcing or uniformly acting in accordance with a state statute, or common rule or practice of state-wide application, which is alleged to be unconstitutional.’” Thompson, 709 F.2d at 1205 (quoting Mudd v. Busse, 68 F.R.D. 522, 527-28 (N.D. Ind. 1975)) (emphasis in original). Even if this doctrine of standing did not apply (which it does), Plaintiffs also have standing with respect to each member of the proposed defendant class because Plaintiffs represent members in every county in the State (see Decl. of Lance Wyatt in Support of Pls.’ Mot. for Preliminary Injunction ¶4), and because the unconstitutional state law at issue “frustrates the [plaintiff] organization[s’] goals and requires the organization[s] to expend resources . . . they otherwise would spend in other ways.” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (internal quotation marks and citation omitted); see, e.g., Decl. of Karen Gasper in Support of Pls.’ Mot. for Preliminary Injunction ¶¶3-6.
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(certifying defendant class of Florida Supervisors of Elections in connection with issuance of preliminary injunction against enforcement of challenged election law); Clean-Up ‘84 v.

Heinrich, 582 F.Supp. 125, 127 (M.D. Fla. 1984) (certifying defendant class of Florida sheriffs

in connection with issuance of preliminary injunction against enforcement of challenged criminal

election law).

The Court is not required to order any notice prior to certifying a defendant class, and

notification of certification of a class pursuant to Rules 23(b)(1) and (b)(2) is at this Court’s

discretion. See Fed. R. Civ. P. 23(c)(2)(A). Because Defendant Secretary of State Husted

should be able accurately and efficiently to provide notice to all members of County Boards of

Elections, Plaintiffs respectfully suggest that the Court order Defendant Husted to provide notice

to all class members of the Court’s certification of the defendant class.

CONCLUSION

For the forgoing reasons, the Court should grant Plaintiffs’ Motion for Certification of

Defendant Class.

Dated: June 29, 2012

Respectfully submitted,

/s/Michael J. Hunter MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com Attorneys for All Plaintiffs

STEPHEN P. BERZON, pro hac vice pending STACEY M. LEYTON, pro hac vice pending BARBARA J. CHISHOLM, pro hac vice pending DANIELLE LEONARD, pro hac vice pending Altshuler Berzon LLP 177 Post Street, Suite 300

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San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, and UAW Local 863 PENDA HAIR, pro hac vice pending DONITA JUDGE, pro hac vice pending UZOMA NKWONTA, pro hac vice pending Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org Attorneys for Plaintiff OOC
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CERTIFICATE OF SERVICE
I certify that on June 29, 2012, I electronically filed the foregoing with the Clerk of Court
using the CM/ECF system. All parties that have entered appearances will be notified through and
may access the foregoing on the CM/ECF system. Additionally, the following party has been
served via regular U.S. Mail:
Jeff Hastings Cuyahoga County Board of Elections 2925 Euclid Avenue Cleveland, Ohio 44115
/s/ Michael J. Hunter Michael J. Hunter, Trial Attorney (0018756) Cathrine J. Harshman (0079373) HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 (614) 442-5626 / (614) 442-5625 Fax mhunter@hcands.com charshman@hcands.com
Attorney for Plaintiffs

 
 Case: 2:12-cv-00562-ALM-TPK Doc #: 32 Filed: 07/13/12 Page: 1 of 42 PAGEID #: 3726

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL

: Case No. 2:12-cv-562

UNION, LOCAL 1; UNITED STEEL, PAPER AND :

FORESTRY, RUBBER, MANUFACTURING,

:

ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION; INTERNATIONAL UNION, UNITED

: FIRST AMENDED COMPLAINT

: :

FOR DECLARATORY RELIEF AND INJUNCTIVE RELIEF

AUTOMOBILE, AEROSPACE AND

:

AGRICULTURAL IMPLEMENT WORKERS OF

: CLASS ACTION

AMERICA, LOCAL 1005; INTERNATIONAL

:

UNION, UNITED AUTOMOBILE, AEROSPACE :

AND AGRICULTURAL IMPLEMENT WORKERS :

OF AMERICA, LOCAL 863; UNITED FOOD AND :

COMMERCIAL WORKERS UNION, LOCAL 75; :

UNITED FOOD AND COMMERCIAL WORKERS :

UNION, LOCAL 880; UNITED FOOD AND

:

COMMERCIAL WORKERS UNION, LOCAL

:

1059, AND INTERNATIONAL CHEMICAL

:

WORKERS UNION, A COUNCIL OF UNITED

:

FOOD AND COMMERCIAL WORKERS and

:

OHIO ORGANIZING COLLABORATIVE,

:

:

Plaintiffs,

:

:

vs.

:

:

JON HUSTED, in his official capacity as Secretary of :

State of Ohio; TIMOTHY M. BURKE, in his official :

capacity as member of the Hamilton County Board of :

Elections and on behalf of similarly situated members :

of county boards of elections; JEFF HASTINGS, in :

his official capacity as member of the Cuyahoga

:

County Board of Elections and on behalf of similarly :

situated members of county boards of elections; and :

DOUGLAS J. PREISSE, in his official capacity as

:

member of the Franklin County Board of Elections

:

and on behalf of similarly situated members of county :

boards of elections,

:

Defendants.

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Plaintiffs Service Employees International Union Local 1 (“SEIU Local 1”); United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”), Local 1005 (“UAW Local 1005”); UAW, Local 863 (“UAW Local 863”); United Food and Commercial Workers Local 75 (“UFCW Local 75”); United Food and Commercial Workers Local 880 (“UFCW Local 880”); United Food and Commercial Workers Local 1059 (“UFCW Local 1059”); International Chemical Workers Union, a Council of the United Food and Commercial Workers (“ICWUC”); and Ohio Organizing Collaborative (“OOC”) seek declaratory and injunctive relief against Defendants Ohio Secretary of State Jon Husted, Hamilton County Board of Elections member Timothy M. Burke, Cuyahoga County Board of Elections member Jeff Hastings, Franklin County Board of Elections member Douglas J. Priesse, and a defendant class of the remaining members of the eighty-eight Ohio County Boards of Elections pursuant to 42 U.S.C. §1983 and the Declaratory Judgment Act, 28 U.S.C. §§2201 and 2202. As set forth more fully below, Ohio elections law mandates that elections officials disqualify provisional ballots cast by lawfully registered voters for reasons attributable to poll worker error. The failure of Defendant Ohio state and county elections officials to ensure that all votes in federal, state, and local elections cast by the lawfully registered Ohio voters who are required under Ohio law to cast provisional ballots are counted despite poll worker and election official error has resulted and will continue to result in a denial of the fundamental right to vote of Ohio voters, including Plaintiffs’ members, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the right to vote for Congress protected by Article
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I, Section II and the Seventeenth Amendment to the United States Constitution, and federal voting statutes.
INTRODUCTION 1. In the wake of the 2000 federal election, the United States Congress passed the Help America Vote Act (“HAVA”), 42 U.S.C. §15301 et seq., which requires states to allow individuals to cast “provisional” ballots in the event that the voter believes he or she is registered to vote but for some reason does not appear on the list of registered voters at the polls on election day. Congress expressly stated that HAVA’s provisional voting option is to act as a “fail safe” mechanism to prevent the arbitrary disenfranchisement by state officials of lawfully registered voters in federal elections so long as the state or local officials are able to later confirm verify voters’ registration. 2. In 2006, Ohio enacted one of the nation’s most complicated provisional ballot laws. See Ohio. Rev. Code §3505.181-183. Ohio requires at least thirteen categories of voters to cast provisional, rather than regular ballots. As a result, Ohio voters have cast hundreds of thousands more provisional ballots than voters in states with comparable voting populations. In 2008 alone, Ohio voters cast more than 200,000 provisional ballots out of 5.7 million votes. As a result, with a far smaller population, Ohio ranks second only to California in total number of provisional ballots cast. States with comparable voting populations required voters to cast far fewer provisional ballots in the 2008 election: Michigan (approximately 5 million votes, only 3,797 provisional ballots cast); Virginia (approximately 3,750,000 votes, only 4,575 provisional ballots cast); Wisconsin (3 million votes; only 211 provisional ballots cast). 3. In addition to requiring substantial categories of provisional voters to cast provisional ballots, Ohio law also requires the County Boards of Election to reject provisional
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ballots for many reasons. In the 2008 election, over 40,000 of Ohio’s provisional ballots were rejected and the numbers in other recent elections have also been substantial. And, a very large number of ballots cast by lawfully registered voters in Ohio have been rejected in every recent election for reasons directly attributable to poll worker error.
4. The most egregious example of widespread disqualification of ballots of registered voters because of poll worker error results from the provisional ballot statute provision, Ohio Rev. Code §3505.183(b)(4)(ii), which requires the County Boards of Election to reject and not count all votes cast on a provisional ballot if the ballot does not correspond to the voter’s assigned precinct. The Ohio Supreme Court in 2011 in State ex rel. Painter v. Brunner, 128 Ohio St.3d 17 (2011), adopted the most strict possible interpretation of this statute, requiring rejection of all wrong-precinct provisional ballots without exception, even where the County Board of Election knows that poll worker error led to the voter being provided with the wrong ballot. This Ohio law requires rejection not just of the votes cast for precinct-level elections, but all votes on the ballot, including votes for President and Vice President, United States Representative and Senator, Governor, and other state and local races.
5. The unfair application of this law has become all the more egregious in light of Ohio’s increasing consolidation of voting precincts into multi-precinct polling locations, where poll workers give a wrong precinct ballot to a voter who has come to vote in the correct polling location, only to have that ballot disqualified in its entirety, with no notice to the voter, after the election. In some counties, one hundred percent of precincts are now located in multi-precinct polling locations. Ohio ranks at near the top of the nation in use of multi-precinct locations.
6. Ohio law also prohibits County Boards of Elections from counting all votes on provisional ballots cast by registered voters, even if cast in the correct precinct, if the poll worker
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processes a provisional ballot without ensuring that all required information is recorded on the envelope in which the provisional ballot is submitted, despite the obligation under Ohio law for the poll worker to ensure that the envelope properly be completed.
7. In elections from 2008 through the March 2012 primary elections, thousands of registered Ohio voters did not have their votes counted as a result of poll worker error under these very strict Ohio provisional ballot disqualification laws. Although the rate of provisional ballots cast and rejected, along with the reasons for rejection, varies by county, a very substantial percentage of all provisional ballots rejected in Ohio are rejected because the voter was provided a precinct ballot that did not correspond to the voter’s assigned precinct, or as a result of the poll workers’ failure to ensure the proper completion of voting forms.
8. Under these Ohio election laws, and the corresponding directives to County Boards of Elections issued by Defendant Secretary of State Husted, in the upcoming November 2012 general election the County Boards of Election will reject thousands of provisional ballots cast by qualified, registered voters because the ballots were cast incorrectly as a result of poll worker error, either because the poll worker provided the would-be voter with the incorrect precinct ballot or because the poll worker failed to ensure that the provisional ballot envelope was completed.
9. The arbitrary disqualification of ballots required by Ohio’s provisional ballot laws results in the unconstitutional and disparate treatment of Ohio voters, and is fundamentally at odds with the purposes of provisional voting. This severe burden on the fundamental right to vote – the right preservative of all rights in our democracy – cannot be justified by any state interest, let alone a compelling interest, and violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution, as well as the right to
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vote in federal congressional elections protected by Article I, Section 2 and the Seventeenth Amendment, and is fundamentally at odds with the purposes and protection of the federal Voting Rights and Help America Vote Acts.
10. This Court should enjoin the Ohio Secretary of State and the County Boards of Election from enforcing the “wrong precinct” requirement for rejecting provisional ballots, Ohio Rev. Code §3505.183(B)(4)(a)(ii). The enforcement of this rule creates a real and imminent threat that Plaintiffs’ members and thousands of other voters will be unjustly and unlawfully denied their fundamental right to vote in the upcoming November 2012 election. The Court should further enjoin the Ohio Secretary of State and the members of the County Boards of Election from refusing to count provisional ballots on the basis that the provisional ballot envelope was not completed correctly, or on the basis that, following the election, a County Board of Elections determines without notice to the voter that the voter’s signature on the provisional ballot does not match the signature on file with the Board of Elections.
PARTIES Plaintiffs 11. Plaintiff SEIU Local 1 is a local union affiliated with the Service Employees International Union. SEIU Local 1 currently represents approximately 4,000 workers in Ohio. SEIU Local 1 represents numerous low-wage workers who live in large urban counties and who are registered to vote in Ohio, including many voters who are assigned to vote at multi-precinct voting locations. SEIU Local 1 engages in voter registration, education and other electionrelated activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which SEIU Local 1’s members are associated together and is germane to the union’s interests. Article II of the Constitution of the Service Employees International Union
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provides that one of the union’s primary purposes is to “engag[e] in all such civic, social, political, [and] legal . . . activities, whether on local [or] national . . . levels,” to advance the union’s “standing in the community” and to “further the interests of [the] organization and its membership.”
12. Erin Kramer is the SEIU Local 1 Director for Ohio and Indiana, a member of SEIU Local 1, and a registered voter in Franklin County in Ohio. Ms. Kramer plans to vote in the November 2012 election, and wishes to have her ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
13. Plaintiff USW currently represents more than 47,000 workers in Ohio. USW represents workers who live in every one of Ohio’s eighty-eight counties. A large number of USW’s Ohio membership is registered to vote in Ohio, and many USW members are assigned to vote at multi-precinct voting locations. USW engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purpose for which USW’s members are associated together and is germane to the union’s interests. As set forth in USW’s Constitution, one of the organization’s primary purposes is “[t]o engage in educational, legislative, political, civic, . . . community and other activities,” including with the goals of “protect[ing] and extend[ing] our democratic institutions and civil rights and liberties,” and advancing “the cherished traditions of democracy . . . in the United States.”
14. David McCall is the Director of USW District 1, a member of USW, and a registered voter in Franklin County in Ohio. Mr. McCall plans to vote in the November 2012 election, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
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15. Plaintiff UAW Local 1005 currently represents approximately 1,400 active members and 3,000 retired workers in Ohio. UAW Local 1005 represents automobile workers and janitorial workers. UAW Local 1005’s members primarily reside in six Ohio counties: Cuyahoga County, Medina County, Lorain County, Lake County, Summit County, and Portage County. A large number of UAW Local 1005’s members are registered to vote in Ohio, and many of these registered voters are assigned to vote at multi-precinct polling locations. UAW Local 1005 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which the union’s members are associated together and is germane to the union’s interests. The UAW Constitution provides in its preamble that “Union members must take seriously their responsibilities as citizens and work, through their union and individually, to realize the goals of participatory democracy,” and, in Article II, states that one of the primary objects of the organization is “[t]o engage in legislative, political, educational, civic . . . and other activities which further . . . the joint interests of the membership of th[e] organization.”
16. Steven Frammartino is the President of UAW Local 1005, a member of that union, and a registered voter in Cuyahoga County in Ohio. Mr. Frammartino previously has been assigned to vote in a multi-precinct polling location and, in voting at such plans to such a location, has experienced the difficulty of determining whether, within a multi-precinct location, one is voting in the correct precinct. Mr. Frammartino intends to vote in the November 2012 elections, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming election.
17. Plaintiff UAW Local 863 currently represents approximately 1,500 active members and 4,500 retired workers, many of whom reside in and around Hamilton County,
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Ohio. UAW Local 863 represents automobile manufacturing workers employed by Ford in Sharonville, Ohio. Many of UAW Local 863’s members are registered to vote in Ohio, primarily in Hamilton County, and many of the members who are registered to vote are assigned to multiprecinct polling locations. In the 2012 primary, Hamilton County assigned more than sixty percent of its precincts to multi-precinct polling locations. UAW Local 863 engages in voter education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which the union’s members are associated together and is germane to the union’s interests. As noted above, the UAW Constitution provides in its preamble that “Union members must take seriously their responsibilities as citizens and work, through their union and individually, to realize the goals of participatory democracy,” and, in Article II, states that one of the primary objects of the organization is “[t]o engage in legislative, political, educational, civic . . . and other activities which further . . . the joint interests of the membership of th[e] organization.”
18. Rick Lawwill is the President of UAW Local 863, a member of that union, and a registered voter in Butler County in Ohio. Mr. Lawwill, in past elections, has been assigned to vote in multi-precinct polling locations and personally has been confused about how, within that multi-precinct location, to determine where properly to cast a ballot that will be counted. Mr. Lawwill plans to vote in the November 2012 elections, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming election.
19. Members of Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC are registered Ohio voters who have been required to vote provisional ballots in recent Ohio elections, for one of the thirteen reasons required by Ohio law for voting provisional ballots. On information and belief,
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each of the Plaintiff organizations has members who are registered to vote in Ohio, who will attempt to vote in the upcoming 2012 general election, and who will be required by poll workers to cast provisional ballots. On information and belief, each of the Plaintiff organizations has members who are registered to vote in Ohio, will be required to cast provisional ballots in upcoming elections, and will not have their ballots opened and counted by Ohio County Boards of Elections for reasons attributable to poll worker error, including for the reason that the ballot was cast in the “wrong precinct” and based on technical deficiencies in the provisional ballot injury. On information and belief, as a result, these voters will have all votes for federal, state and local elections disqualified, and will be thereby be deprived of their right to vote in upcoming elections.
20. Plaintiff UFCW Local 75 is a local union affiliated with the United Food and Commercial Workers Union. UFCW Local 75 currently represents approximately 25,000 active and retired workers in Ohio. Most of these members are registered to vote. Some are assigned to vote at multi-precinct voting locations, and some will be assigned to polling locations that have moved or been consolidated. UFCW Local 75 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. Some members of UFCW Local 75 have been required to cast provisional ballots in past elections and, on information and belief, some of those ballots have not been counted for reasons attributable to poll-worker error. UFCW Local 75 is concerned to ensure that its members’ and other voters’ ballots in upcoming elections are counted. This action pertains to the purposes for which UFCW Local 75’s members are associated together and is germane to the union’s interests. Article 2 of the UFCW Constitution provides that “political freedom” and “the successful functioning of a democracy,” “advanc[ing] the principles and practice of freedom and democracy for all,” “to
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encourage members and all workers to register to vote,” and engaging in “legislative, political [and] civic” activities are core objectives of UFCW. Article III of UFCW Local 75’s bylaws sets forth similar objectives.
21. William James Dudley is the UFCW Local 75 Director of Legislative and Strategic Campaigns, a member of UFCW Local 880, and a registered voter in Warren County in Ohio. Mr. Dudley plans to vote in the November 2012 election, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
22. Plaintiff UFCW Local 880 is a local union affiliated with the United Food and Commercial Workers Union. UFCW Local 880 currently represents approximately 22,000 active and retired workers in Ohio. Most of these members are registered to vote. Some are assigned to vote at multi-precinct voting locations, and some will be assigned to polling locations that have moved or been consolidated. UFCW Local 880 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. Some members of UFCW Local 880 have been required to cast provisional ballots in past elections and, on information and belief, some of those ballots have not been counted for reasons attributable to poll-worker error. UFCW Local 880 is concerned to ensure that its members’ and other voters’ ballots in upcoming elections are counted. This action pertains to the purposes for which UFCW Local 880’s members are associated together and is germane to the union’s interests. Article 2 of the UFCW Constitution provides that “political freedom” and “the successful functioning of a democracy,” “advanc[ing] the principles and practice of freedom and democracy for all,” “to encourage members and all workers to register to vote,” and engaging in
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“legislative, political [and] civic” activities are core objectives of UFCW. Article III of UFCW Local 880’s bylaws sets forth similar objectives.
23. Bob Gravougl is the UFCW Local 880 President, a member of UFCW Local 880, and a registered voter in Wayne County in Ohio. Mr. Gravougl plans to vote in the November 2012 election, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
24. Plaintiff UFCW Local 1059 is a local union affiliated with the United Food and Commercial Workers Union. UFCW Local 1059 currently represents approximately 17,500 active and retired workers in Ohio. Most of these members are registered to vote. Some are assigned to vote at multi-precinct voting locations, and some will be assigned to polling locations that have moved or been consolidated. UFCW Local 1059 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. Some members of UFCW Local 1059 have been required to cast provisional ballots in past elections and, on information and belief, some of those ballots have not been counted for reasons attributable to poll worker error. UFCW Local 1059 is concerned to ensure that its members’ and other voters’ ballots in upcoming elections are counted. This action pertains to the purposes for which UFCW Local 1059’s members are associated together and is germane to the union’s interests. Article 2 of the UFCW Constitution provides that “political freedom” and “the successful functioning of a democracy,” “advanc[ing] the principles and practice of freedom and democracy for all,” “to encourage members and all workers to register to vote,” and engaging in “legislative, political [and] civic” activities are core objectives of UFCW. Local 1059’s bylaws contain similar provisions.
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25. Plaintiff International Chemical Workers Union, a Council of the United Food and Commercial Workers (“ICWUC”), is affiliated with the United Food and Commercial Workers Union and has local union affiliates that represent members in Ohio. ICWUC’s member local unions currently represent hundreds of workers in Ohio including many registered voters. Some are assigned to vote at multi-precinct voting locations, and some will be assigned to polling locations that have moved or been consolidated. ICWUC and its member local unions engage in voter registration, education and other election-related activities within the State of Ohio on behalf of members. ICWUC is concerned to ensure that members’ and other voters’ ballots in upcoming elections are counted. This action pertains to the purposes for which ICWUC and its member locals’ members are associated together and is germane to the union’s interests. Article 2 of the UFCW Constitution, which governs ICWUC, provides that “political freedom” and “the successful functioning of a democracy,” “advanc[ing] the principles and practice of freedom and democracy for all,” “to encourage members and all workers to register to vote,” and engaging in “legislative, political [and] civic” activities are core objectives of UFCW.
26. Plaintiff Ohio Organizing Collaborative (“OOC”) is a statewide, nonpartisan community organizing and advocacy association comprised of faith-based, labor, and neighborhood organizations that works to build and support community throughout Ohio. OOC has a voter engagement campaign, the primary goal of which is to ensure that all Ohioans who are eligible and want to vote are able to do so. The OOC devotes staff and financial resources toward this end. As a result of OOC’s understanding that poll worker errors jeopardize the ability of voters who cast provisional ballots on Election Day to have those ballots counted, OOC has decided to dedicate a large portion of its limited staff time and resources this summer and fall to addressing this problem, including by putting additional funds into voter registration efforts
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and into more broadly-applicable voter education efforts. If Ohio County Boards of Elections were not invalidating provisional ballots because of poll worker error, OOC would be using these limited resources on other organizational priorities.
Defendants 27. Defendant Jon Husted is the current Ohio Secretary of State, a public officer of the State of Ohio and is named as Defendant in this action in his official capacity only. In his capacity as Secretary of State, Defendant Husted is the chief elections official of the State and has supervisory control over local election officials. Ohio Rev. Code §3501.05. He is responsible for administering all statewide elections, including for federal office, appointing all members of the County Boards of Elections, issuing instructions and promulgating rules for the conduct of elections, publishing manuals of instructions on elections administration for use at polling places, prescribing uniform forms and notices for use in the conduct of elections, instructing county elections officials with respect to election administration and compelling observance, prescribing training of polling place officials, and certifying statewide election results. Id. 28. Defendant Douglas J. Preisse is currently a member and the chairperson of the Franklin County Board of Elections. 29. Defendant Jeff Hastings is currently a member and the chairperson of the Cuyahoga County Board of Elections. 30. Defendant Timothy M. Burke is currently a member and the chairperson of the Hamilton County Board of Elections.
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31. Defendants Preisse, Hastings, and Burke are sued on their own behalves in their official capacities as members and chairpersons of County Boards of Elections, and as representatives of all other similarly situated members of the Ohio County Boards of Elections.
32. There are 88 County Boards of Elections, which are organized pursuant to Ohio Rev. Code §3501.06. As members of these Boards, Defendants Preisse, Hastings and Burke, like other similarly situated members of the Boards throughout the State, are responsible for performing the Boards’ duties that are outlined in Ohio Rev. Code §3501.11, including but not limited to: providing for the delivery of ballots, pollbooks, and other required materials to the polling places, investigation of irregularities or nonperformance of duties by election officers and other persons, receipt of the returns of elections, canvasing of the returns and creation of abstracts of the returns, and transmission of the abstracts to the proper authorities, and performance of other duties as prescribed by law or the rules, directives and advisories of the Secretary of State. County Boards of Elections collect, review, count, and reject all provisional ballots in Ohio, pursuant to duties imposed by Ohio Rev. Code §§3505.181-183.
JURISDICTION 33. This action for declaratory and injunctive relief arises under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the United States Constitution; Article I, Section 2 of the United States Constitution; the Seventeenth Amendment to the United States Constitution; the Voting Rights Act of 1965, 42 U.S.C. §1971; the Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §15301 et seq.; 42 U.S.C. §1983; and the Supremacy Clause, U.S. Const., Art. VI, cl. 2. This Court has subject matter jurisdiction of this action under 28 U.S.C. §§1331, 1343(3) & (4), and 42 U.S.C. §§1971(d), and 1973j(f). Plaintiffs’ claims for declaratory
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and injunctive are authorized under 28 U.S.C. §§2201 and 2202. At all times relevant to this action, Defendants have acted under color of state law.
VENUE 34. Venue in this district and division is proper under 28 U.S.C. §1391(b) because this action is predicated upon a federal question and a substantial part of the events or omissions giving rise to the claims alleged herein occurred, and will continue to occur, in this district. Plaintiffs have members who are registered to vote in the district and who will be subject in the district to the unlawful practices described in this Complaint.
INTRADISTRICT ASSIGNMENT 35. Pursuant to Civil L. R. 3-8, this action should be assigned to the Eastern Division of the Southern District of Ohio, because a substantial part of the events and omissions giving rise to the claims herein occurred in counties in the Eastern Division. Plaintiffs SEIU Local 1, USW, UFCW Local 75, and UFCW Local 880 have numerous members who live and are registered to vote within the Eastern Division; and the Defendant Secretary of State has his main offices in the Eastern Division.
FACTUAL ALLEGATIONS A. Provisional Voting 36. In response to numerous problems in the state administration of federal elections revealed by the 2000 Presidential election,, Congress enacted the Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §15301 et seq. HAVA mandates that all States permit certain individuals to cast provisional ballots. One of Congress’ central purposes in enacting HAVA
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was to provide a “fail-safe” mechanism to prevent the disenfranchisement of voters on Election
Day as a result of errors in processing voters by states, where voter registration and eligibility to
vote can be verified after Election Day.
37. HAVA requires that all States permit individual whose name does not appear on
the official list of eligible voters for the polling place to cast a provisional ballot, to be verified
after the election:
If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows:
(1) Notification. An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election. (2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is–
(A) a registered voter in the jurisdiction in which the individual desires to vote; and (B) eligible to vote in that election.
42 U.S.C. §15482(a).
38. HAVA further provides that “[a]n election official at the polling place shall
transmit” a provisional ballot or the written affirmation to an appropriate State or local election
official for verification. 42 U.S.C. §15482(a)(3). HAVA also requires states to provide a
mechanism to voters to learn whether their votes have been counted. Id. §15482(a)(5)(B).
B. Ohio Law Governing Casting and Counting of Provisional Ballots
39. Pursuant to Ohio law, there are thirteen different statutorily-defined circumstances
in which voters are not permitted to cast regular ballots, and instead must use provisional ballots.
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Ohio Rev. Code §3505.181(A)(1)-(13). Only one of these is when the voter is not included in
the precinct list. Id. §3505.181(A)(1).
40. Ohio law governs when, and the manner in which, poll workers should provide
voters with provisional ballots at the polling place. Ohio poll workers must first determine
whether a voter is included on the precinct list of registered voters, and if the voter is required to
vote provisionally for one of the thirteen statutory reasons. Ohio Rev. Code §3505.181(C)(1)
provides:
If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which the individual desires to vote, or if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions.
41. Ohio law further provides that a poll worker should provide a provisional ballot to
a voter not on the precinct list only if the voter has been directed to the proper precinct, and the
voter “refuses to travel to the polling places for the correct jurisdiction or to the office of the
board of elections to cast a ballot.” Ohio Rev. Code §3505.181(C)(2).
42. Once a poll worker determines that an individual must cast a provisional rather
than regular ballot, the poll worker is required to provide the voter with an affirmation form and
instruct the individual to complete “a written affirmation . . . before an election official at the
polling place” stating that she or he is a “registered voter in the jurisdiction in which the
individual desires to vote” and “[e]ligible to vote in that election.” Ohio Rev. Code
§3505.181(B)(2)(a)-(b).
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43. Ohio has created a uniform provisional ballot affirmation form to be printed by all 88 Boards on provisional ballot envelopes. Ohio poll workers have the duty to make sure the voter fills out the provisional ballot affirmation correctly, and must verify that the affirmation has been completed before providing a voter with a provisional ballot. Ohio Rev. Code §§3505.181(B)(6), 3505.182, 3505.183(B)(1); see also Skaggs ex rel. Skaggs v. Brunner, 588 F.Supp.2d 828, 836 (S.D. Ohio 2008).
44. The provisional ballot envelopes, together with the ballots inside those envelopes, are transmitted to the Boards of Elections for their post-election determination of whether “individual[s’] provisional ballot[s] shall be counted as a vote[s] in [the] election.” Ohio Rev. Code §3505.181(B)(4); see also id. §3501.1(L), 3505.183(D). This determination is made pursuant to the requirements set forth in Ohio provisional ballot laws and happens several days after the election, when the results of the regular ballot voting are known. Id. §3505.181(B)(1), (E)(3).
45. To determine the validity of a provisional ballot, the County Board of Elections first must examine its records to determine whether the individual who cast the provisional ballot is registered and eligible to vote in the election. Id. §3505.183(B)(1). The Board also examines the information provided by the voter on his or her provisional ballot affirmation statement. Id.
46. After disqualifying all those provisional ballots that cannot be determined to have been cast by registered voters, the Boards then disqualify ballots for other reasons. Ohio Rev. Code §3505.183(B)(4)(a) provides that “[i]f, in examining a provisional ballot affirmation” and certain additional information provided pursuant to the statute, “the board determines that any of the following applies, the provisional ballot envelope shall not be opened, and the ballot shall not be counted: . . .
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(ii) The individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot. (iii) The individual did not provide all of the information required under division (B)(1) of this section in the affirmation that the individual executed at the time the individual cast the provisional ballot.” 47. Additionally, Ohio law provides that if, in the Board of Elections’ examination of the provisional ballot affirmation and additional information provided pursuant to statute, the board is “unable to determine” whether “the individual named in the affirmation is eligible to cast a ballot in the precinct . . . in which the individual cast the provisional ballot,” then the “provisional ballot envelope shall not be opened, and the ballot shall not be counted.” Ohio Rev. Code §3505.183(B)(4)(b)(ii). 48. Ohio law, as interpreted by the Ohio Supreme Court in Painter, prohibits County Boards of Election from investigating or counting provisional ballots cast in the incorrect precinct for reasons attributable to poll worker error. 128 Ohio St.3d at 28, 32. Thus, even when a voter is required to cast provisional ballots during early voting at a Board of Elections office, and is handed the wrong ballot because Board staff mistakenly looks up the voter’s precinct, Painter requires a Board to ignore that undeniable error and reject the vote. Id. at 32. 49. Similarly, Ohio law prohibits County Boards of Elections from counting provisional ballots that contain incomplete ballot affirmations. See State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506 (2008); see also Ohio Rev. Code §3505.183(B)(4)(a)(iii). 50. In recent elections, the Boards have not recognized any exception to the rule that they must reject provisional ballots that are in envelopes containing incomplete affirmations that are the result of poll worker error. And Secretary of State Husted has instructed Boards to reject
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provisional ballots on grounds that a voter’s name or signature is in the wrong place on the ballot envelope.
51. Ohio Rev. Code §3505.28 provides that “no ballot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.”
52. Pursuant to a consent decree entered in April 19, 2010 by the State of Ohio, the Ohio Secretary of State, in Northeast Ohio Coalition for the Homeless v. Brunner (“NEOCH”), S.D. Ohio (E.D.) Case No. C2-06-896, and effective through 2013, County Boards of Elections are prohibited from rejecting provisional ballots cast by voters using the last four digits of their Social Security numbers as identification to vote, where the ballots are cast in the wrong precinct or contain technical affirmation errors “for reasons attributable to poll worker error.” B. Large Numbers of Provisional Ballots Cast and Rejected in Ohio
53. In recent general elections, Ohio County Boards of Elections have rejected large numbers of provisional ballots of lawfully registered voters.
54. A very substantial percentage of the rejected provisional ballots in Ohio in recent elections have resulted from voters being given the wrong precinct ballot, including within the proper polling location. Under Ohio law, County Boards first determined that these are lawfully registered voters before rejecting the ballots for corresponding to the wrong precinct for that voter.
55. In the 2008 election, Ohio County Boards of Elections rejected more than 14,000 provisional ballots on the basis that the ballot had been cast in the wrong precinct or county.
56. In the most recent general election in 2011, Ohio voters cast a total of 3,380 provisional ballots in the correct polling location but were given the wrong precinct ballot. Of these, 1,826 ballots were rejected, and another 1,554 ballots were counted by the County Boards
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of Elections only as a result of the Consent Decree in NEOCH v. Husted. In 2011, County Boards of Elections also rejected an additional 2,392 provisional ballots cast by voters in the wrong precinct and wrong polling place.
57. When the county Boards of Elections rejected these ballots, they did not open or count any of the votes on the ballot, regardless of whether precinct lines were relevant to the race, including votes for federal and statewide office. Upon information and belief, precinct divisions within a county are irrelevant to the majority of federal and state races on Ohio ballots.
58. Substantial numbers of provisional ballots also have been rejected by County Boards of Elections when a voter does not sign the provisional ballot envelope; when a voter or poll worker does not print the voter’s name on the provisional ballot envelope; when a printed name or signature is in the wrong place on the provisional ballot envelope; and when, following the election, a County Board of Elections determines that the voter signature on the provisional ballot envelope does not match the signature on the voter’s registration form. Under Ohio law, County Boards first determine that these ballots were cast by lawfully registered voters before rejecting the ballots for incomplete affirmations.
59. In the 2011 election, County Boards of Elections rejected 240 provisional ballots on the basis that the provisional ballot envelopes were signed but were missing a printed name; 304 provisional ballots on the basis that the provisional ballot envelopes had a printed name but were missing a voter signature; 23 provisional ballots on which the County Board of Elections determined after the election that the signatures on the provisional ballot envelopes did not match the signature exemplars held by the Board; and 1 provisional ballot on the basis that the printed name or signature was in the wrong place on the envelope.
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60. The rates by which provisional ballots are rejected for being the wrong precinct ballot or for technical ballot envelope flaws vary arbitrarily and widely from county to county, polling location to polling location, and precinct to precinct, resulting in the arbitrary and unequal counting and rejecting of the ballots of lawfully registered Ohio voters.
61. Ohio County Boards of Elections’ consideration of poll worker error with respect to provisional ballots cast by individuals using Social Security numbers as identification but refusal to consider poll worker error with respect to provisional ballots cast by individuals using any other form of identification results in the arbitrary and unequal counting and rejecting of the provisional ballots of lawfully registered Ohio voters. C. Voters’ Provisional Ballots Are Rejected for Reasons Attributable to Poll Worker
Error 62. Statewide evidence from recent elections demonstrates that: a) poll workers control whether and how voters receive and cast provisional ballots; b) virtually all of the “wrong precinct” ballots rejected by county boards of elections were given to voters as a result of poll worker error; and c) County Boards of Elections are well aware of the extent and nature of poll worker error that leads to wrong precinct ballots and technical flaws in ballot affirmations. 63. When a voter appears at polling location on Election Day in any county in Ohio, the voter is processed by various poll workers before being allowed to vote. 64. Statewide evidence demonstrates that poll workers are giving voters the incorrect precinct ballots without having complied with the statutory duty to direct a voter to the correct precinct before providing the voter with a provisional ballot. 65. Voters in multi-precinct locations throughout Ohio end up with wrong-precinct ballots due to poll worker error, despite having arrived at the proper polling location. In many
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multi-precinct locations, voters must first check in with poll workers whose duty it is to determine which precinct ballot the voter is supposed to vote. If the voter is given an incorrect ballot or incorrect information that another poll worker uses to retrieve the incorrect ballot, the fact that this voter casts an invalid ballot is due entirely to poll worker error, not because the voter chose to vote “in the wrong precinct.” Other polling locations process all provisional voters at one table, and the poll worker error is the only reason a voter can be given the wrong ballot at those tables.
66. When voters cast provisional ballots at a Board’s office, it is practically impossible for the voter, through some fault of the voter’s, to cast a ballot in the incorrect precinct because a poll worker will provide the voter with the ballot to be cast. Yet, for example, in 2011 in Cuyahoga County, the Board rejected 47 wrong precinct provisional ballots cast “in house” at the Board’s office on the basis that Painter required such rejection.
67. Evidence from counties throughout Ohio reflects that poll workers err in a number of ways in processing voters’ provisional ballots, beginning from the time the voter arrives at a polling location and continuing through the voter’s completion of the provisional ballot envelope and ballot.
68. Poll workers throughout Ohio misunderstand Ohio law and therefore give provisional ballots to anyone not on the precinct register without attempting to discern the correct precinct, in a misguided effort to help people vote.
69. Poll workers throughout Ohio mistakenly think the voter is in the correct precinct, even when they are not able to locate the voter in the poll book.
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70. Poll workers throughout Ohio direct voters to the wrong precincts; or, within a multi-precinct location where poll workers have access to ballot for several precincts, give voters the wrong precinct ballot.
71. Poll workers throughout Ohio fail to give correct precinct information because they make errors in reading the counties’ complicated street guides, particularly where streets are split between precincts by odd and even addresses and where there may be more than one residence with the same street number and street name within a county.
72. Poll workers throughout Ohio are not available to inform voters of where and how they should cast their ballots.
73. Poll workers throughout Ohio do not inform voters that if they vote a provisional ballot in the wrong precinct, it will not count.
74. Poll workers throughout Ohio direct voters to vote provisionally without instructing voters on how and/or where they could cast a regular ballot or a correct precinct provisional ballot.
75. Poll workers throughout Ohio provide voters with provisional ballots without first informing voters of their correct precinct and without voters refusing to cast a ballot in that correct precinct.
76. Poll workers throughout Ohio fail to ensure that voters correctly sign and print their names on provisional ballot envelopes before casting a provisional ballot.
77. Poll workers throughout Ohio borrow ballots or ballot envelopes from another precinct table because they run out of the necessary materials.
78. On information and belief, virtually all of the voters whose provisional ballots are rejected by County Boards of Elections because they were cast in incorrect precincts, were not
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properly informed of their correct precincts and did not refuse to travel to those precincts before casting their ballots.
79. On information and belief, virtually all of the voters whose provisional ballot envelopes are rejected by County Boards of Elections for missing a signature or a printed name, or because there is a misplaced signature or printed name, were not informed by poll workers that they had failed fully or properly to complete the envelope before receiving provisional ballots from the poll workers.
80. When meeting to consider provisional ballots cast in elections from the 2008 general election through the recent 2012 primary, numerous County Boards of Elections have acknowledged that poll worker error results in voters being given wrong precinct ballots and in processing ballots that contain incomplete affirmation forms.
81. Despite acknowledging the existence of poll worker error, County Boards of Elections are required by Ohio law to reject provisional ballots cast by registered voters on the basis that the ballots are cast in the incorrect precinct and contain incomplete or incorrect affirmations and provisional ballot envelopes.
82. County Boards of Elections also use a variety of means to document voter and poll worker questions, problems, and concerns on Election Day, including incident reports and logs. These documents from counties throughout Ohio for the recent 2008 through 2012 elections demonstrate that poll worker errors lead to voters casting provisional ballots on incorrect precinct ballot forms and to voters failing to complete the affirmation and provisional ballot envelopes. On information and belief, other documents in possession and control of the County Boards of Elections demonstrate the extent to which poll worker error exists and results in provisional ballots being disqualified.
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83. In taking the actions described herein, Defendants have acted and will be acting under color of state law.
CLASS DEFINITION AND ALLEGATIONS 84. Plaintiffs bring this case as a defendants’ class action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure against a proposed defendant class of “all members of County Boards of Elections.” Defendants Burke, Hastings and Preisse (hereinafter “named County Defendants”) are members of the proposed class of all members of County Boards of Elections. 85. This action is appropriately certified as a defendants’ class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure because: (i) the class is so numerous that joinder of all members is impracticable; (ii) there are questions of law or fact common to the class; (iii) the defenses of the representative parties are likely typical of the defenses of the class; (iv) the representative parties will fairly and adequately protect the interests of the class; and (v) injunctive relief and corresponding declaratory relief is appropriate with respect to the defendant class as a whole. 86. The proposed defendant class is so numerous that separate joinder of each class member is impracticable. Each of Ohio’s 88 County Boards of Elections has four members. Thus, the proposed class of members of County Boards of Elections consists of 352 individuals. 87. There are questions of fact and law common to the claims and defenses of the named County Defendants and all members of the Class of members of County Boards of Elections. These questions include, but are not limited to, the following: (a) Whether Ohio’s provisional ballot counting statute, Ohio Rev. Code §3505.183(B)(4)(a)(ii), which requires members of County Boards of Elections not to open and
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count provisional ballots cast by individuals in an incorrect precinct as a result of poll worker error, is consistent with the U.S. Constitution and federal voting laws;
(b) Whether Ohio’s provisional ballot counting statute, Ohio Rev. Code §3505.183(B)(4)(a)(iii), which requires members of County Boards of Elections not to open and count provisional ballots in ballot envelopes that contain incomplete or incorrect ballot affirmations as a result of poll worker error, is consistent with the U.S. Constitution and federal voting laws;
(c) Whether declaratory relief, holding unconstitutional the enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(ii) and (iii) where the reasons for rejection of provisional ballots are attributable to poll worker error, is appropriate; and
(d) Whether injunctive relief, requiring members of the County Boards of Elections, absent affirmative evidence that county poll workers have complied with their statutory duties, to open and count provisional ballots that are cast in incorrect precincts and in ballot envelopes that have incomplete or incorrect affirmations, is appropriate.
88. The claims or defenses of the named County Defendants are identical to those of all class members. The named County Defendants, like every other member of the County Boards of Elections, are charged with following Ohio statutory law and Ohio law as interpreted by the Ohio Supreme Court, and with implementing directives of the Defendant Secretary of State. The named County Defendants, like every other member of every County Board of Elections in Ohio, are statutorily required to reject provisional ballots cast by registered voters that are cast in an incorrect precinct, and to reject such ballots where the ballots’ envelopes contain incomplete or incomplete affirmations. Thus, the defenses of the named defendants are
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typical of, indeed identical to, that of class members because the named County Defendants and all class members are all charged with implementing the same unconstitutional state law.
89. The named County Defendants can fairly and adequately represent the interests of the class because their interests are identical to those of class members. As public officials, the named County Defendants will properly defend this action.
90. Because the predominant thrust of Plaintiffs’ claims is that the provisional ballotcounting statute is unconstitutional and because Plaintiffs seek identical relief against each class member, certification of a defendant class is appropriate under Rule 23(b)(2) of the Federal Rules of Civil Procedure.
FIRST CLAIM FOR RELIEF Rejection of “Wrong Precinct” Ballots – Severe Burden on Fundamental Right to Vote in Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983 91. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 92. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots without exception, as set forth in Ohio Rev. Code §3505.183(B)(4)(a)(ii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decision of Painter, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by causing a severe and arbitrary denial of the fundamental right to vote of registered Ohio voters. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this rule are rejected for reasons attributable to poll worker error.
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93. Defendants’ actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
SECOND CLAIM FOR RELIEF Rejection of Ballots for “Technical Deficiencies” in Ballot Envelope –
Severe Burden on Fundamental Right to Vote in Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983
94. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
95. Ohio’s strict provisional ballot law requiring disqualification of ballots when the provisional ballot envelope contains sufficient information for the county to identify the lawfully registered voter but when that envelope is missing or has a misplaced voter signature or printed name, without exception, as set forth in Ohio Rev. Code §3505.183(B)(4)(a)(iii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by causing the severe and arbitrary denial of the fundamental right to vote of registered Ohio voters. No legitimate state interest justifies such an extraordinary burden on the right to vote where virtually all ballots rejected pursuant to this rule were processed by poll workers who failed to comply with their duty to ensure the completion of Ohio’s voting forms.
96. Defendants’ actions implementing the Ohio state law prohibiting the counting of provisional ballots with “technical deficiencies” in the ballot envelope deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
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THIRD CLAIM FOR RELIEF Unnecessary Burden on the Right to Vote for U.S. Representative– Violation of Article I, Section Two of the United States Constitution;
42 U.S.C. §1983 97. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 98. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots and ballots with technical flaws in the ballot envelope form, without exception, as set forth in Ohio Rev. Code §§3505.183(B)(4)(a)(ii)-(iii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, imposes an unnecessary burden on the right to cast and have counted a ballot for United States Representative in violation of Article I, Section 2 of the United States Constitution. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this law are rejected for reasons attributable to poll worker error. 99. Defendants’ actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
FOURTH CLAIM FOR RELIEF Unnecessary Burden on the Right to Vote for U.S. Senator– Violation of the Seventeenth Amendment of the United States Constitution;
42 U.S.C. §1983 100. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 101. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots and ballots with technical flaws in the ballot envelope form, without exception, as set
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forth in Ohio Rev. Code §§3505.183(B)(4)(a)(ii)-(iii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, imposes an unnecessary burden on the right to cast and have counted a ballot for United States Senator in violation of the Seventeenth Amendment to the United States Constitution. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this law are rejected for reasons attributable to poll worker error.
102. Defendants’ actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
FIFTH CLAIM FOR RELIEF Unequal Treatment of Provisional Voters – Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983 103. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 104. Plaintiffs’ members and other registered voters required by Ohio law to cast provisional ballots are treated arbitrarily and unequally from county to county, polling location to polling location, and precinct to precinct with respect to the counting and rejection of provisional ballots based on: the wrong precinct rule, incomplete or misplaced information on the provisional ballot envelope, and comparison of the voter’s signature on the provisional ballot envelope to a signature previously provided to the Board by the voter. These voters are subject to inconsistent practices by poll workers and County Boards of Elections from county to county.
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This arbitrary rejection of voters’ ballots violates the uniformity required by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
105. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
SIXTH CLAIM FOR RELIEF Unequal Treatment of Provisional Voters Based on Form of Identification –
Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983
106. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
107. Plaintiffs’ members and other individuals required by Ohio law to vote provisional ballots are treated differently based on the type of identification they use to vote. Ohio County Boards of Elections’ consideration of poll worker error with respect to ballots cast by individuals using Social Security numbers as identification but refusal to consider poll worker error with respect to ballots cast by individuals using any other form of identification results in the arbitrary and unequal counting and rejecting of the ballots of lawfully registered Ohio voters in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
108. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
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Violation of the Substantive Due Process Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983
109. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
110. Ohio’s strict provisional ballot laws requiring disqualification of entire ballots of lawfully registered voters for reasons attributable to poll worker error, including the rejection of and refusal to count wrong precinct provisional ballots and provisional ballots with “technical deficiencies” in the ballot envelopes, renders Ohio’s provisional ballot laws fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
111. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
EIGHTH CLAIM FOR RELIEF Violation of the Procedural Due Process Clause of the Fourteenth Amendment
of the United States Constitution; 42 U.S.C. §1983 112. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 113. Defendants’ rejection of provisional ballots without notice to voters on the basis of a Board’s post-election determination that a voter’s signature on a provisional ballot envelope does not match the signature previously provided by the voter to the Board violates the Procedural Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
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114. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
NINTH CLAIM FOR RELIEF Violation of the Voting Rights Act of 1965, 42 U.S.C. §1971; 42 U.S.C. §1983;
Violation of Supremacy Clause of the United States Constitution 115. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 116. Under Section 1971(a)(2) of the Voting Rights Act, “[n]o person acting under color of law shall . . . (B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such an election.” 117. Ohio law requires the denial of the right of registered voters to vote because of ballot and ballot envelope errors that are not material to determining whether the voters are qualified to vote in the election contests on the ballot: 118. When voters cast provisional ballots in the wrong precinct as a result of poll worker error, the fact that the ballots were cast in the wrong precinct is not material to determining the voters’ qualifications to vote in the election. 119. When voters cast provisional ballots that have technical deficiencies in the ballot affirmations and envelopes as a result of poll worker error, those deficiencies are not material to determining the voters’ qualifications to vote in the election. 120. Defendants’ actions pursuant to this Ohio law, violate Section 1971(a)(2) of the Voting Rights Act.
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121. Defendants’ actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the federal laws of the United States, in violation of 42 U.S.C. §1983, and are inconsistent with Section 1971(a)(2) of the Voting Rights Act and are preempted by the Supremacy Clause of the U.S. Const., art. IV.
TENTH CLAIM FOR RELIEF Violation of Rights Granted Under the Help America Vote Act of 2002, 42 U.S.C. §15301 et seq.; Violation of Supremacy Clause of Article 6 of the United States
Constitution; 42 U.S.C. §1983 122. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 123. Under HAVA, states must provide a “fail safe” voting mechanism. HAVA requires that a voter be given the opportunity to vote provisionally in a federal election if the individual affirms in writing that she is “a registered voter in the jurisdiction in which the individual desires to vote,” and that she is “eligible to vote in that election.” 42 U.S.C. §15482(a)(2)(A)-(B). 124. HAVA’s provisional voting requirements are intended to approximate conditions in which voters interact with a voting system free of human error. Thus, “[i]f a person presents at a polling place and seeks to vote, and if that person would be allowed to vote by an honest election worker with perfect knowledge of the facts and law, then the person’s vote should count.” Sandusky County Dem. Pty. v. Blackwell, 387 F.3d 565, 570 (6th Cir. 2004).
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125. Under HAVA, Plaintiffs’ members who are required by Ohio to cast provisional ballots have a federal right to have those ballots counted if an election official acting with perfect knowledge of the facts and law would have determined the members were eligible to vote in the election.
126. Ohio’s refusal to count provisional ballots of registered Ohio voters for reasons that are attributable to poll worker error directly contravenes the purpose of HAVA and its mandate that an individual be permitted to cast provisional ballots that will be counted if an election worker had had “perfect knowledge” at the time the individual sought to cast a regular ballot.
127. Defendants’ actions therefore deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the federal law, in violation of 42 U.S.C. §1983, are inconsistent with and stand as an obstacle to the purposes of HAVA, and are preempted by the Supremacy Clause of the U.S. Const., art. IV.
IRREPARABLE HARM 128. Defendants’ actions, as alleged herein, have resulted in, and will continue to result in, irreparable injury to Ohio voters including Plaintiffs and their members for which Plaintiffs and their members have no plain, speedy, or adequate remedy at law. Some of Plaintiffs’ members will suffer irreparable injury in that they will be deprived of their right to cast a ballot in upcoming elections that will be counted. 129. Defendants’ actions will also result in harm to the Plaintiff organizations, which dedicate significant resources to voter education and voter registration in Ohio, efforts that will be undermined by Defendants’ unlawful conduct. Additionally, Plaintiffs will be harmed by
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Defendants’ unlawful conduct because they will need to divert limited resources to address the effects of that conduct.
130. The balance of harms favors entering an injunction because the harm suffered by individuals denied their fundamental right to vote in violation of the Constitution and federal law outweighs any potential interest Defendants may articulate in support of rejecting the votes of lawfully registered Ohio voters. No such legitimate interest exists to support this strict disqualification law. It is in the public interest that the Court grant an injunction to ensure that Plaintiffs, their members, and the electorate of Ohio that lawfully registered voters not have their votes discarded as a result of poll worker error.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies: a) Assume jurisdiction over this action and maintain continuing jurisdiction until Defendants are in full compliance with every order of this Court; b) Certify this case as a defendants’ class action against a class of all members of County Board of Elections; c) Declare that Ohio Rev. Code §3505.183(B)(4)(a)(ii) and Defendants’ enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(ii) violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, Article I, Section 2, and the Seventeenth Amendment of the U.S. Constitution, the Voting Rights Act, the Help America Vote Act, and 42 U.S.C. §1983, and are preempted by the Supremacy Clause; d) Declare that Ohio Rev. Code §3505.183(B)(4)(a)(iii) and Defendants’ enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(iii) with respect to missing or misplaced voter and poll worker signatures and printed names on the provisional ballot envelope violates
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the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, Article I, Section 2, and the Seventeenth Amendment of the U.S. Constitution, the Voting Rights Act, the Help America Vote Act, and 42 U.S.C. §1983, and are preempted by the Supremacy Clause;
e) Declare that Defendant County Boards of Elections’ rejection of provisional ballots without notice to voters on the basis a voter’s signature does not match the voter’s signature previously submitted by the voter to the Board violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, and 42 U.S.C. §1983;
f) Grant a preliminary and permanent injunction enjoining Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them from:
i) implementing Ohio Rev. Code §3505.183(B)(4)(a)(ii) to prohibit the counting of a provisional ballot cast by a lawfully registered voter in a precinct other than the one to which the voter is assigned, absent specific affirmative evidence from the poll worker that the voter was directed to the polling place for the precinct in which he or she appeared to be eligible to vote, was informed that his or her vote would not count, and insisted on voting an invalid ballot in the wrong precinct;
ii) implementing Ohio Rev. Code §3505.183(B)(4)(a)(iii) to prohibit the counting of a provisional ballot cast by a lawfully registered voter that is missing or has a misplaced signature or printed name, absent specific affirmative evidence that the poll worker complied with his or her
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statutory duty and properly instructed the voter that the affirmation form was incomplete and the voter refused to complete the form; and iii) rejecting any provisional ballots without notice to the voters on the grounds that the signature on the provisional ballot envelope does not match a signature previously provided by the voter to a Board of Elections; g) Award the Plaintiffs the costs of this action and reasonable attorneys’ fees pursuant to 42 U.S.C. §§1988, 12133, 12205; and as otherwise may be allowed by law; and h) All such other and further relief as the Court deems to be just and equitable.

Dated: July 13, 2012

Respectfully submitted
/s/Michael J. Hunter MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com
Attorneys for All Plaintiffs
STEPHEN P. BERZON (pro hac vice application pending) STACEY M. LEYTON (pro hac vice application pending) BARBARA J. CHISHOLM (pro hac vice application pending) DANIELLE LEONARD (pro hac vice application pending) Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com

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Case: 2:12-cv-00562-ALM-TPK Doc #: 32 Filed: 07/13/12 Page: 41 of 42 PAGEID #: 3766 Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC PENDA HAIR (pro hac vice application pending) DONITA JUDGE (pro hac vice application pending) UZOMA NKWONTA (pro hac vice application pending) Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org Attorneys for Plaintiff OOC
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CERTIFICATE OF SERVICE
I certify that on July 13, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. All parties have entered appearances with Court and will be notified through and may access the foregoing on the CM/ECF system.
/s/Michael J. Hunter MICHAEL J. HUNTER, trial attorney (0018756)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL

: Case No. 2:12-cv-562

UNION, LOCAL 1; UNITED STEEL, PAPER AND :

FORESTRY, RUBBER, MANUFACTURING,

:

ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION; INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

: SECOND AMENDED

: : :

COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTIVE RELIEF

AGRICULTURAL IMPLEMENT WORKERS OF

:

AMERICA, LOCAL 1005; INTERNATIONAL

:

UNION, UNITED AUTOMOBILE, AEROSPACE :

AND AGRICULTURAL IMPLEMENT WORKERS :

OF AMERICA, LOCAL 863; UNITED FOOD AND :

COMMERCIAL WORKERS UNION, LOCAL 75; :

UNITED FOOD AND COMMERCIAL WORKERS :

UNION, LOCAL 880; UNITED FOOD AND

:

COMMERCIAL WORKERS UNION, LOCAL

:

1059; INTERNATIONAL CHEMICAL WORKERS :

UNION, A COUNCIL OF UNITED FOOD AND

:

COMMERCIAL WORKERS; and OHIO

:

ORGANIZING COLLABORATIVE,

:

:

Plaintiffs,

:

:

vs.

:

:

JON HUSTED, in his official capacity as Secretary of :

State of Ohio,

:

:

Defendant.

:

:

:

:

:

:

:

:

:

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Plaintiffs Service Employees International Union Local 1 (“SEIU Local 1”); United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”), Local 1005 (“UAW Local 1005”); UAW, Local 863 (“UAW Local 863”); United Food and Commercial Workers Union, Local 75 (“UFCW Local 75”); United Food and Commercial Workers Union, Local 880 (“UFCW Local 880”); United Food and Commercial Workers Union, Local 1059 (“UFCW Local 1059”); International Chemical Workers Union, a Council of the United Food and Commercial Workers (“ICWUC”); and Ohio Organizing Collaborative (“OOC”) seek declaratory and injunctive relief against Defendant Ohio Secretary of State Jon Husted pursuant to 42 U.S.C. §1983 and the Declaratory Judgment Act, 28 U.S.C. §§2201 and 2202. As set forth more fully below, Ohio elections law mandates that elections officials disqualify provisional ballots cast by lawfully registered voters for reasons attributable to poll worker error. The failure of Defendant Husted to ensure that all votes in federal, state, and local elections cast by the lawfully registered Ohio voters who are required under Ohio law to cast provisional ballots are counted despite poll worker and election official error has resulted and will continue to result in a denial of the fundamental right to vote of Ohio voters, including Plaintiffs’ members, in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the right to vote for Congress protected by Article I, Section II and the Seventeenth Amendment to the United States Constitution, and federal voting statutes.
INTRODUCTION 1. In the wake of the 2000 federal election, the United States Congress passed the Help America Vote Act (“HAVA”), 42 U.S.C. §15301 et seq., which requires states to allow
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individuals to cast “provisional” ballots in the event that the voter believes he or she is registered to vote but for some reason does not appear on the list of registered voters at the polls on election day. Congress expressly stated that HAVA’s provisional voting option is to act as a “fail safe” mechanism to prevent the arbitrary disenfranchisement by state officials of lawfully registered voters in federal elections so long as the state or local officials are able to later verify voters’ registration.
2. In 2006, Ohio enacted one of the nation’s most complicated provisional ballot laws. See Ohio. Rev. Code §3505.181-183. Ohio requires at least thirteen categories of voters to cast provisional, rather than regular, ballots. As a result, Ohio voters have cast hundreds of thousands more provisional ballots than voters in states with comparable voting populations. In 2008 alone, Ohio voters cast more than 200,000 provisional ballots out of 5.7 million votes. As a result, with a far smaller population, Ohio ranks second only to California in total number of provisional ballots cast. States with comparable voting populations required voters to cast far fewer provisional ballots in the 2008 election: Michigan (approximately 5 million votes, only 3,797 provisional ballots cast); Virginia (approximately 3,750,000 votes, only 4,575 provisional ballots cast); Wisconsin (3 million votes; only 211 provisional ballots cast).
3. In addition to requiring substantial categories of provisional voters to cast provisional ballots, Ohio law also requires the Secretary of State and County Boards of Election to reject provisional ballots for many reasons. In the 2008 election, over 40,000 of Ohio’s provisional ballots were rejected and the numbers in other recent elections have also been substantial. And, a very large number of ballots cast by lawfully registered voters in Ohio have been rejected in every recent election for reasons directly attributable to poll worker error.
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4. The most egregious example of widespread disqualification of ballots of registered voters because of poll worker error results from the provisional ballot statute provision, Ohio Rev. Code §3505.183(b)(4)(ii), which requires the Secretary of State and County Boards of Election to reject and not count all votes cast on a provisional ballot if the ballot does not correspond to the voter’s assigned precinct. The Ohio Supreme Court in 2011 in State ex rel. Painter v. Brunner, 128 Ohio St.3d 17 (2011), adopted the most strict possible interpretation of this statute, requiring rejection of all wrong-precinct provisional ballots without exception, even where the election officials know that poll worker error led to the voter being provided with the wrong ballot. This Ohio law requires rejection not just of the votes cast for precinct-level elections, but all votes on the ballot, including votes for President and Vice President, United States Representative and Senator, Governor, and other state and local races.
5. The unfair application of this law has become all the more egregious in light of Ohio’s increasing consolidation of voting precincts into multi-precinct polling locations, where poll workers give a wrong precinct ballot to a voter who has come to vote in the correct polling location, only to have that ballot disqualified in its entirety, with no notice to the voter, after the election. In some counties, one hundred percent of precincts are now located in multi-precinct polling locations. Ohio ranks at near the top of the nation in use of multi-precinct locations.
6. Ohio law also prohibits Secretary of State and County Boards of Elections from counting all votes on provisional ballots cast by registered voters, even if cast in the correct precinct, if the poll worker processes a provisional ballot without ensuring that all required information is recorded on the envelope in which the provisional ballot is submitted, despite the obligation under Ohio law for the poll worker to ensure that the envelope properly be completed.
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7. In elections from 2008 through the March 2012 primary elections, thousands of registered Ohio voters did not have their votes counted as a result of poll worker error under these very strict Ohio provisional ballot disqualification laws. Although the rate of provisional ballots cast and rejected, along with the reasons for rejection, varies by county, a very substantial percentage of all provisional ballots rejected in Ohio are rejected because the voter was provided a precinct ballot that did not correspond to the voter’s assigned precinct, or as a result of the poll workers’ failure to ensure the proper completion of voting forms.
8. Under these Ohio election laws, and the corresponding directives to County Boards of Elections issued by Defendant Secretary of State Husted, in the upcoming November 2012 general election the Secretary of State and County Boards of Election will reject thousands of provisional ballots cast by qualified, registered voters because the ballots were cast incorrectly as a result of poll worker error, either because the poll worker provided the would-be voter with the incorrect precinct ballot or because the poll worker failed to ensure that the provisional ballot envelope was completed.
9. The arbitrary disqualification of ballots required by Ohio’s provisional ballot laws results in the unconstitutional and disparate treatment of Ohio voters, and is fundamentally at odds with the purposes of provisional voting. This severe burden on the fundamental right to vote – the right preservative of all rights in our democracy – cannot be justified by any state interest, let alone a compelling interest, and violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution, as well as the right to vote in federal congressional elections protected by Article I, Section 2 and the Seventeenth Amendment, and is fundamentally at odds with the purposes and protection of the federal Voting Rights and Help America Vote Acts.
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This Court should enjoin the Ohio Secretary of State from enforcing the “wrong precinct” requirement for rejecting provisional ballots, Ohio Rev. Code §3505.183(B)(4)(a)(ii). The enforcement of this rule creates a real and imminent threat that Plaintiffs’ members and thousands of other voters will be unjustly and unlawfully denied their fundamental right to vote in the upcoming November 2012 election. The Court should further enjoin the Ohio Secretary of State from enforcing Ohio Rev. Code §3505.183(B)(4)(a)(iii) to prohibit the counting of a provisional ballot cast by a lawfully registered voter in a provisional ballot envelope that is missing or has a misplaced signature or printed name, and from rejecting any provisional ballots without notice to the voters on the grounds that the signature on the provisional ballot envelope does not match a signature previously provided by the voter to a Board of Elections.
PARTIES Plaintiffs 10. Plaintiff SEIU Local 1 is a local union affiliated with the Service Employees International Union. SEIU Local 1 currently represents approximately 4,000 workers in Ohio. SEIU Local 1 represents numerous low-wage workers who live in large urban counties and who are registered to vote in Ohio, including many voters who are assigned to vote at multi-precinct voting locations. SEIU Local 1 engages in voter registration, education and other electionrelated activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which SEIU Local 1’s members are associated together and is germane to the union’s interests. Article II of the Constitution of the Service Employees International Union provides that one of the union’s primary purposes is to “engag[e] in all such civic, social, political, [and] legal . . . activities, whether on local [or] national . . . levels,” to advance the
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union’s “standing in the community” and to “further the interests of [the] organization and its membership.”
11. Erin Kramer is the SEIU Local 1 Director for Ohio and Indiana, a member of SEIU Local 1, and a registered voter in Franklin County in Ohio. Ms. Kramer plans to vote in the November 2012 election, and wishes to have her ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
12. Plaintiff USW currently represents more than 47,000 workers in Ohio. USW represents workers who live in every one of Ohio’s eighty-eight counties. A large number of USW’s Ohio membership is registered to vote in Ohio, and many USW members are assigned to vote at multi-precinct voting locations. USW engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purpose for which USW’s members are associated together and is germane to the union’s interests. As set forth in USW’s Constitution, one of the organization’s primary purposes is “[t]o engage in educational, legislative, political, civic, . . . community and other activities,” including with the goals of “protect[ing] and extend[ing] our democratic institutions and civil rights and liberties,” and advancing “the cherished traditions of democracy . . . in the United States.”
13. David McCall is the Director of USW District 1, a member of USW, and a registered voter in Franklin County in Ohio. Mr. McCall plans to vote in the November 2012 election, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
14. Plaintiff UAW Local 1005 currently represents approximately 1,400 active members and 3,000 retired workers in Ohio. UAW Local 1005 represents automobile workers and janitorial workers. UAW Local 1005’s members primarily reside in six Ohio counties:
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Cuyahoga County, Medina County, Lorain County, Lake County, Summit County, and Portage County. A large number of UAW Local 1005’s members are registered to vote in Ohio, and many of these registered voters are assigned to vote at multi-precinct polling locations. UAW Local 1005 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which the union’s members are associated together and is germane to the union’s interests. The UAW Constitution provides in its preamble that “Union members must take seriously their responsibilities as citizens and work, through their union and individually, to realize the goals of participatory democracy,” and, in Article II, states that one of the primary objects of the organization is “[t]o engage in legislative, political, educational, civic . . . and other activities which further . . . the joint interests of the membership of th[e] organization.”
15. Steven Frammartino is the President of UAW Local 1005, a member of that union, and a registered voter in Cuyahoga County in Ohio. Mr. Frammartino previously has been assigned to vote in a multi-precinct polling location and, in voting at such plans to such a location, has experienced the difficulty of determining whether, within a multi-precinct location, one is voting in the correct precinct. Mr. Frammartino intends to vote in the November 2012 elections, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming election.
16. Plaintiff UAW Local 863 currently represents approximately 1,500 active members and 4,500 retired workers, many of whom reside in and around Hamilton County, Ohio. UAW Local 863 represents automobile manufacturing workers employed by Ford in Sharonville, Ohio. Many of UAW Local 863’s members are registered to vote in Ohio, primarily in Hamilton County, and many of the members who are registered to vote are assigned to multi-
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precinct polling locations. In the 2012 primary, Hamilton County assigned more than sixty percent of its precincts to multi-precinct polling locations. UAW Local 863 engages in voter education and other election-related activities within the State of Ohio on behalf of its members. This action pertains to the purposes for which the union’s members are associated together and is germane to the union’s interests. As noted above, the UAW Constitution provides in its preamble that “Union members must take seriously their responsibilities as citizens and work, through their union and individually, to realize the goals of participatory democracy,” and, in Article II, states that one of the primary objects of the organization is “[t]o engage in legislative, political, educational, civic . . . and other activities which further . . . the joint interests of the membership of th[e] organization.”
17. Rick Lawwill is the President of UAW Local 863, a member of that union, and a registered voter in Butler County in Ohio. Mr. Lawwill, in past elections, has been assigned to vote in multi-precinct polling locations and personally has been confused about how, within that multi-precinct location, to determine where properly to cast a ballot that will be counted. Mr. Lawwill plans to vote in the November 2012 elections, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming election.
18. Members of Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC are registered Ohio voters who have been required to vote provisional ballots in recent Ohio elections, for one of the thirteen reasons required by Ohio law for voting provisional ballots. On information and belief, each of the Plaintiff organizations has members who are registered to vote in Ohio, who will attempt to vote in the upcoming 2012 general election, and who will be required by poll workers to cast provisional ballots. On information and belief, each of the Plaintiff organizations has
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members who are registered to vote in Ohio, will be required to cast provisional ballots in upcoming elections, and will not have their ballots opened and counted by Ohio County Boards of Elections for reasons attributable to poll worker error, including for the reason that the ballot was cast in the “wrong precinct” and based on technical deficiencies in the provisional ballot injury. On information and belief, as a result, these voters will have all votes for federal, state and local elections disqualified, and will be thereby be deprived of their right to vote in upcoming elections.
19. Plaintiff UFCW Local 75 is a local union affiliated with the United Food and Commercial Workers Union. UFCW Local 75 currently represents approximately 25,000 active and retired workers in Ohio. Most of these members are registered to vote. Some are assigned to vote at multi-precinct voting locations, and some will be assigned to polling locations that have moved or been consolidated. UFCW Local 75 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. Some members of UFCW Local 75 have been required to cast provisional ballots in past elections and, on information and belief, some of those ballots have not been counted for reasons attributable to poll-worker error. UFCW Local 75 is concerned to ensure that its members’ and other voters’ ballots in upcoming elections are counted. This action pertains to the purposes for which UFCW Local 75’s members are associated together and is germane to the union’s interests. Article 2 of the UFCW Constitution provides that “political freedom” and “the successful functioning of a democracy,” “advanc[ing] the principles and practice of freedom and democracy for all,” “to encourage members and all workers to register to vote,” and engaging in “legislative, political [and] civic” activities are core objectives of UFCW. Article III of UFCW Local 75’s bylaws sets forth similar objectives.
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20. William James Dudley is the UFCW Local 75 Director of Legislative and Strategic Campaigns, a member of UFCW Local 880, and a registered voter in Warren County in Ohio. Mr. Dudley plans to vote in the November 2012 election, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
21. Plaintiff UFCW Local 880 is a local union affiliated with the United Food and Commercial Workers Union. UFCW Local 880 currently represents approximately 22,000 active and retired workers in Ohio. Most of these members are registered to vote. Some are assigned to vote at multi-precinct voting locations, and some will be assigned to polling locations that have moved or been consolidated. UFCW Local 880 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. Some members of UFCW Local 880 have been required to cast provisional ballots in past elections and, on information and belief, some of those ballots have not been counted for reasons attributable to poll-worker error. UFCW Local 880 is concerned to ensure that its members’ and other voters’ ballots in upcoming elections are counted. This action pertains to the purposes for which UFCW Local 880’s members are associated together and is germane to the union’s interests. Article 2 of the UFCW Constitution provides that “political freedom” and “the successful functioning of a democracy,” “advanc[ing] the principles and practice of freedom and democracy for all,” “to encourage members and all workers to register to vote,” and engaging in “legislative, political [and] civic” activities are core objectives of UFCW. Article III of UFCW Local 880’s bylaws sets forth similar objectives.
22. Bob Gravougl is the UFCW Local 880 President, a member of UFCW Local 880, and a registered voter in Wayne County in Ohio. Mr. Gravougl plans to vote in the November
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2012 election, and wishes to have his ballot and the ballots of all other qualified and registered Ohio voters counted in any forthcoming elections.
23. Plaintiff UFCW Local 1059 is a local union affiliated with the United Food and Commercial Workers Union. UFCW Local 1059 currently represents approximately 17,500 active and retired workers in Ohio. Most of these members are registered to vote. Some are assigned to vote at multi-precinct voting locations, and some will be assigned to polling locations that have moved or been consolidated. UFCW Local 1059 engages in voter registration, education and other election-related activities within the State of Ohio on behalf of its members. Some members of UFCW Local 1059 have been required to cast provisional ballots in past elections and, on information and belief, some of those ballots have not been counted for reasons attributable to poll worker error. UFCW Local 1059 is concerned to ensure that its members’ and other voters’ ballots in upcoming elections are counted. This action pertains to the purposes for which UFCW Local 1059’s members are associated together and is germane to the union’s interests. Article 2 of the UFCW Constitution provides that “political freedom” and “the successful functioning of a democracy,” “advanc[ing] the principles and practice of freedom and democracy for all,” “to encourage members and all workers to register to vote,” and engaging in “legislative, political [and] civic” activities are core objectives of UFCW. Local 1059’s bylaws contain similar provisions.
24. Plaintiff International Chemical Workers Union, a Council of the United Food and Commercial Workers (“ICWUC”), is affiliated with the United Food and Commercial Workers Union and has local union affiliates that represent members in Ohio. ICWUC’s member local unions currently represent hundreds of workers in Ohio including many registered voters. Some are assigned to vote at multi-precinct voting locations, and some will be assigned
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to polling locations that have moved or been consolidated. ICWUC and its member local unions engage in voter registration, education and other election-related activities within the State of Ohio on behalf of members. ICWUC is concerned to ensure that members’ and other voters’ ballots in upcoming elections are counted. This action pertains to the purposes for which ICWUC and its member locals’ members are associated together and is germane to the union’s interests. Article 2 of the UFCW Constitution, which governs ICWUC, provides that “political freedom” and “the successful functioning of a democracy,” “advanc[ing] the principles and practice of freedom and democracy for all,” “to encourage members and all workers to register to vote,” and engaging in “legislative, political [and] civic” activities are core objectives of UFCW.
25. Plaintiff Ohio Organizing Collaborative (“OOC”) is a statewide, nonpartisan community organizing and advocacy association comprised of faith-based, labor, and neighborhood organizations that works to build and support community throughout Ohio. OOC has a voter engagement campaign, the primary goal of which is to ensure that all Ohioans who are eligible and want to vote are able to do so. The OOC devotes staff and financial resources toward this end. As a result of OOC’s understanding that poll worker errors jeopardize the ability of voters who cast provisional ballots on Election Day to have those ballots counted, OOC has decided to dedicate a large portion of its limited staff time and resources this summer and fall to addressing this problem, including by putting additional funds into voter registration efforts and into more broadly-applicable voter education efforts. If Ohio County Boards of Elections were not invalidating provisional ballots because of poll worker error, OOC would be using these limited resources on other organizational priorities.
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Defendant 26. Defendant Jon Husted is the current Ohio Secretary of State, a public officer of the State of Ohio and is named as Defendant in this action in his official capacity only. In his capacity as Secretary of State, Defendant Husted is the chief elections official of the State and has supervisory control over local election officials. Ohio Rev. Code §3501.05. He is responsible for administering all statewide elections, including for federal office, appointing all members of the County Boards of Elections, issuing instructions and promulgating rules for the conduct of elections, publishing manuals of instructions on elections administration for use at polling places, prescribing uniform forms and notices for use in the conduct of elections, instructing County Boards of Elections with respect to election administration and compelling observance with those instructions, prescribing training of polling place officials, and certifying statewide election results. Id. The County Boards of Elections operate as agents of the Secretary of State for purposes of election administration, including the counting and rejection of provisional ballots.
JURISDICTION 27. This action for declaratory and injunctive relief arises under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the United States Constitution; Article I, Section 2 of the United States Constitution; the Seventeenth Amendment to the United States Constitution; the Voting Rights Act of 1965, 42 U.S.C. §1971; the Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §15301 et seq.; 42 U.S.C. §1983; and the Supremacy Clause, U.S. Const., Art. VI, cl. 2. This Court has subject matter jurisdiction of this action under 28 U.S.C. §§1331, 1343(3) & (4), and 42 U.S.C. §§1971(d), and 1973j(f). Plaintiffs’ claims for declaratory
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and injunctive are authorized under 28 U.S.C. §§2201 and 2202. At all times relevant to this action, Defendant has acted under color of state law.
VENUE 28. Venue in this district and division is proper under 28 U.S.C. §1391(b) because this action is predicated upon a federal question and a substantial part of the events or omissions giving rise to the claims alleged herein occurred, and will continue to occur, in this district. Plaintiffs have members who are registered to vote in the district and who will be subject in the district to the unlawful practices described in this Complaint.
INTRADISTRICT ASSIGNMENT 29. Pursuant to Civil L. R. 3-8, this action should be assigned to the Eastern Division of the Southern District of Ohio, because a substantial part of the events and omissions giving rise to the claims herein occurred in counties in the Eastern Division. Plaintiffs SEIU Local 1, USW, UFCW Local 75, and UFCW Local 880 have numerous members who live and are registered to vote within the Eastern Division; and the Defendant Secretary of State has his main offices in the Eastern Division.
FACTUAL ALLEGATIONS A. Provisional Voting 30. In response to numerous problems in the state administration of federal elections revealed by the 2000 Presidential election, Congress enacted the Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §15301 et seq. HAVA mandates that all States permit certain individuals to cast provisional ballots. One of Congress’ central purposes in enacting HAVA was to provide a “fail-safe” mechanism to prevent the disenfranchisement of voters on Election Day as a result
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of errors in processing voters by states, where voter registration and eligibility to vote can be
verified after Election Day.
31. HAVA requires that all States permit individuals whose name does not appear on
the official list of eligible voters for the polling place to cast a provisional ballot, to be verified
after the election:
If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows:
(1) Notification. An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election. (2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is–
(A) a registered voter in the jurisdiction in which the individual desires to vote; and (B) eligible to vote in that election.
42 U.S.C. §15482(a).
32. HAVA further provides that “[a]n election official at the polling place shall
transmit” a provisional ballot or the written affirmation to an appropriate State or local election
official for verification. 42 U.S.C. §15482(a)(3). HAVA also requires states to provide a
mechanism to voters to learn whether their votes have been counted. Id. §15482(a)(5)(B).
B. Ohio Law Governing Casting and Counting of Provisional Ballots
33. Pursuant to Ohio law, there are thirteen different statutorily-defined circumstances
in which voters are not permitted to cast regular ballots, and instead must use provisional ballots.
Ohio Rev. Code §3505.181(A)(1)-(13). Only one of these is when the voter is not included in
the precinct list. Id. §3505.181(A)(1).
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34. Ohio law governs when, and the manner in which, poll workers should provide
voters with provisional ballots at the polling place. Ohio poll workers must first determine
whether a voter is included on the precinct list of registered voters, and if the voter is required to
vote provisionally for one of the thirteen statutory reasons. Ohio Rev. Code §3505.181(C)(1)
provides:
If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which the individual desires to vote, or if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions.
35. Ohio law further provides that a poll worker should provide a provisional ballot to
a voter not on the precinct list only if the voter has been directed to the proper precinct, and the
voter “refuses to travel to the polling places for the correct jurisdiction or to the office of the
board of elections to cast a ballot.” Ohio Rev. Code §3505.181(C)(2).
36. Once a poll worker determines that an individual must cast a provisional rather
than regular ballot, the poll worker is required to provide the voter with an affirmation form and
instruct the individual to complete “a written affirmation . . . before an election official at the
polling place” stating that she or he is a “registered voter in the jurisdiction in which the
individual desires to vote” and “[e]ligible to vote in that election.” Ohio Rev. Code
§3505.181(B)(2)(a)-(b).
37. Ohio has created a uniform provisional ballot affirmation form to be printed by all
88 Boards on provisional ballot envelopes. Ohio poll workers have the duty to make sure the
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voter fills out the provisional ballot affirmation correctly, and must verify that the affirmation has been completed before providing a voter with a provisional ballot. Ohio Rev. Code §§3505.181(B)(6), 3505.182, 3505.183(B)(1); see also Skaggs ex rel. Skaggs v. Brunner, 588 F.Supp.2d 828, 836 (S.D. Ohio 2008).
38. The provisional ballot envelopes, together with the ballots inside those envelopes, are transmitted to the County Boards of Elections for their post-election determination of whether “individual[s’] provisional ballot[s] shall be counted as a vote[s] in [the] election.” Ohio Rev. Code §3505.181(B)(4); see also id. §3501.1(L), 3505.183(D). This determination is made pursuant to the requirements set forth in Ohio provisional ballot laws and happens several days after the election, when the results of the regular ballot voting are known. Id. §3505.181(B)(1), (E)(3).
39. To determine the validity of a provisional ballot, a County Board of Elections first must examine its records to determine whether the individual who cast the provisional ballot is registered and eligible to vote in the election. Id. §3505.183(B)(1). The Board also examines the information provided by the voter on his or her provisional ballot affirmation statement. Id.
40. After disqualifying all those provisional ballots that cannot be determined to have been cast by registered voters, the Boards then disqualify ballots for other reasons. Ohio Rev. Code §3505.183(B)(4)(a) provides that “[i]f, in examining a provisional ballot affirmation” and certain additional information provided pursuant to the statute, “the board determines that any of the following applies, the provisional ballot envelope shall not be opened, and the ballot shall not be counted: . . .
(ii) The individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot.
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(iii) The individual did not provide all of the information required under division (B)(1) of this section in the affirmation that the individual executed at the time the individual cast the provisional ballot.” 41. Additionally, Ohio law provides that if, in the Board of Elections’ examination of the provisional ballot affirmation and additional information provided pursuant to statute, the board is “unable to determine” whether “the individual named in the affirmation is eligible to cast a ballot in the precinct . . . in which the individual cast the provisional ballot,” then the “provisional ballot envelope shall not be opened, and the ballot shall not be counted.” Ohio Rev. Code §3505.183(B)(4)(b)(ii). 42. Ohio law, as interpreted by the Ohio Supreme Court in Painter, prohibits the Secretary of State and County Boards of Election from investigating or counting provisional ballots cast in the incorrect precinct for reasons attributable to poll worker error. 128 Ohio St.3d at 28, 32. Thus, even when a voter is required to cast provisional ballots during early voting at a Board of Elections office, and is handed the wrong ballot because Board staff mistakenly looks up the voter’s precinct, Painter requires a Board to ignore that undeniable error and reject the vote. Id. at 32. 43. Similarly, Ohio law prohibits the Secretary of State and County Boards of Elections from counting provisional ballots that contain incomplete ballot affirmations. See State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506 (2008); see also Ohio Rev. Code §3505.183(B)(4)(a)(iii). 44. In recent elections, the Boards have not recognized any exception to the rule that they must reject provisional ballots that are in envelopes containing incomplete affirmations that are the result of poll worker error. And Secretary of State Husted has instructed Boards to reject
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provisional ballots on grounds that a voter’s name or signature is in the wrong place on the ballot envelope.
45. Ohio Rev. Code §3505.28 provides that “no ballot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.”
46. Pursuant to a consent decree entered in April 19, 2010 by the State of Ohio, the Ohio Secretary of State, in Northeast Ohio Coalition for the Homeless v. Brunner (“NEOCH”), S.D. Ohio (E.D.) Case No. 06-CV-896, and effective through 2013, County Boards of Elections are prohibited from rejecting provisional ballots cast by voters using the last four digits of their Social Security numbers as identification to vote, where the ballots are cast in the wrong precinct or contain technical affirmation errors “for reasons attributable to poll worker error.” B. Large Numbers of Provisional Ballots Cast and Rejected in Ohio
47. In recent general elections, the Secretary of State and Ohio County Boards of Elections have rejected large numbers of provisional ballots of lawfully registered voters.
48. A very substantial percentage of the rejected provisional ballots in Ohio in recent elections have resulted from voters being given the wrong precinct ballot, including within the proper polling location. Under Ohio law, County Boards first determined that these are lawfully registered voters before rejecting the ballots for corresponding to the wrong precinct for that voter.
49. In the 2008 election, Ohio County Boards of Elections rejected more than 14,000 provisional ballots on the basis that the ballot had been cast in the wrong precinct or county.
50. In the most recent general election in 2011, Ohio voters cast a total of 3,380 provisional ballots in the correct polling location but were given the wrong precinct ballot. Of these, 1,826 ballots were rejected, and another 1,554 ballots were counted by the County Boards
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of Elections only as a result of the Consent Decree in NEOCH v. Husted. In 2011, County Boards of Elections also rejected an additional 2,392 provisional ballots cast by voters in the wrong precinct and wrong polling place.
51. When the County Boards of Elections rejected these ballots, they did not open or count any of the votes on the ballot, regardless of whether precinct lines were relevant to the race, including votes for federal and statewide office. Upon information and belief, precinct divisions within a county are irrelevant to the majority of federal and state races on Ohio ballots.
52. Substantial numbers of provisional ballots also have been rejected by County Boards of Elections when a voter does not sign the provisional ballot envelope; when a voter or poll worker does not print the voter’s name on the provisional ballot envelope; when a printed name or signature is in the wrong place on the provisional ballot envelope; and when, following the election, a County Board of Elections determines that the voter signature on the provisional ballot envelope does not match the signature on the voter’s registration form. Under Ohio law, County Boards first determine that these ballots were cast by lawfully registered voters before rejecting the ballots for incomplete affirmations.
53. In the 2011 election, County Boards of Elections rejected 240 provisional ballots on the basis that the provisional ballot envelopes were signed but were missing a printed name; 304 provisional ballots on the basis that the provisional ballot envelopes had a printed name but were missing a voter signature; 23 provisional ballots on which the County Board of Elections determined after the election that the signatures on the provisional ballot envelopes did not match the signature exemplars held by the Board; and 1 provisional ballot on the basis that the printed name or signature was in the wrong place on the envelope.
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54. The rates by which provisional ballots are rejected for being the wrong precinct ballot or for technical ballot envelope flaws vary arbitrarily and widely from county to county, polling location to polling location, and precinct to precinct, resulting in the arbitrary and unequal counting and rejecting of the ballots of lawfully registered Ohio voters.
55. Ohio County Boards of Elections’ consideration of poll worker error with respect to provisional ballots cast by individuals using Social Security numbers as identification but refusal to consider poll worker error with respect to provisional ballots cast by individuals using any other form of identification results in the arbitrary and unequal counting and rejecting of the provisional ballots of lawfully registered Ohio voters. C. Voters’ Provisional Ballots Are Rejected for Reasons Attributable to Poll Worker
Error 56. Statewide evidence from recent elections demonstrates that: a) poll workers control whether and how voters receive and cast provisional ballots; b) virtually all of the “wrong precinct” ballots rejected by county boards of elections were given to voters as a result of poll worker error; and c) County Boards of Elections are well aware of the extent and nature of poll worker error that leads to wrong precinct ballots and technical flaws in ballot affirmations. 57. When a voter appears at polling location on Election Day in any county in Ohio, the voter is processed by various poll workers before being allowed to vote. 58. Statewide evidence demonstrates that poll workers are giving voters the incorrect precinct ballots without having complied with the statutory duty to direct a voter to the correct precinct before providing the voter with a provisional ballot. 59. Voters in multi-precinct locations throughout Ohio end up with wrong-precinct ballots due to poll worker error, despite having arrived at the proper polling location. In many
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multi-precinct locations, voters must first check in with poll workers whose duty it is to determine which precinct ballot the voter is supposed to vote. If the voter is given an incorrect ballot or incorrect information that another poll worker uses to retrieve the incorrect ballot, the fact that this voter casts an invalid ballot is due entirely to poll worker error, not because the voter chose to vote “in the wrong precinct.” Other polling locations process all provisional voters at one table, and the poll worker error is the only reason a voter can be given the wrong ballot at those tables.
60. When voters cast provisional ballots at a Board’s office, it is practically impossible for the voter, through some fault of the voter’s, to cast a ballot in the incorrect precinct because a poll worker will provide the voter with the ballot to be cast. Yet, for example, in 2011 in Cuyahoga County, the Board rejected 47 wrong precinct provisional ballots cast “in house” at the Board’s office on the basis that Painter required such rejection.
61. Evidence from counties throughout Ohio reflects that poll workers err in a number of ways in processing voters’ provisional ballots, beginning from the time the voter arrives at a polling location and continuing through the voter’s completion of the provisional ballot envelope and ballot.
62. Poll workers throughout Ohio misunderstand Ohio law and therefore give provisional ballots to anyone not on the precinct register without attempting to discern the correct precinct, in a misguided effort to help people vote.
63. Poll workers throughout Ohio mistakenly think the voter is in the correct precinct, even when they are not able to locate the voter in the poll book.
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64. Poll workers throughout Ohio direct voters to the wrong precincts; or, within a multi-precinct location where poll workers have access to ballot for several precincts, give voters the wrong precinct ballot.
65. Poll workers throughout Ohio fail to give correct precinct information because they make errors in reading the counties’ complicated street guides, particularly where streets are split between precincts by odd and even addresses and where there may be more than one residence with the same street number and street name within a county.
66. Poll workers throughout Ohio are not available to inform voters of where and how they should cast their ballots.
67. Poll workers throughout Ohio do not inform voters that if they vote a provisional ballot in the wrong precinct, it will not count.
68. Poll workers throughout Ohio direct voters to vote provisionally without instructing voters on how and/or where they could cast a regular ballot or a correct precinct provisional ballot.
69. Poll workers throughout Ohio provide voters with provisional ballots without first informing voters of their correct precinct and without voters refusing to cast a ballot in that correct precinct.
70. Poll workers throughout Ohio fail to ensure that voters correctly sign and print their names on provisional ballot envelopes before casting a provisional ballot.
71. Poll workers throughout Ohio borrow ballots or ballot envelopes from another precinct table because they run out of the necessary materials.
72. On information and belief, virtually all of the voters whose provisional ballots are rejected by County Boards of Elections because they were cast in incorrect precincts, were not
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properly informed of their correct precincts and did not refuse to travel to those precincts before casting their ballots.
73. On information and belief, virtually all of the voters whose provisional ballot envelopes are rejected by County Boards of Elections for missing a signature or a printed name, or because there is a misplaced signature or printed name, were not informed by poll workers that they had failed fully or properly to complete the envelope before receiving provisional ballots from the poll workers.
74. When meeting to consider provisional ballots cast in elections from the 2008 general election through the recent 2012 primary, numerous County Boards of Elections have acknowledged that poll worker error results in voters being given wrong precinct ballots and in processing ballots that contain incomplete affirmation forms.
75. Despite acknowledging the existence of poll worker error, the Secretary of State and County Boards of Elections are required by Ohio law to reject provisional ballots cast by registered voters on the basis that the ballots are cast in the incorrect precinct and contain incomplete or incorrect affirmations and provisional ballot envelopes.
76. County Boards of Elections also use a variety of means to document voter and poll worker questions, problems, and concerns on Election Day, including incident reports and logs. These documents from counties throughout Ohio for the recent 2008 through 2012 elections demonstrate that poll worker errors lead to voters casting provisional ballots on incorrect precinct ballot forms and to voters failing to complete the affirmation and provisional ballot envelopes. On information and belief, other documents in possession and control of the County Boards of Elections demonstrate the extent to which poll worker error exists and results in provisional ballots being disqualified.
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77. In taking the actions described herein, Defendant has acted and will be acting under color of state law.
FIRST CLAIM FOR RELIEF Rejection of “Wrong Precinct” Ballots – Severe Burden on Fundamental Right to Vote in Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983 78. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 79. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots without exception, as set forth in Ohio Rev. Code §3505.183(B)(4)(a)(ii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decision of Painter, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by causing a severe and arbitrary denial of the fundamental right to vote of registered Ohio voters. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this rule are rejected for reasons attributable to poll worker error. 80. Defendant’s actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
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SECOND CLAIM FOR RELIEF Rejection of Ballots for “Technical Deficiencies” in Ballot Envelope –
Severe Burden on Fundamental Right to Vote in Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983
81. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
82. Ohio’s strict provisional ballot law requiring disqualification of ballots when the provisional ballot envelope contains sufficient information for the county to identify the lawfully registered voter but when that envelope is missing or has a misplaced voter signature or printed name, without exception, as set forth in Ohio Rev. Code §3505.183(B)(4)(a)(iii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by causing the severe and arbitrary denial of the fundamental right to vote of registered Ohio voters. No legitimate state interest justifies such an extraordinary burden on the right to vote where virtually all ballots rejected pursuant to this rule were processed by poll workers who failed to comply with their duty to ensure the completion of Ohio’s voting forms.
83. Defendant’s actions implementing the Ohio state law prohibiting the counting of provisional ballots with “technical deficiencies” in the ballot envelope deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
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THIRD CLAIM FOR RELIEF Unnecessary Burden on the Right to Vote for U.S. Representative– Violation of Article I, Section Two of the United States Constitution;
42 U.S.C. §1983 84. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 85. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots and ballots with technical flaws in the ballot envelope form, without exception, as set forth in Ohio Rev. Code §§3505.183(B)(4)(a)(ii)-(iii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, imposes an unnecessary burden on the right to cast and have counted a ballot for United States Representative in violation of Article I, Section 2 of the United States Constitution. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this law are rejected for reasons attributable to poll worker error. 86. Defendant’s actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
FOURTH CLAIM FOR RELIEF Unnecessary Burden on the Right to Vote for U.S. Senator– Violation of the Seventeenth Amendment of the United States Constitution;
42 U.S.C. §1983 87. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 88. Ohio’s strict provisional ballot law requiring disqualification of “wrong precinct” ballots and ballots with technical flaws in the ballot envelope form, without exception, as set
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forth in Ohio Rev. Code §§3505.183(B)(4)(a)(ii)-(iii), (B)(4)(b)(ii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs, imposes an unnecessary burden on the right to cast and have counted a ballot for United States Senator in violation of the Seventeenth Amendment to the United States Constitution. No legitimate state interest at all, let alone a specific and compelling state interest, justifies such an extraordinary burden on the right to vote where virtually all of the ballots rejected pursuant to this law are rejected for reasons attributable to poll worker error.
89. Defendant’s actions implementing this law deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
FIFTH CLAIM FOR RELIEF Unequal Treatment of Provisional Voters – Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983 90. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 91. Plaintiffs’ members and other registered voters required by Ohio law to cast provisional ballots are treated arbitrarily and unequally from county to county, polling location to polling location, and precinct to precinct with respect to the counting and rejection of provisional ballots based on: the wrong precinct rule, incomplete or misplaced information on the provisional ballot envelope, and comparison of the voter’s signature on the provisional ballot envelope to a signature previously provided to the Board by the voter. These voters are subject to inconsistent practices by poll workers and County Boards of Elections from county to county.
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This arbitrary rejection of voters’ ballots violates the uniformity required by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
92. Defendant’s actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
SIXTH CLAIM FOR RELIEF Unequal Treatment of Provisional Voters Based on Form of Identification –
Violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. §1983
93. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously.
94. Plaintiffs’ members and other individuals required by Ohio law to vote provisional ballots are treated differently based on the type of identification they use to vote. Ohio County Boards of Elections’ consideration of poll worker error with respect to ballots cast by individuals using Social Security numbers as identification but refusal to consider poll worker error with respect to ballots cast by individuals using any other form of identification results in the arbitrary and unequal counting and rejecting of the ballots of lawfully registered Ohio voters in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
95. Defendant’s actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
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SEVENTH CLAIM FOR RELIEF Violation of the Substantive Due Process Clause of the Fourteenth Amendment
of the United States Constitution; 42 U.S.C. §1983 96. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 97. Ohio’s strict provisional ballot laws requiring disqualification of entire ballots of lawfully registered voters for reasons attributable to poll worker error, including the rejection of and refusal to count wrong precinct provisional ballots and provisional ballots with “technical deficiencies” in the ballot envelopes, renders Ohio’s provisional ballot laws fundamentally unfair in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV. 98. Defendant’s actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
EIGHTH CLAIM FOR RELIEF Violation of the Procedural Due Process Clause of the Fourteenth Amendment
of the United States Constitution; 42 U.S.C. §1983 99. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 100. Defendant’s rejection of provisional ballots without notice to voters on the basis of a Board’s post-election determination that a voter’s signature on a provisional ballot envelope does not match the signature previously provided by the voter to the Board violates the Procedural Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, U.S. Const., Amend. XIV.
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101. Defendant’s actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the Constitution of the United States, in violation of 42 U.S.C. §1983.
NINTH CLAIM FOR RELIEF Violation of the Voting Rights Act of 1965, 42 U.S.C. §1971; 42 U.S.C. §1983;
Violation of Supremacy Clause of the United States Constitution 102. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 103. Under Section 1971(a)(2) of the Voting Rights Act, “[n]o person acting under color of law shall . . . (B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such an election.” 104. Ohio law requires the denial of the right of registered voters to vote because of ballot and ballot envelope errors that are not material to determining whether the voters are qualified to vote in the election contests on the ballot: 105. When voters cast provisional ballots in the wrong precinct as a result of poll worker error, the fact that the ballots were cast in the wrong precinct is not material to determining the voters’ qualifications to vote in the election. 106. When voters cast provisional ballots that have technical deficiencies in the ballot affirmations and envelopes as a result of poll worker error, those deficiencies are not material to determining the voters’ qualifications to vote in the election. 107. Defendant’s actions pursuant to this Ohio law, violate Section 1971(a)(2) of the Voting Rights Act.
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108. Defendant’s actions deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the federal laws of the United States, in violation of 42 U.S.C. §1983, and are inconsistent with Section 1971(a)(2) of the Voting Rights Act and are preempted by the Supremacy Clause of the U.S. Const., art. IV.
TENTH CLAIM FOR RELIEF Violation of Rights Granted Under the Help America Vote Act of 2002, 42 U.S.C. §15301 et seq.; Violation of Supremacy Clause of Article 6 of the United States
Constitution; 42 U.S.C. §1983 109. Plaintiffs reallege and incorporate herein by reference each and every allegation and paragraph set forth previously. 110. Under HAVA, states must provide a “fail safe” voting mechanism. HAVA requires that a voter be given the opportunity to vote provisionally in a federal election if the individual affirms in writing that she is “a registered voter in the jurisdiction in which the individual desires to vote,” and that she is “eligible to vote in that election.” 42 U.S.C. §15482(a)(2)(A)-(B). 111. HAVA’s provisional voting requirements are intended to approximate conditions in which voters interact with a voting system free of human error. Thus, “[i]f a person presents at a polling place and seeks to vote, and if that person would be allowed to vote by an honest election worker with perfect knowledge of the facts and law, then the person’s vote should count.” Sandusky County Dem. Pty. v. Blackwell, 387 F.3d 565, 570 (6th Cir. 2004). 112. Under HAVA, Plaintiffs’ members who are required by Ohio to cast provisional ballots have a federal right to have those ballots counted if an election official acting with perfect knowledge of the facts and law would have determined the members were eligible to vote in the election.
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113. Ohio’s refusal to count provisional ballots of registered Ohio voters for reasons that are attributable to poll worker error directly contravenes the purpose of HAVA and its mandate that an individual be permitted to cast provisional ballots that will be counted if an election worker had had “perfect knowledge” at the time the individual sought to cast a regular ballot.
114. Defendant’s actions therefore deprive Plaintiffs and their members of rights, privileges or immunities secured to them by the federal law, in violation of 42 U.S.C. §1983, are inconsistent with and stand as an obstacle to the purposes of HAVA, and are preempted by the Supremacy Clause of the U.S. Const., art. IV.
IRREPARABLE HARM 115. Defendant’s actions, as alleged herein, have resulted in, and will continue to result in, irreparable injury to Ohio voters including Plaintiffs and their members for which Plaintiffs and their members have no plain, speedy, or adequate remedy at law. Some of Plaintiffs’ members will suffer irreparable injury in that they will be deprived of their right to cast a ballot in upcoming elections that will be counted. 116. Defendant’s actions will also result in harm to the Plaintiff organizations, which dedicate significant resources to voter education and voter registration in Ohio, efforts that will be undermined by Defendant’s unlawful conduct. Additionally, Plaintiffs will be harmed by Defendant’s unlawful conduct because they will need to divert limited resources to address the effects of that conduct. 117. The balance of harms favors entering an injunction because the harm suffered by individuals denied their fundamental right to vote in violation of the Constitution and federal law outweighs any potential interest Defendant may articulate in support of rejecting the votes of
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lawfully registered Ohio voters. No such legitimate interest exists to support this strict disqualification law. It is in the public interest that the Court grant an injunction to ensure that Plaintiffs, their members, and the electorate of Ohio that lawfully registered voters not have their votes discarded as a result of poll worker error.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies: a) Assume jurisdiction over this action and maintain continuing jurisdiction until Defendant is in full compliance with every order of this Court; b) Declare that Ohio Rev. Code §3505.183(B)(4)(a)(ii) and Defendant’s enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(ii) violate the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, Article I, Section 2, and the Seventeenth Amendment of the U.S. Constitution, the Voting Rights Act, the Help America Vote Act, and 42 U.S.C. §1983, and are preempted by the Supremacy Clause; d) Declare that Ohio Rev. Code §3505.183(B)(4)(a)(iii) and Defendant’s enforcement of Ohio Rev. Code §3505.183(B)(4)(a)(iii) with respect to missing or misplaced voter and poll worker signatures and printed names on the provisional ballot envelope violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, Article I, Section 2, and the Seventeenth Amendment of the U.S. Constitution, the Voting Rights Act, the Help America Vote Act, and 42 U.S.C. §1983, and are preempted by the Supremacy Clause; e) Declare that the rejection of provisional ballots without notice to voters on the basis that a voter’s signature does not match the voter’s signature previously submitted by the voter to a County Board of Election violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, and 42 U.S.C. §1983;
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f) Grant a preliminary and permanent injunction enjoining Defendant, his officers, agents, employees, attorneys, and all persons who are in active concert or participation with him from:
i) implementing Ohio Rev. Code §3505.183(B)(4)(a)(ii) to prohibit the counting of a provisional ballot cast by a lawfully registered voter in a precinct other than the one to which the voter is assigned, absent specific affirmative evidence from the poll worker that the voter was directed to the polling place for the precinct in which he or she appeared to be eligible to vote, was informed that his or her vote would not count, and insisted on voting an invalid ballot in the wrong precinct;
ii) implementing Ohio Rev. Code §3505.183(B)(4)(a)(iii) to prohibit the counting of a provisional ballot cast by a lawfully registered voter that is missing or has a misplaced signature or printed name, absent specific affirmative evidence that the poll worker complied with his or her statutory duty and properly instructed the voter that the affirmation form was incomplete and the voter refused to complete the form; and
iii) rejecting any provisional ballots without notice to the voters on the grounds that the signature on the provisional ballot envelope does not match a signature previously provided by the voter to a Board of Elections;
g) Award the Plaintiffs the costs of this action and reasonable attorneys’ fees pursuant to 42 U.S.C. §§1988, 12133, 12205; and as otherwise may be allowed by law; and
h) All such other and further relief as the Court deems to be just and equitable. 36

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Dated: July 24, 2012

Respectfully submitted
/s/Michael J. Hunter MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com
Attorneys for All Plaintiffs
STEPHEN P. BERZON STACEY M. LEYTON BARBARA J. CHISHOLM DANIELLE LEONARD Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com
Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC
PENDA HAIR DONITA JUDGE UZOMA NKWONTA Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org
Attorneys for Plaintiff OOC

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CERTIFICATE OF SERVICE I certify that on July 24, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the counsel of record in this case. Dated: July 24, 2012
/s/ Danielle Leonard STEPHEN P. BERZON STACEY M. LEYTON BARBARA J. CHISHOLM DANIELLE LEONARD Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC
38

 
 Case: 2:12-cv-00562-ALM-TPK Doc #: 4 Filed: 06/22/12 Page: 1 of 61 PAGEID #: 47

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1, et :

al.,

: Judge George C. Smith

:

Plaintiffs

: Magistrate Judge Mark R. Abel

:

vs.

: PLAINTIFFS’ MOTION FOR

: PRELIMINARY INJUNCTION;

JON HUSTED, et al.,

: MEMORANDUM OF LAW IN

: SUPPORT OF PLAINTIFFS’ MOTION

Defendants.

: FOR PRELIMINARY INJUNCTION

MOTION FOR PRELIMINARY INJUNCTION Plaintiffs Service Employees International Union, Local 1 (“SEIU Local 1”), District 1 of the United Steelworkers of America (“USW District 1”), Locals 863 and 1005 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (collectively “UAW Locals”), and the Ohio Organizing Collaborative (“OOC”), hereby move this Court for a preliminary injunction to prevent Defendants Ohio Secretary of State Jon Husted and members of the Ohio County Boards of Elections (“County Boards”) from unconstitutionally denying thousands of Ohio voters the right to have their ballots counted in the upcoming November 2012 general election as a result of poll worker error. The State of Ohio’s uniquely complicated provisional ballot laws, enacted in 2006, require hundreds of thousands of Ohio voters to cast provisional ballots that may be subject to later disqualification, rather than regular ballots that are counted on election day – more than any state other than California. The Ohio Supreme Court definitively interpreted Ohio election law in 2011 to mandate that Defendant County Boards of Elections refuse to open or count any provisional ballot of a
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lawfully registered voter that corresponds to the incorrect voter precinct or that has an incomplete ballot envelope form, regardless of whether these errors were caused by a poll worker mistake. State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782 (2011) (interpreting Ohio Rev. Code §3505.183(B)(4)(a)). Compounding the problem is Ohio’s increased consolidation of voting precincts into multi-precinct polling locations, particularly in urban areas, where voters appear to vote at the correct location, only to be given the wrong ballot by poll workers, and are disenfranchised after the election without any notice.
Given the thirteen categories of voters that Ohio requires to vote provisional rather than regular ballots (Ohio Rev. Code §3505.181(A)(1)-(13)), and the Painter decision mandating that Ohio strictly apply the ballot disqualification law without exception, Ohio will deny the right to vote for President, Vice President, Senator, United States Representative, and other state and local races, to many thousands of lawfully registered voters in the upcoming election. As the Sixth Circuit and this Court both have recently recognized, these Ohio provisional ballot laws, which permit many votes to be disqualified as a result of poll worker error, are fundamentally unfair and raise very serious constitutional concerns. See Hunter v. Hamilton County Board. of Elections, 635 F.3d 219, 243 (6th Cir. 2011) (“Hunter I”); accord Hunter v. Hamilton County Board of Elections, 2012 WL 404786 at *43, 46 (S.D. Ohio Feb. 8, 2012) (“Hunter II”). Indeed, these laws unconstitutionally burden the fundamental right to vote protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.
A preliminary injunction requiring Ohio and its County Boards of Elections to count the votes of lawfully registered voters in the upcoming election is both necessary and appropriate to ensure that voters, including Plaintiffs’ members, are not arbitrarily and unfairly stripped of their
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right to vote as a result of poll worker error. Plaintiffs are overwhelmingly likely to succeed on the merits of their constitutional claims. Statewide evidence submitted along with this Motion demonstrates that virtually all wrong precinct ballots are given to voters as a result of poll workers making mistakes on election day. Indeed, evidence shows that poll workers actually think they are helping citizens to vote by providing them with provisional ballots that are later disqualified. The Equal Protection Clause of the Fourteenth Amendment will not allow Ohio to impose such a severe burden on – and, indeed, deny – the fundamental right to vote. Such a burden is not supported by any legitimate, let alone compelling, state interest in the post-election invalidation of ballots of lawfully registered voters.
Moreover, there is one group of voters, those covered by the Consent Decree in the NEOCH v. Husted case, No. 2:06-CV-896, for which the County Boards of Elections do still consider poll worker error in deciding whether to count provisional ballots. The failure of Ohio to treat all other categories of provisional voters equally with respect to whether or not County Boards may consider poll worker error in deciding to count or reject ballots, as well as the widely varying rates of poll worker error by county, result in unequal treatment of voters that turns arbitrarily on the county in which they live, in further violation of the Equal Protection Clause. And, as the Sixth Circuit and this Court observed in the context of reviewing Hamilton County’s treatment of provisional ballots in the 2010 election, Ohio’s error-prone provisional ballot system is fundamentally unfair and therefore violates the substantive due process guaranteed by the Fourteenth Amendment. Hunter I, 635 F.3d at 243; Hunter II, 2012 WL 404786 at *43, 46.
The threat to so many registered Ohio voters’ ability to enjoy the most fundamental right in our democracy is too great to allow Ohio to employ its strict disqualification law during the
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upcoming election. The balance of harms tips sharply in favor of a preliminary injunction. Denial of the fundamental right to vote in and of itself is irreparable harm, and Ohio and its County Boards of Elections suffer no harm from being enjoined from enforcing an unconstitutional ballot counting law. Plaintiffs bring this Motion to the Court not on the eve of the election but sufficiently in advance of the upcoming vote to allow the adjudication of these issues and implementation of any remedy. The public, Plaintiffs, and their members have a very strong interest in ensuring that voters’ faith in the democratic process is not undermined by Ohio’s continued arbitrary and undeserved rejection of the votes of lawfully registered voters.
Plaintiffs seek an injunction that is very narrowly tailored to curing the constitutional violations caused by poll worker error and in no way dismantles Ohio’s precinct-based voting system. Plaintiffs respectfully request that this Court enjoin Ohio’s chief election officer Secretary of State Husted, and the members of the 88 County Boards of Elections from rejecting provisional ballots after the November 2012 election because a poll worker gave the voter a ballot for the wrong precinct, or because the poll worker processed the ballot with an incomplete envelope, unless the County Board of Elections has proof that the voter was warned by the poll worker, as is required by Ohio law, that the vote would not count, and insisted on casting an invalid ballot anyway.
As described in the accompanying Proposed Order, Plaintiffs therefore seek an injunction ordering the Secretary of State and members of the County Boards of Elections not to reject any provisional ballots cast by lawfully registered voters because:
1) The voter cast his or her provisional ballot in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot has affirmed under penalty of election falsification that: a) the poll worker determined the correct precinct for the voter;
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b) the poll worker directed the voter to the correct precinct; c) the poll worker informed the voter that casting the wrong precinct
ballot would result in all votes on the ballot being rejected under Ohio law; and d) the voter refused to travel to the correct precinct and insisted on voting the invalid ballot; and the Board of Elections has verified that the precinct to which the poll worker directed the voter was the correct precinct for that voter. If the poll worker does not attest to all of the above, or the County Board of Elections cannot verify that the poll worker directed the voter to the correct precinct, the provisional ballot must be counted; or
2) The provisional ballot envelope does not contain a voter signature and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the provisional ballot envelope does not contain the voter’s full printed name and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the voter did not sign and/or print the voter’s name in the correct place(s) on the ballot envelope and the County Board of Elections has otherwise been able to determine that the voter is a registered voter.
The statewide evidence submitted in support of this Motion demonstrates that Ohio County Boards have had difficulty uniformly implementing Ohio’s provisional ballot laws in the past because of lack of uniform instructions from the Secretary of State, resulting in the arbitrary and unconstitutional denial of votes. Plaintiffs therefore also request that the Court order Defendant Secretary of State Husted to modify the “Precinct Election Official Info” section of Form 12-B (“Provisional Ballot Affirmation”), as set forth in the accompanying Proposed Order, to require counties to implement these requirements uniformly, lest they again employ nonuniform ballot counting standards that run afoul of the equal protection concerns applied in Bush
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v. Gore, 531 U.S. 98, 107 (2000). Finally, in order to ensure uniform implementation, Plaintiffs ask the Court to order Secretary Husted to issue a Directive requiring the members of the 88 Ohio County Boards of Elections to use the information on that revised Provisional Ballot Affirmation Form to determine if the Precinct Election Official erred in providing a wrong precinct ballot to the voter or erred in processing a ballot with an incomplete affirmation form.
Plaintiffs have filed a Notice of Related Case explaining that this case raises overlapping constitutional issues with those currently pending in NEOCH v. Husted, Case No. 2-06-CV-896. In that case, the plaintiffs have moved to strengthen an existing consent decree that applies to a particular category of Ohio voters who cast provisional ballots. The plaintiffs’ motion, however, presents the same constitutional violations as are at issue here, and seeks the exact same remedy requested here, including the injunction and modification of the Ballot Affirmation Form, for voters covered by the decree. Also pending in the NEOCH case is a request by the defendants to terminate the decree, a request that requires the Court to determine whether terminating the Decree will cause constitutional violations. Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 391 (1992). Plaintiffs therefore respectfully request, in the interest of judicial economy and the public’s interest in the speedy resolution of the proper and constitutional standard for counting the hundreds of thousands of provisional ballots that will be cast in the November 2012 election, that this case be coordinated with the NEOCH case, and the critical constitutional issues in the NEOCH case and in this case be heard at the same time, on one evidentiary record, with sufficient time to fully resolve these claims in advance of the November 2012 election, including any appeals. A memorandum in support and proposed order are attached.
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Dated: June 22, 2012

Respectfully submitted,
/s/Michael J. Hunter MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com
Attorneys for All Plaintiffs
STEPHEN P. BERZON (pro hac vice application pending) STACEY M. LEYTON (pro hac vice application pending) BARBARA J. CHISHOLM (pro hac vice application pending) DANIELLE LEONARD (pro hac vice application pending) Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com
Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, and UAW Local 863
PENDA HAIR (pro hac vice application pending) DONITA JUDGE (pro hac vice application pending) UZOMA NKWONTA (pro hac vice application pending) Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org
Attorneys for Plaintiff OOC

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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
SUMMARY TABLE OF CONTENTS (Local Rule 7.2(a)(3)) I. INTRODUCTION .........................................................................................................1
The State of Ohio’s uniquely complicated provisional ballot laws require the arbitrary and unconstitutional post-election rejection of thousands of votes cast by lawfully registered voters as the result of poll worker error. The Ohio Supreme Court definitively ruled in 2011 that Ohio law mandates that Defendant County Boards of Elections not open or count any provisional ballot of a lawfully registered voter that corresponds to the wrong precinct or that has an incomplete ballot envelope form, regardless of whether these errors were caused by a poll worker mistake. State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782 (2011) (interpreting Ohio Rev. Code §3505.183(B)(4)(a)). Because this very strict provisional ballot disqualification law denies Ohio voters their fundamental right to vote protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, Plaintiffs seek a preliminary injunction prohibiting the Ohio Secretary of State and members of the County Boards of Elections from rejecting provisional ballots for reasons attributable to poll worker error in the upcoming November 2012 general election. II. BACKGROUND…………………………………………………………………………3
A. Ohio Statutes Governing Casting and Counting of Provisional Ballots ..........3 B. The Ohio Supreme Court’s Ruling in State ex rel. Painter v. Brunner
Prohibits County Boards of Elections from Counting Provisional Ballots Cast Incorrectly as Result of Poll Worker Error ......................................................6 C. County Boards of Elections Are Rejecting Thousands of Provisional Ballots Cast by Voters Who are Registered Voters.......................................................8
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D. Poll Workers Err By Giving Registered Voters Ballots for Precincts Other Than Those in Which the Voters Are Registered .............................................9
III. ARGUMENT ...............................................................................................................11 A. Preliminary Injunction Standard ....................................................................11 B. Plaintiffs Are Very Likely to Prevail on Their Claim That Ohio Unconstitutionally Disenfranchises Voters By Refusing to Count Provisional Ballots When Poll Workers Have Given Voters the Wrong Precinct Ballot And By Rejecting Ballots for Technical Errors ..............................................11 1. Ohio’s Post-Election Invalidation of Provisional Ballots Because Poll Workers Have Erred Infringes the Fundamental Right to Vote Protected by the United States Constitution........................................12 Ohio’s provisional ballot law cannot withstand the scrutiny the Supreme Court requires
for laws that burden the fundamental right to vote under the Equal Protection Clause of the Fourteenth Amendment. State laws that impose a “severe” burden on the right to vote are unconstitutional unless justified by “a narrowly drawn state interest of compelling importance.” Crawford v. Marion County Election Bd., 553 U.S. 181, 190 (2008); see also Libertarian Party of Ohio v. Husted, 2011 WL 3957259, at *5 (S.D. Ohio) (Marbley, J.). Ohio’s provisional ballot law denies the vote to Ohio voters through no fault of their own, is supported by no legitimate state interest, and lacks a “plainly legitimate sweep.” Crawford, 553 U.S. at 202.
a. Votes Should Not Be Thrown Out Because Poll Workers Gave Lawfully Registered Voters the Wrong Precinct Ballot ..........14
Statewide evidence demonstrates that virtually all of Ohio’s “wrong-precinct” ballots result from poll worker error. Rejecting entire ballots as a result of poll worker error imposes “excessively burdensome requirements” on the fundamental right to vote protected by the Fourteenth Amendment. Crawford v. Marion County Election Bd., 553 U.S. 181, 202 (2008); see also Griffin v. Burns, 570 F.2d 1065, 1074 (1st Cir. 1978); Hoblock v. Albany County Bd. of Elections, 487 F.Supp.2d 90, 97 (2006). The State has no legitimate interest, let alone a
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compelling interest, in the post-election invalidation of the votes of lawfully registered voters, and this law in no way furthers the “integrity and reliability of the electoral process.” Crawford, 533 U.S. at 189-90; Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 666-67 (1966); Carrington v. Rash, 380 U.S. 89, 96 (1965).
b. Votes Should Not Be Thrown Out Because Poll Workers Processed Provisional Ballots with Technical Errors ..............28
Ohio also disenfranchises large numbers of registered voters based on technical defects in affirmations on provisional ballot envelopes that are caused by election officials’ failure to carry out their duties. No compelling state interest can justify this denial of the right to vote. Crawford, 553 U.S. at 191.
2. All Ohio Voters Regardless of Form of Identification Used to Vote Should be Subject to the Same Standard for Counting Provisional Ballots.................................................................................................... 31
In light of the Consent Decree in NEOCH v. Husted, the Secretary of State has directed Ohio County Boards of Elections to count wrong precinct provisional ballots cast by voters using only Social Security numbers as identification, and to reject wrong precinct provisional ballots cast by voters using any other form of identification. Treating voters who use other forms of identification differently from voters who use Social Security numbers violates the “constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see also Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 242 (6th Cir. 2011) (“Hunter I”); Bush v. Gore, 531 U.S. 98, 104-05 (2012); League of Women Voters, 548 F.3d 463, 477 (2008).
3. Ohio’s System for Processing Provisional Ballots Subjects All Provisional Voters to Inconsistent Poll Worker Practices from County to County and Precinct to Precinct that Result in the Arbitrary Rejection of Ballots in Violation of the Uniformity Required By Equal Protection .............................................................................................. 33
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Ohio voters are subject to dramatically different rates of poll worker error resulting in “wrong precinct” ballots between counties. Arbitrary differences from county to county in the likelihood that a ballot will be rejected due to error violate equal protection. See Bush v. Gore, 531 U.S. 98, 107 (2000); Black v. McGuffage, 209 F. Supp. 2d 889, 899 (N.D. Ill. 2002); Common Cause Southern Christian Leadership Conf. of Greater Los Angeles v. Jones, 213 F. Supp. 2d 1106 (C.D. Cal. 2001).
4. Ohio’s Provisional Ballot System is Fundamentally Unfair and Violates Substantive Due Process ........................................................35
The Ohio election laws that mandate that hundreds of thousands of Ohio voters cast provisional ballots and then require the post-election disqualification of the entire ballots of registered voters because of poll worker error create a provisional ballot system that is “fundamentally unfair” (Hunter I, 635 F.3d at 242), and that employs “non-uniform rules, standards and procedures” resulting in significant disenfranchisement in violation of substantive due process. League of Women Voters, 548 F.3d 463, 478 (6th Cir. 2008); see also Hunter II, 2012 WL 404786 at *47; Ury v. Santee, 303 F. Supp. 119, 126 (N.D. Ill. 1969); see also Griffin v. Burns, 570 F.2d 1065, 1074 (1st Cir. 1978); Hoblock v. Albany County Bd. of Elections, 487 F.Supp.2d 90, 97 (N.D.N.Y. 2006).
5. Plaintiffs Have Standing to Challenge Ohio’s Law Requiring Unconstitutional Rejection of Provisional Ballots ...............................36
The Plaintiff membership organizations have standing “to assert . . . the rights of their members who will vote in the [upcoming federal] election.” Sandusky Cty. Dem. Pty. v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004). Plaintiffs meet all the requirements for associational standing. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
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C. Without an Injunction, Ohio’s Arbitrary and Unfair System for Counting and Rejecting Provisional Ballots Will Irreparably Harm Thousands of Voters in the Upcoming November 2012 Election ..........................................38
The balance of harms weighs strongly in favor of granting injunctive relief before the November 2012 election. Denial of the fundamental right to vote is “irreparable harm.” Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986); see also Miller v. Blackwell, 348 F.Supp.2d 916, 922 (S.D. Ohio 2004) (Dlott, J.). The State is not harmed by enjoining a law that violates constitutional rights. See Deja Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001). Plaintiffs and the public have a strong interest in ensuring that the public’s confidence in the electoral system is not undermined, and that voters are not discouraged from voting.
D. This Court Should Require Ohio to Count All Provisional Ballots Cast By Lawfully Registered Voters Unless the Poll Worker Attests Under Penalty of Perjury That the Voter Was Informed of an Error in Precinct or the Ballot Affirmation and that the Vote Would Not Count and Insisted on Casting an Invalid Ballot ....................................................................................................40
Plaintiffs seek a preliminary injunction narrowly tailored to preventing constitutional violations caused by poll worker error without undermining Ohio’s precinct-based voting system. Plaintiffs’ requested injunction requires the Secretary of State and the members of the 88 Ohio County Boards of Elections to count all wrong precinct and flawed ballot envelope provisional ballots unless the poll worker has affirmed that 1) the voter was informed of his proper precinct or of the technical errors in the ballot envelope, 2) was also informed that the ballot would not be counted unless corrected, and 3) insisted on voting the improper ballot anyway. To guarantee the uniform and non-arbitrary treatment of voters, Plaintiffs have proposed modifications to the statewide Ballot Affirmation Form consistent with this injunction. IV. CONCLUSION............................................................................................................43
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TABLE OF AUTHORITIES
FEDERAL CASES
Anderson v. Celebrezze, 460 U.S. 780 (1983).......................................................................................... passim
Black v. McGuffage, 209 F.Supp.2d 889 (N.D. Ill. 2002) ..........................................................................34
Bullock v. Carter, 405 U.S. 134 (1972).................................................................................................13
Burdick v. Takushi, 504 U.S. 428 (1992).................................................................................................25
Bush v. Gore, 531 U.S. 98 (2000)............................................................................................ passim
Carrington v. Rash, 380 U.S. 89 (1965)......................................................................................... 2, 13, 25
Common Cause Southern Christian Leadership Conf. of Greater Los Angeles v. Jones, 213 F.Supp.2d 1106 (C.D. Cal. 2001) ......................................................................34
Connection Distributing Co. v. Reno, 154 F.3d 281 (6th Cir. 1998)....................................................................................11
Crawford v. Marion County Election Board, 553 U.S. 181 (2008).......................................................................................... passim
Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville & Davidson Cty., Tenn., 274 F.3d 377 (6th Cir. 2001).............................................................................. 11, 39
Dunn v. Blumstein, 405 U.S. 330 (1972).................................................................................................31
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000).................................................................................................37
Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978) ............................................................................ 25, 36
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Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)....................................................................................... 2, 13, 24
Hoblock v. Albany County Board of Elections, 487 F.Supp.2d 90 (2006).................................................................................... 25, 36
Hunter v. Hamilton County Board of Elections, 2010 WL 4878957 (S.D. Ohio Nov. 22, 2010) ...........................................................7
Hunter v. Hamilton County Board of Elections, 2012 WL 404786 (S.D. Ohio Feb. 8, 2012)....................................................... passim
Hunter v. Hamilton County Board. of Elections, 635 F.3d 219 (6th Cir. 2011)............................................................................. passim
League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008)............................................................................. passim
Libertarian Party of Ohio v. Husted, 2011 WL 3957259 (S.D. Ohio Sept. 7, 2011)...........................................................14
Miller v. Blackwell, 348 F.Supp.2d 916 (S.D. Ohio 2004) .......................................................................39
National Association for Advancement of Colored People State Conference of Pennsylvania v. Cortes, 591 F.Supp.2d 757 (E.D. Pa. 2008).................................................................... 24, 35
Norman v. Reed, 502 U.S. 279 (1992)........................................................................................... 13, 14
Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566 (6th Cir. 2002)....................................................................................39
Purcell v. Gonzalez, 549 U.S. 1 (2006) ....................................................................................................26
Raetzel v. Parks/Bellemont Absentee Election Board, 762 F. Supp. 1354 (D. Ariz. 1990) ...........................................................................31
Sandusky Cty. Dem. Pty. v. Blackwell, 387 F.3d 565 (6th Cir. 2004).............................................................................. 37, 38
Six Clinics Holding Corp., II v. Cafcomp System, Inc., 119 F.3d 393 (6th Cir. 1997)....................................................................................11
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State ex rel. Skaggs v. Brunner, 588 F.Supp.2d 828 (S.D. Ohio 2008) ................................................................... 6, 28
Storer v. Brown, 415 U.S. 724 (1974).................................................................................................25
United Food & Committee Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996).................................................................................................38
United States v. Classic, 313 U.S. 299 (1941)........................................................................................... 13, 14
United States v. Mosley, 238 U.S. 383 (1915).................................................................................................13
Ury v. Santee, 303 F.Supp. 119 (N.D. Ill. 1969)..............................................................................36
Wesberry v. Sanders, 376 U.S. 1 (1964) .......................................................................................... 2, 13, 14
Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986).....................................................................................39
Yick Wo v. Hopkins, 118 U.S. 356 (1886).................................................................................................13 STATE CASES
State ex rel. Painter v. Brunner, 128 Ohio St.3d 17............................................................................................. passim
State ex rel. Skaggs v. Brunner, 120 Ohio St.3d 506 (2008)................................................................................. 29, 30
DOCKETED CASES Northeast Ohio Coalition for the Homeless v. Brunner (“NEOCH”),
Case No. 2-06-VI-896................................................................................................6
U.S. CONSTITUTION
U.S. Const., Art. I, Sec. 2 ..............................................................................................14
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U.S. Const., Art. I, Sec. 4 ..............................................................................................24 U.S. Const., 14th Amend. ....................................................................................... passim U.S. Const., 17th Amend. .............................................................................................13
FEDERAL STATUTES 42 U.S.C. §15301 et seq. .................................................................................................3 42 U.S.C. §15482(a) ........................................................................................................3 42 U.S.C. §15483(b)(2)(B) ..............................................................................................3
STATE STATUTES Cal. Elec. Code §14310(c)(3).........................................................................................25 Ga. Code Ann. §21-2-419..............................................................................................26 Kan. Stat. Ann. §25-3002 ..............................................................................................26 Md. Elec. Law §11-303 .................................................................................................26 Mass. Gen. Laws Ann. ch. 54, §76C ..............................................................................26 N.J. Stat. Ann. §19:53C-17 ............................................................................................26 N.M. Stat. Ann. §1-12-25.4 ...........................................................................................26 Ohio Rev. Code §3505.18..............................................................................................31 Ohio Rev. Code §3505.181..................................................................................... passim Ohio Rev. Code §3505.182........................................................................................ 6, 28 Ohio Rev. Code §3505.183..................................................................................... passim 25 Pa. Stat. Ann. §3050 .................................................................................................26
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION The State of Ohio’s uniquely complicated provisional ballot laws require the arbitrary
and unconstitutional post-election rejection of thousands of votes cast by lawfully registered voters as the result of poll worker error. Plaintiffs Service Employees International Union, Local 1 (“SEIU Local 1”), United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”), Locals 863 and 1005 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (collectively “UAW Locals”), and the Ohio Organizing Collaborative (“OOC”), challenge Ohio’s law mandating that County Boards of Elections (“Boards”) reject provisional ballots cast by registered voters for reasons attributable to poll worker error. In particular, Ohio law disqualifies all the votes on a provisional ballot when the voter was given a “wrong precinct” ballot as a result of poll worker error, and when poll worker error results in technical defects in the completion of the envelope in which the provisional ballot is placed. Because Ohio law denies voters their fundamental right to vote protected by the United States Constitution, Plaintiffs seek a preliminary injunction prohibiting the Ohio Secretary of State and the Boards from rejecting provisional ballots for reasons attributable to poll worker error in the upcoming November 2012 general election.
The Sixth Circuit and this Court both recently observed the fundamental unfairness of Ohio’s system of provisional ballots that permits ballots to be disqualified after the election because of problems caused by poll worker error. Hunter v. Hamilton County Board. of Elections, 635 F.3d 219, 243 (6th Cir. 2011) (“Hunter I”); accord Hunter v. Hamilton County

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Board of Elections, 2012 WL 404786 at *43, 46 (S.D. Ohio Feb. 8, 2012) (“Hunter II”). A law that disqualifies entire ballots of lawfully registered voters for reasons directly attributable to poll worker error imposes “excessively burdensome requirements” on Ohio voters that are not justified by any legitimate state interest at all, and cannot stand under the Equal Protection Clause of the Fourteenth Amendment. Crawford v. Marion County Election Bd., 553 U.S. 181, 189 (2008); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 666-67 (1966); Carrington v. Rash, 380 U.S. 89, 96 (1965); see also Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“[U]nnecessary abridge[ment]” of the right to vote in federal congressional elections does not comport with Article I, Section 2 and the Seventeenth Amendment to the Constitution). Overwhelming evidence from Boards throughout the State demonstrates that voters consistently are penalized for failing to comply with requirements they cannot control – because a poll worker hands the voter an incorrect ballot, or because a poll worker provides the voter a provisional ballot before first ensuring that the provisional ballot envelope is completed correctly.
Moreover, two aspects of Ohio’s provisional ballot system violate the requirement of uniform treatment of similarly situated voters with respect to the counting of votes, in violation of equal protection: first, Ohio voters who vote provisionally using different types of identification are currently subject to different post-election ballot counting standards; and second, voters in different counties are subject to widely disparate and arbitrary rates of poll worker error resulting in the disqualification of ballots. Finally, the statewide evidence submitted by Plaintiffs with this motion conclusively demonstrates that the Sixth Circuit and this Court were correct in observing that Ohio’s provisional ballot laws are fundamentally unfair in
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violation of substantive due process. Hunter I, 635 F.3d at 243; Hunter II, 2012 WL 404786 at *43.
As detailed below, a preliminary injunction is both necessary and appropriate to ensure that voters, including Plaintiffs’ members, are not unconstitutionally stripped of their right to cast ballots that will be counted in the upcoming general election. The requested injunction is narrowly tailored to prevent constitutional violations and also reflects the only circumstance in which the State should be permitted not to count a wrong precinct provisional ballot, consistent with the Constitution: namely, where it has been documented that the poll worker complied with his or her duties under Ohio law and the provisional voter nonetheless insisted on casting a ballot in the incorrect precinct despite being informed of the correct precinct and that the voter’s ballot would not be counted if cast in the wrong precinct, or casting a ballot with an incorrect or incomplete ballot envelope despite being asked to provide complete information. II. BACKGROUND
A. Ohio Statutes Governing Casting and Counting of Provisional Ballots In 2006, Ohio enacted one of the most complicated provisional ballot laws in the country, in response to the federal Help America Vote Act of 2002 (“HAVA”), 42 U.S.C. §15301 et seq., which requires all states to permit individuals who do not appear on the official list of eligible voters for a polling place to cast a provisional ballot as a “fail safe” voting mechanism. 42 U.S.C. §15482(a), §15483(b)(2)(B). Ohio identified thirteen different circumstances in which voters are not permitted to cast regular ballots, and instead must use provisional ballots – only one of which is when the voter is not included in the precinct list. Ohio Rev. Code §3505.181(A)(1); see also id. §3505.181(A)(2)-(13). As a result of this law, hundreds of thousands of Ohio voters have been required to cast provisional rather than regular ballots in
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recent elections, more than any state other than California, which has a far greater population. See Decl. of David Kimball (“Kimball Decl.”) Ex. B at 3-4 (Tables 1, 2).
Provisional ballots are not counted on election day. Instead, each Ohio County Board of Elections is responsible for “determin[ing] whether a provisional ballot is valid and entitled to be counted” several days after the election in which individuals have cast their ballots. Ohio Rev. Code §3505.183(B)(1), (E)(3). First, the Board is required to “examine [its] records and determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election.” Id. After determining that the ballot was cast by a registered voter, the Board is nonetheless required to reject the ballot in a number of circumstances, including:
(ii) The individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot. (iii) The individual did not provide all of the information required under division (B)(1) of this section in the affirmation that the individual executed at the time the individual cast the provisional ballot. Ohio Rev. Code §3505.183(B)(4)(a)(ii), (iii); see also id. §3503.183(B)(3)(a)-(c) (provisional ballots may be counted only if “individual named on the affirmation is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot”). Thus, when a registered voter is permitted to cast a provisional ballot that corresponds to a precinct that election officials later determine not to be that individual’s assigned precinct, the individual’s votes for every federal, state and local contest on that ballot must be rejected. This system has become increasingly complicated by Ohio’s consolidation of precincts into multi-precinct polling locations, with some counties having as many as 90 to 100 percent of all precincts assigned to polling locations with two or more precincts. Decl. of Natalya DeRobertis-Theye (“Theye Decl.”) ¶5 & Exs. A & B. Under Ohio’s provisional ballot law, even voters who cast their ballots in the proper location (including, remarkably, the early voting
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locations at the Board of Elections office) are disqualified if they were given the wrong precinct ballot by a board employee or poll worker.
Ohio’s provisional voting laws dictate the manner in which poll workers should distribute provisional ballots on election day, regardless of whether the individual is assigned to a single or multi-precinct polling location. Upon arrival at a polling location, voters are processed by poll workers whose duty it is to determine and direct voters to the correct precinct. For example, Ohio Rev. Code §3505.181(C)(1) provides:
[I]f, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions. (Emphasis added.) Only if “the individual refuses to travel to the polling place for the correct [precinct] or to the office of the board of elections to cast a ballot,” shall the individual “be permitted to vote a provisional ballot at that [precinct].” Id. §3505.181(C)(2) (emphasis added); see also id. §3505.181(E)(1). Once a poll worker determines that an individual must cast a provisional rather than regular ballot, the poll worker provides the voter with an affirmation form and instructs the individual to complete “a written affirmation . . . before an election official at the polling place” stating that she or he is a “registered voter in the jurisdiction in which the individual desires to vote” and “[e]ligible to vote in that election.” Ohio Rev. Code §3505.181(B)(2)(a)-(b). Ohio has created a uniform provisional ballot affirmation form to be printed by all 88 Boards on provisional ballot envelopes. Decl. of Jusztina Traum (“Traum Decl.”) Ex. M at 5. Ohio poll
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workers have the duty to make sure the voter fills out the provisional ballot affirmation correctly, and must verify that the affirmation has been completed before providing a voter with a provisional ballot. Ohio Rev. Code §§3505.181(B)(6), 3505.182, 3505.183(B)(1); see also State ex rel. Skaggs v. Brunner (“Skaggs I”), 588 F.Supp.2d 828, 836 (S.D. Ohio 2008), vacated on other grounds, 549 F.3d 468 (6th Cir. 2008).
The envelopes and ballots are transmitted to the Boards for their post-election determination of whether “individual[s’] provisional ballot[s] shall be counted as . . . vote[s] in [the] election.” Ohio Rev. Code §3505.181(B)(4).
B. The Ohio Supreme Court’s Ruling in State ex rel. Painter v. Brunner Prohibits County Boards of Elections from Counting Provisional Ballots Cast Incorrectly as Result of Poll Worker Error
Prior to 2010, county Boards in Ohio employed non-uniform standards for determining whether to count wrong precinct provisional ballots that were given to voters as a result of poll worker error. Decl. of Daniel Miller (“Miller Decl.”) ¶¶7, 18, 26, 31, 32, 34, 38, 39, 44, 48 & Exs. E, P, T, Y, Z, BB, EE, FF, II, LL (attaching minutes from Board meetings at which Boards vote whether to count or reject provisional ballots). In April 2010, this Court entered and approved a consent decree in Northeast Ohio Coalition for the Homeless v. Brunner (“NEOCH”), No. 2-06-CV-896, a case in which plaintiffs challenged the unequal and unfair application of Ohio’s provisional ballot laws to individuals required to cast provisional ballots because they lack the identification required by Ohio law to cast a regular ballot. The NEOCH consent decree requires Ohio to count “wrong precinct” and otherwise technically-flawed provisional ballots cast by individuals using only Social Security numbers for identification when there is evidence of poll worker error. Decl. of Caroline Gentry (“Gentry Decl.”) Ex. A;
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see also id. (identifying other grounds on which Boards may not reject provisional ballots cast by individuals using the last four digits of his or her Social Security number for identification).
The November 2010 general election resulted in a contested local judge race in Hamilton County in which provisional ballots affected by poll worker error, including the NEOCH ballots, played a potentially outcome-determinative role. This Court, in Hunter v. Hamilton County Board of Elections, Case N. 1:10-CV-820, issued a preliminary injunction “commanding [the Board of Elections] to investigate whether provisional ballots cast in the correct polling location but wrong precinct were improperly cast because of poll worker error.” 2010 WL 4878957 at *1 (S.D. Ohio Nov. 22, 2010).1 Then, in 2011, in separate state court litigation brought challenging under state law the counting of ballots by Hamilton County and the legality of Secretary Brunner’s poll worker error Directives, the Ohio Supreme Court decided State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 941 N.E.2d 782 (2011).
The Ohio Supreme Court held in Painter that Ohio law prohibits counting any wrong precinct provisional ballots, without exception. Id. at 28 (“[U]nder Ohio statutory law, the secretary of state’s instructions to the board of elections, which required an investigation into whether poll-worker error caused any of the 850 provisional ballots [at issue] to be cast in the wrong precinct, were erroneous because there is no exception to the statutory requirement that provisional ballots be cast in the voter’s correct precinct.”). Thus, the court actually concluded that the Hamilton County Board had violated Ohio law by counting 27 provisional ballots “cast in the wrong precinct at the board of elections during the early-voting process,” even though the Board had determined “they were cast in the wrong precinct due to poll-worker error.” Id. at 32
1 This preliminary injunction subsequently was affirmed by the Court of Appeals for the Sixth Circuit (Hunter I, 635 F.3d at 243), and Chief Judge Dlott entered a permanent injunction following a twelve-day evidentiary hearing. Hunter II, 2012 WL 404786 at *43, 46.
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(emphasis added). The court acknowledged that only those provisional ballots subject to the federal NEOCH consent decree could be counted where the Board was aware of poll worker error.
Following Painter, the Ohio Secretary of State has issued unambiguous directives ordering that Boards may not count any wrong precinct ballots cast by voters who use any form of identification other than Social Security number voters covered by the NEOCH decree, regardless of whether the Board knows of poll worker error. See Traum Decl. Exs. J at 1, M at 4.2 Thus, Boards that previously considered poll worker error to count wrong precinct ballots began rejecting such ballots following Painter. Compare Miller Decl. ¶¶15-16 & Exs. M-N with id. ¶¶17-18 & Exs. O-P; id. ¶35 & Ex. CC with id. ¶37 & Ex. DD; id. ¶40 & Ex. GG with id. ¶45 & Ex. II; see also id. ¶¶22-25 & Exs. R, S.
C. County Boards of Elections Are Rejecting Thousands of Provisional Ballots Cast by Voters Who are Registered Voters
Ohio rejects very large numbers of provisional ballots. Kimball Decl. Ex. B. at 5-7 (Tables 3, 4). A substantial proportion of the rejected provisional ballots in Ohio results from voters being handed the wrong precinct ballot, including within the proper polling location. Id. Ex. B at 18, 23, 24 (Tables 12, 15, 16). In the 2008 election, Ohio Boards rejected over 14,000 ballots cast in the wrong precinct or county, or more than a third of all rejected provisional
2 During the next general election after the Painter decision in 2011, there was confusion among the Boards of Elections regarding whether Painter permitted any investigation into poll worker error with respect to the NEOCH ballots, or whether, as some Boards interpreted the Painter decision to mean, the Boards were limited to reviewing the face of the ballot affirmation to determine poll worker error. See Miller Decl. ¶¶23-25 & Ex. S at 16-17, 2-28 (Hamilton County Board of Election transcript, November 2011). The plaintiffs in NEOCH therefore have asked this Court to modify the NEOCH consent decree, in a manner consistent with this motion for preliminary injunctive relief, to more clearly prevent unconstitutional disenfranchisement of the voters covered by that decree.
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ballots. Id. Ex. B at 16, 20 (Tables 10, 13). In the most recent (non-Presidential year) general election in 2011, Ohio voters were given a total of 3,380 wrong precinct ballots within the correct polling place: 1,826 of these were rejected, and another 1,554 were counted only as a result of the NEOCH consent decree. Id. Ex. B at 23 (Table 15); Traum Decl. Ex. DD.3 Boards also reported another 2,392 “wrong precinct” ballots in 2011 given to and cast by voters in a polling location other than the one that included their assigned precinct. Kimball Decl. Ex. B at 24 (Table 16). Also in 2011, Boards rejected 568 provisional ballots on the basis of technical deficiencies in the ballot envelopes: the envelopes were missing a printed name or a voter signature, had a misplaced printed name or signature, or (without notice to the voter) the signature on the envelope was deemed not to match the exemplar on file with the Board. Traum Decl. Ex. Z.
The rates by which counties rejected provisional ballots in general, and for the specific reason of being cast in the wrong precinct or because of technical errors, vary widely by county throughout Ohio. See Kimball Decl. Ex. B at 15-25 (Tables 10-17). The larger urban counties have higher rates of rejection of wrong precinct ballots, particularly “right location, wrong precinct” ballots cast in multi-precinct locations. Id. at 19 (“While the eight most populated counties accounted for 48 percent of total ballots cast in the 2010 election, those same eight counties accounted for 76 percent of the provisional ballots rejected for being in the wrong precinct or county.”).
D. Poll Workers Err By Giving Registered Voters Ballots for Precincts Other Than Those in Which the Voters Are Registered
3 The Secretary did not begin requiring Boards separately to report the number of right-location, wrong-precinct ballots and wrong-precinct, wrong-location ballots until the 2011 general election. Kimball Decl. Ex. B at 22.
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Statewide evidence from recent elections demonstrates that: 1) poll workers control whether and how voters receive and cast provisional ballots; 2) virtually all of the “wrong precinct” ballots rejected by Boards were given to voters as a result of poll worker error; and 3) Boards are well aware of the extent and nature of poll worker error that leads to wrong precinct ballots and technical flaws in ballot affirmations.
County board records statewide, including the extensive record with respect to Hamilton County from the Hunter trial, demonstrate that poll worker mistakes throughout the voting process result in voters being provided with wrong precinct ballots. 4 As discussed in greater detail below, infra at 15-27, these errors include: poll workers giving provisional ballots to any voter who is not on the precinct voting list, often as a result of a mistaken understanding that such ballots will be counted; poll workers incorrectly identifying voters’ precincts, including because poll workers are unable to use complicated county street guides to locate the voters’ correct precincts; poll workers failing properly to instruct voters how and where to cast a ballot that will be counted; poll workers failing to comply with the statutory mandate that voters should be provided a provisional ballot only when they are informed of the correct location to cast a ballot and refuse to go to that location; and poll workers not informing voters after directing them to the proper precinct that if they insist on casting ballots in the incorrect precinct, their vote will not count. See Miller Decl. ¶¶50-63 & Exs. NN-YY; see also Decl. of Donald McTigue (“McTigue Decl.”) ¶5 & Ex. C.
4 Counsel for plaintiffs in the NEOCH v. Husted case submitted public records requests to all 88 Ohio County Boards of Elections for documents including Board minutes and transcripts from 2008-2012 that include discussions of provisional ballots and poll worker error, records of poll worker and voter complaints, poll worker training materials, county address and street guides used by poll workers in the 2012 elections, and records of multi-precinct polling place locations. To date, approximately half of the Boards have responded, at least in part. Miller Decl. ¶¶2-4 & Exs. A-C.
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In election after election, from 2008 through the recent 2012 primary, Boards have acknowledged that poll worker error resulted in voters being given wrong precinct ballots and in processing ballots that contain incomplete affirmation forms. See Miller Decl. ¶¶6-49 & Exs. EMM. III. ARGUMENT
A. Preliminary Injunction Standard In reviewing Plaintiffs’ request for a preliminary injunction, the Court must consider and balance four factors: “(1) [Plaintiffs’] likelihood of success on the merits; (2) whether [Plaintiffs] may suffer irreparable harm absent the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of an injunction upon the public interest.” Deja Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d 377 (6th Cir. 2001). The “four considerations . . . are factors to be balanced, not prerequisites that must be met.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th Cir. 1997). In cases such as this, which involve asserted constitutional violations, the likelihood of success may be determinative because an infringement of a constitutional right generally constitutes irreparable injury. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). “Additionally, if the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment[,]” and “it is always in the public interest to prevent violation of a party’s constitutional rights.” Deja Vu, 274 F.3d at 400 (internal quotation marks omitted). B. Plaintiffs Are Very Likely to Prevail on Their Claim That Ohio
Unconstitutionally Disenfranchises Voters By Refusing to Count Provisional Ballots When Poll Workers Have Given Voters the Wrong Precinct Ballot and By Rejecting Ballots for Technical Errors
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1. Ohio’s Post-Election Invalidation of Provisional Ballots Because Poll Workers Have Erred Infringes the Fundamental Right to Vote Protected by the Equal Protection Clause of the United States Constitution
Ohio’s provisional ballot law cannot withstand the scrutiny the Supreme Court requires for laws that burden the fundamental right to vote under the Equal Protection Clause of the Fourteenth Amendment. Ohio Rev. Code §3505.183(B)(4), as definitively interpreted by the Ohio Supreme Court in State ex rel. Painter v. Brunner, prohibits Ohio Boards from counting the provisional ballots of lawfully registered voters who were given the wrong precinct ballot by poll-workers or whose ballots contain technical errors. This law severely burdens the right of Ohio voters to cast and have counted their votes for President, Vice President, Congress, and other races, is supported by no legitimate state interest that could justify such a strict disqualification rule, and thus violates the Fourteenth Amendment’s protection of the fundamental right to vote. As the Sixth Circuit recently observed with respect to this same law: “To disenfranchise citizens whose only error was relying on poll worker instructions” imposes a “harsh” penalty that raises “substantial constitutional concerns.” Hunter I, 635 F.3d at 243; accord Hunter II, 2012 WL 404786 at *43, 46.5
The right to vote is fundamental and “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“Other rights, even the most basic, are illusory if the right to vote is undermined.”); Anderson, 460 U.S. at 787-88 (“the
5 The conclusions of the Sixth Circuit and this Court with respect to substantive due process in the Hunter case are discussed further below in Section III.B.3. The Court in Hunter II did not order a remedy for the recognized systemic constitutional concerns only because the plaintiffs in that case had not yet notified the Ohio Attorney General of a challenge to the constitutionality of the relevant state statutes as required by Federal Rule of Civil Procedure 5.1. Id. at *44, 46 & nn.35-36. Unlike in Hunter, Plaintiffs have named the Secretary of State as a Defendant in this action.
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right of qualified voters, regardless of their political persuasion, to cast their votes effectively . . . rank[s] among our most precious freedoms”). Thus, the Supreme Court has long held that state laws that deny or burden the right to vote cannot stand under the Equal Protection Clause of the Fourteenth Amendment. See Norman v. Reed, 502 U.S. 279, 288–89 (1992); Anderson, 460 U.S. at 787 n.7; Harper, 383 U.S. at 666-67; Carrington, 380 U.S. at 96; Bullock v. Carter, 405 U.S. 134, 145-146 (1972). And the Constitution protects not just the right to cast a ballot, but the right to have that ballot counted. See United States v. Classic, 313 U.S. 299, 315 (1941) (“[o]bviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted”); United States v. Mosley, 238 U.S. 383, 386 (1915). As the Court explained in Bush v. Gore, 531 U.S. 98, 104105 (2000):
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. Id. at 104-105.6 Ohio’s provisional ballot law cannot withstand the scrutiny the Supreme Court requires under the Equal Protection Clause for laws that burden the fundamental right to vote. State laws that impose a “severe” burden on the right to vote are unconstitutional unless justified by “a narrowly drawn state interest of compelling importance.” Crawford, 553 U.S. at 190 (quoting Norman, 502 U.S. at 288-89); see also Libertarian Party of Ohio v. Husted, 2011 WL 3957259,
6 In addition, “our Constitution leaves no room for classification of people in a way that unnecessarily abridges” the right to vote in federal congressional elections, which are separately protected by Article I, Section 2 of the United States Constitution and by the Seventeenth Amendment. Wesberry, 376 U.S. at 17-18; Classic, 313 U.S. at 314-15; U.S. Const., Art. I Sec. 2; 17th Amend.
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at *5 (S.D. Ohio) (Marbley, J.). Moreover, to justify any burden on the right to vote, the State must identify and the Court must evaluate “the precise interests” the burden serves. Anderson, 460 U.S. at 789. “However slight [the] burden” on the right to vote “may appear, . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Crawford, 553 U.S. at 191 (internal quotations omitted). Only state interests that make it “necessary to burden the plaintiff’s rights” in the manner required by the regulation are sufficient. Anderson, 460 U.S. at 789. Scrutiny in this case is heightened by the fact that the Ohio provisional ballot law requires post-election judgment calls as to which ballots count and which do not, “after the initial count of regular ballots is known.” Hunter I, 635 F.3d at 235. The possibility that state officials could use post-election rules to discount ballots in a discriminatory manner makes the “cause for constitutional concern . . . much greater.” Id. at 235.
Applying this balancing test, Ohio’s provisional ballot law severely burdens the right to vote in two respects: first, by mandating the rejection of provisional ballots when the poll worker erred by providing the voter with the ballot for the wrong precinct (Ohio Rev. Code §3505.183(B)(4)(a)(ii); Painter, 128 Ohio St.3d at 17); and, second, by mandating the postelection rejection of ballots for what elections officials determine to be technical ballot affirmation errors (Ohio Rev. Code §3505.183(B)(a)(4)(iii)). These rules deny the vote to thousands of Ohio voters through no fault of their own, are supported by no legitimate state interest let alone the compelling interest required to justify such disenfranchisement, and lack the “plainly legitimate sweep” necessary to withstand constitutional scrutiny. Crawford, 553 U.S. at 202.
a. Votes Should Not Be Thrown Out Because Poll Workers Gave Lawfully Registered Voters the Wrong Precinct Ballot
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Ohio has determined that to administer federal and state elections, voters will be assigned to and required to vote in precincts. See Ohio Rev. Code §3505.181(C)(1). Plaintiffs do not contend that a precinct-based voting system is impermissible or overly burdensome. Ohio has, however, also created a uniquely complicated provisional ballot system that makes it extremely difficult and confusing for substantial numbers of voters statewide to receive and cast ballots that will be counted, and which, in election after election, disenfranchises thousands of voters by invalidating their provisional ballots as a result of poll worker error. Plaintiffs challenge the specific Ohio ballot-counting law, Ohio Rev. Code §3505.183(B)(4)(a)(ii), requiring Boards to reject provisional ballots cast due to poll worker error in the wrong precinct, after having already determined that the ballots were cast by lawfully registered voters. Under the system Ohio has created, virtually all of the so-called “wrong precinct” ballots that arrive at the Boards result from such poll worker error.
Ohio’s provisional ballot law, with its thirteen different statutorily-mandated reasons an individual may be required to cast a provisional ballot (Ohio Rev. Code §3505.181(A)(1)-(13)), causes much poll worker confusion and is difficult to administer on election day. Traum Decl. Exs. R at 39-40, T at 10-26 to 10-28, U at 3-6. This law leads to many more provisional ballots being cast in Ohio than in comparably-sized states. Kimball Decl. Ex. B at 1-4 (Tables 1, 2).7
7 Ohio requires substantially more categories of voters to vote provisionally than most other states. Kimball Decl. Ex. B at 1-4; compare Ohio Rev. Code §3505.181(A)(1)-(13) with Mich. Comp. Laws § 168.523a(1)(b)(5); Fla. Stat. § 101.048. As a result, with a far smaller population, Ohio ranks second only to California in total number of provisional ballots cast. Kimball Decl. Ex. B at 3 (Table 1). In the 2008 election, Ohio voters cast more than 200,000 provisional ballots out of 5.7 million votes (and approximately 40,000 of those provisional ballots were later rejected). Id. Ex. B at 3, 6 (Table 1, 3). States with comparable voting populations required voters to cast far fewer provisional ballots in the 2008 election: Michigan (approximately 5 million votes, only 3,797 provisional ballots cast); Virginia (approximately 3,750,000 votes, only ─ continued
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Ohio’s system of voting has become increasingly complicated by the fact that Ohio counties have consolidated precincts into multi-precinct polling locations. Theye Decl. ¶5 & Ex. A; Kimball Decl. Ex. B at 8-10.8 For example, Cuyahoga County now has 998 of its 1063 total precincts, or 94 percent, in multi-precinct polling locations, with an average of 2.73 precincts per multi-precinct polling location. Theye Decl. ¶5 & Ex. A. Counties all across the state have similarly consolidated most of their precincts into multi-precinct locations. Id.9 Even a small county like Coshocton has 55 of a total 57 precincts, or 96 percent, assigned to multi-precinct polling locations, averaging 4.23 precincts per multi-precinct location. Id.
This complex system results in the post-election rejection of very large numbers of provisional ballots, including substantial numbers of ballots cast by lawfully registered voters who are required to vote provisionally and are given a ballot by poll workers that does not correspond to their assigned precinct. Kimball Decl. Ex. B at 15-25. In the upcoming 2012 general election, with anticipated high-turnout due to the Presidential election, Ohio can expect both increased numbers of total provisional ballots cast, as well as high numbers of ballots rejected for being cast in the wrong precinct. Id. at 2, 6-7.
4,575 provisional ballots cast); Wisconsin (3 million votes; only 211 provisional ballots cast). Id. Ex. B at 3 (Table 1); Traum Decl. Ex. EE. 8 Ohio ranks near the top of states using multi-precinct locations. Kimball Decl. Ex. B at 8-10 (Tables 5, 6). 9 Examples include: Butler (95 percent of precincts in multi-precinct locations, average of 3.31 precincts per multi-precinct location); Greene (100 percent, average 3.68 precincts per multiprecinct location); Franklin (68 percent, average 2.40 precincts per multi-precinct location); Lorain (90 percent, average 2.95 precincts per multi-precinct location); Montgomery (88 percent, average 2.36 precincts per multi-precinct location); Stark (71 percent, average 2.55 precincts per multi-precinct location). Theye Decl. ¶5 & Ex. A.
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The clear and undeniable reason for Ohio’s alarming rate of rejected provisional ballots is poll worker error. When a voter appears at a polling location on election day in any county in Ohio, the voter is processed by various poll workers before being allowed to vote. Traum Decl. Exs. R at 39-41, T at 10-25 & 10-26, U at 2, 9-10; Miller Decl. ¶¶64-70 & Exs. ZZ-EEE. Ohio voters cannot vote an incorrect provisional ballot without a poll worker determining that the voter should vote a provisional rather than a regular ballot, and without the poll worker choosing to give that ballot to the voter. And, poll workers are required by Ohio law to determine whether the voter is on the register for the precinct or precincts assigned to that location, and if not, to determine a voter’s correct precinct, direct the voter to that precinct, and inform the voter that his or her vote will not count if he or she insists on voting a provisional ballot in the wrong precinct. See Ohio Rev. Code §3505.181(C)(1); Hunter II, 2012 WL 404786 at *9. Only if a voter has been so informed of the correct precinct and the fact that his or her vote will not be counted if cast in the wrong precinct and nonetheless “refuses to travel to the polling place for the correct jurisdiction,” should a poll worker ever provide a wrong-precinct provisional ballot to a voter. Ohio Rev. Code §3505.181(C)(2).
Evidence statewide demonstrates that poll workers are giving voters the incorrect precinct ballots without having complied with their statutory duty to direct voters to the correct precinct. Even when voters are required to cast provisional ballots during early voting at the Board of Elections office, and are handed the wrong ballot because staff incorrectly determines the voter’s precinct, Painter requires Boards to ignore that undeniable error and reject those votes. 128 Ohio St.3d at 32; compare Miller Decl. ¶13 & Ex. K (Cuyahoga County in 2011 rejecting 47 wrong precinct provisional ballots cast “in house” at the Board under Painter) with Miller Decl. ¶45 & Ex. II (Summit County in 2008 discussing voters who “came in and we gave
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them the wrong ballot” at the Board of Elections and, pre-Painter, voting to count the ballots because “[i]t does seem a shame to disenfranchise the voter because of our mistake”).
Problems with poll worker error are particularly acute in Ohio’s many multi-precinct polling locations. In some of these locations, the situation is very similar to early voting at the Board office, because voters must first check in with poll workers, whose duty it is to determine which precinct ballot the voter is supposed to vote (as opposed to first standing in lines that correspond to “precincts”). Miller Decl. ¶¶65, 67, 68, 69, 70 & Exs. ZZ, BBB, CCC, DDD, EEE; Traum Decl. Ex. W at 2. Thus, if the voter is given an incorrect ballot, or incorrect information that another poll worker uses to retrieve an incorrect ballot, the fact that the voter casts an invalid ballot is due entirely to poll worker error, not because the voter somehow chose to vote “in the wrong precinct.” Indeed, there is simply no way for a voter to “travel” to the right or wrong geographic “precinct” within this type of polling location. See Hunter I, 635 F.3d at 237.
Other Boards use one table within a multi-precinct polling place to process all provisional voters. Miller Decl. ¶¶17, 65, 66, 67, 68, 69 & Exs. O, ZZ, AAA, BB, CCC, DDD. Here again, if a lawfully registered voter leaves that table with the “wrong” provisional ballot in hand, the cause must be poll worker error. Miller Decl. ¶17 & Ex. O (Franklin County Board member: there “is a single table and a single set of poll workers assigned to the task of provisional ballots for all precincts in a location, [and] it would be pretty difficult in this county to conceive of a situation where it would be voter error.”). All county Boards use either integrated voter registration lists, in paper or electronic form, or very complicated address and street guides, as the means by which poll workers must determine the proper precinct for registered voters required to vote provisionally. Miller Decl. ¶71 & Exs. FFF-XXX. If a voter ends up with an
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incorrect ballot at such locations after a poll worker uses these materials to determine the
“correct” precinct, it can only be because of poll worker error.
Evidence demonstrates that statewide, poll workers consistently err throughout the
process of administering Ohio’s provisional ballot law, including in the following ways:
1. Poll workers misunderstand Ohio law and therefore give provisional ballots to
anyone not on the precinct register without attempting to discern the correct precinct, in a
misguided effort to help people vote.10
2. Poll workers mistakenly think the voter is in the correct precinct, even when they
are not able to locate the voter in the poll book.11
3. Poll workers direct voters to the wrong precincts; or, within a multi-precinct
location where poll workers have access to ballot for several precincts, give voters the wrong
precinct ballot.12
10 The record in Hunter II demonstrated that poll workers consistently failed to direct voters to right precinct “either because they mistakenly thought the voter was in the right precinct or they mistakenly thought they did not have to direct the voter to the correct precinct for the vote to count,” and they sometimes “assum[ed] another poll worker had already made that determination.” Hunter II, 2012 WL 404786 at *18-20, 40-41 & nn.30-31; id. at *20 (finding that instead of providing correct precinct or polling place information to voters who did not appear in the books, many poll workers simply gave voters provisional ballots, even in instances where a “voter’s correct precinct was in the same voting location”).
A Ross County Board Member described the problem in 2012 as follows: “How does it happen? . . . Very easily . . . On these, these were done at the polling place and they actually went to the correct polling place but the polling place has maybe two or three different precincts in it. They went to the wrong table and the poll worker is not supposed to vote them unless they’re in their book and if they’re not in their book, they’re supposed to call us to see what precinct to send them to. They didn’t. They just voted them a provisional ballot.” Miller Decl. ¶35 & Ex. CC. The Board then voted unanimously to reject those wrong precinct ballots. Id.; see also id. ¶51 & Exs. NN-RR, TT-YY (compiling voter and poll worker incident reports); Decl. Emma Kornetsky (“Kornetsky Decl.”) Ex. A.
11 Hunter II, 2012 WL 404786 at *18-20, 40-41 & nn.30-31; Miller Decl. ¶51 & Exs. NN-RR, TT-YY (compiling voter and poll worker incident reports).
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4. Poll workers fail to give correct precinct information because they make errors in
reading the counties’ complicated street guides, particularly where streets are split between
precincts by odd and even addresses and where there may be more than one residence with the
same street number and street name within a county.13
12 Miller Decl. ¶¶52, 54 & Exs. OO-QQ, SS, UU, WW, YY (compiling voter and poll worker incident reports); id. ¶37 & Ex. DD (Ross County: “This was poll worker error. The voters were sent to another precinct. Voter’s [sic] showed up at the wrong precinct so they were sent to another precinct to vote. But, where they were sent to by the poll worker was also the wrong precinct.”).
13 Many counties do not provide poll workers with composite lists of registered voters and precinct assignments, which would be by far the easiest way to determine a voter’s proper precinct. Instead, poll workers must use the voter’s address and a street guide to determine the precinct. Chief Judge Dlott’s opinion in Hunter II amply demonstrates the difficulty poll workers will encounter in discerning the proper precinct, particularly when precinct lines are divided between the odd and even sides of streets, a problem reported throughout the state. 2012 WL 404786 at *41 (finding that many wrong precinct/right location ballots involved voters who resided on streets that passed through multiple precincts, or whose precinct depended on whether the address was odd or even). Miller Decl. ¶¶ 56-58 & Exs. OO, PP, SS-WW, YY (collecting examples of incident reports of poll workers experiencing difficulty determining odd and even street numbers for split precincts); id. Exs. FFF-XXX (excerpts of counties’ “street lists” provided to poll workers).
Poll workers testified in the Hunter II trial as follows: A. Hampton: Poll worker believed multi-digit number was “odd” if it had more odd digits than even, or if it began with an odd digit. Gentry Decl. Ex. G at 2-204:3-5, 2205:1-3. R. Jackson: Poll worker never looked up anyone’s address and not sure if anyone else did either. Id. Ex. Q at 5-8:18-24, 5-10:4-16. A. Johnson: Poll worker not aware that for some addresses the even side of the street votes in one precinct and the odd side in another. Id. Ex. S at 6-68:23-69:3. Board Member Burke: Poll workers “clearly all struggled with the books,” which are “difficult to read.” Id. Ex. D at 1-200:4-7. The training materials provided by both the Secretary of State and the Boards do little to prevent these errors. Current Secretary of State poll worker training materials and the elections official manual do not instruct poll workers how to determine a voter’s correct precinct. Traum Decl., Exs. R at 39, U at 2.
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5. Poll workers are not available and do not have or provide appropriate signs and materials to inform voters of where and how they should cast their ballots. 14
6. Poll workers do not inform voters that if they vote a ballot in the wrong precinct, it will not count.15
7. Poll workers direct voters to vote provisionally without instructing voters on how and/or where they could cast a regular ballot or a correct precinct provisional ballot.16
8. Poll workers provide voters with provisional ballots without first informing voters of their correct precinct and without waiting for voters to refuse to cast a ballot in that correct precinct.17
9. Poll workers borrow ballots or ballot envelopes from another precinct table because they run out of the necessary materials.18
The evidence that poll worker error leads to voters being provided wrong precinct ballots is overwhelming, and is well known to the State and the Boards. See Miller Decl. Exs. E-MM (compiling Boards’ discussions of poll worker error and provisional ballots); see also League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (affirming denial of motion to dismiss in suit alleging “[p]oll workers received inadequate training, causing them to provide incorrect instructions and leading to the discounting of votes” and “poll workers misdirected
14 Miller Decl. ¶¶55, 58-62 & Exs. OO, QQ, SS, UU, WW, YY (compiling voter and poll worker incident reports). 15 Miller Decl. ¶51 & Exs. NN-RR, TT-YY (compiling voter and poll worker incident reports). 16 Id. (compiling voter and poll worker incident reports). 17 Id. (compiling voter and poll worker incident reports). 18 Miller Decl. ¶63 & Exs. NN-QQ, TT-XX (compiling voter and poll worker incident reports).
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voters to the wrong polling place”). Yet every year, Boards from throughout the State repeat the
refrain that poll worker error results in wrong precinct provisional ballots being given to voters.19
When presented the opportunity in the Hunter case, Hamilton County was unable to
provide any evidence that even a single voter who had taken the time and expense to come to the
polls on election day was actually told before voting a wrong precinct provisional ballot that he
or she was in the incorrect precinct and that his or her vote would not count and then knowingly
19 See, e.g., Adams County: “The pollworkers . . . did not do Provisionals correctly.” Miller Decl. Ex. E at 1.
Butler County: “Each location had a minimum of one poll worker processing provisional ballots incorrectly”; “The problems we saw on Election Day with our Provisional table were due to poll workers not being adequately trained on processing Provisional Voters on the Electronic Poll Books.” Id. Ex. H at 2; Ex. F at 18.
Clark County: “We stress the maps and everything in training that’s, you know, you come in, let’s say I live on Detrick Jordan Pike, they can go into the big red map book and they can look up the address, but they can call us, I tell them call us and we can tell you where to send them [voters]. But for whatever reason, I don’t know if they [poll workers] just get frustrated, you don’t know what happens out there on that day of election. . . . It will show in your breakdown there by each precinct and it will say voted in the wrong precinct and if I have one of them, I have upteen of them.” Id. Ex. J at 11-12.
Cuyahoga County: “[T]his problem was a staffing issue; staff had been advised to improve training and to set up additional safety nets to eliminate the incidence of wrong precinct ballots.” Id. Ex. K at 1.
Franklin County: “Typically, if they’re in the wrong precinct, we would agree it’s fatally flawed, but if there is poll worker error, and that is the theme of the day, that seems to be the concern that this is the case where it was documented clearly as poll worker error.” Id. Ex. P at 23-24; see also id. Ex. O at 6.
Hamilton County: Extensive discussions of poll-worker error with respect to NEOCH ballots and non-NEOCH ballots. Id. Ex. S at 16-17, 25-30.
Lake County: Rejecting 288 ballots as wrong precinct and commenting “there is still the need for the poll workers to better understand the provisional voting process.” Id. Ex. Z at 2.
Montgomery County: Noting that the poll worker “should have directed to the right table” and discussing “poll worker error.” Kornetsky Decl. ¶3 & Ex. A at 4.
Ross County: Discussion regarding poll worker error, supra n.10. See also Miller Decl. Ex. CC at 2; Ex. DD at 2.
Summit County: Discussions of poll worker error. Id. Ex. GG at 80, 82; Ex. HH at 107, 114, 116; Ex. II at 26-27.
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insisted on voting an invalid ballot anyway, which would of course be a meaningless exercise.20 The thousands of Ohio voters whose ballots are being rejected for this reason in post-election proceedings unquestionably intended to vote. Voters who arrive to vote on election day do not want to cast invalid ballots. Indeed, in all the county board discussions of poll worker error with respect to wrong precinct ballots (prior to Painter decision in 2011), and in the context of implementing the NEOCH Consent Decree (which still allows some consideration of poll worker error after Painter in very limited circumstances), no Ohio County Board of Elections has decided to reject a provisional ballot based on evidence that the voter was told the correct location and that his or her vote would not count, as required by Ohio law, and then refused to travel there. Miller Decl. Exs. E-MM . Board incident reports from recent elections are replete with examples of poll worker error, but do not reflect instances of voters refusing to travel to a correct precinct and insisting on casting an invalid ballot. Id.
All of this evidence demonstrates that, in recent elections, virtually all provisional ballots rejected by Boards because they were cast in the “wrong precinct” made it into the hands of registered voters as a result of poll worker error. A rule that prohibits counting of entire ballots under these circumstances imposes “excessively burdensome requirements” on Ohio voters. Crawford, 553 U.S. at 202. These Ohio voters are required to comply with an obligation that
20 See 2012 WL 404786 at *22; Gentry Decl. Ex. E at 2-118:4-8; id. Ex. G at 2-198:5-12; id. Ex. H at 2-221:4-10; id. Ex. O at 4-114:8-25, 4-122:18-21; id. Ex. P at 4-148:13-21; id. Ex. S at 655:17-56:6; id. Ex. U at 7-31:10-12; id. Ex. V at 7-52:13-22; id. Ex. Z at 8-9:17-20; id. Ex. FF at 8-193:5-11; id. Ex. GG at 8-206:3-17; id. Ex. HH at 8-247:16-248:13; id. Ex. JJ at 9-69:2370:10; id. Ex. KK at 9-102:8-13; id. Ex. NN at 9-171:22-172:2; id. Ex. OO 9-199:17-200:1; see also id. Ex. M at 4-16:7-17:1 (poll worker would have made record of any refusal to go to correct precinct); see also McTigue Decl. Ex. A (Paul v. Jeffrey transcript) at 53:10-55:17, 59:21-60:2, 72:19-73:21, 168:13-169:23, 170:18-171:4, 173:23-174:1, 175:14-21, 200:24-201:4, 201:17-202:12, 203:8-204:3, 207:14-208:3, 208:17-18 (Erie County voters not told that they were voting provisionally in wrong precinct).
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they cannot control – the decision of the poll worker to hand them an incorrect ballot. Moreover, Ohio invalidates the entire ballot of federal, state, and local races – not just any races that have some relation to the precinct lines.21
To be sure, states may impose “Time[], Place[], and Manner” requirements for voting in an election. See Art. I, §4, cl. 1; Nat’l Ass’n for Advancement of Colored People State Conference of Pennsylvania v. Cortes, 591 F.Supp.2d 757, 764 (E.D. Pa. 2008). Ohio has done just that by organizing voters into precincts and multi-precinct polling locations, informing voters of their polling locations, organizing regular voting by precincts, and imposing on poll workers a duty to direct voters to the correct precinct. But under the challenged Ohio law, a voter can comply with all of Ohio’s reasonable requirements for voting – by properly registering, by appearing to vote on election day with the requisite identification, and by appearing to vote at the proper polling location – and yet have his or her right to vote denied because a poll worker erroneously hands the voter an incorrect ballot without the proper warning that the ballot will not count, and without instructing the voter how to cast a ballot for his or her correct precinct.22
When a state denies a citizen the right to vote as a result of poll worker error, that denial is wholly unrelated to voter qualifications, and cannot stand. See, e.g., Crawford, 553 U.S. at 189 (even rational restrictions are “invidious” if “unrelated to voter qualifications”); Harper, 383
21 The burden has an especially “excessive[]” impact in relation to the class of provisional voters created by Ohio law; voters permitted to cast a regular ballot by definition cannot and do not suffer post-election invalidation of their vote because a poll worker erred by giving them the wrong ballot. See Crawford, 553 U.S. at 200-02 (considering whether burden falls particularly heavily on certain subsets of voters). 22 Even if Ohio’s law merely regulated the manner of voting, a State’s right to burden voters with time, place, and manner requirements is not unlimited, and would be far exceeded here. See, e.g., Cortes, 591 F.Supp.2d at 764 (although “[s]ome waiting in line . . . is inevitable and must be expected,” there “can come a point when the burden of standing in a queue ceases to be an inconvenience or annoyance and becomes a constitutional violation”).
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U.S. at 666-67; Carrington, 380 U.S. at 96. Thus, for example, courts repeatedly have held that a state may not, after having provided absentee ballots to voters, refuse to count them on the grounds that it provided the ballots in error. Griffin v. Burns, 570 F.2d 1065, 1074 (1st Cir. 1978); Hoblock v. Albany County Bd. of Elections, 487 F.Supp.2d 90, 97 (2006).
Here, the State and county Boards will not be able to identify any compelling interest justifying this severe burden posed by Ohio law on the rights of the voters unfairly disenfranchised as a result of poll worker error. Unlike the voter identification requirement considered in Crawford, the requirement that a registered voter’s ballot be discarded because a poll worker provided the voter with the wrong ballot is entirely “irrelevant to the voter’s qualifications,” and in no way furthers the “integrity and reliability of the electoral process itself.” Crawford, 553 U.S. at 189-90 (quoting Anderson, 460 U.S. at 788 n.9). That is because the statute requires Boards to invalidate provisional ballots cast by individuals in the “wrong” precinct only after first determining that those voters are lawfully registered voters. Ohio Rev. Code §3505.183(B)(4)(a)(i), (ii). For this reason, the concern with potential fraud that justified the voter identification law in Crawford, for example, is not implicated at all by the Ohio provisional ballot law. See Crawford, 553 U.S. at 189-90.
Nor does Ohio’s strict ballot disqualification law serve any legitimate regulatory interest in ensuring that “some sort of order, rather than chaos, is to accompany the democratic processes.” Burdick v. Takushi, 504 U.S. 428 (1992) (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). Plaintiffs are not challenging Ohio’s decision to assign voters to precincts, to inform voters of their proper precinct, to process voters by precinct at the polling place, or to impose on poll workers a duty to identify and direct voters to their proper precinct. Plaintiffs challenge only the extreme rule created by Painter that after voters have been processed through
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Ohio’s precinct-based election system by poll workers and have been given the wrong precinct ballot, county boards of election must disqualify all the votes on a wrong-precinct provisional ballot without regard to poll worker error. In contrast to Ohio, many other states are able effectively to conduct elections organized by precinct, while at the same time counting the provisional ballots of any voters cast in the wrong precinct for non-precinct based races for which the voter is eligible.23
The post-election invalidation of votes as a result of poll worker error ultimately serves to undermine the electorate’s faith in the fairness of our democratic process, particularly in a state that requires hundreds of thousands of voters to vote provisionally. “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006); Hunter I, 635 F.3d at 234. Whenever a provisional voter is informed that his or her vote has been rejected for reasons outside his control, the voter loses confidence in the voting system. The Painter decision itself, by announcing that votes are known to be marred by poll worker error, and yet will not be counted, undermines voter trust both in the poll workers and in the entire voting system. Ohio has no legitimate interest in a rule
23 See, e.g., New Mexico (N.M. Stat. Ann. §1-12-25.4); Pennsylvania (25 Pa. Stat. Ann. §3050); California (Cal. Elec. Code §14310(c)(3)); Kansas (Kan. Stat. Ann. §25-3002); Massachusetts (Mass. Gen. Laws Ann. ch. 54, §76C); Maryland (Md. Elec. Law §11-303); New Jersey (N.J. Stat. Ann. §19:53C-17); Georgia (Ga. Code Ann. §21-2-419). Indeed, to the extent Ohio claims that disqualifying wrong precinct ballots encourages voters to vote in their proper precincts and encourages efficient elections, the current system of ignoring poll worker error undermines that goal. Offering wrong-precinct provisional ballots to voters, without informing them that their wrong-precinct ballot will be not counted, discourages voters and poll workers from identifying the voters’ correct precincts, and likely increases the numbers of voters who vote outside their assigned precinct and polling place.
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that undermines confidence in the democratic process, and discourages lawful voters from voting.
Finally, in order to withstand constitutional scrutiny, the statute at issue must have a “plainly legitimate sweep.” Crawford, 553 U.S. at 202. The evidence described above demonstrates the myriad ways poll workers err by giving voters the wrong ballots. In juxtaposition, there is only one circumstance in Ohio’s system of provisional voting when a wrong precinct provisional ballot may properly be given to a voter: when the poll worker correctly determines the voter’s assigned precinct, informs the voter of that precinct, and tells the voter, as required by state law, that his or her vote will not count if he or she casts the wrong ballot, and the voter nonetheless insists on voting the provisional ballot in the wrong precinct. As already discussed, Plaintiffs are not aware of any evidence that this has ever actually happened in Ohio. See supra 22-23. Voters who take the time and expense to appear at the polling place on election day are trying to vote, and it would be absurd to suggest that they intend knowingly to cast meaningless, invalid ballots. And, in the many multi-precinct locations where there is no separate area to which the voter must “travel” to vote a valid ballot because one table processes all provisional ballots, the process is entirely in the hands of poll workers. In these locations, there is no circumstance in which a voter will cast a wrong-precinct ballot that is not the result of poll worker error.
Given the system Ohio has designed, and the overwhelming evidence of poll worker error, a law that prohibits Boards from counting these wrong precinct ballots after the election cannot be said to have any legitimate sweep at all. For all these reasons, Ohio cannot show it is “necessary to burden [] plaintiff[s’] rights” with its rule that wrong-precinct ballots may not be counted. Anderson, 460 U.S. at 789.
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b. Votes Should Not Be Thrown Out Because Poll Workers Processed Provisional Ballots with Technical Errors
The problem of poll worker error in Ohio is not limited to wrong precinct ballots. Ohio disenfranchises large numbers of voters based on technical defects in affirmations on provisional ballot envelopes, defects that are caused by election officials’ failure to carry out their statutory duties.
Ohio law and the statewide evidence show that an incomplete or incorrectly completed provisional ballot affirmation cannot be accepted without error by the poll worker. Under Ohio law, provisional voters generally are required to complete a provisional ballot affirmation form that requires a printed name and a signature. See Ohio Rev. Code §§3505.181(B)(2), 3505.182. First, poll workers must affirm that “[t]he Provisional Ballot Affirmation . . . was subscribed and affirmed before me.” Id. §3505.182. If the voter in fact did not “subscribe and affirm” the ballot form, then the poll worker’s own affirmation is in error. See also Skaggs I, 588 F.Supp.2d at 836 (Ohio law “requires more than the mere passive presence of the poll worker, conferring on him a duty to verify the actual completion of the [provisional ballot affirmation] form, thereby requiring him to participate actively in the exercise of an eligible voter’s franchise.”). Second, a poll worker should not give a voter a provisional ballot unless and until the voter has executed the affirmation on the provisional ballot envelope. Ohio Rev. Code §3505.181(B)(2); Traum Decl. Exs. T at 10-25, U at 7. Third, a voter may decline to execute the affirmation, in which case it is the poll worker’s responsibility to ensure that the ballot is properly cast by “record[ing] the individual’s name and includ[ing] that information with the transmission of the ballot” to election officials. Ohio Rev. Code §3505.181(B)(6); see also id. §3505.182; State ex rel. Skaggs v. Brunner, 120 Ohio St. 3d 506 (2008) (“Skaggs II”), 512-15.
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Statewide, Boards have recognized poll workers regularly process incomplete affirmation forms in violation of their statutory duties. Miller Decl. ¶38 & Ex. EE at 1 (concluding it was poll worker error to “‘let the person hand in the ballot without the completion of the information’” where ballot was filled out “‘in front of the poll worker and signed by the poll worker’”); id. ¶63 & Exs. NN-QQ, TT-XX (additional examples of poll workers signing affirmation even though there is no signature from voter or no printed name, or the name appears in the wrong place).
Despite the fact that technical errors in the provisional ballot affirmation forms are thus clearly the result of poll worker errors, the Ohio Supreme Court has held that County Boards of Elections must reject such provisional ballots. See Skaggs II, 120 Ohio St.3d at 527. For example, under Ohio law as interpreted by Skaggs II and Painter, Boards reject provisional ballots of eligible, registered voters if there is a printed name on the affirmation form but no signature; a signature on the affirmation but no printed name; or where the printed name or signature is in the wrong place on the envelope. See id. at 512-17.24 See also Traum Decl. Exs. Z-CC (data showing rejection of ballots of voters for “no signature,” “no printed name,” “printed name and/or signature in wrong place”); Miller Decl. ¶33 & Ex. AA (Secretary of State instructed Lorain County Board that “printed name, identification and a signature must be placed
24 In Skaggs II, the Ohio Supreme Court held that, in the absence of additional evidence that a voter declined to execute an affirmation and that an election official had failed to perform his or her duties, ballots without an executed affirmation should not be counted. The Court stated, however, that “[i]f we were presented with evidence that the election officials had [not] performed any of their statutorily required actions . . . we may have been persuaded that declinations could be presumed.” Id. at 515. Yet after Painter, Boards are barred from investigating poll worker error, and thus regularly reject provisional ballots that do not have signed affirmations without inquiring into whether the voter might simply have declined to execute the affirmation, triggering the poll worker’s obligation to record the voter’s information. See Traum Decl. Ex. Z.
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on the front of the provisional envelope” and if “appears on the back of the envelope, . . it cannot be counted”); id. ¶28 & Ex. V at 1 (Secretary of State instructed Huron County Board to reject provisional ballot where “voter signed their name at the top of the envelope instead of printing it.”).
The burden on the right to vote in this circumstance is severe: voters have their right to vote completely denied due to technical errors on their provisional ballot affirmation forms. No compelling state interest can justify this disenfranchisement. Crawford, 553 U.S. at 191. The State has no interest in preventing fraud in this circumstance as it has already determined that the voters are eligible, registered voters. Ohio Rev. Code §3505.183(B)(4)(a). Moreover, Ohio law itself evidences the State’s strong interest in preventing disenfranchisement as a result of technical deficiencies in the ballot affirmation forms. Ohio law permits provisional voters to decline to execute an affirmation entirely, and still have their vote counted, id. §3505.183(B)(1); and further provides that “no ballot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.” Id. §3505.28. Given this, there can be no compelling interest in not counting ballots of registered voters when a poll worker processes an affirmation that is merely incomplete or incorrectly completed. The fundamental right to vote is thus violated by Defendants’ invalidation of provisional ballots for technical errors.25
25 Boards also reject provisional ballots on the grounds that voters’ signatures on the ballot envelopes purportedly do not match signatures on file with the Board. See Traum Decl. Exs. ZCC. Because there are no objective statewide standards pursuant to which the Boards evaluate whether voters’ signatures match (see Miller Decl. ¶15 & Ex. M at 30-31 (acknowledging standard is “subjective”)), the Boards’ rejection of these provisional ballots is inconsistent with the Equal Protection Clause’s guarantee of nonarbitrary treatment of individuals with respect to their right to vote. See also Bush, 531 U.S. at 108-10 (instructing counties to discern “intent of the voter” with no further guidance led to violations of the equal protection clause). The rejections also violate procedural due process because, unlike a challenge to the signature of a voter casting a regular ballot on election day, a voter casting a provisional ballot is not given the ─ continued
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2. All Ohio Voters Regardless of Form of Identification Used to Vote Should be Subject to the Same Standard for Counting Provisional Ballots
In light of the Consent Decree in the NEOCH v. Husted case and the Ohio Supreme Court’s decision in Painter, the Secretary of State has directed Ohio Boards in the 2012 elections to count wrong precinct provisional ballots cast by voters using only Social Security numbers as identification where the Board knows of poll worker error, and to reject wrong precinct provisional ballots cast by voters using any other form of identification even if the county knows of poll worker error. Traum Decl. Ex. M at 4. Treating voters who use other forms of identification differently from voters who use Social Security numbers with respect to the standard for counting ballots cast in the wrong precinct violates the “constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05; see also League of Women Voters, 548 F.3d at 477 (“At a minimum, . . . equal protection requires ‘nonarbitrary treatment of voters.’” (quoting Bush, 531 U.S. at 105)).
In Hunter I, the plaintiff argued that the counting of some “wrong precinct” provisional ballots caused by poll-worker error (those cast at the Board of Elections office) but not others (those cast at the polls) violated equal protection. The Sixth Circuit concluded that there was a “likelihood that the intrajurisdiction unequal treatment undertaken by the Hamilton County
opportunity to explain or rectify the allegedly non-matching signature. Cf. Ohio Rev. Code §3505.18; Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F.Supp. 1354, 1358 (D. Ariz. 1990) (holding failure to provide absentee voters notice that ballots had been challenged and opportunity to respond violated procedural due process).
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Board is constitutionally impermissible,” and held that “[t]he Board arbitrarily treated one set of provisional ballots differently from others, and that unequal treatment violates the Equal Protection Clause.” 635 F.3d at 242 (emphasis added); see also id. at 238 (“This discriminatory disenfranchisement was applied to voters who may bear no responsibility for the rejection of their ballots, and the Board has not asserted ‘precise interests’ that justified the unequal treatment.”); see also Bush, 531 U.S. at 109 (an arbitrary difference between how votes are counted within counties violates guarantees of equal protection); League of Women Voters, 548 F.3d at 476 (invalidating the ballots of voters who were given wrong-precinct ballots by poll workers violates the right of a voter “to have one’s vote counted on equal terms with others” under the Equal Protection Clause).
There likewise can be no justification for counting wrong precinct ballots caused by poll worker error when a voter uses a Social Security number, but then not counting wrong precinct ballots caused by poll worker error for voters who use other forms of identification.26 The State can assert no concrete legitimate interest that would support the continued disparate treatment of the votes of individuals not covered by the NEOCH Consent Decree. As Judge Dlott concluded after trial in Hunter, the proper remedy for such an equal protection violation is to count all the ballots marred by poll worker error, not to discard the Consent Decree votes too. Hunter II, 2012 WL 404786, *46 n.40 (“The cure to this violation requires the Board to count other ballots flawed by poll-worker error . . . . [I]t is preferable as an equitable matter to enable the exercise
26 In the context of reviewing the Hunter preliminary injunction, the Sixth Circuit recognized but declined to reach the issue of any constitutional concern caused by the disparate treatment of voters who cast provisional ballots and use Social Security numbers, and are thus covered by the NEOCH consent decree, and those voters casting provisional ballots who use other forms of identification, having already recognized that equal protection required equal treatment of all polling place voters as compared to those who voted at the Board office. Hunter I, 635 F.3d at 238 n.17.
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of the right to vote” rather than rejecting additional votes) (quoting Hunter I, 635 F.3d at 245)). As the distinction between Social Security number provisional voters and those with other forms of identification is arbitrary with regard to whether those wrong precinct ballots result from poll worker error, Plaintiffs are very likely to prove that the continued application of different counting standards to these groups of voters violates equal protection.
3. Ohio’s System for Processing Provisional Ballots Subjects All Provisional Voters to Inconsistent Poll Worker Practices from County to County and Precinct to Precinct that Result in the Arbitrary Rejection of Ballots in Violation of the Uniformity Required By Equal Protection
Ohio voters are subject to arbitrary and non-uniform rates of poll worker error between counties, particularly with respect to large, urban counties. Kimball Decl. Ex. B at 11-25. First, Ohio counties have widely varying rates of provisional ballots as a percentage of total votes cast, as well as varying rates of rejection of those ballots. Id. at 11-18. Rejected provisional ballots tend to be disproportionately concentrated in the counties with the most registered voters. Id. For example, in the 2010 election the eight largest counties represented about 48 percent of total ballots cast but almost two-thirds of rejected provisional ballots in Ohio. Id. at 15.
The rate of rejection of “wrong precinct” ballots varies widely throughout Ohio. Id. at 19-25. In several counties more than half of rejected provisional ballots in 2010 were wrong precinct ballots, while in many other counties no provisional ballots were rejected for this reason. Id. at 19. And, while the eight most populated counties accounted for 48 percent of total ballots cast in the 2010 election, those same eight counties accounted for 76 percent of the provisional ballots rejected for being in the wrong precinct or county. Id. The 2011 statistics also show wide variation in the rate of rejected “right location, wrong precinct” ballots. Id. at 22. Again,
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while the eight most populated counties accounted for 46 percent of total ballots cast in the 2011 election, those same eight counties accounted for 79 percent of the provisional ballots rejected for being in the wrong precinct but the correct polling place. Id.
Such dramatic and arbitrary differences from county to county in the likelihood that a voter will be given an improper wrong precinct ballot by a poll worker, resulting in post-election disenfranchisement, violates equal protection. In Bush v. Gore, the Supreme Court made clear that a State may not “accord[] arbitrary and disparate treatment to voters in its different counties.” 531 U.S. at 107 (citing Gray v. Sanders, 372 U.S. 368 (1963); Moore v. Ogilvie, 394 U.S. 814 (1969)). Any statewide rule – such as Painter’s requirement that all provisional ballots marred by poll worker error not be counted – must meet “the rudimentary requirements of equal treatment” across and within counties. Id. at 109. Like Florida’s statewide standard of “voter intent” that resulted in impermissibly disparate rejection rates of ballots in Bush v. Gore, Ohio’s requirement after Painter that counties reject all “wrong precinct” ballots regardless of poll worker error results in impermissibly disparate rejection rates of votes between counties.
Courts repeatedly have concluded that polling systems that permit substantially higher rates of invalidation of ballots due to error in some counties as compared to other counties violate equal protection. See Black v. McGuffage, 209 F. Supp. 2d 889, 893 (N.D. Ill. 2002) (equal protection clause was violated where counties employed voting technology with widely varying error rates because “people in different counties have significantly different probabilities of having their votes counted, solely because of the nature of the system used in their jurisdiction”); Common Cause Southern Christian Leadership Conf. of Greater Los Angeles v. Jones, 213 F.Supp.2d 1106, 1109 (C.D. Cal. 2001) (allowing counties “to adopt either punchcard voting procedures or more reliable voting procedures” stated a claim for “unreasonable and
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discriminatory” election procedures in violation of equal protection); see also Cortes, 591 F.Supp.2d at 764 (evidence of widely varying failure rates of voting machines and resulting wait times to vote at different precincts and in different counties established a likelihood of success on equal protection claim). Likewise, Ohio’s provisional ballot system leaves voters from county to county subject to widely varying rates of invalidation due to poll worker error, with no valid justification for not counting these ballots, in violation of equal protection.
4. Ohio’s Provisional Ballot System is Fundamentally Unfair and Violates Substantive Due Process
Both the Sixth Circuit and this Court have observed that Ohio’s practice of refusing to count the votes of registered voters because they were provided a wrong-precinct ballot by a poll worker renders Ohio’s system for the counting of provisional ballots “fundamentally unfair” in violation of substantive due process. A state violates voters’ right to substantive due process if a state employs “non-uniform rules, standards and procedures” that result in significant disenfranchisement and vote dilution. League of Women Voters, 548 F.3d at 478 (internal quotations omitted); see also Ury v. Santee, 303 F.Supp. 119, 126 (N.D. Ill. 1969) (failure to provide “adequate and substantially equal voting facilities” when reduced number of polling places from 32 to 6 violated voters’ right to due process). Ohio’s system of rejecting ballots for reasons caused by poll worker error does just that.
The Sixth Circuit in Hunter I stated that it had “substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error.” Id. at 243-44. The Court observed that:
Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed. To
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disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair. Id. at 243 (emphasis added); see also League of Women Voters, 548 F.3d at 478; Hunter II, at *43 (to the extent that Ohio law “provides that provisional ballots cast in the wrong precinct shall not be counted under any circumstance, those provisions, as applied to situations where evidence of poll-worker error exist, are fundamentally unfair to voters.”). The holdings of the Sixth Circuit in Hunter I and League of Women Voters and of this Court in Hunter II, are consistent with the long-standing rule that once state workers have induced a voter’s reliance on a particular manner of voting, invalidation of that voter’s ballot is “fundamentally unfair.” See Griffin, 570 F.2d at 1074 (it violates substantive due process to invalidate absentee ballots that state officials provided to primary voters, where the effect of the state’s action was to induce voters to vote by this means rather than in person); Hoblock, 487 F.Supp.2d at 97 (“when a group of voters are handed ballots by election officials that, unsuspected by all, are invalid, and then state law forbids counting the ballots, the election officials violate the constitutional rights of the voters, and the election process is flawed”) (internal quotations and alterations omitted)). The statewide evidence cited in the previous sections demonstrates that the Ohio provisional ballot system, whereby poll workers arbitrarily provide Ohio voters with the wrong ballots, regardless of whether they think that they are helping voters, is fundamentally unfair. Plaintiffs are very likely to prevail on their claim that this system of arbitrary disenfranchisement violates the Constitution’s guarantees of substantive due process.
5. Plaintiffs Have Standing to Challenge Ohio’s Law Requiring Unconstitutional Rejection of Provisional Ballots
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Just as Plaintiffs have established that they are very likely to prevail on the merits of their constitutional claim, Plaintiffs also satisfy Article III’s standing requirements. Plaintiffs are membership organizations and have standing “to assert . . . the rights of their members who will vote in the [upcoming federal] election.” Sandusky Cty. Dem. Pty. v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004).27 It is well-settled that “[a]n association has standing to bring suit on behalf of its members when [1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization’s purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
Plaintiffs’ members have standing in their own right to challenge Ohio’s unconstitutional provisional ballot law. Many of Plaintiffs’ members are registered voters and intend to vote in the upcoming election. See Decl. of Ronnie Wardrup (“Wardrup Decl.” ¶¶3-4); Decl. of Steven Frammartino (“Frammartino Decl.”) ¶¶3-5; Decl. of Lance Wyatt (“Wyatt Decl.”) ¶4; Decl. of Erin Kramer (“Kramer Decl.”) ¶¶4-8; Decl. of Rick Lawwill (“Lawwill Decl.”) ¶¶2-5. Evidence from the last several statewide elections reflects that a substantial number of voters are required to cast provisional ballots, and that a large number of those ballots are rejected as a result of poll worker error. There can be no doubt that Plaintiffs’ members will be subject to Ohio’s errorridden provisional balloting system, and to the State’s refusal to count ballots cast in “wrong precincts” as a result of poll worker error. See Lawwill Decl. ¶¶2-5; Kramer Decl. ¶¶4-8; see also, e.g., Wyatt Decl. ¶4 (USW has 2,423 members in Cuyahoga County, a county in which
27 Plaintiffs also have standing to assert their own rights as organizations, and allege that their organizations will have to divert limited resources to address and counteract Ohio’s unconstitutional vote counting practices. See Kramer Decl. ¶10; Decl. of Karen Gasper (“Gasper Decl.”) ¶¶3-6.
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93% of precincts are in multi-precinct voting locations, and 24.4% of rejected provisional ballots in Cuyahoga County are wrong precinct/correct polling place ballots).
That Plaintiffs cannot now predict – before an election – which of their members will be required to vote provisional ballots and will have those ballots not counted as a result of poll worker error does not affect their standing. In Sandusky County Democratic Party, 387 F.3d 565, the Sixth Circuit found that organizations had standing to assert the rights of their members who would vote in the coming election, explaining:
[Plaintiffs] have not identified specific voters who will seek to vote at a polling place that will be deemed wrong by election workers, but this is understandable; by their nature, mistakes cannot be specifically identified in advance. Thus, a voter cannot know in advance that his or her name will be dropped from the rolls, or listed in an incorrect precinct, or listed correctly but subject to a human error by an election worker who mistakenly believes the voter is at the wrong polling place. It is inevitable, however, that there will be such mistakes. The issues [Plaintiffs] raise are not speculative or remote; they are real and imminent. 387 F.3d at 574. The same is true here. The disenfranchisement of voters will be caused directly by Ohio’s refusal to count ballots cast incorrectly because of poll worker error, an injury that will be remedied by Plaintiffs’ requested remedy. Plaintiffs satisfy the remaining requirements for associational standing. The goal of ensuring that members and the public are able to cast ballots that will be counted is germane to the purposes of Plaintiffs’ organizations. See Frammartino Decl. ¶¶6-7; Kramer Decl. ¶11; Gasper Decl. ¶2; Lawwill Decl. ¶7; Wardrup Decl. ¶5. And individual participation of Plaintiffs’ members is not necessary where, as here, Plaintiffs seeks “prospective [and] injunctive relief for [their] members.” United Food & Comm. Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546 (1996). C. Without an Injunction, Ohio’s Arbitrary and Unfair System for Counting
and Rejecting Provisional Ballots Will Irreparably Harm Thousands of Voters in the Upcoming November 2012 Election
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The Court should grant Plaintiffs’ request for injunctive relief because Plaintiffs have made a strong showing of likelihood of success on the merits of their claims that Ohio’s failure to count “wrong-precinct” provisional ballots is unconstitutional. The balance of harms also weighs heavily in favor of granting injunctive relief.
In the absence of injunctive relief, some of Plaintiffs’ members inevitably will have their right to vote not merely burdened but completely denied as a result of Ohio’s prohibition on counting “wrong-precinct” ballots even when caused by poll-worker error. The denial of the fundamental right to vote is unquestionably “irreparable harm.” See Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986); Miller v. Blackwell, 348 F. Supp. 2d 916, 922 (S.D. Ohio 2004) (Dlott, J.) (“Because this Court has found that Defendants’ challenged actions threaten or impair both Plaintiffs’ constitutional right to due process and constitutional right to vote, the Court must find that Plaintiffs will suffer an irreparable injury”); see also Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (“a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights”).
By contrast, the State cannot be harmed by the enjoining of Ohio laws that violate Plaintiffs’ constitutional rights. See Deja Vu, 274 F.3d at 400. Moreover, as discussed supra 25, Ohio’s provisional ballot counting law does not serve any concrete state interest in the reliability or integrity of the voting process, as it indisputably disenfranchises only eligible, registered voters. Nor does it serve administrative efficiency, as the post-election disqualification of these votes does not encourage or facilitate correct-precinct voting. See supra 26.
Finally, both Plaintiffs and the public have an interest in ensuring that the public’s confidence in the electoral system is not undermined, and that voters are not discouraged from
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participating in the democratic system. As the Sixth Circuit explained, “counting the ballots of qualified voters miscast as a result of poll-worker error may enhance confidence in the integrity of our electoral processes, which is essential to the functioning of our participatory democracy.” Hunter I, 635 F.3d at 244-45. The public also has a strong interest in the prompt determination of the outcome of elections – particularly elections for President and Vice President of the United States (see Bush, 531 U.S. at 110-11), and in ensuring that uniform standards for the counting of ballots are established before an election and not during the exigent circumstances of the vote-counting process. Cf. Hunter I, 635 F.3d at 235 (“specific standards to ensure equal application” are particularly important during vote-counting process “after the initial count of regular ballots is known”) (internal quotation marks and alterations omitted).
For all these reasons, the balance of harms and the public interest tip sharply in favor of granting Plaintiffs’ requested injunctive relief.
D. This Court Should Require Ohio to Count All Provisional Ballots Cast By Lawfully Registered Voters Unless the Poll Worker Affirms That the Voter Was Informed of an Error in Precinct or the Ballot Affirmation and that the Vote Would Not Count and Insisted on Casting an Invalid Ballot
Rather than ask for a blanket injunction requiring the Boards to count all wrong precinct votes, Plaintiffs seek a preliminary injunction tailored to preventing the constitutional violations caused by poll worker error, but which also permits the State to reject ballots cast in the single circumstance in which a voter may knowingly and intentionally vote a wrong precinct provisional ballot. The only circumstance under which that could happen is when the poll worker has complied with the statutory duty to inform the voter of his correct precinct, directed that voter to the correct precinct, informed the voter that his vote will not count if cast in the wrong precinct, and then the voter refuses and insists on knowingly casting a wrong precinct ballot. Therefore, Plaintiffs request a remedy that would guard against the proven constitutional
40

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violations that occur when votes are disqualified because poll workers give voters the wrong ballot and permit voters to cast a provisional ballot in an incorrect precinct without informing them that their votes will not count.
As described in accompanying Proposed Order, Plaintiffs ask the Court to issue an injunction ordering the County Boards of Election not to reject provisional ballots cast by lawfully registered voters because:
1) The voter cast his or her provisional ballot in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot has affirmed under penalty of election falsification that: a) the poll worker determined the correct precinct for the voter; b) the poll worker directed the voter to the correct precinct; c) the poll worker informed the voter that casting the wrong precinct ballot would result in all votes on the ballot being rejected under Ohio law; and d) the voter refused to travel to the correct precinct and insisted on voting the invalid ballot; and the Board of Elections has verified that the precinct to which the poll worker directed the voter was the correct precinct for that voter. If the poll worker does not attest to all of the above, or the County Board of Elections cannot verify that the poll worker directed the voter to the correct precinct, the provisional ballot must be counted; or
2) The provisional ballot envelope does not contain a voter signature and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the provisional ballot envelope does not contain the voter’s full printed name and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the voter did not sign and/or print the voter’s name in the correct place(s) on the ballot envelope and the
41

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County Board of Elections has otherwise been able to determine that the voter is a registered voter. Ohio counties must implement these requirements uniformly, lest they again employ
ballot counting standards that run afoul of equal protection concerns applied in Bush v. Gore,
531 U.S. at 107. Plaintiffs therefore ask the Court to order Defendant Secretary of State Husted
to modify the “Precinct Election Official Info” section of Form 12-B (“Provisional Ballot
Affirmation”) to read as follows:
Precinct election officials MUST complete the following section. However, failure by the precinct election official to complete this section will not result in the disqualification of this ballot.
Correct Voter Precinct Information
· Precinct Election Official’s printed name: _________________________________ · The name of the Polling Location where this Ballot was cast is _________________ · This Voter’s Correct Precinct is _________________________________________ · This Voter was Provided with the Ballot for Precinct _______________________
Affirmation for Voter Who Insists on Casting Incorrect Precinct Ballot: I affirm under the penalty of election falsification that I informed this voter of the correct precinct number _______________, and its location _______________, and the voter refused to travel to that precinct, at which point I informed the voter that a ballot cast in the wrong precinct number ________________would not count because it was not the voter’s assigned precinct, and after being so informed, the voter insisted on casting the invalid ballot. Poll Worker Signature: ________________________________________
Provisional Ballot Form Checklist · The Voter printed his/her full name on the top line. ____ Yes ____ No · The Voter signed his/her name on the bottom line, directly below the affirmation.
____ Yes ____ No · The Voter has completed all other required portions of the affirmation.
____ Yes ____ No
If no, the poll worker must confirm that the Voter intends to decline to execute the affirmation.
42

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· The Voter declined to print or sign his/her name on the affirmation or fully complete the affirmation after I informed the voter of the incomplete affirmation. ___ Yes ____No. If the Voter declines, the Precinct Election Official must write the Voter’s name here: ____________________________.

Finally, in order to ensure uniform implementation, Plaintiffs ask the Court to order

Defendant Secretary of State to issue a Directive requiring the members of the 88 Ohio County

Boards of Elections to use the “Precinct Election Official Info” section on the Provisional Ballot

Affirmation Form to determine if the poll worker erred in providing a wrong precinct ballot to

the voter or erred in processing a ballot with an incomplete affirmation form.

IV. CONCLUSION

For all the foregoing reasons, Plaintiffs respectfully request this Court grant Plaintiffs’

motion for a preliminary injunction to prevent the arbitrary and unconstitutional

disenfranchisement caused by poll worker error.

Dated: June 22, 2012

Respectfully submitted

/s/Michael J. Hunter MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com

Attorneys for All Plaintiffs

STEPHEN P. BERZON (pro hac vice application pending) STACEY M. LEYTON (pro hac vice application pending) BARBARA J. CHISHOLM (pro hac vice application pending) DANIELLE LEONARD (pro hac vice application pending) Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com

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Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, and UAW Local 863 PENDA HAIR (pro hac vice application pending) DONITA JUDGE (pro hac vice application pending) UZOMA NKWONTA (pro hac vice application pending) Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org Attorneys for Plaintiff OOC
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CERTIFICATE OF SERVICE I certify that on June 22, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, parties may access this document through that system. Additionally, hard copies of the foregoing inclusive of exhibits were served, by prepaid United Parcel Service, upon: Jon Husted Secretary of State 180 E Broad St., 16th Floor Columbus, OH 43215 Jeff Hastings Cuyahoga County Board of Elections 2925 Euclid Avenue Cleveland, Ohio 44115 Timothy M. Burke Hamilton County Board of Elections 824 Broadway Cincinnati, OH 45202 Douglas J. Preisse Franklin County Board of Elections 280 East Broad Street, Room 100 Columbus, OH 43215 Mike Dewine Ohio Attorney General 30 E. Broad St., 14th Floor Columbus, OH 43215
/s/ Michael J. Hunter
45

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1, et :

al.,

: JUDGE GEORGE C. SMITH

:

Plaintiffs

: Magistrate Judge Mark R. Abel

:

vs.

:

: [PROPOSED] ORDER GRANTING

JON HUSTED, et al.,

: PLAINTIFFS’ MOTION FOR

: PRELIMINARY INJUNCTION

Defendants.

:

This matter comes before this Court on Plaintiffs’ Motion for Preliminary Injunction. This Court has provided an opportunity for the Defendants to respond and has considered the arguments of the parties, the evidence in support of and against this Motion, and the relevant statutory and case law. Plaintiffs have established a likelihood of success on their constitutional claims that Ohio’s law requiring the post-election disqualification of provisional ballots regardless of poll worker error violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the right to vote for Congress and Senator protected by Article 1, Section 2 and the Seventeenth Amendment to the United States Constitution, and that the balance of harms weighs strongly in favor of this injunction for the November 2012 election. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, for good cause shown, the Court GRANTS Plaintiffs’ Motion.
Accordingly, it is hereby ORDERED that a defendant class of the members of the 88 Ohio County Boards of Elections is provisionally certified for purposes of this preliminary relief.

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It is FURTHER ORDERED that Defendants Secretary of State and the members of the
88 Ohio County Boards of Election may not reject any provisional ballots cast by lawfully
registered voters in the November 2012 general election for the following reasons:
1) The voter cast his or her provisional ballot in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot has affirmed under penalty of election falsification that: a) the poll worker determined the correct precinct for the voter; b) the poll worker directed the voter to the correct precinct; c) the poll worker informed the voter that casting the wrong precinct ballot would result in all votes on the ballot being rejected under Ohio law; and d) the voter refused to travel to the correct precinct and insisted on voting the invalid ballot; and the Board of Elections has verified that the precinct to which the poll worker directed the voter was the correct precinct for that voter. If the poll worker does not attest to all of the above, or the County Board of Elections cannot verify that the poll worker directed the voter to the correct precinct, the provisional ballot must be counted; or
2) The provisional ballot envelope does not contain a voter signature and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the provisional ballot envelope does not contain the voter’s full printed name and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the voter did not sign and/or print the voter’s name in the correct place(s) on the ballot envelope and the County Board of Elections has otherwise been able to determine that the voter is a registered voter.
It is FURTHERED ORDERED that, in order to ensure the uniform treatment of ballots
by the members of the 88 Ohio County Boards of Elections during the November 2012 election,

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Defendant Secretary of State shall modify the “Precinct Election Official Info” section of Form
12-B (“Provisional Ballot Affirmation”) to read as follows:
Precinct election officials MUST complete the following section. However, failure by the precinct election official to complete this section will not result in the disqualification of this ballot.
Correct Voter Precinct Information
· Precinct Election Official’s printed name: _________________________________ · The name of the Polling Location where this Ballot was cast is _________________ · This Voter’s Correct Precinct is _________________________________________ · This Voter was Provided with the Ballot for Precinct _______________________
Affirmation for Voter Who Insists on Casting Incorrect Precinct Ballot: I affirm under the penalty of election falsification that I informed this voter of the correct precinct number _______________, and its location _______________, and the voter refused to travel to that precinct, at which point I informed the voter that a ballot cast in the wrong precinct number ________________would not count because it was not the voter’s assigned precinct, and after being so informed, the voter insisted on casting the invalid ballot. Poll Worker Signature: ____________________________________________
Provisional Ballot Form Checklist · The Voter printed his/her full name on the top line. ____ Yes ____ No · The Voter signed his/her name on the bottom line, directly below the affirmation.
____ Yes ____ No · The Voter has completed all other required portions of the affirmation.
____ Yes ____ No
If no, the poll worker must confirm that the Voter intends to decline to execute the affirmation.
· The Voter declined to print or sign his/her name on the affirmation or fully complete the affirmation after I informed the voter of the incomplete affirmation. ___ Yes ____No. If the Voter declines, the Precinct Election Official must write the Voter’s name here: ____________________________.
It is FURTHER ORDERED that Defendant Secretary of State issue a Directive requiring the
members of the 88 Ohio County Boards of Elections to use the “Precinct Election Official Info”

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section on the Provisional Ballot Affirmation Form to determine if the Precinct Election Official erred in providing a wrong precinct ballot to the voter or erred in processing a ballot with an incomplete affirmation form.

IT IS SO ORDERED.

Date: ______________________

__________________________________ UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1;

:

UNITED STEEL, PAPER AND

:

FORESTRY, RUBBER,

:

MANUFACTURING, ENERGY, ALLIED : JUDGE GEORGE C. SMITH

INDUSTRIAL AND SERVICE

:

WORKERS INTERNATIONAL UNION; : Magistrate Judge Mark R. Abel

INTERNATIONAL UNION, UNITED

:

AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 1005; and INTERNATIONAL UNION,

: : :

DECLARATION OF ERIN KRAMER IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY

: INJUNCTION

UNITED AUTOMOBILE, AEROSPACE :

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 863,

: : CLASS ACTION

and OHIO ORGANIZING

:

COLLABORATIVE,

:

:

Plaintiffs

:

:

vs.

:

:

JON HUSTED, in his official capacity as

:

Secretary of State of Ohio; TIMOTHY M. :

BURKE, in his official capacity as member :

of the Hamilton County Board of Elections :

and on behalf of similarly situated

:

members of county boards of elections;

:

JEFF HASTINGS, in his official capacity

:

as member of the Cuyahoga County Board :

of Elections and on behalf of similarly

:

situated members of county boards of

:

elections; and DOUGLAS J. PREISSE, in :

his official capacity as member of the

:

Franklin County Board of Elections and on :

behalf of similarly situated members of

:

county boards of elections,

:

:

Defendants.

:

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Case: 2:12-cv-00562-ALM-TPK Doc #: 4-3 Filed: 06/22/12 Page: 1 of 3 PAGEID #: 123

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1;

:

UNITED STEEL, PAPER AND

:

FORESTRY, RUBBER,

:

MANUFACTURING, ENERGY, ALLIED : JUDGE GEORGE C. SMITH

INDUSTRIAL AND SERVICE

:

WORKERS INTERNATIONAL UNION; : Magistrate Judge Mark R. Abel

INTERNATIONAL UNION, UNITED

:

AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL

: :

DECLARATION OF KAREN GASPER IN SUPPORT OF PLAINTIFFS’

: MOTION FOR PRELIMINARY

1005; and INTERNATIONAL UNION,

: INJUNCTION

UNITED AUTOMOBILE, AEROSPACE :

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 863,

: :

CLASS ACTION

and OHIO ORGANIZING

:

COLLABORATIVE,

:

:

Plaintiffs

:

:

vs.

:

:

JON HUSTED, in his official capacity as

:

Secretary of State of Ohio; TIMOTHY M. :

BURKE, in his official capacity as member :

of the Hamilton County Board of Elections :

and on behalf of similarly situated

:

members of county boards of elections;

:

JEFF HASTINGS, in his official capacity

:

as member of the Cuyahoga County Board :

of Elections and on behalf of similarly

:

situated members of county boards of

:

elections; and DOUGLAS J. PREISSE, in :

his official capacity as member of the

:

Franklin County Board of Elections and on :

behalf of similarly situated members of

:

county boards of elections,

:

:

Defendants.

:

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Case: 2:12-cv-00562-ALM-TPK Doc #: 4-4 Filed: 06/22/12 Page: 1 of 3 PAGEID #: 126

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1;

:

UNITED STEEL, PAPER AND

:

FORESTRY, RUBBER,

:

MANUFACTURING, ENERGY, ALLIED : JUDGE GEORGE C. SMITH

INDUSTRIAL AND SERVICE

:

WORKERS INTERNATIONAL UNION; : Magistrate Judge Mark R. Abel

INTERNATIONAL UNION, UNITED

:

AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL

: :

DECLARATION OF LANCE WYATT IN SUPPORT OF PLAINTIFFS’

: MOTION FOR PRELIMINARY

1005; and INTERNATIONAL UNION,

: INJUNCTION

UNITED AUTOMOBILE, AEROSPACE :

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 863,

: :

CLASS ACTION

and OHIO ORGANIZING

:

COLLABORATIVE,

:

:

Plaintiffs

:

:

vs.

:

:

JON HUSTED, in his official capacity as

:

Secretary of State of Ohio; TIMOTHY M. :

BURKE, in his official capacity as member :

of the Hamilton County Board of Elections :

and on behalf of similarly situated

:

members of county boards of elections;

:

JEFF HASTINGS, in his official capacity

:

as member of the Cuyahoga County Board :

of Elections and on behalf of similarly

:

situated members of county boards of

:

elections; and DOUGLAS J. PREISSE, in :

his official capacity as member of the

:

Franklin County Board of Elections and on :

behalf of similarly situated members of

:

county boards of elections,

:

:

Defendants.

:

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Case: 2:12-cv-00562-ALM-TPK Doc #: 4-5 Filed: 06/22/12 Page: 1 of 10 PAGEID #: 129

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1;

:

UNITED STEEL, PAPER AND

:

FORESTRY, RUBBER,

:

MANUFACTURING, ENERGY, ALLIED : JUDGE GEORGE C. SMITH

INDUSTRIAL AND SERVICE

:

WORKERS INTERNATIONAL UNION; : Magistrate Judge Mark R. Abel

INTERNATIONAL UNION, UNITED

:

AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL

: :

DECLARATION OF RICK LAWWILL IN SUPPORT OF PLAINTIFFS’

: MOTION FOR PRELIMINARY

1005; and INTERNATIONAL UNION,

: INJUNCTION

UNITED AUTOMOBILE, AEROSPACE :

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 863,

: :

CLASS ACTION

and OHIO ORGANIZING

:

COLLABORATIVE,

:

:

Plaintiffs

:

:

vs.

:

:

JON HUSTED, in his official capacity as

:

Secretary of State of Ohio; TIMOTHY M. :

BURKE, in his official capacity as member :

of the Hamilton County Board of Elections :

and on behalf of similarly situated

:

members of county boards of elections;

:

JEFF HASTINGS, in his official capacity

:

as member of the Cuyahoga County Board :

of Elections and on behalf of similarly

:

situated members of county boards of

:

elections; and DOUGLAS J. PREISSE, in :

his official capacity as member of the

:

Franklin County Board of Elections and on :

behalf of similarly situated members of

:

county boards of elections,

:

:

Defendants.

:

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1;

:

UNITED STEEL, PAPER AND

:

FORESTRY, RUBBER,

:

MANUFACTURING, ENERGY, ALLIED : JUDGE GEORGE C. SMITH

INDUSTRIAL AND SERVICE

:

WORKERS INTERNATIONAL UNION; : Magistrate Judge Mark R. Abel

INTERNATIONAL UNION, UNITED

:

AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL

: :

DECLARATION OF RONNIE WARDRUP IN SUPPORT OF

: PLAINTIFFS’ MOTION FOR

1005; and INTERNATIONAL UNION,

: PRELIMINARY INJUNCTION

UNITED AUTOMOBILE, AEROSPACE :

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 863,

: :

CLASS ACTION

and OHIO ORGANIZING

:

COLLABORATIVE,

:

:

Plaintiffs

:

:

vs.

:

:

JON HUSTED, in his official capacity as

:

Secretary of State of Ohio; TIMOTHY M. :

BURKE, in his official capacity as member :

of the Hamilton County Board of Elections :

and on behalf of similarly situated

:

members of county boards of elections;

:

JEFF HASTINGS, in his official capacity

:

as member of the Cuyahoga County Board :

of Elections and on behalf of similarly

:

situated members of county boards of

:

elections; and DOUGLAS J. PREISSE, in :

his official capacity as member of the

:

Franklin County Board of Elections and on :

behalf of similarly situated members of

:

county boards of elections,

:

:

Defendants.

:

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12 cv 562

INTERNATIONAL UNION, LOCAL 1;

:

UNITED STEEL, PAPER AND

:

FORESTRY, RUBBER,

:

MANUFACTURING, ENERGY, ALLIED : JUDGE GEORGE C. SMITH

INDUSTRIAL AND SERVICE

:

WORKERS INTERNATIONAL UNION; : Magistrate Judge Mark R. Abel

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL

: : :

DECLARATION OF STEVEN FRAMMARTINO IN SUPPORT OF PLAINTIFFS’ MOTION FOR

: PRELIMINARY INJUNCTION

1005; and INTERNATIONAL UNION,

:

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT

: : CLASS ACTION

WORKERS OF AMERICA, LOCAL 863, :

and OHIO ORGANIZING

:

COLLABORATIVE,

:

:

Plaintiffs

:

:

vs.

:

:

JON HUSTED, in his official capacity as

:

Secretary of State of Ohio; TIMOTHY M. :

BURKE, in his official capacity as member :

of the Hamilton County Board of Elections :

and on behalf of similarly situated

:

members of county boards of elections;

:

JEFF HASTINGS, in his official capacity

:

as member of the Cuyahoga County Board :

of Elections and on behalf of similarly

:

situated members of county boards of

:

elections; and DOUGLAS J. PREISSE, in :

his official capacity as member of the

:

Franklin County Board of Elections and on :

behalf of similarly situated members of

:

county boards of elections,

:

:

Defendants.

:

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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL:

UNION, LOCAL 1, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, et al.,

:

:

:

Defendants.

:

:

Case No. 2:12-CV-562 JUDGE ALGENON L. MARBLEY Magistrate Terence P. Kemp

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant,

:

:

and

:

:

STATE OF OHIO

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:

Intervenor-Defendant.

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Case No. 2:06-CV-896 JUDGE ALGENON L. MARBLEY Magistrate Terence P. Kemp

PLENARY OPINION AND ORDER

TABLE OF CONTENTS Page #
I. Introduction.............................................................................................................. 1 II. Background .............................................................................................................. 2
A. Ohio’s Precinct System and Provisional Voting Regime................................ 3 B. Legal Duties of Election Officials and “Poll-Worker Error” ........................ 7 III. Motion to Intervene ................................................................................................. 10 A. Procedural History............................................................................................. 10 B. Law and Analysis ............................................................................................... 10 IV. Motion for Preliminary Injunction ........................................................................ 12 A. Summary............................................................................................................. 12 B. Legal Background .............................................................................................. 13
1. Ohio’s Precinct-Only Eligibility Requirement Complies with HAVA.... 13 2. The Hunter Litigation .................................................................................. 14 C. Preliminary Injunction Standard of Review ................................................... 19 D. Law and Analysis ............................................................................................... 21 1. Likelihood of Success on the Merits ........................................................... 21 a. Equal Protection ..................................................................................... 22
i. First Equal Protection Claim (Wrong-Precinct Ballot Prohibition) .............................................................................. 24 (a) Identifying the burden imposed by the Ohio law........................ 25 (b) Whether the restriction if justified by sufficient state interests .. 34 (c) The restriction fails review for invidiousness............................ 40
ii. Second Equal Protection Claim (Ballot
ii

Envelope

Deficiencies) ...................................................................... 42

iii. Third Equal Protection Claim (Disparate Impact

of

Poll-Worker Error by County)....................................................... 46

iv.

Fourth Equal Protection Claim (Unequal Treatment of

Provisional

Voters) ............................................................................ 48

b. Substantive Due Process ......................................................................... 50

2. Irreparability of Harm ................................................................................ 51

3. Balancing of Harms ..................................................................................... 52

4. Public Interest .............................................................................................. 53

E. Appropriate Injunctive Relief........................................................................... 56

V. Motion to Modify the Consent Decree ................................................................... 57

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I. INTRODUCTION These two related cases1 are before the Court for determination of the following matters: first, the Motion to Intervene filed by the Proposed Intervenors Roberta Van Atta, Emilie Illson, Thomas Kelly, and Charles Pennell in Service Employees International Union, Local 1 et al. v. Husted (“SEIU”) (“Motion to Intervene,” Dkt. 65); second, the Motion for Preliminary Injunction filed by the Plaintiffs in SEIU (“Motion for Preliminary Injunction,” Dkt. 4); and third, the Motion to Modify the Consent Decree filed by the Plaintiffs in Northeast Ohio Coalition for the Homeless et al. v. Husted (“NEOCH”) (“Motion to Modify,” Dkt. 288). The SEIU Plaintiffs’ Motion for Preliminary Injunction seeks to enjoin specific provisions of Ohio’s election code that disqualify provisional ballots cast in the wrong precinct or cast with deficiencies in the ballot envelope form, when the ballot’s deficiency is the result of an error by the poll worker. Similarly, the NEOCH Motion to Modify requests that the Court expands the terms of the NEOCH Consent Decree (“Decree,” Dkt. 210) to state that the county boards of elections (“Boards”) may not reject a provisional ballot cast by a voter who uses only the last four digits of his or her social security number as identification because of poll-worker error. Because the requested relief in the Motion to Modify is encompassed within the Plaintiffs’ proposed injunction in the Motion for Preliminary Injunction,2 and because the basis for relief in the Motion to Modify depends on the determination of the constitutional violations at issue in the SEIU case, the Court will address the merits of the SEIU motions first.
1 On June 26, 2012, the Court determined these two actions challenging the constitutionality of Ohio’s voter identification and provisional ballot laws to be related cases pursuant to S.D. Ohio Local Rules § 3.1(b)(2). See Order Relating Cases, 06-cv-896, Dkt. 302; 12-cv-562, Dkt. 16. 2 In Plaintiffs’ words, SEIU’s proposed preliminary injunction requests “the same injunctive relief as proposed by [the NEOCH Motion to Modify], but with respect to all Ohio provisional voters.” Motion to Modify, at 5.
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II. BACKGROUND These cases together represent the turbulent saga of Ohio’s provisional voting regime. On January 31, 2006, Ohio’s comprehensive election reform bill, House Bill 3, was passed by the Ohio General Assembly and signed into law. Shortly after the November 2006 general election, the NEOCH Plaintiffs brought their initial challenge to Ohio’s amended voter identification requirements. See NEOCH v. Brunner, No. C2-06-CV-896 (S.D. Ohio). The NEOCH lawsuit alleges, inter alia, that Ohio’s voter identification laws violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The parties in NEOCH initially resolved the lawsuit prior to any final adjudication on the merits of Plaintiffs’ constitutional claims by entering into the Decree in April 2010. The Decree, “among other provisions, mandated that the Board ‘may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification’ if certain deficiencies in the ballot, including being cast ‘in the wrong precinct, but in the correct polling place,’ were the result of poll-worker error.” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 223 (6th Cir. 2011) (“Hunter I”) (quoting Decree, at ¶ 5). Earlier this year, the Relators and Defendants sought to vacate the Decree’s terms. The Plaintiffs objected, however, and the Court upheld the validity of the Decree in its most recent opinion and order. See NEOCH, No. 06-CV-896, 2012 U.S. Dist. LEXIS 94086 (S.D. Ohio July 9, 2012). During the pendency of the Defendants’ request to vacate the Decree, Plaintiffs filed their Motion to Modify, and different (along with some of the same) organizations in the SEIU case filed a new challenge to Ohio’s provisional ballot-counting rules. The SEIU Plaintiffs seek a statewide injunction requiring that registered voters’ provisional ballots which are cast in the wrong precinct (so-called “wrong-precinct ballots”), or cast with technically deficient ballot
2

envelopes, still be counted unless the poll worker who processed the deficient ballot affirms that the ballot deficiency is not the result of poll-worker error.
A. Ohio’s Precinct System and Provisional Voting Regime The following explanation of developments in the legal landscape of Ohio’s voter eligibility and provisional ballot counting standards is relevant to both lawsuits. Following the 2000 general election, Congress turned its attention to the “significant problem” of voters being turned away from polls because election workers were unable to confirm the voters’ eligibility on the spot. See Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 569 (6th Cir. 2004). In 2002, Congress passed the Help America Vote Act, 42 U.S.C. § 15301 et seq. (“HAVA”), which “creat[ed] a system for provisional balloting . . . under which a ballot would be submitted on election day but counted if and only if the person was later determined to have been entitled to vote.” Sandusky, 387 F.3d at 569 (“In essence, HAVA’s provisional voting section is designed to recognize, and compensate for, the improbability of ‘perfect knowledge’ on the part of local election officials.”). Under HAVA, any person at the polling place “who claims eligibility to vote, but whose eligibility to vote at that time and place cannot be verified” by the election worker, “shall be permitted to cast a provisional ballot.” See Sandusky, at 569–70 (quoting 42 U.S.C. § 15482(a)). Before 2004, Ohio did not require an individual to present identification either when registering to vote or when voting. Federal law under HAVA contained only a limited voter identification requirement, applicable only to first-time voters who registered by mail. See 42 U.S.C. § 15483. The 2006 amendments to Ohio’s election code, however, “require that voters provide any of several specific types of identification in order to cast a regular ballot in state and federal elections held in Ohio.” Northeast Ohio Coalition for Homeless and Serv. Emp. Intern.
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Union, Local 1199 v. Blackwell, 467 F.3d 999, 1002 (6th Cir. 2006); see also Ohio Rev. Code §
3505.18. Ohio’s voter identification requirements, which have been referred to as “exceptionally convoluted,”3 now provide thirteen different statutory reasons why an individual will be required to cast a provisional ballot on election day. See Ohio Rev. Code § 3505.181(A)(1)–(13).4
Plaintiffs blame Ohio’s complicated voter identification and provisional ballot laws for the
relatively high rate of Ohio voters forced to cast provisional ballots rather than normal ballots in recent elections.5
To cast a provisional ballot, the voter must first execute an affirmation stating that he or
she is registered to vote in the jurisdiction and is eligible to vote in the election. Id. §§
3505.181(B)(2); 3505.182. Rather than being “placed into the eScan on election day like a
regular voter’s ballot,” the provisional ballot is then “sealed in a special ‘Provisional Ballot
Affirmation Envelope.’” Hunter v. Hamilton Cnty. Bd. of Elections, 2012 WL 404786, at *9
(S.D. Ohio Feb. 8, 2012) (“Hunter II”). The Board later determines whether a provisional ballot
is valid and required to be counted. If the Board is able to determine that the individual is
eligible “to cast a ballot in the precinct and for the election in which the individual cast the
provisional ballot,” the provisional ballot is counted. Ohio Rev. Code § 3505.183(B)(3)(b).
3 See Daniel P. Tokaji, Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio St. L. J. 1065, 1079 (2007). 4 For example, individuals who do not have an acceptable form of identification, whose names are not on the official list of eligible voters for the polling place, who requested an absentee ballot, or whose signature was deemed by the precinct official not to match the name on the registration forms may be asked to cast a provisional ballot. See Ohio Rev. Code § 3505.181(A)(1)–(13). 5 Ohio’s rate of provisional ballots cast as a percentage of total ballots cast was around three times the national average in both the 2008 and 2010 elections. See Declaration of Professor David C. Kimball, Exh. B, David C. Kimball, “Provisional Voting in Ohio and the Nation,” June 2012 (hereinafter, “Kimball Report”), Dkt. 9-2, Tables 1–2. In the 2008 general election, for example, more than 200,000 Ohio voters were required to cast provisional ballots—more than any other state besides California. Id., Table 3, p. 6.
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Conversely, if the Board determines that “[t]he individual named on the affirmation is not
eligible to cast a ballot in the precinct or for the election in which the individual cast the
provisional ballot,” then “the ballot envelope shall not be opened and the ballot shall not be counted.” Id. § 3505.183(B)(4)(a)(ii).6
Ohio divides its voting jurisdictions into precincts. Courts have recognized that “[t]he advantages of the precinct system are significant and numerous,” Sandusky, 387 F.3d at 569,7
although certain “troubling” aspects of Ohio’s precinct system have been identified as cause for
great concern. See Hunter I, 635 F.3d at 243–44. Primarily implicated by Plaintiffs’ challenges
here, as in Hunter, is Ohio’s strict disqualification of any ballot cast in the wrong precinct,
regardless of the reason. See Ohio Rev. Code § 3505.183(B)(4)(a)(ii); State ex rel. Painter v.
Brunner, 941 N.E.2d 782, 794 (Ohio 2011) (holding that Ohio’s election statutes “do not
6 Subsection (4)(a) provides that, “[i]f, in examining a provisional ballot affirmation and additional information under divisions (B)(1) and (2) of this section and comparing the information required under division (B)(1) of this section with the elector’s information in the statewide voter registration database, the board determines that any of the following applies, the provisional ballot envelope shall not be opened, and the ballot shall not be counted:
(i) The individual named on the affirmation is not qualified or is not properly registered to vote. (ii) The individual named on the affirmation is not eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot.” Ohio Rev. Code § 3505.183(B)(4)(a)(ii) (emphasis added). 7 As the Sixth Circuit states: [I]t [the precinct system] caps the number of voters attempting to vote in the same place on election day; it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies; it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing; it makes it easier for election officials to monitor votes and prevent election fraud; and it generally puts polling places in closer proximity to voter residences. Sandusky, 387 F.3d at 569.
5

authorize an exception based on poll-worker error to the requirement that ballots be cast in the
proper precinct in order to be counted”).8
Under the Ohio Supreme Court’s holding in State ex rel. Painter v. Brunner, provisional
ballots cast in the wrong precinct must be summarily disqualified, even if the voter was not at
fault, and even if the Board determines that the voter is lawfully registered to vote.9 See 941
N.E.2d at 794–95. The current application of Ohio law “penalizes the voter when a poll worker
directs the voter to the wrong precinct.” Hunter I, 635 F.3d at 244 (adding that “the penalty,
disenfranchisement, is a harsh one indeed”).
The problems created by Ohio’s rejection of all provisional ballots cast in the wrong
precinct are exacerbated by the increasingly widespread prevalence of “multi-precinct” polling
locations throughout the State.10 These are polling places, more often utilized in large urban
counties, that, “[f]or financial and other administrative reasons . . . serve as the polling location
for several nearby precincts.” Id. at 223. Poll workers serving multi-precinct polling places are
tasked with determining the correct provisional ballot to give each provisional voter based on the
8 By now it is established and undisputed that, aside from those provisional ballots protected by the Decree, Ohio law under Painter mandates the strict disqualification of any ballot cast in the wrong precinct, with no exceptions for ballots miscast due to poll-worker error. See NEOCH, 2102 U.S. Dist. LEXIS 94086, at *34–45. 9 The only exception to rejecting wrong-precinct ballots recognized under Painter is for provisional ballots covered by the NEOCH Decree. See Painter, 941 N.E.2d at 795 (noting that the Board’s determination of “whether pollworker error caused provisional ballots in multiple-precinct locations to be cast in the wrong precinct, were accordingly limited to provisional ballots cast by voters who used only the last four digits of their Social Security numbers as identification”). 10 Data returned to Plaintiffs from the responsive Boards suggests that, in the recent 2012 primary election, for example, the large majority of voting precincts were located in multi-precincts polling locations. See Declaration of Natalya DeRobertis-Theye, Dkt. 8, ¶ 5. For example, Cuyahoga County now has 998 of its 1063 total precincts, or 94 percent, in multi-precinct polling locations, with an average of 2.73 precincts per multi-precinct polling location. Id. Exh. A. Examples of other counties include: Butler (95 percent of precincts in multi-precinct locations, average of 3.31); Greene (100 percent, average 3.68 precincts per multi-precinct location); Franklin (68 percent, average 2.40 precincts per multi-precinct location); Lorain (90 percent, average 2.95 precincts per multi-precinct location); Montgomery (88 percent, average 2.36 precincts per multi-precinct location); Stark (71 percent, average 2.55 precincts per multi-precinct location). Id.
6

precinct in which the voter resides. The additional confusion created by multi-precinct polling
locations increases the instances of so-called “wrong-precinct” provisional ballots given out to voters by poll workers, only to be disqualified upon further review by the county Board.11
Statewide, in these multi-precinct polling locations, registered voters who arrive at their correct polling location have received provisional ballots for the wrong precinct from the poll worker.12
See id. at 244 n.24 (noting, “[a]s a result, fewer provisional ballots are likely to be counted in
multiple-precinct polling places than in those that serve only a single precinct”).
B. Legal Duties of Election Officials and “Poll-Worker Error”
Before an election, the Boards train “election officials” (i.e., poll workers) and instruct
them using the materials and directives provided by the Secretary. Ohio Rev. Code § 3501.22. Poll workers have significant and specific legal responsibilities,13 including determining whether
an individual is eligible to vote in the precinct, Ohio Rev. Code. § 3505.181(C)(1). Poll workers
must also direct an individual to his or her correct precinct if the individual attempts to vote in the wrong precinct.14 Id. As the Court explained in Hunter II, “so long as a voter gives the poll
11 See, e.g., Hunter II, where: the evidence showed that multi-precinct voting creates great pressures on poll workers, who are expected to learn a complicated provisional voting process and navigate an obfuscatory address book after a mere three-hour training course. Poll workers in these circumstances are more likely to make mistakes in processing provisional voters than Board staff working at the Board office, where a staff person need only enter a voter’s address into a computer to discern which ballot to provide.
2012 WL 404786, at *40. 12 See Kimball Report, Table 15, discussed, infra. 13 For example, “[p]oll workers are responsible for receiving ballots and supplies, opening and closing the polls, and overseeing the casting of ballots during the time the polls are open.” Hunter II, 2012 WL 404786, at *7 (citing Ohio Rev. Code § 3501.22). 14 Specifically, Ohio law requires that:
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worker his or her correct address and the poll worker complies with state law, a voter cannot cast a provisional ballot in the wrong precinct without knowing that he is casting it in the wrong precinct and that, consequently, the ballot will not be counted.” 2012 WL 404786, at *9.
As summarized by the Sixth Circuit, “Ohio has created a precinct-based voting system that delegates to poll workers the duty to ensure that voters, provisional and otherwise, are given the correct ballot and vote in the correct precinct.” Hunter I, 635 F.3d at 243. The State of Ohio has defined “poll-worker error” as “‘when a poll worker acts contrary to or fails to comply with federal or Ohio law or directive issued by the Secretary of State.’” See Painter, 941 N.E.2d at 789 (quoting Directive 2010-79). As a matter of law, if a person casts a provisional ballot in the wrong precinct, it is always going to be due to poll-worker error unless the poll worker has instructed the individual where the correct polling location is and that individual “refuses to travel to the polling place for the correct [precinct] or to the office of the board of elections to cast a ballot.” Ohio Rev. Code §§ 3505.181(C)(2), 181(E)(1). Such an act would be an irrational and futile exercise by the voter, because, as required by Ohio Rev. Code § 3505.181(C)(1), the poll worker must first inform him that if he insists on voting in the wrong precinct, his ballot will not be counted.
Besides directing voters to the correct precinct, poll workers also have specific duties for ensuring that provisional ballots are cast properly. On election day, if an individual is required to
. . . if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the individual is not eligible to vote in that jurisdiction, the election official shall direct the individual to the polling place for the jurisdiction in which the individual appears to be eligible to vote, explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct, and provide the telephone number of the board of elections in case the individual has additional questions. Ohio Rev. Code § 3505.181(C)(1).
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cast a provisional ballot, the poll worker must first affirm that the individual has executed the provisional ballot affirmation statement before transmitting the ballot, along with “the voter information contained in the written affirmation executed by the individual,” for evaluation of its eligibility. Ohio Rev. Code §§ 3505.181(B)(2)–(3), 3505.182. If the individual declines to execute such an affirmation, the poll worker must include “the individual’s name [or other information] . . . in a written affirmation in order for the provisional ballot to be eligible to be counted.” State ex rel. Skaggs v. Brunner, 900 N.E.2d 982, 990 (“Skaggs II”) (Ohio 2008).15
If the poll worker fails to ensure the provisional ballot envelope is transmitted with the required voter name, signature, or executed affirmation, the ballot may be disqualified. The Ohio Supreme Court has held that Boards must reject provisional ballots if the voter’s affirmation and/or other identifying information on the envelope form is incomplete, even where it is otherwise determinable by the Board who the voter is and that the voter is lawfully registered. Id. at 992–93. For example, under Ohio law as interpreted by Skaggs II and Painter, Boards reject provisional ballots of eligible, registered voters if there is a printed name on the
15 As stated in Skaggs II by the Ohio Supreme Court: [P]ursuant to R.C. 3505.182, if the individual declines to execute the affirmation, an appropriate local election official shall comply with R.C. 3505.181(B)(6), which states that the appropriate local election official shall record the individual’s name and include that information with the transmission of the ballot under § 3505.181(B)(3). Finally, an election official at the polling place shall transmit the individual’s name if the individual declines to execute such an affirmation to an appropriate local election official for verification, and the official receiving the individual’s name must then verify whether the individual is eligible to vote before his or her vote will be counted. § 3505.181(B)(3) and (4).
Id. 9

affirmation form but no signature; a signature on the affirmation but no printed name; or where the printed name or signature is in the wrong place on the envelope.16 See id. at 988–93.
The Parties’ dispute in these cases is over whether the United States Constitution allows Boards to reject the provisional ballots of lawfully-registered voters that are cast in the wrong precinct, or are cast with deficiencies in the ballots envelope or voter affirmation, due to pollworker error.
III. MOTION TO INTERVENE A. Procedural History
On July 27, 2012, the business day preceding the scheduled hearing on Plaintiffs’ Motion for Preliminary Injunction, a “bipartisan” group of qualified voters for the upcoming November 2012 election (the “Proposed Intervenors”), filed a Motion to Intervene in the action, under Fed. R. Civ. P. 24(b)’s standard for permissive intervention. Counsel for the Proposed Intervenors appeared at the plenary hearing, and the Court heard arguments on the Motion to Intervene on the record. For the reasons provided by the Court at the July 30, 2012 plenary hearing, and those described below, the Proposed Intervenors’ Motion is DENIED.
B. Law and Analysis Under Rule 24(b), “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Whether an applicant will be permitted to intervene under Rule 24(b) lies within the sound discretion of the trial court. Coal. to Defend Affirmative Action v. Granholm,
16 The Secretary notes that the ballot envelope form has been simplified in new directives issued this year. Moreover, On January 4, 2012, Secretary Husted issued Directive 2012-01, which expressly instructs boards of elections that provisional ballots are not to be rejected if the poll worker fails to fill out his or her portion of the provisional ballot envelope.
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501 F.3d 775, 784 (6th Cir. 2007) (“The denial of permissive intervention should be reversed only for clear abuse of discretion[.]”) (internal quotation marks and citations omitted). The Sixth Circuit has held that “[t]he timeliness of a motion to intervene is a threshold issue.” Blount–Hill v. Zelman, 636 F.3d 278, 284 (6th Cir. 2011) (affirming that where the “proposed Interveners’ application was untimely—and would thus cause undue delay and prejudice to the existing parties as discussed above—the district court did not abuse its discretion in denying their application for permissive intervention”).
First, the Proposed Intervenors’ motion to intervene is untimely, coming after briefing had concluded on the Motion for Preliminary Injunction, and just one business day before the hearing on that motion. Allowing the applicants’ intervention will prejudice the existing parties and “will inhibit, not promote, a prompt resolution,” which is of particular concern in this election case. See Granholm, 501 F.3d at 784 (internal quotation marks omitted). There is no excuse for the Proposed Intervenors’ untimeliness, as their concerns regarding voter dilution have been ripe at least since the Complaint was filed in SEIU, and potentially since the time the Decree was entered into and the Boards began counting wrong-precinct ballots.
Second, the Court is assured that the interests of the Proposed Intervenors are adequately represented in this case by the Secretary, who has an official duty to represent the interests of all voters statewide. The Proposed Intervenors’ concern is the dilution of their voting rights resulting from counting out-of-precinct votes.17 The Secretary’s arguments in opposition to the Plaintiffs’ Motion for Preliminary Injunction address this precise concern of “split-precinct” voter dilution, discussed, infra Sections IV.D.1(a), IV.D.3. The Proposed Intervenors’ concerns are not “unique” to them. Counsel for the Secretary represented to the Court at the plenary
17 See Motion to Intervene, at 3. 11

hearing that the Secretary is defending the interests of all split-precinct voters, including the Proposed Intervenors.18 The Court finds that there is no substantive difference between the position taken by the Proposed Intervenors and that taken by the Secretary on this issue.
Given the untimeliness of their request, and the Secretary’s adequate representation of the concerns raised by the Proposed Intervenors, the Court finds the movants’ interest in participating in the litigation is outweighed by the prejudice to the existing parties and the delay such participation would necessitate. The Motion to Intervene is DENIED.
IV. MOTION FOR PRELIMINARY INJUNCTION A. Summary
On June 22, 2012, the SEIU Plaintiffs filed their Complaint and Motion for Preliminary Injunction.19 Plaintiffs contend that an injunction is necessary to prevent the irreparable and unconstitutional disqualification of thousands of lawfully-registered voters’ ballots in the upcoming November 2012 general election. Plaintiffs move this Court to require the Secretary to issue a Directive requiring that the Boards “may not reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election” which are: (1) cast in the wrong precinct, unless the poll worker first affirms under penalty of perjury that he or she directed the voter to the correct precinct and informed the voter that his or her vote would not be counted if cast in the wrong precinct, but the voter refused to vote in the correct precinct; or (2)
18 Transcript of Oral Proceedings, July 30, 2012, 12-cv-562, 18:10–21. 19 Plaintiffs have since amended their Complaint twice, and no longer name any Defendant other than the Secretary, in his capacity as chief elections officer for the State of Ohio. See Ohio Rev. Code § 3501.05(A).
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cast with a deficient ballot envelope form, but where “the County Board of Elections has otherwise been able to determine that the voter is a registered voter.”20
The Parties have submitted their memoranda and documentary evidence in support of their positions, and oral argument was heard on the motion at the July 30, 2012 plenary hearing before this Court. The matter is therefore ripe for adjudication. The Court finds that the relevant factors weigh in favor of granting preliminary injunctive relief.
B. Legal Background 1. Ohio’s Precinct-Only Eligibility Requirement Complies with HAVA In Sandusky, the Sixth Circuit held that HAVA’s passage did not disturb Ohio’s requirement that individuals must cast their ballots in the correct precinct to have their votes counted. See Sandusky, 387 F.3d at 577-78 (holding that “being eligible under State law to vote means eligible to vote in this specific election in this specific polling place”). The Sandusky Court addressed whether HAVA “require[d] that all states count votes . . . cast by provisional ballot as legal votes, even if cast in a precinct in which the voter does not reside, so long as they are cast within a ‘jurisdiction’” in which the voter resides. Id. at 568. The Court concluded that “in Ohio, HAVA requires that a provisional ballot be issued only to voters affirming that they are eligible to vote and are registered to vote in the precinct in which they seek to cast a ballot.” Id. at 576 (adding, “[n]o one should be ‘turned away’ from the polls, but the ultimate legality of the vote cast provisionally is generally a matter of state law”). The relevance of Sandusky to the Plaintiffs’ challenges to Ohio law, however, is limited. Sandusky was decided before Ohio instituted its amended Voter ID requirements in 2006. Although Sandusky establishes that Ohio’s precinct eligibility requirement complies with the
20 See Dkt. 56-1, Plaintiffs’ Second Modified Proposed Order Granting Motion for Preliminary Injunction, at 2. 13

federal provisional-ballot regime created under HAVA, that case did not address the constitutionality of the precinct eligibility requirement as applied to provisional ballots cast in the wrong precinct as a result of poll-worker error.21 While “[t]here is no reason to think that HAVA, which explicitly defers determination of whether ballots are to be counted to the States, should be interpreted as imposing upon the States a federal requirement that out-of-precinct ballots be counted,” id. at 578, there is every reason to believe that the Constitution imposes such a requirement—at least when the provisional ballot is cast out-of-precinct because of an intervening poll-worker error.
2. The Hunter Litigation The Hunter Litigation raised a number of the same constitutional issues raised by the Plaintiffs here. That case involved the provisional-ballot recount procedures of the Hamilton County Board following the 2010 Hamilton County election for juvenile court judge. Like the Plaintiffs in this case, Tracie Hunter, plaintiff and candidate for the juvenile judge seat, sought a temporary restraining order and preliminary injunction in this Court, alleging federal due process and equal protection violations after the defendant Hamilton County Board’s initial ballot count placed her 23 votes behind opponent John Williams. This Court granted Hunter’s motion for preliminary injunction in part, and ordered the Board immediately to begin an investigation into whether poll-worker error contributed to the rejection of certain provisional ballots that were cast in the wrong precinct. See Hunter v. Hamilton Cnty. Bd. of Elections, No. 10-CV-820, 2010 WL 4878957 (S. D. Ohio, Nov. 22, 2010) (Dlott, C.J.).
21 Defendant Secretary admits that the Sandusky case, as well as “the other cited decisions [in his Opposition,] do not squarely address the precise issue raised by the Plaintiffs in this case.” Secretary Opp. at 6.
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Pursuant to the Court’s orders, the Secretary of State “issued several directives to facilitate the Board’s investigation,” and “[t]hose directives soon became the subject of [Williams’s] action for a writ of mandamus,” filed in the Ohio Supreme Court in Painter. Hunter II, 2012 WL 404786, at *1. The Painter Court “concluded that [the Secretary’s] postelection instructions to the Board of Elections were not justified by Ohio law or this Court’s orders [in the Decree],” and made the following specific holdings of state law relevant to this case:
(1) “there is no exception to the statutory requirement that provisional ballots be cast in the voter's correct precinct,”; (2) “election officials err in presuming pollworker error because in the absence of evidence to the contrary, [poll workers] . . . will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully”; and (3) statistical analysis is not proper evidence of poll-worker error. Hunter I, 635 F.3d at 239 (internal citations omitted) (stating, however, that “these state-law issues do not resolve the federal constitutional question in this case”). Following Painter, Secretary Husted rescinded and replaced Brunner’s directives, and certified the results of the Hunter-Williams electoral race as of the date preceding the Board’s investigations into poll-worker error. See Hunter II, 2012 WL 404786, at *1. Hunter sought an emergency order in this Court to enforce the preliminary injunction, which the Court granted and ordered the Board to count certain provisional ballots, “namely, those which the Board’s courtordered investigation had revealed were cast in the wrong precinct due to poll-worker error.” Id. at *2. The Board appealed the district court’s order to the Sixth Circuit. A unanimous threejudge panel affirmed this Court’s preliminary injunction, and affirmed, in part, the court’s latter order granting the emergency motion to enforce the injunction. See Hunter I, 635 F.3d at 247,
15

rehearing, en banc, denied, 2011 U.S. App. LEXIS 26342 (6th Cir., Mar. 29, 2011), application denied, 131 S. Ct. 2149, 2011 U.S. LEXIS 3188 (U.S., April 20, 2011).
The Sixth Circuit first established its jurisdiction over the federal constitutional challenges to the actions taken by Ohio officials under the color of state law, and rejected defendants’ requests that it abstain from review. See id. at 232–34. The court then reviewed the district court’s determinations on the likelihood of success of the plaintiffs’ alleged Equal Protection and Due Process Clause claims under the Supreme Court’s “balancing approach applied to constitutional challenges to election regulations.” Id. at 238 (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190 (2008)).
The Sixth Circuit began by noting that, “[c]onstitutional concerns regarding the review of provisional ballots by local boards of elections are especially great” because “the review of provisional ballots occurs after the initial count of regular ballots is known,” and because of the “quasi adjudicatory-type action” required by the Board’s determination of eligibility and counting of provisional ballots. Id. at 235 (“In contrast to more general administrative decisions, the cause for constitutional concern is much greater when the Board is exercising its discretion in areas relevant to the casting and counting of ballots, like evaluating evidence of poll-worker error.”) (internal quotations omitted).
On plaintiffs’ equal protection challenge to the Board’s inconsistent treatment of different groups of provisional ballots in its investigation for evidence of poll-worker error, the Sixth Circuit “agree[d] with the district court’s analysis,” and “conclude[d] that there is a strong likelihood of success on this equal-protection claim which weighs heavily in favor of the district court’s grant of a preliminary injunction.” Id. at 236–43. Although the Hunter Court’s factspecific conclusions on the “as-applied” equal protection claims regarding the Hamilton Board’s
16

treatment of the 849 provisional ballots are limited to its context, the Plaintiffs’ equal protection claims in this case require the Court to apply the same legal framework and analysis as applied by the Sixth Circuit in Hunter. See, infra Section IV.B.2.
The Plaintiffs’ substantive due process claim in this case is identical to the one asserted in Hunter. The Hunter plaintiffs “present[ed] the argument that failure to count provisional ballots cast in an incorrect precinct due to poll-worker error violates the Due Process Clause.” Id. at 243. On this general challenge, the Sixth Circuit stated that “we have substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error” and that “[a]rguably, these two provisions [Ohio Rev. Code §§ 3505.181(C) and (B)(4)(a)(ii)] operate together in a manner that is fundamentally unfair to the voters of Ohio, in abrogation of the Fourteenth Amendment’s guarantee of due process of law.” Id. (concluding, “[t]o disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair”). The Court remanded the due process claim to be decided by the district court in the first instance, as the parties had not fully briefed the issue. See id. at 244.
On its review of the additional equitable factors influencing the district court’s preliminary injunction, the Sixth Circuit recognized that “both the state and the voting public have interests at stake.” Id. (“States are primarily responsible for regulating federal, state, and local elections . . . and have a strong interest in their ability to enforce state election law requirements . . . . Members of the public, however, have a strong interest in exercising the fundamental political right to vote.”) (internal citations omitted). The equitable factors in that case “support[ed] the district court’s grant of a preliminary injunction.” Id. at 245 (vacating only part of the district court’s subsequent emergency order because it “in effect, modif[ied] the November 22 order—without prior notice to Defendants or an opportunity for a hearing”).
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The Sixth Circuit remanded “to the district court in the first instance, applying the uniformity requirement of Bush v. Gore, to direct the Board how to proceed” regarding the remaining disputed ballots. Id. at 246.
The Sixth Circuit in Hunter I recognized that counting wrong-precinct ballots could have statewide equal protection implications, see id. at 242, but ruled that “to the extent that Ohio election procedures present equal-protection and due-process problems in local contests in other counties, they may be resolved in separate litigation.” Id. (“The inconsistent treatment of provisional ballots across Ohio counties and the precise degree of inequality from county to county tolerated by the Constitution is not at issue here.”). That “hypothetical statewide challenge” foreseen by the Hunter I Court has now arrived in the form of the SEIU Plaintiff’s lawsuit.
In Hunter II, on remand to this Court, the Board moved to dismiss and for summary judgment, and the Court held a three-week bench trial. In its final merits decision on the plaintiffs’ equal protection claims, the Court ruled that “equal protection demanded that the Board consider right-location, wrong precinct [provisional] ballots on the same terms as ballots cast at the Board office.” Hunter II, 2012 WL 404786, at *40–41 (also finding, however, “there was insufficient evidence presented at the permanent injunction hearing for the Court to conclude that poll-worker error was the reason certain voters did not complete the affirmation statement on the provisional ballot envelope”).
The Court was unable to make a final ruling on the plaintiffs’ claim that the Board’s failure to count the wrong-precinct ballots due to poll-worker error violated the Due Process Clause because the plaintiffs had not provided notice for such challenges to the Ohio Attorney General’s office as required by Fed. R. Civ. P. 5.1(a). Despite lacking “jurisdiction to order a
18

remedy,” the Court concluded, based on the full record before it, that Ohio Rev. Code § 3505.181(C)(1)—delegating to poll workers the duty to direct voters to the correct precinct—and § (B)(4)(a)(ii)—providing that provisional ballots cast in the wrong precinct shall not be counted under any circumstance—violate the Due Process Clause of the Fourteenth Amendment, at least “where evidence of poll-worker error exist.” See id. at *43, 46.
Because the Hunter Court lacked jurisdiction to issue a final ruling on the constitutionality of Ohio’s provisional ballot laws, Painter’s requirement that the Boards disqualify wrong-precinct provisional ballots cast due to poll-worker error, unless protected by the Decree, remains the law of the state. The Plaintiffs in these cases bring their current challenges to enjoin this provision of Ohio law.
C. Preliminary Injunction Standard of Review The Plaintiffs’ request to enjoin the Secretary from enforcing certain provisions of Ohio law in the upcoming November 2012 election invokes the four-factor balancing test for determining whether an injunction is appropriate under Fed. R. Civ. P. 65. The Court must weigh the following factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction. Hunter I, 635 F.3d at 233. These four factors “guide the discretion of the district court[;]” however, “they do not establish a rigid and comprehensive test,” Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). Whether the combination of the factors weighs in favor of issuing injunctive relief in a particular case is left to the discretion of the district court. See Leary v.
19

Daeschner, 228 F.3d 729, 739 (6th Cir. 2000); see also Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2007) (in reviewing an application to preliminarily enjoin operation of Arizona’s voter identification procedures, the Supreme Court recognized courts’ need to “weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases additional exigencies,” and stated these complex determinations required “deference to the discretion of the District Court”).
The Secretary argues that, to meet their burden for obtaining a preliminary injunction, Plaintiffs must “establish [their] case” by “clear and convincing evidence.” (Secretary Opp., Dkt. 28, at 10) (relying on Damon’s Rests., Inc. v. Eileen K Inc., 461 F. Supp. 2d 607, 621 (S.D. Ohio Aug. 30, 2006)). While the Sixth Circuit has stated that “the proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion,” Leary, 228 F.3d at 739, it is important that Defendants do not misunderstand the nature of a court’s balancing exercise for weighing the merits of a preliminary injunction request. The Sixth Circuit has held that “a party is not required to prove his case in full at a preliminary injunction hearing and the findings of fact and conclusions of law made by a court granting the preliminary injunction are not binding at trial on the merits.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (citations omitted).
A plaintiff has “the burden of establishing a clear case of irreparable injury and of convincing the Court that the balance of injury favor[s] the granting of the injunction.” Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir. 1968). In the election law context, “[t]hese [four] factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together,” as opposed to each one imposing a distinct evidentiary burden on the
20

Plaintiffs. Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006) (stating, “[f]or example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay”).22
D. Law and Analysis Plaintiffs bring their constitutional claims under 42 U.S.C. § 1983. A claim under 42 U.S.C. § 1983 has two elements: (1) the defendant must be acting under the color of state law; and (2) the offending conduct must deprive the plaintiff of rights secured by federal law. See League of Women Voters, 548 F.3d at 475. There is no dispute that the Secretary acts under the color of state law when enforcing Ohio’s election laws. The dispute here is over whether his actions and/or directives deprive Plaintiffs’ members of their constitutional rights.
1. Likelihood of Success on the Merits As the Supreme Court has recognized, “[e]specially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 553, 562 (1964); see also Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966) (stating that restrictions on fundamental rights must be “closely scrutinized and carefully confined”). Recent experience proves that our elections are decided, all too often, by improbably slim margins—not just in local races, see e.g., Hunter I, 635 F.3d at 222, but even for the highest national offices. See, e.g., Bush v. Gore, 531 U.S. 98 (2000). Any potential threat to the
22 In any event, the Secretary does not dispute that the prospective injury to Plaintiffs in this case—the complete denial of an individual’s right to vote—is irreparable. See, e.g., Miller v. Blackwell, 348 F. Supp. 2d 916, 922 (S.D. Ohio 2004).
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integrity of the franchise, no matter how small, must therefore be treated with the utmost seriousness. The Supreme Court has expressed its confidence that “the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.” Purcell, 127 S. Ct. at 7. This Court, most assuredly, will not allow the integrity of the franchise to be sullied.
a. Equal Protection Plaintiffs bring both facial and “as-applied” equal protection challenges to Ohio’s provisional ballot-counting laws. First, Plaintiffs claim that the application of Ohio Rev. Code § 3505.183(B)(4) to disqualify provisional ballots of lawfully-registered voters given the wrongprecinct ballot by poll workers or whose ballots contain technical errors, imposes a “severe burden” on the right to vote that is not supported by any compelling or legitimate state interest. Second, Plaintiffs claim that in light of the Decree, Ohio’s law arbitrarily treats provisional ballots disparately based on the type of identification provided by the voter, in violation of equal protection. Third, Plaintiffs claim that the evidence shows that Ohio’s system for processing provisional ballots subjects provisional voters to significantly differing rates of poll-worker error based on the precinct or county in which they reside, resulting in arbitrary and unequal treatment that has a disproportionate effect on urban voters. The Secretary maintains that the incidental burdens imposed by Ohio law’s disqualification of all wrong-precinct ballots do not rise to violations of equal protection, and do not constitute “severe burdens” on the right to vote. The Secretary argues that the precinct rule is a reasonable, nondiscriminatory restriction that applies uniformly to all voters, and as such requires only a rational basis. Under this rational basis review, the Secretary contends that the rule is permissible and within the State’s prerogative of running fair and efficient elections. The
22

Secretary claims that Plaintiffs’ evidence fails to provide reliable information about poll-worker error and does not establish that wrong-precinct ballot rejections undermine the integrity of the election. Further, the Secretary refutes Plaintiffs’ evidence of a disparate impact on the rates of disqualified ballots in urban counties.
This Court analyzes Plaintiffs’ claims under the same standards developed by the Supreme Court for equal protection challenges to state election laws, and applied by the Sixth Circuit in Hunter. The Supreme Court most recently held in Crawford v. Marion County Election Board, that “a court evaluating a constitutional challenge to an election regulation [must] weigh the asserted injury to the right to vote against the ‘precise interests put forward by the State as justifications for the burden imposed by its rule.’” 553 U.S. 181, 190 (2008) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). A “severe” restriction on the right to vote can only be “justified by a narrowly drawn state interest of compelling importance,” id., whereas “when a state election law provision imposes only reasonable, nondiscriminatory restrictions” on constitutional rights, “‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, supra, at n.9).
There is generally no “litmus test for measuring the severity of a burden that a state law imposes on a political party, an individual voter, or a discrete class of voters,” Crawford, 553 U.S. at 191, but the Court concluded in Crawford that “even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications,” warranting stricter scrutiny. Id. at 189 (relying on Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (involving a poll tax)). Any burden a state law places on the right to vote, no matter how “slight that burden may appear, as Harper demonstrates, it must be justified by relevant and legitimate state interests
23

‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191 (quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992)).
In addition, the Equal Protection Clause protects a citizen’s right to vote from “arbitrary and disparate treatment.” See Hunter I, 635 F.3d at 233 n.13 (citations omitted). Each qualified voter in the State has an individual fundamental constitutional right to vote on equal terms with every other. See Bush v. Gore, 531 U.S. 98, 104–05 (2000) (“The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”).
For each of Plaintiffs’ claims, “after identifying the burden” imposed by the provisions of Ohio law on the “discrete class of voters,” the Court “must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the hard judgment” of whether the Secretary has advanced “relevant and legitimate state interests [that are] ‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 189–91 (additional citations omitted).
i. First Equal Protection Claim (Wrong-Precinct Ballot Prohibition) Plaintiffs’ chief claim for relief alleges that Ohio Rev. Code § 3505.183(B)(4)(a)(ii) “severely” burdens the right to vote by mandating the rejection of lawfully-registered voters’ provisional ballots when the poll worker errs by providing the voter with a ballot for the wrong precinct. (See SAC ¶ 79.) Plaintiffs argue the State has provided no legitimate interest, let alone a compelling interest, to justify the law’s arbitrary disenfranchisement. The Secretary claims that the restrictions imposed by Ohio’s provisional ballot laws are not “severe,” and justifies the
24

strict prohibition on all wrong-precinct ballots as “a ‘reasonable, nondiscriminatory restriction’ that is necessary for the efficient and fair conduct of the election.”23
(a) Identifying the burden imposed by the Ohio law Much of the factual basis upon which the Court relies for its findings is uncontested, or has already been established by this Court or the courts in Hunter. Additionally, Plaintiffs have submitted a substantial amount of statewide ballot counting and rejection data, statistical reports, and documentary evidence, sufficient to establish a strong likelihood that in the past few statewide elections poll-worker error has resulted in the disqualification of hundreds—if not thousands—of wrong-precinct provisional ballots cast by otherwise lawfully-registered voters. That poll workers err—and will continue to err in 2012—by providing qualified voters with wrong-precinct ballots is not a contested matter. The Secretary does not dispute the factual reality that in each of the recent statewide elections, registered voters arriving at the correct polling place have had their provisional ballots disqualified for being cast in the wrong precinct.24 According to the data gathered from the county boards of elections pursuant to the Secretary’s directives,25 in the most recent (non-Presidential) general election in 2011 a total of 3,380 wrong-precinct provisional ballots were given by poll workers to Ohio voters who arrived at their correct polling places.26 Of this group of wrong-precinct provisional ballots, 1,826 were summarily disqualified as required under Ohio Rev. Code § 3505.183(B)(4)(a)(ii) and another
23 Secretary Opp. at 13. 24 See infra note 42. 25 See “Absentee and Provisional Ballot Information,” accessible at http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2011results/absenteeandprovisional.aspx. 26 Kimball Report, at 23 (Table 15); Declaration of Jusztina Traum, Ex. DD, Dkt. 24, ¶ 33.
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1,554 were counted only as a result of the NEOCH Decree’s requirements.27 While the number
and frequency of wrong-precinct ballot disqualifications vary county to county, the problem as a whole is systemic and statewide.28
There is reason to believe that the number of wrong-precinct ballots will be even higher
in the upcoming November 2012 election, due to the inevitable increase in voter turnout for every presidential election compared to the 2011 “odd-year” election.29 There is, then, a high
statistical probability that in the upcoming election thousands of lawfully-registered voters will
arrive at the correct polling place only to receive a provisional ballot from the poll worker for the
wrong precinct. Under Painter, those ballots will be rejected in the same manner as in the past—
that is, unless the law is enjoined such that all provisional ballots are protected from
disqualification due to poll-worker error, not just the ones covered under the Decree.
The Secretary contends that the evidence suggests the problem of wrong-precinct
provisional ballot rejection is “improving,” relying on the statistics showing that the percentage of total rejected provisional ballots statewide declined from 2008 to 2010.30 Plaintiffs effectively
refute any demonstrable improvement between 2008 and 2010, however, through the more
27 The Secretary did not begin requiring Boards to separately report the number of wrong-precinct/correct location, and wrong-precinct/wrong-location provisional ballots until the 2011 general election, see Kimball Report, at 22. 28 In the last presidential election in 2008, nearly every Ohio County reported at least one instance of rejecting a provisional ballot cast in the wrong precinct. Kimball Report, Table 13. In 2010, a non-presidential year, slightly fewer counties—but still the great majority—reported rejections of wrong-precinct provisional ballots. Id., Table 14. In 2011, an “odd-year” and non-presidential election, where we have even more isolated rejection data from the Boards, the majority of counties still reported rejections specifically of wrong precinct/correct polling place provisional ballots. Id., Table 15. That wrong-precinct/correct polling place rejections occurred in fewer counties in 2011 is expected, as a many counties have only a few multi-precinct polling places, which are the only locations in which the wrong-precinct/correct location type of rejection can occur. See Theye Decl., Exh. A. 29 See Kimball Decl. Ex. B at 2–4 (showing that the rate of provisional voting in high-turnout Presidential election years increases). 30 Secretary Opp. at 9.
26

relevant statistics showing the rejected wrong-precinct provisional ballots at issue in this case, as a percentage of total rejected provisional ballots, actually increased from 2008 to 2010. The number of wrong-precinct provisional ballots statewide (14,355) were 36% of the 39,989 total rejected provisional ballots in 2008, compared with 45% (5,309) of the 11,775 total rejected provisional ballots statewide in 2010.31 Moreover, the obvious explanation for a decrease in total rejected provisional ballots after 2008 is the implementation of the Decree’s orders, which beginning with the 2010 statewide election significantly reduced wrong-precinct disqualifications due to poll-worker error.32 For the remaining rejected wrong-precinct ballots, no improvement has been demonstrated.
At oral argument, counsel for the Secretary made open-ended assertions of “gaps in the Plaintiffs’ evidence” of poll-worker error;33 however, the Secretary does not refute the accuracy of any particular set of data regarding the provisional ballot rejection rates obtained from the Boards.34 Instead, the Secretary contends that the Plaintiffs’ evidence of the poll-worker error problem is “stale,” and cannot be relied upon to predict similar rates of wrong-precinct rejections in the upcoming 2012 election. Specifically, the Secretary points to the recent directives issued in the past year which: (1) require that all poll workers be trained (or retrained) within 60 days before the November 2012 election in directing wrong-precinct voters to the right place35 and
31 See Kimball Report, Table 13; Tables 3, 10; and Tables 4, 11, 14, respectively. 32 Id. Ex. B at 23 (Table 15); Traum Decl., Ex. DD. 33 Transcript of Oral Proceedings, July 30, 2012, 12-cv-562, 52:1–8. 34 To do so would be somewhat hypocritical, as much of the most reliable and specific data, such as the 2011 county-by-county breakdowns of wrong-precinct rejections by type, for example, were gathered pursuant to the Secretary’s directives, and are posted on the Secretary’s official website. 35 See Directive 2012-15.
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proper completion of the provisional ballot requirements;36 (2) require the simplification of the provisional ballot envelope and affirmation form;37 and (3) detail the process of how provisional ballots must be processed under Ohio law and the Decree.38
The State’s efforts in poll-worker training and simplifying the provisional voting procedures and ballot forms are well-taken by this Court, but these measures alone do not address the basic problem demonstrated by the Plaintiffs. The Secretary issued numerous training directives regarding provisional ballots in prior years, too, without any apparent improvement in wrong-precinct poll-worker error.39 After the data are compiled from the upcoming election, the Court’s final review of the full record may reveal an improvement in the numbers of wrong-precinct provisional ballots. At this stage, however, Plaintiffs’ evidence is more than sufficient to establish a defined class of provisional voters likely to be disenfranchised because of poll-worker error in the manner alleged by Plaintiffs. See Certified Restoration, 511 F.3d at 542 (stating, “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits”) (internal quotation marks omitted).
The evidence further confirms that, of the thousands of rejected wrong-precinct/correct location provisional ballots, the vast majority will be disqualified as a result of poll-worker
36 Id. 37 See Ohio SOS Form 12-B. 38 See Directive 2012-01. 39 See supra, note 31.
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error.40 If the poll worker follows his statutory mandate, a prospective voter may only be permitted to cast a wrong-precinct provisional ballot after having been directed to the correct precinct, and informed by the poll worker that casting the wrong-precinct ballot will result in her vote not being counted. See Ohio Rev. Code §3505.181(C)(1)–(2). It is common sense that no rational voter who arrives at the correct polling place would ever refuse to cast a provisional ballot in the correct precinct, and that logical conclusion is borne out by the evidence. No party has identified a single example, from the past four years’ elections, of a wrong-precinct provisional ballot being cast because the voter refused to vote in the correct precinct. Every documented instance in the record of a correct location/wrong-precinct ballot being disqualified was the result of the poll-worker failing in his or her statutory duty to “ensure that voters . . . are given the correct ballot and vote in the correct precinct.” Hunter I, 635 F.3d at 243.
Counsel for the Secretary insisted at oral argument that poll workers cannot be blamed for every wrong-precinct provisional ballot that is cast, and asserted that other explanations exist for why a voter might receive and cast a wrong-precinct ballot.41 Counsel for the Secretary admitted, however, that at this stage in the litigation, his proffered alternative reasons to explain wrong-precinct provisional ballots are merely speculative.42 See also Hunter I, 635 F.3d at 237

40 Recall, the State has defined “poll-worker error” as “‘when a poll worker acts contrary to or fails to comply with federal or Ohio law or directive issued by the Secretary of State.’” Painter, 941 N.E.2d at 789 (quoting Directive 2010-79).

41

THE COURT: Do we have any way of knowing what percentage of instances we have where the

poll worker --where the voter transposed a number in the address, or where the poll worker didn't

understand what was being told, language barrier, et cetera[?]

MR. EPSTEIN: There’s no way to ever document that.

Transcript of Oral Proceedings, July 30, 2012, 12-cv-562, 50:12-25.

42

THE COURT: We have evidence that substantiates poll-worker error; is that correct?

29

(similarly opining, “there may be more explanations for why the voter might have erred at the
multiple-precinct polling locations than at the Board office, requiring a greater inference to
conclude that the miscast ballot was a result of poll-worker error, but Defendants have not
presented any persuasive rationales”).
The Sixth Circuit has already affirmed that when a lawfully-registered voter casts a
wrong-precinct provisional ballot that was mistakenly given to him by the poll worker, Ohio law
disqualifies that ballot “due to poll-worker error.” See id., 635 F.3d at 242–44. Based on the
record evidence provided thus far, the Court must find that Plaintiffs have established a strong
likelihood that thousands of lawfully-registered voters will be completely deprived of their right
to vote under Ohio Rev. Code § 3505.183(B)(4)(a)(ii) in the upcoming election because of poll-
worker error. Although states have broad authority to impose reasonable restrictions in election
laws, see Anderson, 460 U.S. at 788, such a burden on the right to vote must be justified by
sufficient interests to pass constitutional muster. See Crawford, 553 U.S. at 190–91.
The Secretary does not dispute that Ohio’s precinct eligibility requirement imposes some
restrictions on the right to vote, including by disqualifying wrong precinct provisional ballots.
Rather, the Secretary’s primary position in defense of Ohio’s prohibition on counting wrong-
MR. EPSTEIN: There’s no question, Your Honor, that poll-worker error does occur, that poll workers sometimes give the wrong ballots, misdirect the voters. THE COURT: Do we have statistical evidence that bears out the other examples that you’ve just given me? MR. EPSTEIN: Unfortunately, as I said, the nature of what I just put forward would not produce evidence. But what I would suggest is that there is a gap in the evidence that the plaintiffs have presented because they show wrong-precinct rejection rates in the hundreds, and then when you look at their specific log books from the poll workers, they will say, Oh, I gave out three wrongprecinct ballots, I gave out one. So all of these admissions of poll-worker error that they’ve identified clearly don’t account for the scope of the problem. Something else is going on that may not be poll-worker error. Transcript of Oral Proceedings, July 30, 2012, 12-cv-562, 51:12–52:8.
30

precinct ballots cast due to poll-worker error is that its restriction on voters’ rights is not a severe burden, and is justified by the State’s interests in running elections fairly and efficiently.
Relying primarily on the Supreme Court’s decision in Burdick for support, the Secretary argues that strict scrutiny review does not apply to Ohio’s prohibition on wrong-precinct ballots, as Plaintiffs contend it should, simply because a small number of voters’ provisional ballots will be disqualified as a result. See Burdick, 504 U.S. at 432–34 (stating, “to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest . . . would tie the hands of States seeking to ensure that elections are operated equitably and efficiently”). While the Secretary admits that no regulation is perfect, he claims the burdens imposed by the wrong-precinct ballot prohibition are “reasonable, nondiscriminatory” constraints “necessary for the efficient and fair conduct of the election.”43
The Secretary is correct that the Court will not require an election regulation to satisfy strict scrutiny simply because violating it results in the loss of the right to vote. See id. The Secretary is incorrect, however, in claiming that the severity of the burden imposed by the restriction challenged in this case should be viewed in the aggregate.44 In an equal protection challenge to an election law, courts must evaluate the reasonableness of the law’s particular burden on the individuals whose voting rights are allegedly violated by it. Where, as here, a discrete class of prospective voters challenges a regulation’s restriction on their right to vote, the burden must be evaluated according to its impact upon those plaintiffs, not the entire electorate.
The Supreme Court in Burdick, consistent with its approach from Anderson, mandates that:
43 Secretary Opp. at 13. 44 See Secretary Opp. at 12; see also infra, note 47.
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[A] court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789) (emphasis added). In determining whether the disputed Ohio law meets the requirements of the Constitution, therefore, “the burden imposed by its rule” prohibiting wrong-precinct ballots must be weighed based on the “character and magnitude of the asserted injury” to the rights that Plaintiffs seek to vindicate. Id. Plaintiffs’ constitutional challenge to “Ohio’s strict provisional ballot law requiring disqualification of ‘wrong precinct’ ballots without exception,” only seeks to vindicate the rights of “registered Ohio voters” whose ballots are “rejected for reasons attributable to poll-worker error.”45 Plaintiffs have been quite careful expressly to limit the contours of their claims, and the corresponding requested relief, to make it clear that they do not challenge Ohio’s precinct eligibility requirement as a whole, but merely its application to disqualify ballots of registered voters who are misdirected by poll workers.46 As did the petitioners in Crawford, Plaintiffs “urge [the Court] to ask whether the State’s interests justify the burden imposed on . . . a narrow class of voters.” Id. at 200. The voters’ constitutional challenge in Crawford was ultimately unsuccessful, however, “[g]iven the fact that petitioners ha[d] advanced a broad attack on the constitutionality of SEA 483, seeking relief that would invalidate the statute in all its applications.” Id. (emphasis added). Therein lies the critical distinction between this case and Crawford, which renders the specific failure of the Ohio
45 SAC, ¶ 79. 46 Transcript of Oral Proceedings, July 30, 2012, 12-cv-562, at 69:16-19; see also Plaintiffs’ Reply at 2.
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law’s prohibition here to make an exception for poll-worker error far more susceptible to this Court’s intervention. Plaintiffs do not challenge Ohio Rev. Code § 3505.183(B)(4)(a)(ii)’s precinct eligibility requirement “in all its applications”—only its provision disqualifying wrongprecinct ballots cast due to poll-worker error.
The Secretary insists that the burden must be weighed according to its aggregate impact on the total electorate,47 reasoning that the “consequence of running afoul of even the most reasonable restriction, such as registration deadlines, is a denial of the ability to vote.”48 But as a factual matter, it is simply not true that the consequence of every state election restriction is complete denial of the ability to vote, as it is with the Ohio law at issue here. In Crawford, for example, “[t]he severity of that burden [was] mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted.” 553 U.S. at 199.
More fatal to the Secretary’s aggregate view of the burden is that it does not correspond to the specific restriction challenged by the Plaintiffs here. It is only appropriate for the Court to weigh the scope of the burden corresponding to the particular legal restriction at issue in this case, not the law as a whole. Like the Voter ID law challenged in Crawford, where, “[f]or most voters who need them, the inconvenience of making a trip to the BMV, gathering the required
47 As expressed by counsel for the Secretary at oral argument: MR EPSTEIN: Your question originally had to do with the standard of review to apply. I would emphasize that Crawford and the other cases, when they talk about severe burden, they’re not talking about the burden on me as the voter whose ballot was rejected. Under that standard, every election regulation would be subject to strict scrutiny. They’re talking about the severe burden upon voters in general, the impact upon the election itself. And by any metric, what we’re talking about here is very small. This is also, by the way, the problem with their substantive due process claim.
Transcript of Oral Proceedings, July 30, 2012, 12-cv-562, at 52:6-14. 48 Secretary Opp. at 12 (citing Burdick, 504 U.S. at 433).
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documents, and posing for a photograph surely does not qualify as a substantial burden on the
right to vote, or even represent a significant increase over the usual burdens of voting,” the Ohio
precinct requirement does not pose an unreasonable burden on most voters. As in Crawford,
“[b]oth evidence in the record and facts of which we may take judicial notice, however, indicate
that a somewhat heavier burden may be placed on a limited number of persons.” Id.
(concluding, “[i]f we assume, as the evidence suggests, that some members of these classes were
registered voters when SEA 483 was enacted, the new identification requirement may have
imposed a special burden on their right to vote”).
It is the particular burden imposed by Ohio’s prohibition of wrong-precinct ballots on
the rights of a “discrete class of prospective voters”—those who arrive at the correct polling
place but are misdirected due to poll-worker error—against which the State’s asserted interests must be weighed. See id. at 191, 199.49
(b) Whether the restriction is justified by sufficient state interests The burden Ohio’s wrong-precinct ballot prohibition imposes on “the plaintiff’s rights,”50
Burdick, supra (emphasis added), could hardly be any more severe. The Secretary is accurate in
49 In Crawford, the Supreme Court found that “on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden or the portion of the burden imposed on [voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office after voting] that is fully justified.” Id. (reasoning that, “[f]irst, the evidence in the record does not provide us with the number of registered voters without photo identification . . . [and] [f]urther, the deposition evidence presented in the District Court does not provide any concrete evidence of the burden imposed on voters who currently lack photo identification”).
Unlike in Crawford, this Court has been provided with reliable statistics of the number of registered voters disqualified for having wrong-precinct provisional ballots. Furthermore, unlike the relatively unclear degree of the burden imposed on the prospective voters by the photo ID requirement in Crawford, the Secretary concedes that wrong-precinct ballots of registered voters who arrive at the correct polling place have been and will continue to be disqualified by the restriction challenged here. See Secretary Opp. at 13. This Court, therefore, is able properly to “conclude that the statute imposes ‘excessively burdensome requirements’ on [a] class of voters.” Id. at 202. 50 The “plaintiffs” in this case are the prospective members of the Plaintiff labor unions and political organizations who stand to be disenfranchised under the disputed Ohio regulations due to poll-worker error. See Sandusky, 387
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contending that this class of prospective voters represents a very small percentage of the total
voters in absolute terms.51 But for each of the potentially thousands of voters whose wrong-
precinct ballots are disqualified under this provision of the election code due to poll-worker
error, Ohio’s strict prohibition imposes a severe burden on their right to vote—i.e. summary,
arbitrary, and irreversible rejection of their entire ballot without notice.52 See Hunter I, 635 F.3d
at 243 (stating that this “state law penalizes the voter when a poll worker directs the voter to the
wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed”).
The State can only justify imposing such a severe burden against counting these
individuals’ ballots by supporting it with “precise,” “legitimate” interests that are “weighty”
enough to supersede “the voters’ strong interest in exercising the fundamental political right to
vote.” See Crawford, 553 U.S. at 190–91; Hunter I, 635 F.3d at 243. The Secretary has failed to
articulate any state interest or combination of interests “sufficiently strong to require us to reject
[Plaintiffs’] attack on the statute,” Crawford, 553 U.S. at 204. In fact, to the extent that the State
F.3d at 574 (“The individual participation of an organization’s members is not normally necessary when an association seeks prospective or injunctive relief for its members.”) (citations omitted). While impossible to identify at this time, as stated by the Sixth Circuit:
[Plaintiffs] have not identified specific voters who will seek to vote at a polling place that will be deemed wrong by election workers, but this is understandable; by their nature, mistakes cannot be specifically identified in advance. Thus, a voter cannot know in advance that his or her name will be dropped from the rolls, or listed in an incorrect precinct, or listed correctly but subject to a human error by an election worker who mistakenly believes the voter is at the wrong polling place. It is inevitable, however, that there will be such mistakes.
Id. 51 For example, Dr. Kimball’s Report illustrates that the statewide rejection rate of provisional ballots for any reason in 2010 varied from a maximum of 0.6% in Cuyahoga County to lower numbers such as 0.02% in Wayne County and 0.03% in Coshocton County as a percentage of total ballots cast in the election. Kimball Report, Table 11. 52 Unlike Crawford’s challenged Indiana photo ID requirement, for example, where “[t]he severity of that burden [wa]s, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted,” here the burden is upon provisional ballots; thus no such mitigating factors exist to rectify the prospective disenfranchisement of otherwise eligible voters.
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has demonstrated any legitimate justifications at this stage for its blanket disqualification of
wrong-precinct ballots of registered voters, they are largely obviated by Plaintiffs’ narrowly-
tailored requested injunction, and, in any case, they do not outweigh the Plaintiffs’ and the
public’s interests in counting ballots of lawfully-registered citizens “whose only error was
relying on poll-worker instructions.” Hunter I, 635 F.3d at 243.
The “precise interests offered by the State as justifications for the burden imposed by its
rule,” Crawford, 553 U.S. at 190, are not precise at all in this case. After citing to decisions
finding various state election laws reasonable,53 the Secretary merely asserts that the burden
imposed by the regulation here is of the general category considered acceptable under
Anderson.54 Even if the cases cited by the Secretary were controlling, or contained analogous
restrictions,55 the law requires considerably more from the State than unsupported citations to
other examples of apparently reasonable election laws to prevail in “the hard judgment that our
adversary system demands” from the Court in these important challenges. Crawford, 553 U.S. at
190.
53 See, e.g., Broyles v. Texas, 618 F. Supp. 2d 661 (S. D. Tex. 2009) (finding statute prohibiting nonresident property owners from participating in municipal election did not violate equal protection); ACORN v. Bysiewicz, 413 F. Supp. 2d 119 (D. Conn. 2005) (upholding Connecticut’s requirement that voters register at least seven days before the general election); Rosario v. Rockefeller, 410 U.S. 752 (1973) (finding that New York’s eight-month deadline for registering did not severely burden constitutional rights); League of Women Voters of Florida v. Browning, 575 F. Supp. 2d 1298 (S.D. Fla. 2008) (finding reasonable under the First Amendment a regulation holding advocacy groups responsible for turning in voter registrations late); Coalition for Free & Open Elections v. McElderry, 48 F.3d 493 (10th Cir. 1995) (banning write-in candidates for president); Friedman v. Snipes, 345 F. Supp. 2d 1356 (S.D. Fla. 2004) (holding state’s deadline for returning absentee ballots did not unconstitutionally disenfranchise a class of voters); Clingman v. Beaver, 544 U.S. 581 (2005) (upholding Oklahoma’s semiclosed primary system).
54 See Secretary Opp. at 13 (arguing, “[i]n this case, the prohibition on ‘wrong-precinct’ ballots is a ‘reasonable, nondiscriminatory restriction’ that is necessary for the efficient and fair conduct of the election”). 55 The burdens imposed by the restrictions in the cases cited by the Secretary, to provide just one example, lack the critical character of arbitrariness represented by poll-worker error rejections, which is the gravamen of the unjust nature of the restrictions alleged by Plaintiffs, throughout.
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The only other “interests” the Secretary submits on behalf of the State to justify the burden imposed by the strict wrong-precinct prohibition is the following list of general “advantages of the precinct system” excerpted from the Sixth Circuit’s decision in Sandusky:
(1) it [the precinct system] caps the number of voters attempting to vote in the same place on election day; (2) it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies; (3) it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing; (4) it makes it easier for election officials to monitor votes and prevent election fraud; and (5) it generally puts polling places in closer proximity to voter residences. (See Secretary Opp. at 13) (quoting Sandusky, 387 F.3d at 568–69). The first, third, and fifth “advantages” listed in Sandusky are irrelevant to the election restriction challenged here. The State’s interests in: (1) capping the number of voters at a given location on election day; (3) making ballots less confusing for citizens; and (5) locating polling places in closer proximity to voters, are each legitimate ends met by the precinct system, but are not related to the law’s restriction against counting wrong-precinct provisional ballots.56 Hence, only the second and fourth of these Sandusky interests are even remotely relevant to justifying the burden imposed by the post-hoc disqualification of wrong-precinct provisional ballots cast by registered voters.
56 Refusing to count correct location/wrong-precinct provisional ballots does not affect the number of voters arriving at a given location, because by definition the ballots at issue were cast at the correct designated polling place. Nor does it affect how the state chooses its polling locations. Finally, the restriction does have the potential to make things any less confusing for voters. Indeed, knowing that one’s provisional ballot might be disqualified due to the poll worker’s mistake, if anything, only makes the provisional ballot more confusing to citizens.
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The State’s second Sandusky interest, “allow[ing] each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections . . .,” if given a cursory analysis, may be served by the strict prohibition of wrong-precinct ballots. As discussed in greater detail in the Court’s analysis of the balancing of harms equitable factor, infra, prohibiting wrong-precinct ballots does prevent the potential for “split-precinct” vote dilution—i.e. votes being erroneously counted for precinct-specific electoral races for which the individual is not registered to vote, resulting in the dilution of the votes of the registered voters from that precinct. In recognition of this potential problem, Plaintiffs’ requested relief is specifically tailored to require that only so-called “up-ballot” votes are to be counted on the eligible wrong-precinct ballots. This ensures that any votes cast in a precinct for which the voter is not registered will not be counted,57 thus practically eliminating the “vote dilution” problem. Additionally, since 2010 the Decree has required the Boards to “re-make” provisional ballots where necessary, without any apparent adverse effect on the administration of the Ohio precinct system.
The fourth Sandusky interest given by the Secretary, the need to monitor votes and prevent “voter fraud,” cannot possibly serve as even a “rational basis” for prohibiting identified, lawfully-registered voters’ ballots from being counted. The Ohio statute requires Boards to invalidate provisional ballots cast by individuals in the wrong precinct only after first determining that those voters are lawfully-registered voters. Ohio Rev. Code § 3505.183(B)(4)(a)(i)–(ii). Categorically, for the prospective voters seeking to vindicate their rights in this case, there can be no risk of “in-person voter impersonation at polling places,” Crawford, 553 U.S. at 195, or any other form of voter fraud, that disqualifying their ballot could
57 See Plaintiffs’ Second Modified Proposed Order, at 2 (requiring the Boards to count only “the votes cast on the provisional ballot . . . in all races and for all issues for which the voter would have been eligible to vote if he/she had cast the ballot in the correct precinct”).
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possibly prevent. The Board must by law verify their identity and that they are otherwise qualified to vote.
The State does have a legitimate “interest in orderly administration and accurate recordkeeping” in the election process, see id, which could conceivably fall under the stated interest in “monitoring” the election. Without any specific evidence showing how these interests justify disenfranchisement of registered provisional voters’ ballots, which must already be evaluated by the Board for eligibility after the election, see Ohio Rev. Code § 3505.183, it is very difficult for the Court to see how the interests of “orderly administration” or “accurate recordkeeping” is furthered by prohibiting these provisional ballots from being counted. The Court appreciates that depending on the how the system is ultimately adapted to protect against poll-worker error rejections, it could make the Boards’ existing post-election duties more difficult. Under the Decree, however, Boards are already tasked with determining whether pollworker error caused the wrong-precinct ballot, and the Court doubts the State would dispute that some degree of additional time and resources is warranted when the alternative is the disenfranchisement of thousands of voters.
In sum, the Secretary’s reliance on the general advantages of Ohio’s precinct-based voting system, and the State’s ability to pass reasonable regulations in the interest of conducting fair and efficient elections, falls short of what is required to justify its inevitable disenfranchisement of thousands of qualified voters in the November 2012 election. The Sixth Circuit has affirmed that the Ohio prohibition on wrong-precinct ballots unjustly restricts qualified voters by failing to make exceptions for poll-worker errors, see Hunter I, 635 F.3d at 243, and the Plaintiffs have submitted reliable, uncontroverted evidence demonstrating that a
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discrete class of prospective voters will be severely burdened by this feature of the law in the upcoming election.
(c) The restriction fails review for invidiousness In addition to the foregoing “Anderson balancing” of the State’s justifications for the restriction against the plaintiffs’ rights, the Supreme Court has expressly preserved the prior rule from Harper, which prohibits States from placing restrictions on the right to vote that “invidiously discriminate” by virtue of being “unrelated to voter qualifications.” Id. (citing Harper, 383 U.S. at 666–67 (deeming poll tax “invidious”); Carrington v. Rash, 380 U.S. 89 (1966) (holding, “the Texas Constitution imposes an invidious discrimination” by its “presumption of nonresidence” of soldiers, as a class of voters)). This “stricter standard” applied to “invidious” restrictions is appropriate in the Court’s review of Ohio’s restriction on the rights of the prospective provisional voters in this case because Ohio’s prohibition on wrong-precinct ballots cast due to poll-worker error is “unrelated to voter qualifications,” Crawford, 553 U.S. at 189. The challenged election restriction disqualifies wrong-precinct ballots cast by individuals who, by law, the Board has already deemed are lawfully-registered to vote. Ohio Rev. Code § 3505.183(B)(3)(b). The law’s requirement that these voters’ ballots be disqualified when they cast a wrong-precinct ballot due to poll-worker error is, by definition, unrelated to “voter qualifications,” because the voters have necessarily met the all the State’s requirements for eligibility. It is only through an error by the poll worker that the voter’s ballot is ineligible, and an error by the poll worker can hardly be said to be related to the “voter’s qualifications,” Crawford, 553 U.S. at 189.
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Again, Ohio’s precinct requirement, as a whole, is legitimate and relevant to the requirement that voters vote in their jurisdiction. The Plaintiffs sue on behalf of registered voters who arrive in the correct polling place, and only through an intervening error violate the precinct requirement. As a class, these voters have no deficiencies in their qualifications; thus, the State’s expansion of the wrong-precinct prohibition to them is an invidious restriction. This is not an archetypical case of an invidious restriction, such as poll taxes, which are facially “capricious.” Harper, 383 U.S. at 668. Like poll taxes, however, any rational basis for rejecting wrongprecinct ballots of registered voters due to poll-worker error is equally unreasonable.58 And the Supreme Court in Carrington affirmed that a regulation may be invidious in its restriction on a particular class of voters. See Carrington, 380 U.S. at 93 (where the “State is dealing with a distinct class” of voters (servicemen) disenfranchised under its residency requirement). The restriction imposed by Ohio’s wrong-precinct ballot disqualification is unrelated to the prospective Plaintiffs’ voter qualifications and constitutes an “invidious” restriction prohibited under Harper, irrespective of whether it is rational from the State’s perspective.
Hence, the Plaintiffs are likely to prevail under either of these alternative tests. Under both Anderson interests balancing and Harper’s “invidiousness” standard, the State’s interests in administrative costs savings and avoiding “inefficiencies” furthered by the law’s blanket
58 This conclusion mirrors the Supreme Court’s reasoning in Crawford, where even a “benign” regulation nonetheless bordered on invidious in its restriction on the class of voters. The Crawford Court reasoned:
The State’s requirements here, that people without cars travel to a motor vehicle registry and that the poor who fail to do that get to their county seats within 10 days of every election, likewise translate into unjustified economic burdens uncomfortably close to the outright $1.50 fee we struck down 42 years ago [in Harper]. Like that fee, the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise. 553 U.S. at 236–37.
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prohibition on counting wrong-precinct provisional ballots are neither compelling nor sufficiently weighty to justify the arbitrary denial of a significant number of prospective registered voters’ “most fundamental of rights.” State ex rel. Skaggs v. Brunner, 588 F. Supp. 2d 828, 834 (S. D. Ohio 2008); see also Carrington, 380 U.S. at 96 (“States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State.”). Painter’s failure to allow an exception for wrong-precinct ballots cast due to pollworker error, therefore, represents an unreasonable restriction on lawfully-registered voters’ right to vote. Like in Norman, “the State Supreme Court’s inhospitable reading of [the Ohio Revised Code] sweeps broader than necessary to advance electoral order and accordingly violates” the Equal Protection Clause. Norman, 502 U.S. at 290 (citing Anderson, 460 U.S. at 793–94; Williams v. Rhodes, 393 U.S. 23, 30–34 (1968)).
The Court accepts that mistakes by election officials are inevitable, and the State will never eradicate poll-worker error. As the Sixth Circuit held in Hunter I, however, the fact that poll workers will always make mistakes “is no answer to the equal-protection challenge because discriminatory treatment must be justifiable, see Crawford, 553 U.S. at 189-90, and unanticipated inequality is especially arbitrary.” Hunter I, 635 F.3d at 238 n.16 (emphasis in original). The Court finds that Plaintiffs have demonstrated a likelihood of success on their primary equal protection claim.
ii. Second Equal Protection Claim (Ballot Envelope Deficiencies) Plaintiffs’ second equal protection claim alleges that Ohio’s blanket disqualification of provisional ballots where the ballot envelope contains certain “technical deficiencies” imposes a
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similarly severe burden on the right to vote unjustified by any legitimate State interests.59 As with the voters disenfranchised due to wrong-precinct ballots, the Secretary disputes the severity of the burden imposed by Ohio’s disqualification of these ballots. Further, the Secretary claims that the Plaintiffs’ concerns regarding this class of disqualified ballots have been addressed by the Secretary’s recent directives requiring, inter alia, that Boards may not reject provisional ballots where the poll worker’s information on the ballot envelope is incomplete.60
In 2011, the Boards reported rejecting a total of 568 provisional ballots on the basis of technical deficiencies in the ballot envelope. Those deficiencies include a missing or misplaced printed name or voter signature, or the voter’s signature was deemed not to match the exemplar on file with the Board.61 Any provisional ballots cast containing these sorts of technical deficiencies necessarily involves poll-worker error because it is the poll worker’s duty to ensure that provisional ballots are cast with a validly completed ballot envelope and affirmation. See Ohio Rev. Code §§ 3505.181(B)(2)–(3); 3505.182; see also Skaggs, 588 F. Supp. 2d at 836 (“To be sure, where any county board of elections accepts a Provisional Ballot without a complete voter affirmation, including a poll worker verification statement, that situation is attributable to the poll worker’s failure to perform his statutorily prescribed role and constitutes poll-worker error.”)
The Parties’ arguments, and the Court’s doctrinal analysis, on this “technical deficiencies” claim is much the same as the analysis on the wrong-precinct ballot claim. First,
59 Specifically, Plaintiffs challenge the Ohio law “requiring disqualification of ballots when the provisional ballot envelope contains sufficient information for the county to identify the lawfully-registered voter but when that envelope is missing or has a misplaced voter signature or printed name, without exception, as set forth in Ohio Rev. Code § 3505.183(B)(4)(a)(iii), and in the Ohio Supreme Court’s decisions of Painter and Skaggs.” SAC ¶ 82. 60 See Directive 2012-01 (Counting Provisional Ballots), p. 4; Directive 2012-15 (Training of Poll Workers). 61 Traum Decl. ¶ 29; Ex. Z, Table 1; see also, id., Exs. Z–CC (containing data showing rejection of ballots of voters for “no signature,” “no printed name,” “printed name and/or signature in wrong place”).
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the Court must identify the restriction on the right to vote. Here, the data demonstrates that a discrete class of registered voters will have their ballots disqualified due to poll-worker error. This class of prospective provisional ballots is likely to be significantly smaller even than those cast in the correct location/wrong-precinct. Nevertheless, “[h]owever slight that burden may appear . . . it must be justified by relevant and legitimate state interests,” Crawford, 553 U.S. at 191, because even a single vote arbitrarily disqualified without a sufficient justification is an unconstitutional restriction.
In the case of technically deficient ballot envelopes, although the disqualification is still attributable to poll-worker error, the individual voter has a greater degree of control over whether the ballot envelope contains the required elements, and whether to complete the affirmation. In this way, the character of the burden of this restriction is arguably less severe than with wrongprecinct disqualifications, where the poll worker hands the voter an invalid ballot. As with wrong-precinct ballots, it is the poll worker’s failure to process the provisional ballot properly that leads to the ballot’s disqualification under Ohio Rev. Code § 3505.183(B)(4)(a)(iii). See Skaggs, 588 F. Supp. 2d at 836, supra. The poll worker—not the voter—is the person legally tasked with confirming the validity of the provisional ballot ensuring the technical processing of the provisional ballot correctly. See Ohio Rev. Code § 3505.181(B)(2).
Although it is more difficult to quantify the precise magnitude of the burden imposed by this law’s restriction on the class of affected voters, the restriction’s unreasonableness is equally clear once the Court has to determine whether the law’s disqualification of ballots with technical deficiencies is justified by the State’s asserted interests. The Secretary relies on the same generally accepted interests in efficiently regulating elections to justify disqualifying ballots with these technical deficiencies. As before, the State’s authority to regulate elections does not justify
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the harsh restriction on the class of provisional votes at issue, where the Board is able to discern in its regular course that the ballot is cast by a lawfully-registered voter. See Anderson, 460 U.S. at 789 (holding, “the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights”). Indeed, the interests provided by the Secretary with respect to the Sandusky factors are even less relevant to this restriction, as these ballots are cast in the correct precinct.
Simply because a specific regulation is part of a state’s mostly “reasonable, nondiscriminatory” electoral code does not make it justifiable in all its applications under Anderson and Burdick. See Crawford, 553 U.S. at 190, n.8 (stating, “Burdick surely did not create a novel ‘deferential important regulatory interests’ standard”). Given the irrelevance and weakness of the Secretary’s proffered justifications for the state’s requirement that Boards disqualify ballots with technical deficiencies where it is able to otherwise discern that the voter is qualified, the same reasoning provided in the Court’s analysis of the wrong-precinct equal protection claim is equally applicable. Therefore, the Court also finds a likelihood of success on the merits of Plaintiffs’ “technical deficiencies” claim.
The Secretary’s revised directives do not alleviate the burden of the restriction, and do not moot Plaintiffs’ alleged violation, as the Secretary claims. Directive 2012-01 instructs boards of elections that provisional ballots are not to be rejected only where the poll worker fails to fill out his or her portion of the provisional envelope. The law continues to disqualify provisional ballots with deficient voter signatures or voter affirmations on the ballot envelope, which are the challenged restrictions of Ohio Rev. Code §§ 3505.181(B)(2), 3505.182, in Plaintiffs’ claim.62
62 See Plaintiffs’ Motion for Preliminary Injunction, at 29. 45

iii. Third Equal Protection Claim (Disparate Impact of Poll-Worker Error by County) Plaintiffs’ fifth claim for relief is more of an “as-applied” equal protection challenge.
Plaintiffs claim that Ohio’s strict disqualification of wrong-precinct ballots creates a disparate impact on provisional voters, by arbitrarily subjecting voters to differing rates of arbitrary ballot disqualification based upon the county in which they reside.63 Specifically, Plaintiffs allege the evidence demonstrates that the result is higher rates of rejections due to poll-worker error in large urban counties with more multidistrict polling places. This disparately impacts voters residing in urban counties and precincts in violation of their right to vote on equal terms with voters in rural or suburban jurisdictions.
Following the Supreme Court’s holding in Bush v. Gore, the Sixth Circuit has affirmed that “[i]n its review of the provisional ballots, the Board must apply specific and uniform standards to avoid the ‘nonarbitrary treatment of voters.’” Hunter I, 635 F.3d at 234 (quoting League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 475 (6th Cir. 2008)). In Hunter I, the court found that “the Board has not asserted ‘precise interests’ that justified the unequal treatment” of provisional ballots. Id. at 238 (quoting Burdick, 504 U.S. at 434). Specifically relating to Plaintiffs’ claims, the Supreme Court in Bush held that a State may not “accord[] arbitrary and disparate treatment to voters in its different counties.” 531 U.S. at 107. This requirement of equal protection may be violated by an election regulation that imposes a disparate impact. The disparate impact need not be intentional to be unconstitutional. See Hunter I, 635 F.3d at 234, n.13 (rejecting the Ohio Republican Party’s argument that there can be no violation of the Equal Protection Clause without evidence of intentional discrimination).
63 See SAC ¶ 91. 46

If the evidence firmly supported Plaintiffs’ submission that voters in more populous counties are subjected to a higher chance of being disenfranchised, Ohio’s disqualifying wrongprecinct ballots due to poll-worker error would violate equal protection on that basis as well. The Secretary demonstrates, and Plaintiffs acknowledge,64 that the statistics from the past elections do not establish a consistently higher rate of rejected wrong-precinct ballots in urban counties relative to less populous counties. To show the alleged disparate impact of poll-worker error, Plaintiffs rely chiefly on the statistics and conclusions in Dr. Kimball’s Report. Using data from the Boards, Kimball shows that in recent years the most populous counties have had a higher proportion of the total rejected wrong-precinct ballots.65
Showing that the more populous counties have a consistently higher percentage of the total rejected wrong-precinct ballots takes Plaintiffs one step closer to proving their claim. The more important metric for proving a disparate impact on voters on a county-by-county basis, however, is the rate of wrong-precinct rejections by county, and that statistic has not been demonstrably higher in urban counties.66 Without clear evidence that voters will be uniformly disenfranchised under the regulation in more populous counties, the Plaintiffs have not demonstrated a likelihood of success on this alternative equal protection challenge to Ohio’s wrong-precinct prohibition.
64 See Reply, at 14 n.15. 65 In 2010, the eight most populated counties accounted for 48 percent of total ballots cast, however those same eight counties accounted for 76 percent of the provisional ballots rejected for being in the wrong precinct or county. Again in 2011, while the eight most populated counties accounted for 46 percent of total ballots cast in the 2011 election, those same eight counties accounted for 79 percent of the provisional ballots rejected for being in the wrong precinct but the correct polling place. Kimball Decl. Ex. B at 11–25. 66 For example, in 2011, the Cuyahoga County (largest urban county) wrong-precinct rejection rate of 24.4% was eclipsed by rejection rates in rural counties such as Perry (37%), Athens (39.6%), Van Wert (28.6%), and Mercer (40.9%). See Kimball Report, Table 14.
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iv. Fourth Equal Protection Claim (Unequal Treatment of Provisional Voters) Plaintiffs’ final equal protection claim alleges that the law’s differential treatment of wrong-precinct provisional ballots depending on the form of identification used to identify the voter constitutes unequal disparate treatment in violation of voters’ rights. The Decree mandates that Boards may not reject wrong-precinct ballots due to poll-worker error for individuals who use their last four social security digits to identify themselves at the polls.67 Plaintiffs claim that Ohio law’s failure to treat other provisional voters’ ballots the same—i.e., by counting their wrong-precinct ballots as well—violates equal protection by arbitrarily rejecting some wrongprecinct ballots and not others.68 The Secretary argues that to the extent the Decree orders differential treatment of wrong-precinct ballots, it is not the fault of the state’s election code. Moreover, the Secretary points to an allegedly contradictory position taken by Plaintiffs as SEIU condemns the effects of the Decree when SEIU is itself a party to the NEOCH litigation. Plaintiffs’ claims in this case and in the NEOCH litigation are not contradictory. While Plaintiffs argue that the Decree’s orders are necessary to avoid constitutional violations, they also argue that the Decree must be expanded to include all ballots that are cast in the wrong precinct due to poll-worker error. Indeed, Plaintiffs have consistently advocated for wrong-precinct ballots to be counted any time poll-worker error is the cause. While the Decree may have covered only a portion of wrong-precinct ballots, it does not demonstrate any change in Plaintiffs’ position. As to the merits, the Ohio Revised Code treats all wrong-precinct ballots the same; none is counted. See Painter, 941 N.E.2d at 794. In incorporating the Decree, however, Ohio’s ballot
67 NEOCH Decree ¶ 5. 68 SAC ¶ 94.
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counting rules result in disparate treatment of similarly situated provisional voters. See id. (acknowledging the Decree’s requirements); see also NEOCH, 2012 U.S. Dist. LEXIS 94086, at *35–45 (affirming that Ohio law is not in conflict with the Decree under Painter). Counting the provisional ballots of individuals who use their social-security numbers as identification under different standards from those who use other forms of identification violates the latter voters’ “constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see also League of Women Voters, 548 F.3d at 477 (“At a minimum . . . equal protection requires ‘nonarbitrary treatment of voters.’”) (quoting Bush, 531 U.S. at 105)). The Sixth Circuit in Hunter I affirmed the likelihood that the Hamilton County Board of Election “arbitrarily treated one set of provisional ballots differently from others, and that unequal treatment violates the Equal Protection Clause.” 635 F.3d at 242. There is no reason for treating provisional ballots differently based on the type of identification used.
Defendants argue that the appropriate remedy for the violation caused by the law’s disparate treatment of wrong-precinct ballots is to stop counting any ballots protected by the Decree, rather than to count all wrong-precinct ballots cast due to poll-worker error. Both the Sixth Circuit and this Court have rejected that rationale. See Hunter II, 2012 WL 404786, at *46 n.40 (“The cure to this violation requires the Board to count other ballots flawed by poll-worker error . . . . ‘[I]t is preferable as an equitable matter to enable the exercise of the right to vote . . . .’”) (quoting Hunter I, 635 F.3d at 245)). The State’s preference to exercise its authority over elections by counting fewer wrong-precinct ballots is inapposite because the violation is of federal constitutional rights. The Secretary presents very little argument in defense of this claim. Based upon established principles of equal protection requiring that similar voters be met with
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similar vote counting standards from the State, the Court finds a likelihood of success on this alternative challenge to Ohio’s provisional ballot-counting regime.
b. Substantive Due Process Plaintiffs’ substantive due process claim mirrors the due process violation affirmed in the Hunter Litigation. Specifically, Plaintiffs’ claim that Ohio’s law mandating disqualification of ballots of lawfully-registered voters for reasons attributable to poll-worker error violates the Due Process Clause of the Fourteenth Amendment.69 See Hunter I, 635 F.3d at 243 (“Plaintiffs present the argument that failure to count provisional ballots cast in an incorrect precinct due to poll-worker error violates the Due Process Clause.”). This Court’s conclusion in Hunter II, that “Ohio’s precinct-based voting system . . . is fundamentally unfair and abrogates the Fourteenth Amendment’s guarantee of due process of law,” establishes a likelihood of success on the merits for this claim. The Sixth Circuit has held that “[t]he Due Process clause is implicated, and § 1983 relief is appropriate, in the exceptional case where a state’s voting system is fundamentally unfair.” Warf v. Bd. of Elections of Green Cty., Ky., 619 F.3d 553, 559 (6th Cir. 2010) (“Such an exceptional case may arise, for example, if a state employs non-uniform rules, standards and procedures, that result in significant disenfranchisement and vote dilution.”) (internal quotation marks omitted). With regard to Plaintiffs’ due process claim, the Hunter I Court stated: Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair.
69 SAC ¶ 97. 50

Hunter I, 635 F.3d at 243. Chief Judge Dlott subsequently held, in her well-reasoned opinion in Hunter II, that Ohio’s precinct-based voting system:
delegates to poll workers the duty to ensure that voters are directed to the correct precinct but which provides that provisional ballots cast in the wrong precinct shall not be counted under any circumstance, even where the ballot is miscast due to poll-worker error, is fundamentally unfair and abrogates the Fourteenth Amendment’s guarantee of due process of law. 2012 WL 404786, at *46. Although the Court was “without jurisdiction to order a remedy” for the due process violation in Hunter, see id., here, the Attorney General’s office is part of this case and has defended the constitutionality of the Ohio Revised Code more than competently. The Secretary refutes the law and evidence in support of Plaintiffs’ due process claim, but refuses even to address Hunter’s holding that Ohio’s provisional ballot law violates due process. Id. Based on the evidence in support of the Court’s equal protection analysis, and the final decision by this Court in Hunter, Plaintiffs’ due process claim has a strong likelihood of success on the merits.
2. Irreparability of Harm The prospective harm to Plaintiffs in the upcoming election if the challenged provisions of the Ohio election code are not enjoined is irreparable. Where, as here, “Defendants’ challenged actions threaten or impair both Plaintiffs’ constitutional right to due process and constitutional right to vote, the Court must find that Plaintiffs will suffer an irreparable injury.” Miller v. Blackwell, 348 F. Supp. 2d 916, 922 (S.D. Ohio 2004); see also Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (holding, “a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights”).
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3. Balancing of Harms The equitable balancing of harms also weighs in favor of granting injunctive relief in this case. The Court’s analysis on this factor is similar to the Court’s balancing of Plaintiffs’ (i.e. wrong-precinct provisional voters) interests and the State’s interests in determining an equal protection violation. The Secretary claims that the Plaintiffs’ proposed injunction will cause more harm than good to the integrity of Ohioans’ voting franchise by causing a “cascade” of collateral Equal Protection and Due Process violations on Ohio voters.70 The two specific categories of “downstream” constitutional violations the Secretary identifies from the proposed order to count wrong-precinct ballots are: (1) “split-precinct” voter dilution; and (2) the residual disenfranchisement of the same voters in precinct-only electoral races. Neither of these prospective harms outweighs the benefits from preventing the rejection of thousands of wrong-precinct and technically deficient provisional ballots miscast through poll-worker error. The Secretary’s vote dilution argument, as noted in Section III.B., supra, is addressed by Plaintiffs’ proposed order, which eliminates the potential for vote dilution by only counting “up-ballot” votes.71 Any remaining interests “in preventing the counting of invalid votes must be weighed against the voters’ ‘strong interest in exercising the fundamental political right to vote.’” Hunter I, 635 F.3d at 243 (quoting Purcell, 549 U.S. at 4 (internal quotation marks omitted)). Second, the Secretary claims that Plaintiffs’ proposed counting votes of wrong-precinct ballots only in those races for which that voter is eligible to vote (“up-ballot” races) will still leave the remaining disenfranchisement of the same voter who is then unable to vote in all his
70 Secretary Opp. at 18–19. 71 See supra note 57.
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precinct-specific races. This argument is without force, at least on the balancing of harms in this case. It suggests that the harm to a voter from having lost the opportunity of voting, entirely, is somehow outweighed by the harm from having lost the opportunity to vote just in precinctspecific races. Any voter would rather have some races counted, as under the Plaintiffs’ proposed order, than none at all, as under the Ohio law’s blanket prohibition.
4. Public Interest Finally, the “public interest” factor weighs in favor of counting provisional ballots cast by registered voters, for reasons already established. The Sixth Circuit has recognized that, although “both the state and the voting public have interests at stake,” which may conflict at times, Hunter I, 635 F.3d at 244, “it is always in the public interest to prevent violation of a party’s constitutional rights.” Deja Vu, 274 F.3d at 400 (internal quotations omitted). As the Hunter I Court opined in affirming this Court’s granting of a preliminary injunction, the State of Ohio “has a strong interest in [its] ability to enforce state election law requirements.” Id. On the other hand, [m]embers of the public, however, have a strong interest in exercising the fundamental political right to vote. That interest is best served by favoring enfranchisement and ensuring that qualified voters’ exercise of their right to vote is successful. Hunter I, 635 F.3d at 244. Even constitutionally-required judicial intervention into the state’s electoral system should be done with caution, lest the franchise be undermined by the very organs sworn to protect it. The Court is acutely aware from elections past that last-minute changes in election laws can, for example, “generate voter confusion and consequent incentive[s] to remain away from the polls.” See id. An order from this Court prohibiting the Board from disqualifying
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wrong-precinct provisional ballots due to poll-worker error will affect few, if any, changes to the rules and procedures facing poll workers and voters on election day. An injunction would only affect the Board’s procedures in counting provisional ballots after the election, at which time voter confusion and deterrence is a non-threat.
Moreover, the experience from the past two years’ elections demonstrates that wrongprecinct provisional ballots can successfully be reviewed and counted for poll-worker error, as is currently required for those ballots covered by the Decree. Thousands of voters have been spared arbitrary disenfranchisement because of the Decree, to which the State and the Secretary are parties.72 The Secretary’s claims that “the relief Plaintiffs’ seek would necessarily alter Ohio’s precinct-based voting system” and “potentially fundamentally change voting nationwide,”73 are unfounded. Plaintiffs merely seek to protect the remaining qualified voters outside the Decree’s scope from being disenfranchised due to poll-worker error.
The Secretary repeatedly maintains that provisional ballots are simply “a last-stitch safety net for people who traditionally would have been turned away completely.”74 Presumably, attempting to justify even arbitrary disenfranchisement of provisional voters as being merely “collateral damage,” with no legal significance. This outlook belies a fundamentally misguided view that the State need not protect the right to vote of individuals who, for any number of reasons, are required to cast a provisional ballot. The Supreme Court in Bush v. Gore repudiated that position expressed by the Secretary with its holding that “[h]aving once granted the right to
72 See Northeast Ohio Coalition for the Homeless v. Husted, No. 06-cv-896, 2012 U.S. Dist. LEXIS 66111 (S. D. Ohio May 11, 2012). 73 Secretary Opp. at 1. 74 Transcript of Oral Proceedings, July 30, 2012, 12-cv-562, at 69:18-19.
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vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05. And as this Court has previously stated, “it is well-settled that the Constitution protects the right of all qualified voters to have their votes counted,” even voters who are only deemed qualified upon review of their provisional ballots. Skaggs, 588 F. Supp. 2d at 834 (emphasis added); see also O’Brien v. Skinner, 414 U.S. 524 (1974).
HAVA prudently left the states to choose how they fashion the “safety net” of provisional ballots, as well as which citizens must rely on their votes being caught by it on election day. See Sandusky, 387 F.3d at 576 (holding, “the ultimate legality of the vote cast provisionally is generally a matter of state law”) (emphasis added). Once fashioned, however, the Constitution demands a safety net without holes—or, to be more precise, without any holes which cannot be justified. Id. at 569 (recognizing, while the law gives “primary responsibility for administering and regulating elections to the States, the States must adhere to certain constitutional and statutory requirements”). If this were not the law, states would be free to require every voter to vote “provisionally” and then arbitrarily reject ballots as they pleased with impunity.
The Plaintiffs have demonstrated a likelihood of succeeding on their equal protection challenges to the requirement that the Boards reject wrong precinct provisional ballots cast due to poll-worker error, as required by Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii), contained in Claims One and Six of the Second Amended Complaint. Plaintiffs have also demonstrated a likelihood of success on the substantive due process challenge to the same provision of Ohio law contained in Claim Seven. Plaintiffs have further demonstrated a likelihood of success on their constitutional challenge to the requirement that Boards reject
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provisional ballots containing technical deficiencies in the ballot envelope, as required by Ohio Rev. Code §3505.183(B)(4)(a)(iii), contained in Claim Two of the Second Amended Complaint. The additional factors of the irreparable nature of the prospective harm to Plaintiffs; the balance of harm to others; and consideration of the public interest each weigh in further support of issuing an order enjoining the challenged restrictions on Plaintiffs’ members voting franchise.
Based on the foregoing, the Court finds that preliminary injunctive relief is appropriate and Plaintiffs’ Motion for a Preliminary Injunction is GRANTED.
E. Appropriate Injunctive Relief The Court determines the following preliminary injunction on the Board’s enforcement of Ohio law to be the appropriate relief, and the least restrictive upon the State, adequate to ensure the protection of Plaintiffs’ constitutional rights in the upcoming election:75 It is hereby ORDERED that, within ten business days of this Order, Defendant Secretary of State shall issue a Directive requiring that Ohio’s county boards of elections may not reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election for the following reasons: 1. The voter cast his or her provisional ballot in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot has: a) determined the correct precinct for the voter; b) directed the voter to the correct precinct;
75 The Court’s Order departs slightly from Plaintiffs’ proposed preliminary injunction, to avoid imposing any presumption of poll-worker error. See Painter, at 16 (holding, “election officials err in presuming poll-worker error”). The Court’s Order leaves in place the existing measures employed by the Boards for counting and remaking wrong-precinct provisional ballots, as required under the Decree.
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c) informed the voter that casting the wrong-precinct ballot would result in all votes on the ballot being rejected under Ohio law; and
d) the voter refused to travel to the correct precinct and insisted on voting the invalid ballot;
and the Board of Elections has verified that the precinct to which the poll worker directed the voter was the correct precinct for that voter. If the County Board of Elections cannot verify that the poll worker directed the voter to the correct precinct, the votes cast on the provisional ballot must be counted in all races and for all issues for which the voter would have been eligible to vote if he/she had cast the ballot in the correct precinct.
2. The provisional ballot envelope does not contain a voter signature and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the provisional ballot envelope does not contain the voter’s full printed name and the County Board of Elections has otherwise been able to determine that the voter is a registered voter; and/or the voter did not sign and/or print the voter’s name in the correct place(s) on the ballot envelope and the County Board of Elections has otherwise been able to determine that the voter is a registered voter.
V. MOTION TO MODIFY THE CONSENT DECREE On June 20, 2012, the Plaintiffs in NEOCH filed their Motion to Modify the Decree to Prevent Constitutional Violations pursuant to Rule 60 and the Court’s equitable authority to modify the Decree’s injunctive relief. On July 9, 2012, the Court issued its Opinion and Order Denying Defendants’ Request to Vacate the Consent Decree.76 The Relators and the State Defendants oppose modification of the decree on both procedural and substantive grounds. As
76 See NEOCH, 2012 U.S. Dist. LEXIS 94086. 57

of the Court’s ruling in that Order upholding the validity of the Consent Decree, Plaintiffs’ Motion to Modify the Consent Decree is ripe for determination.
The Motion to Modify requests this Court to make determinations on the merits of the same constitutional violations in Ohio’s provisional ballot laws alleged by Plaintiffs in the Motion for Preliminary Injunction. The Court’s decision on the Motion for Preliminary Injunction, by Plaintiffs’ own representation to the Court,77 grants the same equitable relief requested by their Motion to Modify. The Motion to Modify is therefore moot so long as the injunction ordered in SEIU v. Husted remains in place. The Court’s decision on the Plaintiffs’ Motion to Modify is STAYED, indefinitely, subject to renewal if warranted upon a timely request for good cause shown.

IT IS SO ORDERED.

UNITE

ALGENON

DATED: August 27, 2012

s/Algenon L. Marbley____
L. MARBLEY D STATES DISTRICT JUDGE

77 Motion to Modify, at 5. 58

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 344 Filed: 10/26/12 Page: 1 of 22 PAGEID #: 12563

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al.,
Plaintiffs, v. JON HUSTED, et al.,
Defendants.

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Case No. 2:12-CV-562

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:

:

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JUDGE ALGENON L. MARBLEY

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:

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Magistrate Terence P. Kemp

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THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

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v.

:

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JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

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Defendant.

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and

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STATE OF OHIO

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Intervenor-Defendant

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Case No. 2:06-CV-896 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence Kemp

OPINION AND ORDER

I. INTRODUCTION

These are two related actions in this Court: Service Employees’ International Union,

Local 1, et. al. v. Husted, et. al., Case No. 2:12-cv-562 (“the SEIU case”) and The Northeast

Ohio Coalition for the Homeless, et. al. v. Husted & State of Ohio, Case No. 2:06-cv-896 (“the

Case: 2:06-cv-00896-ALM-TPK Doc #: 344 Filed: 10/26/12 Page: 2 of 22 PAGEID #: 12564
NEOCH case”). Before the Court are three distinct motions: (1) SEIU Plaintiffs’ Renewed Motion for Preliminary Injunction with Respect to Wrong-Location Provisional Ballots (SEIU Dkt. 84); (2) NEOCH Plaintiffs’ Motion to Modify April 19, 2010 Consent Decree (NEOCH Dkt. 338) and; (3) NEOCH Defendants’ Motion to Modify April 19, 2010 Consent Decree (NEOCH Dkt. 342). SEIU Plaintiffs promptly renewed their Motion in light of the Sixth Circuit’s Decision of October 11, 2012, affirming in part and reversing in part this Court’s injunction on the issues of “right-location, wrong-precinct” provisional ballots and provisional ballots with deficient affirmations. NEOCH v. Husted, ___ F.3d ___, 2012 WL 4829033 (6th Cir. October 11, 2012) (“the NEOCH appeal”). Following that remand, Plaintiffs and Defendants in the NEOCH case each moved to modify the April 19, 2010 Consent Decree. As these cases were consolidated for the purpose of appeal, the Court continues to recognize that consolidation on remand. Owing to the pendency of the November 6, 2012 election, at Defendants’ request, the Court ordered an expedited briefing schedule for these motions and heard oral argument on October 24, 2012. These issues have been fully briefed and are now ripe for decision.
II. STATEMENT OF FACTS A. The NEOCH Case
The SEIU case and the NEOCH case, the subjects of a preliminary injunction and consent decree respectively, are both actions originally brought in this Court. Plaintiffs in both cases are groups of interested voters suing on behalf of their members to prevent the Secretary of the State of Ohio from disqualifying provisional ballots in the November 6, 2012 election, an alleged violation of Plaintiffs’ members’ constitutional rights.
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The NEOCH case began in 2006, when Plaintiffs challenged Ohio’s amended voter identification laws. The parties initially resolved the lawsuit, prior to a final adjudication on the merits, by entering a consent decree on April 19, 2010 (“the Consent Decree”). The Consent Decree, “among other provisions, mandated that the Board [of Elections] ‘may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification’ [“SSN-4 ballots”] if certain deficiencies in the ballot, including being cast ‘in the wrong precinct, but in the correct polling place,’ were the result of poll-worker error.” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011) (“Hunter I”) (quoting Consent Decree, at ¶5). This Court upheld the validity of Consent Decree earlier this year, a ruling affirmed in part and remanded in part by the Sixth Circuit in the NEOCH appeal, issued on October 11, 2012. NEOCH, ___ F.3d ___, 2012 WL 4829033. Following the remand, Plaintiffs and Defendants both moved to modify the Consent Decree, based on the Sixth Circuit’s holding that treating SSN-4 ballots differently from provisional ballots obtained using other forms of identification likely violated equal protection under the Fourteenth Amendment. Id. at 14.
B. The SEIU Case During the ongoing NEOCH litigation, in early 2012, a group of organizations sued Ohio Secretary of State Husted to challenge Ohio’s rules governing the counting of provisional ballots. This Court’s previous decision, SEIU Local 1 v. Husted, ___ F.Supp.2d ___ 2012 WL 3643064 (S.D. Ohio Aug. 27, 2012) granted Plaintiffs’ request to enjoin the Secretary from disqualifying “right location, wrong precinct” provisional ballots resulting from “poll-worker error,” an injunction upheld in the NEOCH appeal. NEOCH, ___ F.3d ___, 2012 WL 4829033 at *13. The facts giving rise to the case are discussed in the prior decision. SEIU Local 1, ___
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F.Supp.2d ___ 2012 WL 3643064 at *2-10. On appeal, however, the Sixth Circuit vacated a portion of the preliminary injunction which required the Secretary to count provisional ballots cast with deficient affirmations, deficiencies which this Court found to be due to poll-worker error. NEOCH, ___ F.3d ___ 2012 WL 4829033 at *15-6. To support the instant Motion, Plaintiffs have combed the State’s “Incident Reports” from recent elections to identify numerous examples of poll-worker error causing provisional ballots cast in the wrong location, wrong precinct.1 They rely on their voluminous evidentiary record discussed in this Court’s previous SEIU decision. SEIU Local 1, ___ F.Supp.2d ___ 2012 WL 3643064 at *2-10. Plaintiffs’ Renewed Motion for Preliminary Injunction seeks to expand the scope of this Court’s prior “right location, wrong precinct” injunction to likewise enjoin the Secretary from disqualifying ballots cast in the wrong location and in the wrong precinct (“‘wrong location, wrong precinct’ ballots”) due to poll-worker error.
III. SEIU PLAINTIFFS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION A. Standard for Granting Preliminary Injunction
Plaintiffs’ Motion, to enjoin the Secretary from enforcing certain provisions of Ohio law in the upcoming November 6, 2012 election, invokes the four-factor balancing test for determining whether an injunction is appropriate under Fed. R. Civ. P. 65. The Court must weigh the following factors:
(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction.
1 See SEIU Dkt. 12 with attached Exhibits A – ZZ.
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Hunter I, 635 F.3d at 233. These four factors “guide the discretion of the district court[;]” however, “they do not establish a rigid and comprehensive test.” Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). Whether the combination of the factors weighs in favor of issuing injunctive relief in a particular case is left to the discretion of the district court. See Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000); see also Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2007) (in reviewing an application to preliminarily enjoin operation of Arizona’s voter identification procedures, the Supreme Court recognized courts’ need to “weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases’ additional exigencies,” and stated these complex determinations require “deference to the discretion of the District Court”).
The Secretary has argued previously that, for Plaintiffs to meet their burden to obtain a preliminary injunction, they must “establish [their] case” by “clear and convincing evidence.” (Secretary Opp., SEIU Dkt. 28 at 10) (citing Damon’s Rests., Inc. v. Eileen K Inc., 461 F. Supp. 2d 607, 621 (S.D. Ohio Aug. 30, 2006)). While the Sixth Circuit has held that “the proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion,” Leary, 228 F.3d at 739, the Circuit further clarified that “a party is not required to prove his case in full at a preliminary injunction hearing and the findings of fact and conclusions of law made by a court granting the preliminary injunction are not binding at trial on the merits.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (citations omitted). For a plaintiff to receive the requested injunction, “it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” NEOCH, ___ F.3d ___, 2012 WL
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4829033 (quoting Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997)).
A plaintiff has “the burden of establishing a clear case of irreparable injury and of convincing the Court that the balance of injury favor[s] the granting of the injunction.” Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir. 1968). In the election law context, “[t]hese [four] factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together;” the factors do not each impose a distinct evidentiary burden on the Plaintiffs. Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006) (stating, “[f]or example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay”).2
B. Law and Analysis 1. Likelihood of Success on the Merits Just as with the Plaintiffs’ motion for an injunction on the “right location, wrong precinct” issue, Plaintiffs bring their constitutional claims under 42 U.S.C. § 1983. A claim under 42 U.S.C. § 1983 has two elements: (1) the defendant must be acting under the color of state law; and (2) the offending conduct must deprive the plaintiff of rights secured by federal law. See League of Women Voters, 548 F.3d at 475. There is no dispute that the Secretary acts under the color of state law when enforcing Ohio’s election laws. The parties do dispute whether the Secretary’s actions and directives, specifically in directing county boards of election to reject provisional ballots cast at the “wrong location, wrong precinct,” deprive Plaintiffs’ members of their constitutional rights to equal protection and
2 In any event, the Secretary does not dispute that the prospective injury to Plaintiffs in this case—the complete denial of an individual’s right to vote—is irreparable. See, e.g., Miller v. Blackwell, 348 F. Supp. 2d 916, 922 (S.D. Ohio 2004).
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due process under the Fourteenth Amendment. In light of the Sixth Circuit’s October 11, 2012 Opinion, however, there is no longer any doubt that “the unreasonableness and fundamental unfairness of disqualifying wrong-precinct ballots caused by poll-worker error (equal protection and due process)” is a “likely constitutional violation[] . . . requiring injunctive relief.” NEOCH, ___ F.3d ___ 2012 WL 4829033 at *9. While the Sixth Circuit affirmed this Court’s previous finding that disqualification of “right location, wrong precinct ballots” likely violates the equal protection and due process guarantees under the Fourteenth Amendment, there is no logical or legal rationale to distinguish the disqualification of “wrong location, wrong precinct” ballots, provided they are also attributable to poll-worker error.
As the Sixth Circuit noted, when the state places a “substantial” burden on the right to vote – one that is greater than a “reasonable, nondiscriminatory restriction” but less than a “severe burden” – courts apply the Anderson/Burdick test. That test compels this Court to:
weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiffs’ rights.’ Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). Since there is no specific test for the validity of voting regulations, this Court simply “must weigh the burden on voters against the state’s asserted justifications and make the hard judgment that our adversary system demands.” Obama for America v. Husted, ___ F.3d ___ 2012 WL 4753397 (6th Cir. October 5, 2012). The burden on voters imposed by Ohio’s systemic disqualification of “wrong location, wrong precinct” ballots is substantial. Disqualification of one’s ballot is no victimless legal abstraction; it is disenfranchisement, the loss of the fundamental right to participate in the
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democratic political process. To disenfranchise a single voter is a matter for grave concern, but the Sixth Circuit affirmed this Court’s finding that Ohio’s disqualification of provisional ballots in recent elections has far exceeded that: more than 14,000 provisional ballots were disqualified in 2008 and more than 11,000 were disqualified in 2010. NEOCH, 2012 WL 4829033 at *10. Unfortunately, the records kept by Ohio for those years do not allow us to distinguish between disqualifications for “right location, wrong precinct” and “wrong location, wrong precinct.” Ohio does, however, have such data for the 2011 election. In 2011, more than 1,800 disqualified provisional ballots were cast in the “right location, wrong precinct,” while more than 2,400 disqualified ballots were cast in the “wrong location, wrong precinct.” (NEOCH Dkt. 9, Ex. B) The State of Ohio denied these citizens their right to vote by systemically disqualifying all ballots cast in the wrong location or wrong precinct, with no individual due process or inquiry into the cause of the ballot error. Although these disqualifications affect only “provisional ballots,” that fact “does not justify this additional burden; as . . . Ohio law now requires thirteen different categories of voters to cast provisional ballots, ranging from individuals who do not have an acceptable form of identification to those who requested an absentee ballot or whose signature was deemed by the precinct official not to match the name on the registration forms.” NEOCH, 2012 WL 4829033 at *11.
Over the course of this litigation, Plaintiffs have presented “voluminous evidence” of disqualifications due to poll-worker errors. Id. at *10. Plaintiffs’ Motion specifies four reasons for these errors with regard to “wrong location, wrong precinct” ballots, all of which have been documented to occur in recent elections:
(1) Poll workers provide voters with the wrong-precinct ballots in the wrong location because poll workers incorrectly determine the voter’s precinct by misunderstanding the precinct location guide.
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(2) Poll workers provide voters with the wrong-precinct ballots in the wrong location even though they know voters are not assigned to that precinct or location because poll workers do not understand such ballots are rejected.
(3) Poll workers, under the misapprehension they are simply helping people to vote, distribute wrong-precinct ballots to all voters without attempting to locate their correct precinct because they do not understand such ballots are rejected.
(4) Poll workers misdirect voters to cast wrong-precinct ballots in the wrong location as a result of incorrect direction from county boards.
(SEIU Dkt. 84 at 14) These poll-worker errors are the same as those that resulted in “right location, wrong precinct” ballots being cast and rejected; the errors occur regardless of whether a voter arrives at the correct or incorrect polling location. Thus, the burden on voters imposed by Ohio’s disqualification of “wrong location, wrong precinct” provisional ballots caused by pollworker error is identical to the burden imposed by the disqualification of “right location, wrong precinct” provisional ballots caused by poll-worker error. The Sixth Circuit affirmed that burden to be an unconstitutional burden on the right to vote properly remedied by an injunction directing the Secretary of State to count “right location, wrong precinct” ballots caused by poll-worker error. NEOCH, 2012 WL 4829033 at *15.
Defendants contend that “the requirement to vote in the right location is not a severe burden.” This Court agrees. If it were a severe burden, this Court would have to apply strict scrutiny to the challenged law. That is of no import, however, as the Court finds Ohio’s disqualification of “wrong location, wrong precinct” ballots is a substantial burden on the right to vote which is subject to the Anderson/Burdick test, as was the disqualification of “right location, wrong precinct” ballots. “Wrong location, wrong precinct” ballot disqualifications are, in one sense, still more troubling as there have been numerous instances in which poll workers have directed voters to incorrect polling locations, even when voters originally arrived at the correct
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location.3 Defendants’ rebuttal that there are multiple methods for voters to determine their
polling location and precinct is unpersuasive because, as the Sixth Circuit stated, the law
“effectively requires voters to have greater knowledge of their precinct, precinct ballot, and
polling place than poll workers.” NEOCH, WL 4829033 at *11 (emphasis added). Furthermore,
though Defendants’ brief suggests voters bear the responsibility of finding the correct polling
location, the Sixth Circuit held only last year that:
Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair.
Hunter I, 635 F.3d at 243 (emphasis added). The Sixth Circuit did not deem it reasonable that an
individual voter should be better able to navigate Ohio’s labyrinthine voting system than a
trained poll worker, and neither does this Court.
This Court, therefore, finds substantial the burden imposed on a citizen’s right to vote by
automatically disqualifying a “wrong location, wrong precinct” provisional ballot where a poll
worker caused the error. The State attempts to overcome the weight of the burden on the right to
vote by relying, as it did in its previous appeal, on its interest in “maintaining a precinct-based
voting system.” (Dkt. 87 at 9) The Sixth Circuit has recognized the State’s legitimate interest in
precinct-based voting. Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 568-69
3 See, e.g., SEIU Dkt. 12 ¶54 & 12-43 at 2 (Cuyahoga 2011 Incident Reports) (“I must inform you of the many (at least 40 voters) who were misguided and directed to vote at our station. Most of them informed me that they were sent by [a poll worker at another precinct] in error. Some of the voters claimed they were sent to as many as (3) different locations – by mistake.”); SEIU Dkt. 12 ¶54 & 12-45 at 10 (Franklin County 2011 Incident Reports) (“Polling Location sent them to another location 2 times.”); SEIU Dkt. 12 ¶54 & 12-41 at 12 (Clermont 2010 Incident Reports) (“B of E employees sent a handicapped [provisional voter] to New Richmond when they belonged here . . . The difficulties of wandering around in the wrong place are amplified when in a wheelchair.”); SEIU Dkt. 11 ¶5a &11-3 at 2 (Lucas County 2008 Incident Reports) (Voter “went to East Toledo Family Center where [she] voted in primary. There I was told to come to East Side Central . . . they told her . . . to go back to East Toledo Family Center – that the people there were ‘reading the book’ wrong.”).
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(6th Cir. 2004). As this Court found previously, however, “[t]he relevance of Sandusky to the Plaintiffs’ challenges to Ohio law . . . is limited. Sandusky was decided before Ohio instituted its amended Voter ID requirements in 2006 . . . that case did not address the constitutionality of the precinct eligibility requirement as applied to provisional ballots cast in the wrong precinct as a result of poll-worker error.” SEIU Local 1, ___ F.Supp.2d ___ 2012 WL 3643064 at *19.
The State argues that its interest in precinct-based voting would be imperiled by Plaintiffs’ proposed injunction because it is a “vote anywhere” remedy that would result in chaos. That argument mischaracterizes the requested relief and is incorrect. Plaintiffs’ Motion in no way requests a “‘vote anywhere’ injunction in each Ohio county.” A provisional ballot cast in the “wrong location, wrong precinct,” as with a provisional ballot cast in the “right location, wrong precinct,” will only be counted if caused by poll-worker error. If a voter attempts to cast her ballot at the wrong polling location, her ballot will not be counted unless the poll worker fails to perform her legal duty to inform the voter of: (1) her correct polling location and precinct; and (2) that her ballot will not be counted unless she casts it at her correct precinct. After receiving this information, if the voter insists on casting a ballot at the wrong location and in the wrong precinct, it will not be counted. Voters cannot vote anywhere. Voters can only vote in the correct precinct. Only if poll workers deny a voter her constitutional rights will her provisional ballot in the wrong precinct be counted. If poll workers obey the law, not a single vote cast in the wrong precinct will be counted in the November 6, 2012 election.
The State concedes that when a voter arrives in the wrong precinct, “[poll workers] must instruct the voter properly about travelling to the right place.” (SEIU Dkt. 87 at 8) Therefore, the only substantive dispute the State has with Plaintiffs’ proposed injunction is that it believes poll workers should not be required to “stop to record” their proper instructions to the wayward
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voter. Regrettably, Plaintiffs’ evidence shows that under the current system, poll workers simply are not giving voters the proper instructions. (Dkt. 84 at fn. 4) The many recorded incidents of poll workers giving voters incorrect instructions demonstrate that there is no way to determine whether poll-worker error caused a provisional ballot to be cast in the wrong location without a written affirmation that poll workers have directed voters to the correct polling location. The State need not allow voters to vote anywhere but their own precinct, but it is reasonable that the State informs voters of that fact, and where they can legally vote, before disenfranchising them.
Significantly, expanding the scope of the current injunction to also encompass “wrong location, wrong precinct ballots” imposes minimal additional burden on the State. In response to this Court’s previous grant of a preliminary injunction regarding “right location, wrong precinct” ballots, the Secretary of State issued “Form No. 12-D” to the Boards of Election in September 2012. Form No. 12-D instructs poll workers to “[c]omplete this form whenever a voter’s name does not appear in the signature poll book or poll list, the voter is in the wrong precinct of the correct multiple-precinct polling place and the voter insists on casting a provisional ballot in the wrong precinct.” Oddly and, perhaps, confusingly, however, “Step 3” instructs the poll worker to “[w]rite the name and address of the voter’s correct polling place below, if different from where you are now.” If these forms are only to be used when the voter arrives at the correct multiple-precinct polling location, “Step 3” is superfluous. As such, the Secretary of State has already produced a form which poll workers can use to satisfy the conditions of the injunction Plaintiffs seek here. In fact, the same form can be used for “right location, wrong precinct” voters and “wrong location, wrong precinct” voters. The only change needed would be to replace the phrase “the voter is in the wrong precinct of the correct multiple-precinct polling place” with “the voter is in the wrong precinct or incorrect polling place,” or words to that effect.
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The State admitted at oral argument that the burden analysis of “wrong location, wrong precinct” disqualifications is essentially the same as that of “right location, wrong precinct” disqualifications, but contended the timing of this request for an injunction jeopardizes the public interest in orderly elections in a way the previous request did not.
Although the Court has considered and is empathetic to Defendants’ concern that October is “too late to change election rules, as a matter of principle and practicality,” that consideration does not outweigh the burden of denying the right to vote to thousands of Ohioans based on pollworker error, which is state action. (Dkt. 87 at 6) In the digital age, the actual changes required of the State in expanding the existing preliminary injunction to include “wrong location, wrong precinct” provisional voters are minimal. It is also worth noting that this Court twice expedited the litigation on this Motion, once of its own accord and then again on Defendants’ motion, in order to facilitate the State’s implementation of the election laws. The burden of re-drafting election materials and re-training of poll workers, though not negligible, is minor and does not justify widespread voter disenfranchisement.
Since the proposed injunction would have practical effects on the conduct of the election in Ohio’s precinct-based voting system, it is worth considering what those effects will be. In Sandusky the Sixth Circuit identified five advantages of Ohio’s precinct system, known as “Sandusky factors:”
(1) it [the precinct system] caps the number of voters attempting to vote in the same place on election day; (2) it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies; (3) it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing;
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(4) it makes it easier for election officials to monitor votes and prevent election fraud; and (5) it generally puts polling places in closer proximity to voter residences. Sandusky, 387 F.3d at 568-9. This Court explained, in granting Plaintiffs’ previous motion for an injunction regarding “right location, wrong precinct” ballots, that the State’s showing under these factors did not outweigh the substantial burden on the right to vote. The same analysis applies here with one difference; the injunction Plaintiffs seek here would apply to provisional voters at the wrong location as well as the wrong precinct. Defendants note that “Ohio caps the number of voters attempting to vote in the same place on Election Day.” (Dkt. 87 at 12) The Court recognizes there are many good reasons to do that, but, as explained above, the proposed injunction is not “a decision to allow voters to vote anywhere in the county,” which “would be unmanageable due to lines, staffing, and other resource issues.” (Dkt. 87 at 13) The State’s assertion to the contrary is specious. Voters can only vote at their correct locations and in their correct precincts.4 A ballot in the wrong location would only be counted if the poll worker failed to: (1) inform the voter that a vote cast there would not be counted; and (2) direct the voter to her correct polling place. Furthermore, there is no evidence in the record of any voter knowingly attempting to vote at a more conveniently located polling place, rather than her assigned location, whereas there is a great deal of evidence that poll workers have directed voters to the wrong polling place. This leads to the State’s second misdirected argument: that “[w]ith a busy Election Day [it] would be nearly impossible for pollworkers to document every conversation with a voter about that voter’s proper location.” (Dkt. 87 at 13) The injunction would only require a poll-
4 At oral argument Defendants raised the prospect of interested parties “gaming the system” by gathering van-loads of voters and taking them to the wrong location in order to overwhelm poll workers required to redirect them. This unlikely hypothetical pales in comparison to the documented incidents of poll workers actively directing or passively allowing voters to cast ballots in the wrong location.
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worker to document a conversation with a voter who arrived at the wrong location if, in the words of Form No. 12-D, “the voter refused to travel to the correct precinct and insists on voting a wrong-precinct provisional ballot in this precinct.” For this to occur, a poll worker would have first directed the voter to the correct polling location and informed the voter that a ballot cast in that location and precinct would not be counted. This scenario is unlikely to occur. Logic dictates that the vast majority of voters, upon being told they are in the wrong location and their vote will not be counted, will either go to the correct polling place or choose not to vote. In either scenario, a poll worker need not fill-out the 12-D Form, or take any action to record the conversation.
The Court has now, as it must, “weigh[ed] the burden on voters against the state’s asserted justifications and make the hard judgment that our adversary system demands.” Obama for America v. Husted, ___ F.3d ___ 2012 WL 4753397 (6th Cir. October 5, 2012). It is clear that, under the law of the Sixth Circuit, the State of Ohio’s systemic disqualification of “wrong location, wrong precinct ballots” cast owing to poll-worker error is a substantial burden on the right to vote. Although the State has legitimate interests in maintaining a precinct-based voting system, these interests do not actually conflict with the injunction Plaintiffs’ seek. Nor do these interests outweigh, under the Burdick/Anderson test, the harm caused by disenfranchising thousands of voters whose “only error was relying on poll-worker instructions.” Hunter I, 635 F.3d at 243. The Plaintiffs have satisfied their burden to show a likelihood of success on the merits.
2. Remaining Preliminary Injunction Factors Given that in an election case the four preliminary injunction factors are “interrelated concerns” to “be balanced together,” neither party argued the three remaining factors at this stage
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of the proceedings. Nevertheless, the Court considers all four factors and finds that when balancing all four, Plaintiffs have still satisfied their burden for the grant of an injunction. Defendants do not contest that denial of the right to vote constitutes irreparable harm. At the same time, for the same reasons stated by the Sixth Circuit in the NEOCH appeal granting this injunction harms neither the State, nor the public interest. It merely extends the injunction regarding “right location, wrong precinct” provisional ballots to “wrong location, wrong precinct” provisional ballots. Furthermore, as affirmed by the Sixth Circuit, the injunction which already issued from this Court is narrowly tailored to address the harm to Plaintiffs.
3. Conclusion and Appropriate Injunctive Relief Plaintiffs have demonstrated they are likely to prevail on the argument that the disqualification of “wrong location, wrong precinct ballots” caused by poll-worker error is both a violation of equal protection and a denial of due process. Consideration of all four factors necessary to grant a preliminary injunction, including the public interest in orderly elections and the irreparability of the State’s denial of the right to vote, demonstrates the balance weighs definitively in favor of granting the injunction Plaintiffs seek. Therefore, Plaintiffs’ Motion for an Injunction with Respect to Wrong-Location Provisional Ballots is GRANTED. The Court determines the following preliminary injunction on the Board’s enforcement of Ohio law to be the appropriate relief, least restrictive upon the State, adequate to ensure the protection of Plaintiffs’ constitutional rights in the November 6, 2012 election. It is hereby ORDERED that, within five business days of this Order, Defendant Secretary of State shall issue a Directive requiring that Ohio’s county boards of election shall not reject any provisional ballot cast by a lawfully-registered voter in the November 6, 2012 election for the following reason:
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1. The voter cast his or her provisional ballot in the wrong polling place, unless the poll worker who processed the voter’s provisional ballot has:
a) determined the voter’s correct polling place and precinct and; b) directed the voter to the correct polling place and precinct; c) informed the voter that casting a provisional ballot in the wrong polling place would result in all votes on the ballot being rejected under Ohio law; and d) the voter refused to travel to the correct polling place and insisted on voting the invalid ballot; and the Board of Elections has verified that the polling place and precinct to which the poll worker directed the voter was the correct polling place and precinct. If the County Board cannot verify the poll worker directed the voter to the correct polling place and precinct, the votes cast on the provisional ballot must be counted in all races and for all issues for which the voter would have been eligible to vote if he or she had cast the ballot in the correct precinct. IT IS SO ORDERED.
IV. CROSS MOTIONS TO MODIFY CONSENT DECREE A. Law and Analysis
Following the Sixth Circuit’s remand of this Court’s grant of the injunction sought by Plaintiffs with regard to the “deficient affirmation” ballots, Plaintiffs and Defendants each moved to modify the Consent Decree and opposed the motions of their counterparts. Since both motions seek to modify the Consent Decree to which each party voluntarily agreed, the same statement of law applies to both motions.
The Consent Decree applies only to the counting of provisional ballots cast by voters who identify themselves with the final four digits of their social security numbers (“SSN-4 voters”).
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The Sixth Circuit has now held that the section III(5)(b)(vi) of the Consent Decree, which orders that deficient affirmation ballots which are the result of poll-worker error be counted, constitutes “preferential treatment of SSN-4 provisional ballots.” Thus, the Sixth Circuit “join[ed] the parties and the district court in finding that the consent decree’s different treatment of similarly situated provisional ballots likely violates equal protection.” NEOCH v. Husted, ___ F.3d ___, 2012 WL 4829033 at *14 (6th Cir. October 11, 2012). Given that holding, the issue before this Court is not whether the differential treatment of “deficient affirmation” ballots under the Consent Decree is an equal protection violation, but rather the proper remedy for that violation. The Plaintiffs contend that this Court should expand the protection given to SSN-4 voters by Section III(5)(b)(vi) and issue a statewide injunction directing the State to count all provisional ballots with deficient affirmations “caused by poll worker error,” regardless of the form of identification provided. Defendants, in contrast, request the Court excise that section of the Consent Decree such that the State is not required to count provisional ballots with deficient affirmations.
Federal Rule of Civil Procedure 60(b)(5) allows the Court to “relieve a party . . . from a final judgment” if “applying it prospectively is no longer equitable” or for “any other reason that justifies relief.” Usually, a movant seeking to modify a consent decree bears the burden to show the proposed modification is justified. NEOCH, 2012 WL 4829033 at *18-9 (citing Fed. R. Civ. P. Rule 60(b)(5)); Northridge Church 647 F.3d at 613-14. In the instant case, the Sixth Circuit has relieved both parties of their burdens in holding that the Consent Decree as currently drafted violates equal protection. On remand, the Sixth Circuit left no doubt that this Court must modify the Consent Decree. The Court now decides whether to grant Plaintiffs’ or Defendants’ proposed modification.
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The relief Plaintiffs’ seek by moving to modify the Consent Decree, however, is precisely that which the Sixth Circuit explicitly denied them in the NEOCH decision. Based on the same arguments Plaintiffs make here, this Court previously granted the SEIU Plaintiffs an injunction which, in relevant part, stated:
Ohio’s county boards of elections may not reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election for the [] reason[] [that] [t]he provisional ballot envelope does not contain a voter signature . . . and/or the provisional ballot envelope does not contain the voter’s full printed name . . . and/or the voter did not sign and/or print the voter’s name in the correct place(s) on the ballot envelope . . . SEIU Local 1, 2012 WL 3643064 at *30. The Sixth Circuit vacated that portion of the injunction, simultaneously holding that in the evidentiary record to date, “all of the identified deficiencies arise from voters’ failure to follow the form’s rather simple instructions,” and not poll-worker error. NEOCH, 2012 WL 4829033 at *15 (emphasis added). Plaintiffs are correct that the Sixth Circuit did not hold that deficient affirmations could never be the result of pollworker error. The Sixth Circuit did hold, however, that “the spotty record and Ohio law do not support the district court’s presumption of poll-worker error, we find no likely constitutional violation.” Id. Since the Sixth Circuit has now held the instances of deficient affirmations supported by evidence are actually the result of voter error, not poll-worker error, it is not unconstitutional for the State to disqualify those ballots. This Court’s power to issue an injunction against the State is predicated on the State denying constitutional rights to citizens. Here, the Sixth Circuit held that, on the record as it stands, there is no denial of constitutional rights when the State disqualifies a provisional ballot because the voter’s affirmation is deficient. Thus, this Court has no power to enjoin the State with regard to the deficient affirmation ballots. Plaintiffs argued at the October 24, 2012 hearing that they only seek an injunction to order the counting of ballots with deficient affirmation due to “poll-worker error.” The problem
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for Plaintiffs is that they have adduced no evidence that deficient affirmations are ever the result
of poll-worker error. The only proposed examples of poll-worker error resulting in a deficient
affirmation in either the NEOCH or SEIU case the Sixth Circuit explicitly held to be unsupported
by evidence. Put another way, without something more in the way of evidence of poll-worker
error, there is no ipso facto violation of equal protection or due process when the State
disqualifies provisional ballots suffering from those defects. 5
Furthermore, the prospective relief Plaintiffs seek here is an extraordinary remedy, and
even if the request is couched as a modification of the Consent Decree, this Court cannot grant
such broad relief without any evidence to support it. The Consent Decree ordered the State, in
Section III(5)(b), to count provisional ballots if:
vi. The voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll worker error; or
vii. The poll worker did not complete or properly complete and/or sign the provisional ballot applica tion witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statues.
Critically, Section III(5)(b)(vii) remains in the Consent Decree to ensure no provisional ballot is
disqualified when a poll worker fails to complete her designated portion of the envelope and the
State does not dispute that. SEIU Dkt. 28 at 17. Directive 2012-01, which Secretary Husted
5 The Court observes that the Sixth Circuit’s holding in the NEOCH appeal appears to conflict with its statement in Hunter, approvingly quoted in another part of the NEOCH appeal, that “[t]o disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair.” While this Court recognizes the Sixth Circuit made that statement in the context of poll workers directing, or failing to direct, voters to the proper location and precinct, it is equally applicable to the issue of deficient affirmations. The State has created the instrumentalities of voting, such as the provisional ballot. These forms have, at times, even confused these litigants and this Court, so they are certain to confuse some voters. It is unreasonable to believe most voters who produce ballots with deficient affirmations purposefully affirm their provisional ballots in a deficient manner. Citizens who take the time to vote are unlikely to act affirmatively in order to disqualify their vote. By analogy to the rule of drafting in contract law, the Court suggests ambiguities in the form should be construed against the drafter, here, the State, not the well-intentioned voter. When the State disqualifies a deficient affirmation ballot, it shifts the rule of drafting to burden the non-drafting party, the voter. That state action to deprive the franchise of a citizen attempting to cast a ballot in good faith also raises serious substantive due process concerns. It would seem a simple matter for a poll worker to glance over the provisional ballot to ensure the voter has signed and written in the correct places; that is what the Hunter logic suggests to this Court. That was not the logic adopted by the NEOCH panel, and thus, this Court follows the NEOCH panel in its departure from Hunter I in this case.
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issued on January 4, 2012, expressly instructed county boards of election that provisional ballots are not to be rejected if the poll worker fails to fill out his or her portion of the provisional ballot envelope. As to Section III(5)(b)(vi), the Sixth Circuit’s NEOCH decision renders it irrelevant.
B. Conclusion Both parties concur that the Consent Decree as it currently reads cannot stand in light of the Sixth Circuit’s October 11, 2012 Decision. To treat deficient affirmation ballots differently for SSN-4 voters would deny equal protection to those provisional voters using alternative forms of identification. The sole issue is whether to excise the deficient affirmation clause from the Consent Decree or, in the alternative, to require the State to count all provisional ballots with deficient affirmations. This Court’s power to issue an injunction against the State is predicated on the State denying constitutional rights to citizens. The Sixth Circuit held that on the record as it stands there is no denial of constitutional rights when the State disqualifies a provisional ballot because the voter’s affirmation is deficient. In the proceedings in this Court, Plaintiffs have adduced no further evidence to the contrary. Thus, this Court has no power to enjoin the State with regard to the deficient affirmation ballots and the appropriate remedy is to excise Section III(5)(b)(vi) of the Consent Decree.6 The Court hereby GRANTS Defendants’ Motion to Modify the April 19, 2010 Consent Decree and DENIES Plaintiffs’ Motion to Modify the April 19, 2010 Consent Decree. As a
6 It is worth reiterating that the Sixth Circuit did not hold a deficient affirmation could never be the result of pollworker error, nor does the Court find that here. Indeed, there are numerous scenarios the Court can imagine in which poll-worker error might result in a deficient affirmation. For instance, a poll-worker might mistakenly instruct a voter to sign in the wrong place, or tell her it is not necessary to both sign and print her name. At this stage of the litigation, however, there is no evidence of such events ever having occurred. In the absence of evidence, it is not appropriate to grant prospective relief. If evidence comes to light in the future, however, that pollworkers have caused deficient affirmations, it would be appropriate for this Court to revisit the issue.
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result, Section III(5)(b)(vi) of the Consent Decree relating to “deficient affirmation” provisional

ballots is, hereby, VACATED.

IT IS SO ORDERED.

Algenon

s/Algenon L. Marbley L. Marbley
United States District Judge

Dated: October 26, 2012

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 Case: 2:06-cv-00896-ALM-TPK Doc #: 346 Filed: 11/01/12 Page: 1 of 11 PAGEID #: 12588

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE NORTHEAST OHIO FOR THE HOMELESS, et al.,
Plaintiffs,

COALITION

CASE NO. 2:06-cv-896 JUDGE ALGENON MARBLEY

vs.

JON HUSTED, in his official capacity as Secretary of State of Ohio, et al.,

Defendants.

Plaintiffs’ Emergency Motion for Clarification of October 26, 2012 Order Regarding Scope of Section III(5)(b)(vii) of the Consent Decree
Plaintiffs respectfully move on an emergency basis for the Court to clarify its October 24, 2012 Order and October 26, 2012 Opinion and Order excising Section III(5)(b)(vi) of the Consent Decree relating to certain “deficient affirmation” provisional ballots. Specifically, Plaintiffs request the Court clarify that incomplete or improperly completed provisional-ballot forms that are deficient because certain form-of-identification information that poll workers are statutorily required to provide is missing or incorrect remain protected by Section III(5)(b)(vii) of the Decree, which protects voters against poll workers’ abdication of their responsibility to complete or properly complete the provisional-ballot form.
This immediate clarification is important because “Step 2” of the Provisional Ballot Affirmation Form designed by the Secretary (Form 12-B), which is currently being used throughout Ohio, purports to require the voter, not the poll worker, to write down the type of identification proffered by the voter—even though that obligation unambiguously rests squarely with the poll worker under the Ohio governing statutes. See Ohio Rev. Code §§ 3505.181(B)(6) & (7) and
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3505.182. Plaintiffs sought to confirm their understanding that provisional ballots with incomplete or incorrectly completed identification information are protected under Section III(5)(b)(vii) of the Decree with counsel for the Secretary of State. See Chandra Decl., Ex. 1. At the time of the filing of this motion, however, even after leaving a follow-up message, Plaintiffs had not received the requested confirmation. Chandra Decl. ¶ 4. Accordingly, to avoid any confusion in the county boards’ counting of provisional ballots under the Decree, Plaintiffs respectfully request that this Court issue a clarifying order confirming that any incomplete or incorrect completion of Step 2 of the Provisional Ballot Affirmation Form is poll-worker error that continues to be covered by the protections of Section III(5)(b)(vii) of the Decree.
Plaintiffs also respectfully request the Court set a briefing schedule that enables this issue to be fully resolved, and any resulting instruction or directive communicated to the county boards of elections, before the boards begin the process counting provisional ballots cast on Election Day, November 6, 2012, at public meetings held between November 17 and 21, 2012.
Memorandum of Law in Support of Plaintiffs’ Emergency Motion for Clarification of October 26, 2012 Opinion and Order Regarding Scope of Section III(5)(b)(vii) of the
Consent Decree
INTRODUCTION Plaintiffs respectfully request this Court clarify its October 24, 2012 Order and October 26, 2012 Opinion and Order to confirm the scope of Section III(5)(b)(vii) of the Consent Decree and, specifically, to confirm that a provisional-ballot form that has incomplete or improperly completed information regarding the type of identification proffered by a voter should be counted pursuant to this section of the decree because, as acknowledged by Defendants’ counsel at oral argument and clearly established in Ohio law, it is the poll worker’s obligation—not the voter’s—to record such
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information. This clarification is necessary to ensure that the Secretary and the boards of elections have clear and uniform direction regarding the counting of provisional ballots in the upcoming election.
BACKGROUND I. This Court’s Order regarding the Decree’s protections for deficient provisional-ballot
affirmations. In this Court’s October 26, 2012 Opinion and Order, the Court explained that the Decree, in Section III(5)(b), included two provisions regarding incomplete provisional-ballot affirmations. They are as follows:
vi. The voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll worker error;
vii. The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statute.
The Court ordered that Section III(5)(b)(vi) be removed from the Decree. It noted, however, that “[c]ritically, Section III(5)(b)(vii) remains in the Consent Decree to ensure no provisional ballot is disqualified when a poll worker fails to complete her designated portion of the envelope and the State does not dispute that. . . . Directive 2012-01, which Secretary Husted issued on January 4, 2012, expressly instructed county boards of election that provisional ballots are not to be rejected if the poll worker fails to fill out his or her portion of the provisional ballot envelope.” Oct. 26, 2012 Op. and Order, Slip. Op. at 20-21 (internal citation omitted).
The instant motion seeks clarification of the scope of Section III(5)(b)(vii) of the Decree as it relates to ballot affirmation forms that have incomplete or incorrectly completed information regarding the type of identification proffered by the voter to poll workers.
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II. Ohio law requires election officials—and not voters—to record the type of identification a voter provides and to indicate whether the voter needs to provide any additional information to the board of elections. Ohio Rev. Code § 3505.181(B)(6) provides that, once a voter casting a provisional ballot
proffers identification, “the appropriate local election official shall record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot . . . .” (Emphasis added.) Section 3505.181(B)(7) further provides that when a voter casts a provisional ballot, “the election official shall indicate, on the provisional ballot verification statement . . ., that the individual is required to provide additional information to the board of elections . . . .” (Emphasis added.)
The Ohio Revised Code also sets forth a provisional-ballot-affirmation form to be printed on provisional ballot envelopes, which includes a “Verification Statement” to be completed and signed by the poll worker. Ohio Rev. Code § 3505.182. This Verification Statement confirms that it is the poll worker—not the voter—who is required to record the type of identification (if any) a voter proffers. See id. (Verification Statement listing nine different categories of identification provided by voter, with instructions that “election official must check the following true statement concerning identification provided by the provisional voter, if any”) (emphasis added). It further confirms that it is the poll worker’s duty, not the voter’s, to specify what additional identification or information, if any, the voter is required to provide to the elections board within the ensuing ten days. See id. (Verification Statement providing: “If applicable, the election official must check the following true statement concerning additional information needed to determine the eligibility of the provisional voter.”) (emphasis added).
By imposing such affirmative-verification duties on election officials, Ohio law ensures that any questions regarding a voter’s identification are resolved on the spot or, consistent with due
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process, the voter is informed that he or she needs to provide additional information to the board of elections. This protects the integrity of the voting process, and provides a reasonable opportunity to resolve deficiencies. III. The Secretary’s redesigned provisional-ballot-affirmation form (Form 12-B) purports
to impose on voters the poll worker’s duty to verify the type of identification proffered. Despite the fact that the Ohio Revised Code provides a statutory provisional-ballotaffirmation form, Ohio Rev. Code § 3505.182, the Secretary redesigned and prescribed as mandatory “Form No. 12-B,” entitled “Provisional Ballot Affirmation” (Chandra Decl., Ex. 2.) This form is divided into two sections: one that the voter is requested to complete (labeled “MANDATORY INFORMATION REQUIRED FOR YOUR BALLOT TO COUNT”), and one for the election official to complete. Id. The section for the voter to complete is broken into 3 steps. “Step 1” requires the provisional voter to print his or her full name. Id. And “Step 3” asks the voter to sign the sworn statement that he or she is eligible to vote in the election. Id. Both of these steps are consistent with information provisional voters are required to provide under Ohio Rev. Code §§ 3505.181(B)(2) and 3505.182. “Step 2” covers all forms of identification a voter may proffer to a poll worker. It requires the voter to provide the last four digits of his or her social-security number; to write his or her full eight-digit Ohio driver’s license number; or to “show . . . your precinct election official one of the forms of identification listed below” and to check a box indicating which one was shown, or to “complete Form 10-T” (with no explanation of what Form 10-T is). Id. It then identifies various types of potential documentary identification. Step 2 of the Secretary’s Form states that if a provisional voter fails either to show one of the listed forms of identification or to complete Form 10-T, “the board of elections will conclude that you did NOT show ID to your precinct election
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official and you must show ID at the board of elections during the 10 days after the election for

your vote to be eligible to be counted.” Id.

The poll worker’s portion of Form 12-B contains no place for the poll worker to record

information regarding identification proffered by the voter; only Step 2 of the voter’s section of the

form provides space to record this information. Ohio law, however, does not require voters to

record any of this information in order to have their ballot counted. Instead, as discussed above, it is

the poll worker’s duty to record the type of identification proffered or to record the last four digits

of the voter’s Social Security (O.R.C. §§3505.181(B)(6), 3505.182), and to inform voter if he or she needs to provide additional information to the county board. Id. §§ 3505.181(B)(7), 3505.182.1

IV. Plaintiffs sought confirmation from the Secretary of State regarding the counting of provisional ballots with incomplete or incorrectly completed identification information in “Step 2” of the provisional-ballot-affirmation form (Form 12-B)

At the October 24 hearing, counsel for Defendants correctly represented to the Court that

recording information regarding a voter’s proffered identification is the poll worker’s responsibility

and falls within Section III(5)(b)(vii) of the Decree:

Mr. Epstein:

[Plaintiffs’ counsel] suggested to you, for example, that there might still be poll worker error because there is an obligation to record on the form the mode of identification used, and, if that's missing, that’s a defect in the ballot. But that scenario is not covered by the provision we’re talking about because, as they say, the obligation to write down the identifying information is imposed upon the poll worker, not upon the voter. In Section 7 it says that we won't invalidate ballots based upon the poll worker’s failure to write something down. So we’re not talking about that scenario. That scenario, in fact, doesn’t even deal with an

1 By failing to provide a space for the poll worker to record that he or she has indeed checked the identification provided and informed the voter whether he or she needs to provide additional information to the county board, Form 12-B effectively eliminates the paper trail that would allow for an assessment of whether the poll workers fulfilled their statutory obligation to record the identification information. For example, if a voter has not written the last four digits of his or her Social Security number on the form, but has furnished another form of identification to the poll worker, Form 12-B provides no way for a poll worker to record that such identification was furnished, although the statute requires the poll worker to do so.

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affirmation that is deficient because it is lacking a printed name or a signature, which is all that [Consent Decree Section III(5)(b)(vi)] is talking about.2 The poll worker’s obligation to record this information to which Defendants’ counsel referred at argument is of course that set forth in Ohio Rev. Code §§ 3505.181(B)(6) & (7) and 3505.182. Based on the representation of counsel and the clear statutory duty of poll workers to record voters’ Social Security number, driver’s license number, or other form of identification proffered, Plaintiffs’ counsel wrote to the Secretary’s attorneys and requested confirmation that the Secretary would, under Section III(5)(b)(vii) of the Decree and Directive 12-01, instruct county boards of elections that provisional ballots may not be rejected on the grounds that “Step 2” of the Provisional Ballot Affirmation Form is incomplete or incorrectly completed. Chandra Decl., Ex. A. Plaintiffs asked the Secretary’s counsel to respond by noon on October 29, 2012. As of the time of the filing of this motion, Plaintiffs’ counsel had not received a response from the Secretary of State. Chandra Decl. ¶¶ 3-4.
ARGUMENT Plaintiffs seek clarification of this Court’s October 26, 2012 Order and Opinion and the scope of the Consent Decree’s remaining protection against disqualification of provisional ballots when a poll worker does not complete or properly complete the provisional-ballot-affirmation form. Specifically, Plaintiffs request that the Court clarify that, consistent with Ohio law and the representation of Defendants’ counsel, Section III(5)(b)(vii) of the Decree prevents the disqualification of a provisional ballot on the basis that information regarding the type of identification proffered by a voter in Step 2 of Form 12-B is incomplete or incorrectly completed, because it is the poll worker’s, not the voter’s, duty to record such information.
2 Oct. 24 Hrng. Tr. at 50:5-50:20 (emphasis added); see also id. at 60:3-11.
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Based on Ohio Rev. Code §§ 3505.181(B)(6)-(7) and 3505.182, and Defendants’ acknowledgement that “the obligation to write down the identifying information is imposed upon the poll worker” and that Section III(5)(b)(vii) should apply when a “poll worker fails to write something down,” it is clear the Decree must be construed to prevent the disqualification of votes cast in provisional-ballot forms with incomplete or incorrectly completed sections regarding the identification proffered—regardless of the fact that the Secretary has designed a form that purports erroneously to place that obligation on the voter.
Nothing in the Sixth Circuit’s decision in NEOCH v. Husted, __ F.3d __, 2012 WL 4829033 (6th Cir. Oct. 11, 2012), is counter to the clarification Plaintiffs request. The Sixth Circuit held that a voter’s failure to print his or her name or to sign his or her ballot form—i.e., completion of Steps 1 and 3 of the uniform Provisional Ballot Affirmation Form—did not constitute poll-worker error because “Ohio law does not task poll-workers with quality control of ballot affirmations.” Id. at *16. By contrast, the court explained, election officials are required to “‘record the type of identification provided, the social-security-number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot.’” Id. (quoting Ohio Rev. Code § 3505.181(B)(6)). Thus, as the Secretary’s counsel acknowledged, when an election official fails to record this information that they are statutorily mandated to record, ballots that consequently are incomplete or incorrectly completed fall within Decree Section III(5)(b)(vii)’s protections.
Clarification is necessary in advance of county boards’ counting of provisional ballots cast in the upcoming election because county boards that are analyzing provisional ballots for deficiencies
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may not realize that a failure to complete or incorrect completion of “Step 2” falls within the protection of Section III(5)(b)(vii) of the Decree, unless the Secretary so instructs them.3
In the District Court’s October 26, 2012 Opinion and Order, the Court explained that, like Section III(5)(b)(vii) of the Decree, the Secretary’s Directive 12-01 also guards against rejection of provisional ballots when a poll worker fails to complete or incorrectly completes the ballotaffirmation form. Oct. 26, 2012 Op. & Order at 20-21. Indeed, Directive 12-01, which applies to all provisional voters, not just Social-Security-number voters, currently provides only for disqualification of ballots that are missing printed names or signatures, and not for disqualification of ballots with incomplete or incorrectly completed information regarding identification. Thus, there should be no concern with any potential disparate treatment of consent decree and non-consent decree voters, as Directive 2012-01 is consistent with the requested clarified scope of Section III(5)(b)(vii) of the Decree.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court clarify that Section III(5)(b)(vii) of the Consent Decree requires the Secretary and the county boards of elections to count otherwise valid votes cast by lawfully registered voters in provisional-ballot envelopes where “Step 2” of the Secretary’s Form 12-B is incomplete or incorrectly completed and, further, order the Secretary to provide instructions on such clarification to the county boards of elections before the time boards must begin counting provisional ballots cast in the November 6, 2012 election.
3 Before the Court’s October 26, 2012 Order, voters voting provisionally on Election Day using the last four digits of their social-security numbers were protected both by Section III(5)(b)(vi) and Section III(5)(b)(vii) against having their votes discarded based on deficiencies in their ballot affirmation forms. Thus, that Form 12-B erroneously purports to shift the burden to record identification information to the voter posed less of a concern. With Section III(5)(b)(vi) no longer in place, however, clarification of the scope of Section III(5)(b)(vii) in light of Form 12-B is necessary.
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Dated: November 1, 2012

Respectfully submitted,

/s/ Subodh Chandra____________ By: Subodh Chandra

Caroline H. Gentry, Trial Attorney (0066138) Daniel B. Miller (0080767) PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 (937) 449-6748 / (937) 449-6820 Fax cgentry@porterwright.com dbmiller@porterwright.com

Michael J. Hunter (0018756) Cathrine J. Harshman (0079373) HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 (614) 442-5626 / (614) 442-5625 Fax mhunter@hcands.com charshman@hcands.com

and

and

Subodh Chandra (0069233) Ashlie Case Sletvold (0079477) THE CHANDRA LAW FIRM, LLC 1265 W. 6th Street, Suite 400 Cleveland, OH 44113-1326 (216) 578-1700 / (216) 578-1800 Fax Subodh.Chandra@ChandraLaw.com
Attorneys for Plaintiffs NEOCH and SEIU District 1199

Stephen P. Berzon (admitted pro hac vice) Stacey Leyton (admitted pro hac vice) Barbara Chisholm (admitted pro hac vice) Danielle Leonard (admitted pro hac vice) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 / (415) 362-8064 Fax sberzon@altber.com sleyton@altber.com bchisholm@altber.com dleonard@altber.com

Attorneys for Plaintiff SEIU District 1199

Donald J. McTigue, Trial Attorney (0022849) Mark A. McGinnis (0076275) MCTIGUE LAW GROUP 550 East Walnut Street Columbus, OH 43215 (614) 263-7000 / (614) 263-7078 Fax mctiguelaw@rrohio.com

Attorneys for Intervenor-Plaintiff Ohio Democratic Party

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Case: 2:06-cv-00896-ALM-TPK Doc #: 346 Filed: 11/01/12 Page: 11 of 11 PAGEID #: 12598 CERTIFICATE OF SERVICE
I certify that on November 1, 2012, my office filed the foregoing document using the Court’s online-filing system, which will send a copy of the foregoing to all counsel of record. /s/ Subodh Chandra One of the Attorneys for Plaintiffs NEOCH and SEIU
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 Case: 2:06-cv-00896-ALM-TPK Doc #: 349 Filed: 11/05/12 Page: 1 of 28 PAGEID #: 12629

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

vs.

:

:

JON HUSTED, in his official capacity as :

Secretary of State of Ohio,

:

:

Defendant

:

:

and

:

:

STATE OF OHIO

:

:

Intervenor-Defendant.

:

:

:

SERVICE EMPLOYEES

:

INTERNATIONAL UNION, LOCAL 1, et :

al.,

:

:

Plaintiffs

:

:

vs.

:

:

JON HUSTED, et al.,

:

:

:

Case Nos. 2:06-CV-896 and 2:12-CV-562
Judge Algenon Marbley
Magistrate Judge Terence P. Kemp
NEOCH PLAINTIFFS’ EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE; SEIU LOCAL 1 PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF LAW IN SUPPORT THEREOF

On the evening of Friday, November 2, 2012, Defendant Secretary of State Jon Husted issued Directive 2012-54, changing the rules under which provisional ballots in Ohio cast in Tuesday’s elections will be counted. This change, which goes beyond what was required to implement the orders of this Court and the Sixth Circuit in these related cases, violates Section III(5)(b)(vii) of the NEOCH Consent Decree as well as the Equal Protection and Due Process

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Clauses of the Fourteenth Amendment. Specifically, Directive 2012-54 now, for the first time, orders all county boards of elections to reject any provisional ballot where the voter has not completed the section of the provisional ballot affirmation form (Form 12-B) recording the voter identification provided to the poll worker, despite the fact that this responsibility is expressly “task[ed]” to the poll worker – not the voter. NEOCH v. Husted, __F.3d __, 2012 WL 4829033 at *16 (6th Cir. Oct. 11, 2012). This Directive is a 180-degree turn from the previous Directive governing the counting of provisional ballots (No. 2012-01), that, as this Court relied upon in its October 26, 2012 opinion and order, did not require these ballots’ rejection. 10/26/12 Order at 19-20. And it is also a 180-degree turnaround from the Secretary’s representation to this Court. 10/24/12 Tr. at 50:5-20. As the Sixth Circuit and this Court have recognized, and as the Secretary argued to this Court on October 24, 2012, the duty to record a voter’s identification information lies with the poll worker, not the voter. NEOCH v. Husted, __F.3d __, 2012 WL 4829033 at *16 (6th Cir. Oct. 11, 2012); 10/26/12 Order at 19-20; 10/24/12 Trans. at 50:5-20. To provide that a voter – not the poll worker – has the responsibility for recording identification information on a complicated form (in direct contravention of the applicable statute) and then to disqualify the ballot if the voter does so incorrectly, as the Secretary has now done, violates the parties’ understanding of the Consent Decree, Ohio law, and the Constitution. Plaintiffs have no choice, given the late hour of the Secretary’s change of position – directly contrary to his representations to this Court just days before – but to immediately move for emergency relief applicable to the provisional ballots cast in this election.
Prior to the issuance of Directive 2012-54, Plaintiffs in NEOCH v. Husted moved on an emergency basis for clarification of this Court’s October 26, 2012 Order and to confirm that Section III(5)(b)(vii) of the NEOCH Consent Decree protects against the disqualification of
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provisional ballots cast by SSN-4 voters that have incomplete or incorrectly completed voter identification information. NEOCH Dkt. 346 (filed Nov. 1, 2012). As explained in that motion, the NEOCH Plaintiffs were concerned that the Secretary would order county boards of elections to reject these ballots, despite the Secretary’s representation to the Court that Section III(5)(b)(vii) of the Decree prohibited such rejection. Plaintiffs’ concern was prompted by the Secretary’s adoption for this election of a Provisional Ballot Affirmation Form (Form 12-B) that wrongly purports to place on the voter, not the poll worker, the burden of recording the identification information. Id. at 8-9. Prior to filing the motion for clarification, the NEOCH Plaintiffs asked the Secretary to confirm that these ballots, consistent with his representations to this Court, would be counted, but never received any response to that request. Id. at 6-7; NEOCH Dkt. 346-1 ¶¶3-4.
Instead, confirming Plaintiffs’ fears, the Secretary has now – on the eve of the election – ordered county boards of elections to reject and not count any provisional ballot where the voter has incorrectly filled out or failed to fill out the section regarding identification proffered to the poll worker, even though this is information that poll workers, not voters, are statutorily required to complete. Tellingly, the Secretary issued Directive 2012-54 only after this Court removed the Consent Decree’s provision prohibiting disqualification of ballots based on a voter’s failure to complete the provisional ballot form when that failure is attributable to poll-worker error, and only after the Secretary’s counsel assured this Court that any concerns regarding incomplete identification information would implicate poll-worker responsibilities and thus would not fall under Section III(5)(b)(vii) of the Decree. The Secretary should be judicially estopped from changing course now.
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Directive 2012-54 conflicts with Section III(5)(b)(vii) of the Decree, which – properly construed – does not permit the disqualification of ballots on the basis that the identification information the poll worker is statutorily obligated to record is incomplete. The Directive also conflicts with the Sixth Circuit’s and this Court’s rulings that voters should not be disenfranchised as a result of a poll worker’s failure to perform his or her duties.
This Court’s October 26, 2012 decision on remand from the Sixth Circuit, which rejected the NEOCH Plaintiffs’ request for statewide relief with respect to incomplete ballot affirmations and instead granted Ohio’s motion to modify the consent decree to eliminate the voter-error provision, rested on the Court’s conclusion that, at that time, no ballots would be rejected because of poll-worker rather than voter error in completing affirmations. Relying on the Secretary’s representations, this Court stated that “critically,” the ballots that were incomplete because a poll worker failed to complete requisite information, such as those at issue here, would not be rejected under Consent Decree Section III(5)(b)(vii) and Directive 2012-01. 10/26/12 Order at 19. That is no longer true given the Secretary’s eleventh-hour new Directive.
In light of these factual developments, the NEOCH Plaintiffs respectfully move on an emergency basis for clarification of the Court’s October 26, 2012 Order, that under Section III(5)(b)(vii), provisional ballots may not be disqualified because the ballot form information regarding the identification proffered by the voter is incomplete, unless the board of elections first has determined that the voter failed to provide poll workers with the last four digits of his or her Social Security number or proffer other identification acceptable under Ohio law, and that the voter declined to complete a Form 10-T affirmation, and to modify the Consent Decree in NEOCH v. Husted to extend these protections to all provisional voters. The SEIU Local 1 Plaintiffs move for a preliminary injunction for the same relief, enjoining Directive 2012-54 to
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the extent it requires that provisional ballots be disqualified on the basis that the ballot form’s

information regarding the identification proffered by a voter is incomplete or incorrectly

completed, and the board of elections has not determined that the voter failed to proffer

acceptable identification or the last four digits of the voter’s Social Security number, and

declined to complete Form 10-T.

County boards of elections will begin counting provisional ballots cast on Election Day,

November 6, 2012, at public meetings held between November 17 and 21, 2012, and their staff

may begin reviewing ballots for eligibility as soon as Wednesday, November 7, 2012. See

Directive 2012-54 at 2 (attached as Ex. A to Chisholm Decl.). Accordingly, Plaintiffs also

respectfully request the Court set a briefing schedule on this motion that parallels that set on the

NEOCH Plaintiffs’ November 1, 2012 motion, with Defendants’ response due on November 6,

2012, and a reply due on November 8, 2012. A supporting memorandum of law accompanies

these motions.

Dated: November 4, 2012

Respectfully submitted,

/s/ Barbara J. Chisholm

_______________

By: Barbara J. Chisholm, for SEIU Local 1

Plaintiffs and NEOCH Plaintiffs

Plaintiffs’ Counsel in SEIU Local 1:

Plaintiffs’ Counsel in NEOCH:

MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com
Attorneys for All SEIU Local 1 Plaintiffs

CAROLINE H. GENTRY, Trial Attorney (0066138) DANIEL B. MILLER (0080767) Porter, Wright, Morris & Arthur LLP One South Main Street, Suite 1600 Dayton, OH 45402 Telephone: (937) 449-6748 E-mail: cgentry@porterwright.com dbmiller@porterwright.com

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STEPHEN P. BERZON, pro hac vice STACEY M. LEYTON, pro hac vice BARBARA J. CHISHOLM, pro hac vice DANIELLE LEONARD, pro hac vice Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com
Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC
PENDA HAIR, pro hac vice DONITA JUDGE, pro hac vice UZOMA NKWONTA, pro hac vice Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org
Attorneys for Plaintiff Ohio Organizing Collaborative

MICHAEL J. HUNTER (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com charshman@hcands.com SUBODH CHANDRA (0069233) The Chandra Law Firm, LLC 1265 W. 6th Street, Suite 400 Cleveland, OH 44113-1326 Telephone: (216) 578-1700 E-mail: Subodh.Chandra@ChandraLaw.com
Attorneys for Plaintiffs NEOCH and SEIU Local 1199
STEPHEN P. BERZON, pro hac vice STACEY M. LEYTON, pro hac vice BARBARA J. CHISHOLM, pro hac vice DANIELLE LEONARD, pro hac vice Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altber.com sleyton@altber.com bchisholm@altber.com dleonard@altber.com
Attorneys for Plaintiff SEIU Local 1199
DONALD J. MCTIGUE, Trial Attorney (0022849) MARK A. MCGINNIS (0076275) McTigue Law Group 550 East Walnut Street Columbus, OH 43215 Telephone: (614) 263-7000 E-mail: mctiguelaw@rrohio.com
Attorneys for Intervenor-Plaintiff Ohio Democratic Party

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................3
A. The Sixth Circuit’s and this Court’s Decisions Regarding Poll-Worker Error and Deficient Provisional Ballot Affirmations ...............................................................3
B. Ohio Law Requires Election Officials – and Not Voters – to Record the Type of Identification Provided By a Voter and to Indicate Whether a Voter Needs to Provide Any Additional Information to the Board of Elections ..............................5
C. The Secretary’s Redesigned Provisional Ballot Affirmation Form (Form 12-B) Improperly Purports to Shift the Duty to Verify and Record Information from the Poll Worker to the Voter..........................................................................................6
D. NEOCH Plaintiffs Seek Confirmation from Secretary of Section III(5)(b)(vii)’s Scope and, Receiving No Response, File Motion for Clarification.........................8
E. The Secretary’s Directive 2012-54, Issued on the Eve of the Election, Reverses the Approach Taken in Directive 2012-01 and Contradicts the Secretary’s October 24, 2012 Assurances to This Court ..........................................................................9
ARGUMENT .................................................................................................................................10
I. The NEOCH Consent Decree Should Be Modified to Extend the Protections of Section III(5)(b)(vii) to All Provisional Voters ..............................................................................10
A. The Court Should Clarify that Under Section III(5)(b)(vii) of the Consent Decree Provisional Ballots May Not Be Disqualified Because the Ballot Form Information Regarding the Identification Proffered By the Voter Is Incomplete..............................................................................................................10
B. This Court Should Revise the October 26, 2012 Order in Light of the Secretary’s Eleventh-Hour Directive 2012-54 and Modify the Decree to Extend the Protection Against Poll-Worker Failure to Record Information to All Provisional Voters..................................................................................................12
II. The Court Should Issue a Preliminary Injunction in SEIU Local 1 v. Husted Enjoining the Rejection of Provisional Ballots with Incomplete Identification Information on the Ballot Forms............................................................................................................14
CONCLUSION..............................................................................................................................16
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TABLE OF AUTHORITIES FEDERAL CASES
Burdick v. Takushi, 504 U.S. 428 (1992).................................................................................................................15
Bush v. Gore, 531 U.S. 98 (2000)...............................................................................................................4, 13
Crawford v. Marion County Board of Elections, 553 U.S. 181 (2008).................................................................................................................15
Davis v. Wakelee, 156 U.S. 680 (1895).................................................................................................................11
Dunn v. Blumstein, 405 U.S. 330 (1972).................................................................................................................13
Hunter v. Hamilton County Board of Elections, 635 F.3d 219 (6th Cir.2011) ....................................................................................................15
NEOCH v. Husted, __F.3d __, 2012 WL 4829033 (6th Cir. Oct. 11, 2012) .................................................. passim
New Hampshire v. Maine, 532 U.S. 742 (2001).................................................................................................................11
Obama for America v. Husted, __ F.3d __, 2012 WL 4753397 (6th Cir. Oct. 5, 2012) ...........................................................16
Oregon v. Mitchell, 400 U.S. 112 (1970).................................................................................................................15
Warda v. C.I.R., 15 F.3d 533 (6th Cir. 1994) .....................................................................................................11
STATE STATUTES Ohio Rev. Code §3505.181.................................................................................................... passim Ohio Rev. Code §3505.182.................................................................................................... passim
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Fed. Rule of Civ. Proc. 60..............................................................................................................13
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MEMORANDUM OF LAW INTRODUCTION
Plaintiffs seek emergency clarification of this Court’s October 26, 2012 Order issued in the related cases of NEOCH v. Husted and SEIU Local 1 v. Husted, and emergency relief in light of the Secretary of State’s issuance of Directive 2012-54 at 6:00 p.m. on the Friday before election day. Chisholm Decl., Ex. A.
Secretary Husted issued Directive 2012-54 ostensibly to implement this Court’s and the Sixth Circuit’s recent orders regarding the November 2012 election. Id., Ex. A at 1. Directive 2012-54, however, makes an extraordinary and unconstitutional change to Ohio’s established rules for counting provisional ballots not required by, and indeed directly contrary to, those court orders. According to Directive 2012-54, county boards of elections are now required to reject provisional ballots that have incomplete information regarding identification proffered by voters – despite the fact that under the relevant statute the duty to record this information rests squarely and unambiguously with poll workers, and not voters. Id., Ex. A at 3. Before Friday evening, the counting of provisional ballots was governed by Directive 2012-01, which did not allow for the disqualification of provisional ballots for this reason. Id., Ex. B; see also 10/26/12 Order at 19-20. The Secretary’s eve-of-election instructions to reject these otherwise valid votes cast by lawfully registered voters should not be permitted.
This eleventh-hour change disenfranchising Ohio voters is contrary to the representations of the Secretary’s counsel to this Court, inconsistent with the decisions of this Court and the Sixth Circuit, and violates the Constitution. 10/24/12 Trans. at 50:5-20; 10/26/12 Order at 1920; NEOCH v. Husted, __F.3d __, 2012 WL 4829033 at *16 (6th Cir. Oct. 11, 2012).
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There can be absolutely no dispute that poll workers, and not voters, are responsible for recording on provisional ballot forms information about identification proffered by voters. O.R.C. §3505.181(B)(6); id. §3505.182. The Sixth Circuit acknowledged the duty of “election officials to ‘record the type of identification provided, [or] the social security number information.’” NEOCH, 2012 WL 4829033 at *16 (quoting O.R.C. §3505.181(B)(6)). The Secretary in support of eliminating a different sub-section of the Decree, expressly assured this Court that recording identification information was a poll worker’s duty, and therefore that ballots with incomplete identification information would be protected from disqualification under Section III(5)(b)(vii) of the NEOCH Consent Decree. 10/24/12 Trans. at 50:5-20.
This Court, in its October 26, 2012 Order in these related cases, relied on this representation, and the fact that both the Decree and Directive 2012-01 protected provisional ballots against disqualification in the event they were incomplete as a result of a poll worker’s failure to fill out required information. 10/26/12 Order at 19-20. That these protections would remain in place was “critical[]” to the Court’s decision to deny the NEOCH Plaintiffs’ request to extend the protections of Section III(5)(b)(vii) to all voters, and to grant the Secretary’s motion to remove Section III(5)(b)(vi) from the Decree, a section the Secretary contended was limited to instances of voter mistakes in printing or signing the ballot form. Id.; 10/24/12 Trans. at 50:5-20. This factual predicate for the Court’s decision is, however, no longer true: incomplete ballot affirmations that result from poll-worker not voter error will result in the rejection of votes under Directive 2012-54.
As set forth in NEOCH Plaintiffs’ Motion for Clarification filed November 1, 2012, Plaintiffs requested confirmation from the Secretary that, consistent with representations of his counsel and this Court’s order, he would instruct county boards of elections to count otherwise
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valid provisional ballots if they had incomplete identification information on the form. NEOCH Dkt. 346 at 6-7; NEOCH Dkt. 346-1 ¶¶3-4 & Ex. 1. Plaintiffs explained that such confirmation was necessary because the Secretary’s Provisional Ballot Affirmation Form (Form 12-B) differed from the statutory form, and improperly purported to place on the voter the burden of recording identification information. NEOCH Dkt. 346-1, Ex. 1. The Secretary, however, refused to provide any confirmation in response to Plaintiffs’ request. Id. ¶¶3-4. Instead, he responded by reversing his position regarding the counting of these ballots and – in a Directive he claimed was necessary only to implement this Court’s orders – instructed county boards to disqualify ballots that are deficient only because they lack information the poll workers are required to complete. Chisholm Decl., Ex. A at 3.
In light of these factual developments, the NEOCH Plaintiffs move this Court to clarify its October 26, 2012 Order that, under Section III(5)(b)(vii), provisional votes may not be disqualified because the ballot form’s information regarding the identification proffered by the voter is incomplete, and to modify the Consent Decree to extend Section III(5)(b)(vii)’s protections to all provisional voters. The Plaintiffs in SEIU Local 1 v. Husted respectfully move for a preliminary injunction providing the same relief.
BACKGROUND A. The Sixth Circuit’s and this Court’s Decisions Regarding Poll-Worker Error and
Deficient Provisional Ballot Affirmations On October 11, 2012, the Sixth Circuit remanded to this Court the question of the constitutionality and proper scope of the Decree’s protections for flawed provisional ballot affirmation forms. NEOCH, 2012 WL 4829033 at *19-20. The Sixth Circuit noted that, in light of its decision to set aside this Court’s August 27, 2012 ballot affirmation preliminary injunction, the continued protection for SSN-4 provisional voters against disqualification for failure to
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complete ballot affirmations that resulted from poll-worker error was, under Bush v. Gore, 531 U.S. 98 (2000), likely unconstitutional disparate treatment between those voters protected by the Decree, and all other Ohio provisional voters. Id. Accordingly, the Sixth Circuit remanded to this Court to address and remedy this constitutional concern in the context of a motion to modify the Decree. Id. at *20.
This Court’s October 26, 2012 Order resolved the parties’ competing motions for modification of the Consent Decree. 10/26/12 Order at 17-21. Defendants moved to excise Section III(5)(b)(vi) of the Decree, which provided that provisional ballots covered by the Decree could not be disqualified on the basis that “[t]he voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll worker error.” NEOCH Dkt. 342 & 210. Plaintiffs moved to extend the protections of Section III(5)(b)(vi) and (vii) to all provisional voters. NEOCH Dkt. 338 & 338-1. Paragraph (vii) guards against the disqualification of provisional ballots when “[t]he poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statute.” NEOCH Dkt. 210.
In arguing the motions to the Court, Plaintiffs explained that they were concerned that the Secretary would disqualify provisional ballots on the ground that the voter did not record identification information, even though that was poll-worker duty. 10/24/12 Trans. at 42:2243:5, 55:15-56:11. Defendants responded by representing to the Court that recording information regarding a voter’s proffered identification is the poll worker’s responsibility and therefore falls within the protection of Section III(5)(b)(vii) of the Decree:
Mr. Epstein: [Plaintiffs’ counsel] suggested to you, for example, that there might still be poll worker error because there is an obligation to
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record on the form the mode of identification used, and, if that's missing, that’s a defect in the ballot. But that scenario is not covered by the provision we’re talking about because, as they say, the obligation to write down the identifying information is imposed upon the poll worker, not upon the voter. In Section 7 it says that we won’t invalidate ballots based upon the poll worker’s failure to write something down. So we’re not talking about that scenario. That scenario, in fact, doesn’t even deal with an affirmation that is deficient because it is lacking a printed name or a signature, which is all that [Consent Decree Section III(5)(b)(vi)] is talking about.
10/24/12 Trans. at 50:5-20 (emphasis added); see also id. at 60:3-11. As discussed below, the
obligation of the poll worker to record this information to which Defendants’ counsel referred at
argument is set forth in Ohio Revised Code §§3505.181(B)(6)-(7) and 3505.182.
On October 26, 2012, the Court issued an Order granting Defendants’ motion to remove
Section III(5)(b)(vi) from the Decree, but leaving in place the protections of Section
III(5)(b)(vii). 10/26/12 Order at 17-21. The Court denied Plaintiffs’ motion to extend Section
III(5)(b)(vii), finding there was no need to do so:
Critically, Section III(5)(b)(vii) remains in the Consent Decree to ensure no provisional ballot is disqualified when a poll worker fails to complete her designated portion of the envelope and the State does not dispute that. SEIU Dkt. 28 at 17. Directive 2012-01, which Secretary Husted issued on January 4, 2012, expressly instructed county boards of election that provisional ballots are not to be rejected if the poll worker fails to fill out his or her portion of the provisional ballot envelope.
Id. at 20-21 (internal citation omitted). If, based on the rules applicable to these provisional
ballots at the time, there was no disparate treatment creating an equal protection violation, then
there was no need to extend the protections of Section III(5)(b)(vii) to all voters.
B. Ohio Law Requires Election Officials – and Not Voters – to Record the Type of Identification Provided By a Voter and to Indicate Whether a Voter Needs to Provide Any Additional Information to the Board of Elections
Ohio Revised Code §3505.181(B)(6) provides that, once a voter casting a provisional
ballot proffers identification, “the appropriate local election official shall record the type of
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identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot . . . .” (Emphasis added.) Section 3505.181(B)(7) further provides that when a voter casts a provisional ballot, “the election official shall indicate, on the provisional ballot verification statement . . ., that the individual is required to provide additional information to the board of elections . . . .” (Emphasis added.)
The Ohio Revised Code also sets forth a provisional ballot affirmation form to be printed on provisional ballot envelopes, which includes a “Verification Statement” to be completed and signed by the poll worker. O.R.C. §3505.182. This Verification Statement confirms that it is the poll worker – not the voter – who is required to record the type of identification (if any) a voter proffers. See id. (Verification Statement listing nine different categories of identification provided by voter, with instructions that “election official must check the following true statement concerning identification provided by the provisional voter, if any”) (emphasis added). It further confirms that it is the poll worker’s duty, not the voter’s, to specify what additional identification or information, if any, the voter is required to provide to the elections board within the ensuing ten days. See id. (Verification Statement providing: “If applicable, the election official must check the following true statement concerning additional information needed to determine the eligibility of the provisional voter.”) (emphasis added).
By imposing such affirmative-verification duties on election officials, Ohio law ensures that any questions regarding a voter’s identification are resolved on the spot or, consistent with due process, the voter is informed that he or she needs to provide additional information to the board of elections. This protects the integrity of the voting process, and provides a reasonable opportunity to resolve deficiencies.
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C. The Secretary’s Redesigned Provisional Ballot Affirmation Form (Form 12-B) Improperly Purports to Shift the Duty to Verify and Record Information from the Poll Worker to the Voter In January 2012, the Secretary issued Directive 2012-01 regarding the counting of
provisional ballots. Despite the fact that the Ohio Revised Code provides a statutory provisional ballot affirmation form, O.R.C. §3505.182, Directive 2012-01 included a redesigned provisional ballot affirmation form, “Form No. 12-B,” that county boards of elections must use. See NEOCH Dkt. 346-1 (Chandra Decl., Ex. 2). The form is divided into two sections: one that the voter is requested to complete (labeled “MANDATORY INFORMATION REQUIRED FOR YOUR BALLOT TO COUNT”), and one for the election official to complete. Id.
The section for the voter to complete is broken into 3 steps. “Step 1” requires the provisional voter to print his or her full name. Id. And “Step 3” asks the voter to sign the sworn statement that he or she is eligible to vote in the election. Id. Both of these steps are consistent with information provisional voters are required to provide under Ohio Revised Code §§3505.181(B)(2) and 3505.182.
“Step 2” covers all forms of identification a voter may proffer to a poll worker. It requires the voter to provide the last four digits of his or her social-security number; to write his or her full eight-digit Ohio driver’s license number; or to “show . . . your precinct election official one of the forms of identification listed below” and to check a box indicating which one was shown, or to “complete Form 10-T” (with no explanation that Form 10-T is an affirmation a voter who cannot provide identification may complete). Id. It then identifies various types of potential documentary identification. Step 2 of the Secretary’s Form states that if a provisional voter fails either to show one of the listed forms of identification or to complete Form 10-T, “the board of elections will conclude that you did NOT show ID to your precinct election official and
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you must show ID at the board of elections during the 10 days after the election for your vote to be eligible to be counted.” Id.
The poll worker’s portion of Form 12-B contains no place for the poll worker to record information regarding identification proffered by the voter; only Step 2 of the voter’s section of the form provides space to record this information. Ohio law, however, does not require voters to record any of this information in order to have their ballot counted. Instead, as discussed above, and as represented to this Court by the Secretary on October 24, 2012 (10/24/12 Tr. at 50:5-20), it is the poll worker’s duty to record the type of identification proffered or to record the last four digits of the voter’s Social Security (O.R.C. §§3505.181(B)(6), 3505.182), and to record whether the voter needs to provide additional information to the county board. Id. §§3505.181(B)(7), 3505.182. (Also missing from the Secretary’s Form 12-B is any statutorily required record of whether the voter needs to bring additional information to the board.) D. NEOCH Plaintiffs Seek Confirmation from Secretary of Section III(5)(b)(vii)’s
Scope and, Receiving No Response, File Motion for Clarification Based on the representation of the Secretary to this Court on October 24, 2012, and this Court’s October 26, 2012 decision, and the clear statutory duty of poll workers to record voters’ Social Security number, driver’s license number, or other form of identification proffered, counsel for NEOCH Plaintiffs wrote to the Secretary and requested confirmation that the Secretary would, under Section III(5)(b)(vii) of the Decree and Directive 2012-01, ensure that county boards of elections not reject provisional ballots on the grounds that “Step 2” of the Provisional Ballot Affirmation Form is incomplete or incorrectly completed. NEOCH Dkt. 3461 (Chandra Decl., Ex. 1). Plaintiffs’ counsel followed up with a voicemail message, which went unreturned. Id. ¶¶3-4.
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When Plaintiffs received no response from the Secretary, on November 1, 2012, Plaintiffs filed an emergency motion for clarification of the scope of Section III(5)(b)(vii). Plaintiffs explained that clarification was needed before the county boards begin counting provisional ballots because, in analyzing the ballots for deficiencies, the boards may not realize that a failure to complete or incorrect completion of the identification information requested on the provisional ballot form falls within the protection of Section III(5)(b)(vii) of the Decree. NEOCH Dkt. 346. E. The Secretary’s Directive 2012-54, Issued on the Eve of the Election, Reverses the
Approach Taken in Directive 2012-01 and Contradicts the Secretary’s October 24, 2012 Assurances to This Court Secretary Husted issued Directive 2012-54 around or shortly after 6 p.m. on Friday, November 2, 2012, asserting that the Directive was required by this Court and the Sixth Circuit’s orders. Chisholm Decl. ¶2 & Ex. A. Directive 2012-54 differs significantly from previous Directives that address the counting of ballots with incomplete identification information, despite the fact that neither this Court nor the Sixth Circuit required such changes. Directive 2012-01, which governed the counting of provisional votes until this past Friday evening, provided only for disqualification of ballots that are missing printed names or signatures. It did not require disqualification of ballots with incomplete or incorrectly completed information regarding identification. See Chisholm Decl., Ex. B at 2. Thus, even though Form 12-B was issued together with Directive 2012-01, that Directive did not identify the failure to complete the identification information on the form as a basis for rejecting the ballot. Id. In contrast, the new Directive 2012-54 expressly requires that boards “must reject [a] provisional ballot” “[i]f the voter did not provide identification on the provisional ballot affirmation, did not complete SOS Form 10-T, and did not return to the Board within the ten
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days after the election to remedy the missing item.” Chisholm Decl., Ex. A at p. 3 (“Step 2”) (emphasis in original). Nowhere does the Directive acknowledge that it is the poll worker’s responsibility to record the identification provided.
ARGUMENT I. The NEOCH Consent Decree Should Be Modified to Extend the Protections of
Section III(5)(b)(vii) to All Provisional Voters A. The Court Should Clarify that Under Section III(5)(b)(vii) of the Consent
Decree Provisional Ballots May Not Be Disqualified Because the Ballot Form Information Regarding the Identification Proffered By the Voter Is Incomplete On remand from the Sixth Circuit, Plaintiffs urged the Court to remedy any equal protection violation by extending the protections of Section III(5)(b)(vi) and (vii) to all provisional voters. NEOCH Dkt. 338 & 338-1. Defendants, by contrast, asked the Court to remove Section III(5)(b)(vi), but not Section III(5)(b)(vii), from the Decree. NEOCH Dkt. 342. In resolving these competing motions to modify the Consent Decree, this Court relied on the protections for voters provided by Section III(5)(b)(vii), and by then-governing Directive 2012-01, which the Court understood would ensure that provisional ballot envelopes that are incomplete as the result of poll workers’ failure to record voter identification information would not be rejected on that ground. 10/26/12 Order at 19-20. This Court also relied on the Secretary’s assurances regarding the scope of paragraph (vii). See supra at 4-5 (quoting 10/24/12 Trans. at 50:5-20). In granting the Secretary’s motion to remove paragraph (vi) from Section III(5)(b), the Court found that there would be few circumstances in which a missing name or signature would be the result of poll-worker error. 10/26/12 Order at 19; see also NEOCH, 2012 WL 4829033 at *16 (“Ohio law does not task poll-workers with quality control of ballot affirmations.”). In
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contrast, “Ohio law does . . . task poll-workers” with recording the identification proffered by the voter. Id. (emphasis added); see also id. (quoting O.R.C. §3505.181(B)(6)); O.R.C. §3505.182. As the Secretary represented to this Court: “the obligation to write down the identifying information is imposed upon the poll worker.” 10/24/12 Tr. at 50:5-20. Thus, there can be no dispute that Ohio election officials are responsible for recording the identification information proffered by provisional voters.
The equitable doctrine of judicial estoppel also weighs in favor of requiring the Secretary to abide by the assurances he provided to this Court. “‘[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.’” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)); see also Warda v. C.I.R., 15 F.3d 533, 538 (6th Cir. 1994). Here, the doctrine of judicial estoppel applies to bar any argument by the Secretary that Section III(5)(b)(vii) does not protect provisional ballot affirmations with incomplete identification information. Such an argument is directly contrary to the Secretary’s previous representation to the Court, a representation on which the Court relied, and unfairly would disenfranchise voters and deprive them of the protections negotiated by the parties to the Decree.
Yet, in direct contrast to the Secretary’s representations to this Court, the language of the Consent Decree, and Directive 2012-01, Directive 2012-54 now requires county boards of elections to reject provisional ballots where poll workers have failed in this duty to record voter identification information. Thus, this Court should clarify that Section III(5)(b)(vii) prohibits the
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Secretary from disqualifying provisional ballots on the basis that they have incomplete information in “Step 2” of the form regarding the voter’s proffered identification.
B. This Court Should Revise the October 26, 2012 Order in Light of the Secretary’s Eleventh-Hour Directive 2012-54 and Modify the Decree to Extend the Protection Against Poll-Worker Failure to Record Information to All Provisional Voters
The Court’s October 26, 2012 Order, in concluding that Section III(5)(b)(vii)’s protections did not need to be extended to all provisional voters, relied on its understanding that the section’s protections against poll-worker error were mirrored in then-governing Directive 2012-01, which “expressly instructed county boards of election that provisional ballots are not to be rejected if the poll worker fails to fill out his or her portion of the provisional ballot envelope.” 10/26/12 Order at 20-21 (internal citation omitted).
As Plaintiffs’ November 1, 2012 motion explained, at the time the motion was filed (before the Secretary issued Directive 2012-54 in the evening on Friday, November 2, 2012), there was no concern with the potential disparate treatment of voters covered by the Decree and all other Ohio provisional voters, because Directive 2012-01 did not require the disqualification of provisional ballots with incomplete identification information. NEOCH Dkt. 346 at 9. The factual predicate for this Court’s decision not to extend Section III(5)(b)(vii)’s protections to all voters, however, no longer exists. Because the Secretary rescinded Directive 2012-01, replacing it with Directive 2012-54, the protections of Section III(b)(5)(vii) of the Decree now extend only to SSN-4 voters.
Thus, the Secretary – by issuing Directive 2012-54 on the eve of the election – has created the exact equal protection problem against which the Sixth Circuit warned, and that the Sixth Circuit remanded to this Court to resolve. The Sixth Circuit explained that the differential treatment of similarly situated provisional ballots “appears to create” an equal protection
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violation. NEOCH, 2012 WL 4829033 at *19; see also id. at *14; Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”); Bush v. Gore, 531 U.S. at 104-05. The Sixth Circuit remanded to the District Court to address, on a motion to modify the Decree, the equal protection problem presented by differential treatment of ballot affirmation flaws, and noted that decisions regarding modification of consent decrees are generally left to district court discretion. 2012 WL 4829033 at *20.
Because Section III(5)(b)(vii) of the Decree is properly construed as protecting from disqualification provisional ballots that have incomplete identification information, and Directive 2012-54 now, for the first time, requires disqualification of those ballots not otherwise protected by the Decree, this Directive results in unconstitutional disparate treatment of similarly situated ballots. Plaintiffs therefore ask the Court, pursuant to Federal Rule of Civil Procedure 60 and its inherent equitable authority, as recognized by the Sixth Circuit in remanding to this Court (2012 WL 4829033 at *20), to modify the Decree to prohibit the rejection of provisional ballots cast by any voter as a result of incomplete or improperly completed identification information on the ballot affirmation form, unless a county board of elections first determines that the voter failed to proffer acceptable identification or provide the last four digits of his or her Social Security number to a poll worker, and declined to complete a Form 10-T. Such modification is necessary to both remedy the equal protection problem that Directive 2012-54 causes and preserve the Decree’s current protections for SSN-4 voters. It also avoids the constitutional violations that would occur if the Secretary were permitted to disenfranchise voters for purported deficiencies in recording information the poll workers, not the voters, are required to record.
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The alternative solution to resolving the disparate treatment problem – eliminating Section III(5)(b)(vii) – would deprive the NEOCH Plaintiffs of the protections they obtained in return for not pursuing their constitutional claims. As the Sixth Circuit held in NEOCH, there are significant public interests served by holding the State to the bargain it struck to resolve the case. 2012 WL 4829033 at *19. II. The Court Should Issue a Preliminary Injunction in SEIU Local 1 v. Husted
Enjoining the Rejection of Provisional Ballots with Incomplete Identification Information on the Ballot Forms For the same reasons that this Court should modify the Consent Decree to protect all provisional voters from having their votes disqualified on the basis that the identification information on the ballot is incomplete or incorrectly completed, the Court should preliminarily enjoin Defendants from implementing Directive 2012-54 to disqualify these ballots. SEIU Local 1 Plaintiffs easily satisfy the four factors for a preliminary injunction. See NEOCH, 2012 WL 4829033 at *8. There can be no dispute that Plaintiffs’ members, as well as other Ohio voters, are likely to be irreparably harmed by Directive 2012-54’s requirement that provisional ballots with incomplete information regarding identification proffered by the voter be disqualified and not counted. See id. at *15. That harm alone weighs very heavily in favor of an injunction. Neither the State nor any other party is injured by counting these otherwise valid ballots of lawfully registered voters. Significantly, the State cannot claim that it would be harmed by an injunction that places the duty to record the voters’ identification information on the poll worker, not the voter, given that Ohio law already squarely places that duty on the poll worker, and given that until Friday, November 2, 2012 at 6 p.m., that is what the Consent Decree and the Secretary’s Directives provided.
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Finally, Plaintiffs are likely to succeed on the merits and, at a minimum, have presented “questions going to the merits so serious [and] substantial . . . to make them a fair ground for litigation” and warranting preliminary injunctive relief. Id. at *8 (internal quotation marks omitted). Consistent with the Sixth Circuit’s decisions in NEOCH, 2012 WL 4829033, and Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 243-44 (6th Cir.2011), the disqualification of ballots on the grounds that a poll worker has failed to perform his duties to record information imposes a substantial burden on the right to vote. Not only does Ohio law unambiguously require election officials, and not voters, to record the information about proffered identification and to inform voters if additional information must be presented to the board of elections, O.R.C. §§3505.181(B)(6)-(7) & 3505.182, but there is a good reason this responsibility lies with trained election officials and not the voters. For example, it is absurd to expect that a voter – without any poll-worker instruction – will be able to “complete Form 10-T,” as the Secretary’s Provisional Ballot Affirmation Form requires. See Chisholm Decl., Ex. A. Nor will an average voter be able to navigate the form’s complicated instructions as to when an address on a photo identification needs to be current and when it does not. Id. Under the Constitution, the provisional ballot form may not be converted to a literacy or logic test. Cf. Crawford, 553 U.S. at 188 (plurality) (noting “even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications”); Oregon v. Mitchell, 400 U.S. 112 (1970) (upholding Congress’ power to prohibit literacy tests).
Balanced against this substantial burden, there is no evidence of any legitimate state interest actually furthered by disqualifying ballots with incomplete information in “Step 2” of the ballot form. Nor could there be, given that Ohio law expressly places the responsibility for recording and verifying identification with election officials (and until November 2, 2012 the
15

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Secretary did not require rejecting these ballots). Therefore, under Burdick v. Takushi, 504 U.S. 428, 433-34 (1992), Crawford v. Marion County Bd. of Elections, 553 U.S. 181, 190-91 (2008) (plurality), NEOCH, 2012 WL 4829033 *9-13, and Obama for America v. Husted, __ F.3d. __, 2012 WL 4753397 *4-7 (6th Cir. Oct. 5, 2012), disqualifying these votes violates equal protection.
Finally, the Secretary’s eleventh-hour attempt to change the rules applicable to these ballots is contrary to every argument made by Ohio and the Secretary to the Sixth Circuit in seeking an emergency stay of this Court’s October 24, 2012 injunction protecting voters who cast wrong-location provisional ballots from poll-worker error. Defendants represented that a litany of harms would be caused by any change to the rules for poll workers and the county boards. Chisholm Decl., Ex. C at 3, 8-9. Secretary Husted’s action comes even closer to the election, mere days in advance. Every argument made by the Secretary to the Sixth Circuit as to why the October 26, 2012 injunction should be stayed weighs heavily in favor of enjoining this Directive, insofar as it is a last-minute change in the rules for counting provisional ballots, and one that will require the disenfranchisement of lawfully registered voters.
CONCLUSION For the foregoing reasons, the NEOCH Plaintiffs respectfully request that in NEOCH v. Husted the Court clarify its October 26, 2012 opinion and order and extend the protections of Section III(5)(b)(vii) of the Consent Decree to all provisional voters such that no provisional ballot may be rejected on the grounds that the identification information provided on the Provisional Ballot Affirmation Form is incomplete or incorrectly completed, unless a county board of elections first determines that the voter failed to provide poll workers with the last four digits of his or her Social Security number or show other acceptable identification, and verifies
16

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that the voter declined to complete a Form 10-T affirmation. The SEIU Local 1 Plaintiffs

respectfully request that the Court preliminarily enjoin Defendants from implementing Directive

2012-54 to the extent it requires the disqualification of ballots with incomplete or incorrectly

completed identification information on the Provisional Ballot Affirmation Form, and further

preliminarily enjoin Defendants from rejecting any provisional ballot on the grounds that the

identification information provided on the Provisional Ballot Affirmation Form is incomplete or

incorrectly completed, unless a county board of elections first determines that the voter failed to

provide poll workers with the last four digits of his or her Social Security number or show other

acceptable identification, and verifies that the voter declined to complete a Form 10-T

affirmation.

Dated: November 4, 2012

Respectfully submitted,

/s/ Barbara J. Chisholm

_______________

By: Barbara J. Chisholm, for SEIU Local 1

Plaintiffs and NEOCH Plaintiffs

Plaintiffs’ Counsel in SEIU Local 1:

Plaintiffs’ Counsel in NEOCH:

MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com
Attorneys for All SEIU Local 1 Plaintiffs

CAROLINE H. GENTRY, Trial Attorney (0066138) DANIEL B. MILLER (0080767) Porter, Wright, Morris & Arthur LLP One South Main Street, Suite 1600 Dayton, OH 45402 Telephone: (937) 449-6748 E-mail: cgentry@porterwright.com dbmiller@porterwright.com
MICHAEL J. HUNTER (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com charshman@hcands.com

17

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STEPHEN P. BERZON, pro hac vice STACEY M. LEYTON, pro hac vice BARBARA J. CHISHOLM, pro hac vice DANIELLE LEONARD, pro hac vice Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com
Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC
PENDA HAIR, pro hac vice DONITA JUDGE, pro hac vice UZOMA NKWONTA, pro hac vice Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org
Attorneys for Plaintiff Ohio Organizing Collaborative

SUBODH CHANDRA (0069233) The Chandra Law Firm, LLC 1265 W. 6th Street, Suite 400 Cleveland, OH 44113-1326 Telephone: (216) 578-1700 E-mail: Subodh.Chandra@ChandraLaw.com
Attorneys for Plaintiffs NEOCH and SEIU Local 1199
STEPHEN P. BERZON, pro hac vice STACEY M. LEYTON, pro hac vice BARBARA J. CHISHOLM, pro hac vice DANIELLE LEONARD, pro hac vice Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altber.com sleyton@altber.com bchisholm@altber.com dleonard@altber.com
Attorneys for Plaintiff SEIU Local 1199
DONALD J. MCTIGUE, Trial Attorney (0022849) MARK A. MCGINNIS (0076275) McTigue Law Group 550 East Walnut Street Columbus, OH 43215 Telephone: (614) 263-7000 E-mail: mctiguelaw@rrohio.com
Attorneys for Intervenor-Plaintiff Ohio Democratic Party

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CERTIFICATE OF SERVICE I certify that on November 4, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the counsel of record in this case.
/s/ Barbara J. Chisholm______________ Barbara J. Chisholm ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 / (415) 362-8064 Fax bchisholm@altber.com Counsel for Plaintiff SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC in SEIU Local 1 v. Husted Counsel for Plaintiff SEIU District 1199 in NEOCH v. Husted
19

 
 Case: 2:06-cv-00896-ALM-TPK Doc #: 352 Filed: 11/06/12 Page: 1 of 19 PAGEID #: 12713

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

The Northeast Ohio

:

Coalition for the Homeless, et al.,

:

:

Plaintiffs,

: Case No. 2:06-cv 896

:

v.

: Judge Algenon Marbley

:

Jon Husted, et al.,

:

:

Defendants.

:

______________________________________________________________________________

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al.
Plaintiffs,
v.
JON HUSTED, et al.
Defendants.

: : : : CASE NO. 2:12-cv-00562 : : : Judge Algenon Marbley : : : :

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTIONS FOR CLARIFICATION [NEOCH DOC. 346 AND 349 AND SEIU DOC. 97]
Defendants, the State o f Ohio and Secretary of State Jon Husted, respectfully urge the Court to deny the motions for “emergency” relief filed on election ev e by the Plaintiffs in these actions. Three weeks ago, the Sixth Circuit Court of Appeals held that Ohio’s provisional ballot affirmation form has “rather sim ple instructions” and that Ohio law “does not task poll-workers with quality control of ballot affirmations.” NEOCH v. Husted, 2012 U.S. App. LEXIS 21058, at 29 (6th Cir., Oct. 11, 2012).

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Plaintiffs’ new request is not about Directive 2012-54 or anything Secretary’s counsel “represented” to the Court. This is about Plaint iffs trying to change the identification rules for casting a provisional ballot that hav e been in place since 2006 – when the NEOCH plaintiffs could have challenged them . Plaintiffs want to have different identif ication requirements for provisional voters than the iden tification requirements for abse ntee voters who provide their identification on both the absentee ballot request and retu rned identification envelope and the identification requirements for Election Day voter s who are required to s how identification to cast a regular ballot.
In truth, what Plaintiffs seek is no t a clarification of the Court’s orders, but an 11 th hour expansion of the m – an expansion of the NEOCH consent decree [ NEOCH Doc. 210] and an expansion of the SEIU prelim inary injunction. [ SEIU Doc. ____]. In their attem pt to seek an expansion of the ru les, the NEOCH and SEIU Plaintiffs have confus ed statutory requirem ents related to provisional ballots. As a consequence, the Motions have no basis in law and should be denied.
Plaintiffs now want the Court to order the counting of defective provisional ballots even if the voter fails to fill out the portion of the affirmation regarding identification, and indeed even if the voter does not pr ovide any identif ication at all. As a m atter of law, the th ree motions should be denied because:
(1) With respect to the NEOCH consent decree, Ohio law expressly s tates that the voter must write down his or her social security number on the affirmation. Ohio law im poses no duty on poll workers to write down social security numbers on affirmation forms.
(2) The Court cannot expand the SEIU preliminary injunction because (a) Ohio law imposes no duty on poll workers to wr ite down voter driver’s licenses anywhere; and (b) the
2

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Court lacks jurisdiction to expand the SEIU preliminary injunction b ecause doing so would violate Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900 (1984).
The Motion should also be denied based on Purcell v. Gonzalez, 549 U.S. 1 (2006) and the strong presumption against changing election procedures at the last m inute, especially after the votes have been cast.
For all these reasons, Defendants submit these combined Memoranda of Law to urge the Court to deny the three last-minute motions.
MEMORANDUM OF LAW I. Background
As the Court is aware, a provisional voter must complete an Affirmation as a condition for election officials to open and count the provisional ba llot. R.C. 3505.182, R.C. 3505.183. The Provisional Ballo t Affirmation currently in use is part of For m 12-B and was created and distributed to all boards of elections on January 4, 2012. [Declaration of Matt Damschroder].
The Provisional Ballot Affirmation currently in use is part of For m 12-B and was created and distributed to all boards of elections in January 2012 and has been used in three elections, including the current election.1 The Secretary of State issu ed Directive 2012-01 on January 4, 2012 and attached a new provisional ballot envelope, Form 12-B. The pr ior version of 12-B, in effect from July 2008 until J anuary 2012 is attached to Matt Dam schroder’s Declaration. (Damschroder Declaration). As noted in Di rective 2012-01, “During the 2011 election year, a number of county boards of electio ns contacted this office with questions about how to process provisional ballots.” In 2011, boa rds of elections asked the Secr etary of State’s Office m any

1

Voters have already cast provisional ballots starting 28 days before the election under Ohio Revised Code

3503.16 using Form 12-B as prescribed by the Ohio Secretary of State in January 2012.

3

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questions about whether a provisional ballot was eligible to be counted based on poll workers’

marks on the back of the provisional ballot enve lope, the Verification Statement. (Damschroder

Declaration). The Secretary’s office consistently advised boards that the poll workers’ m arks on

the back of the provisional ballot envelope should neve r be used against a voter in determ ining

whether or not to count the ballot. (Damschroder Declaration)

For example, boards of elections asked what to do when the poll worker checked on the

Verification statement “The provisional voter is required to provide addition inform ation to the

board of elections” but on the Affirm ation on the front of the envelope, the voter checked “Ohio

drivers license (provide #) _______ _” or any of the other form s of identification provided. In

this instance, the provisional ballot would be el igible to be counted because the voter provided

identification on the Affirmation. (Damschroder Declaration).

Additionally, during 2011 boards of elections asked m any questions about whether the

provisional ballot could be counted if the vo ter’s address or birth date were m issing or

inconsistent, as both those items were included on the provisional ballot affirmation between the

voter’s printed nam e and signature. (Dam schroder Declaration). Und er Ohio law, neith er an address2 nor birth date are required for a provisional ballot to count. In or der to elim inate the

confusion, and after con sulting with various voter advocacy groups, the Secretary redrafted the

provisional ballot affirm ation to only include the require d information. (Da mschroder

Declaration).

Form 12-B provides what is required on th e front and back of the pr ovisional ballot

envelope. The front of the provisional ballot

envelope includes the “Provisional Ballot

2

An address is sometimes necessary when a voter is updating his or her address. However, that address

information is provided as a part of a cha nge of address form and is n ot necessary as a part o f the Affirmation

section. R.C. 3503.16.

4

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Affirmation” that is completed by the voter an d follows three simple steps. [ See NEOCH Doc. 346-3]. In Step 1, the provisional voter must print her name. Under Step 2, the voter must write the actual information used as identification at the polls -- the voter’s social security number (last four digits only) or driver’s license num ber – or check a box indicating a different form of identification used. And Step 3 m erely requires the provisional voter to sign the Affirm ation. The bottom of the front of the provisional ba llot envelope contains the “Pre cinct Election Official” portion where the precinct election official can write the precinct, location and sign and date it. However, as noted on that portion of th e provisional ballot e nvelope, failure of the precinct election official to complete that section does not affect the eligibility of the ballot. The back of the provisional ballot e nvelope consists of a change of address/change of nam e form, which only needs to b e filled out by those voters who are c hanging their address and/or name. (Form 12-B dated 1-12).
One goal in creating the new pr ovisional ballot envelope was to simplify the provisional ballot affirmation so that it was clear to the voter what the voter was required to fill out in order for her ballot to be counted. (Dam schroder Declaration) Another g oal in creating the new provisional ballot envelope was to streamline the poll worker’s portion of the envelope to reduce the chance that a provisional ballot would be re jected due to poll worker conduct. (D amschroder Declaration). The sectio n at the bottom of the front of the provisional ballot envelope, “The Precinct Election Official Info” clearly s tates “Failure by the precinct election official to complete this section will not affect whether or not this provisional ballot is counted”. See, Rule 12-B.
Form 12-B also helps boards of elections to uniformly apply the law and count ballots that had the required infor mation. The Secretar y hoped that issuing the form and direction in
5

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January would provide boards of elections and pr ecinct election officials sufficient tim e to get familiar with the for m and an opportunity to us e the form before the Nove mber presidential election. (Damschroder Declaration). Though the Secretary hoped that the direction provided in Directive 2012-01 in January 2012, including Fo rm 12-B, would be the last direction the Secretary would have to provide on those issues before the November 2012 presidential election, because of the court cas es it was n ot possible for the Secretary to iss ue comprehensive final instructions until that Friday. (Damschroder Declaration).
On Friday, Nove mber 2, 2012 after the Court’ s final resolution of the Consent Decree language, the Secretary issued Directive 2012-54 which included a m andatory six-step process for boards of elections to use when determ ining whether a provisional ballo t is eligible to be counted.
Step 1 requires the board s of elections to de termine, consistent with ( SEIU, 12-3916, 4069, p. 21)] whether the provisional voter printed and signed the voters name on the provisional ballot affirmation portion of Form 12-B.
Step 2 in th e directive requires the boards of elections to determine if identification was provided by the voter. Under Ohio law, if identification is not prov ided either at the tim e the voter casts the provisional ballot or ten days after the electio n, the provisional ballot cannot be opened or counted. O.R.C. 3505.183. Directive 2012-54 rewrote Step 2 only to make the process clearer. However, Step 2 in 2012-54 does not differ in process or outcom e from Step 2 in Directive 2012-01. Directive 2012-01 which accompanied the new Form 12-B in January, 2012 included the Step 2 which required the board to determine whether th e voter was required to provide additional information. In other words , whether the voter provided iden tification as required on the provisional ballot affirmation or whether the voter had to return within ten days
6

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after the election to provide that inform ation. If the voter did neither, th en the provisional ballot is rejected. (Damschroder Declaration)
Step 3 of the Directive require s boards of elections to determ ine the voter’s identity and Step 4, requires the boards of el ections to de termine whether the voter has been registered in Ohio for 30 days preceding the election.
Step 5 addresses whether the voter is voting in the correct precinct, and if not, as this Court has held and has been affir med by the Sixt h Circuit Court of Appeals, whether the voter cast the ballot in the correct polling place but wrong precinct due to poll worker error.
Finally, Step 6 addresses this Court’s statem ent that “Critica lly, Section III(5)(b)(vii) remains in the Consent Decree to en sure no provisional ballot is disqualified when a poll worker fails to complete her designated portion of the envelope and the State does not dispute that.” SEIU Dkt. 28 at 17. Step 6 requires the boards of elections to review provisional ballot affirmations that would be re jected under Steps 1 through 5 and determine whether that portion of the consent decree ap plies. Step 6 further affirms that “As noted on SOS Form 12-B, failure by the precinct election official to complete the “Precinct Election Official Info” section will not result in the provisional ballot being rejected.”
We know from the Sixth Circuit’s decision in NEOCH last month that the respon sibility for filling out Steps 1 a nd 3 rests with the vo ter, and th at it is constitutiona lly permissible for Ohio to reject provisional ballot s that lack Step 1 and/or S tep 3 information on the affir mation. Now, after the votes hav e been cast, the Court is asked to rule, contra NEOCH, that if Step 2 is left blank, the cause m ust be “poll worker error, ” and the defective provisional ballot should be counted. There is no legal authority for the relief Plaintiffs seek.
7

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II. Legal Argument A. The Present Issue Does Not Even Implicate The NEOCH Consent Decree. Two of the three pending motions ask the Court to expand the NEOCH consent decree to
count these defective provisional ballots. All the arguments (set forth above) for why such relief is available to the SEIU Plaintiffs apply with equal force in NEOCH. But there is a lso a threshold issue to consider: whether the consent decree in NEOCH even applies to the voters and ballots in question.
The answer is no, for t wo reasons. First, t he NEOCH consent decree only applies to voters who use the last four digits of their social secu rity numbers as identification at the polls. As election law expert Professor Ned Foley explains:
The immediate difficulty is this: how is one supposed to know that a provisional voter used the last four digits of his or her SSN, and therefore is within the scope of the cons ent decree’s protections—rather than another accep table type of ID, and thus is outside the scope of th e decree’s protections—if both the SSN and DLN [driver’s licen se number] spaces on the fo rm are blank, and all th e boxes corresponding to the other alternative t ypes of ID are all unchecked? To count ballots when no type of ID has been indicated on the form would seem to go well beyond the decree’s lim ited applicability. The key point here is that the provisional ballot form seemingly must s how that the voter used the last four digits of his or her SSN to get the benefit of the decr ee, and yet the circu mstance we are contemplating is that the form does not show this.
http://moritzlaw.osu.edu/electionlaw/freefair/index.php?ID=10019. In other words, NEOCH voters are, by definitio n, not part of the class of voters now under consideration. So the only relief the C ourt could offer under the consent decree would be to e xpand the decree to all provisional voters, som ething the decree itself neither contem plates nor perm its. Indeed, th e NEOCH plaintiffs, as SSN-4 voters, do not even have standing to seek relief on behalf of nonSSN-4 voters.
8

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Second, the fundamental assumption in Plaintiffs’ Motions is mistaken: the Ohio Revised Code imposes no duty on poll workers to write down social security numbers on the affirmation. R.C. 3505.182 m andates that “[e]ach individual who casts a provisiona l ballot under section 3505.181 of the Revised Code shall execute a written affirmation.” The Revised Code does not prescribe the exact form of the Affir mation, but instead provides a sam ple form with the instruction that th e actual form “shall b e substantially as f ollows.” [ Id]. The Revised Code’s sample affirmation requires the voter to fill in four blanks: (1) printed name; (2) social security number (last four digits); (3) date of birth; an d (4) signature. [ Id.]. Form 12-B is entirely consistent with the Revised Code’s recommended form.
Plaintiffs cite R.C. 3505.181 (B)(6) and (B)(7) as the alleged source of the poll worker’s statutory duty to complete Step 2 of the Affirmation. Subsection (B)(7) applies to a small subset of provisional voters, basically those who have no for m of identification whatsoever. Thus, by definition, it does not apply to NEOCH voters, who provide their SSN-4s as identification. 3 As for (B)(6), that provision does impose certain record keeping functions on poll workers, but does not instruct the poll workers to record any such information on the ballot affirmation.
B. Plaintiffs’ Have Failed To Sho w Any Basis For Expanding The SEIU Preliminary Injunction.
The objections to an expansion of the SEIU preliminary injunction are num erous. Plaintiffs are again mistaken about what Ohio requires poll workers to do. Plaintiffs erroneously rely on one provision of Ohio la w, as discusse d below, to the exclusion of all others. To understand the Ohio’s legal requirem ents several st atutes must be exam ined and read in their totality.

3

(B)(7) also deals with voters who are challenged by an election official or pursuant to R.C. 3505.19, which

is a rare occurrence and not raised in either the NEOCH or SEIU lawsuits.

9

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First, Ohio Revised Code 3505.182 m andates that “[e]ach individual who casts a provisional ballot under sect ion 3505.181 of the Revised Code shall execute a written affirmation.” The Revised Code does not pres cribe the exact form of the provisional ballot affirmation, but instead provides a sample form with the instruction that the actual form “shall be substantially as follows.” [Id]. It is the individual, not the election official, who completes this affirmation in writing. As a pa rt of the written affirm ation that the individual m ust complete, R.C. 3505.182 includes a line for the voter to provi de his social security number. The statute even distinguishes between what information is mandatory for the voter and what inform ation is “completed at the voter’s discretion”. Furthe r, R.C. 3503.182 does not contain a line for the precinct election official to provi de the voter’s social secu rity number because it is the voter’s responsibility, not the election offici al’s, to provide it. Despite Pl aintiffs’ claim to the contrary, R.C. 3505.182 clearly provides that it is the voter’s res ponsibility to com plete the provisiona l affirmation in writing. Not only is it clear th at the voter is tasked with supplying this information, it also makes perfect sense. The voter is best equipped to accurately write down the last four digits of her social security number or her driver’s license number because it is the voter – not the election official – who has this knowledge.
Second, under Ohio law , the provisional ballot cannot be counted if the voter failed to provide identification or if the SSN-4 or driver’s license number does not match the information on file with board of elections. Ohio Revise d Code 3505.183(B)(4)(a) stat es: “the provisional envelope shall not be opened, and the ballot shall not be counted” if:
(vii) The individual failed to p rovide a current and valid phot o identification, a military identification, a copy of a c urrent utility bill, bank statement, government check, paycheck, or other governm ent document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter regi stration mailed by a board of elections under section 3503.19 of the Revised Code, with the voter’s name and current address, or the
10

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last four digits of the individual’s so cial security number or to execute an affirmation under division (A) of sect ion 3505.18 or division (B) of section 3505.181 of the Revised Code. (viii) The last four digits of the elector’ s social security nu mber or the electo r’s driver’s license number or state identification number are different from the last four digits of the elector’s social secur ity number or the ele ctor’s driver’s license number or state identification number contained in the statewide voter registration database.
R.C. 3505.183(B)(4)(a). The Revised Code again makes clear that th e individual is tasked with providing the identification inform ation and the board is tas ked with de termining whether the social security number or driv er’s license (if other iden tification is not provided) on the affirmation matches the board’s records. The fact that the board is required to check the accuracy of SSN-4 and Drivers License number information against its records illustrates once again why the legislature would choose to place the responsibility on the voter to provide this identification information: the voter is in the best position to accurately write this information to ensure that his ballot is not rejected for this reason.
In addition to the statutory support, the con cept of the voter’s res ponsibility to provide identification has been consistently incorporated as a part of th e provisional ballot affir mation. Even the prior version of the provisional ballot affirmation, created by former Secretary Brunner and used bo th before an d after sh e entered into the Consen t Decree, provided a sp ace under “Form of identification provided” for the voter to check the box and fill in the blan k after “Last four digits of my social security number are: _________________”. (Form 12-B dated 07-08). The current version of the 12-B sim ilarly follows this pattern by stating “ Write the last four digits of your Social Security Number.” (Form 12-B dated 1-12).
In granting the wrong-precinc t, right polling location relief in SEIU (October 11 th), the Sixth Circuit reasoned that one could not require the “voters to have greater knowledge of their
11

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precinct, precinct ballot, and po lling place than poll worke rs.” ( SEIU, 12-3916, 4069, p. 21). The court did not expect “such om niscience” on the part of the voter. [ Id]. The sam e is true here, but instead the v oter is the one with th e superior knowledge. W hen it com es to the identification that th e voter poss esses, that k nowledge is most accurately within the voter’s knowledge, and the court should not expect such omniscience from the election official. The burden on the voter to write down the voter’s dr iver’s license num ber on the Affi rmation, or check the box next to the other ki nd of identification provided is at least as m iniscule as the burden of printing one’s nam e. And the Revise d Code does not im pose an affirmative duty on the poll workers to write this information on the Affirmation.
To accept Plaintiffs contention would, in e ffect, relieve prov isional voters of a responsibility that is required for those voting via absentee ba llot and those voting via regular ballot on Election Day. Those voters who choose to vote via ab sentee ballot are required to provide identification twice. First, a voter m ust write her identification as a part of the absentee ballot application pro cess. See Form 11-A and R.C. 3509.03. Second, when returning one’s absent voter’s ballot, the voter m ust write her identification on the ide ntification envelope in order for his/her ballot to count. S ee Form 11-B and R.C. 3509.04. Vo ters who vote at their precinct on Election Day also ar e required to provide som e form of identification. R .C. 3505.18(A).
Yet, Plaintiffs contend that, som ehow, the el ection official is responsible for writing down the individual’s identificatio n information only when it com es to provisional ballots. Plaintiff’s argue this even where there are categories of provisional ballots cast that, by their very definition, do not have identification. R.C. 3505.18, 3505.181. For instance, if a voter is not able to provide any of the acceptab le forms of identification to be able to cast a regular ballo t at his
12

Case: 2:06-cv-00896-ALM-TPK Doc #: 352 Filed: 11/06/12 Page: 13 of 19 PAGEID #: 12725
precinct on Election Day, and the voter cannot provide his SSN-4, the voter is required to cast a provisional ballot. R.C. 3505.18(A)(3 ). Plaintiffs’ requested reli ef would ignore the fact that some provisional ballots are cast f or the very re ason that individuals have arrived to the pollin g location without the identification needed to cast a ba llot. Further, thes e voters would not be required to meet the similar identification responsibilities that are required of all other voters. Here the Sixth Circuit’s NEOCH language is particularly apt:
In our view, the difficulty in m easuring the voter burden imposed by the ballot affirmation requirement stems from the fact that all of the identified deficiencies arise from voters’ failure to follow the form’s rather simple instructions: (1) print name, (2) provide identification, and (3) sign the affir mation appearing at the bottom. See SOS Form 12-B. Even the last s tep is optional, becaus e Ohio law permits voters to cast a provisional ba llot without signing the affirm ation upon notifying a poll worker. O.R.C. § 3505.181(B)(6 ). [Opinion p. 29] . Contrary to the district court’s sugg estion, Ohio law does not task poll-workers with quality control of ballot affirmations.
If anything, the burden of checking a box is ev en less than the burden of writing o ne’s name. Although not directly before the Sixth Circuit at the time, the logic of NEOCH strongly indicates that Step 2 is constitutional.
Not only is the burden m inimal, but having th e voter complete the identification portion will ensure that m ore votes will co unt. The chance of error is sm aller if the voter writes th e SSN-4 or DLN on the form than if the voter verbally communicates it to the poll worker. If the Court’s goal is to protect the franchise, then certa inly it serves that end to m inimize the risks of human error intruding on the process.
Additionally, Plaintiffs have tried to prove that poll worker m istakes lead to wronglocation and wrong-precinct voting. But there is no evidence in the Record that poll-worker error causes voters to leave Step 2 blank. (Plaintiffs are revert ing to the disc redited argument
13

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that it is po ll-worker error to acc ept an inco mplete provisional ballot envelope, an argum ent squarely rejected by the Court of Appeals in NEOCH).
And this leads to perhaps the most significant flaw in the va rious motions: as the Court knows, a voter who brin gs no identification to th e polls is permitted to cast a provis ional ballot, and has ten days to bring appropriate identificati on to the board of elections. And if the voter never appears with the required documents, that provisional ballot will look exactly like the ones Plaintiffs are talking about: Steps 1 and 3 f illed out, Step 2 em pty. So Pl aintiffs are asking th e Court to order the counting of ba llots that are invalid because the voter in fact had no ID, which would be an open invitation to voter fraud in future elections.
Finally, Plaintiffs have f ailed to explain how this Court has any jurisdiction to enter the injunction they seek. As noted, NEOCH makes it im possible for Plai ntiffs to contend that requiring voters to fill out Step 2 unconstitu tionally burdens their First or Fourteenth Amendment rights. Lacking a federal constitutiona l claim, Plaintiffs can only arg ue that state election officials are (allegedly) not carrying out their st atutory duties under Ohio law. But it is well-settled that federal courts are without jurisdiction to instru ct state officials on the proper performance of their duties under state law, ab sent a federal constitu tional violation. Pennhurst St. Sch. & Hosp. v. Halderman , 465 U.S. 89, 106, 104 S.Ct. 900 (1984); State ex rel. Skaggs v. Brunner, 549 F.3d 468, 471 (6th Cir. 2008).
For this reason alone, the Court should deny all the pending motions. C. The Court Should Apply Purcell And Decline To Hear The Motions The United States Sup reme Court has caution ed that last m inute injunctions changing election procedures are “s trongly disfavored.” Purcell v. Gonzalez , 549 U.S. 1, 4-5 (2006). Only last week ago, the Sixth Circuit Court of Appeals, in reje cting an expansion of the SEIU
14

Case: 2:06-cv-00896-ALM-TPK Doc #: 352 Filed: 11/06/12 Page: 15 of 19 PAGEID #: 12727
injunction (regarding wrong-locati on provisional ballots), rea ffirmed the principle that “application of [the Purcell] principle is particularly appropriate when a party does not seek to clarify or expand the scope of relief after having an opportunity to do so, in the district court and on appeal, in the m onths before an election, and then asks for reconsideration of that relief days before an election.” SEIU Local 1 v. Husted , Case No. 12-4264, 2012 U. S. App. LEXIS 22417, at * 10-11 (6th Cir., Oct. 31, 2012).
This is precisely what Plaintiffs have done. Plaintiffs have alternately claim ed that they could not raise the issue with the Court before the October 24, 2012 Order was issued or before the November 2, 2012 Directive came out. Neither claim bears up under scrutiny.
The essence of these motions is Plaintiffs ’ objection to Form 12-B. The Secretary of State issued Form 12-B, as part of Directive 2012-01, back in January of this year, yet Plaintiffs said nothing for eleven months. In fact, Directive 2012-01 m erely served to clarify and simplify prior practice.
The Secretary hoped that issuing the form and direction in January would provide boards of elections and precinct officials sufficient time to get familiar with the form and an opportunity to use the form before the Novem ber presidential election. (Damschroder Declaration). Though the Secretary hoped that the direction provide d in Directive 2012-01 in January 2012, including Form 12-B, would be t he last direction the Se cretary would have to provide on those issues before the Nove mber 2012 presid ential election, the Secretary c ould not issue comprehensive final instructions until last F riday due to developments in the litig ation. (Damschroder Declaration).
Contrary to the claims in the Motions, Directive 2012-54, which the Secretary promulgated on November 2, 2012, does not differ in any material respect from Directive 2012-
15

Case: 2:06-cv-00896-ALM-TPK Doc #: 352 Filed: 11/06/12 Page: 16 of 19 PAGEID #: 12728
01, issued on January 4, 2012. Both Directives clearly indicated that provisional ballots would be rejected if they lacked iden tification. Plaintiffs’ contention that they could not raise these issues with the Court any earlier than they did is pl ainly false. It is especially hard to understand why the SEIU Plaintiffs had to wait until Novem ber 5, 2012, three days after the Directive issued, when the NEOCH Plaintiffs were able to f ile their motion a day bef ore the Dire ctive came out.
Plaintiffs could have addressed this in January of 2012 when the current Form 12-B issued or in the prior y ears when the require ments were the sam e. Moreover, the Court’s October 24, 2012 Order similarly did not change the landscape in any relevant way. But even if it had, the SEIU Plaintiffs cannot explain why they waited nearly two weeks, until the very last minute before the election, to file their papers.
As a result of this inexcusable de lay, the court will not consider th e merits of these motions until after the regular ballots have all been cast and counted.
The delay in seeking relief has also forecl osed a host of possible remedies. Because voting is now over, the C ourt can no longer issue any order that will affect what happens at the polls. So the only option left to the Court, as a result of Plainti ffs’ dilatory conduct, is a blanket order to count all “Step-2 deficient” provisional ballots, including those that must be rejected for lack of any identification.
The Court has no evidentiary record from which to conclude that any of those ballots, let alone all of them, were cast by otherw ise-qualified electors. Nor doe s the Court have any legal basis for creating a presum ption in favor of coun ting these defective ballots. Federal courts do not sit to or der State authorities to com ply with the federal courts’ reading of State law. See Pennhurst, 465 U.S. at 106; State ex rel. Skaggs v. Brunner, 549 F.3d 468, 471 (6th Cir. 2008).
16

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Finally, Plaintiffs make much of the alle ged “admission” by undersigned counsel at oral argument that poll workers have an affir mative duty to “write down the [voter’s] identifying information.” [Tr., p. 50]. In fact, that stat ement is legally correct: poll workers have a duty under R.C. 3505.181 to write down th e type of ID used (though not , for exam ple, the actual driver’s license number). But, as explained ab ove, that obligation does not appear in the Code sections dealing with provisional ballot affirmation.
Contrary to the claims in all three motions, undersigned counsel did not “admit” that the poll workers m ust record the ID infor mation on the provisional ballet a ffirmation. The first sentence in the transcript reads: “Mr. Berzon suggested to you, for example, that there might still be poll wo rker error because there is an ob ligation to record on the for m the m ode of identification used, and, if that’s missing, that’s a defect in the ba llot.” Mr. Epstein repeated the assertion; he did not ad opt it. He then goes on to “adm it” that “ as they say, the o bligation to write down the identifying information is imposed upon the poll worker, not upon the voter.”
But certainly this is not an appropriate circumstance to apply judicial estoppel. Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 385 (6th Cir. 1998) (rej ecting judicial estoppel where litigant’s assertions were “open to in terpretation”). Incidentally, the Cour t should be aware that poll workers in recent elections (including this one) have not been or dered to record the information mandated by R.C. 3505.181. This fact of course has no bearing on the issues before the Court, since the defect in question is a blank Step 2. III. Conclusion
Plaintiffs are not entitle d to the re lief they seek, nor is this a proper time to be seeking it, essentially after voting is over. For these reasons, Defendants respectfully ask the Court to deny the “emergency” motions.
17

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Respectfully submitted,
MICHAEL DEWINE OHIO ATTORNEY GENERAL
/s/ Aaron D. Epstein Aaron D. Epstein (0063286), Trial Attorney Erin Butcher-Lyden (0087278) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 614-466-2872; 614-728-7592 (fax) aaron.epstein@ohioattorneygeneral.gov
Counsel for Defendant Jon Husted Ohio Secretary of State

RICHARD

N. COGLIANESE (0066830) Assistant Attorney General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 614-466-2872; 614-728-7592 (fax) richard.coglianese@ohioattorneygeneral.gov
Counsel for State of Ohio

18

Case: 2:06-cv-00896-ALM-TPK Doc #: 352 Filed: 11/06/12 Page: 19 of 19 PAGEID #: 12731 CERTIFICATE OF SERVICE
I hereby certify that the foregoing was filed electronically on th is 6th day of Nove mber, 2012. Notice of this filing will be s ent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt.
/s/ Aaron D. Epstein Aaron D. Epstein Assistant Attorney General
19

 
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL .

UNION LOCAL 1, et al.,

.

.

PLAINTIFFS,

.

.

VS.

.

.

JON HUSTED, et al.,

.

.

DEFENDANTS.

.

.

. . . . . . . . . . . . . . . . .

CASE NO. 2:12-CV-562
COLUMBUS, OHIO NOVEMBER 7, 2012 11:00 A.M.

TRANSCRIPT OF MOTION FOR PRELIMINARY INJUNCTION PROCEEDINGS BEFORE THE HONORABLE ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

APPEARANCES: FOR THE PLAINTIFFS:
FOR THE DEFENDANTS:

CAROLINE GENTRY, ESQ. STEPHEN P. BERZON, ESQ. DANIELLE E. LEONARD, ESQ. BARBARA J. CHISHOLM, ESQ. DONALD JOSEPH MCTIGUE, ESQ. SUBODH CHANDRA, ESQ. DONITA JUDGE, ESQ. MICHAEL HUNTER, ESQ.
AARON D. EPSTEIN, ESQ. RICHARD N. COGLIANESE, ESQ. ERIN BUTCHER-LYDEN, ESQ. - - -

SHAWNA J. EVANS, OFFICIAL FEDERAL COURT REPORTER 614-719-3316

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

THE NORTHEAST OHIO COALITION .

FOR THE HOMELESS, et al.,

.

.

PLAINTIFFS,

.

.

VS.

.

.

JON HUSTED, in his official

.

capacity as Secretary of

.

State of Ohio,

.

.

DEFENDANT,

.

.

and

.

.

STATE OF OHIO,

.

.

INTERVENOR-DEFENDANT.

.

. . . . . . . . . . . . . . . . .

CASE NO. 2:06-CV-896
COLUMBUS, OHIO NOVEMBER 7, 2012 11:00 A.M.

TRANSCRIPT OF MOTION FOR PRELIMINARY INJUNCTION PROCEEDINGS BEFORE THE HONORABLE ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFFS:

CAROLINE GENTRY, ESQ. STEPHEN P. BERZON, ESQ. DANIELLE E. LEONARD, ESQ. BARBARA J. CHISHOLM, ESQ. DONALD JOSEPH MCTIGUE, ESQ. SUBODH CHANDRA, ESQ. DONITA JUDGE, ESQ. MICHAEL HUNTER, ESQ.

FOR THE DEFENDANTS:

AARON D. EPSTEIN, ESQ. RICHARD N. COGLIANESE, ESQ. ERIN BUTCHER-LYDEN, ESQ. - - -

SHAWNA J. EVANS, OFFICIAL FEDERAL COURT REPORTER 614-719-3316

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1

WEDNESDAY MORNING SESSION

2

NOVEMBER 7, 2012

3

- - -

4

THE COURT: Good morning.

5

Ms. Clark, would you please call the case.

6

THE DEPUTY CLERK: 06-CV-896 and 12-CV-562, the

7

Northeast Ohio Coalition for the Homeless, et al., versus

8

Jon Husted in his official capacity of Secretary of the

9

State of Ohio and State of Ohio; and Service Employees

10

International Union Local 1, et al., versus Jon Husted, et

11

al.

12

THE COURT: Would counsel please identify themselves

13

for the record beginning with counsel for the plaintiffs.

14

MR. CHANDRA: Good morning, Your Honor. Subodh

15

Chandra for Plaintiffs Northeast Ohio Coalition for the

16

Homeless, SEIU Local 1199 and the individuals therein.

17

MS. CHISHOLM: Good morning, Your Honor. Barbara

18

Chisholm. I'm representing Plaintiff SEIU Local 1199 in

19

the NEOCH matter, and the Union plaintiffs in the SEIU

20

Local 1 matter.

21

MR. BERZON: Good morning, Your Honor. Steven

22

Berzon representing the same parties as Ms. Chisholm.

23

MS. LEONARD: Danielle Leonard representing the same

24

parties as Mr. Berzon and Ms. Chisholm.

25

MS. GENTRY: Good morning, Your Honor. Caroline

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1

Gentry representing the same parties as Mr. Chandra.

2

MS. JUDGE: Good morning, Your Honor. Donita Judge

3

representing SEIU and the Ohio Organizing Collaborative.

4

MR. MCTIGUE: Don McTigue representing the Ohio

5

Democratic party, plaintiff in the NEOCH case.

6

MR. HUNTER: Good morning, Your Honor. Michael

7

Hunter. I represent Plaintiff District 1199 in the NEOCH

8

case and all of the plaintiffs in the SEIU Local 1 case.

9

MR. CHANDRA: Your Honor, if I may, for those of us

10

representing Local 1199 and the Northeast Ohio Coalition

11

for the Homeless, I left out one organization, I believe,

12

which is the Columbus Homeless Coalition.

13

THE COURT: Counsel for the defense.

14

MR. EPSTEIN: Aaron Epstein, Assistant Attorney

15

General on behalf of Secretary of State Jon Husted in both

16

cases.

17

MS. BUTCHER-LYDEN: Erin Butcher-Lyden, Assistant

18

Attorney General for Secretary of State in both cases.

19

MR. COGLIANESE: Good morning, Your Honor. Rich

20

Coglianese for the State of Ohio.

21

THE COURT: We're here today on a couple of

22

emergency motions, or at least the NEOCH plaintiff's

23

emergency motion for clarification and for modification of

24

the consent decree, and SEIU Local 1 plaintiff's motion for

25

preliminary injunction.

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1

Who will be arguing for the plaintiffs?

2

MS. CHISHOLM: Your Honor, I will be arguing for the

3

plaintiffs in both the NEOCH case and SEIU Local 1.

4

However, Mr. Chandra will also be arguing on behalf of

5

NEOCH, so we would like to split the 30 minutes that the

6

Court has provided to our side.

7

THE COURT: Do you wish to hold any time in reserve?

8

MS. CHISHOLM: We do. I think we would hold seven

9

minutes in reserve for rebuttal.

10

THE COURT: Will it be you, Ms. Chisholm, or will it

11

be you, Mr. Chandra, who goes first? I'm assuming that you

12

discussed --

13

MS. CHISHOLM: I will, Your Honor.

14

THE COURT: Please proceed.

15

So are you arguing eight minutes, or are you arguing

16

12 minutes, and then saving three and a half minutes --

17

well, that would be -- this math is really too difficult

18

for me.

19

MS. CHISHOLM: It is difficult. I think I will

20

argue 15 minutes.

21

THE COURT: And Mr. Chandra will have eight minutes.

22

Is that right?

23

MR. CHANDRA: It sounds correct, but I'm as

24

mathematically challenged as Your Honor.

25

THE COURT: I hope not. Please proceed,

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1

Ms. Chisholm.

2

MS. CHISHOLM: After representing to this Court that

3

poll workers are obligated to record identification

4

proffered by a voter and, therefore, any scenario involving

5

missing identification information on a provisional ballot

6

affirmation form would continue to fall under the

7

protections of the consent decree in the NEOCH case, namely

8

Section III(v)(B)(6), Ohio is now taking the position that

9

those ballots should not be counted under the consent

10

decree.

11

Further, as Your Honor is aware, on Friday evening,

12

the secretary changed this directive governing the counting

13

of provisional ballots to require county boards to reject

14

these same ballots.

15

THE COURT: As a threshold matter, Ms. Chisholm, why

16

do I have jurisdiction, because the argument that you raise

17

in your papers essentially is that this is a question of

18

state law, because the secretary has -- your argument goes,

19

the secretary has violated the statute, 3505.181(B)(6) in

20

its directive. So it's really a question of state law,

21

isn't it?

22

MS. CHISHOLM: No, I don't think so, Your Honor. I

23

should have said first, I want to take the consent decree

24

issue first and the clarification, modification of the

25

consent decree first. I think that's a much more

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1

straightforward issue, and I think the Court can actually

2

rule on those grounds. The consent decree has two

3

paragraphs in it. There's paragraph six which Your Honor

4

excised, and paragraph seven which deals with when the poll

5

worker fails to complete or incorrectly completes the

6

provisional affirmation form.

7

What we're asking your court to do is to construe

8

paragraph 7 to cover the issue here. Your Honor has

9

jurisdiction to construe the consent decree that this Court

10

issued. You look at state law in deciding how this consent

11

decree should be construed. You also look at the

12

representations of counsel. Counsel, on October 24th,

13

stood here and said, Your Honor, it's okay to excise

14

paragraph 6 because the poll worker error that occurs when

15

you don't fill in the identification comes under paragraph

16

7. That protection will remain.

17

Your Honor in your October 26th order said we're not

18

dealing with paragraph 7, because NEOCH plaintiffs actually

19

had a motion to expand and to modify the consent decree

20

under paragraph 7. Your Honor found that wasn't necessary

21

because there was no disparate treatment, right?

22

And the reason there was no disparate treatment

23

between NEOCH voters and non-NEOCH voters was because there

24

was a directive in place at the time --

25

THE COURT: Excuse me. I need just a copy of the

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1

consent decree. I brought everything but the consent

2

decree with me.

3

Please continue, I apologize, Ms. Chisholm.

4

Do you want Mrs. Evans to read back where you were?

5

I interrupted you in midstream.

6

MS. CHISHOLM: That's fine.

7

I do think what we can do is look at the consent

8

decree.

9

THE COURT: Why don't you put it on the --

10

MS. CHISHOLM: You're going to technically challenge

11

me here.

12

THE COURT: You wouldn't be challenged if you knew

13

where to find it.

14

MS. CHISHOLM: I don't know about that.

15

So paragraph 6 is the one that Your Honor excised,

16

which dealt with when the voter did not complete, or

17

properly complete, the provisional ballot application.

18

Paragraph 7 deals with -- I guess we actually need

19

the second -- when the poll worker did not complete or

20

properly complete and/or sign the provisional ballot

21

application line, and/or the provisional ballot affirmation

22

form. So paragraph 7 applies when the poll worker did not

23

complete the provisional affirmation form.

24

Defendants have conceded that Section 3505.181(B)(6)

25

of the Ohio Revised Code requires the poll worker to record

Ca!saaeasss:eee2::  :  2022:6:111-2c22-­v-­-cc-cv0vv-­-0­-000800095556666-2A22-­-­-LAAAMLLLM-MTM-­-­P-TTTKPPPKDKK    oDDDcoooc#cc  :  ###3::  5  1116000-1111    FFFFiiillleeeedddd:::    11111111///00008988///11112222    PPPPaaaaggggeeee:::    9999    oooofff    55550000      PPPPAAA9AGGGGEEEEIIIDDDD    ####:::    6166323398997277 6

1

the type of identification provided and the Social Security

2

information provided by a voter. They also, in arguing for

3

excising paragraph 6 of the consent decree, argued in

4

response to Mr. Berzon who said there's still a concern

5

about poll worker error here because we have this confusing

6

ballot affirmation form that has step two that requires the

7

voter to fill out the information that the poll worker is

8

supposed to fill out.

9

Secretary's counsel said don't worry about that,

10

that circumstance falls under paragraph 7. I think that's

11

a reasonable reading of paragraph 7. That's a reason that

12

comports with the law, with the Ohio law. So therefore

13

it's a reasonable construction of paragraph 7, which is

14

really what this Court needs to decide.

15

THE COURT: The secretary, in its papers, said that

16

he was revising the directive, or he issued directive

17

2012-54 to eliminate confusion, to provide clarity.

18

Isn't that within the ambit of his responsibilities,

19

to clarify issues that may be the source of some confusion

20

for either the voter or for the poll worker? As the chief

21

election officer, isn't that his prerogative?

22

MS. CHISHOLM: I think it's certainly an honorable

23

motive. There are two issues here. One is what is the

24

construction. First and foremost, before you get to the

25

directive and the new directive, this Court needs to decide

Ca!saaeasss:eee2::  :  2022:6:111-2c22-­v-­-cc-cv0vv-­-0­-000800095556666-2A22-­-­-LAAAMLLLM-MTM-­-­P-TTTKPPPKDKK    oDDDcoooc#cc  :  ###3::  5  1116000-1111    FFFFiiillleeeedddd:::    11111111///00008988///11112222    PPPPaaaaggggeeee:::    11110000    oooofff    55550000      P1PPPA0AAAGGGGEEEEIIIDDDD    ####:::    6166323398998288 7

1

what is the proper construction of paragraph 7 of the

2

consent decree. And once you decide that paragraph 7 does

3

apply to these circumstances, then you need to deal with

4

the disparate treatment problem, and that's where we get

5

into this -- paragraph 7 needs to be expanded to everyone.

6

The question as to the new directive which is what

7

now says for everyone if you don't fill out step two, we

8

are going to disenfranchise you, I think the intent

9

certainly is honorable. The fact of the matter is it would

10

have been fine to continue to have the poll worker fill out

11

this information.

12

The secretary's affidavit that he provided says we

13

wanted to eliminate poll worker error and, therefore, we

14

had been telling counties that if the poll worker fills

15

this out and makes a mistake, you disregard that. We

16

agree. That is exactly what the secretary should be

17

instructing the counties. That doesn't mean that the

18

secretary should stop asking for that information

19

certainly, when that's information that the secretary has

20

conceded the poll worker is required to record under the

21

law.

22

THE COURT: Well, the fact that he no longer

23

requires the poll worker to complete the form, but the

24

voter, doesn't mean that he's not seeking to ascertain the

25

same information. He's, in fact, seeking the same

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1

information. He's just shifting the burden. Isn't that

2

right?

3

MS. CHISHOLM: He is shifting the burden, Your

4

Honor.

5

THE COURT: Is there any point of law which

6

prohibits him from shifting the burden?

7

MS. CHISHOLM: Your Honor, we think -- yes, we think

8

that the statute certainly requires this. We think the

9

consent decree needs to be construed in accordance with

10

Ohio law. You can look to Ohio law in construing your

11

federal consent decree.

12

THE COURT: Let me ask you this. If his shifting

13

the burden to the voter does not violate constitutional

14

principles, doesn't unduly burden the right to vote, can he

15

still do it, even if it may be incongruous with state law?

16

MS. CHISHOLM: He could if the consent decree did

17

not exist. So plaintiffs believe that this matter should

18

be decided on the grounds of the consent decree, and then

19

on the grounds on which the Sixth Circuit --

20

THE COURT: So your motion, then, is just a motion

21

to enforce the consent decree?

22

MS. CHISHOLM: It is to clarify and enforce the

23

consent decree, and then on the remand issue --

24

THE COURT: Are there any constitutional issues --

25

are there any constitutional rights to be vindicated by

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1

having the secretary rescind 2012-54?

2

MS. CHISHOLM: Absolutely, Your Honor.

3

THE COURT: Which ones are they?

4

MS. CHISHOLM: Well, the Sixth Circuit in the NEOCH

5

decision made clear that a voter should not be

6

disenfranchised as a result of poll worker error. We know

7

that to be true. We know that it's poll worker error. We

8

also know that the Sixth Circuit, in talking about the

9

ballot affirmation issue, said this is not contrasted,

10

signing your name and printing your name with -- and they

11

quoted 181(B)(6), the poll worker's duty to record this

12

information.

13

So the Sixth Circuit was looking at Ohio law to

14

determine on whom has Ohio placed the duty to provide this

15

information. It would be burdensome to disenfranchise

16

people for failing to do what they are supposed to --

17

what's supposed to be done by the poll workers under Ohio

18

law.

19

THE COURT: Did the secretary's actions violate

20

Burdick?

21

MS. CHISHOLM: Yes, Your Honor. There's no

22

legitimate interest here that is served by switching this

23

over to --

24

THE COURT: Isn't the interest of having clear

25

instructions a valid interest? That's not a burden, is it?

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1

MS. CHISHOLM: It is, Your Honor.

2

THE COURT: The secretary said, "I did this to

3

clarify." And if the chief elections officer can't bring

4

clarity to a process, than who can? How can that be

5

said -- if you believe the secretary, how can that be said

6

to constitute a burden, Ms. Chisholm?

7

MS. CHISHOLM: It can be said to constitute a burden

8

because what the secretary has done is to shift this burden

9

over to the voter while totally rescinding what the poll

10

worker was supposed to be doing. If the secretary really

11

wanted to clarify this, they could have clarified the form

12

for the voter to fill out and continued to have the poll

13

worker record the information as the poll worker is

14

required to do under Ohio law.

15

THE COURT: Isn't this a logical extension of the

16

Sixth Circuit's opinion in which it said the form is

17

essentially a simple form, the voter should fill it out,

18

fill it out correctly?

19

MS. CHISHOLM: The Sixth Circuit said that the voter

20

should fill out the name and the signature and should

21

provide the identification. The Sixth Circuit then

22

quoted --

23

THE COURT: Let me ask you this. So, when I said

24

it's a logical extension, what the secretary's asking to do

25

is for the voter, then, to check which type of

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1

identification she provided. Right?

2

MS. CHISHOLM: Right.

3

THE COURT: Okay. So, if you've got to fill out

4

your name and maybe the Social Security number, or whatever

5

else you have to fill out on that form --

6

MS. CHISHOLM: Your name and your signature.

7

THE COURT: -- your name and your signature, and the

8

voter is providing the poll worker with a type of

9

identification, whether it's Social Security number,

10

military, or government ID or driver's license, wouldn't it

11

be a logical extension given the Sixth Circuit's rationale

12

to say, since I, the voter, am providing you, the poll

13

worker, with my type of identification, why can't I, the

14

voter, simply check off what type of identification I'm

15

providing to the poll worker?

16

MS. CHISHOLM: There are a couple of issues here. I

17

think one is if you look at the actual form, it's a lot

18

more complicated than that.

19

THE COURT: It is indeed.

20

MS. JUDGE: This is a significant burden. As Your

21

Honor knows in the consent decree that was issued here,

22

that directive that's attached, it's a very complicated

23

question as to what's a current ID and what's not.

24

I see I'm getting close to my time.

25

THE COURT: Keep going. I'm the timekeeper.

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1

Actually, Ms. Clark is but I'll let you run over.

2

MS. CHISHOLM: Therefore, it is a burden to

3

disenfranchise someone for failure to fill that out when

4

that information could also be recorded in accordance with

5

Ohio law --

6

THE COURT: Doesn't Burdick establish a balancing

7

test? So it looks at the interest that is sought to be

8

achieved vis-à-vis the burden. Right?

9

MS. CHISHOLM: Yes, Your Honor.

10

THE COURT: And so my -- I agree with you that it is

11

a burden, but in weighing the competing interests,

12

clarification of the process compared to having the voter

13

check off the box with which identification form I'm

14

providing, why is that not within the secretary's rights

15

and responsibilities to do?

16

MS. CHISHOLM: A quick answer to that, and then I

17

want to turn back to the consent decree.

18

THE COURT: We have time.

19

MS. CHISHOLM: There is no legitimate state interest

20

here that requires that burden, that would justify that

21

burden, because Ohio -- one, Ohio can't say that there's an

22

interest in not having the poll worker record the

23

information that their statute says they have to record;

24

nor, can Ohio say that somehow they're not able to tell

25

counties not to reject ballots on the basis that the poll

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1

worker makes a mistake since that's what Ohio has been

2

doing up until Friday.

3

So, even if there is some motivation here to make it

4

more clear, it's actually not furthering any legitimate

5

state interest.

6

But what I do want to say is Your Honor does not

7

have to reach this question. When we were here last on

8

October 24th, Mr. Berzon argued on the consent decree.

9

Consent decrees can go beyond what's constitutionally

10

necessary. I can tell you that the SEIU plaintiffs are

11

willing to withdraw their motion for preliminary injunction

12

and allow the NEOCH case to proceed on the consent decree.

13

We think that is the best argument here, that the clear

14

conceded interpretation of paragraph 7 is that it applies

15

to these voters who, for whatever reason, failed to record

16

the information, the poll worker has no way complied with

17

their statutory duty. That comes under section seven here.

18

There are principles of judicial estoppel at play

19

here. Your Honor, in excising paragraph 6, relied on

20

representations by the secretary that the poll worker error

21

that we were describing in that argument was not under

22

paragraph 6. It was under paragraph 7. You can't deny

23

it's poll worker error because clearly, undisputedly there

24

is a duty to record this information, and the poll worker's

25

not recording it.

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1

THE COURT: Thank you, Ms. Chisholm.

2

Mr. Chandra.

3

MR. CHANDRA: Good morning, Your Honor, and may it

4

please the Court. And thank you also for scheduling things

5

on such a rapid fire schedule in this matter. We really

6

appreciate it.

7

On behalf of NEOCH, I'd like to reinforce some of

8

the arguments that were made by Ms. Chisholm but also

9

provide a slightly different emphasize and a bigger picture

10

on how we got to this situation. It's very important from

11

our client's perspective.

12

As Your Honor knows, six years ago, NEOCH filed this

13

litigation to try to vindicate the rights of the poorest of

14

the poor, those who lack paid forms of identification which

15

were the only forms of identification that the state of

16

Ohio had written into the statute that people could vote

17

on. So driver's license, costs money; state issued ID,

18

costs money; bank statement in your name, you've got to

19

have money; utility statement, you've got to have property.

20

So ultimately that was the underlying constitutional

21

claim that was so deeply held by the NEOCH plaintiffs.

22

Ultimately, it resulted in the interim consent decrees for

23

the purposes of the 2006 election that Your Honor was so

24

heavily involved in mediating, and then that eventually led

25

to similar resolution in the 2010 NEOCH consent decree.

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1

The road to get to those consent decrees, as Your

2

Honor knows in part from being involved in the 2006

3

matters, was very difficult and very challenging. And one

4

of the things that Mr. Coglianese, on behalf of the state

5

and the secretary of state, repeatedly emphasized was that

6

the consent decree had to be faithful to Ohio law. We

7

heard that over and over again. There was even insistence

8

on incorporating actual language echoing Ohio law in the

9

consent decree.

10

That led to the situation where you had subpart

11

clauses six and seven in the consent decree. And that led

12

to the situation where, on October 24th in this courtroom,

13

when Mr. Berzon was expressing on behalf of the NEOCH

14

plaintiffs this concern that if the carefully negotiated

15

provision of the consent decree that insured that defects

16

in ballot affirmation forms would not be a basis under

17

which human beings would be disenfranchised, when that

18

concern was expressed, the secretary of state's counsel got

19

up and assured this Court, assured plaintiffs, assured the

20

world that's not going to happen, that's not a worry

21

because consistent with the Sixth Circuit's opinion, just

22

write your name, sign your name, and the recording of the

23

identification is the poll worker's responsibility.

24

Now, this judicial estoppel principle is extremely

25

important because Your Honor wrote into the opinion that

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1

you were relying upon that representation. Your Honor said

2

critically -- and I'm quoting from the Court. Your Honor

3

said that critically the poll worker's role -- Your Honor

4

reflected that it was critical that the poll worker's role

5

was recording the identification, and that is in the

6

opinion.

7

So, for the NEOCH plaintiffs now to be put in a

8

position -- this may not have been the intention by the

9

secretary, but certainly the effect is that of a

10

bait-and-switch. On October 24th, don't worry, your vote

11

is still going to be counted because it's the poll worker's

12

job to record identification. That was a true statement of

13

Ohio law as reflected in subparts B6 and B7. That's what

14

it says. It's not, as the secretary has represented,

15

subject to interpretation. It says that the election

16

official will do it.

17

One issue that NEOCH doesn't want to get lost in

18

this discussion is not just that it is the election

19

official's duty to record what ID was used, but it is the

20

elections official -- also it is their duty under B7. And

21

if you look at the 182 statute, the provisional ballot

22

affirmation form, there also it is reflected that the

23

election official is supposed to record what, if any,

24

additional information the voter is supposed to come back

25

with. That reflects due process in the conversation and

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1

the engagement between the election official and the voter,

2

that the voter is being informed about what more they need

3

to do to insure that they do not lose their right of

4

franchise, something that this Court has emphasized

5

repeatedly in this litigation is paramount. The judicial

6

estoppel principle is important because everyone relied on

7

this.

8

I would point to a couple of other things in

9

connection with the emergency motion that was filed last

10

Thursday. We believed, based on the Court's decision,

11

based upon Mr. Epstein's representation, that it was

12

understood among the parties that voters would not be

13

disenfranchised based on a defect on section two of that

14

form. But knowing that the secretary of state needed to

15

issue a directive to implement this Court's orders, we

16

wanted to make sure. So we sent a letter to the secretary

17

of state through Mr. Epstein on Wednesday morning,

18

October 31st, saying we just want to make sure as you're

19

writing up those directives that you're being clear that

20

elections boards are not to disenfranchise people based on

21

a defect.

22

We didn't receive the courtesy of a response. We

23

asked for a response by noon the following day. My

24

declaration establishes I made a follow-up call that

25

afternoon out of concern. And finally we felt we had no

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1

choice but to file the emergency motion.

2

NEOCH's worst fears were realized when, in fact, at

3

the eleventh hour on the eve of the election, Friday night

4

after the close of business, they issue the directive

5

essentially directing elections officials all over the

6

state to disenfranchise people based on a defect in the

7

form.

8

So going back to the question you asked

9

Ms. Chisholm, which is, is there a constitutional problem

10

here. What I would say is this. First of all, Your Honor

11

has a consent decree that is a federal order and we're

12

asking for clarification of that order. And that all

13

relates to the underlying constitutional concerns. But

14

second, there is a fundamental due process concern

15

associated with the bait-and-switch. There is a

16

fundamental judicial estoppel concern that is presumably

17

constitutionally founded, that what we hear from the

18

secretary of state is, oh, my goodness, we can't change the

19

rules at the last minute, we can't change the rules of the

20

game. We have to have orderly procedure.

21

Well, this is a problem of the secretary's own

22

making. And the issue of provisional ballot affirmation

23

Form 12-B was never an issue. So this laches argument just

24

goes away. It was never an issue until Friday night when

25

they issued the directive because the Court's order, the --

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1

Mr. Epstein's interpretation, as expressed to the Court,

2

and the previous language that had been in the consent

3

decree in subpart 6 that got excised, all of those things,

4

up until October 26th on the excision, and then last

5

Friday, November 1st, that night, until that moment, this

6

was never an issue in this litigation because the consent

7

decree ensured that voters wouldn't be disenfranchised on

8

this basis.

9

So that is NEOCH's underlying concern, is what we

10

see is a chipping away, an eroding away of this right.

11

Your Honor is absolutely right. It may be that

12

ultimately a court looking at this says, step two isn't so

13

burdensome although this is a little complicated. But the

14

issue is not -- because it might wind up being a wise

15

policy judgment by the State of Ohio and general assembly

16

to say we're going to ask the voter to record that unless

17

they need assistance or you have to accommodate people's

18

disabilities or illiteracy, that sort of thing. That might

19

be a wise policy judgment.

20

But the policy judgment is already made by the

21

expressed language of the statute which is not subject to

22

interpretation. The policy judgment was already made when

23

the State of Ohio represented to this Court, and this Court

24

relied upon that, and the parties relied upon that. So to

25

change that rule in the middle of the game, that's the

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1

underlying concern. The bait-and-switch is the underlying

2

constitutional concern. And that is why we're asking not

3

for a modification of the consent decree, but simply a

4

clarification that the Court meant what it said.

5

The underlying concern is that by shifting the

6

burden at the last moment to the voter and insisting that

7

voters be disenfranchised on that basis, it increases the

8

statistical likelihood that an error on that form -- that

9

the secretary and the boards will throw up their hands and

10

say, see, it's not our fault, when in fact the statute

11

places the responsibility on them. And to do that at the

12

last minute is inappropriate.

13

THE COURT: Thank you, Mr. Chandra.

14

MR. CHANDRA: Thank you.

15

THE COURT: Mr. Epstein.

16

Mr. Epstein, would you agree that voting is the

17

linchpin of our democracy?

18

MR. EPSTEIN: Yes, Your Honor.

19

THE COURT: I do too. What concerned me about the

20

2012-54 directive is that it was filed on a Friday night at

21

7 p.m. The first thought that came to mind was democracy

22

dies in the dark. So, when you do things like that that

23

seeks to avoid transparency, it appears, then that gives me

24

great pause but even greater concern.

25

So, if anyone I'm going to give additional time to,

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1

it's going to be you, Mr. Epstein, because you have a lot

2

of explaining to do. Please proceed. I want you to begin

3

by telling me how 2012-54 does not fly in the face of

4

3505.181. That's first.

5

Then I want you to tell me secondly how what the

6

secretary did can be reconciled with what you said on page

7

47 of the transcript. I'm going to read it to you because

8

I know you are prepared to answer this. You had to have

9

thought about this because either you have been put in an

10

untenable situation as an advocate, or the right hand

11

doesn't know what the left hand is doing in the secretary

12

of state's office. You say, and I quote, "Mr. Berzon

13

suggested to you, for example, that there might still be

14

poll worker error because there is an obligation to record

15

on the form the mode of identification used. And if that's

16

missing, that's a defect in the ballot. But that scenario

17

is not covered by the provision we're talking about because

18

as they say, the obligation to write down the identifying

19

information is imposed upon the poll worker, not the voter.

20

And in Section 7, it says that we won't invalidate ballots

21

based upon the poll worker's failure to write something

22

down, so we're not talking about that scenario. That

23

scenario, in fact, doesn't even deal with an affirmation

24

that is deficient because it is lacking a printed name or

25

signature, which is all that five is talking about."

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1

Please proceed.

2

MR. EPSTEIN: I think there is a single answer to

3

both of your questions. And the answer in short is Revised

4

Code 3505.182. The poll workers, the elections officials

5

have responsibilities to record certain information, and

6

under 3505.182, the voters also have certain obligations.

7

THE COURT: Right.

8

MR. EPSTEIN: The model form -- and for purposes

9

right now, let me speak just to the NEOCH portion in the

10

consent decree and then we'll broaden the focus.

11

THE COURT: All right.

12

MR. EPSTEIN: The model form that the revised code

13

contemplates clearly says that the provision of the

14

affirmation that the -- I'm sorry, the provision of the

15

form, the affirmation portion that the voter fills out,

16

includes writing down the four digit Social Security

17

number.

18

There's a second provision in 3505.181 which seems

19

to contemplate elections officials also recording that

20

information, but that's not in the context of the

21

affirmation form. It doesn't say where or how they're

22

supposed to record it; it simply says they're supposed to

23

do it.

24

Past practice has been --

25

THE COURT: You're losing me now, because when I

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1

read 181, the clause says the appropriate elections

2

official shall record the type of identification provided.

3

That's unambiguous. It's a command. So I'll tell you

4

what, put up 182 on the ELMO so that we can all look at it,

5

because maybe I've overlooked something.

6

Mr. Coglianese will have it, and if he doesn't have

7

it, I have no doubt he could write it verbatim from memory,

8

he's dealt with it so much.

9

MR. EPSTEIN: It's a little difficult because the

10

book doesn't curve the way a paper would.

11

THE COURT: We could always take a one minute break

12

and make a copy.

13

MR. EPSTEIN: I think we have it now.

14

MR. CHANDRA: Which one were you asking for?

15

THE COURT: 182.

16

MR. EPSTEIN: This is what I was referring to. This

17

is the model form 3505.182. It says, provisional ballot

18

affirmation and the blanks it provides is, one, I, and it

19

leaves a blank for the person's name, signature of the

20

voter at the bottom, voter's date of birth, last four

21

digits.

22

THE COURT: Right.

23

MR. EPSTEIN: The --

24

THE COURT: And I want you to note that in that

25

introductory paragraph, it says each individual who casts a

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1

provisional ballot under Section 3505.181 of the Revised

2

Code shall execute a written affirmation.

3

So 182 feeds off of 181. 181 is like a predicate

4

statute. 181 defines the rights, and that still does not

5

absolve poll workers from the command, the legislative

6

command, in 181 that the appropriate local election

7

official shall record the type of identification provided.

8

There's nothing in this form that absolves the poll

9

worker of that responsibility. I'm still looking for that,

10

Mr. Epstein.

11

MR. EPSTEIN: Your Honor, there is a difference

12

between the type of identification and the substantive

13

information. So, for example, what they're really talking

14

about is all these checkmark categories, the type of. If

15

they record that you used a driver's license, that's not

16

the same thing, that the poll worker has to write down the

17

driver's license number.

18

THE COURT: So let's take that example. So what the

19

poll worker is tasked to do under 181 in that example is to

20

check off the box that said he used a driver's license.

21

Right?

22

MR. EPSTEIN: Yes. And Your Honor, that's why I

23

wanted to make sure --

24

THE COURT: But then 2012-54 says that the poll

25

worker doesn't have to do that. Isn't that correct?

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1

MR. EPSTEIN: Yes. But let's be clear. Again,

2

we're talking about the NEOCH consent decree which would

3

not apply to voters who fall under B and C. Because if

4

they used --

5

THE COURT: That's cross-pollination, Mr. Epstein.

6

That's cross-pollination. What we're talking about is in

7

its pristine form, the poll worker has to record the type

8

of information provided. The poll worker -- that's what

9

181 says. Let's walk through that. Is that right?

10

MR. EPSTEIN: Respectfully, Your Honor, I don't

11

agree with your interpretation.

12

THE COURT: Look, I'm not talking about

13

interpretation. I'm talking about reading it. Look at 181

14

and tell me whether 181 says the appropriate local

15

elections official shall record the type of information

16

provided. Doesn't it say that?

17

MR. EPSTEIN: It does say that.

18

THE COURT: And has the legislature enacted any

19

legislation that has transcended or rescinded this?

20

MR. EPSTEIN: No.

21

THE COURT: Okay. Now, this is still the law of the

22

State of Ohio, isn't it?

23

MR. EPSTEIN: It is, Your Honor.

24

THE COURT: Section 182, in its preamble, says that

25

each individual who casts a provisional ballot under

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1

3505.181 shall execute a written affirmation. So 182

2

relates back to 181, doesn't it?

3

MR. EPSTEIN: Yes.

4

THE COURT: Now, tell me where it is that the

5

election official no longer has the burden of recording the

6

type of identification provided. That's what I want to

7

know right now. Tell me where it says that that person is

8

absolved of that responsibility except in directive

9

2012-54.

10

MR. EPSTEIN: I'm not contending that the elections

11

official is absolved of that responsibility. I'm

12

contending that both parties have a responsibility.

13

THE COURT: Show me the statute which says that the

14

voter has the responsibility -- shall record the type of

15

identification provided. Show it to me.

16

MR. EPSTEIN: I believe that that --

17

THE COURT: I'm going to give you a chance to make

18

your belief. But right now I'm asking you questions to

19

give you an opportunity to persuade me, because my

20

questions really are just opportunities to persuade. They

21

may seem a bit animated at times because that's simply

22

because I'm really trying to get to the root of this, and I

23

don't want to see democracy die in the darkness on my

24

watch, especially with voting. You know I have a special

25

place for voting.

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1

So I want you to tell me what statute says that the

2

voter has the burden, or put in the mandatory, shall record

3

the type of information that he or she has provided.

4

MR. EPSTEIN: In general there is no such statute.

5

THE COURT: In particular, then, is there such a

6

statute?

7

MR. EPSTEIN: I think 182 imposes that

8

responsibility.

9

THE COURT: Show me the language.

10

MR. EPSTEIN: I cannot find the word "shall" for

11

you. I believe it's contemplated in the way they designed

12

the form where they said this is the information for the

13

affirmation, and then the voter can provide at his or her

14

discretion this other information.

15

THE COURT: Mr. Epstein, I have said on the record

16

that Mr. Coglianese is probably one of the best election

17

lawyers who's been in my courtroom; maybe one of the best

18

lawyers, period. I believe the same thing of you because

19

of the nature of the work that you've done. Do you

20

honestly believe what you just told me?

21

MR. EPSTEIN: I do, Your Honor.

22

THE COURT: If you honestly believe that, show it to

23

me, because you were -- in another context, and in this

24

case, you have argued that it's literally not there. You

25

have argued that the absence of the language means the

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1

absence of the law. Now you're telling me to look at this

2

and find an obligation, a burden, if you will, within the

3

penumbras of this statute.

4

Show it to me. All I'm asking is to see it. If I

5

can see it, I can believe it. But if you can't show it to

6

me, then make your penumbras argument. We're going to be

7

transparent, and you're going to tell me -- if you expect

8

to prevail, somebody is going to answer my question because

9

no one is answering it from your side as to where it is.

10

So tell me if it's in the penumbras because you can't point

11

to the language. So show me where it is. Show me where

12

it's meant. Show me the legislative history. Show me the

13

facts that the secretary used to make the decision to

14

change this directive at seven o'clock on a Friday night on

15

the eve of an election. I want to see it, and I want to

16

see it now. Show it to me.

17

MR. EPSTEIN: Your Honor, I have no legislative

18

history to present to the Court.

19

THE COURT: Continue with your argument.

20

MR. EPSTEIN: Within the confines of the consent

21

decree, Your Honor, even accepting every argument from the

22

plaintiffs is true, that this is a responsibility that the

23

revised code imposes on the poll worker, there's no way at

24

this point in time for the Court to determine which

25

ballots, which provisional envelopes were cast by NEOCH

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1

voters and which ones were cast by people using other forms

2

of identification, or indeed people who presented no

3

identification whatsoever. The only remedy this Court can

4

order is to count all ballots where this information is

5

missing. I think that would be an unwarranted expansion of

6

the consent decree and would signal that Ohio doesn't even

7

enforce its voter identification laws anymore.

8

So the problem that they have is they can't shoehorn

9

all of these ballots into the consent decree, and they

10

can't tell the Court which ones should be counted and which

11

ones should not.

12

With respect to SEIU, the Court has already

13

identified the larger problem, which is simply that there's

14

no constitutional interest to be vindicated here. Even if

15

this is a violation of state law, the analysis that the

16

Sixth Circuit has set out in the NEOCH case would tell us

17

that the burden imposed upon the voters is minimal. I take

18

great issue with the statement from the plaintiffs that

19

there's no state interest here. I think there is an

20

interest in having the form this way, in terms of fraud

21

prevention, because you are having the voter attest to

22

information. There's an interest in terms of avoiding the

23

stakes, because if I ask you to write down your driver's

24

license or your Social Security number, there's less of a

25

chance of an error than if you tell it to me verbally and I

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1

write down what I heard. So I think the state --

2

THE COURT: Mr. Epstein, you and I are in total

3

agreement on that. That's the correct reading of 182: I

4

write it down. But that still doesn't answer my underlying

5

question.

6

The only reason that -- I just think that you

7

recognize that you're in an untenable position because I

8

don't see any type of legal sophistry that you can employ

9

that will ingraft upon 182 that the voter has the burden of

10

recording the type of information provided.

11

Now, maybe you're arguing there is a conflict in the

12

statute, but 182 is basically just almost an enabler of

13

181. 182 is just a form. 181 sets forth the duties and

14

responsibilities. Would you agree with the fact that 181

15

sets forth duties and responsibilities?

16

MR. EPSTEIN: Yes.

17

THE COURT: Now, before you get to the second

18

question that I asked about your comments on page 47, I

19

want to get back to another question. What fact finding

20

did the secretary do to arrive at the conclusion that there

21

was confusion that required him to enact 2012-54?

22

MR. EPSTEIN: I believe some of the answer to that

23

question is spelled out in the declaration of

24

Mr. Damschroder that we submitted to the Court which

25

explains the process that led to the creation of this form

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1

and the issuance of 2012-01, the directive from January.

2

THE COURT: It seems to say, beginning with

3

paragraph 3 that beginning -- during the 2011 election

4

year, some of the boards of election had questions about

5

how to proceed with provisional ballots, and that was the

6

driver. Is that a fair characterization, Mr. Epstein?

7

MR. EPSTEIN: It is.

8

THE COURT: Now, if that is the case, then what led

9

you to make the statement that you made in -- on page 47

10

that the obligation to write down the identifying

11

information is imposed upon the poll worker, not the voter?

12

Those seem to be inconsistent.

13

MR. EPSTEIN: The answer to that question is partly

14

contained in paragraph 11 of Mr. Damschroder's declaration.

15

I understand that the Court does not agree with my argument

16

that, in fact, there are two obligations.

17

THE COURT: Did you say paragraph 11 or paragraph

18

12?

19

MR. EPSTEIN: Paragraph 11.

20

THE COURT: Let me read paragraph 11 to you so you

21

can contemplate it as I am contemplating it.

22

Form 12-B also eliminated most of the items in the

23

verification statement to eliminate the chance that the

24

poll worker's actions or inactions could ever keep a

25

provisional ballot from being counted. The section at the

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1

bottom, the Precinct Election Official Info, clearly

2

states, quote, failure by the precinct election official to

3

complete this section will not affect whether or not this

4

provisional ballot is counted, quotes closed.

5

MR. EPSTEIN: That's correct.

6

THE COURT: Now, tell me how this shifts the burden

7

from -- well, what you're representing to the Court is that

8

the burden would remain upon the poll worker to write down

9

the identifying information. Tell me how this changes

10

that.

11

MR. EPSTEIN: That's what I want to do. If I can

12

elaborate. The form that we're talking about -- and I

13

don't know if the Court has it in front, but essentially

14

the top half is the affirmation that the voter fills out;

15

the bottom half is the information that the poll worker

16

fills out, what I think is technically referred to as the

17

verification.

18

The verification that's currently in use asked the

19

poll worker to put in minimal information, basically

20

identifying the poll worker's name and the location. The

21

form that was in use before this was much more expansive

22

and actually implemented the things you're talking about

23

from 3505.181. So there was a much longer form for the

24

poll worker to fill out that incorporated all this

25

information. When I responded to Mr. Berzon's questions,

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1

it's that section I had in mind.

2

It's always been the practice, at least under this

3

secretary of state -- I can't speak to prior

4

administrations, but it's been the practice of this

5

secretary of state that errors by the poll worker in

6

filling out the verification form would not be counted

7

against the voter. That is what I was indicating. I

8

didn't mean to mislead the Court.

9

THE COURT: I don't believe that you meant to

10

mislead the Court. What I believe is that you were telling

11

the truth here because this is what the statute requires.

12

And nobody has questioned that. I mean, it's as clear as

13

day to me. Not once would I question your integrity,

14

Mr. Epstein, but it's hard for me to see you standing up

15

here telling me that what the statute says is not what it

16

says because you said what the law is on page 47, and then

17

the secretary did what is contrary to what the legislature

18

has instructed what the law is. At least that's what

19

appears to me.

20

I'm trying to get you to tell me what happened

21

between this date when you said the obligation to write

22

down the identifying information is imposed upon the poll

23

worker, not the voter, which is also what Section 3505.181

24

says and last Friday night. You have talked and I still

25

don't get it.

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1

I know that I approached this with an open mind

2

because I wanted to believe that there would not be -- I

3

had no reason to believe, rather, that there would not be

4

attempts at voter suppression. But I still don't have a

5

satisfactory explanation. As a matter of law and as an

6

officer of this court, I still want to know what happened

7

between the date of this statement - I don't remember what

8

day it was - and Friday night that changed the law.

9

That's why I was going to give you a chance to tell

10

me maybe the secretary did some fact finding and he was

11

compelled to change the law, or maybe there was an

12

emergency session of the legislature that changed this, or

13

maybe there was some rule-making authority that the

14

secretary has that would empower him to change what appears

15

to be the law and to do it in the form of a directive and

16

file it at seven o'clock in the evening.

17

There are any number of ways that you can explain

18

it, but you pick a way, but just explain it. But don't

19

tell me that this is not -- don't tell me that I'm reading

20

this incorrectly because I know that I read it correctly

21

because I've read this a gazillion times to try to

22

understand what happened between your representation to the

23

Court in making the appropriate statement of the law and

24

the change in the law. Something usually precipitates a

25

change in the law. So tell me where I missed it.

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1

MR. EPSTEIN: Your Honor, I have no knowledge or

2

information of the types of examples that you're talking

3

about. I cannot tell you what the considerations were that

4

led to the issuance of the directive. All that I can tell

5

you, as an officer of the court, is that when I read the

6

directive I did not perceive it to be changing the law.

7

THE COURT: You didn't write this directive, did

8

you?

9

MR. EPSTEIN: Your Honor, I did not write it. I did

10

not --

11

THE COURT: Who wrote it?

12

MR. EPSTEIN: I do not know the answer to that.

13

THE COURT: Would you confer with your counsel and

14

find out who wrote it, because I may want that person to

15

come and explain it to me.

16

MR. EPSTEIN: I'm sorry, Your Honor. My co-counsel

17

doesn't know that information either.

18

THE COURT: It's noon. We're going to take a

19

15-minutes recess. I want you to call and find out who

20

wrote it.

21

(Recess taken from 12:02 to 12:20.)

22

THE COURT: Please proceed, Mr. Epstein.

23

MR. EPSTEIN: Thank you, Your Honor.

24

I've had an opportunity to speak with my client, and

25

what I've been told is that the drafting of the directives,

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1

and this directive in particular, is a collaborative

2

process. It begins in the legal section under the

3

supervision of Elizabeth Schuster, who is the chief

4

elections counsel. When their work is done, it then goes

5

to the elections staff under the director of elections,

6

Mr. Damschroder. And his staff then works on it before it

7

is -- the final product, or close to final, is sent to the

8

assistant secretary of state and then on to the secretary

9

himself.

10

THE COURT: Well, I suppose that I could always have

11

Mr. Damschroder, since he provided the declaration, his

12

affidavit. He would probably have the most knowledge of

13

what led to it, to the enactment of 2012-54, and that would

14

give me better insight as to the clarity that was needed to

15

enact this and to the timing of this enactment. But that

16

may not be necessary depending on the conclusion of your

17

argument. I still have a retort, a written retort, that's

18

coming tomorrow that I can factor into my decision. And I

19

would imagine, because you are an excellent lawyer,

20

Mr. Epstein -- by the way, just to confirm, you weren't in

21

this chain?

22

MR. EPSTEIN: That's correct.

23

THE COURT: They just sent you down here to argue it

24

but they didn't ask you to help create it.

25

At the time that you made the statement that you

Ca!saaeasss:eee2::  :  2022:6:111-2c22-­v-­-cc-cv0vv-­-0­-000800095556666-2A22-­-­-LAAAMLLLM-MTM-­-­P-TTTKPPPKDKK    oDDDcoooc#cc  :  ###3::  5  1116000-1111    FFFFiiillleeeedddd:::    11111111///00008988///11112222    PPPPaaaaggggeeee:::    44440000    oooofff    55550000      P4PPPA0AAAGGGGEEEEIIIDDDD    ####:::    6166424428228588 7

1

made on October the 24th to me about the obligation to

2

write down the identifying information is imposed upon the

3

poll worker, not upon the voter, you didn't know that

4

2012-54 was being drafted?

5

MR. EPSTEIN: I was aware the directives were under

6

way, but I didn't know the content of them.

7

THE COURT: So you didn't know that directive was

8

going to change what you said?

9

MR. EPSTEIN: That's correct.

10

THE COURT: Do you have anything further to add,

11

Mr. Epstein?

12

MR. EPSTEIN: Your Honor, I would simply return to

13

the point that I had made briefly before, which is that I

14

think the Court correctly identified the fact that this is

15

ultimately an issue about whether the secretary's properly

16

applying -- complying with his obligations under state law.

17

And except for the limited neighborhood of the consent

18

decree that would be beyond the purview of the Court.

19

THE COURT: Let's take that for a minute. Now,

20

under the Sixth Circuit's ruling in NEOCH, the Court made

21

it clear that the due process clause protects against

22

extraordinary voting restrictions that render the voting

23

system fundamentally unfair, kind of like an extension of

24

Burdick and all that.

25

If you have a circumstance where the secretary has

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1

enacted a directive that is in contradistinction of state

2

law and that imposes voting restrictions -- because what

3

happens is, now, if a provisional ballot is not checked as

4

to -- it's not poll worker error, it's voter error, and

5

then the ballot doesn't have to be counted, and that makes

6

it fundamentally unfair because the poll worker has been

7

directed to violate state law and, in doing so, it

8

nullifies that vote. Because if the poll worker follows

9

state law, the poll worker himself or herself would check

10

off the box, and, as you correctly point out, under 182,

11

the voter would have to fill out certain things. But 182

12

never says that the poll worker does not have to check the

13

box. That's what 181 says. There's nothing in 182 that

14

says it. And then we always -- I can always come back to

15

your correct interpretation of state law when you yourself

16

said that it was not the voter's burden.

17

It only became the voter's burden after the

18

secretary declared it was the voter's burden and sent you

19

in here to defend it. You haven't been able to show me any

20

law that would justify that, nor have you shown me any

21

facts that would require him to change it. One other thing

22

I wanted to ask you before I continue with my question

23

about the constitutionality of this. Is there any state

24

law or administrative legislation that empowers the

25

secretary to change statutes under his rule-making

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1

capabilities and authority?

2

MR. EPSTEIN: No, Your Honor. The secretary's

3

authority is to implement, interpret, and fill the gaps.

4

THE COURT: Okay. Now, the other issue that I see

5

is a possible equal protection issue, Mr. Epstein, because

6

you have now -- with 54 you have created a system where

7

provisional ballots are being treated differently under

8

your scenario than they would have been treated had state

9

law been followed.

10

So even provisional voters can be conceivably

11

treated differently, that is, the SSN four provisional

12

ballot voters are being treated differently, possibly, than

13

other provisional ballot voters because it appears that

14

some are now going to be subject to 54 and others are not.

15

MR. EPSTEIN: I want to make sure I understand the

16

question, Your Honor. Is it taking us back to what happens

17

if you find in favor of the NEOCH plaintiffs, and that's

18

the nature of the equal protection problem? Because if

19

it's a concern about simply administration, I don't see the

20

equal protection problem because, as far as we know, none

21

of the poll workers are doing this. So everybody is being

22

treated the same in that respect.

23

THE COURT: If some poll workers are abiding by the

24

state statute and checking off the box, and other poll

25

workers are abiding by the directive and saying that, well,

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1

if the box is -- I'm not going to check off the box, and if

2

the voter doesn't check off the box, I'm not counting this

3

ballot, aren't those provisional voters being treated

4

differently?

5

MR. EPSTEIN: Yes, but not to the level of an equal

6

protection violation.

7

THE COURT: Why not? Because you have two sets of

8

provisional voters who are being treated differently, it

9

seems.

10

MR. EPSTEIN: Theoretically, that's true. And I

11

would add parenthetically we have no evidence in the record

12

to suggest that's actually happening. But I think that for

13

all of this constitutional analysis, the focus shouldn't be

14

on the extent to which the secretary does or does not

15

comply with state law, because you can have an equal

16

protection violation when he is complying with the law if

17

the law is unconstitutional. It always comes back to the

18

question of what is the state interest, what is the burden

19

on the voters, and so forth.

20

What's troubling to me, as I try to see the burden

21

on the voter, is that irrespective of who is responsible

22

for filling out the step two information, the voter has to

23

sign at the bottom of the form attesting that the

24

information is true. So the voter has the last chance to

25

review the form, catch the omission, and fill it in or say

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1

something, and essentially not sign an affirmation that is

2

untrue or incomplete.

3

So I think from an equal protection perspective,

4

yes, it may be a poll worker in some hypothetical instance

5

making the checkmark, but the opportunity still exists for

6

the voter to put in that checkmark. And that's what

7

distinguishes it, for example, from the Court's ruling with

8

respect to the right church, wrong pew where the poll

9

worker is the only one in the position to catch a mistake

10

and cure it.

11

The burden here on the voter is so small, to review

12

before signing it, fill it in if it's missing some

13

information. I don't think that different handling by the

14

poll worker would rise to an equal protection problem.

15

THE COURT: Thank you, Mr. Epstein.

16

MR. EPSTEIN: Thank you, Your Honor.

17

THE COURT: Ms. Chisholm, you have five minutes.

18

MS. CHISHOLM: Thank you, Your Honor. Mr. Chandra

19

would like to use one minute.

20

First and foremost, I want to be very clear because

21

I realize I was not before. The SEIU plaintiffs are going

22

to withdraw their motion for preliminary injunction because

23

we believe it's not necessary. On the modification

24

request, the motion for clarification and modification, we

25

think it's a very straightforward analysis.

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1

There is a two-step analysis. One is whether

2

paragraph 7 applies here to protect the NEOCH voters. It

3

clearly does.

4

THE COURT: So are you asking now, then, to expand

5

the consent decree to cover all voters?

6

MS. CHISHOLM: Yes, Your Honor.

7

THE COURT: What's the legal basis for that? What's

8

the constitutional basis?

9

MS. CHISHOLM: The constitutional basis is Bush

10

versus Gore. The Sixth Circuit remanded to this Court the

11

issue in the reverse scenario where it vacated the

12

preliminary injunction and said -- on the ballot

13

deficiency, but said the consent decree continues to

14

protect against those deficiencies, therefore, there is an

15

equal protection violation that they were remanding to the

16

district court's discretion to resolve on a motion to

17

modify.

18

This is the exact same scenario where we have -- and

19

we didn't have this issue until Friday night. But we have

20

the consent decree, paragraph 7 covering these ballots,

21

because it says you can't disqualify when a poll worker

22

fails to do their duty. As we've discussed, the poll

23

workers fail to do their duty when those boxes aren't

24

checked.

25

If you look at the Directive 12-54, that provision

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1

of the consent decree is incorporated into the directive,

2

so that's still the law - it has to be - for the SSN four

3

voters. But the directive now says, unlike the previous

4

one, that you have to treat all the SSN four voters

5

differently. You have to disqualify their ballots if

6

you're the county boards of elections. That's your

7

disparate treatment. That's the Bush versus Gore problem.

8

So Your Honor has two choices. You could, as you

9

did with paragraph 6, remove it from the consent decree.

10

The problem with that is it's unfair. You're removing the

11

benefit of the bargain that the NEOCH plaintiffs obtained

12

in getting paragraph 7 in the NEOCH consent decree. You

13

are disenfranchising more people, and, at the end of the

14

day, all we would be doing is saying that the poll worker

15

has to comply with state law. So it's really not a burden.

16

The one thing I wanted to point out is there was

17

colloquy between you and Mr. Epstein about 181(B)(6), and

18

Your Honor was pointing to the words that the local

19

election official shall record the type of identification

20

provided. That goes on to say also "and the Social

21

Security number information." So to the extent there's any

22

argument about who has to record the Social Security

23

information, 181(B)(6) is crystal clear.

24

So because of that, and because of Mr. Epstein's

25

statements to this Court previously about paragraph 7 would

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1

be what applies here, not paragraph 6 of the consent

2

decree, it's clear that paragraph 7 protects the NEOCH

3

voters. The only remaining question for the Court is what

4

do you do about the Bush versus Gore problem. That's why

5

we, as the NEOCH plaintiffs, are moving for modification of

6

the decree. The Sixth Circuit said that's the proper

7

vehicle to remedy a Bush versus Gore problem, the same sort

8

of problem that they pointed out.

9

THE COURT: Thank you, Ms. Chisholm.

10

Mr. Chandra.

11

MR. CHANDRA: Thank you, Your Honor. Continuing on

12

behalf of NEOCH on the Bush v. Gore issue, the only

13

reasonable remedy to address that concern is to expand the

14

consent decree to include all voters. Because since the

15

consent decree, as the Court has reflected in its colloquy,

16

is requiring that the poll worker has that responsibility,

17

the only reasonable remedy is to make sure that rule

18

generally applies to everyone, and that no one is

19

disenfranchised as a result of the confusion that the Court

20

has discussed.

21

A couple of other points that I wanted to make, I

22

alluded to this earlier in my argument, but I just don't

23

want it to get lost because we keep talking about the duty

24

to record the ID. The other issue before the Court, the

25

other problem with Form 12-B and then the directive which

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1

disenfranchises people for problems in it is that vaporized

2

from Form 12-B, which is mandatory, is the duty to record

3

what, if any, information the voter needs to bring back.

4

It's just gone from there.

5

So, as a result, one is left with the situation -- a

6

due process problem here because we have no way of knowing

7

whether or not people were supposed to come back. Contrast

8

this, by the way, with the absentee voter situation where

9

there's communications to the absentee voter. Although the

10

secretary of state has cut out e-mail communication and

11

telephone communication for inexplicable reasons, there's

12

still mail communication to those absentee voters. There's

13

no opportunity noted to remedy any problems to the

14

provisional ballot voter since that's been vaporized from

15

the form.

16

So NEOCH would respectfully request that the Court

17

provide the narrow remedy that's requested. It's been

18

mischaracterized by the secretary as somehow eliminating

19

the ID requirement. That's simply not true.

20

What we're requesting is that there be affirmative

21

evidence -- if a form is blank, that there be affirmative

22

evidence outside of the fact that it's blank, that people

23

did not provide it, that they refused to provide it. And

24

the secretary and the boards of elections are perfectly

25

capable of conducting individualized assessments and

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1

investigations so that no individual voter in this state is

2

improperly disenfranchised.

3

Thank you, Your Honor.

4

THE COURT: Thank you, Mr. Chandra.

5

I appreciate the arguments that you have all made,

6

and the patience. I know that some of my questions might

7

have been probing at times. But to your credit, you

8

answered them as best you could, all three of you. I will

9

look forward with bated breath to the next round of

10

pleadings that I am to receive from the plaintiff tomorrow.

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Then my hope is to make a decision within the next

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couple of days, certainly not later than Monday I should

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have a written decision filed.

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Aside from the reply briefs that are to be filed by

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the plaintiff, or by the plaintiffs, further briefing will

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not be necessary. I believe that I have a full

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understanding of the issues. My questions, to the extent

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that they could be answered, have been answered. I believe

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that once the record is complete with the reply briefs, I

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will have all that I need to make an informed decision. So

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thank you very much. Safe travels to all of you.

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(Proceedings adjourned at 12:39 p.m.)

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C E R T I F I C A T E

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I, Shawna J. Evans, do hereby certify that the

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foregoing is a true and correct transcript of the

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proceedings before the Honorable Algenon L. Marbley, Judge,

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in the United States District Court, Southern District of

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Ohio, Eastern Division, on the date indicated, reported by

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me in shorthand and transcribed by me or under my

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supervision.

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s/Shawna J. Evans

Shawna J. Evans, RMR

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Official Federal Court Reporter

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 Case: 2:06-cv-00896-ALM-TPK Doc #: 354 Filed: 11/08/12 Page: 1 of 14 PAGEID #: 12738

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE NORTHEAST OHIO FOR THE HOMELESS, et al.,
Plaintiffs,
vs.

COALITION

CASE NO. 2:06-cv-896 Judge Algenon Marbley Magistrate Judge Terrence P. Kemp

JON HUSTED, in his official capacity as Secretary of State of Ohio, et al.,

Defendants.

Plaintiffs’ Reply Brief in Support of Emergency Motions for Clarification and for Modification of October 26, 2012 Order Regarding Scope of Section III(5)(b)(vii) of the Consent Decree
INTRODUCTION Defendants seek to excuse Secretary of State Jon Husted’s eleventh-hour nighttime Directive 2012-54 by arguing against the unambiguous language of the NEOCH Consent Decree and the Ohio law that it mirrors, and against what the Secretary previously represented to this Court. See 10/24/12 Trans. at 50:5-20 and 60:3-11; see also 11/7/12 Trans. (attached as Ex. 1). The Secretary’s representation to this Court on October 24, 2012 was correct: Section III(5)(b)(vii) of the Consent Decree unambiguously protects provisional voters who use their Social Security numbers as identification (“SSN-4 voters”) from disenfranchisement when a poll worker fails to complete the provisional-ballot-affirmation form, including the recording of voter-identification information in “Step 2” of that form. For the reasons the Sixth Circuit articulated in its combined October 11, 2012 decision in this case and SEIU Local 1 v. Husted, __ F.3d __, 2012 WL 4829033 at *19-20 (6th Cir. Oct. 11, 2012), allowing this Decree provision to protect only SSN-4 and not voters who used other

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forms of ID will result in Ohio violating equal protection in the counting of provisional ballots in this election. Ohio must therefore be ordered to extend the Decree’s protections to all voters to avoid any disparate-treatment, equal-protection problem. If Plaintiffs’ interpretation of Section III(5)(b)(vii) of the Decree is correct (as this Court recognized in its October 26, 2012 Order), Ohio has made no argument at all as to why the remedy to the disparate treatment of voters should not be to extend the Decree’s protections to all voters regardless of form of identification, the only remedy consistent with the Decree’s purposes in preventing the disenfranchisement of Ohio voters that results from poll-worker error. I. This Court Should Modify the Decree to Extend the Protection Against Poll-Worker
Failure to Record Voter Identification in Section III(5)(b)(vii) to all Voters Regardless of Form of Identification, to Remedy Ohio’s Current Unconstitutional Disparate Treatment of Voters Plaintiffs ask the Court to modify the Decree to extend Section III(5)(b)(vii)’s protections to all provisional voters, not just those who use as identification the last four digits of their Social Security numbers. As explained in Plaintiffs’ opening brief, there can be no dispute that Section III(5)(b)(vii) prohibits county boards of elections from rejecting provisional ballots with affirmation forms that are incomplete because a poll worker has failed to “record the type of identification provided” or “the [voter’s] social security information.” Ohio Rev. Code § 3505.181(B)(6); see Pls.’ Mot. for Clarification & Modification at 5-6; see also October 26, 2012 Order at 19-20. To avoid any differential treatment of provisional voters in the counting of ballots in this election, this section’s protections should be expanded to protect all provisional voters. Such modification is squarely within this Court’s discretion, as the Sixth Circuit confirmed in recently remanding to this Court to address this very issue. NEOCH v. Husted, __ F.3d __, 2012 WL 4829033 at *19-20 (6th Cir. Oct. 11, 2012). As the Sixth Circuit recognized, differential treatment of the SSN-4 voters protected by the Decree and all other Ohio provisional voters likely violates equal protection. NEOCH, 2012 WL
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4829033 at *14, *19 (citing Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Bush v. Gore, 531 U.S. 98, 10405 (2000); Hunter v. Hamilton County Bd. of Elections, 635 F.3d 219, 238 (6th Cir. 2011)). Indeed, in affirming this Court’s correct-location, wrong-precinct ballot preliminary injunction in SEIU Local 1 v. Husted, the Sixth Circuit explained that “differential treatment of provisional ballots depending on the form of identification used by the voters” violates equal protection. 2012 WL 4829033 at *14. As the Sixth Circuit explained, any preferential treatment of SSN-4 provisional ballots “likely violates the equal protection principle recognized in Bush v. Gore.” Id. at *14 (quoting Bush v. Gore, 531 U.S. at 104-05: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”).
As the Sixth Circuit explained in remanding this case to this Court, while it had set aside the portion of the preliminary injunction in SEIU Local 1 that prohibited disqualification of registered voters’ ballots on the grounds that they were missing names or signatures, the Decree “continues to mandate that some deficient-affirmation ballots will be counted”—a “discrepancy [that] appears to create a Bush v. Gore problem.” 2012 WL 4829033 at *19. But because this Court had not yet had an opportunity to rule on the proper remedy for any such problem in the context of a motion to modify the Decree, and because “decisions to modify consent decrees are generally left to the discretion of the trial court,” the Sixth Circuit determined that “the proper course is to remand this case” to permit the District Court to modify the Decree to provide the appropriate remedy for any differential treatment of SSN-4 voters and other provisional voters. Id. at *19-20. The Sixth Circuit noted that Ohio “has the most to lose by a remand.” Id. at 20.
This Court’s October 26, 2012 opinion and order resolving the competing motions to modify the Decree recognized that any disparate treatment problem must be resolved by modifying the Decree. Op. and Ord. Oct. 31, 2012 at 19-20. The Court, however, held that, in contrast to Section III(5)(b)(vii) of the Decree, which protects against poll-worker error, Section III(5)(b)(vi)
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protected only against the types of deficient affirmations the Sixth Circuit held to be voter rather than poll-worker error — namely, the failure of poll workers to check voters’ names and signatures. Id. As to Plaintiffs’ request to modify the Decree to extend the protections of Section III(5)(b)(vii), the Court noted that, “[c]ritically,” these protections remain in the Decree and, further, were mirrored in Directive 2012-01, which applied to all voters. Id. at 20-21. Thus, at the time of the Court’s October 26, 2012 order, there was no concern that Section III(5)(b)(vii) provided preferential treatment for SSN-4 voters — even though the Decree “continues to mandate that some deficient-affirmation ballots will be counted.” NEOCH, 2012 WL 4829033 at *19.
Plaintiffs filed the present motion because of the disparate-treatment that arose on Friday night, November 2, 2012, when, after business hours, the Secretary of State issued Directive 201254. Directive 2012-54 expressly requires that boards reject provisional ballots on which the poll worker has failed to record the necessary identification information — ballots that are protected under Section III(5)(b)(vii) of the Decree. The Secretary’s actions raise the exact equal-protection concerns the Sixth Circuit remanded to this Court to resolve in the context of a motion to modify this Decree. The decision to disqualify ballots of non-SSN-4 voters on the grounds that a poll worker has failed to “record the type of information provided,” when subsection (vii) applies to protect SSN-4 voters in those circumstances, may be challenged as “valu[ing] one person’s vote over that of another,” thus violating the “equal protection principle recognized in Bush v. Gore.” NEOCH, 2012 WL 4829033 at *14 (internal quotation marks omitted).
To avoid these equal-protection concerns, this Court should modify the Decree to extend subsection (vii) protection to all provisional voters. Extending this protection to all provisional voters is the only remedy that will serve the Decree’s express purposes of protecting voters from arbitrary disenfranchisement caused by poll-worker error (see Dkt. 210 at I). See Hunter, 635 F.3d at 242-43 (concluding that proper remedy for state’s disparate treatment of voters is to count all
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similarly situated votes). This is also the only remedy that ensures that SSN-4 voters receive the protections for which the parties bargained, and for which the Plaintiffs gave up other important constitutional claims. The only other alternative—to remove subsection (vii)—will result in the arbitrary disenfranchisement of Ohio voters in this election and is directly contrary to the Decree’s purposes and the public interest.
Whether or not the Constitution independently requires Ohio to count the ballots of voters whose affirmation forms are incomplete as a result of poll-worker error regardless of disparate treatment between groups of voters is an independent question from whether this Court should remedy the unconstitutional disparate treatment by modifying the Decree to protect all voters. As the Supreme Court has observed, parties are always free to settle their dispute in a consent decree “by undertaking to do more than the Constitution requires,” and, indeed, “almost any affirmative decree beyond a directive to obey the Constitution necessarily does that.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 389 (1992). Here, as the Sixth Circuit pointed out in rejecting Ohio’s attempts to vacate this Decree, Defendants voluntarily entered into a final and binding Decree that requires county boards to count the provisional ballots of SSN-4 voters that have deficient envelopes due to poll-worker error. 2012 WL 4829033 at *18-19. There are “serious finality concerns” associated with modifying a Decree to deprive voters, including Plaintiffs’ members, of the benefit of the provisions to which Defendants agreed. Id. at *19. With the fundamental right to vote at stake, the appropriate remedy for any disparate-treatment problem is not to disenfranchise the voters whom the Decree protects, but to modify the Decree such that the provisions at issue apply equally to all identically situated voters.
Defendants have made no argument at all, nor could they, that the remedy should not be to extend subsection (vii)’s protections to all provisional voters. Instead, Defendants’ sole argument is that subsection (vii) does not protect SSN-4 voters’ ballots from disqualification when a poll worker
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fails to record the voter’s identification information. As shown below, that is not a fair reading of the Decree. II. Defendants’ Argument That Subsection (vii) Does Not Protect SSN-4 Voters From
Poll Worker Failure to Record Identification Information Is Inconsistent with the Unambiguous Consent Decree Language, the Secretary’s Representation to this Court October 24, 2012, and Ohio Law A. This Court has authority to construe the Consent Decree it approved and
entered This Court has authority to construe the Consent Decree’s protections, including those that subsection (vii) guarantees. A court’s interpretation of a consent decree is akin to construction of a contract, and the Court may rely on familiar interpretative aids to resolve any ambiguities. See United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37 (1975). Thus, for example, the Court may look to evidence of the parties’ understanding of the decree, the “circumstances surrounding the formation of the consent decree, any technical meaning words may have had to the parties,” and state law, to the extent it assists in construing the decree’s terms. Id. at 237-38. Defendants’ suggestion that Plaintiffs are seeking an order only to enforce state law is incorrect. Plaintiffs seek an order clarifying and construing the Consent Decree that this Court issued, something the Court plainly has authority to do. See NEOCH, 2012 WL 4829033 at *19 (remanding to this Court to resolve issues presented in motion to modify); cf. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 371-72 (6th Cir. 1998) (“It is only sensible to give the court that wrote the consent judgment greater deference when it is parsing its own work.”); Brown v. Neeb, 644 F.3d 551, 558 n.12 (6th Cir. 1981) (“Few persons are in a better position to understand the meaning of a consent decree than the district judge who oversaw and approved it.”).
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B. Under Principles Of Judicial Estoppel, The Court Should Hold The Secretary To His Representation That Subsection (Vii) Applies To Prohibit County Boards From Disqualifying Provisional Ballots That Are Missing Identification Information.
Plaintiffs have demonstrated that the Secretary should be required, by the equitable doctrine of judicial estoppel, to abide by statements made to this Court. To reiterate, the Secretary conceded Plaintiffs’ interpretation of subsection (vii) when he confirmed that “the obligation to write down the identifying information is imposed upon the poll worker, not upon the voter.” 10/24/12 Hrng. Tr. at 50:5-20. Now, after this Court relied on that representation in denying Plaintiffs’ request to extend subsection (vii) to all voters, the Secretary takes the opposite position.
As explained in Plaintiffs’ opening brief, the doctrine of judicial estoppel forbids a party from taking a position inconsistent with one successfully asserted to a Court in a prior proceeding. Pls.’ Mot. at 11; see also Teledyne Indus., Inc. v. Nat'l Labor Relations Bd., 911 F.2d 1214, 1217 (6th Cir. 1990). Its purpose is to “preserve[] the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposing to suit an exigency of the moment.” Id. at 1218.
These principles of judicial estoppel apply here. The Secretary argued to the Court that the poll-worker error Plaintiffs identified—errors in the completion of Step 2 of the ballot affirmation form—would fall under subsection (vii) and therefore ballots would not be rejected for this reason. The Court then relied on this, noting that “Critically, Section III(5)(b)(vii) remains in the Consent Decree to ensure no provisional ballot is disqualified when a poll worker fails to complete her designated portion of the envelope and the State does not dispute that. SEIU Dkt. 28 at 17.” Op. and Ord. Oct. 26, 2012.
Defendants’ only response is to say that “this is not an appropriate circumstance to apply judicial estoppel,” and to cite Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 385 (6th Cir. 1998), for the proposition that principles of judicial estoppel do not apply where a litigant’s assertions are
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“open to interpretation.” Opp. at 17. First of all, the Secretary’s statements to this Court regarding the protections of subsection
(vii) are not “open to interpretation.” The Secretary confirmed that subsection (vii) would apply to the exact circumstance at issue here: when a poll worker fails to complete the identification information contained in Step 2 of the provisional ballot form.
Second, Griffith does not apply, as its holding is specific to Americans with Disabilities Act (ADA) cases, and applied the rule that “the doctrine of judicial estoppel does not operate to preclude ADA relief to an individual based on that individual’s application for and/or receipt of social security disability benefits,” in part because a disability application is a fill-in-the-blanks form that provides little room for explanation and thus might be open to interpretation. 135 F.3d at 381, citing Blanton v. Inco Alloys Inter., Inc., 108 F.3d 104, 108-09 (6th Cir. 1997).1
There is simply no comparing an ADA plaintiff’s statements on a fill-in-the-blank application and the Secretary’s intentional argument to this Court, in opposition to Plaintiffs’ motion, that under Ohio law, “the obligation to write down the identifying information is imposed upon the poll worker, not upon the voter,” and that therefore ballots with incomplete identifying information would fall under the protections of subsection (vii). Because the position taken by the Secretary on October 24, 2012, and the position he now takes directly conflict, and because the Court relied upon the Secretary’s assurances regarding the applicability of subsection (vii), this Court should find that the Secretary is judicially estopped from arguing that subsection (vii) does not apply to provisionalballot forms that have incomplete identification information.
1 See also Griffith, 135 F.3d at 382 (explaining that plaintiffs’ disability application was “open to interpretation” because “portions of the SSA application and other forms require the applicant merely to check off boxes without comment, or require the applicant to fill in blanks with little room given for elaboration. In short, the employee may not have a fair opportunity to accurately explain the details of the employee’s medical condition and his ability or inability to work for purposes of the ADA.)”
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C. Subsection (vii) should be construed consistent with state law, which unambiguously places with “the election official,” not the voter, the duty to record identification information and to note any information with which a voter should return.
This Court may look to Ohio law in construing the terms of the Decree. There can be no
dispute that the plain and unambiguous language of Ohio Rev. Code §§ 3505.181(B)(6) & (7) and 3505.182 require the “election official” to record identification information. Defendants suggest that
the statute requires voters to record their social security numbers, but §3505.181(B)(6) unambiguously states that the “election official shall record” the “social security number
information.” The Secretary also argues that his intent in asking voters to record identification information
was to ensure that poll workers did not make errors. But the question is what happens, under the Consent Decree, to a ballot if the information that state law provides that the poll workers is
supposed to record is missing. The answer is that under Section III(5)(b)(vii), the ballot must be counted. Under this provision, the voter does not pay the price for the Secretary’s decision to ignore
the statute. With his eleventh-hour directive requiring the rejection of ballots with incomplete
identification information, the Secretary sought not only to shift to the voter what is plainly the election officials’ statutory recording responsibility, but then impose what amounts to the ultimate penalty on that voter if the voter makes a mistake.2
2 The “circumstances surrounding the formation of the consent decree” are, of course, also relevant to its interpretation. ITT Continental Baking, 420 U.S. at 238. Here, construing paragraph vii as Defendants would have the Court do, to permit the disqualification of provisional ballots with incomplete identification information, would present the very sort of equal-protection and due-process concerns the Decree was designed to address. Early reports from the November 6, 2012 election reflect poll workers’ confusion regarding Step 2 and the recording of identification information. Some poll workers personally recorded the Step 2 information, see Decl. of Larry Davis at ¶ 7-8 (Nov. 8, 2012) (attached as Ex. 2), while others burdened the voter with this responsibility. See, e.g., Decl. of Sarah Biehl at ¶ 4 (Nov. 8, 2012) (attached as Ex. 3); Decl. of Nate Moseley at ¶ 4 (Nov. 8, 2012) (attached as Ex. 4); Decl. of Jacquie Talbot at ¶ 3 (Nov. 8, 2012) (attached as Ex. 5). Still others adopted a combination approach, sometimes recording the information and
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IV. Plaintiffs’ Remedy is Narrow, Reasonable, and Not Untimely. Plaintiffs proposed remedy is very straightforward: extend subsection (vii)’s protections to all
provisional-ballot voters, regardless of the type of identification the voter proffered, to ensure that county elections boards do not disqualify provisional ballots on the grounds that they are missing identification information as a result of the poll worker’s failure to record that information as required by Ohio law. Plaintiffs’ remedy is narrowly tailored to cover only those situations in which the absence of recorded information was the poll worker’s responsibility. Thus, it would not apply when there is evidence the voter failed to provide identification and was offered, but declined, the opportunity to complete a Form 10-T affirmation, or when there is evidence that the voter was instructed to bring additional information to the elections board within 10 days and failed to do so.
Defendants admit “incidentally” that, despite Ohio Rev. Code § 3505.181(B)(6), they have not ordered poll workers to record the statutorily required identification information. Defs.’ Mem. Opp. at 17. This only underscores the need for the remedy Plaintiffs seek.
A. Defendants’ Claim That The Requested Relief Would Not Apply To And Would Not Protect SSN-4 Voters Is Wrong
Defendants argue that the requested relief somehow would not apply to SSN-4 voters. But that is not accurate. If a voter performs the voter’s duty to provide the SSN-4, but the election official then fails to “record” it as required by §3505.181(B)(6), this is just as much poll-worker error as if
sometimes leaving it to the voters to figure out. See, e.g., Decl. of Stephen Q. Giblin at ¶ 4 (Nov. 8, 2012) (attached as Ex. 6) (testifying that if the voter was using the last four digits of a social-security number, the voter would provide the number orally to the poll worker who would record it, but if the voter was using a driver’s license number, the voter would record it); Decl. of Melissa Yasinow at ¶ 4 (Nov. 8, 2012) (attached as Ex. 7); Decl. of Margery Koosed at ¶ 4 (attached as Ex. 8). Poll-worker training on the question of recording identification information, too, was apparently all over the map. Compare Decl. of Sarah Biehl at ¶ 3 (testifying that poll-worker training instructed that voters were supposed to complete Step 2) with Decl. of Larry Davis at ¶ 6 (testifying that poll-worker training instructed that poll workers were supposed complete Step 2 and record the type of identification provided in accordance with Ohio law). Similarly situated provisional-ballot voters should not be treated differently, and the Consent Decree was intended by the parties to ensure that poll-worker error, including errors caused by varying training and poll-worker understandings of their duties, would not determine the fate of a voter’s provisional ballot.
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the election official had failed to record another type of identification—e.g., the driver’s license number or to record another type of identification. Defendants’ argument is really that it would be impossible to identify—based on a ballot-affirmation form with an incomplete “Step 2”—whether the voter was proffered a social security number or some other form of identification. But that the Secretary would be unable to distinguish SSN-4 voters with incomplete “Step 2”s from other voters’ ballots that likewise have incomplete “Step 2’s” because of poll-worker error, becomes an academic concern given the need to modify the consent decree to address any potential disparate-treatment concerns, as discussed in Section I, above.
B. Defendants’ claim that a blank Step 2 “could mean” that the poll worker instructed the voter to return to the board is beside the point if the poll worker does not comply with the statutory responsibility to record that on the form.
Defendants argue that when “Step 2” is incomplete, it could be because the voter was instructed to return to the board. But there can be no dispute that poll workers are obliged to record whether a voter must return to the board with additional information. Ohio Rev. Code § 3505.181(B)(7) (“election official shall indicate, on the provisional ballot verification statement required under section 3505.182 of the Revised Code” that voter is “required to provide additional information” to the elections board “to determine the eligibility” of the voter); Ohio Rev. Code § 3505.182 (in contrast to Form 12-B, statutory form creates place for poll worker to record this information before poll worker’s signature). Thus, to the extent evidence shows that the poll worker so instructed the voter, the poll worker would have performed his or her duties in those circumstances, and the voter would be protected by paragraph vii. Defendants’ protest is unwarranted.
C. Defendants’ own last-minute change in ballot counting rules applicable to this election necessitated Plaintiffs’ emergency motion.
Until the Secretary issued Directive 2012-54, Plaintiffs had every reason to believe that subsection (vii) protected voters who cast provisional voters with incomplete identification
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information in Step 2. Nonetheless, Plaintiffs sought to confirm their understanding and therefore sent a letter to the Secretary requesting that any directives implementing the Court’s October 26, 2012 order excising paragraph vi be clear that voters would not be disenfranchised for deficiencies in what is recorded on Form 12-B, Step 2. The Secretary instead chose to issue an eleventh-hour Directive that completely reverses position, and Plaintiffs’ emergency motion for relief, of which it gave advance notice to Defendants and the Court almost immediately after the 7 p.m. Directive, is not untimely or too late for meaningful relief.
While Defendants contend that Directive 2012-54 rewrote Directive 2012-01 “only to make the process clearer” and that “Step 2 in 2012-54 does not differ in process or outcome from Step 2 in Directive 2012-01,” Dkt. 352 at 6, this is false. Unlike Directive 2012-54, Directive 2012-01 placed no burden on the voter to record the identification information, required poll workers to do so consistent with Ohio law—and did not require boards to reject ballots where poll workers had not done so. Contrary to Defendants’ claims, the Secretary’s eleventh-hour directive imposes new and substantial burdens on voters and differs in process and outcome from Directive 2012-01. It heightens the risk of voters being unduly disenfranchised due to poll-worker error.
As for Defendants’ invocation of Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006), there is no hardand-fast “Purcell” rule that deprives Plaintiffs of remedies completely when those violating their federal constitutional rights do so belatedly. Rather, while Purcell advises caution regarding injunctions close to an election, it also cautions that a district court should carefully consider any arguments that qualified voters would be disenfranchised by the conduct at issue. Id. at 4.
Additionally, under Ohio law, provisional ballots cannot be counted until after members of county elections boards have determined the validity of all provisional ballots cast. Ohio Rev. Code 3505.183(D). Given that provisional voters have ten days to provide additional information to the board of elections to prove ballot validity, Ohio Rev. Code § 3505.183(B)(2), elections boards
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cannot begin counting provisional ballots before November 17. There remains ample time for this
Court to correct the Secretary’s unnecessary Directive.
Dated: November 8, 2012
Respectfully submitted,
/s/ Subodh Chandra____________ By: Subodh Chandra
/s/ Barbara J. Chisholm____________ By: Barbara J. Chisholm

Caroline H. Gentry, Trial Attorney (0066138) Daniel B. Miller (0080767) PORTER, WRIGHT, MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, OH 45402 (937) 449-6748 / (937) 449-6820 Fax cgentry@porterwright.com dbmiller@porterwright.com
and
Subodh Chandra (0069233) Donald P. Screen ( Ashlie Case Sletvold (0079477) THE CHANDRA LAW FIRM, LLC 1265 W. 6th Street, Suite 400 Cleveland, OH 44113-1326 (216) 578-1700 / (216) 578-1800 Fax Subodh.Chandra@ChandraLaw.com Donald.Screen@ChandraLaw.com Ashlie.Sletvold@ChandraLaw.com
Attorneys for Plaintiffs NEOCH, SEIU District 1199, Columbus Coalition for the Homeless, and individually named Plaintiffs

Michael J. Hunter (0018756) Cathrine J. Harshman (0079373) HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 (614) 442-5626 / (614) 442-5625 Fax mhunter@hcands.com charshman@hcands.com
and
Stephen P. Berzon (admitted pro hac vice) Stacey Leyton (admitted pro hac vice) Barbara Chisholm (admitted pro hac vice) Danielle Leonard (admitted pro hac vice) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 / (415) 362-8064 Fax sberzon@altber.com sleyton@altber.com bchisholm@altber.com dleonard@altber.com
Attorneys for Plaintiff SEIU District 1199

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Donald J. McTigue, Trial Attorney (0022849) Mark A. McGinnis (0076275) MCTIGUE LAW GROUP 550 East Walnut Street Columbus, OH 43215 (614) 263-7000 / (614) 263-7078 Fax mctiguelaw@rrohio.com Attorneys for Intervenor-Plaintiff Ohio Democratic Party
CERTIFICATE OF SERVICE I certify that on November 8, 2012, my office filed the foregoing document using the Court’s online-filing system, which will send a copy of the foregoing to all counsel of record. /s/ Subodh Chandra One of the Attorneys for Plaintiffs NEOCH, SEIU District 1199, Columbus Coalition for the Homeless and Individual Plaintiffs
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 Case: 2:06-cv-00896-ALM-TPK Doc #: 357 Filed: 11/13/12 Page: 1 of 17 PAGEID #: 12868

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al.,
Plaintiffs, v. JON HUSTED, et al.,
Defendants.

:

:

:

Case No. 2:12-CV-562

:

:

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JUDGE ALGENON L. MARBLEY

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Magistrate Terence P. Kemp

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THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

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Plaintiffs,

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v.

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JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

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Defendant.

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and

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STATE OF OHIO

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Intervenor-Defendant

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Case No. 2:06-CV-896 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence Kemp

OPINION AND ORDER

I. INTRODUCTION

These are two related actions in this Court: Service Employees’ International Union,

Local 1, et. al. v. Husted, et. al., Case No. 2:12-cv-562 (“the SEIU case”) and The Northeast

Ohio Coalition for the Homeless, et. al. v. Husted & State of Ohio, Case No. 2:06-cv-896 (“the

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Case: 2:06-cv-00896-ALM-TPK Doc #: 357 Filed: 11/13/12 Page: 2 of 17 PAGEID #: 12869
NEOCH case”). Plaintiffs in the NEOCH case have filed an Emergency Motion for Clarification and for Modification of October 26, 2012 Order Regarding Scope of Section III(5)(b)(vii) of the Consent Decree. (NEOCH Dkt. # 349) Plaintiffs in the SEIU case filed a Motion for Preliminary Injunction which sought the same relief as the NEOCH Plaintiffs’ Motion, but on different legal grounds. (SEIU Dkt. # 97) Plaintiffs jointly submitted a Memorandum in Support of their motions. At oral argument, on November 7, 2012, the SEIU Plaintiffs withdrew their Motion for Preliminary Injunction. (SEIU Dkt. # 102) Thus, this Opinion and Order considers only NEOCH Plaintiffs’ motions. These motions have been fully briefed and are ripe for consideration.
II. BACKGROUND The interwoven factual and procedural histories of these motions have become complicated owing to the many stages of this litigation both in this Court and the Sixth Circuit. The accelerated timeline of the motions resulting from the date of the November 6, 2012 Election and the November 17, 2012 start of provisional ballot counting has increased the complexity. It is appropriate, therefore, to review briefly the origins and purposes of the Consent Decree which is the subject of these motions. NEOCH Plaintiffs brought the suit which resulted in the Consent Decree in 2006. (NEOCH Dkt. #2) They sought to prevent Ohio’s then-new voter identification laws from disenfranchising impoverished Ohioans who could not afford to purchase any of the required forms of identification. Plaintiffs alleged that the requirement essentially levied an unlawful poll tax. In order to prevent disenfranchisement of the impoverished and to avoid further costly litigation, parties voluntarily entered into a negotiated settlement, memorialized as the Consent Decree. The Consent Decree went into effect on April 19, 2010 as an Order of this Court.
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(NEOCH Dkt. #210) The Decree only applies to provisional voters who identify themselves using the last four digits of their social security numbers, “SSN-4 voters.” It is scheduled to remain in effect until June 30, 2013, though parties may move to extend that date.
Since the Consent Decree was entered, the litigation has gone through numerous stages, in this Court and in the Sixth Circuit. On October 26, 2012, the Court denied NEOCH Plaintiffs’ previous Motion to Modify the Consent Decree. (NEOCH Dkt. #334) Chiefly, Plaintiffs sought to expand the scope of the Consent Decree to all provisional ballot voters to prevent a potential violation of Equal Protection under Bush v. Gore, 531 U.S. 98 (2000). Plaintiffs requested the Court order the counting of provisional ballots with deficient affirmations resulting from pollworker error. One issue in contention was the definition of “poll-worker error.” This Court found the Sixth Circuit’s Decision of October 11, 2012 held that the voter’s failure to print her name or sign the provisional ballot affirmation was not the result of poll-worker error.1 NEOCH v. Husted, ___ F.3d ___, 2012 WL 4829033 (6th Cir. October 11, 2012).
Ohio law, however, requires other information on the provisional ballot affirmation as well, including the form of identification used by the provisional voter, which is required to be recorded by a poll-worker. Ohio Revised Code §3505.181(B)(6). The Sixth Circuit has held that when a ballot deficiency is “solely” the result of poll-worker error, the ballot may not be rejected; otherwise’ there would be a violation of the Fourteenth Amendment. SEIU v. Husted, ___ F.3d ___, 2012 WL 5352484 (6th Cir. October 31, 2012) at *2. In denying the NEOCH Plaintiffs’ Motion to Modify the Consent Decree, this Court relied on the Sixth Circuit’s holding, Section III(5)(b)(vii) of the Consent Decree, O.R.C. §3505.181(B)(6), and the Secretary’s representations to this Court, all of which confirmed the Court’s understanding that the Secretary
1 The Sixth Circuit held that the evidentiary record at that stage of the proceeding did not substantiate poll-worker error is the cause of a voter’s failure to print her name or write her signature. If parties adduce further evidence on that matter in the future, it may be appropriate to reconsider.
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would not reject a provisional ballot because a poll worker had failed in her duty to record information.2
Following the issuance of this Court’s Order on October 26, 2012, NEOCH Plaintiffs filed an Emergency Motion for Clarification, on November 1, 2012. (NEOCH Dkt. #346) They sought clarification from this Court that a provisional ballot could not be rejected “because certain form-of-identification information that poll workers are statutorily required to provide is missing or incorrect.” (emphasis in original). The Court notes that Plaintiffs attempted to contact the Secretary multiple times to hear his interpretation of this issue before filing the motion. The Secretary never responded to Plaintiffs’ inquiries until filing a response with the Court. (NEOCH Dkt. #346, Exh. 1, 2)
The first notice that Plaintiffs or this Court received that the Secretary intended to reject provisional ballots with “missing or incorrect” identification information arrived around 7:00 p.m. on Friday, November 2, 2012, just four days prior to the November 6, 2012 Election. At that time, the Secretary issued Directive 2012-54, which stated, in relevant part, “[i]f the voter did not provide identification on the provisional ballot affirmation . . . the Board must reject the provisional ballot.” (emphasis in the original). The Secretary, by admission of counsel, engaged in no fact-finding which suggested such a change would improve the integrity of the voting system. At oral argument, the Secretary was unable to provide any explanation for the change, nor provide any specific account of the process by which it occurred. It is significant
2 The Secretary represented to the Court, through counsel that, “[t]he question is what is left of the concept of poll worker error in the context of defective ballot affirmations. [Plaintiffs’ counsel] suggested to [the Court], for example, that there might still be poll worker error because there is an obligation to record on the form the mode of identification used. And if that’s missing, that’s a defect in the ballot. But that defect is not covered by the provision we’re talking about, because as they say, the obligation to write down the identifying information is imposed upon the poll worker, not the voter. And in Section 7 [of the Consent Decree], it says that we won’t invalidate ballots based upon the poll worker’s failure to write something down.” (Draft Transcript, October 24, 2012 Hearing, p. 47 at ll. 5-14).
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that the Secretary has recently argued both in this Court and the Sixth Circuit that changing election rules in the October prior to an election is not practically feasible and is likely to result in confusion.
Early on the following Monday, November 5, 2012, NEOCH Plaintiffs timely filed the instant Emergency Motion for Clarification and Modification of Consent Decree. (NEOCH Dkt. #349) In the same Emergency Motion, SEIU Plaintiffs moved for a preliminary injunction. Both NEOCH and SEIU Plaintiffs sought the same relief: an extension of Section III(5)(b)(vii) of the Consent Decree to all provisional voters and an order that the Secretary not reject ballots because the poll-worker had failed in her duty to complete the voter’s identification information on the provisional ballot affirmation. At that time, Plaintiffs had the understanding that provisional ballots with such errors would be counted if they came under the Consent Decree (SSN-4 ballots), but not if they were other provisional ballots. Such a result, Plaintiffs correctly contended, would constitute a Bush v. Gore violation of Equal Protection, per the Sixth Circuit’s Decision of October 11, 2012. At the hearing on November 7, 2012, however, the Secretary clarified that he planned to reject all ballots with missing or improperly completed identification information, including SSN-4 ballots covered by the Consent Decree. The Secretary, thus, saw no violation of Equal Protection. This Court must now consider not only the Plaintiffs’ briefed motions, but also whether Directive 2012-54 and its application to SSN-4 provisional ballots violates the Consent Decree and, if so, determine the proper remedy.
III. LAW AND ANALYSIS As this Motion requires the Court to construe the Consent Decree, it is appropriately before this Court because “[i]t is only sensible to give the court that wrote the consent judgment greater deference when it is parsing its own work.” Sault Ste. Marie Tribe of Chippewa Indians
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v. Engler, 146 F.3d 367, 371 (6th Cir. 1998). The Sixth Circuit has also held that “[f]ew persons
are in a better position to understand the meaning of a consent decree than the district judge who
oversaw and approved it.” Brown v. Neeb, 644 F.3d 551, 558 n. 12 (6th Cir. 1981).
A. Provisional Ballot Affirmations under the Consent Decree
Upon entering the Consent Decree, the parties agreed, and the Court approved and
ordered that “[SSN-4] voters will not be deprived of their fundamental right to vote because of
failures by poll workers to follow Ohio law.” To that end, the Court ordered, inter alia, the
following “general injunctive relief”:
Boards of Elections must count the provisional ballot cast by a voter using only the last four digits of his or her social security number as identification if . . . [t]he individual’s name and signature appear in the correct place on the provisional ballot affirmation form, unless the voter declined to execute the affirmation and the poll workers complied with their statutory duties under R.C. 3505.182 and R.C. 3505.181(B)(6) when a voter declines to execute the affirmation . . .
Boards of Elections may not reject a provisional ballot [because] . . . vii. The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.
(NEOCH Dkt. #210) The significance of this excerpt with regard to Directive 2012-54 is two-
fold. First, it orders that votes not be rejected because a poll worker failed to complete properly
her sections of the provisional ballot affirmation as defined under Ohio law. Second, the excerpt
explicitly incorporates §§ 3505.181(B)(6) and 3505.182 of the Ohio Revised Code, which define
the poll worker’s duties, into the Consent Decree. Under O.R.C. § 3505.181(B)(6), those duties
include:
[A]t the time that an individual casts a provisional ballot . . . the appropriate local election official shall record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and . . . [i]f the individual declines to execute the affirmation, the appropriate local election official shall
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record the individual’s name and include that information with the transmission of the ballot . . . (emphasis added). This passage unambiguously tasks poll workers with the duty of recording the type of identification provisional voters provide. Although the Secretary accurately indicates that § 3505.182 also contemplates an affirmation which could provide a space for the provisional voter to fill-in her identification information, the draft of the provisional ballot affirmation in that statute is just that, a draft. Nowhere does § 3505.182 relieve the poll worker of her duty, explicitly imposed by § 3505.181(B)(6), to record the provisional voter’s form of identification. Nor does § 3505.182 indicate whether the poll worker or voter should complete the identification section of the draft affirmation. At oral argument, the Secretary could point to no statute or other authority which relieved, or purported to relieve, poll workers of their duty to record the type of identification presented by a provisional voter. That duty, though imposed by Ohio law, was incorporated into the Consent Decree by Section III(5)(a)(4). (NEOCH Dkt. #210) While this Court usually does not enjoin the acts of state officials to comply with state law, the Court’s power to enforce the Consent Decree is undisputed. Thus, to the extent that the Secretary’s violations of state law also violate or conflict with the Consent Decree, this Court may enjoin such actions. See NEOCH, 2012 WL 4829033 at *19; cf. Sault Ste. Marie Tribe of Chippewa Indians, 146 F.3d at 371 (6th Cir. 1998), Brown, 644 F.3d at 558 n. 12 (6th Cir. 1981).
B. Directive 2012-54 Violates the Consent Decree When Plaintiffs initially filed this Motion, they reasonably believed the Secretary intended the Directive to affect only provisional ballots not covered by the Consent Decree. (NEOCH Dkt. #346) At oral argument, however, the Secretary made clear that he intended to reject provisional ballots with the defects at issue regardless of whether they fell under the
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Consent Decree.3 Now, having established this Court’s jurisdiction to enjoin violations of the Consent Decree, the question is whether Directive 2012-54 violates the Decree, as Plaintiffs allege.
Plaintiffs claim, specifically, that the Secretary’s Directive 2012-54 contravenes O.R.C. § 3505.181(B)(6), incorporated into the Consent Decree, by ordering election officials to reject provisional ballots with some deficiency in recording the type of identification used by the voter. The violation is rooted in the Secretary’s drafting of the Provisional Ballot Affirmation, also known as “Form 12-B.” “Step 2” of Form 12-B instructs the provisional voter to either (a) write the last four digits of her Social Security number; or (b) her full eight-digit Ohio driver’s license number; or (c) show another form of identification from the included list and check the box indicating the form of identification produced. The Secretary contends Step 2 is a minimal burden on the voter and actually reduces the risk of error by eliminating the chain of transmitting the identification information from voter to poll worker, and then poll worker to Form 12-B. Although the Secretary adduces no evidence to support this contention, the absence of facts is irrelevant, as the Court need not engage in a factual inquiry, nor perform a Constitutional analysis. O.R.C. § 3505.181(B)(6) relieves the voter of the responsibility to record her identification information as a matter of law. In NEOCH, the Sixth Circuit validated this legal interpretation, stating that Ohio law “require[s] election officials to ‘record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot.’” NEOCH, 2012 WL 4829033 at *10-13, quoting O.R.C. § 3505.181(B)(6).
3 It is important to reiterate that even if the Secretary did not intend to reject the provisional ballots covered by the Consent Decree, that would not resolve the issue. In that case, the Secretary would simply have created the same violation of Equal Protection that occurs here in a different way.
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Accordingly, in shifting that duty to the voter, Step 2 of Form 12-B imposes an impermissible burden in violation of O.R.C. § 3505.181(B)(6) and, therefore, the Consent Decree. By admission of counsel, the Secretary engaged in no fact-finding to determine that such a change would increase the integrity of the voting system. The General Assembly made the policy judgment to place the duty to record the identification of a provisional voter with a trained election official. The Secretary may not second guess that decision. If the Secretary could arbitrarily shift any duties of an election official to an individual voter, the Secretary could ensure no error would ever be the fault of a poll worker simply by reassigning all of the poll worker’s duties to the voter. This result is not contemplated by Ohio law or permitted by the Constitution.
Additionally, the Secretary’s argument that Plaintiffs’ Motion is not timely is incorrect. The poor drafting of Form 12-B which, by design or accident, purports to shift the poll worker’s statutory duty to record the form of identification to the provisional voter, did not provide occasion for the Plaintiffs to seek injunctive relief until the Secretary issued Directive 2012-54, at 7:00 p.m. on November 2. Until that time, Plaintiffs did not have reason to believe a provisional ballot would be rejected if the poll worker did not record information required by § 3505.181(B)(6). Plaintiffs correctly understood the law to place the duty to record that information on the poll worker (per O.R.C. § 3505.181(B)(6) and its incorporation in the Consent Decree) and to forbid the rejection of a provisional ballot due to poll-worker error. The Sixth Circuit’s NEOCH decision of October 11, 2012 held unconstitutional “the disenfranchisement of voters who arrive at the correct polling place (and are otherwise eligible to vote) solely as a consequence of poll-worker error.” SEIU v. Husted, ___ F.3d ___, 2012 WL 5352484 at *2, citing NEOCH, 2012 WL 4829033 at *10-13. Since the Ohio law places the
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duty to record the provisional voter’s form of identification with the poll-worker, if such information is absent, that indicates that the poll worker failed to perform her duty. To reject the ballot for that reason would violate the Fourteenth Amendment’s guarantee of Due Process. Until November 2 at 7:00 p.m., Plaintiffs did not have reason to believe such a result was within the realm of possibility. Thus, this Motion is timely made.
In summary, Directive 2012-54 violates the Consent Decree and the law of Ohio. Plaintiffs timely moved for clarification to declare Directive 2012-54 a violation of the Consent Decree. Plaintiffs’ Motion is, hereby, GRANTED. The Court ORDERS that provisional ballots of SSN-4 voters be counted if the voter has properly completed “Step 1” and “Step 3” of the Provisional Ballot Affirmation (Form 12-B).
C. Appropriate Remedy for Violation of Consent Decree Since Directive 2012-54 violates the Consent Decree and the Court must enjoin Directive 2012-54, as it applies to SSN-4 voters, the Secretary’s application of the Directive to non-SSN-4 voters creates a Bush v. Gore violation of Equal Protection. Under the Sixth Circuit’s NEOCH Decision of October 11, 2012, that result cannot stand.4 The Court must either vacate Section III(5)(b)(vii) of the Consent Decree to allow Directive 2012-54 to operate, or extend the protections of the Consent Decree to all provisional voters for the purposes of the November 6, 2012 Election. Therefore, the Court also ORDERS that an incomplete or improperly completed “Step 2” shall not cause any provisional ballot to be rejected, unless: (1) a poll-worker has recorded on the provisional ballot affirmation that the voter is required to return to the county board of elections with proper identification; (2) a poll worker has recorded what identification
4 This is not a situation where the Court’s Order has created a violation of Equal Protection. The Secretary attempted to do something forbidden by the Consent Decree voluntarily entered into by the Secretary. By the terms of the Consent Decree, this Court must enjoin the violation. Thus, it is the Secretary’s eleventh hour attempt to reject provisional ballots with “Step 2” deficiencies that violates Equal Protection, not the Order of this Court.
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information the voter must bring; and (3) the voter did not return with the necessary identification within ten days of the election.
The Secretary contends that if the information sought by “Step 2” is not completed, there is no way to determine whether the provisional voter was an SSN-4 voter or a voter who provided another type of identification, or even a voter who did not provide proper identification when casting the provisional ballot. That is not accurate. Under O.R.C. § 3505.181 (B)(7), if a provisional voter does not arrive at the polling place with an acceptable form of identification an “election official shall indicate, on the provisional ballot verification statement required under section 3505.182 of the Revised Code” that the voter is “required to provide additional information” to the county’s board of elections “to determine the eligibility” of the voter. If a poll-worker has properly recorded that information on the provisional ballot and the voter does not return with the proper identification within ten days of the election, that provisional ballot will be rejected.
The Secretary’s proposed relief, vacating Section III(5)(b)(vii), is unacceptable for numerous reasons. First, having created the equal protection issue by issuing a directive that violates both state law and a voluntarily entered Consent Decree, the Secretary cannot benefit from his illegal act by using it to escape his obligations under the Consent Decree. Second, if the Secretary has drafted Form 12-B in such a way that it both illegally shifts the burden of recording identification information from election officials to voters and does not allow election officials to distinguish poll-worker error from voter failure to provide identification, that is the Secretary’s mistake. There were myriad options available to the Secretary to create a form which would have made such distinctions clear, but he chose not to pursue those options. It is an established rule of contract law that ambiguities are construed against the drafter of the
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document. Since the Secretary drafted Form 12-B, if the form is inadequate, the Secretary must bear the consequences of that inadequacy. The voter acting in good faith cannot suffer disenfranchisement as a result of the Secretary’s drafting errors.
D. Judicial Estoppel Bars the Secretary from Advocating His Proposed Remedy While the Plaintiffs’ requested remedy is proper on substantive grounds, the Secretary is also judicially estopped from seeking his proposed remedy because he relies on a position contrary to that which he previously took before this Court and upon which this Court has relied. Judicial estoppel is an equitable doctrine which “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” New Hampshire v. Maine, 532 U.S. 742, 749, quoting Pegram v. Herdrich, 530 U.S. 211, 227, n. 8 (2000). The doctrine dictates that, “where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interest have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” Id. at 749. In this Court’s previous decision, the Court denied Plaintiffs’ request to expand the protections of Section III(5)(b)(vi) and (vii) to all provisional voters. In denying that request, the Court relied primarily on the Secretary’s assurances that provisional ballots would not be rejected if a poll worker failed to comply with her statutory duties: [T]he question is what is left of the concept of poll worker error in the context of defective ballot affirmations. [Plaintiffs’ counsel] suggested to [the Court], for example, that there might still be poll worker error because there is an obligation to record on the form the mode of identification used. And if that’s missing, that’s a defect in the ballot. But that defect is not covered by the provision we’re talking about, because as they say, the obligation to write down the identifying information is imposed upon the poll worker, not the voter. And in Section 7 [of the Consent Decree], it says that we won’t invalidate ballots based upon the poll worker’s failure to write something down.
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(Draft Transcript, October 24, 2012 Hearing, p. 47 at ll. 5-14). At that time, the Court also understood O.R.C. §3505.181(B)(6) to protect other provisional voters not covered by the Consent Decree from having their ballots rejected when poll workers fail to record the identifying information. In reliance on the Secretary’s verbal assurances to this Court and Ohio law, this Court denied Plaintiffs’ previous request to modify and expand the Consent Decree, stating that, “Critically, Section III(5)(b)(vii) remains in the Consent Decree to ensure no provisional ballot is disqualified when a poll worker fails to complete her designated portion of the envelope and the State does not dispute that.” SEIU Local 1 v. Husted, 2012 WL 5334080 at *12 (S.D. Ohio October 26, 2012). While the Secretary argues that judicial estoppel does not apply where a litigant’s assertions are “open to interpretation,” the relevant statements are not open to interpretation. Counsel for the Secretary unambiguously assured this Court that the Secretary understood the recording of “identifying information” to be a duty “imposed upon the poll worker” and that the failure to do so would not “invalidate ballots.” The Court relied on this statement to the Plaintiffs’ detriment. Nine days after making that representation to the Court, the Secretary ordered that no provisional ballots be counted if the identification information was improperly recorded, without ingaging in fact-finding to support the change. This is an archetypal situation in which judicial estoppel applies.
The Court also notes, with grave misgivings, that the Secretary changed an election rule on a Friday evening for an election scheduled for the following Tuesday, after repeatedly asserting, to both this Court and the Sixth Circuit, that he could not comply with injunctive relief ordered by this Court because he lacked sufficient time prior to the election. The surreptitious manner in which the Secretary went about implementing this last minute change to the election rules casts serious doubt on his protestations of good faith. Thus, in addition to the Plaintiffs’
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successful legal arguments, the equitable doctrine of judicial estoppel is grounds for denying the relief sought by the Secretary and granting that sought by Plaintiffs.
E. Directive 2012-54 Violates Fourteenth Amendment Substantive Due Process Although this Court’s decision to grant Plaintiffs the injunctive relief they seek rests on the Secretary’s violation of the Consent Decree and Equal Protection violation thereby created, the Court reaches the same conclusion under the Fourteenth Amendment’s guarantee of due process. The right to vote is a federal right guaranteed to all citizens by the Fourteenth Amendment. It may not be withheld without due process. While, generally, a federal court may not enjoin a state official from violating state law, there are exceptions. Ex parte Young, 209 U.S. 123 (1908). The Fifth Circuit has held that, “[i]t is fundamentally unfair and constitutionally impermissible [under the substantive prong of the due process clause] for public officials to disenfranchise voters in violation of state law.” Duncan v. Poythress, 657 F.2d 691, 704 (5th Cir. 1981), cert. denied, 459 U.S. 1012 (1982). In Duncan, the Fifth Circuit found the state’s failure to hold a special election as required by state law presented one of “those rare, but serious, violations of state election laws [which] undermine the basic fairness and integrity of the democratic system.” Duncan, 657 F.2d at 699. Here the Secretary’s eleventh hour Directive, which disenfranchises an unknown but potentially large number of Ohio voters and violates state law, is one of the “rare, but serious” violations of state election law identified by the Duncan court. Directive 2012-54 ordered elections officials to “reject[]” any provisional ballot without the voter’s properly completed identification information. Under O.R.C. § 3505.181(B)(6), however, the poll worker has the duty to record the identification information. The poll worker administers the election on behalf of the state, so the poll worker’s failure to fulfill her statutory duty is state action that, under Directive 2012-54,
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would lead to an individual losing her right to vote without due process. Just as in Duncan, the Secretary’s action here is a flagrant violation of a state election law, O.R.C. § 3505.181(B)(6), and it has the result of disenfranchising voters, by rejecting provisional ballots cast in good faith. This violation of state law rises to an abuse of federal due process and necessitates the granting of injunctive relief by a federal court.
While the Sixth Circuit has conjectured that asking a provisional voter to record her identification information may not constitute an undue burden under the Burdick/Anderson test, it also held that the duty to record that information, under Ohio law, is the poll worker’s. NEOCH, 2012 WL 4829033 at *16 (“Ohio law does not task poll-workers with quality control of ballot affirmations. Rather, the Ohio provisions cited by the district court . . . require elections officials ‘to record the type of identification provided . . .”). Ohio voters reasonably expect that the Secretary of Ohio will abide by the General Assembly’s laws in administering a federal election. For an executive official of the state to flaunt state law in arbitrarily reassigning a poll worker’s statutory duty to a voter, with the result being disenfranchisement of the voter, is “fundamentally unfair and constitutionally impermissible.” Duncan, 657 F.2d at 704. Thus, this Court finds Directive 2012-54 violates substantive due process as guaranteed by the Fourteenth Amendment. The due process violation provides an alternative ground for providing the injunctive relief sought by Plaintiffs.
IV. CONCLUSION For the foregoing reasons, NEOCH Plaintiffs’ Motion for Clarification of the Consent Decree is, hereby, GRANTED. The Court declares that Directive 2012-54 violates the Consent Decree and ORDERS that the Secretary not reject any provisional ballots cast by SSN-4 voters
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with an improperly completed “Step 2” (requesting voter’s identification information) on the Provisional Ballot Affirmation.
SEIU Local 1 Plaintiffs have WITHDRAWN their Motion for Preliminary Injunction. The Court, therefore, has no occasion to consider that Motion.
Since the Sixth Circuit’s NEOCH Decision of October 11, 2012 held that treating SSN-4 provisional ballots differently from other provisional ballots violates Equal Protection, this Court’s relief must be implemented in a uniform fashion for all provisional ballots. Thus, for the foregoing reasons, NEOCH Plaintiffs’ Motion for Modification of the Consent Decree is also GRANTED.
The Court ORDERS that the Secretary not reject any provisional ballots cast by nonSSN-4 voters with an improperly completed “Step 2” on the Provisional Ballot Affirmation. This latter relief, pertaining to the non-SSN-4 voters applies only to provisional ballots cast in the November 6, 2012 Election. The only circumstances in which the Secretary may reject a provisional ballot for a deficiency in “Step 2” of Form 12-B is if: (1) a poll-worker has recorded on the provisional ballot affirmation that the voter is required to return to the county board of elections with proper identification; (2) a poll worker has recorded what identification information the voter must bring; and (3) the voter did not return with the necessary identification within ten days of the election.
The Court ORDERS the Secretary to issue a Directive consistent with this Order by no later than November 16, 2012 at 12:00 p.m. Prior to issuing the Directive, the Secretary shall provide the relevant proposed language for the Directive to Plaintiffs’ counsel by no later than 12:00 p.m. on November 14, 2012. If the parties cannot agree to the proposed language after
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conferral, they shall submit separate proposals to the Court by no later than 12:00 p.m. on

November 15, 2012.

IT IS SO ORDERED.

Algenon

s/Algenon L. Marbley L. Marbley
United States District Judge

Dated: November 13, 2012

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 Case: 2:12-cv-00562-ALM-TPK Doc #: 84 Filed: 10/17/12 Page: 1 of 29 PAGEID #: 6087

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES

: Case No. 2:12-CV-562

INTERNATIONAL UNION, LOCAL 1, et :

al.,

: Judge Algenon L. Marbley

:

Plaintiffs

: Magistrate Judge Terence P. Kemp

:

vs.

: PLAINTIFFS’ RENEWED MOTION

: FOR PRELIMINARY INJUNCTION

JON HUSTED, et al.,

: WITH RESPECT TO WRONG-

: LOCATION PROVISIONAL

Defendants.

: BALLOTS; MEMORANDUM OF

LAW IN SUPPORT

Case: 2:12-cv-00562-ALM-TPK Doc #: 84 Filed: 10/17/12 Page: 2 of 29 PAGEID #: 6088
RENEWED MOTION FOR PRELIMINARY INJUNCTION WITH RESPECT TO WRONG-LOCATION PROVISIONAL BALLOTS
In light of the Sixth Circuit’s October 11, 2012, decision affirming the wrong-precinct provisional ballot preliminary injunction in this case, Plaintiffs Service Employees International Union, Local 1 (“SEIU Local 1”), et al., hereby renew their motion for a preliminary injunction that extends to all wrong-precinct provisional ballots caused by poll-worker error cast in the correct county, including those given to voters in the wrong polling location. This extension of the existing injunction is necessary to prevent the unconstitutional denial of the right to vote to thousands of Ohio voters in the upcoming November 2012 general election because of pollworker error.
In affirming this Court’s injunction prohibiting Ohio from rejecting wrong-precinct ballots cast in the correct polling location that are caused by poll-worker error, the Sixth Circuit expressly did not reach the constitutional issues regarding Ohio’s automatic disqualification of wrong-location/wrong-precinct provisional ballots. Rather, the Court provided:
Our ruling does not preclude the SEIU appellees or others from seeking broader relief for poll-worker induced wrong-place/wrong-precinct provisional ballots upon a showing that Ohio’s law unconstitutionally burdens those voters’ rights. As those issues are not before us, we express no view on their merits. NEOCH v. Husted, ___ F.3d ___, 2012 WL 4829033 *7 n.6 (6th Cir. Oct. 11, 2012).1 The uncontroverted evidence in the existing preliminary injunction record establishes a likelihood of success on Plaintiffs’ equal protection and due process claims with respect to these additional ballots. This evidence demonstrates that poll-worker error also systemically results in wrong-precinct ballots being provided to voters in the wrong polling location, for many of the exact same reasons that result in wrong-precinct/correct-location ballots (including poll workers’
1 Although the injunction was issued in SEIU Local 1 v. Husted, and affirmed in the appeal in that case, Sixth Circuit Case No. 12-4069, the appeal was consolidated for resolution with the related case NEOCH v. Husted, Sixth Circuit Case No. 12- 3916, and the Sixth Circuit’s opinion was issued under that lead case name. Plaintiffs therefore refer to the consolidated appellate opinion resolving both appeals as NEOCH v. Husted.
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inability to correctly determine voter precincts). The record evidence also demonstrates that significant numbers of voters statewide are affirmatively misdirected by Ohio poll workers to the wrong polling locations, where they are then, in further error, given wrong-precinct ballots. This evidence establishes an unconstitutional burden on the right to vote. Balanced against this showing of a burden, there is no record evidence of any legitimate state interest actually furthered by Ohio’s rule that these ballots must be disqualified after the election, and therefore, under Burdick v. Takushi, 504 U.S. 428 (1992), Crawford v. Marion County Bd. of Elections, 553 U.S. 181 (2008), NEOCH, 2012 WL 4829033, and Obama for America v. Husted, ___ F.3d. ___, 2012 WL 4753397 (6th Cir. Oct. 5, 2012), Ohio’s disqualification of these votes runs afoul of equal protection.
Because poll-worker error induces voters who are in the wrong polling location to cast invalid ballots rather than travel to the right polling location, the disqualification of these ballots also violates due process, for the same reasons given by this Court and the Sixth Circuit in support of the existing injunction, Doc. 67 at 50-51; NEOCH, 2012 WL 4829033 *13, and in Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 243-44 (6th Cir. 2011), where the Sixth Circuit’s due process analysis did not distinguish between “right location” and “wrong location” ballots.
The remaining preliminary injunction factors also weigh heavily in favor of extending the existing injunction to wrong-location provisional ballots: thousands of voters will undeniably be severely and irreparably harmed in the upcoming election by the rejection of their ballots, while counting these ballots will cause no harm to others and serves the public interest.
As described in the accompanying Proposed Order, Plaintiffs seek an injunction ordering the Secretary of State to instruct county boards of election not to reject any wrong-location provisional ballots cast by lawfully registered voters in the correct county, under the same standards set forth in this Court’s existing August 27, 2012 injunction for right-location/wrongprecinct ballots. A memorandum in support and proposed order are attached.
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Dated: October 17, 2012

Respectfully submitted
/s/ Danielle Leonard____________ By: Danielle Leonard
MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com
Attorneys for All Plaintiffs
STEPHEN P. BERZON, pro hac vice STACEY M. LEYTON, pro hac vice BARBARA J. CHISHOLM, pro hac vice DANIELLE LEONARD, pro hac vice Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com
Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC
PENDA HAIR, pro hac vice DONITA JUDGE, pro hac vice UZOMA NKWONTA, pro hac vice Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org
Attorneys for Plaintiff Ohio Organizing Collaborative

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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................2 A. Procedural Background........................................................................................................2 B. Ohio’s Provisional Ballot System........................................................................................3 C. Poll-Worker Error ................................................................................................................4 ARGUMENT .................................................................................................................................11 I. Preliminary Injunction Standard ........................................................................................11 II. Plaintiffs Are Likely to Succeed in Their Constitutional Challenge to Ohio’s Mandatory
Rejection of Wrong Precinct Provisional Ballots Cast in the Wrong Polling Location Regardless of Poll Worker Error........................................................................................12 A. Mandating that County Boards Disqualify the Entire Ballots Cast by Lawfully
Registered Voters Because They Were Given Those Provisional Ballots in the Wrong Polling Location Burdens the Right to Vote for No Legitimate Reason in Violation of Equal Protection ................................................................................12 1. Disqualifying wrong precinct ballots cast in the wrong location imposes
a substantial burden on the right to vote. ...................................................13 2. No legitimate state interest is actually furthered by disqualifying all the
votes on these ballots cast by lawfully-registered voters after the election .......................................................................................................16 B. Mandatory Disqualification of These Provisional Ballots Regardless of Poll Worker Error Also Violates Due Process ..............................................................19 III. The Balance of Harms Weighs Strongly In Favor of Issuing a Preliminary Injunction With Respect to Ballots to Be Rejected in the Upcoming November 2012 Election ..............................................................................................................................20 CONCLUSION..............................................................................................................................20
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TABLE OF AUTHORITIES
FEDERAL CASES
Burdick v. Takushi, 504 U.S. 428 (1992)......................................................................................................... passim
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535 (6th Cir. 2007) ...................................................................................................12
Crawford v. Marion County Election Board, 553 U.S. 181 (2008)......................................................................................................... passim
Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville & Davidson Cty., Tenn., 274 F.3d 377 (6th Cir. 2001) ...................................................................................................12
Hunter v. Hamilton County Board of Elections, 850 F. Supp. 2d 795 (S.D. Ohio 2012) ......................................................................................7
Hunter v. Hamilton County Board of Elections, 635 F.3d 219 (6th Cir. 2011) .....................................................................................................2
NEOCH v. Husted, ___ F.3d ___, 2012 WL 4829033 (6th Cir. Oct. 11, 2012) ............................................. passim
Norman v. Reed, 502 U.S. 279 (1992).................................................................................................................16
Obama for America v. Husted, ___ F.3d ___, 2012 WL 4753397 (6th Cir. Oct. 5, 2012) .............................................1, 13, 18
Purcell v. Gonzalez, 549 U.S. 1 (2006).....................................................................................................................19
Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) ...................................................................................................17
Six Clinics Holding Corp., II v. Cafcomp System, Inc., 119 F.3d 393 (6th Cir. 1997) .............................................................................................12, 19
STATE CASES
State ex rel. Painter v. Brunner, 941 N.E.2d 782 (Ohio 2011)......................................................................................................4
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Ohio Rev. Code § 3505.181.............................................................................................................5 Ohio Rev. Code § 3505.183.............................................................................................................4
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INTRODUCTION When voters arrive at any polling location in Ohio, poll workers must determine whether the voter is in the correct location and which precinct ballot to provide the voter. The existing factual record compiled from Secretary of State and county board of elections records from every recent election establishes that the very same types of poll-worker error that result in wrongprecinct ballots being given to voters who appear at the correct location – that poll workers systemically fail to properly determine voters’ precincts and misunderstand the purpose of provisional ballots – also result in voters being mistakenly instructed to vote thousands of wrongprecinct ballots in the wrong voting location.2 This record evidence also establishes that many voters who arrive at the wrong polling location do so because they are directed there, in error, by poll workers. And the record evidence demonstrates that no legitimate interest is served by county boards disqualifying rather than counting these votes after the election. In light of the record, applying Burdick v. Takushi, 504 U.S. 428 (1992), Crawford v. Marion County Bd. of Elections, 553 U.S. 181 (2008), NEOCH v. Husted, 2012 WL 4829033 *913 (6th Cir. Oct. 11, 2012), and Obama for America v. Husted, ___ F.3d. ___, 2012 WL 4753397 *4-7 (6th Cir. Oct. 5, 2012), this Court should conclude (just as it did with respect to correctlocation provisional ballots) that Ohio’s disqualification of wrong-location ballots likely violates equal protection. In addition, in light of this evidence, the disqualification of these ballots induced by poll-worker error violates due process for the reasons recognized by this Court and the Sixth Circuit. Doc. 67 at 50-51; NEOCH, 2012 WL 4829033 *13; Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 243-44 (6th Cir. 2011). In affirming this Court’s wrong-precinct injunction, the Sixth Circuit expressly left open the issue of wrong-location provisional ballots cast in the voter’s county of residence, and this Court should extend its injunction to prevent the unconstitutional disqualification of those votes.
2 Plaintiffs incorporate and rely on the existing factual record submitted with respect to Plaintiffs’ previous motion for preliminary injunction. Rather than burden the Court by re-filing this evidence, Plaintiffs refer to the docket numbers of evidence already in the record.
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BACKGROUND A. Procedural Background
Plaintiffs filed this lawsuit on June 22, 2012 challenging Ohio’s provisional ballot counting law and immediately moved for a preliminary injunction. Doc. 1; Doc. 4 at 4-5; Doc. 56-1 at 2-3; Doc. 63. On August 27, 2012, this Court granted the preliminary injunction and, with respect to wrong-precinct provisional ballots, ordered the Secretary to direct county boards not to “reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election” on the ground that “[t]he voter cast his or her provisional ballot in the wrong precinct” unless the poll worker properly performed his duties. Doc. 67 at 56-57.
On September 11, 2012, the Secretary issued a directive implementing the injunction that provides uniform instructions and mandates use of a form by which poll workers can record whether they properly instructed a voter regarding his/her precinct, and whether the voter insisted on voting an invalid ballot. Doc. 77-1 (Directive 2012-44). The Directive applies only to wrong-precinct ballots cast in correct multi-precinct polling locations.
The State of Ohio appealed this portion of the injunction. On October 11, 2012, the Sixth Circuit issued a consolidated decision in this case and NEOCH v. Husted, affirming the preliminary injunction with respect to disqualification of wrong-precinct ballots cast in voters’ correct polling locations. 2012 WL 4829033 *9-15. The Sixth Circuit held that Plaintiffs had demonstrated likely success on their equal protection and due process claims, that the State failed to show that legitimate interests supported the strict disqualification rule, and that the equities weighed in favor of an injunction. Id.
Although the Sixth Circuit recognized that Plaintiffs had not confined their requested relief to right-location/wrong-precinct provisional ballots, it read this Court’s “wrong-precinct remedy to encompass only those [right-place/wrong-precinct] votes.” Id. at *7. But in doing so, it expressly provided that its ruling “did not preclude the SEIU appellees or others from seeking broader relief for poll-worker-induced wrong-place/wrong-precinct provisional ballots upon a showing that Ohio’s law unconstitutionally burdens those voters’ rights.” Id. at *7 n.6.
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B. Ohio’s Provisional Ballot System The relevant facts regarding Ohio’s provisional voting system largely overlap with those
described in detail in this Court’s August 27, 2012 Plenary Opinion and Order. Doc. 67 at 3-9. Ohio divides registered voters into precincts, and assigns precincts to increasingly
consolidated polling locations. Id. at 6 & n.10; Doc. 45 ¶5 & Doc. 45-1; Doc. 9-2 at 8-10. On election day, no voter – regardless of whether he or she has appeared in the correct polling location – can obtain or cast a provisional ballot without first being processed by poll workers. As this Court found, “[p]oll workers have significant and specific legal responsibilities.” Doc. 67 at 7. Until a poll worker correctly performs those duties, the poll worker does not know whether the voter is in the correct location.
Initially, poll workers must determine whether voters may cast a regular ballot, or fall into one of thirteen categories that require provisional ballots. O.R.C. §3505.181(A); Doc. 67 at 7. Next, as the Sixth Circuit noted, Ohio poll workers have the legal duty to determine the voter’s correct precinct and direct the voter to that precinct (and that precinct’s polling location). 2012 WL 4829033 *10; O.R.C. §3505.181(C)(1). If the poll worker determines that a voter is attempting to vote in the wrong polling location, the poll worker must (1) “direct” the voter “to the polling place for the jurisdiction in which the individual appears to be eligible to vote”; (2) “explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct”; and (3) “provide the telephone number of the board of elections in case the individual has additional questions.” Id. §3505.181(C)(1). Then, only if “the individual refuses to travel to the polling place for the correct [precinct] or to the office of the board of elections to cast a ballot,” shall the individual “be permitted to vote a provisional ballot at that [precinct].” Id. §3505.181(C)(2); see also id. §3505.181(E)(1).
At all polling locations, poll workers must use a “precinct voting location guide” to identify voters’ proper precinct. Id. §3505.181(C)(1). These guides include an electronic or printed record of all streets in the county, and the precinct and polling place that corresponds to the addresses on those streets. Id. §3505.181(C)(1), (E)(2)(a).
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County boards of election count provisional ballots after election day. Doc. 67 at 4; O.R.C. §§3505.181(B)(4), 3505.183. Ohio law requires county boards to determine whether each provisional ballot was cast by a lawfully registered voter. Id. §3505.181(C)(2)(a); see also Doc. 24-13 at 3 (Directive 2012-01). County boards must reject a provisional ballot even when cast by a lawfully registered voter if “[t]he individual named on the affirmation is not eligible to cast a ballot in the precinct . . . in which the individual cast the provisional ballot.” O.R.C. §3505.183(B)(4)(a)(ii); see also id. §3503.183(B)(3)(a)-(c).
Voters are neither notified nor given the opportunity to correct any problems with provisional ballots prior to the decision to count or reject them. O.R.C. §3505.183(B)(4). Even voters who have independently determined that they were misdirected by poll workers and voted in the wrong location as a result, and informed board staff of this error have no remedy to prevent disqualification of their votes. E.g., Doc. 12 ¶54 (Clermont 2008) (husband and wife discovered after voting on election day that wife was directed to wrong polling place by poll workers and therefore voted wrong-precinct ballot).
State ex rel. Painter v. Brunner, 941 N.E.2d 782 (Ohio 2011), construed Ohio law to require county boards to reject all wrong-precinct ballots, including those cast in both correct and incorrect polling locations, regardless of whether poll-worker error resulted in the wrongprecinct ballot. Prior to Painter, some boards were exercising their discretion to count wrongprecinct provisional ballots that resulted from poll-worker error. Several boards did not distinguish between right and wrong location ballots when counting ballots. See, e.g., Doc. 41 ¶9 (Delaware 2010); Doc. 38 ¶17 (Lucas 2008); Doc. 12 ¶37 (Ross 2010). C. Poll-Worker Error
As this Court previously recognized, despite poll workers’ duty to determine each voter’s correct precinct and polling location, thousands of provisional ballots have been rejected in every recent election for being cast in the wrong precinct in the voters’ counties of residence. Doc. 67 at 25-26. Rejected ballots include those cast in both correct and incorrect polling locations. In
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the 2011 general election, more ballots were rejected for being cast in the wrong precinct/wrong location (2,392) than in the wrong precinct/correct location (1,826). Doc. 9-2 at 23-24.3
If poll workers correctly perform their duty to determine each voter’s correct precinct and polling location, and to direct voters to those locations, voters should not cast provisional ballots in the wrong polling location. As this Court and the Sixth Circuit concluded, it would be “irrational” for a voter who took the time to vote on election day and was properly instructed by a poll worker to refuse to go to the correct polling location when directed there, and instead to insist on casting a ballot that he or she has been told will simply be discarded:
As a matter of law, if a person casts a provisional ballot in the wrong precinct, it is always going to be due to poll-worker error unless the poll worker has instructed the individual where the correct polling location is and that individual “refuses to travel to the polling place for the correct [precinct] or to the office of the board of elections to cast a ballot.” Ohio Rev. Code §§ 3505.181(C)(2), 181(E)(1). Such an act would be an irrational and futile exercise by the voter, because, as required by Ohio Rev. Code § 3505.181(C)(1), the poll worker must first inform him that if he insists on voting in the wrong precinct, his ballot will not be counted. NEOCH, 2012 WL 4829033 at *11 (quoting Doc. 67 at 8). And just as Defendants “presented no evidence of alternate causes” of correct-location/wrong-precinct ballots, id., they presented no evidence that other factors cause voters knowingly to cast wrong-location/wrong-precinct ballots. Nor did Defendants present any evidence that a single wrong-precinct ballot in any election was cast due to a voter’s refusal to travel to the correct polling location. Doc. 28. The contemporaneous record evidence demonstrates that, just as with wrongprecinct/correct-location ballots, poll-worker error results in voters being given and casting these wrong-location provisional ballots. Statewide record evidence reveals that Ohio voters commonly are affirmatively misdirected to the wrong polling location by poll workers who are attempting to direct them to the proper polling location. In Ashtabula County in 2011, for
3 The problem did not improve in the 2012 primary, with 20% of all rejected provisional ballots (465 out of 2,556), rejected as cast in the wrong precinct and location, compared to 232 rejected wrong-precinct/correct-location ballots. See Secretary election data, available at http://www.sos.state.oh.us/SOS/elections/Research/electResultsMain/2012Results.aspx.
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example, poll workers complained that another polling location was repeatedly “just sending
voter[s] to them” without checking whether it was the correct polling location. See, e.g., Doc. 41
¶19 & 41-13 at 5 (Ashtabula 2011 Incident Reports).4
4 See also, e.g., Doc. 11 ¶5c & Doc. 11-3 at 4 (Clark 2008 Incident Reports) (“I voted in primary 2008 at Lincoln School, as in previous general election. With no change in address or registration, this time Lincoln told me I needed to come to St. Joseph’s, 6th Precinct, to vote, as I was not on their roll. However, I was not on that roll either, so had to do a provisional ballot.”); Doc. 12 ¶54 & Doc. 12-41 at 12 (Clermont 2010 Incident Reports) (“B of E employees sent a handicapped [provisional voter] to New Richmond when they belonged here… The difficulties of wandering around in the wrong place are amplified when in a wheelchair.”); Doc. 12 ¶54 & Doc. 12-41 at 18 (Clermont 2008 Incident Reports) (“A number of people were erroneously sent from the Middle School polling places to vote @ township precincts instead of village precincts w/ the same letter.” (emphasis in original)); Doc. 12 ¶54 & Doc. 12-41 at 21 (Clermont 2008 Incident Reports) (“Lots of voters complaining about being sent to wrong places.”); Doc. 53 ¶9 & Doc. 53-2 (Clinton 2008 Incident Reports) (“Precinct officials sent voter to 2 or 3 different places.”); Doc. 12 ¶54 & 12-43 at 2 (Cuyahoga 2011 Incident Reports) (“I must inform you of the many (at least 40 voters) who were misguided and directed to vote at our station. Most of them informed me that they were sent by [a poll worker at another precinct] in error. Some of the voters claimed they were sent to as many as (3) different locations – by mistake.”); Doc. 12 ¶54 & Doc. 12-45 at 10 (Franklin 2011 Incident Reports) (“Polling Location sent them to another location 2 times.”); Doc. 11 ¶5a & 11-3 at 2 (Lucas 2008 Incident Reports) (Voter “went to East Toledo Family Center where [she] voted in primary. There I was told to come to East Side Central… they told her… to go back to East Toledo Family Center – that the people there were ‘reading the book’ wrong. We’re calling this in to find out the right place before going back to the Family Center”); Doc. 38 ¶28 & Doc. 38-22 (Lucas 2008 Incident Reports) (“Good Sheppard Church has sent 3-4 people to us in error.”); Doc. 41 ¶19 & 41-13 at 7 (Medina 2008 Incident Reports) (“People were sent to our precinct that did not belong with us. One couple had been to 3 places.”); Doc. 12 ¶54 & Doc. 12-47 at 11 (Montgomery 2008 Incident Reports) (“Several voters have been sent to our location because they are in our Poll Book under their old address. We are concerned because we can’t process them as they must vote where they currently live. It is frustrating to voters to have to go back and forth. Could this please be covered more thoroughly in training and in the manuals?”); Doc. 12 ¶54 & Doc. 12-52 at 7 (Trumbull 2010 Incident Reports) (Voter “lives in War 3-C . . . was sent over to HOW-S who sent him to HOW-A in another building. He came back to us . . . We apologized profusely.”).
Boards of elections have also mailed incorrect polling location information. In Clermont County in 2012 poll workers complained that “[q]uite a few voters” were incorrectly sent instructions “to vote at Milford Church of Christ – 844 St. Rt. 131 instead of Milford Assembly of God Church – 1301 St. Rt. 131.” Doc. 12 ¶54 & Doc. 12-41 at 2. All of these incident reports reflect only those instances when poll workers were aware of misdirection, and not the likely additional misdirection that never comes to the attention of poll workers or voters.
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Even voters who initially arrived at the correct polling location have been misdirected to vote at the incorrect polling location. For example, in Franklin County in 2011, an “upset voter” who arrived at the correct location was sent to an incorrect polling location, which then sent him to a second incorrect location. Doc. 12 ¶54 & Doc. 12-45 at 11 (Franklin 2011); see also, e.g., Doc. 11 ¶5b & Doc. 11-3 at 3 (Summit 2008) (“I attempted to vote at the church on S. main by Caston Rd, but I was turned away and told to vote at my last precinct. I came to the church on Manchester Rd where they identified the problem and told me I had to vote where I lived.”).
Even a voter who has initially arrived at an incorrect polling location (because, for example, the voter appeared at his or her previous polling location, unaware of having been reassigned) cannot cast a wrong-precinct provisional ballot unless a poll worker provides him with that incorrect ballot, in violation of the worker’s duty to determine the correct precinct and polling location. As the Sixth Circuit recognized, “the SEIU plaintiffs presented voluminous evidence that poll workers give voters wrong-precinct ballots for a number of reasons, ranging from misunderstanding counties’ precinct location guides to failing to understand the votedisqualifying ramifications of handing out wrong-precinct ballots.” 2012 WL 4829033 *11; see also Doc. 67 at 8-10; see also Hunter v. Hamilton County Bd. of Elections, 850 F.Supp.2d 795, 821-22 (S.D. Ohio 2012). The types of errors that cause a poll worker to provide voter with a wrong-precinct ballot are exactly the same regardless of whether (unbeknownst to the voter or poll worker) the voter is in the incorrect or correct location.
For example, poll workers often provide voters with the wrong-precinct ballots because they incorrectly identify the voter’s precinct, thereby preventing accurate identification of the voter’s correct polling location.5 Poll workers throughout Ohio report that they attempted to provide correct ballots but later realized they had mistakenly instructed voters to cast wrong-
5 See Doc. 12 ¶¶17, 41, 51-52, 56-57, Doc. 38 ¶¶18, 25, Doc. 41 ¶¶16, 22.
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precinct ballots.6 As the Sixth Circuit recognized, these errors systemically result from the
uniformly confusing “precinct voting location guides.” O.R.C. §3505.181(C)(1); NEOCH, 2012
WL 4829033 *11 (Franklin County guide excerpt “demonstrates how easily poll workers can
make mistakes under the pressures of election day”); see also Hunter II, 850 F.Supp.2d at 819
(“many [Hamilton County] poll workers mistakenly identified the voter’s precinct in situations
where the voter’s street was divided into different precincts based on the house number,” and
“some poll workers did not notice that some rows in the Green Book pertained only to even
house numbers and a different row pertained to odd house numbers on the same street.”). The
confusing guides contain streets that pass through multiple precincts, streets with identical names
assigned to different precincts, unlabeled columns and abbreviations, and many precincts divided between odd and even sides of the street.7 Unsurprisingly, poll workers throughout Ohio report difficulty using the guide to determine voters’ proper precinct and polling locations.8
6 See, e.g., Doc. 12 ¶51 (Clermont 2010); Doc. 41 ¶16 (Medina 2011); Doc. 38 ¶25 (Ross 2012, 2011); Doc. 12 ¶¶51-52 (Trumbull 2011, 2008); Doc. 12 ¶17 (Franklin 2010); Doc. 38 ¶18 (Montgomery 2012). 7 See, e.g., Doc. 12 ¶71 & Doc. 13-6 through Doc. 13-24. 8 See, e.g., Doc. 12 ¶56 (Clermont 2011) (poll worker misread voter’s voting location because of confusion about location abbreviations); Doc. 53 ¶10 (Clinton 2012) (poll worker “had a problem looking up someone in the street guide . . . wasn’t looking it up correctly”); Doc. 12 ¶56 (Franklin 2012) (poll worker “did not know how to read the voter street guide” so unable to find address and had voter vote provisionally); Doc. 41 ¶21 (Medina 2011) (precinct maps not readable); Doc. 12 ¶56 (Trumbull 2010) (poll worker misread street guide and directed voter to wrong location); Doc. 12 ¶41 (Summit 2011); Doc. 12 ¶57 (Stark 2011) (several reports of “[c]onfusion over E/O [even/odd] in CW street range guide”); Doc. 12 ¶57 (Clermont 2011) (same); Doc. 41 ¶22 (Medina 2008) (same); Doc. 12 ¶57 (Montgomery 2008) (same); Doc. 12 ¶57 (Trumbull 2008) (same). Poll-worker error in using these guides is compounded by frequent errors in the materials, including missing streets, precincts, and polling locations. See, e.g., Doc. 41 ¶20 (Medina 2011); Doc. 12 ¶55 (Montgomery 2012); Doc. 12 ¶55 (Clermont 2010); Doc. 12 ¶55 (Franklin 2011); Doc. 12 ¶55 (Stark 2012); Doc. 38 ¶42 (Lucas 2011). Poll workers also frequently report not being provided with street guides at all, or insufficient numbers of guides. See, e.g., Doc. 12 ¶61 (Franklin 2012, 2011); Doc. 53 ¶13 (Clinton 2008). 8 See, e.g., Doc. 38 ¶25 (Clinton 2012); Doc. 38 ¶27 (Franklin 2012); Doc. 53 ¶8 (Jackson 2011); Doc. 41 ¶17 (Medina County 2011, 2008).
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The evidence further establishes that poll workers commonly err by providing voters with
wrong-precinct provisional ballots even when they know voters are not assigned to that precinct
or polling location, because poll workers do not understand that wrong-precinct ballots will be rejected.9 Poll workers throughout Ohio also commonly give out provisional ballots
automatically to anyone not on their precinct register without attempting to determine the correct precinct or polling location, because they mistakenly think that they are helping people vote.10
The evidence also documented wrong-precinct ballots resulting from misinformation
provided by board staff to poll workers and voters. A Clinton County poll worker who asked the
board of elections “[h]ow to handle a voter who is not in signature book” was told that if “the
9 See, e.g., Doc. 38 ¶25 (Clinton 2012); Doc. 38 ¶27 (Franklin 2012); Doc. 53 ¶8 (Jackson 2011); Doc. 41 ¶17 (Medina County 2011, 2008). 10 In Hunter, 34 of 50 testifying poll workers stated they had given voters provisional ballots without using the voters’ address to determine whether they were in the correct precinct. 850 F.Supp.2d at 819; see, e.g., Doc. 7 & Doc. 7-11 (Hunter transcripts) at 3-120:1-6. The district court concluded that poll workers consistently failed to direct voters to the right precinct “either because they mistakenly thought the voter was in the right precinct or they mistakenly thought they did not have to direct the voter to the correct precinct for the vote to count,” and they sometimes “assum[ed] another poll worker had already made that determination.” Hunter II, 850 F.Supp.2d at 818, 840 n.31; see also Doc. 12 ¶51 (Erie 2011); Doc. 38 ¶25 (Franklin); Doc. 53 ¶8 (Jackson 2012, 2011); Doc. 12 ¶¶51-52 (Crawford 2011); Doc. 41 ¶17 (Medina 2008); Doc. 12 ¶51 (Portage 2011, 2010); Doc. 41 ¶17 (Richland 2012); Doc. 12 ¶51 (Stark 2010); Doc. 12 ¶¶51-52 (Trumbull 2011, 2008). For board minutes discussing similar errors, see, e.g., Doc. 12 ¶¶35-36 (Ross 2012); Doc. 41 ¶6 (Auglaize 2010); Doc. 12 ¶12 (Clark 2010); Doc. 38 ¶8 (Huron 2010); Doc. 12 ¶43 (Summit 2010); Doc. 41 ¶14 (Washington 2010). For additional reports from boards recording that poll workers erred by providing voters with wrong-precinct ballots, see, e.g., Doc. 12 ¶51 (Allen 2011, 2008) (poll workers in numerous precincts gave voters “wrong precinct” ballots); Doc. 12 ¶51 (Hocking County) (in numerous precincts, poll workers negatively evaluated for “[p]rovisional voters in the wrong precinct”); Doc. 12 ¶51 (Summit 2012) (numerous poll workers marked down in column for whether “provisional ballots issued properly” and for “issued an out-of-precinct voter a provisional ballot”); see also Doc. 38 ¶25 (Athens 2011); Doc. 12 ¶51 (Clermont 2011, 2008); Doc. 12 ¶51-52 (Crawford 2011, 2010); Doc. 12 ¶51 (Cuyahoga 2008); Doc. 41 ¶17 (Hardin 2010); Doc. 38 ¶25-26 (Lucas 2008); Doc. 12 ¶51 (Portage 2011, 2009); Doc. 12 ¶52 (Stark 2011); Doc. 53 ¶8 (Wayne 2011); Doc. 38 ¶17 (Lucas 2008); Doc. 38 ¶19 (Montgomery 2011).
9

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voter does not live in the precinct . . . then vote a provisional.” Doc. 41 ¶24 (Ashtabula 2011); Doc. 53 ¶12 (Clinton 2008).12
Having failed to properly determine precincts and polling locations, poll workers consistently fail to inform voters that if they vote a wrong-precinct ballot it will not count, before telling a voter to cast that wrong-precinct provisional ballot.13 Just as there was no record evidence that any voter in the correct location insisted on voting a wrong-precinct ballot after having been properly informed, there is no record evidence that even a single voter appeared at the wrong location, was directed to the correct location, and insisted on voting the wrong ballot that he was told would not count. Doc. 67 at 29.14 Indeed, voters repeatedly testified in the Erie County elections contest that if they had been properly directed they would have traveled to the correct location to ensure their vote would count. Doc. 11-1 (transcripts from Paul v. Jeffrey, Erie County Court of Common Pleas Case No. 2010-CV-0983) at 35:1-5 (“[I]f they would have said, hey you know, you can’t vote here . . . I would have went a mile and a half down the road where The Chapel’s at and voted.”); id. at 29:21-23 (would have gone to correct location if told to do so); id. at 54:19-21 (same); id. at 73:19-21 (same); id. at 141:2-4 (same); id. at 171:1-4 (same); id. at 184:15-22 (same); id. at 191:3-5 (same); id. at 55:7-17 (same).
12 Poll workers also reported inability to get timely advice on provisional ballots from the board. For example, poll workers reported, “[w]e needed answers regarding voters voting provisional – 2 of us called [the board of elections] for a 15 minute period without getting an answer.” Doc. 12 ¶60 (Clermont 2008); see also, e.g., Doc. 38 ¶31 (Lucas 2008); Doc. 41 ¶24 (Medina 2011); Doc. 12 ¶60 (Trumbull 2010). 13 Hunter, 850 F.Supp.2d at 820-21 (poll workers testified they neither directed voters to correct precinct nor informed voters their votes would not count if cast in incorrect precinct; voters testified similarly); see also Doc. 11 & 11-1 (transcripts from Paul v. Jeffery) at 53:10-54:24 (voters testified they were not informed they were in wrong precinct or that their votes would not count); id. at 72:19-73:21; id. at 28:7-29:20; id. at 139:20-140:21. 14 See Doc. 10 ¶3, Doc. 12 ¶¶7-49, Doc. 38 ¶¶8-23, Doc. 41 ¶¶5-14, Doc. 53 ¶6, Doc. 55¶7 (compiling county board minutes and transcripts); Doc. 12 ¶¶50-63, Doc. 38 ¶¶24-35, Doc. 41 ¶¶15-28, Doc. 53 ¶¶7-15 (compiling county board election day incident reports). See also Hunter II, 850 F.Supp.2d at 822; Doc. 7-5 at 2-118:4-8; Doc. 7-7 at 2-198:9-12; Doc. 7-15 at 4132:18-21; Doc. 7-16 at 4-148:13-21; see also Doc. 7-18 at 6-17:15-18 (Hunter II transcripts).
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The boards and Secretary are well aware of the nature of poll-worker errors that result in voters being provided wrong-precinct ballots in the wrong polling locations. The errors are documented in detailed election day reports provided to the county boards, and the boards – in board minutes and board meeting transcripts from throughout Ohio relating to elections from 2008 through 2012 – acknowledge poll-worker error is the cause of wrong-precinct ballots.15 Records also reflect the boards repeatedly informing the Secretary that they are rejecting wrongprecinct ballots caused by poll-worker error.16
Just as this Court concluded with respect to right-location ballots, “[e]very documented instance in the record” of a wrong-location ballot was “the result of the poll-worker failing in his or her statutory duty to ensure that voters are given the correct ballot and vote in the correct precinct.” Doc. 67 at 29 (internal quotations and alterations omitted). And, “[t]hat poll workers err – and will continue to err in 2012 – by providing qualified voters with wrong-precinct provisional ballots is not a contested matter.” Doc. 67 at 25.
ARGUMENT I. Preliminary Injunction Standard
In reviewing Plaintiffs’ preliminary injunction request, the Court must consider and balance: “(1) [Plaintiffs’] likelihood of success on the merits; (2) whether [Plaintiffs] may suffer irreparable harm absent the injunction; (3) whether granting the injunction will cause substantial
15 For board meeting minutes and transcripts acknowledging poll worker error with respect to wrong-precinct ballots including those cast in the wrong polling location, see Doc. 12 ¶7 (Adams 2008), Doc. 12 ¶12 (Clark 2010), Doc. 12 ¶¶19-20 (Franklin 2008), Doc. 41 ¶10 (Hancock 2010), Doc. 38 ¶8 (Huron 2010), Doc. 53 ¶6 (Jackson 2008), Doc. 12 ¶32 (Lake 2008), Doc. 38 ¶13 (Lucas 2012), Doc. 38 ¶15 (Lucas 2011), Doc. 38 ¶17 (Lucas 2008), Doc. 38 ¶19 (Montgomery 2011), Doc. 38 ¶20 (Montgomery 2010), Doc. 12 ¶37 (Ross 2010), Doc. 12 ¶39 (Scioto 2008), Doc. 12 ¶46 (Trumbull 2012), Doc. 41 ¶14 (Washington 2010). See also Doc. 38 ¶9 (Licking 2012) (noting generally poll-worker error with respect to provisional ballots), Doc. 38 ¶10 (Licking 2011) (same). 16 See, e.g., Doc. 55 ¶9 (Athens 2011); Doc. 55 ¶12 (Auglaize 2012); Doc. 38 ¶42 (Franklin 2011); Doc. 55 ¶9 (Lorain 2012); Doc. 38 ¶42 (Lucas 2011); Doc. 38 ¶42 (Madison 2010).
11

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harm to others; and (4) the impact of an injunction upon the public interest.” Deja Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001). The “four considerations . . . are factors to be balanced, not prerequisites that must be met.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th Cir. 1997). As the Sixth Circuit recognized in this case, a plaintiff “need not ‘prove the case in full’” to demonstrate likely success on the merits. NEOCH, 2012 WL 4829033 *8 (quoting Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d at 535, 543 (6th Cir. 2007)). “It is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberative investigation.” Id. (quoting Six Clinics, 119 F.3d at 402). II. Plaintiffs Are Likely to Succeed in Their Constitutional Challenge to Ohio’s
Mandatory Rejection of Wrong-Precinct Provisional Ballots Cast in the Wrong Polling Location Regardless of Poll-Worker Error A. Mandating that County Boards Disqualify the Entire Ballots Cast by
Lawfully Registered Voters Because They Were Given Those Provisional Ballots in the Wrong Polling Location Burdens the Right to Vote for No Legitimate Reason in Violation of Equal Protection In keeping with the Sixth Circuit and this Court’s decisions that Ohio’s mandatory disqualification of wrong-precinct ballots cast in the right polling location likely violates equal protection (see 2012 WL 4829033 *9-13; Doc. 67 at 22-41), Plaintiffs are also likely to succeed in challenging mandatory disqualification of wrong-precinct ballots cast in the wrong polling location as the result of poll-worker error. The substantial statewide record evidence that pollworker error results in voters unknowingly casting provisional ballots in the wrong polling location establishes that disqualifying these ballots imposes a substantial burden on the right to vote. Balanced against this substantial burden, there is no evidence of any specific legitimate state interest actually furthered by disqualifying these ballots after the election. Therefore, under Burdick, 504 U.S. at 433-34, Crawford, 553 U.S. at 190-91 (plurality), NEOCH, 2012 WL
12

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4829033 *9-13, and Obama for America, 2012 WL 4753397 *4-7, disqualifying these votes violates equal protection.17
1. Disqualifying wrong-precinct ballots cast in the wrong location imposes a substantial burden on the right to vote
The Sixth Circuit agreed with this Court that Ohio’s mandatory ballot disqualification rule imposes a “substantial burden on provisional voters” by the “systemic disqualification of thousands of wrong precinct provisional ballots” in light of the “strong likelihood that the majority of these miscast votes result from poll-worker error.” NEOCH, 2012 WL 4829033 *1011. The evidence of poll-worker error resulting in disqualification of wrong-precinct/wronglocation ballots establishes a similar burden on the right to vote.
The systemic rejection of wrong-precinct/wrong-location ballots is of a scale comparable to the numbers of wrong-precinct/right-location ballots before the Sixth Circuit and this Court in this case. 2012 WL 4829033 *10; Doc. 67 at 25-26. In recent elections, Ohio has systemically disqualified thousands of wrong-precinct provisional ballots that were mistakenly given to voters in the wrong polling location. In 2011 and 2012, the number of rejected wrong-location ballots exceeded the number of correct-location/wrong-precinct ballots. See supra at 5.
As previously explained, the record demonstrates that the same types of errors that result in poll workers mistakenly handing wrong-precinct ballots to voters within the correct polling location also cause poll workers to mistakenly give wrong-precinct ballots to voters who appear at the wrong polling location, instead of directing those voters to the right polling location. See supra at 5-10. The poll workers’ statutory duty to direct voters to the correct precinct, as recognized by this Court and the Sixth Circuit (Doc. 67 at 29; 2012 WL 4829033 *11), applies to
17 The Sixth Circuit conclusively rejected Ohio’s arguments that equal protection applies only to facially discriminatory election laws, rather than all election regulations that burden the right to vote. As the Court held, the Burdick test, as reaffirmed in Crawford, is the proper means to determine whether a facially neutral law that burdens the right to vote violates equal protection. NEOCH, 2012 WL 4829033 at *9-10; Obama for America, 2012 WL 4753397 *4-6.
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every voter, regardless of whether that voter was in the correct or incorrect polling location. In both circumstances, the voter and the poll worker believe that the voter is voting in the correct location, and the voter received the wrong ballot only because the poll worker has failed to properly confirm the correct precinct assigned to the voter.
Specifically, the record evidence demonstrates that poll workers err in the following ways, all of which apply to voters in correct or incorrect polling places:
• Poll workers often provide voters with the wrong-precinct ballot in the wrong location because the poll worker incorrectly determines the precinct that applies to the voter’s address by erring in using the precinct voting location guide. Supra at 7-8.
• Poll workers commonly err by providing voters with wrong-precinct provisional ballots in the wrong location even when they know voters are not assigned to that precinct, because the poll workers do not understand that such ballots will be rejected. Supra at 9.
• Poll workers commonly hand out wrong-precinct provisional ballots in the wrong location to anyone not on their precinct register without attempting to use the voter’s address to determine the correct precinct, because they mistakenly think they are helping people vote. Supra at 9.
• Poll workers misdirect voters to vote wrong precinct ballots in the wrong location as a result of incorrect direction from county boards. Supra at 9-10.
Evidence further demonstrates that many voters who cast ballots in the wrong polling location were affirmatively misdirected to that wrong location by poll workers, where, compounding that initial error, another poll worker mistakenly provides them with a wrongprecinct ballot. See supra at 5-7. For example, a poll worker reported the following:
I must inform you of the many (at least 40 voters) who were misguided and directed to vote at our station. Most of them informed me that they were sent by [a poll worker at another precinct] in error. Some of the voters claimed they were sent to as many as (3) different locations – by mistake. Doc. 12 ¶54 (Cuyahoga 2011). Some county records report voters actually arrived at the correct polling location, only to be misdirected by poll workers to the wrong one. See supra at 7. A poll worker, for example,
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reported that other poll workers from the voters’ correct location had mistakenly directed voters to an incorrect polling location: “This is about [the] 4th time today that someone has finally found us after being here earlier & told by precinct TE-G that TE-D is [at the] community center. Could someone pls train them on reading the street index & then looking up where the voting place is.” Doc. 12 ¶54 (Clermont 2008) (emphasis added); see also supra at 7.
County boards’ documentation of these incidents, and discussion of poll-worker error at board meetings, demonstrates that county boards know that their poll workers are responsible for these wrong-precinct/wrong-location ballots. See supra at 11. And voter testimony in the record, including from Hunter, is unanimous in explaining that had a poll worker actually told voters they were in the wrong location, rather than giving them a wrong-precinct ballot, the voters would have traveled to the correct location in order to vote. See supra at 10. There is simply no record evidence, just as there was no evidence with respect to correct-location ballots, that any voter who was given a wrong-precinct ballot in the wrong polling location was properly informed and refused to travel to the correct location. See supra at 10.
As the Sixth Circuit explained in relation to correct-location ballots, application of Ohio’s ballot disqualification law “effectively requires voters to have a greater knowledge of their precinct, precinct ballot, and polling place than poll workers. Absent such omniscience, the State will permanently reject their ballots.” 2012 WL 4829033 *11. The same is true of voters who end up casting ballots at the wrong location due to poll-worker error.
A substantial number of these voters, as explained above, have done everything the State has asked of them, because they were affirmatively misdirected to the wrong location. For these voters the substantial burden on the right to vote is precisely the same as that identified by this Court and the Sixth Circuit with respect to correct-location ballots. To be sure, some voters affected by the disqualification rule may have arrived at the incorrect polling location in error, because they were unaware that their polling location had moved, did not know their polling location, or for some other reason. Even with respect to these voters, the ultimate error that leads to the unwitting casting of the invalid ballot is the poll worker’s. A poll worker’s mistaken
15

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provision of an invalid ballot goes far beyond the “merely inconvenient.” Crawford, 553 U.S. at 204 (Scalia, J., concurring). That mistake is impossible to overcome in the absence of voter “omniscience” or knowledge exceeding the poll worker. NEOCH, 2012 WL 4829033 *11.
The mandatory disqualification of these voters’ ballots, when the poll worker caused that disqualification by providing the voter with the wrong-precinct ballot instead of directing the voter to the right polling location, represents a substantial burden upon the right to vote that must be justified by a sufficiently important state interest. Crawford, 553 U.S. at 190 (plurality) (“However slight [the] burden” on the right to vote “may appear, . . . it must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’”) (quoting Norman v. Reed, 502 U.S. 279, 288-89 (1992)).
2. No legitimate state interest is furthered by disqualifying all the votes on these ballots cast by lawfully registered voters in the wrong location in their county of residence due to poll-worker error after the election
As the Sixth Circuit reaffirmed in this case, the burden the ballot disqualification rule imposes upon wrong-location voters must be justified by an important state interest actually served by post-election disqualification. 2012 WL 4829033 *9-13; Crawford, 553 U.S. at 190 (plurality); id. at 205 (Scalia, J., concurring); Burdick, 504 U.S. at 434. No such interest has been demonstrated here.
Ohio’s primary interest asserted on appeal was that counting wrong-precinct ballots would somehow lead to increased post-election litigation. The Sixth Circuit correctly rejected this argument, and recognized that this Court’s injunction and the Secretary’s implementing Directive will not result in increased implementation errors or disputes. 2012 WL 4829033 *1112, 15. Expanding the existing injunction to require counting wrong-location ballots will likewise raise no implementation issues. Id. at *12 (“the State’s chief election official, who adopted Directive No. 2012-44 and Form 12-D, apparently believes that poll workers and county boards can both implement the district court’s injunctive relief and perform their other election duties within the time allotted.”).
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In this Court and on appeal, Defendants also relied upon the general state interests in a precinct-based voting system recognized in Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004); but this Court and the Sixth Circuit held that requiring county boards to count correct-location/wrong-precinct ballots resulting from poll-worker error did not undermine such interests. Doc. 67 at 34-39; 2012 WL 4829033 *11-12. For similar reasons, mandatory disqualification of wrong-location ballots caused by poll-worker error does not further these interests. Thus, requiring such ballots be counted in races for which the voter is otherwise eligible would not impinge upon those interests.
Initially, this Court and the Sixth Circuit recognized that four of these general precinctbased interests have no relevance to whether correct-location/wrong-precinct ballots should be counted after the election. For the same reasons, ballot content, “monitoring” the voting process, preventing fraud, and the location of polling places are all unaffected by whether these ballots are counted. Doc. 67 at 34-39; 2012 WL 4829033 *11-12.
The only factor that could even theoretically be relevant here is capping the number of voters attempting to vote at a particular location. Sandusky, 387 F.3d at 569. But the evidence in this case demonstrates that the decision whether to count these ballots after the election will have no impact on the overall numbers of voters appearing to vote at Ohio polling locations.
First and foremost, the proposed injunction is not a “vote anywhere” remedy. No voter who is properly instructed by a poll worker as to his or her correct precinct and polling location and refuses to travel there will have her vote counted. See accompanying Proposed Order; Doc. 67 at 56-57; Doc. 77 (Directive 2012-44).18 The conclusion that this rule will increase the number of voters who intentionally appear at the wrong location defies logic: No rational voter would intentionally arrive at the wrong location hoping that the poll worker will get it wrong, because if the poll worker correctly performs her duties, the ballot will not count. Indeed, as the
18 As the Sixth Circuit made clear, Plaintiffs in this case do not seek to count votes cast outside the voter’s county of residence. 2012 WL 4829033 *7.
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Sixth Circuit pointed out, the Directive implementing this Court’s injunction may have the collateral effect of “further decreas[ing] the likelihood that opportunistic voters will engage in precinct-shopping, because voters will actually see poll-workers documenting non-compliance with poll-worker instructions.” 2012 WL 4829033 *12 n.10 (emphasis in original).
Second, the record evidence demonstrates that thousands of voters appear at the wrong polling locations for unintentional reasons including confusion or affirmative misdirection from poll-workers. There is no basis in the record to conclude that Ohio’s law mandating rejection of wrong-precinct ballots given in error to such voters decreases the number of voters who make such mistakes or are affirmatively misdirected.
Moreover, it is illustrative that as of 2012 approximately half of the states either count up-ballot races on wrong-precinct ballots cast in the wrong precinct and polling location, or permit voters to vote anywhere using same-day registration at the polls. Protecting voters from post-election disenfranchisement can be readily accomplished without undermining the State’s ability to assign voters to precincts or conduct elections.20
Only illogical speculation would support this asserted interest. The Constitution requires close scrutiny of the connection between the purported state interest and the precise regulation that burdens the right to vote. Burdick, 504 U.S. at 433-34; Crawford, 553 U.S. at 190-91 (plurality); NEOCH, 2012 WL 4829033 *9-13; Obama for America, 2012 WL 4753397 *4-7. No record evidence demonstrates that whether county boards after the election, unbeknownst to the affected voters, count or reject these ballots will have any impact on the number of voters who appear on election day at any given polling location. Such a speculative and unsupported interest cannot support the mandatory ballot disqualification rule’s burden on the right to vote.
20 Prior to the 2011 Painter decision, some counties were not distinguishing between rightlocation and wrong-location ballots when deciding whether to count wrong-precinct provisional ballots caused by known poll-worker error, with no demonstrated adverse impact on Ohio’s precinct-based voting system in general. See supra at 4.
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Plaintiffs have therefore demonstrated a likely violation of equal protection. At the very least, Plaintiffs have raised “questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberative investigation,” to warrant a preliminary injunction requiring these votes to be counted in the upcoming election. NEOCH, 2012 WL 4829033 *8 (quoting Six Clinics, 119 F.3d at 402).
B. Mandatory Disqualification of These Provisional Ballots Regardless of PollWorker Error Also Violates Due Process
The Sixth Circuit’s discussion of due process in Hunter I, 635 F.3d at 243, did not turn on
the distinction between correct location and wrong location ballots, but rather the evidence that
poll-worker error results in wrong precinct provisional ballots. As that court explained:
Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair. Cf. Purcell [v. Gonzales, 549 U.S. 1, 4 (2006)] (“[T]he possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.”). Particularly when there is evidence of pollworker error, the categorical treatment of miscast ballots provided by Ohio law is troubling. Hunter I, 635 F.3d at 243 (emphasis added). In the appeal in this case, the Sixth Circuit agreed with the Hunter I due process analysis and affirmed this Court’s injunction because “the SEIU plaintiffs have shown, and the State does not deny, that poll-worker error causes thousands of qualified voters to cast wrong precinct ballots from the correct polling locations.” NEOCH, 2012 WL 4829033 *13. That same analysis supports extending the injunction here. As previously discussed, see supra at 4-11, the statewide evidence from recent elections demonstrates the extent to which rejected wrong precinct ballots cast in the wrong polling location result from (1) the same types of poll-worker error in determining voters’ correct precincts as affects wrong precinct/correct location ballots, and (2) the additional error of misdirecting voters to the wrong polling location. The Ohio provisional ballot system twice
19

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recognized as fundamentally unfair by the Sixth Circuit is the same: poll workers are still required to attempt to determine voters’ correct precinct and polling location, yet they fail to provide them with the correct information, and elect instead to provide a provisional ballot without complying with their duty to inform the voter that his vote will never be counted. Thus, the voter is provided no notice or opportunity to correct the error that led him to unknowingly vote an invalid ballot. In light of this uncontroverted evidence of poll-worker error resulting in wrong-location ballots, Plaintiffs have shown likely success on substantive due process. III. The Balance of Harms Weighs Strongly In Favor of Issuing a Preliminary
Injunction Covering the Upcoming November 2012 Election The balance of harms weighs strongly in favor of enjoining the disqualification of ballots in the November 2012 election cast by lawfully registered voters in their county of residence but in the wrong location due to poll-worker error. The harm to Plaintiffs’ members and other Ohio voters who will be disenfranchised by this law cannot be disputed. NEOCH, 2012 WL 4829033 *15. (Indeed, when Plaintiffs initially moved for an injunction that would cover both correct and incorrect location wrong precinct ballots, Defendants did not contest irreparable harm. Doc. 67 at 21 n.22.) That harm alone weighs very heavily in favor of an injunction. Just as counting the ballots covered by the existing injunction causes no harm to others, counting these additional wrong-precinct ballots will cause no such harm. This Court and the Sixth Circuit have already rejected Ohio’s arguments as to the alleged problems caused by this Court’s existing narrowly tailored injunction, and an equally narrow equivalent remedy extending the Directive to these voters will likewise raise no concerns regarding implementation. NEOCH, 2012 WL 4829033 *15; Doc. 67 at 51-56.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request this Court to grant this renewed motion for an injunction ordering the Secretary of State to direct the county boards to count wrong-precinct ballots cast in the voter’s county of residence in both correct and incorrect polling locations due to poll-worker error.
20

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Dated: October 17, 2012

Respectfully submitted
/s/ Danielle Leonard____________ By: Danielle Leonard
MICHAEL J. HUNTER, trial attorney (0018756) CATHRINE J. HARSHMAN (0079373) Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus, Ohio 43221 Telephone: (614) 442-5626 E-mail: mhunter@hcands.com
Attorneys for All Plaintiffs
STEPHEN P. BERZON, pro hac vice STACEY M. LEYTON, pro hac vice BARBARA J. CHISHOLM, pro hac vice DANIELLE LEONARD, pro hac vice Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 E-mail: sberzon@altshulerberzon.com
Attorneys for Plaintiffs SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC
PENDA HAIR, pro hac vice DONITA JUDGE, pro hac vice UZOMA NKWONTA, pro hac vice Advancement Project 1220 L Street, N.W., Suite 850 Washington, D.C. 20005 Telephone: (202) 728-9557 E-mail: phair@advancementproject.org
Attorneys for Plaintiff Ohio Organizing Collaborative

21

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CERTIFICATE OF SERVICE I certify that on October 17, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the counsel of record in this case.
/s/ Danielle Leonard______________ Danielle Leonard ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 / (415) 362-8064 Fax dleonard@altber.com Counsel for Plaintiff SEIU Local 1, USW, UAW Local 1005, UAW Local 863, UFCW Local 75, UFCW Local 880, UFCW Local 1059, and ICWUC
22

 
 Case: 2:12-cv-00562-ALM-TPK Doc #: 98 Filed: 11/05/12 Page: 1 of 3 PAGEID #: 6361

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et al.,
Plaintiffs, v. JON HUSTED, et al.,
Defendants.

:

:

:

Case No. 2:12-CV-562

:

:

:

:

JUDGE ALGENON L. MARBLEY

:

:

:

Magistrate Terence P. Kemp

:

:

:

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and

:

:

STATE OF OHIO

:

:

Intervenor-Defendant

:

Case No. 2:06-CV-896 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence Kemp

ORDER

These are two related actions in this Court: Service Employees’ International Union,

Local 1, et. al. v. Husted, et. al., Case No. 2:12-cv-562 (“the SEIU case”) and The Northeast

Ohio Coalition for the Homeless, et. al. v. Husted & State of Ohio, Case No. 2:06-cv-896 (“the

NEOCH case”).

Case: 2:12-cv-00562-ALM-TPK Doc #: 98 Filed: 11/05/12 Page: 2 of 3 PAGEID #: 6362
This matter is before the Court on three motions, all of which involve the same, discrete issue. A dispute has arisen as to the interpretation of Section III(5)(b)(vii) of the Consent Decree which implicates the counting of provisional ballots to be cast in the November 6, 2012 election. NEOCH Plaintiffs’ have filed a Motion for Clarification of October 26, 2012 Order. (NEOCH Dkt. 346) They request the Court clarify its Order of October 26, 2012 with regard to modifying the April 19, 2010 Consent Decree. NEOCH Plaintiffs, following a new Directive (2012-54) issued by Defendant, filed a Motion to Modify the Consent Decree on November 5, 2012. (NEOCH Dkt. 349) In the same filing, SEIU Local 1 Plaintiffs made a Motion for Preliminary Injunction. (SEIU Local 1 Dkt. 97) All these motions seek essentially the same relief: an order from this Court directing the Secretary to count all provisional ballots with a deficiency in recording the voter’s form of identification produced. Provisional ballots in Ohio will be counted at public meetings held between November 17, 2012 and November 21, 2012. In order to resolve the matter before November 17, 2012, NEOCH Plaintiffs requested an expedited briefing schedule on their November 2, 2012 Motion. Since the legal question in that Motion is the substantially the same as the question in the other motions, all motions are hereby consolidated and set for expedited briefing.
Under Local Rule 7.2 of the Southern District of Ohio, a memorandum in opposition “shall be served within twenty-one (21) days from the date of service set forth in the certificate of service attached to the Motion.” Local Rule 1.1 states that the Local Rules govern “unless otherwise ordered in a given case by the presiding judicial officer.”
Since this suit bears on Ohio’s conduct of the November 6, 2012 election, it is appropriate to deviate from the Local Rules in order to expedite the briefing schedule and timely resolve the question. The timing is particularly sensitive given the need for Defendant Husted
2

Case: 2:12-cv-00562-ALM-TPK Doc #: 98 Filed: 11/05/12 Page: 3 of 3 PAGEID #: 6363
and the State of Ohio to issue instructions to election officials in conformity with this Court’s decision prior to the counting of provisional ballots.
Therefore, the Court ORDERS that any response or memorandum in opposition to NEOCH Plaintiffs’ Motion for Clarification, NEOCH Plaintiffs’ Motion to Modify the Consent Decree, and SEIU Local 1 Plaintiffs’ Motion for Preliminary Injunction be filed by November 6, 2012. Any reply from Plaintiffs must be filed by November 8, 2012.
The Court also ORDERS parties to appear for oral argument on November 7, 2012 at 11:00 a.m. At that time, the Court will hear arguments on the three motions addressed by this Order.
IT IS SO ORDERED.

Algenon Dated: November 5, 2012

s/Algenon L. Marbley L. Marbley
United States District Judge

3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL : UNION, LOCAL 1, et al.,
Plaintiffs, : :
v. : JON HUSTED, et al., :
: Defendants.
:

:

:

Case No. 2:12-CV-562

:

:

JUDGE ALGENON L. MARBLEY

:

Magistrate Terence P. Kemp

:

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs, :

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and :

:

STATE OF OHIO

:

:

Intervenor-Defendant :

Case No. 2:06-CV-896 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence Kemp

ORDER

These are two related actions in this Court: Service Employees’ International Union,

Local 1, et. al. v. Husted, et. al., Case No. 2:12-cv-562 (“the SEIU case”) and The Northeast

Ohio Coalition for the Homeless, et. al. v. Husted & State of Ohio, Case No. 2:06-cv-896 (“the

NEOCH case”).

This matter is before the Court on SEIU Local 1 Plaintiffs’ Motion for Partial Summary Judgment (SEIU Doc. 107) (the “Motion”). The Court previously scheduled a hearing for July 12, 2013 on this Motion. The Motion seeks to make permanent the Preliminary Injunction (SEIU Doc. 67) issued by the Court on August 27, 2012, insofar as it pertains to provisional ballots cast in the correct polling location but incorrect precinct. In Defendants’ Response, they consented to the relief sought by Plaintiffs. With regard to the Motion sub judice, the only dispute between the parties is to what extent the Court should explain its decision to order the permanent injunction. While the parties may stipulate to the entry of a permanent injunction, they may not draft the Opinions and Orders of this Court.
A. Plaintiffs’ Motion for a Permanent Injunction The legal and evidentiary bases have been discussed at length in this Court’s Opinion & Order granting the Preliminary Injunction, and the Sixth Circuit’s subsequent decisions affirming this Court’s Preliminary Injunction, Serv. Employees Int'l Union, Local 1 v. Husted, 887 F. Supp. 2d 761 (S.D. Ohio 2012), aff'd in part, rev'd in part sub nom. Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012) and aff'd, 12-4079, 2013 WL 628527 (6th Cir. Feb. 20, 2013). Hence, the Court finds it necessary only to summarize the rationale of those decisions. On August 27, 2012, this Court granted Plaintiffs’ a Preliminary Injunction (Doc. 67) which prohibited Defendants from disqualifying provisional ballots cast in the correct polling place but incorrect precinct. The Sixth Circuit affirmed this Court’s Preliminary Injunction. It held, in relevant part, that “the summary rejection of poll-worker-induced right-place/wrongprecinct ballots” is both a likely equal protection violation and a likely due process violation. Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 593-99 (6th Cir. 2012). The Sixth Circuit also held that prior to the entry of the Preliminary Injunction (Doc. 67), Defendants’ treatment of
2

provisional ballots had been a “substantial burden” on the right to vote, not to mention “fundamentally unfair.” Id. at 597. “As a result, poll-worker error causes thousands of qualified voters to cast wrong-precinct ballots from the correct polling locations.” Id.
To prevent such disenfranchisement in the future, the parties have both moved, albeit separately, for this Court to transform the Preliminary Injunction into a Permanent Injunction with regard to “poll-worker-induced right-place/wrong-precinct ballots.” For the foregoing reasons, the parties’ request is GRANTED. The Court hereby ORDERS:
The State of Ohio, the Ohio Secretary of State and his County Boards of Elections may not reject any provisional ballot cast by a lawfully-registered voter in the correction polling location in any election because the voter cast his or her provisional ballot in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot has:
(a) determined the correct precinct for the voter; b) directed the voter to the correct precinct; (c) informed the voter that casting the wrong-precinct ballot would result in all votes on the ballot being rejected under Ohio law; and (d) the voter refused to travel to the correct precinct and insisted on voting the invalid ballot; and the Board of Elections has verified that the precinct to which the poll worker directed the voter was the correct precinct for that voter. If the County Board of Elections cannot verify that the poll worker directed the voter to the correct precinct, the votes cast on the provisional ballot must be counted in all races and for all issues for which the voter would have been eligible to vote if he/she had cast the ballot in the correct precinct.
3

Since this Court has now ordered the Permanent Injunction sought by Plaintiffs, the issue is moot, rendering as superfluous the July 12, 2013 oral argument on the Motion. The Court, therefore, VACATES its previous Order of July 3, 2013 (Doc. 109) and VACATES the oral argument in the SEIU case. This Order does not affect the oral argument set in the NEOCH case, which will go forward as planned. (NEOCH Doc. 368, 374).
B. Issues Raised by Defendants in Response In Defendants’ Response to the Motion, as well as stipulating to the entry of a Permanent Injunction, Defendants also ask the Court to order Plaintiffs to inform the Court prior to July 12, 2013 whether they plan to litigate the remaining issues in this case. At least one of the remaining issues, the constitutionality of Ohio’s law requiring disqualification of poll-worker-induced wrong-location/wrong-precinct ballots, is pending on appeal before the Sixth Circuit. The parties are also working to mediate the issue in the Sixth Circuit. It would be premature of this Court to issue an Order which would affect ongoing proceedings in the Sixth Circuit. Thus, Defendants’ request for the Court to order Plaintiffs to inform the Court prior to July 12, 2013 whether they plan to litigate the remaining issues in this case is DENIED. Once the Sixth Circuit issues its decision on the appeal, this Court will proceed in a manner consistent with the decision of the Sixth Circuit. IT IS SO ORDERED.
s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE Dated: July 9, 2013
4

 
 Case: 2:12-cv-00562-ALM-TPK Doc #: 117 Filed: 09/30/13 Page: 1 of 5 PAGEID #: 6762 (1 of 5)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 13a0851n.06

No. 12-4264
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Sep 27, 2013
DEBORAH S. HUNT, Clerk

SERVICE EMPLOYEES INTERNATIONAL )

UNION LOCAL 1, et al.,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

JON HUSTED,

)

)

Defendant-Appellant,

)

)

STATE OF OHIO,

)

)

Intervenor Defendant-Appellant,

)

)

and

)

)

TIMOTHY M. BURKE, et al.

)

)

Defendants.

)

O R D E R

Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge* Plaintiffs-Appellees, various unions, move to dismiss this appeal as moot and vacate this court’s precedential order of October 31, 2012, which granted Ohio an emergency stay of injunctive relief ordered by the district court two weeks before the November 2012 elections. Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341 (6th Cir. 2012) (per curiam) (stay order). Though not disputing the mootness of the appeal, Ohio and the Secretary of State opposes vacatur of our stay

*The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas, sitting by designation.

Case: 2:12-cv-00562-ALM-TPK Doc #: 117 Filed: 09/30/13 Page: 2 of 5 PAGEID #: 6763 (2 of 5)
No. 12-4264 SEIU, Local 1, et al. v. Husted, et al. order. For the following reasons, we DISMISS this appeal as MOOT and DENY SEIU’s request for vacatur.
The parties agree that Ohio has completed and certified all of the November 2012 election results, and no election contests remain. Because this appeal concerns a preliminary injunction affecting those elections, and because that injunction has now expired by its own terms, we dismiss the appeal as moot. See, e.g., McIntyre v. Levy, No. 06-5989, 2007 WL 7007938, at *1 (6th Cir. Aug. 1, 2007); Congregation Lubavitch v. City of Cincinnati, 941 F.2d 1209 (6th Cir. Aug. 16, 1991) (per curiam) (unpublished table decision). That leaves SEIU’s opposition to our stay order and request for vacatur.
When a case “becomes moot pending appe[al],” we have recognized that “‘the established practice . . . in the federal system . . . is to reverse or vacate the judgment below and remand with a direction to dismiss.’” Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 484–85 (6th Cir. 2004) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). That said, the equitable relief of vacatur “is not applicable in all cases,” but “is generally appropriate to avoid entrenching a decision rendered unreviewable through no fault of the losing party.” Stewart v. Blackwell, 473 F.3d 692, 693 (6th Cir. 2007). And, in the case of interlocutory appeals where the underlying order becomes moot, a number of courts have adopted a contrary “usual practice”: that of dismissing the appeal without vacating the order appealed from. See, e.g., McLane v. Mercedes-Benz of N. Am., Inc., 3 F.3d 522, 524 n.6 (1st Cir. 1993); In re Tax Refund Litig., 915 F.2d 58, 59 (2d Cir.1990); Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1385 (5th Cir.1986); Gjertsen v. Bd. of Election Comm’rs, 751 F.2d 199, 202 (7th Cir.1984); Gaylord Broad. Co. v. Cosmos Broad.
-2-

Case: 2:12-cv-00562-ALM-TPK Doc #: 117 Filed: 09/30/13 Page: 3 of 5 PAGEID #: 6764 (3 of 5)
No. 12-4264 SEIU, Local 1, et al. v. Husted, et al. Corp., 746 F.2d 251, 254 (5th Cir.1984); see also 13C Charles Alan Wright, et al., Federal Practice & Procedure Jurisdiction § 3533.10.3 (3d ed.) (explaining that, in the case of “injunction orders that have expired or become moot, if the case remains alive in the district court, it is sufficient to dismiss the appeal without directing that the injunction order be vacated”). We find these cases instructive here, where both the underlying injunction and (necessarily) our stay order became moot upon the completion of the November 2012 election.
Resisting this, SEIU argues that vacatur “is necessary to prevent Plaintiffs-Appellees from being denied the opportunity to litigate the merits issues raised by this appeal,” and because court rules foreclosed en banc review of the stay order. These arguments do not persuade, however, because no final judgment on the merits results from staying a preliminary injunction on emergency review. And the parties could seek a merits ruling from the district court on any pending claims. See, e.g., Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (explaining that “the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits”); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (same). Furthermore, SEIU suffered no prejudice by the unavailability of discretionary, en banc review because appellees could have requested emergency review of our unfavorable decision from the Supreme Court. See, e.g., Brunner v. Ohio Republican Party, 555 U.S. 5 (2008) (per curiam); Spencer v. Pugh, 543 U.S. 1301, 1301–03 (2004) (Stevens, Circuit Justice). Our stay order continues to serve a jurisprudential purpose in providing guidance on injunctive relief as it concerns last-second changes to election procedures, justifying our denial of vacatur here.
-3-

Case: 2:12-cv-00562-ALM-TPK Doc #: 117 Filed: 09/30/13 Page: 4 of 5 PAGEID #: 6765 (4 of 5) No. 12-4264 SEIU, Local 1, et al. v. Husted, et al.
We DISMISS the appeal as MOOT and DENY SEIU’s request for vacatur. ENTERED BY ORDER OF THE COURT __________________________________ Deborah S. Hunt. Clerk
-4-

Case: 2:12-cv-00562-ALM-TPK Doc #: 117 Filed: 09/30/13 Page: 5 of 5 PAGEID #: 6766 (5 of 5)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 27, 2013

Mr. Stephen P. Berzon Mr. Michael Jason Hendershot

Re: Case No. 12-4264, SEIU, et al v. Jon Husted, et al Originating Case No. : 2:12-cv-00562
Dear Counsel, The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,

cc: Mr. Stephen P. Carney Ms. Barbara Jane Chisholm Ms. Cathrine J. Harshman Mr. John P. Hehman Mr. Michael J. Hunter Ms. Donita Judge Ms. Danielle E. Leonard Ms. Stacey Monica Leyton Mr. Majeed G. Makhlouf Mr. Frederick Dickson Nelson
Enclosure
No mandate to issue

s/Laura A. Jones Case Manager Direct Dial No. 513-564-7023

 
 Case: 2:12-cv-00562-ALM-TPK Doc #: 129 Filed: 02/07/14 Page: 1 of 2 PAGEID #: 7006

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE NORTHEAST OHIO COALITION :

FOR THE HOMELESS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, in his official capacity as :

Secretary of the State of Ohio,

:

:

Defendant.

:

:

and

:

:

STATE OF OHIO

:

:

Intervenor-Defendant :

:

:

SERVICE EMPLOYEES

:

INTERNATIONAL UNION,

:

LOCAL 1, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

JON HUSTED, et al., :

:

Defendants.

:

Case No. 2:06-CV-00896 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence Kemp
Case No. 2:12-CV-00562 JUDGE ALGENON L. MARBLEY Magistrate Judge Terence Kemp

ORDER

This matter is before the Court on remand from the United States Court of Appeals for

the Sixth Circuit. (Doc. 404). On January 31, 2014, the Court entered an Indicative Order (Doc.

401), indicating its willingness to accept limited remand and to vacate its November 13, 2012

Opinion and Order (Doc. 357), in order to effectuate the settlement reached by the Parties. On

February 6, 2014, the Court of Appeals granted the Parties’ Joint Motion pursuant to Fed. R.

Case: 2:12-cv-00562-ALM-TPK Doc #: 129 Filed: 02/07/14 Page: 2 of 2 PAGEID #: 7007 App. P. 12.1, remanding this case “for the limited purpose of having the District Court issue an order vacating its November 13, 2012 Opinion and Order.”
Accordingly, the Court hereby VACATES its November 13, 2012 Opinion and Order (Doc. 357; Case No. 2:12-CV-00562, Doc. 103).
IT IS SO ORDERED. s/Algenon L. Marbley
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE Dated: February 7, 2014
2

 
 Case: 2:12-cv-00562-ALM-TPK Doc #: 16 Filed: 06/26/12 Page: 1 of 1 PAGEID #: 3228

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SERVICE EMPLOYEES INTERNATIONAL:

UNION, LOCAL 1, et al.,

:

:

Plaintiffs, :

:

v.

:

:

JON HUSTED, et al., :

:

:

Defendants.

:

:

Case No. 2:12-CV-562 JUDGE ALGENON L. MARBLEY Magistrate Terence P. Kemp

ORDER RELATING CASES AND FOR APPEARANCE OF NEW COUNSEL This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction, filed

June 22, 2012. (Dkt. 4.) Pursuant to Plaintiffs’ notice of related cases, the Court deemed this

case to be related to the Northeast Ohio Coalition for the Homeless (NEOCH) et al., v. Husted et

al., 06-cv-896, case currently pending in this Court because, inter alia, this case “[c]all[s] for a

determination of the same or substantially identical questions of law or fact” as plaintiffs call for

in the NEOCH v. Husted case. See S.D. Ohio Local Rule 3.1(b)(2). Counsel for all parties in

this action are hereby ORDERED to appear at the scheduled hearing in NEOCH v. Husted, 06-

cv-896, tomorrow, Wednesday, June 27, at 2:00 p.m., 85 Marconi Blvd. Columbus, OH 43215,

Chambers of Algenon L. Marbley. All parties shall be prepared to discuss the NEOCH

Plaintiffs’ request to consolidate the pending motions in both actions at that time.

IT IS SO ORDERED.

ALGENON UNITE DATED: June 26, 2012

s/Algenon L. Marbley___
L. MARBLEY D STATES DISTRICT JUDGE

 
 Case: 2:12-cv-00562-ALM-TPK Doc #: 82 Filed: 10/12/12 Page: 1 of 39 PAGEID #: 6041 (1 of 39)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Mr. Stephen P. Berzon Ms. Barbara Jane Chisholm Ms. Danielle E. Leonard Ms. Stacey Monica Leyton Altshuler Berzon 177 Post Street, Suite 300 San Francisco, CA 94108
Mr. Joseph W. Boatwright IV Cuyahoga County Law Department 1219 Ontario Street, Fourth Floor Cleveland, OH 44113
Ms. Erin Elizabeth Butcher-Lyden Mr. Stephen P. Carney Mr. Richard N. Coglianese Ms. Peggy W. Corn Mr. Aaron David Epstein Mr. Peter K. Glenn-Applegate Mr. Michael Jason Hendershot Mr. Frederick Dickson Nelson Office of the Ohio Attorney General 30 E. Broad Street 17th Floor State Office Tower Columbus, OH 43215
Mr. Subodh Chandra 1265 W. Sixth Street, Suite 400 Cleveland, OH 44113
Ms. Caroline H. Gentry Mr. Daniel B. Miller Porter, Wright, Morris & Arthur One S. Main Street Suite 1600 One Dayton Centre Dayton, OH 45402

Filed: October 11, 2012

Case: 2:12-cv-00562-ALM-TPK Doc #: 82 Filed: 10/12/12 Page: 2 of 39 PAGEID #: 6042 (2 of 39)
Mr. Eric Miller Goldstein Ms. Elizabeth Petrela Papez Winston & Strawn 1700 K Street, N.W. Washington, DC 20006
Ms. Cathrine J. Harshman Mr. Michael J. Hunter Hunter, Carnahan, Shoub & Byard 3360 Tremont Road, Second Floor Columbus, OH 43221
Mr. Bassel C. Korkor Arnold & Porter 555 Twelfth Street, N.W. Washington, DC 20004
Mr. Patrick T. Lewis Baker & Hostetler 1900 E. Ninth Street, Suite 3200 Cleveland, OH 44114
Mr. Majeed G. Makhlouf Taft, Stettinius & Hollister 200 Public Square Suite 3500 BP Tower Cleveland, OH 44114
Mr. Mark A. McGinnis Mr. Donald J. McTigue McTigue & McGinnis 545 E. Town Street Columbus, OH 43215
Re: Case Nos. 12-3916/12-4069, NE OH Coalition for Homeless, et al v. Jon Husted, et al Originating Case No. : 2:06-cv-00896
Dear Counsel,
The court today announced its decision in the above-styled cases.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Case: 2:12-cv-00562-ALM-TPK Doc #: 82 Filed: 10/12/12 Page: 3 of 39 PAGEID #: 6043 (3 of 39)
Yours very truly, Deborah S. Hunt, Clerk
Cathryn Lovely Deputy Clerk cc: Clerk of the U.S. District Court for the Southern District of Ohio Enclosures Mandate to issue.

Case: 2:12-cv-00562-ALM-TPK Doc #: 82 Filed: 10/12/12 Page: 4 of 39 PAGEID #: 6044 (4 of 39)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0359p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

No. 12-3916

X -

NORTHEAST OHIO COALITION FOR THE

-

HOMELESS; SERVICE EMPLOYEES

-

INTERNATIONAL UNION, LOCAL 1199,

,>

Plaintiffs-Appellees, OHIO DEMOCRATIC PARTY,
Intervenor Plaintiff-Appellee,

-

-

v.

-

-

JON HUSTED; STATE OF OHIO,

-

Defendants-Appellants. -

-

No. 12-4069

-

-

SERVICE EMPLOYEES INTERNATIONAL UNION -

LOCAL 1, et al.

-

Plaintiffs-Appellees,

-

-

v.

-

-

JON HUSTED,

-

Defendant-Appellant,

-

-

STATE OF OHIO,

-

Intervenor. N

Nos. 12-3916/4069

Appeal from the United States District Court for the Southern District of Ohio at Columbus. Nos. 2:06-cv-00896; 12:-cv-00562—Algenon L. Marbley, District Judge.

Argued: October 1, 2012

Decided and Filed: October 11, 2012 Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge*

*The Honorable Lee H. Rosenthal,United States District Judge for the Southern District of Texas, sitting by designation.
1

Case: 2:12-cv-00562-ALM-TPK Doc #: 82 Filed: 10/12/12 Page: 5 of 39 PAGEID #: 6045 (5 of 39)

Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al.

Page 2

_________________

COUNSEL

ARGUED: Steph en P . Carney, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellants in 12-3916. DanieellLeonard, ALTSHULER BERZON

LLP, San Francisco, California, for Appellees in 12-3916. Aaron D. Epstein, OFFICE

OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 12-4069.

Danielle Leonard, ALTSHULER BERZON LLP, San Francisco, California, for

Appellees in 12-4069. Frederick D. Nelson, OFFICE OF THE OHIO ATTORNEY

GENERAL, Colum bus, Ohio, for Intervenor in 12-4069. ON BRIEF: Stephen P.

Carney, Peggy Corn, Aaron D. Epst ein, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellantsin 12-3916. Danielle Leonard, Stephen P.

Berzon, Stacey Leyton, Barbara Chishol m, ALTSHULER BERZON LLP, San

Francisco, California, Caroline Gentry, Daniel B. Miller, PORTER, WRIGHT, MORRIS

& ARTHUR LLP, Dayton, Ohio, Subodh Chandra, THE CHANDRA LAWFIRM, LLC,

Cleveland, Ohio, Michael J. Hunt er, HUNTER, CARNAHAN, SHOUB, BYARD &

HARSHMAN, Columbus, Ohio, Donald J. McTigue, Mark A. McGinnis, McTIGUE

LAW GROUP, Col umbus, Ohio, for Appell ees in 12-3916. Aaron D. Epstein, Erin

Butcher-Lyden, Peter K. Glenn-App legate, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellant in 12-4069. Danielle Leonard, Stephen P.

Berzon, Stacey Leyton, Barbara Chisholm , ALTSHULER BERZON LLP, San

Francisco, California, Michae l J. Hunter, Cathrine J. Harshm

an, HUNTER,

CARNAHAN, SHOUB, BYARD & HARSHMAN, Columbus, Ohio, for Appellees in

12-4069. Frederick D. Nelson, Richard N. Coglianese, Michael J. Hendershot, Stephen

P. Carney, OFFICE OF THE OHIO ATTO RNEY GENERAL, Colum bus, Ohio, for

Intervenor in 12-4069. Majeed G. Makhlouf, Joseph W. Boatwright, IV, CUYAHOGA

COUNTY DEPARTMENT OF LAW, Cleveland, Ohio, Bassel C. Korkor, ARNOLD

& PORTER LLP, Washington, D.C., Patrick T. Lewis, BAKER & HOSTETLER LLP,

Cleveland, Ohio, Elizabeth Petrela Papez, Eric M. Goldstein, WINSTON & STRAWN

LLP, Washington, D.C., for Amici Curiae in 12-4069.

_________________

OPINION _________________

PER CURIAM. These consolidated election law appeals present constitutional challenges to Ohio’s strict application of its disqualification rules for nonconform ing provisional ballots to those caused by poll-worker error, as well as issues involving the validity of a federal court’s c onsent decree that abrogates state law without finding violations of federal law. At issue are Ohio’s requirements that provisional ballots be cast in the correct precinct and with a completed voter affirmation, making no exception

Case: 2:12-cv-00562-ALM-TPK Doc #: 82 Filed: 10/12/12 Page: 6 of 39 PAGEID #: 6046 (6 of 39)

Nos. 12-3916/4069 NE OH Coal. for Homeless, et al. v. Husted, et al.

Page 3

for wrong-precinct and deficient-affirmation ballots caused by poll-worker error. See O.R.C. §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). Given the time-sensitive nature of these appeals with the November election approaching, we ordered expedited briefing and conducted a telephonic argument on October 1.
Appeal 12-3916 stems from the district court’s denial of the state’s m otion to vacate a 2010 consent decree that requires the counting of certain wrong-prec inct and deficient-affirmation provisional ballots where poll-worker error caused the nonconformity. Under the consent decree, this remedy applies only to voters that use the last four digits of their social security number (“SSN-4 voters”) for identification to cast their provisional ballots. The Ohio Secretary of St ate and the State (collectively “State defendants” or “State appellees”) both appeal this judgm ent. Appeal 12-4069 arises from the district court’s prelim inary injunction that requires the counting of all wrong-precinct and deficient-affirmation provisional ballots to remedy Ohio’s systemic exclusion of nonconforming ballots caused by poll-worker error. The Secretary contests only the deficient-affirm ation aspect of the prelim inary injunction; the State as intervenor-appellant challenges the injunction’s wrong-precinct rem edy. Absent the preliminary injunction or consent decree, Ohio would not count any wrong-precinct or deficient-affirmation provisional ballots, regardless of poll-worker error. See O.R.C. §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii).
For the following reasons, we sustain part of the preliminary injunction in appeal 12-4069, AFFI RMING the wrong-precinct rem edy and REVERSING the deficientaffirmation remedy. The district court’s judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED so that the district court may expeditiously address (1) the equal protection issue created by the consent dec ree’s provision for the counting of deficient-affirmation ballots by SSN-4 voters, and (2) a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots.

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I. BACKGROUND
A. Facts Related to Appeal 12-3916: The Consent Decree
As the di strict court recognized, the consent decree arose from the “turbulent saga of Ohio’s provisional voting regi me” that began in 2006 whe n Ohio enacted comprehensive election reforms. (No. 2:12-CV-562, R. 67, Plenary Op. & Order at 2.) Because we previously detailed the consent decree’s history in Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 223–24 (6th Cir. 2011), we review only the relevant parts.
In 2006, the Northeast Ohio Coalition for the Hom eless and the Service Employees International Union Local 1199 (collectively “NEOCH plaintiffs” or “NEOCH appellees”) filed suit against Ohio’s Secretary of State challenging numerous aspects of Ohio’s new voter-identification laws. After lengthy negotiations, the NEOCH plaintiffs settled their claims with then-Secretary of State Jennifer Brunner by entering into a consent decree. Though the consendt ecree stopped short of finding constitutional violations, it provided the following injunctive relief for SSN-4 voters: the State would not reject provisional ballots that, due to poll-worker error, were cast (1) in the wrong precinct but correct polling place, or (2) with nonconfor ming or incom plete ballot affirmations. (No. 2:06-cv-896, R. 210, Consent Decree ¶ 5(b)(v), (vi).) As explained in Hunter,
The consent decree, in effect, carved out an except ion for counting provisional ballots otherwise invalid under Ohio law if the deficiency was due t o poll-worker error—al beit a narrow one lim ited to those provisional ballots cast by a voter who uses the last four digits of his or her Social Security number as identification.
635 F.3d at 224. By its terms, the consent decree remains in effect until June 30, 2013 unless modified.
The State did not object to the consent decree’s remedy until the Ohio Supreme Court issued a 2011 decision holding that Ohio’s election laws offered no protections for wrong-precinct provisional ballotscaused by poll-worker error. State ex rel. Painter

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v. Brunner, 941 N.E.2d 782, 794 (Ohio 2011) (per curiam ). After Painter, the State defendants returned to di strict court seek ing to vacate the consent decree, citing a conflict between state law and the consent decree’s rem edies. Moreover, the State defendants argued that the consent decree was void ab initio because the Secretary of State lacked the unilateral authority to abrogate state law i n the absence of a federal constitutional vi olation. (Again, the consent decree did not find constitutional violations.) In the meantime, a different groupof plaintiffs, whose claims we will discuss next, challenged the consent decree’s preferential treatment of SSN-4 voters in separate litigation. Responding to this em erging issue, the NEOCH plaintiffs also m oved to modify the consent decree, seeking to expand its remedy to all provisional voters (not just SSN-4 voters) in order to prevent itdsisparate vote-counting standards fromcausing constitutional violations.
By opinion and order of July 9, 2012, th e district court denied the State defendants’ motion both on issue preclusion gorunds and on the merits. Specifically, the district court rejected the State defendants’ argum ent that the consent decr ee irreconcilably conflicted with state law, as pronounced in Painter and State ex rel. Skaggs v. Brunner, 900 N.E.2d 982 (Ohio 2008). CitingNorthridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 614 (6th Cir. 2011), the district court al so held that Federal Rule of Civil Procedure 60(b) governed the State defendants’ motion to vacate the consent decree. Because State defendantsfailed to show that the consent decree was no longer necessary to prevent constitutional violations, the district court held that they had not shown gr ounds for relief under Rule 60(b)(4) and (b)(5). The district court withheld judgment on the NEOCH plaintiffs’motion to expand the consent decree at this time.
The State defendants tim ely appealed. The Ohi o Dem ocratic Party, which intervened as a co-plaintiff at the district ocurt, joins the NEOCH plaintifs as appellees.

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B. Facts Related to Appeal 12-4069: The Preliminary Injunction

On J une 22, 2012, several unions and a com

munity organizing group

(collectively the “SEIU plaintiffs” or “SEIU appellees”) 1 f iled suit against Ohio’s

current Secretary of State Jon Hus ted, as well as m embers of the Cuyahoga County,

Franklin County, and Hamilton County Boards ofElections. The SEIU plaintiffs allege

that Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii), as interpreted by

the Ohio Suprem e Cour t, autom atically disqualified wrong-precinct and deficient-

affirmation provisional ballots, despite evidence that poll-worker error caused the ballot

deficiencies. According to the SEIU plai ntiffs, Ohio’s strict application of t he

disqualification rules to ballot deficiencies caused by poll-worker error violated, inter

alia, the Fourteenth Am endment’s Equal Prot ection and Due Process Clauses. The

SEIU plaintiffs also alleged that the co nsent decree’s preferential treatment of SSN-4

voters’ wrong-precinct and deficient-affirmation ballots violated equal protection. The

SEIU plaintiffs moved for a preliminary injunction, arguing that the relevant statutory

provisions im permissibly burdened the funda mental right to vote without serving

sufficient s tate interests. To rem edy th is problem , the SEIU plaintiffs proposed

“remaking” wrong-precinct provisional ballots to count onl y “up-ballot” votes—i.e.,

votes in eligible races.

The district court held an evidentiary hearing on July 30, 2012, and issued its preliminary i njunction on August 27, 2012. As necessary for the issuance of a preliminary injunction, the court’s 58-page Plenary Opinion and Order as sessed the SEIU plaintiffs’ likelihood of success on the merits of their constitutional claims, as well as the equitable factors necessary for injunctive relief: irreparable harm, harm to others,

1The plaintiffs consisted of the Service Employees International Union, Local 1; the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,Allied Industrial and Service Workers International Union; the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, including Locals 863 and 1005; and the Ohio Organizing Collaborative.

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and the publ ic interest. The court prem ised injunctive relief upon three likely equal protection violations and a likely due process violation.2
1. Equal Protection: Wrong-Precinct Ballots Caused by Poll-Worker Error
Beginning with the SEIU plaintiffs’ wrong-precinct ballots claim, the court found reliable evidence that Ohio’s county election boards disqualified thousands of wrongprecinct ballots in each of Ohio’s three m ost recent elections. Specifically, the court found that Ohio rejected more than 14,000 wrong-precinct ballots in 2008 and 11,000 more in 2010, with wrong-precinct rejections occurring in the vast m ajority of Ohio counties. (Plenary Op. & Order at 26 & n.28, 27 (counting 14,335 wrong-precinct rejections in 2008 and 11,775 in 2010).) Andin the mid-cycle election of 2011, which involved no federal races, Ohio kept specifci data regarding right-place/wrong-precinct ballots revealing that Ohio disqualified m ore than 1,800 such ballots. But for the consent decree entered in the NEOCH litigation, Ohio would have disqualified another 1,500 such ballots. ( Id. at 25–26 (f inding that Ohio disqualif ied 1,826 of 3,380 right-place/wrong-precinct ballots in 2011).) This data led the court to conclude that “[w]hile the num ber and frequency of wrong-precinct ballot disqualifications vary county to county, the problem as a whole is systemic and statewide.” (Id. at 26.) The court noted that “[m]uch of the factual basis upon which the Court relies for its findings is uncontested, or has already been established by this Court or the courts in [theHunter litigation].” (Id. at 25.)
Though the Secret ary di d not dispute the accuracy of these statistics, it challenged their relevance in light of recent efforts to improve Ohio’s provisional ballot system. The Secretary also argued that reasons other than poll-worker error may have caused some of the wrong-precinct ballots. The district court rejected these arguments, citing the failure of previous state directiv es and the absence of evidence that voters disobeyed poll-worker instructions regarding voting precincts. “No pa rty,” it stated,
2The district court rejected the SEIU plaintiffs’ third equal protection claim asserting a greater burden on voters in m ore populou s urban counties, finding insufficient evidence that Ohio’s disqualification of wrong-precinct ballots disproportionately affects voters in those counties. The SEIU appellees do not contest this finding.

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“has identified a single example, from the past four years’ elections, of a wrong-precinct provisional ballot being cast because the voter refused to vote in the correct precinct.” (Id. at 29.) Invoking poll workers’ statutory m andate to direct voters to the correct precinct and inform them that wrong-preci nct votes will not count, see O.R.C. § 3505.181(C)(1), the district court reasoned, “It is common sense that no rational voter who arrives at the correct polling place would everrefuse to cast a provisional ballot in the correct precinct . . . .” (Plenary Op. &Order at 29.) “Based on the record evidence provided t hus far,” the court concluded th at “Plaintif fs ha[ d] established a strong likelihood that thousands of lawfully-registered voters will be completely deprived of their right to vote under Ohio Rev. Code § 3505.183(B)(4)(a)(ii) in the upcom ing election because of poll-worker error.” (Id. at 30.)
Deeming this burden “arbitrary,” “irreversible,” and “severe,” the court proceeded to weigh the state interests jutsifying the automatic disqualification of wrongprecinct provisional ballots under the balancing test set forth inAnderson v. Celebrezze, 460 U.S. 780, 789 (1983), andBurdick v. Takushi, 504 U.S. 428, 434 (1992). To justify the autom atic-disqualification rule, the Secretary relied on the “significant and numerous” advantages of the precinct voting system articulated in Sandusky County Democratic Party v. Blackwel l, 387 F.3d 565, 569 (6th Cir. 2004) (per curiam ): (1) capping the number of voters at a pollinglocation; (2) limiting the precinct ballot to the applicable federal, state, and local elections a citizen m ay vote in, which has the result of (3) m aking the precinct ballot less confusing; ( 4) sim plifying election administration and oversight, so as to minimize election fraud; and (5) enabling the state to place polling locations closer to voter residences. The court deemed the first, third, and fifth Sandusky factors inapposite, because the autom atic-disqualification rule affected voters who arrived at the right polling location and did nothing t o ma ke provisional ballots l ess confusing. The second Sandusky factor—limiting precinct ballots to eligible races—som ewhat justified the disqualificat ion of wrong-precinct ballots in the court’s view, inasmuch as the State has an interest in preventing ineligible voters from casting votes in the wrong races. But because the SEIU plaintiffs sought to “remake” wrong-precinct ballots to count only “up-ballot” votes—a practice the court

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noted had be en e mployed by the consent decree since 2010—the court found no likelihood of vote dilution or detrimental effect on the precinct voting system. Finally, the court rejected for lack of evidence th e Secretary’s purported interest in election administration, monitoring, and recordkeeping. Citing dicta from this court’s decision in Hunter, see 635 F.3d at 243 (expresing “substantial constitutional concerns regarding [Ohio’s] invalidation of votes cast in the wrong precinct due solely to poll-worker error”), the district court concluded that the SEIU plaintif fs “have submitted reliable, uncontroverted evidence demonstrating that a discrete class of prospective voters will be severely burdened by [t he disqualification of wrong-precinct provisional ballots caused by poll-worker error].” (Plenary Op. & Order at 39–40.)
In addition to its Anderson/Burdick balancing, the district court found Ohio’s disqualification of right-place/wrong-precinctprovisional ballots to constitute invidious discrimination because the restriction bore no relation to those voters’ qualifications. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 666–67 (1966). Though Ohio’s disqualification rule differed fromthe “archetypal case of an invidious restriction”—the poll taxes at issue in Harper—the district court reasoned that “[l]ike poll taxes . . . any rational basis for rejecting wrong-precinct ballots of registered voters due to poll-worker error is equally unreasonable,” because the restriction “is unrelated to the prospective Plaintiffs’ voter qualifications.” (Plenary Op. & Order at 41.)
2. Equal Protection: Deficient-Affirmation Ballots Caused by Poll-Worker Error
Turning to the SEIU plaintiffs’ claimregarding deficient-affirmation ballots, the court cited 2011 election data showing thatOhio rejected 568 provisional ballots due to such technical deficiencies as “a missing or misplaced printed name or voter signature, or the voter’s signature was deemed not to match the exemplar on file with the Board.” (Id. at 43.) The court attributed these deficiencies to poll-worker error “because it is the poll worker’s duty to ensure that provisional ballots are cast with a validly completed ballot envelope and affirmation.” (Id. (citing O.R.C. §§ 35051.81(B)(2)–(3), 3505.182).) Still, the court conceded that the class of affected voters “is likely to be signif icantly smaller” than the right-place/wrong-precinctballots, and that the burden on these voters

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“is arguably less severe” because “the individual voter has a greater degree of control over whether the ballot envelope contains the required elements.” (Id. at 44.) While it could not “quantify the precise magnitude ofthe burden imposed by this law’s restriction on the class of affect ed voters,” it deem ed the State’s interests—the sam e Sandusky factors discussed above— insufficient to support the restriction under the Anderson/Burdick test. (Id. at 44–45.)
The Se cretary argued that new directives, especially Directive No. 2012-01, mitigated the burden on these voters, but the district court disagreed, stating that the directive “instructs boards of elections that provisional ballots are not to be rejected only where thepoll worker fails to fill out his or her portoi n of the provisional envelope.” I(d. at 45.)
3. Equal Protection: The Consent Decree’s Preferential Treatment of SSN-4 Ballots
Next, the district court agreed with the SEIU plaintif fs that Ohio’s differential treatment of wrong-precinct ballots, depending onthe form of identification used to cast the ballot, violated equal protection. Recognizing that the NEOCH consent decree provided a different vote-counting standard for SSN-4 provional ballots (allowing a chance to prove poll-worker error and have the vote counted) and all other provisional ballots (not), the court inquired whether state interests justified the preferential treatment. The State—by now seeking tovacate the consent decree—offered none, and the court agreed, finding “[t]here is no reaosn for treating provisional ballots differently based on the type of identification used.” (Id. at 49.)
4. Due Process: Wrong-Precinct Ballots Caused by Poll-Worker Error
Last, the court adopted dicta from t he post-rem and judgm ent in the Hunter litigation that Ohio’s strict disqualification of deficient ballots, regardless ofpoll-worker error, rendered the election system “fundamentally unfair,” in violation of due process. See Hunter v. Hamilton Cnty. Bd. of Elections , 850 F. Supp. 2d 795, 847 (S.D. Ohio 2012). Relying on the sam e evidence discussed in the equal protection claim s, the

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district court found a strong likelihood that the SEIU plaintiffs would prevail on the due process claim.

5. Injunctive Reli ef & Staying the NEOC H Plaintiffs’ Motion to Modify the Consent Decree

Having found a likelihood of success on the merits of these claims, the district court determ ined that the equitable factors favored the issuance of a prelim inary injunction. Accordingly, the court granted a prelim inary injunction requiring the counting of wrong-precinct and deficient-affirmation provisional ballots, unless the State could prove that the poll worker properly a dvised t he vot er to cas t the ballot in the correct precinct and the voter refused. Having granted t he br oader relief of the preliminary injunction in the SEIU litigation, the district court stayed t he NEOCH plaintiffs’ motion to expand the consent decree in the NEOCH litigation, deeming that issue moot so long as the preliminary injunction remained in effect.

The Secretary now appeals the deficient-affirmation aspect of the preliminary injunction, and the State intervenesto appeal the wrong-precinct remedy.3 The Citizens

Reform Association of Cuyahoga County and individual voters appear as am

ici

(collectively “CRACC amici”) in favor of the State appellants, 4 and Common Cause

Ohio, Cuyahoga County, and the League of Women Voters of Ohio appear as amici for

the SEIU appellees. W e have jurisdiction to hear both of these appeals. 28 U.S.C.

§ 1292.

3Alternatively, the State prem aturely filed a sepa rate appeal (12-4070) of the district court’s preliminary injunction prior to becoming a party in the matter. We dismissed that appeal, but granted the State’s motion to intervene in appeal 12-4069.
4CRACC amici previously attempted permissive intervention in the dsitrict court and intervention as of right in appeal 12-4069. The district courtruled their application untimely, and CRACC amici have appealed that ruling. (Appeal 12-4079.) Because that appeal remains pending and is the proper avenue to address the intervention arguments raised in the district court, we denied their motion to intervene on appeal and permitted their alternative request to file amicus briefs.

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II. SCOPE OF PRELIMINARY INJUNCTION: THE WRONG-PRECINCT REMEDY
Before we m ay assess the propriety of the prelim inary injunction, we m ust resolve a dispute over the scope of its re lief for wrong-precinct ballots. The district court’s plenary opinion and order required th e Se cretary to instruct Ohio’s county election boards not to reject provisional ballots “cast . . . in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot” directed the voter to the correct precinct, informed the voter of theramifications of casting a wrong-precinct vote (disqualification), and the voter nevertheless insisted on casting the ballot in the wrong precinct. (Plenary Op. & Order at 56–57.) The SEIU appellees read thi s remedy to apply to all wrong-precinct ballots, regardlessof whether the voter cast his or her ballot at the correct polling l ocation. The State counters that the rem edy applies only to provisional ball ots cast at the correct polling place, citing the district court’s later clarifying orders. The Secretary, who does not appeal this aspect of the prelim inary injunction, ostensibly adopted the State’s position on the scope of the pr eliminary injunction in Directive Num ber 2012-44, noting that the injunction’s wrong-precinct remedy applied only to “ballots cast in the correct polling place but wrong precinct.” See SOS Directive No. 2012-44 (r eferring to the affected ballots as “Right Church/Wrong Pew” ballots). With one small caveat, we agree with the State.
The State correctly notes that significant portions of the district court’s opinion specifically address the right-place/wrong-precinct problem. For instance, the district court’s burden analysis cites statistics for right-place/wrong-precinct provisional ballots cast during the 2011 general election, concludingthat “[t]here is, then, a high statistical probability that in the upcom ing election thousands of lawfully-registered voters will arrive at the correct polling place only to receive a provi sional ballot from the poll worker for the wrong precinct.” (Plenary Op. & Order at 26.) 5 Elsewhere, the court states that “[t]he evidence further confirm s that, of the thousands of r ejected wrong-
5The statistics frompriorelections do not distinguish between right-place/wrong-precinct ballots and wrong-p lace/wrong-precinct ballots because “ [t]he Secretary did not begin requiring Boards to separately report [those num bers] until the 2011 genera l election.” (Plenary Op. & Order at 2 6 n.27 (citation omitted).)

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precinct/correct location provisional ballots, the vast majority will be disqualified as a result of poll-worker error.” (Id. at 28–29.) And later on in its invidiousness analysis, the court notes that “[t]he Plaintiffs sue on behalf of registered voters who arrive in the correct polling place, and only through an inter vening error violate the precinct requirement.” (Id. at 41.)
Admittedly, the SEIU plaintif fs did not conf ine their requested relief to rightplace/wrong-precinct provisional ballots. (See R. 63, SEIU Pls.’ Second Am. Compl. at 35–36; R. 4, Mot. Prelim . Inj. at 4–5.) And certain aspects of the district court’s opinion appeared to follow this lead—na mely, the court’s sum mary of the SEIU plaintiffs’ requested relief and the court’s “order” of “Appropriate Injunctive Relief.” (Plenary Op. & Order at 12, 56–57.) But if any doubt rem ained, the district court’s framing of its equal-protection analysis settles the matter: “It is the particular burden imposed by Ohio’s prohibition of wrong-precincbt allots on the rights of a ‘discrete class of prospective voters’—those whoarrive at thecorrect polling placebut are misdirected due to poll-worker error—against which the Satte’s asserted interests must be weighed.” (Id. at 34 (em phasis added) (citation om itted); see also id. at 37 n.56 (weighing state interests in disqualifying right-place/wrong-precinct provisional ballots).)
Two additional pieces of extrinsic evidencesupport this view. First, the district court issued three post-injunction orders—two scheduling orders and an order granting the State’s m otion to intervene—that char acterized the prelim inary injunction’s wrong-precinct remedy as extending no further than ballots m iscast from the correct polling place. Second, the SEIU appellees conceded at oral argument that they never sought to have wrong-county provisional ballotscounted, but that would be the practical effect of granting their interpretation of the district court’s wrong-precinct remedy.
Rather than presume the district court intended a “vote anywhere” remedy, we take the court at its word that it considered the constitutionality of the State’s disqualification of right-place/wrong-precinct provisional ballots. We therefore read the district court’s wrong-precinct remedy to encompass only those votes. Consequently,

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our rem aining discussion of wrong-precinct ballots and the wrong-precinct rem edy addresses only right-place/wrong-precinct provisional ballots.6
We do note, however, that the State’s interpretation fails to account for provisional ballots cast at the county boards of election. Because Ohio law authorizes the casting of provisional ballots at the county boards, see O.R.C. § 3505.181(C)(2) (disqualifying certain provisional ballots where “the individual refuses to travel to the polling place for the correct jurisdictionor to the office of the board of electionsto cast a ballot” (emphasis added)), we see no reason to distinguish these right-place/wrongprecinct pr ovisional ballots from those cast at precinct polling locations. In both instances, the voter appears at a state-authorized polling location, but the alleged pollworker error results in the casting of a wor ng-precinct provisional ballot. Accordingly, we assume the district court’s wrong-per cinct remedy includes these right-place/wrongprecinct provisional ballots.
III. THE PRELIMINARY INJUNCTION (Appeal 12-4069)
A. Standard of Review
Our review focuses on the four factor s a plaintiff m ust establish to receive injunctive relief:
(1) whether the movant has a strong likelihood of success on the merits; (2) whether the m ovant would suffer irreparable injury without the
injunction; (3) whether issuance of the injunction would cause substantial har m to
others; and (4) whether the public interest would be s erved by the issuance of the
injunction.
Hunter, 635 F.3d at 233 (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)). Athe preliminary injunction stage,

6Our ruling does not preclude the SEIU appelleesor others from seeking broader relief forpollworker-induced wrong-place/wrong-precinct provisional ballots upon a showing that Ohio’s law unconstitutionally burdens those voters’ rights. As those issues are not before us, we express no view on their merits.

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“a plaintiff must show more than a mere possibility of success,” but need not “prove his case in full.” Certified Restoration Dry Cleaning Network, 511 F.3d at 543 (citations omitted). “[I]t is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997) (citation omitted).
The State argues for a higher eviden tiary burden, characterizing the SEIU plaintiffs’ claim s as pr esenting only a facial attack on Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). No doubt, certain aspects of the SEIU plaintiffs’ Second Amended Complaint appear to present facial challenges, but others advance as-applied challenges focusing on these statutes’ failure to make exception for poll-worker error. ( See SEIU Pls.’ Second Am . Com pl. ¶¶ 79, 82 (challenging the State’s rationale for excluding wrong-precinct and deficient-affirmation ballots caused by poll-worker error).) W e read the district court’s opinion as sustaining these asapplied claims and therefore limit our review accordingly.
Though we consider the ultim ate decision to issue the injunction under a deferential abuse-of-discretion standard, we assess the underlying legal conclusionsde novo and factual findings for clear error. Obama for America v. Husted , — F.3d —, Nos. 12-4055/4076, slip op. at 6 (6th Cir. 2012). Consequently, we give fresh review to the district court’s legal conclusions regarding a plaintiff’s likelihood of success on the merits. Id. at 7; Hunter, 635 F.3d at 233. An injunction “will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, im properly applied the governing law, or used an erroneous legal standard.”Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998).
B. The Wrong-Precinct Ballots
1. Likelihood of Success on the Merits
The district court identif ied three st rands of likely constitutional violations related to the wrong-precinct ballots as rqeuiring injunctive relief: the unreasonableness

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and fundam ental unfairness of disqualifying wrong-precinct ballots caused by pollworker error (equal protection and due process,) and the disparate treatment of deficient provisional ballots under the consent decree (equal protection). Having reviewed the record afresh, we agree on all counts.
a. Equal Protection & Disqualification Despite Poll-Worker Error
Our Constitution accords special protection for the fundamental right of voting, Harper, 383 U.S. at 670, recognizing its essential role in the “ preservati[on] of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Because“[o]ther rights, even the most basic, are illusory if the right to vote is underm ined,” Wesberry v . Sanders , 376 U.S. 1, 17 (1964), “‘[t]he right to vote is portected in more than the initial allocation of the franchise. Equal protection applies as well to the amnner of its exercise,’”League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (quotingBush v. Gore, 531 U .S. 98, 104 (2000)). A t the sam e tim e, the C onstitution vests states w ith the authority to prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.” U.S. Cons t. Art. I, § 4, cl. 1. “[W ]hen a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally suf ficient to justif y the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788). When equal protection challenges ask us to resolve these competing interests, we calibrate the equal protection standard to “[t]he precise character of the state’s action and the nature of the burden on voters.” Obama for America, Nos. 12-4055/4076, slip op. at 8 (citingBiener v. Cailo, 361 F.3d 206, 214 (3d Cir. 2004) for the proposition that “[t]he scrutiny test de pends on the [regulation’s] effec t on [the plaintiff’s] rights.”).
While a rational basis standard applies tostate regulations that do not burdenthe fundamental right to vote, strict scrutiny a pplies when a state’s restriction im poses “severe” burdens. Id. (citing McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807–09 (1969) and Burdick, 504 U.S. at 434). For the majority of cases falling between these extremes, we apply the “flexible” Anderson/Burdick balancing test. Id.; see also

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Crawford v. Marion Cnty. Election Bd,.553 U.S. 181, 189–91 (2008) (Stevens, J., joined by Roberts, C.J., and Kennedy, J., announcing the judgm ent of the Court); id. at 211 (Souter, J., joined by Ginsburg, J., dissenting).
The State defendant, intervening as appellant, resists this standard, arguing that Ohio’s automatic-disqualification rule for wrong-precinct ballots treats all voters equally and therefore does not “involve any classification that could violate the equal protection standard.” But the State overlooks the fact that a clear majority of the Supreme Court in Crawford applied som e form of Burdick’s burden- measuring equal protection standard to Indiana’s facially neutral voter-identification requirement. See 553 U.S. at 189–91 (Stevens, J., announcing the judgment of the Court), 204 (Scalia, J., joined by Alito and Thomas, JJ., concurring in the judgment) (“To evaluate a law respecting the right to vote—whether it governs voter qualifciations, candidate selection, or the voting process—we use the approach set out in Burdick . . . .”), 211 (Souter, J., dissenting). Because the SEIU plaintiffs “demonstrated that their right to vote is . . . burdened by” Ohio’s law that rejects wrong-precinct ballots regardless of pol l-worker error, “[t]he Anderson-Burdick standard . . . applies.” Obama for America, Nos. 12-4055/4076, slip op. at 10 (rejecting Ohio’s a ttempt to lim it the Anderson/Burdick test to First Amendment free association claims and Fourteenth Amendment due process claims).
Following the Anderson/Burdick test,
[we] must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Am endments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”
Burdick, 504 U.S. at 434 (quotingAnderson, 460 U.S. at 789)). “There is no litmus test to separate valid frominvalid voting regulations; courts must weigh the burden on voters against the state’s asserted justifications and make the hard judgment that our adversary system dem ands.” Obama for America , Nos. 12-4055/4076, slip op. at 9 (internal

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quotation marks omitted) (quoting Crawford, 553 U.S. at 190 (Stevens, J., announcing the judgment of the Court)).
i. The Burden on Provisional Voters
Here, the district court identified a subtsantial burden on provisional voters. The court’s factual findings detail Ohio’s “systme ic” disqualification of thousands of wrongprecinct provisional ballots and a strong likelihood that the m ajority of these m iscast votes result frompoll-worker error. Torecap, Ohio tossed out more than 14,000 wrongprecinct ballots in 2008 and 11,000 more in 2010, with such rejections occurring across the state. And in the m id-cycle election of 2011, Ohio disqualif ied more than 1,800 right-place/wrong-precinct ballots—1,500 f ewer than it w ould have rejected in the absence of NEOCH consent decree.7 Like the Secretary before the district court, the State intervening as appellant does not contest the accuracy of this data, but emphasizes that wrong-precinct ballots make up a small percentage of the total votes cast. (State Br. at 12 (explaining that wrong-precinct ballots made up 0.248% of the ballots cast in the 2008 election, with right-place/wrong-precinct ballot s com prising an even sm aller share).)
Though the district court did not m ake specific fact ual findings regarding the incidence of poll-worker error, it found sucherror evident in poll workers’ statutory duty to direct voters to the correct polling place.See O.R.C. § 3505.181(C)(1).8 As the State
7These findings regarding the statewide disqualification of wrong-precinct ballots amplify the countywide evidence established in Hunter. See Hunter , 635 F.3d at 237 (recognizing 269 rightplace/wrong-precinct ballots in the November 2010 election for Hamilton County Juvenile Court Judge).
8This provision states:
If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which the individual desires tovote, or if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the i ndividual is not eligible to vote in that jurisdiction, the election official shall [1] direct the individual to the pollingplace for the jurisdiction in which the individual appears to be eligible to vote, [2] explain that the individual may cast aprovisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct,and [3] provide the telephone number of the board of elections in case the individual has additional questions.
O.R.C. § 3505.181(C)(1) (emphasis and brackets added).

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acknowledges, Ohio law requires poll workers to “de termine whether an individual is eligible to vote in a specif ic precinct, and direct them to the precinct in which ‘the individual appears to be e ligible to vot e.’” (State Br. at 12 (quoting O.R.C. § 3505.181(C)(1)).) See also Hunter, 635 F.3d at 243 (“Ohio has created a system in which state actors (poll workers) are giventhe ultimate responsibility of directing voters to the right location to vote.”). The court also cited the proliferation of multi-precinct polling locations in Ohio’s counties as i ncreasing the likelihood of poll-worker error causing right-place/wrong-precinct ballots. S( ee Plenary Op. & Order at 6 n.10 (finding, as of the 2012 primaries, shared-polling place rates for the following counties’ election precincts: Butler, 95%; Cuyahoga, 94%; Greene, 100%; Franklin County, 68%; Lorain, 90%; Montgomery, 88%; Stark County, 71%).)
In addition to these findings, the SEIUplaintiffs presented voluminous evidence that poll workers give voters wrong-precinc t ballots for a number of reasons, ranging from misunderstanding counties’ precinct location guides to failing to understand the vote-disqualifying ramifications of handing out wrong-precinct ballots. This recent sample of Franklin County’s precinct location guide, which shows how different house numbers on the same street end up in differnet precincts, almost at random, demonstrates how easily poll workers can make mistakes under the pressures of election day.

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(R. 13-12 at 9.) The Secretary failed to present evidence to the district court that other
factors besides poll-worker error caused wrong-precinct ballots, and the State offers
none now. Given this record and the clearlegal duty imposed on poll workers by Ohio
law, the district court deduced:
As a matter of law, if a person cas ts a provisional ballot in the wrong precinct, it is always going to be due to poll-worker error unless the poll worker has instructed the individual where the correct polling location is and that individual “refuses to travel to the polling place for the correct [precinct] or to the office of the boardof elections to cast a ballot.” Ohio Rev. Code §§ 3505.181(C)(2), 181(E)( 1). Such an act would be an irrational and futile exercise by the voter, because, as required by Ohio Rev. Code § 3505.181(C)(1), the poll worker must first inform him that if he insist s on voting in the wrong precinct, his ballot will not be counted.

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(Plenary Op. & Order at 8.) Because the Sat te offers no evidence of alternative causes, we find no clear error wi th t he district c ourt’s factual conclusion that m ost rightplace/wrong-precinct ballots result, and will continue to result, frompoll-worker error.9
The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii) to right-place/wrong-precinct ballots caused by poll-worker error effectively requires voters to have a greater knowledge of their precintc, precinct ballot, and polling place than poll workers. Absent such om niscience, the State will perm anently reject their ballots without an opportunity to cure the situation. The m ere fact that these vot ers cast provisional ballots does not justify this additoinal burden; as the district court explained, Ohio law now requires thirteen different caet gories of voters to cast provisional ballots, ranging from individuals who do not have anacceptable form of identification to those who requested an absentee ballot or whose sginature was deemed by the precinct official not to m atch the nam e on the registration form s. See Ohio Rev. Code § 3505.181(A)(1)–(13).
ii. The State’s Interests: Sandusky Factors
Faced with this burden on voters, the State falls back on the sam e Sandusky factors rejected by the district court. Firs t, t he State objects to the district court’s conclusion that the f irst Sandusky factor—capping the num ber of voters at a polling place—does not support disqualifying right-place/wrong-precinct ballots. We find no

9We note that the Secretary, in im plementing the district court’s wrong-precinct rem edy, has prescribed a new election form for poll workers to doc ument recalcitrant voters that refuse to go to the correct polling location: SOS Form 12-D. This form , known as the “Provisional Voter Precinct Verification Form,” identifies five steps that poll workers must take “whenever a voter’s name does not appear in the sig nature poll book or poll list, the vot er is in the wrong precinct of the correct m ultipleprecinct polling place and the voter insists on casting a provisional ballot in the wrong precinct.” First, the poll worker must “[f]ind the voter’s address in the Voting Location Guide.” At steps two and three, the poll worker must record the voter’s correct precinct and the address of the correctpolling place on the form. The last two steps invol ve instructing the voter to go to the correct precinct to cast a provisional ballot and informing the voter that casting a wrong-precinct ballotat the current location will result in the disqualification of the ballot. If th e voter still insists on casting a ballot in the wrong precinct after receiving this advice, thenthe poll worker will complete the form’s affirmation “under penalty of election falsification” to document that the voter disregardedthe advice provided in the five steps. The poll worker will then attach the completed form to the miscast ballot for purposes of verification. The county board of election will reject the miscast ballot if the poll worker directed the voter to the correct precinct.
We do not view this measure as alleviating the SEIU plaintiffs’ burden of establishing a likely constitutional violation, but we do find it relevant to weighing the state’s asserted interests in preserving its strict disqualification rules in the face of SEIU’s poll-worker-error claims.

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error here. By definition, right-place/wrong-precinct ballotsare cast at the right polling location, demonstrating that these voters attempted to comply with the State’s precinct requirement. Of course, if a recalcitrantvoter insists on casting a wrong-precinct ballot after making the effort to arrive at the correct polling place, the State would have a strong interest in rejecting that non-compliant vote. But the State offers no evidence or logical support for this phenom enon, while the SEIU pl aintiffs provided substantial evidence of poll-worker error.
As for the second and thirdSandusky factors, the State argues that it has a strong interest in limiting precinct ballots to eligible races, which facilitates the administration of elections and sim plifies t he ba llot for voters. No disagreem ent there, but these interests do not justify the precise restriction challenged here: the exclusion of wrongprecinct ballots caused by poll-worker error. Additionally, the State asserts “an interest in avoiding a circumstance in which voters are in effect given the option of surrendering their right to vote in ‘down ballot,’ precinct-specific races in exchange for the ability to cast ‘up ballot’ votes in a (perhaps less busy)precinct other than their own.” (State Br. at 48.) Again, the State offers no evidence for this speculation. We have no reason to think that voters, who will be correctly advised by poll workers about their assigned precinct, see O.R.C. § 3505.181(C)(1) and SOS Directive No. 2012-441,0 will opt to roll the dice in a less busy precinct on pain of having their votes disqualified. The State offers no reason to think that the district court’s limited relief for the narrow class of right-place/wrong-precinct ballots caused by poll-worker error—which has no effect on the design of precinct ballots—will undermine Ohio’s precinct system or make ballots more confusing.
Turning to the fourth Sandusky factor, the State claims that the district court’s remedy makes it more difficult to monitor the voting process and prevent election fraud. According to the State,

10The new election formprescribed by the Secretary, From 12-D, further decreases the likelihood that opportunistic voters will engage in precinct-shopping, because voters will actually see poll-workers documenting non-compliance with poll-worker instructions.

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moving toward a system in which (absent new and affirm ative evidentiary “verificati on” actions by the boards) the total potential number of provisional ballots that m ust be count ed is not capped by reference to the number of registered voters assigned to a given precinct, or capable of estimation at any tim e until af ter the polls have closed would, almost by definition, make it more difficult for elections officials to monitor and keep up with the voting process.
(State Br. at 50.) Not only will the injunction make it more difficult to administer the election on election day, the State argues, butit will make it more difficult for the State to comply with the federal safe harbor deadline for Presidential electors, December 11, 2012. See 3 U.S.C. § 5; O.R.C. § 3515.041. Beyontdhese administrative burdens, amici CRACC movants suggest that the district court’s remedy opens the door to more pollworker error, which will result in the di lution of proper votes via the counting of ineligible votes. We find neither argument persuasive.
First, the record does not support the State’s fear that the district court’s limited remedy will increase the number of voters attempting to cast votes at the wrong polling location or facilitating voter fraud. Barring substantial num bers of recalcitrant voters insisting on casting wrong-precinct votes—again, a phenomenon not supported by the record or logic—the district court’s limited remedy should not burden poll workers with longer lines or tax county boards with an unmanageable number of ballot verifications after election day. Second, neither the Stat e nor am ici present evidence that county boards err in remaking wrong-precinct ballots to count only votes in “up-ballot” races, despite the fact that county boards have followed the practice since the adoption of the consent decree in April 2010. The State’s chifeelection official, who adopted Directive No. 2012-44 and Form 12-D, apparently believes that poll workers and county boards can both implement the district court’s injunctive relief and performtheir other election duties within the time allotted.
iii. Conclusion
In sum , while the Sandusky f actors ref lect a state’s legitim ate interests in maintaining a precinct-based election syst em, the St ate does not show how these interests support the specific restriction challenged here: the summary rejection of poll-

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worker-induced right-place/wrong-precinct ballots. Because the State fails to identify precise interests justifying this substantial burden, we agree with the district court that the SEIU plaintiffs have shown a likely equal protection violation.
b. Due Process & Disqualification Despite Poll-Worker Error
The voter burden identified by the SEIU plaintiffs likewise supports the district court’s finding of a probable due process vi olation. The Due Process Clause protects against extraordinary voting restrictions that render the voting system “fundamentally unfair.” See, e.g., Warf v. Bd. of Elections of Green Cnty., Ky. , 619 F.3d 553, 559 (6th Cir. 2010); League of Women Voters, 548 F.3d at 478. “[G]arden variety election irregularities” do not rise to that level, Griffin v. Burns, 570 F. 2d 1065, 1076 (1st Cir. 1978), but substantial changes to state election procedures and/or the implementation of non-uniform standards run afoul of due pr ocess if t hey “ result in significant disenfranchisement and vote dilution,”Warf, 619 F.3d at 559 (citations omitted). So too do state actions that induce voters to m iscast their votes. Griffin, 570 F.2d at 1074, 1078–79 (finding that Rhode Island’s post-election invalidation of absentee ballots violated due process, because voters relied on state directives allowing such ballots); Hoblock v. Albany Cnty. Bd. of Elections, 487 F. Supp. 2d 90, 97 (N.D.N.Y. 2006).
Although this iss ue was not ripe at the tim e, Hunter expressed “substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error.” 635 F.3d at 243.
Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directingvoters to the right location to vote. Yet, the state law penalizes the voterwhen a poll worker directs the voter to the wrong precinct, and the penalyt, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundam entally unfair. Cf. [Purcell v. Gonzalez , 549 U .S. 1, 4 (2006)] (“ [T]he possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.”).

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Id. at 243. The SEIU plain tiffs have shown, and the State does not deny, that pollworker error causes thousands of qualified voetrs to cast wrong-precinct ballots fromthe correct polling locations.
Even so, t he State argues that a due process violation requires intentional conduct. See, e.g., Shannon v. Jacobowitz, 394 F.3d 90, 96 (2nd Cir. 2005). It appears we have not opined on the scienter necessary for a voting r estriction to violate due process, see League of Women Voters, 548 F.3d at 476 (declining to decide the scienter requirement for a voting restriction to vi olate equal protection), 478 (finding, at the 12(b)(6) stage, that allegations of system ic irregularities in Ohio’s elections system supported a due process violation, without a ddressing scienter). Yet, accepting the State’s premise, we find sufficient indicia of purposeful conduct in the State’s intent to enforce its strict disqualif ication rules without exception, despite the system ic pollworker error identified in this litigation and others. Hunter shed light on this problem last year, but the State persisted in its position. In light of the well-docuemnted problem of wrong-precinct provisi onal ballots caused by poll-worker error, resulting in the rejection of thousands of provisional ballo ts each year, we have no basis on which t o disagree with the district court’s finding of a likely due process violation.
c. Equal Protection & Consent Decree’s Non-Uniform Standards
We next address the consent decree’s dfiferential treatment of provisional ballots depending on the form of identificati on us ed by the voters. As the district court explained, the O hio Revised Code rejects all wrong-precinct ballots, but the consent decree provides a rem edy only for SSN-4 voters. For those SSN-4 voters who later show that poll-worker error caused their wrong precinct or deficient-affirm ation vote, the consent decree saves their ballots fromrejection. A provisionalvoter using any other form of identif ication (e.g., current photo identif ication, copy of current utility bill, paycheck) receives no such reprieve.
Both the State and the SEIU plaintiffs addressed this issue before the district court. In arguing for an expansion of the consent decree, the SEIU plaintiffs objected to its “arbitrary and unequal counting and rejecting of the ballots of lawfully registered

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Ohio voters.” (SEIU Pls.’ Second Am . Com pl. ¶ 94; Mot. Prelim . Inj. at 31.) The Secretary similarly acknowledged this equal protection problem in the consent decree, but argued that “it’s equally plausible to say that the proper reemdy is to treat everybody the same and do away with the NEOCH decree.” (R. 69, Tr. Oral Arg. at 58:11–17.) Though both parties continue to recognize this equal protection problem, they disagree on a fix. The NEOCH plaintiffslikewise recognized this problemwhen they moved the district court to expand the consent decree to avoid constitutional infirmity.
We agree with all of the parties and th e district court that the consent decree likely violates the equal protection principle recognized in Bush v. Gore. “[A] citizen has a constitutionally protected right to partic ipate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v . Bl umstein, 405 U.S. 330, 336 (1972). “Having once granted the right to vote on equal term s, the State m ay not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104–05. It appears to us that the consent decree does just that.
Our Hunter case noted a sim ilar equal protection problem with thi s consent decree. There, the Hamilton County electionsboard “considered evidence ofpoll-worker error with respect to som e ballots cast in the wrong precinct but not ot her similarly situated ballots when it evaluated which ballots to count.” Hunter, 635 F.3d at 238. Hunter recognized the possibility that Ham ilton County’s treatm ent of provisional ballots under the consent decree could create a statewide equal protection problem, but limited its analysis to the county-based equal protection claim brought by the parties. See id. at 241–42.
Here, the SEIU plaintiffs’ equal protection claim squarely raises the statewide disparity inherent in the terms of the consent decree: its preferential treatment of SSN-4 provisional ballots. (SEIU Pls.’ SecondAm. Compl. ¶ 94.) Consistent withHunter, we join the pa rties and the district court in finding that the consent decree’s different treatment of similarly situated provisional ballots likely violates equal protection.

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2. Irreparable Injury, Substantial Harm to Others, Public Interest
Turning to the equitable consider ations, the State does not contest the district court’s core findings of irreparable harm to the voter and absence of harm to others. Rather, it offers only vague public-interest ocncerns, speculating that the injunction will spawn additional poll-worker error, vote dilution, and post-election litigation. As we explained in rejecting the CRACC amici’s vote-dilution argument, the record does not support the f ear that count y boards w ill err in rem aking w rong-precinct ballots by improperly counting ineligible “down ballot” votes. Nor do we anticipate that the injunction’s narrow remedy—saving “up-ballot” votes frompoll-worker-induced wrongprecinct ballots—will spur a m ountain of post-election litigation. The State has not shown that the district court abused its discretion in weighing the equitable considerations.
Nor has the State shown abuse in the district court’s fashioning of injunctive relief tailored to t he identified harm . The State would disqualify thousands of rightplace/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s prec inct guidance. That path unjustifiably burdens these voters’ fundamental right to vote. Recognizing that a prospective remedy could not undo all of the harm occasioned by poll-worker error, the district court crafted a narrow reemdy that preserves as m uch of a m iscast ballot as possible. The Secretary has now adopted regulations im plementing the district court’s lim ited rem edy for right-place/wrongprecinct provisional ba llots. See SOS Directive 2012-44 & Form 12-D. These regulations enable the State to identify and document recalcitrant voters that disregard poll-workers’ precinct instructions, so that these provisional ballots can be excluded. Because the State offers no persuasive reason to disturb the district court’s remedy, as implemented by the Secretary, we affirm the wrong-precinct aspect of the preliminary injunction.

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C. The Deficient-Affirmation Ballots
The district court identif ied only one probable constitutional violation as supporting the injunction’s deficient-affi rmation rem edy: the unreasonableness of disqualifying deficient-affirmation ballots caused by poll-worker error, in derogation of equal protection. Because the spotty reco rd and Ohio law do not support the district court’s presumption of poll-worker error, we find no likely constitutional violation and reverse this aspect of the preliminary injunction.
The district court’s opinion suffers fromtwo presumptions not supported by the record: (1) that the absence of legitim ate state interests overcom es any dif ficulty “quantify[ing] the precise magnitude of the burden imposed by [Ohio’s] restriction on the class of affected voters,” and (2) that state law requires poll-workers to ensure that provisional voters properly complete ballot affirmations. (Plenary Op. & Order at 44.) The district court’s m inimal findings on th is count reflect that Ohi o rejected 568 provisional ballots in 2011 due t o t echnical deficiencies appearing in the ballot affirmations, but do not specify which of thees ballots suffered fromwhich deficiencies. To be sure, the SEIU plaintiffs grouped a variety of voter-penned errors in support of this claim—e.g., missing, misplaced, and non-matching signatures, and failure to include a printed name.
In our view, the difficulty in measuring the voter burden imposed by the ballotaffirmation requirement stems from the fact that all of the identified deficiencies arise from voters’ f ailure to f ollow the f orm’s rather sim ple instructions: (1) print nam e, (2) provide identification,11 and (3) sign the affirmation appearing at the bottom. See SOS Form 12-B. Even the last step is optoi nal, because Ohio law permits voters to cast a provisional ballot without signing the affirmation upon notifying a poll worker. O.R.C. § 3505.181(B)(6). Contrary to the district court’s suggestion, Ohio law does not task poll-workers with quality control of ballot affirmations. Rather, the Ohio provisions cited by the district court instruct provisional voters to “execut[ e] . . . a written

11The SEIU plaintiffs do not challenge Ohio’s voter-identification requirements.

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affirmation . . . before an election o fficial,” O.R.C. § 3505.181(B)(2), and require election official s to “record the type of identification provided, the social security number inform ation, the fact that t he affirm ation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot,” O.R.C. § 3505.181(B)(6).
During oral argum ent, the SEIU appe llees conceded that Ohio’s ballotaffirmation r equirement im poses a lesser burden on voters than Ohio’s precinct requirement. In light of Ohio’s similar signature requirements for casting regular ballots with proper identification, absentee ballots, and issue petitions,see O.R.C. §§ 3509.03, 3509.05, 3519.01, 3505.18, we agree. Ohio’s legitimate interests in election oversight and fraud prevention easily justify the minimal, unspecified burden asserted by the SEIU plaintiffs. Because the SEIU plaintiffs have not shown a likelihood of success on the merits, we reverse the preliminary injunction’s deficient-affirmation remedy.
IV. THE CONSENT DECREE (Appeal 12-3916)
A. Applicability of Rule 60(b)
Ohio and the Secretary argue that Rule 60(b) does not apply to this case because (1) Ohio election law does not provide exceptions for the counting of any wrongprecinct or deficient-affirmation ballots, and the consent decree m ade no predicate findings of a constitutional violation; (2) the consent decree, by its own term s, is modifiable for “good cause”; and (3) this court already ruled that the consent decree is not a “final judgment.” They claim that because Oh io and the Secretary entered an agreement with the plaintiffs that they now contend violates Ohio law, it is void, and Rule 60(b) does not apply to a request to vacate it. We hold that Rule 60(b) applies to this case and that Ohio and the Secretary have not sustained their burden under R ule 60(b). Thus, we a ffirm the district court’s denial of the request to vacate the consent decree.
Ohio and the Secretary argue that if a consent decree requires a state to take actions that violate state law, and no predicate federal constitutional violation has been

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established, Rule 60(b) does not apply. They cite a number of cases for this proposition,
but all of them involved either third parties challenging a consent decree reached by others, or review of legal challenges to a consent decree on direct appeal.12 Rule 60(b)
would not have been implicated in these cases because those challenging the validity of
the decrees were either not “parties,” as required by Rule 60(b), or properly raised their
argument on direct appeal in the underlying litigation. None involved a party contesting
the validity of a decree to which it previously consented after the decree became final
and the time for direct appeal passed. In the only case we are aware of addressing facts
similar to t hose posed here, the Second Circuit applied Rule 60(b) to deny the
government’s request for relief from the consent decree. See Congregation Mischknois
Lavier Yakov, Inc. v. Bd. of Trs. for Village of Airmont, 301 F. App’x 14, 15 (2d C ir.
2008) (rejecting def endant’s argum ent “inasm uch as the settlem ent and order were
contrary to state law, they were void and should be vacated”).
Although they do not acknowledge it, Ohio and the Secretary make an argument
properly characterized a s fa lling under Rule 60(b)(4). Rule 60(b)(4) perm its final
judgments to be lifted if “void.” But the Supreme Court has held that nothing short of
a “jurisdictional error” or “a vi olation of due process” justifies relief under Rule
60(b)(4). See United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).
Neither is alleged or shown here. Espinosa was itself a case where a final judgm ent
enshrined a violation of federal law, andthe corporation challenging that judgment under
Rule 60(b) did nothing to address this problem in a timely fashion. Id. at 1380. Ohio
and the Secretary contend that the consent decree was flawed “when it was entered.”
12See St. Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 266 (8thCir. 2011) (appeal by intervenors who were not parties to a consent decree betw een plaintiffs and defendant zoning board); League of Residential Neighborhood Advocates v. City of L.A,. 498 F.3d 1052, 1053 (9th Cir. 2007) (lawsuit brought by neighbors of a synagogue that entered a consent decree with the defendant in a separa te case); Cleveland Cnty. Ass’n for Gov’t by the People v. Cleveland Cnty. B d. of Comm’rs, 142 F.3d 468, 471 (D.C. Cir. 1998) (lawsuit brought by third-party voters group challe nging consent decree entered by NAACP and the defendant); Keith v. Volpe , 118 F.3d 1386, 1389–90 (9th Cir. 1997) (appeal of an injunction entered pursuant to a consent decree by a businessman who was not a party to the decree); Perkins v. City of Chi. Heights, 47 F.3d 212, 214 (7th Cir. 1995) (appeal by two of the named plaintiffs in a class action objecting to a consent decree reached by the rem aining nam ed plaintiffs and the defendant); People Who Care v. Rockford Bd. of Educ. Sch. Dist. No. 205, 961 F.2d 1335, 1336 (7th Cir. 1992) (appeal by a teacher’s union that was not a party to a consent decree between a school district and various citizens’ groups);Kasper v. Bd. of Election Comm’rs of the City oCfhi., 814 F.2d 332, 338–39 (7th Cir. 1987) (appeal by plaintiffs dissatisfied with a consent decr ee reached by intervening plaintiffs and defendants).

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(Appellant’s Br. at 27.) Nonetheless, they agreed to and were signatories to the consent decree and did not begin challenging it as “void” until m ore than a year after the fact. “Where, as here, a party [has notice of a violation of law enshrined in a final judgment] and fails to object to [it] before the time for appeal expires, that party has been afforded a full a nd fa ir opportunity to litigate, and the party’s failure to avail itself of that opportunity will not justify Rule 60(b)(4) relief.” Espinosa, 130 S. Ct. at 1380. Therefore, we agree with the plaintiffs that Rule 60(b)(4) governs challenges to a n allegedly “void” consent decree and that Ohio and the Secretary have not met the high threshold necessary to bring such a challenge.
The consent decree provides that “[a]ny of the parties may file a motion with the Court t o m odify, extend or term inate this Decree for good cause shown.” (Consent Decree at V(11).) Ohio and the Secretary argue that this clause constitutes a “waiver” of the strictures of Rule 60(b). It does not. While a consent decree “embodies an agreement of the parties and thus in some respects is con tractual in nature,” it is nonetheless subject to Rule 60(b) because it is “a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992). The words “good cause shown” do not upset this general presumption. Even when consent decrees explicitly provdie instructions for their own modification, Rule 60(b) governs. Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 741 (6th Cir. 2012) (“[A] district court is not merely an instrument of a consent decree or of the parties’ stipulations with respect to it,” and termination of a decree must be “lawful given not only the decree’s terms, but also the broader legal rules that govern consent decrees”). Moreover, while we review the district court’s interpretation of a consent decree it approves de novo, we have applied “deferential de novo” review to the district court’s interpretation of a consent decree it supervised a nd approved. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 371–72 (6th Cir. 1998) (emphasis added). The district court’s conclusion that Rule 60(b) applied to this dispute removes any doubt that the “good cause shown” language in the consent decree reaf firms Rule 60(b)’s applicability, rather than circumventing it.

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The consent decree explains that it is “final and binding among and between [the parties] as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree.” (Consent Decree, preamble.) Nonetheless, Ohio and the Secretary argue that this court’s recent opinion in NEOCH v. Husted, --F.3d ----, 2012 WL 3734369 (6th Cir. Aug. 30, 2012), establishes that the consent decree is not a “final judgment” subject to Rule 60(b). That decision addressed whether the plaintiffs, by entering into the consent decree, waived their right to petition f or supplemental attorney fees and costs pursuant to 42 U.S.C. § 1988(b). NEOCH, 2012 WL 3734369, at *4. We found that the consent decreedid not constitute such a waiver. Id. at *8.
Contrary to the position taken by Ohio and the Secretary, that ruling had no bearing on whether or not the consent decree was a “final order, judgm ent, or proceeding” for Rule 60(b) purposes. Our case law interpreting § 1988(b) in the context of settlement agreements has focused on whether or not “the parties i ntended the settlement to be a final disposition of all claims,” or if the agreem ent contemplates a future motion for such fees by the “prevailing party.” See Jennings v. Metro. Gov’t of Nashville, 715 F.2d 1111, 1113–14 (6th Cir. 1983) (emphasis added). But in either case, the underlying resolution of the plaintiff’s claims that supports the request for fees is a “final” one for Rule 60(b) purposes. Entitlement to such fees is determined by whether a party “‘succeed[s] on any significant issue in litigation which achieves som e of the benefit the parties sought in bringing suit.’” Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). It is not possible to apply for “prevailing party” fees until a form of “judicially-sanctioned relief” has been provided. Sierra Club v . Hamilton Cnty. Bd. of Cnty. Comm’rs , 504 F.3d 634, 656 (6th Cir. 2007). The consent decree’s explicit statement that it is “final and binding” as to the “matters resolved in this decree” erases any doubts on this point. Accordingly, the recent decision in NEOCH does not alter our views regarding Rule 60(b)’s applicability in this context.

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B. Analysis Under Rule 60(b)
Having rejected the objections to Rule 60(b)’s applicability, our resolution of the appeal is straightforward. “We review a district court’s decision to vacate a decree for an abuse of discretion.” Doe v. Briley, 562 F.3d 777, 782 (6th Cir. 2009). Ohio and the Secretary “‘bear[ ] the burden of establishing that a significant change in circumstances warrants revision of the decree.’” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir. 1996) (quoting Rufo, 502 U.S. at 760). We have already explained why the district court properly found that the consent decree is not “void” under Rule 60(b)(4). As to Rule 60(b)(5), Ohio and the Secretary advanced no argument that they were actually entitled to such relief in their opening brief, since they chose to rely solely on arguments challenging Rule 60(b)’s applicability. See Youghiogheny & Ohio Coal Co. v. Milliken, 200 F.3d 942, 955 (6th Cir. 1999) (“[A]rguments not raised in the proponent’s opening brief on appeal are generally considered abandoned.”). In their reply brief, Ohio and the Secretary argue that they have met the requirements of Rule 60(b)(5) and Rufo because “modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent.” Rufo, 502 U.S. 367, 388 (1992); see also Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994).
Rufo does not support Ohio and the Secretary’s argument. First, Rufo dealt specifically with the issue of clarifying decisions of federal law, not state law, which is the only legal change asserted in No. 12-3916. Second, Ohio and the Secretary have conceded that, at best, Painter merely clarified preexisting Ohio law. Rufo is limited to genuinely unanticipated circumstances. Id. at 384 (“[M]odification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.”). Third,Rufo acknowledged that parties can and do “settle . . . dispute[s] over the proper remedy for . . . constitutional violations that had been found by undertaking to do more than the Constitution itself requires,” and that allowing the modification of decrees whenever “a clarification in the law” comes about would greatly “undermine the finality of such agreements” and “serve as a disincentive to negotiation of settlements

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in institutional reform litigation.” Id. at 388–89; see also Northridge Church v. Charter Twp. of Plym outh, 647 F.3d 606, 613–14 (6th Cir. 2011) (“[Rule 60(b)(5)] does not allow modification ‘when it is no longer convenient to live with the terms of a consent decree’ . . . .” (quoting Rufo, 502 U.S. at 383) (emphasis in Northridge Church )). Applying Rufo in this case would raise serious finality concerns, given Ohio and the Secretary’s change of course on the proper law to be applied.
Moreover, even taking into account the arguments raised in the reply brief, Ohio and the Secretary have not carried their burden on two other aspects of the Rufo test recognized by this circuit. In addition to a “significant change in circumstances,” the moving party must show that the consent decree is “onerous,” “unworkable,” or “detrimental to the public interest.” Heath v. D eCourcy, 992 F.2d 630, 635 (6th Cir. 1993). Furthermore, if changes are anticipated, as they appeared to be in this case, the party seeking to modify the decree must show that the original decree was agreed to in good faith, that reasonable ef forts at com pliance were made, and that it ought to be relieved of its obligations. Id. Ohio and the Secretary have not attempted to make these showings, much less carry their burden on them. Accordingly, the district court did not abuse its discretion in refusing to modify the consent decree under Rule 60(b).
C. Remaining Issues with Consent Decree
Before concluding, we note some additional issues our ruling creates that must be resolved. While we have set aside the potrion of the preliminary injunction addressing deficient-affirmation provisional ballots, the consent decree continues to mandate that some deficient-affirmation provisional ballots will be counted. This dsicrepancy appears to create a Bush v. Gore problem. Similarly, the consent decree standing on its own also raises Bush v. Gore issues by virtue of treating some provisional ballots differently than others. This latter concern is not purely academic, as the consent decree will be the only agreement governing these issues for Ohio’s 2013 primary elections.
In the order on appeal in No. 12-4069, the dsitrict court held that the discrepancy the consent decree creates between different sets of provisional ballots form ed an alternate justification for the prelim inary inj unction. Both Ohio and the Plaintiffs

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attempted to leverage this ruling on appeal in No. 12-4069 by arguing that either none or all of these ballots ought to be counted,respectively. But the district court has never ruled on this argument in the context of a request to modify or vacate the consent decree. The NEOCH Plaintiffs did make a motion to this effect in the district court, but it was stayed pending this appeal. Moreover, the discrepancy betwee n deficient-affirmation ballots for the November 2012 election is entirely a creature of this court’s decisions, and has never been considered by the district court. Because the district court has not had an opportunity to address these issues, and decisions to modify consent decrees are generally left to the discretion of the trial court, the proper course is to remand this case so that the parties, by proper motion or agreement, may address the issue in the district court. Ohio, which has the m ost to lose by a rem and, suggested such relief would be appropriate on appeal if such a finding were made. (Ohio Br., No. 12-4069, at 32 (“[I]f [the court] finds that the Decree creates a constitutional violation, it can note that as a holding, leaving the district court on remand to address that.”).)
V. CONCLUSION
For the above reasons, we AFFIRM IN PART and REVERSE IN PART the district court’s preliminary injunction in appeal 12-4069. Specifically, the preliminary injunction’s wrong-precinct rem edy is AFFIRMED, and the deficient-affi rmation remedy is REVERSED. The district court’s judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED for further proceedings.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 12-3916/4609
No. 12-3916
NORTHEAST OHIO COALITION FOR THE HOMELESS; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199,
Plaintiffs - Appellees,

FILED
Oct 11, 2012
DEBORAH S. HUNT, Clerk

OHIO DEMOCRATIC PARTY, Intervenor Plaintiff - Appellee,

v.

JON HUSTED; STATE OF OHIO, Defendants - Appellants.

No. 12-4069

NORTHEAST OHIO COALITION FOR THE HOMELESS; SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1199,
Plaintiffs - Appellees,

v.

JON HUSTED, Defendant - Appellant,

STATE OF OHIO, Intervenor.

Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.

JUDGMENT

On Appeal from the United States District Court for the Southern District of Ohio at Columbus.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the wrong-precinct remedy is AFFIRMED and the deficient-affirmation remedy is REVERSED IN 12-4069. IT IS FURTHER ORDERED that the district court’s judgment in 12-3916 is AFFIRMED, and the case is REMANDED to the district court for further, expeditious proceedings consistent with the opinion of this court.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case: 2:12-cv-00562-ALM-TPK Doc #: 126 Filed: 01/31/14 Page: 1 of 2 PAGEID #: 6993

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

NORTHEAST OHIO COALITION FOR THE HOMELESS, et aL,

Plaintiffs

Case No. 2:06-cv-896

vs.

JON HUSTED, et al.,

Defendants.

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1, et aL,
Plaintiffs, vs.
Jon Husted, et aL, Defendants.

Case No. 2:12-cv-562

ORDER

This matter came before the Court upon the joint motion of the parties pursuant to Rule 62.1 of the Federal Rules of Civil Procedure, asking this Court to indicate its willingness to accept the limited remand from the Court of Appeals and proceed to vacate its November 13, 2012 Opinion and Order (R. 357).
Having considered the parties' motion and the entire record, the Court is of the opinion, and so finds, that if the case is remanded to it by the Court of Appeals for the Sixth Circuit, it will grant the relief requested.

Case: 2:12-cv-00562-ALM-TPK Doc #: 126 Filed: 01/31/14 Page: 2 of 2 PAGEID #: 6994 IT IS, THEREFORE, ORDERED BY THE COURT that if this case is remanded to
the District Court by the Court of Appeals, this Court will grant the parties' joint motion pursuant to Rule 62.1 of the Federal Rules of Civil Procedure and proceed to vacate its November 13, 2012 Opinion and Order (R. 357).
Entered this~ day of .T~, 2014.
2

 
 Case: 2:12-cv-00562-ALM-CMV Doc #: 156 Filed: 10/12/16 Page: 1 of 4 PAGEID #: 7726

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE NORTHEAST OHIO COALITION FOR THE HOMELESS, et al., Plaintiffs, v.
JON HUSTED, in his official capacity as Secretary of the State of Ohio, Defendant, &
STATE OF OHIO, Intervenor-Defendant.

: : : : Case No. 2:06-CV-896 : : JUDGE ALGENON L. MARBLEY : : Magistrate Judge Terence P. Kemp : : : : : : : : :

SERVICE EMPLOYEES

:

INTERNATIONAL UNION, LOCAL 1, :

et al.,

: Case No. 2:12-CV-562

:

Plaintiffs,

: JUDGE ALGENON L. MARBLEY

:

v.

: Magistrate Judge Terence P. Kemp

:

JON HUSTED, et al.,

:

:

Defendants.

:

ORDER

This matter is before the Court for resolution of pending fees litigation in The Northeast

Ohio Coalition for the Homeless, et al., v. Husted, et al., Case No. 2:06-cv-896 (“NEOCH”), and

Service Employees International Union, Local 1, et al., v. Husted et al., Case No. 2:12-cv-562

(“SEIU”).

1

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In 2012 and 2013, the parties engaged in litigation in these cases regarding several topics

including: (1) the continuing validity of the NEOCH Consent Decree; (2) Ohio’s treatment of

correct-location, wrong-precinct provisional ballots; and (3) extension of the NEOCH Consent

Page 2 of 7 Decree beyond its original 2013 expiration date. On September 29, 2014, the Court

granted with modification Plaintiffs’ motions for attorneys’ fees for some of their work on these

matters. NEOCH Doc. 426; see also NEOCH Doc. 444 (approving Plaintiffs’ bill of costs). On

appeal, the Sixth Circuit affirmed in part, vacated in part, and remanded the matter for further

consideration of select issues. See generally NEOCH v. Husted, — F.3d —, 2016 WL 4073489

(6th Cir. Aug. 1, 2016).

The parties have agreed to resolve without further litigation the remaining fees issues for

that particular work—including the proper “fees for fees” award for time spent litigating fee

liability both before this Court and on appeal. The State Defendants agree to pay fees and costs

in the following amounts:

The Chandra Law Firm:

$424,242.11

McTigue & Colombo:

$104,308.94

Altshuler Berzon:

$1,820,000.00

Porter, Wright, Morris & Arthur: $133,429.29

Advancement Project:

$4,713.57

Hunter, Carnahan:

$131,446.87

TOTAL

$2,618,140.78

The above amounts serve as a global resolution of attorneys’ fees and costs for time spent

on the 2012 and 2013 litigation, including time spent litigating the proper amount of attorneys’

fees and costs. The parties agree there will be no further attorneys’ fees and costs motions

2

Case: 2:12-cv-00562-ALM-CMV Doc #: 156 Filed: 10/12/16 Page: 3 of 4 PAGEID #: 7728
relating to litigation/activities undertaken before the present date in SEIU. The parties agree there will be no further attorneys’ fees and costs motions relating to pre-2014 litigation/activities in NEOCH. This Order does not resolve any potential fees relating to the Second Supplemental Complaint (NEOCH Doc. 453), subsequent litigation in NEOCH related to the Second Supplemental Complaint, consent-decree monitoring from 2014 forward, and any work related to Page 3 of 7 seeking a post-2016 consent-decree extension or modification. Plaintiffs agree that this Order resolves all attorneys’ fees and costs in NEOCH and SEIU that Plaintiffs have sought or could have sought for work performed before the present date, except those matters mentioned in the previous sentence.
Accordingly, the Court GRANTS Plaintiffs’ attorneys’ fees and costs in the amounts detailed above. In light of this Order, no attorneys’ fees or costs motions are presently pending in either case.
Thus, in NEOCH, this Order resolves the following pending motions (and all additional fee/cost requests arising out of those motions and the related appeals): • Motion of Plaintiffs NEOCH, CCH, and ODP for attorneys’ fees and costs related to obtaining an extension of the Consent Decree (NEOCH Doc. 388); • Plaintiffs’ Motion for attorneys’ fees and costs for work in defense of Consent Decree (NEOCH Doc. 393); • Plaintiffs’ Supplemental Fees Motion for preparing and defending attorneys’- fees motion related to work obtaining Consent-Decree extension (NEOCH Doc. 431).
In SEIU, this Order resolves the following pending motion (and all additional fee/cost requests arising out of that motion and the related appeals): • Plaintiffs’ Motion for attorney fees (SEIU Doc. 120)
The Court DENIES as MOOT Parties’ Stipulated Motions for Extension of Time to File Stipulated Judgment Entry Regarding Fees (NEOCH Doc. 793; SEIU Doc. 154).
3

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IT IS SO ORDERED. Dated: October 12, 2016

s/Algenon L. Marbley ALGENON L. MARBLEY UNITED STATES DISTRICT COURT

4

 
 Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 1 of 35
APPEAL,REMAND−COAP
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:12−cv−00562−ALM−CMV

Service Employees International Union Local 1 et al v. Jon Husted et al Assigned to: Judge Algenon L. Marbley Referred to: Magistrate Judge Chelsey M. Vascura Case in other court: USCA, 12−04069
Sixth Circuit Court of Appeals, 12−04070
Sixth Circuit Court of Appeals, 12−04079
Sixth Circuit, 12−04264
Sixth Circuit Court of Appeals, 14−04084
USCA 6th Circuit, 14−04133
USCA 6th Circuit, 15−03296
Sixth Circuit Court of Appeals, 15−03381 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 06/22/2012 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Service Employees International Union Local 1

represented by Michael John Hunter Hunter Carnahan & Shoub & Byard 3360 Tremont Road 2nd floor Columbus, OH 43221 614−442−5626 Fax: 614/442−5625 Email: mhunter@hcands.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara J Chisholm Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8264 Email: bchisholm@altshulerberzon.com PRO HAC VICE ATTORNEY TO BE NOTICED

Cathrine J Harshman Hunter Carnahan Shoub & Byard 3360 Tremont Road 2nd Floor Columbus, OH 43221 614−442−5626 Fax: 614−442−5625 Email: charshman@hcands.com ATTORNEY TO BE NOTICED

Danielle E Leonard Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: dleonard@altshulerberzon.com PRO HAC VICE

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 2 of 35

ATTORNEY TO BE NOTICED

Donita Judge Advancement Project 1220 L Street, NW Suite 850 Washington, DC 20005 202−728−9557 Fax: 202−728−9558 Email: djudge@advancementproject.org PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair Advancement Project 1220 L Street, NW Suite 850 Washington, DC 20005 202−728−9557 Fax: 202−728−9558 PRO HAC VICE ATTORNEY TO BE NOTICED

Stacey M Leyton Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: sleyton@altshulerberzon.com PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: sberzon@altber.com PRO HAC VICE ATTORNEY TO BE NOTICED

Uzoma Nkwonta Advancement Project 1220 L Street, NW Suite 850 Washington, DC 20005 202−728−9557 Fax: 202−728−9558 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union

represented by Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara J Chisholm (See above for address) PRO HAC VICE

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 3 of 35

ATTORNEY TO BE NOTICED

Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005

represented by Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) PRO HAC VICE

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 4 of 35

ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863

represented by Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ohio Organizing Collaborative

represented by

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 5 of 35

Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) TERMINATED: 01/18/2013 PRO HAC VICE

Plaintiff
United Food and Commerical Workers, Local 75

represented by Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 6 of 35

Plaintiff United Food and Commerical Workers, Local 880
Plaintiff United Food and Commerical Workers, Local 1059

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen P Berzon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Uzoma Nkwonta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael John Hunter (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Penda Hair (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen P Berzon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Uzoma Nkwonta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael John Hunter (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara J Chisholm (See above for address) PRO HAC VICE

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 7 of 35
ATTORNEY TO BE NOTICED
Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Penda Hair (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen P Berzon (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Uzoma Nkwonta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael John Hunter (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Jon Husted

represented by Richard Nicholas Coglianese Ohio Attorney General − 2 Employment Law Section 30 East Broad Street 23rd Floor Columbus, OH 43215 614−466−1803 Fax: 614−752−4677 Email: ELSReview@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven T Voigt Ohio Attorney General's Office Constitutional Offices Section 30 E. Broad St., 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: steven.voigt@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron D Epstein Ohio Attorney General's Office

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 8 of 35

Constitutional Law Section 30 E Broad Street 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 TERMINATED: 10/02/2013

Erin Elizabeth Butcher Ohio Attorney General Employment Law Section 30 East Broad Street 23rd Floor Columbus, OH 43215 6147282237 Fax: 6147524677 Email: ELSReview@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Defendant Timothy M. Burke

represented by Colleen Marie McCafferty Hamilton County Prosecuting Attorney's Office 230 East Ninth Street, Suite 4000 Cincinnati, OH 45202 513 946 3133 Fax: 513 946 3018 Email: colleen.mccafferty@hcpros.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Todd Stevenson Hamilton County Prosecutor Civil Unit 230 E Ninth Street Suite 4000 Cincinnati, OH 45202−2151 513−946−3120 Email: dave.stevenson@hcpros.org ATTORNEY TO BE NOTICED

Defendant Jeff Hastings

represented by David Gregory Lambert Prosecuting Attorney's Office The Justice Center 1200 Ontario Street 8th Floor Cleveland, OH 44113 216−443−5869 Fax: 216−443−7602 Email: dlambert@cuyahogacounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Douglas Preisse

represented by Nick A Soulas , Jr Franklin County Prosecutor's Office 373 S High Street 13th Floor Columbus, OH 43215 614−462−3520 Fax: 614−462−6012 Email: nasoulas@franklincountyohio.gov

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 9 of 35

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
International Chemical Workers Union, a Council of Unitd Food and Commerical Workers

represented by Michael John Hunter (See above for address) ATTORNEY TO BE NOTICED

Defendant OHIO, State of

represented by Richard Nicholas Coglianese (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven T Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron D Epstein (See above for address) TERMINATED: 10/02/2013

Zachery Paul Keller Ohio Attorney General Constitutional Offices 30 East Broad St., 16th Floor Columbus, OH 43215 614−466−1853 Fax: 614−728−7592 Email: zachery.keller@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

V. Intervenor Defendant Dale Fellows
Intervenor Defendant Diane Carnes
Intervenor Defendant Chris Gibbs
Amicus

represented by Kevin Shook Frost Brown Todd LLC One Columbus 10 W Broad Street Suite 1000 Columbus, OH 43215−3467 614−464−1211 Fax: 614−464−1737 Email: kshook@fbtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin Shook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin Shook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 10 of 35

Cuyahoga County, Ohio

represented by Joseph W Boatwright , IV Cuyahoga County Cuyahoga County Law Department 1219 Ontario Street, 4th Floor Cleveland, OH 44113 (216) 443−7128 Fax: (216) 698−2744 Email: jboatwright@cuyahogacounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Roberta Van Atta TERMINATED: 08/27/2012
Intervenor Emilie Illson TERMINATED: 08/27/2012
Intervenor Thomas Kelly TERMINATED: 08/27/2012
Intervenor Charles Pennell TERMINATED: 08/27/2012
Counter Claimant Jon Husted

represented by Patrick T Lewis Baker & Hostetler LLP Key Tower 127 Public Square, Suite 2000 Cleveland, OH 44114 216−621−0200 Fax: 216−696−0740 Email: plewis@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick T Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick T Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Patrick T Lewis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron D Epstein (See above for address) TERMINATED: 10/02/2013
Erin Elizabeth Butcher (See above for address) ATTORNEY TO BE NOTICED

V.
Counter Defendant
International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005

represented by Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 11 of 35

Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant
International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863

represented by Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 12 of 35

Counter Defendant Ohio Organizing Collaborative
Counter Defendant Service Employees International Union Local 1

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED
Uzoma Nkwonta (See above for address) ATTORNEY TO BE NOTICED
represented by Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED
Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Penda Hair (See above for address) ATTORNEY TO BE NOTICED
Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED
Uzoma Nkwonta (See above for address) TERMINATED: 01/18/2013
represented by Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara J Chisholm (See above for address)

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 13 of 35

PRO HAC VICE ATTORNEY TO BE NOTICED

Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant
United Food and Commerical Workers, Local 1059

represented by Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED

Uzoma Nkwonta

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 14 of 35

(See above for address) ATTORNEY TO BE NOTICED

Michael John Hunter (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant
United Food and Commerical Workers, Local 75

represented by Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) ATTORNEY TO BE NOTICED

Michael John Hunter (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant
United Food and Commerical Workers, Local 880

represented by Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 15 of 35

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) ATTORNEY TO BE NOTICED

Michael John Hunter (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union

represented by Michael John Hunter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara J Chisholm (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cathrine J Harshman (See above for address) ATTORNEY TO BE NOTICED

Danielle E Leonard (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donita Judge (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Penda Hair (See above for address) ATTORNEY TO BE NOTICED

Stacey M Leyton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen P Berzon (See above for address) ATTORNEY TO BE NOTICED

Uzoma Nkwonta (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/22/2012

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Timothy Burke, JON HUSTED, Jeff Hastings, Douglas Preisse (Filing fee $ 350 paid), filed by International

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06/22/2012 06/22/2012 06/22/2012 06/22/2012 06/22/2012 06/22/2012

Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, United Steelworkers of America District 1, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Service Employees International Union Local 1, Ohio Organizing Collaborative. [ELECTION ISSUE(S) CITED] (Attachments: # 1 Civil Cover Sheet) (Hunter, Michael) (Entered: 06/22/2012)
2 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union re 1 Complaint,, of Related Cases (Hunter, Michael) (Entered: 06/22/2012)
3 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union re 1 Complaint,, of Service upon the Ohio Attorney General (Hunter, Michael) (Entered: 06/22/2012)
4 MOTION for Preliminary Injunction and Memorandum of Law in Support by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Erin Kramer, # 3 Declaration of Karen Gasper, # 4 Declaration of Lance Wyatt, # 5 Declaration of Rick Lawwill, # 6 Declaration of Ronnie Wardup, # 7 Declaration of Steven Frammartino) (Hunter, Michael) (Entered: 06/22/2012)
5 MOTION for Leave to Appear Pro Hac Vice of Stephen P. Berzon, Stacey M. Leyton, Barbara J. Chisholm, and Danielle Leonard (Filing fee $ 800) by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Certificate of Good Standing Berzon, # 2 Certificate of Good Standing Leyton, # 3 Certificate of Good Standing Chisholm, # 4 Certificate of Good Standing Leonard) (Hunter, Michael) (Entered: 06/22/2012)
6 MOTION for Leave to Appear Pro Hac Vice of Penda Hair, Donita Judge, and Uzoma Nkwonta (Filing fee $ 600) by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Certificate of Good Standing Hair, # 2 Certificate of Good Standing Judge, # 3 Certificate of Good Standing Nkwota) (Hunter, Michael) (Entered: 06/22/2012)
7 AFFIDAVIT re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support /Declaration of Caroline Gentry by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 17 of 35

06/22/2012 06/22/2012 06/22/2012 06/22/2012 06/22/2012

W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP) (Hunter, Michael) (Entered: 06/22/2012)
8 AFFIDAVIT re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support /Declaration of Natalya DeRobertis−Theye by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, PART 1, # 3 Exhibit B, PART 2, # 4 Exhibit B, PART 3, # 5 Exhibit B, PART 4, # 6 Exhibit B, PART 5, # 7 Exhibit B, PART 6) (Hunter, Michael) (Entered: 06/22/2012)
9 AFFIDAVIT re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support /Declaration of David C. Kimball by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Hunter, Michael) (Entered: 06/22/2012)
10 AFFIDAVIT re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support /Declaration of Emma Kornetsky by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A) (Hunter, Michael) (Entered: 06/22/2012)
11 AFFIDAVIT re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support /Declaration of Don McTigue by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Hunter, Michael) (Entered: 06/22/2012)
12 AFFIDAVIT re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support /Declaration of Daniel Miller (Part 1) by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR, # 45 Exhibit SS, # 46 Exhibit TT, # 47 Exhibit UU, # 48 Exhibit VV, # 49 Exhibit WW (PART1), # 50 Exhibit WW (PART2), # 51 Exhibit XX, # 52 Exhibit YY, # 53 Exhibit ZZ) (Hunter, Michael) (Entered: 06/22/2012)

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06/22/2012
06/26/2012 06/26/2012 06/26/2012 06/26/2012 06/26/2012 06/26/2012 06/26/2012 06/27/2012

13 AFFIDAVIT re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support /Declaration of Daniel Miller (Part 2) by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit AAA, # 2 Exhibit BBB, # 3 Exhibit CCC, # 4 Exhibit DDD, # 5 Exhibit EEE, # 6 Exhibit FFF, # 7 Exhibit GGG, # 8 Exhibit HHH, # 9 Exhibit III, # 10 Exhibit JJJ, # 11 Exhibit KKK, # 12 Exhibit LLL, # 13 Exhibit MMM, # 14 Exhibit NNN, # 15 Exhibit OOO, # 16 Exhibit PPP, # 17 Exhibit QQQ, # 18 Exhibit RRR, # 19 Exhibit SSS, # 20 Exhibit TTT, # 21 Exhibit UUU, # 22 Exhibit VVV, # 23 Exhibit WWW, # 24 Exhibit XXX, # 25 Exhibit YYY (PART 1), # 26 Exhibit YYY (PART 2), # 27 Exhibit YYY (PART 3), # 28 Exhibit YYY (PART 4), # 29 Exhibit YYY (PART 5), # 30 Exhibit YYY (PART 6)) (Hunter, Michael) (Entered: 06/22/2012)
14 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union re 2 Notice (Other),, of Related Cases (Attachments: # 1 Exhibit A− Amended Notice of Related Cases NEOCH) (Hunter, Michael) (Entered: 06/26/2012)
15 RELATED CASE MEMORANDUM ORDER REGARDING 2:06−CV−896 and 2:12−CV−562: The Judges agree that the cases ARE related. Case 2:12−cv−562 is reassigned to Judge Algenon L. Marbley and Magistrate Judge Terence P Kemp for all further proceedings. Signed by Judge Algenon L. Marbley and Judge George C. Smith on 6/26/2012. (pes1) (Entered: 06/26/2012)
16 ORDER RELATING CASES AND FOR APPEARANCE OF NEW COUNSEL. Counsel for all parties in this action are hereby ORDERED to appear at the scheduled hearing in NEOCH v. Husted, 06−cv−896, tomorrow, Wednesday, June 27, at 2:00 p.m., 85 Marconi Blvd. Columbus, OH 43215, Chambers of Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 6/26/2012. (cw). (Entered: 06/26/2012)
17 RELATED CASE MEMORANDUM ORDER: The Judges agree that this case and case number 1:10−CV−820 are NOT related. Signed by Judge Algenon L. Marbley and Judge Susan J. Dlott on 6/26/2012. (pes1) (Entered: 06/26/2012)
18 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union re 16 Order, Service upon Defendants Burke, Hastings, and Preisse (Hunter, Michael) (Entered: 06/26/2012)
Initial Filing fee ($ 350.00) and PHV filing fees for Stephen P. Berzon, Stacey M. Leyton, Barbara J. Chisholm, Danielle Leonard, Penda Hair, Donita Judge, and Uzoma Nkwonta ($ 1400.00) : $ 1,750.00, receipt number COL22896 (pes1) (Entered: 06/26/2012)
19 AMENDED DOCUMENT by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Amendment to 1 Complaint,, Civil Coversheet. (Hunter, Michael) (Entered: 06/26/2012)
20 NOTICE of Appearance by Colleen Marie McCafferty for Defendant Timothy M. Burke (McCafferty, Colleen) (Entered: 06/27/2012)

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06/27/2012 06/27/2012 06/28/2012 06/29/2012
06/29/2012
07/03/2012 07/06/2012
07/06/2012 07/09/2012
07/13/2012 07/13/2012 07/13/2012

21 NOTICE of Appearance by David Todd Stevenson for Defendant Timothy M. Burke (Stevenson, David) (Entered: 06/27/2012)
22 NOTICE of Appearance by Nick A Soulas, Jr for Defendant Douglas Preisse (Soulas, Nick) (Entered: 06/27/2012)
23 NOTICE of Appearance by Aaron D Epstein for Defendant Jon Husted (Epstein, Aaron) (Entered: 06/28/2012)
24 AFFIDAVIT re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support /Declaration of Jusztina Traum by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Certificate of Service) (Hunter, Michael) (Entered: 06/29/2012)
25 MOTION to Certify Class /Memorandum in Support by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Responses due by 7/23/2012 (Attachments: # 1 Text of Proposed Order) (Hunter, Michael) (Entered: 06/29/2012)
26 NOTICE of Appearance by David Gregory Lambert for Defendant Jeff Hastings (Lambert, David) (Entered: 07/03/2012)
27 RESPONSE in Opposition re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support filed by Defendant Timothy M. Burke. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (Stevenson, David) (Entered: 07/06/2012)
28 RESPONSE in Opposition re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support Defendant Secretary of State Jon Husted's Memorandum Contra Plaintiffs' Motion for Preliminary Injunction filed by Defendant Jon Husted. (Epstein, Aaron) (Entered: 07/06/2012)
29 JOINT SCHEDULING ORDER Setting Hearing on Motions 288 MOTION to Modify April 19, 2010 Consent Decree to Prevent Constitutional Violations in Case No. 06−CV−896 and 4 Motion for Preliminary Injunction & 25 Motion to Certify Class in this Case No. 12−CV−562: Motions Hearing set for 7/30/2012 09:00 AM in Courtroom 1 − Columbus before Judge Algenon L. Marbley.. Signed by Judge Algenon L. Marbley on 7/9/2012. (cw) (Entered: 07/09/2012)
30 RESPONSE to Motion re 25 MOTION to Certify Class /Memorandum in Support Memorandum of Defendant Secretary of State Jon Husted in Response to Plaintiffs' Motion for Defendant Class Certification filed by Defendant Jon Husted. (Epstein, Aaron) (Entered: 07/13/2012)
31 RESPONSE in Opposition re 25 MOTION to Certify Class /Memorandum in Support filed by Defendant Jeff Hastings. (Lambert, David) (Entered: 07/13/2012)
32 AMENDED COMPLAINT against Timothy M. Burke, Jeff Hastings, Jon Husted, Douglas Preisse, filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, International Union, United Automobile, Aerospace and

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 20 of 35

07/13/2012
07/13/2012 07/13/2012 07/13/2012 07/13/2012 07/13/2012

Agricultural Implement Workers of America, Local 863, Service Employees International Union Local 1, Ohio Organizing Collaborative, United Food and Commerical Workers, Local 75, International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, United Food and Commerical Workers, Local 880, United Food and Commerical Workers, Local 1059. (Hunter, Michael) (Entered: 07/13/2012)
33 REPLY to Response to Motion re 4 MOTION for Preliminary Injunction and Memorandum of Law in Support filed by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Text of Proposed Order) (Hunter, Michael) (Entered: 07/13/2012)
34 AFFIDAVIT re 33 Reply to Response to Motion,,, Declaration of Pete DiBiase by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Hunter, Michael) (Entered: 07/13/2012)
35 AFFIDAVIT re 33 Reply to Response to Motion,,, Declaration of William Dudley by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Hunter, Michael) (Entered: 07/13/2012)
36 NOTICE of Appearance by Kevin Shook for Intervenor Defendants Dale Fellows, Diane Carnes, Chris Gibbs (Shook, Kevin) (Entered: 07/13/2012)
37 AFFIDAVIT re 33 Reply to Response to Motion,,, Declaration of Robert Grauvogl by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Hunter, Michael) (Entered: 07/13/2012)
38 AFFIDAVIT re 33 Reply to Response to Motion,,, Declaration of Cathrine J. Harshman by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880,

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 21 of 35

07/13/2012 07/13/2012 07/13/2012
07/13/2012 07/13/2012 07/13/2012
07/13/2012

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR, # 45 Exhibit SS, # 46 Exhibit TT, # 47 Exhibit UU, # 48 Exhibit VV) (Hunter, Michael) (Entered: 07/13/2012)
39 RESPONSE in Opposition re 25 MOTION to Certify Class /Memorandum in Support filed by Defendant Douglas Preisse. (Soulas, Nick) (Entered: 07/13/2012)
40 AFFIDAVIT of Chris Gibbs by Intervenor Defendants Diane Carnes, Dale Fellows, Chris Gibbs. (Shook, Kevin) (Entered: 07/13/2012)
41 AFFIDAVIT re 33 Reply to Response to Motion,,, Supplemental Declaration of Daniel B. Miller by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN, # 41 Exhibit OO, # 42 Exhibit PP, # 43 Exhibit QQ, # 44 Exhibit RR, # 45 Exhibit SS PART 1, # 46 Exhibit SS PART 2, # 47 Exhibit SS PART 3, # 48 Exhibit TT) (Hunter, Michael) (Entered: 07/13/2012)
42 AFFIDAVIT of Diane Carnes by Intervenor Defendants Diane Carnes, Dale Fellows, Chris Gibbs. (Shook, Kevin) (Entered: 07/13/2012)
43 AFFIDAVIT of Dale Fellows by Intervenor Defendants Diane Carnes, Dale Fellows, Chris Gibbs. (Shook, Kevin) (Entered: 07/13/2012)
44 AFFIDAVIT re 33 Reply to Response to Motion,,, Declaration of Nancy Spencer by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A) (Hunter, Michael) (Entered: 07/13/2012)
45 AFFIDAVIT re 33 Reply to Response to Motion,,, Declaration of Natalya DeRobertis−Theye by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 22 of 35

07/13/2012 07/13/2012 07/13/2012
07/13/2012 07/13/2012 07/16/2012 07/20/2012 07/20/2012
07/20/2012
07/20/2012 07/20/2012

Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A) (Hunter, Michael) (Entered: 07/13/2012)
46 MOTION to Intervene by Intervenor Defendants Diane Carnes, Dale Fellows, Chris Gibbs. (Attachments: # 1 Exhibit Memorandum in Opposition to Motion to Certify Class, # 2 Exhibit Motion to Dismiss or in the alternative Motion for Summary Judgment, # 3 Text of Proposed Order) (Shook, Kevin) (Entered: 07/13/2012)
47 RESPONSE in Opposition re 25 MOTION to Certify Class /Memorandum in Support filed by Defendant Timothy M. Burke. (Stevenson, David) (Entered: 07/13/2012)
48 AFFIDAVIT re 33 Reply to Response to Motion,,, Declaration of Randy Quickel by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Hunter, Michael) (Entered: 07/13/2012)
49 NOTICE by Intervenor Defendants Diane Carnes, Dale Fellows, Chris Gibbs re 43 Affidavit of Filing Signed Affidavit (Attachments: # 1 Affidavit of Dale Fellows) (Shook, Kevin) (Entered: 07/13/2012)
50 RESPONSE in Opposition re 25 MOTION to Certify Class /Memorandum in Support filed by Defendant Jon Husted. (sr1) (Entered: 07/16/2012)
Notice of Correction: Docket 30 (Response) filed by Aaron Epstien was deleted by Clerk's office and refiled as current docket 50 (Response In Opposition To Motion) in order to correct ECF filing event. (sr1) (Entered: 07/16/2012)
51 ORDER granting 5 & 6 Motions for Leave for Stephen P Berzon, Stacey M Leyton, Barbara J Chisholm, Danielle Leonard, Penda Hair, Donita Judge & Uzoma Nkwonta to Appear Pro Hac Vice on behalf of plaintiffs. Signed by Magistrate Judge Terence P Kemp on 7/20/2012. (kk2) (Entered: 07/20/2012)
52 NOTICE by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union re 33 Reply to Response to Motion,,, of Filing of Supplemental Declarations (Hunter, Michael) (Entered: 07/20/2012)
53 AFFIDAVIT re 52 Notice (Other),,, /Second Supplemental Declaration of Daniel Miller by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Hunter, Michael) (Entered: 07/20/2012)
54 NOTICE of Appearance by Erin Butcher−Lyden for Defendant Jon Husted (Butcher−Lyden, Erin) (Entered: 07/20/2012)
55 AFFIDAVIT re 52 Notice (Other),,, /Supplemental Declaration of Cathrine Harshman by Defendant International Chemical Workers Union, a Council of Unitd Food and

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 23 of 35

07/20/2012
07/20/2012
07/20/2012
07/23/2012 07/23/2012 07/23/2012 07/23/2012

Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (Hunter, Michael) (Entered: 07/20/2012)
56 NOTICE by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union of Filing Revised Order and Request for Scheduling Order (Attachments: # 1 Text of Proposed Order) (Hunter, Michael) (Entered: 07/20/2012)
57 MOTION for Leave to File Amended Complaint by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Proposed Amended Complaint, # 2 Text of Proposed Order) (Hunter, Michael) (Entered: 07/20/2012)
58 REPLY to Response to Motion re 25 MOTION to Certify Class /Memorandum in Support filed by Defendant International Chemical Workers Union, a Council of Unitd Food and Commerical Workers, Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Hunter, Michael) (Entered: 07/20/2012)
59 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union REGARDING WITNESSES AT JULY 30 AND 31, 2012 HEARING (Leonard, Danielle) (Entered: 07/23/2012)
60 RESPONSE to Motion re 57 MOTION for Leave to File Amended Complaint filed by Defendant Timothy M. Burke. (Stevenson, David) (Entered: 07/23/2012)
61 RESPONSE to Motion re 57 MOTION for Leave to File Amended Complaint filed by Defendant Jeff Hastings. (Lambert, David) (Entered: 07/23/2012)
62 ORDER granting 57 Motion for Leave to File. Signed by Judge Algenon L. Marbley on 7/23/2012. (cw) (Entered: 07/23/2012)

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 24 of 35

07/24/2012
07/24/2012
07/27/2012
07/30/2012 08/07/2012 08/27/2012 09/04/2012 09/06/2012

63 AMENDED COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTIVE RELIEF against Jon Husted, filed by United Food and Commerical Workers, Local 1059, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Service Employees International Union Local 1, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative. (Leonard, Danielle) (Entered: 07/24/2012)
64 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union re 25 MOTION to Certify Class /Memorandum in Support WITHDRAWAL OF MOTION (Leonard, Danielle) (Entered: 07/24/2012)
65 MOTION to Intervene of Bipartisan Group of Voters by Intervenor Parties Roberta Van Atta, Emilie Illson, Thomas Kelly, Charles Pennell. (Attachments: # 1 Exhibit A − Declaration of Roberta Van Atta, # 2 Exhibit B − Declaration of Emilie Illson, # 3 Exhibit C − Declaration of Thomas Kelly, # 4 Exhibit D − Declaration of Charles Pennell, # 5 Exhibit E − Motion of Bipartisan Group of Voters to Dismiss, or in the Alternative, for Summary Judgment, # 6 Exhibit F − Memorandum in Support of Motion to Dismiss or, in the Alternative, for Summary Judgment) (Lewis, Patrick) (Entered: 07/27/2012)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Motion Hearing held on 7/30/2012; The Court will take this matter under advisement and will issue an opinion w/n 2 to 3 weeks (Court Reporter S. Evans.) (bc1) (Entered: 08/01/2012)
66 Defendant Secretary of State Jon Husted's ANSWER to 63 Amended Complaint,, with, COUNTERCLAIM against All Plaintiffs filed by Jon Husted. (Epstein, Aaron) (Entered: 08/07/2012)
67 ORDER denying 65 Motion to Intervene; granting 4 Motion for Preliminary Injunction. Signed by Judge Algenon L. Marbley on 8/27/2012. (cw) (Entered: 08/27/2012)
68 MOTION to Intervene by Defendant OHIO, State of. (Attachments: # 1 Exhibit Newspaper article, # 2 Exhibit Intervenor Answer to Seconded Amended Complaint) (Coglianese, Richard) (Entered: 09/04/2012)
69 Transcript of Oral Argument Proceedings held on 7/30/2012, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

09/06/2012

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 9/27/2012. Redacted Transcript Deadline set for 10/9/2012. Release of Transcript Restriction set for 12/5/2012. (er1) (Entered: 09/06/2012)
70 NOTICE OF APPEAL as to 67 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by Defendant Jon Husted. Filing fee $ 455. (Epstein, Aaron) (Entered: 09/06/2012)

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 25 of 35

09/06/2012 09/07/2012 09/07/2012 09/07/2012 09/07/2012 09/10/2012 09/11/2012 09/11/2012
09/11/2012
09/11/2012 09/11/2012
09/11/2012
09/12/2012
09/14/2012 09/18/2012

71 NOTICE OF APPEAL as to 67 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by Defendant OHIO, State of. Filing fee $ 455. (Coglianese, Richard) (Entered: 09/06/2012)
USCA Case Number 12−4070 for 71 Notice of Appeal filed by State of Ohio. USCA case manager is Laura A. Jones. (pes1) (Entered: 09/07/2012)
USCA Case Number 12−4069 − Laura A. Jones, Case Manager for 70 Notice of Appeal filed by Jon Husted. (sr1) (Entered: 09/07/2012)
USCA Appeal Fees received $ 455 receipt number 200COL023871 re 70 Notice of Appeal filed by Jon Husted. (er1) (Entered: 09/07/2012)
USCA Appeal Fees received $ 455 receipt number 200COL023872 re 71 Notice of Appeal filed by OHIO, State of. (er1) (Entered: 09/07/2012)
72 NOTICE OF APPEAL as to 67 Order on Motion to Intervene, Order on Motion for Preliminary Injunction by Intervenor Parties Emilie Illson, Thomas Kelly, Roberta Van Atta. Filing fee $ 455. (Lewis, Patrick) (Entered: 09/10/2012)
USCA Case Number 12−4079 for 72 Notice of Appeal filed by Roberta Van Atta, Thomas Kelly, Emilie Illson. (pes1) (Entered: 09/11/2012)
73 ORDER of USCA as to 70 Notice of Appeal filed by Jon Husted, 71 Notice of Appeal filed by OHIO, State of and 72 Notice of Appeal filed by Roberta Van Atta, Thomas Kelly, Emilie Illson. It is ORDERED that the causes be and they hereby are consolidated for the purposes of briefing and submission. (pes1) (Entered: 09/11/2012)
74 ORDER re 68 MOTION to Intervene filed by OHIO, State of. The Court ORDERS that any memorandum in opposition to the General Assemblys Motion to Intervene must be served on or before 9/18/12. The Court also ORDERS that any reply to a memorandum in opposition to the General Assemblys Motion to Intervene must be served on or before 9/25/2012.. Signed by Judge Algenon L. Marbley on 9/11/2012. (cw) (Entered: 09/11/2012)
USCA Appeal Fees received $ 455 receipt number 23900 re 72 Notice of Appeal filed by Roberta Van Atta, Thomas Kelly, Emilie Illson. (rew) (Entered: 09/11/2012)
75 NOTICE by Defendant Jon Husted re 67 Order on Motion to Intervene, Order on Motion for Preliminary Injunction Notice of Issuance of Directive 2012−44 (Attachments: # 1 Exhibit Directive 2012−44, # 2 Exhibit Provisional Ballot Precinct Notification Form 12−D) (Epstein, Aaron) (Entered: 09/11/2012)
76 NUNC PRO TUNC ORDER. The Court ORDERS that any memorandum in opposition to the State of Ohios Motion to Intervene must be served on or before 9/18/2012. The Court also ORDERS that any reply to a memorandum in opposition to the State of Ohios Motion to Intervene must be served on or before 9/25/2012. Signed by Judge Algenon L. Marbley on 9/11/2012. (cw) (Entered: 09/11/2012)
77 NOTICE by Defendant Jon Husted re 67 Order on Motion to Intervene, Order on Motion for Preliminary Injunction Amended Notice of Issuance of Directive 2012−44 (Attachments: # 1 Exhibit Directive 2012−44, # 2 Exhibit Provisional Ballot Precinct Verification Form 12−D) (Epstein, Aaron) (Entered: 09/12/2012)
78 TRANSCRIPT REQUEST by Intervenor Parties Emilie Illson, Thomas Kelly, Roberta Van Atta for proceedings held on 07−30−2012 before Judge Marbley, (Lewis, Patrick) (Entered: 09/14/2012)
79 RESPONSE in Opposition re 68 MOTION to Intervene Plaintiffs' Statement of Non−Opposition to State of Ohio's Motion to Intervene filed by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Leonard, Danielle) (Entered: 09/18/2012)

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 26 of 35

09/21/2012 10/02/2012 10/12/2012 10/12/2012
10/17/2012
10/18/2012 10/19/2012 10/22/2012 10/23/2012 10/24/2012

80 ORDER granting 68 Motion to Intervene. The State of Ohio is permitted to intervene as Defendant in this action. Signed by Judge Algenon L. Marbley on 9/21/2012. (pes1) (Entered: 09/21/2012)
81 ORDER of USCA as to 71 Notice of Appeal. Upon consideration of the appellees' motion to dismiss this appeal, It is ORDERED that the motion be, and it hereby is, GRANTED. (sr1) (Entered: 10/02/2012)
82 ORDER of USCA as to 70 Notice of Appeal filed by Jon Husted. It is ORDERED that the wrong−precinct remedy is AFFIRMED and the deficient−affirmation remedy is REVERSED in 12−4069. IT IS FURTHER ORDERED that the district court's judgment in 12−3916 is AFFIRMED, and the case is REMANDED to the district court for further, expeditious proceedings consistent with the opinion of this court. (sr) (Entered: 10/12/2012)
83 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union SEIU LOCAL 1 PLAINTIFFS AND NEOCH PLAINTIFFS REQUEST FOR STATUS CONFERENCE ON MONDAY, OCTOBER 15, 2012 (Leonard, Danielle) (Entered: 10/12/2012)
84 MOTION for Preliminary Injunction With Respect to Wrong−Location Provisional Ballots; Memorandum of Law in Support by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Text of Proposed Order) (Leonard, Danielle) (Entered: 10/17/2012)
85 ORDER Setting Hearing on Motion 84 MOTION for Preliminary Injunction: Motion Hearing set for 10/29/2012 10:00 AM before Judge Algenon L. Marbley. Memorandum in opposition to Motion for Preliminary Injunction due by 10/24/2012; Plaintiffs' Motion requesting modification of the consent decree, if any, due by 10/19/2012; Responses to that motion due by 10/24/2012. Signed by Judge Algenon L. Marbley on 10/18/2012. (pes1) (Entered: 10/18/2012)
86 ORDER FOR EXPEDITED BRIEFING. VACATING re 85 Order Setting Hearing on Motion. Memorandum in opposition or cross motions to Plaintiff's Renewed Motion for Preliminary Injunction (Dkt. 84 filed in 2:12−cv−562) due by 10/22/2012. Oral argument reset for 10/24/2012 at 10:00 a.m. in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 10/19/2012. (cw) (Entered: 10/19/2012)
87 RESPONSE in Opposition re 84 MOTION for Preliminary Injunction With Respect to Wrong−Location Provisional Ballots; Memorandum of Law in Support Defendants' Memorandum Contra Plaintiffs' Renewed Motion for Preliminary Injunction filed by Defendant OHIO, State of. (Coglianese, Richard) (Entered: 10/22/2012)
88 MOTION for Leave to File Amicus Brief of the County of Cuyahoga, Ohio Supporting Plaintiffs' Renewed Motion for Preliminary Injunction With Respect to Wrong−Location Provisional Ballots by Amicus Cuyahoga County, Ohio. (Attachments: # 1 Amicus Brief) (Boatwright, Joseph) (Entered: 10/23/2012)
Minute Entry for proceedings held before Judge Algenon L. Marbley: Motion Hearing held on 10/24/2012 re 88 MOTION for Leave to File Amicus Brief of the County of Cuyahoga, Ohio Supporting Plaintiffs' Renewed Motion for Preliminary Injunction With Respect to Wrong−Location Provisional Ballots filed by Cuyahoga County, Ohio.The Court listened to argument from both sides. At this time the Court will take this matter under advisement and will issue an opinion w/n 24 to 48 hours (Court

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 27 of 35

10/26/2012
10/26/2012 10/26/2012 10/26/2012 10/26/2012
10/29/2012 11/01/2012 11/01/2012 11/01/2012 11/02/2012

Reporter S. Evans.) (bc1) (Entered: 10/24/2012)
89 Transcript of Oral Argument Proceedings held on 10/24/2012, before Judge Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 11/16/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/24/2013. (pes1) (Entered: 10/26/2012)
90 ORDER granting 84 Motion for Preliminary Injunction. Signed by Judge Algenon L. Marbley on 10/26/2012. (cw) (Entered: 10/26/2012)
91 NOTICE OF APPEAL as to 90 Order on Motion for Preliminary Injunction by Defendants Jon Husted, OHIO, State of. Filing fee $ 455. (Coglianese, Richard) (Entered: 10/26/2012)
USCA Case Number 12−4264 for 91 Notice of Appeal filed by OHIO, State of, Jon Husted. Case Manager − Laura Jones. (jcw1) (Entered: 10/26/2012)
92 ORDER re 90 Order on Motion for Preliminary Injunction, 84 MOTION for Preliminary Injunction With Respect to Wrong−Location Provisional Ballots; Memorandum of Law in Support filed by United Food and Commercial Workers, Local 75, Ohio Organizing Collaborative, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, Service Employees International Union Local 1, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, United Food and Commercial Workers, Local 1059, United Food and Commercial Workers, Local 880. Signed by Judge Algenon L. Marbley on 10/26/2012. (cw) (Entered: 10/26/2012)
USCA Appeal Fees received re 91 Notice of Appeal filed by OHIO, State of & Jon Husted: $ 455.00, receipt number COL024552 (kk2) (Entered: 10/29/2012)
93 ORDER of USCA as to 91 Notice of Appeal filed by OHIO, State of, Jon Husted − Upon consideration of the motion to file an amicus brief, filed by Cuyahoga County, Ohio, It is ORDERED that the motion be, and it hereby is, GRANTED. (jcw1) (Entered: 11/01/2012)
94 ORDER of USCA as to 91 Notice of Appeal filed by OHIO, State of, Jon Husted − Upon consideration of Appellees motion for leave to file an oversize response to Appellants emergency motion to stay injunction pending appeal, It is ORDERED that the motion be, and it hereby is, GRANTED. (jcw1) (Entered: 11/01/2012)
95 ORDER of USCA as to 91 Notice of Appeal filed by OHIO, State of, Jon Husted − We GRANT Ohio and the Secretary's emergency motion to stay the district court's October 26, 2012 order. (jcw1) (Entered: 11/01/2012)
96 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union SEIU LOCAL 1 PLAINTIFFS AND NEOCH PLAINTIFFS JOINT NOTICE RE: SECRETARY OF STATE DIRECTIVE 2012−54

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 28 of 35

11/05/2012
11/05/2012
11/06/2012 11/06/2012 11/08/2012

(Attachments: # 1 Exhibit A−Directive 2012−54) (Leonard, Danielle) (Entered: 11/02/2012)
97 MOTION for Preliminary Injunction IN SEIU LOCAL 1 v. HUSTED; NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order) (Chisholm, Barbara) (Entered: 11/05/2012)
98 ORDER FOR EXPEDITED BRIEFING re 97 MOTION for Preliminary Injunction IN SEIU LOCAL 1 v. HUSTED; NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE filed by United Food and Commercial Workers, Local 75, Ohio Organizing Collaborative, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, Service Employees International Union Local 1, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, United Food and Commercial Workers, Local 1059, United Food and Commercial Workers, Local 880. Signed by Judge Algenon L. Marbley on 11/5/2012. (cw) (Entered: 11/05/2012)
99 MANDATE of USCA as to 70 Notice of Appeal: It is ORDERED that the wrong−precinct remedy is AFFIRMED and the deficient−affirmation remedy is REVERSED in 12−4069. IT IS FURTHER ORDERED that the district court's judgment in 12−3916 is AFFIRMED, and the case is REMANDED to the district court for further, expeditious proceedings consistent with the opinion of this court. No costs taxed. (er1) (Entered: 11/06/2012)
100 RESPONSE in Opposition re 97 MOTION for Preliminary Injunction IN SEIU LOCAL 1 v. HUSTED; NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE filed by Defendants Jon Husted, OHIO, State of. (Attachments: # 1 Affidavit Declaration of Matthew Damschroder) (Epstein, Aaron) (Entered: 11/06/2012)
101 Transcript of Motion for Preliminary Injunction Proceedings held on 11/7/2012, before Judge Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

11/08/2012

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 11/29/2012. Redacted Transcript Deadline set for 12/10/2012. Release of Transcript Restriction set for 2/6/2013. (pes1) (Entered: 11/08/2012)
102 NOTICE OF WITHDRAWAL OF DOCUMENT by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing,

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 29 of 35

11/13/2012
01/18/2013 02/21/2013 04/01/2013 07/01/2013
07/01/2013
07/03/2013 07/03/2013 07/05/2013

Energy, Allied Industrial and Service Workers International Union re 97 MOTION for Preliminary Injunction IN SEIU LOCAL 1 v. HUSTED; NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE Plaintiffs' Notice of Withdrawal of Preliminary Injunction Motion (Dkt. 97) (Chisholm, Barbara) (Entered: 11/08/2012)
103 OPINION AND ORDER re 97 MOTION for Preliminary Injunction IN SEIU LOCAL 1 v. HUSTED; NEOCH PLAINTIFFS EMERGENCY MOTION FOR CLARIFICATION AND FOR MODIFICATION OF CONSENT DECREE filed by United Food and Commercial Workers, Local 75, Ohio Organizing Collaborative, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, Service Employees International Union Local 1, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, United Food and Commercial Workers, Local 1059, United Food and Commercial Workers, Local 880. Signed by Judge Algenon L. Marbley on 11/13/2012. (cw) (cw). (Entered: 11/13/2012)
104 NOTICE by Plaintiff Ohio Organizing Collaborative of Withdrawal of Co−Counsel Uzoma Nkwonta (Hunter, Michael) (Entered: 01/18/2013)
105 ORDER of USCA as to 72 Notice of Appeal filed by Roberta Van Atta, Thomas Kelly & Emilie Illson: We AFFIRM the district court's denial of permissive intervention. (kk2) (Entered: 02/21/2013)
106 MANDATE of USCA as to 72 Notice of Appeal filed by Roberta Van Atta, Thomas Kelly, Emilie Illson. Pursuant to the court's disposition that was filed 02/20/2013 the mandate for this case hereby issues today. (sr1) (Entered: 04/01/2013)
107 MOTION for Partial Summary Judgment and for Entry of a Rule 54(B) Partial Final Judgment and Permanent Injunction by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Responses due by 7/25/2013 (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Text of Proposed Order) (Leonard, Danielle) (Entered: 07/01/2013)
108 MOTION to Expedite Briefing Schedule and Hearing and Request to Reset the Time for Hearing by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Text of Proposed Order) (Leonard, Danielle) (Entered: 07/01/2013)
109 ORDER Setting Hearing on Motion 107 MOTION for Partial Summary Judgment and for Entry of a Rule 54(B) Partial Final Judgment and Permanent Injunction : Motion Hearing set for 7/12/2013 02:00 PM in Courtroom 1 − Columbus before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 7/3/2013. (cw) (Entered: 07/03/2013)
110 RESPONSE to Motion re 107 MOTION for Partial Summary Judgment and for Entry of a Rule 54(B) Partial Final Judgment and Permanent Injunction filed by Defendants Jon Husted, OHIO, State of. (Attachments: # 1 Text of Proposed Order) (Coglianese, Richard) (Entered: 07/03/2013)
111 REPLY to Response to Motion re 107 MOTION for Partial Summary Judgment and for Entry of a Rule 54(B) Partial Final Judgment and Permanent Injunction filed by

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 30 of 35

07/09/2013
07/11/2013 07/19/2013 07/19/2013 07/26/2013

Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Leonard, Danielle) (Entered: 07/05/2013)
112 ORDER granting 107 Motion for Partial Summary Judgment and vacating its previous Order of July 3, 2013 (Doc. 109 ) and vacating the oral argument in the SEIU case. This Order does not affect the oral argument set in the NEOCH case, which will go forward as planned. Signed by Judge Algenon L. Marbley on 7/9/2013. (pes1) (Entered: 07/09/2013)
113 ORDER rescheduling oral argument on NEOCH Plaintiffs' Motion toExtend and Modify Consent Decree (Doc. 362 in 2:06−cv−896)) to July 12, 2013 at 11:00 a.m. Signed by Judge Algenon L. Marbley on 7/11/2013. (pes1) (Entered: 07/11/2013)
114 NOTICE by Defendants Jon Husted, OHIO, State of Defendants' Response to Plaintiffs' Third Motion for Extensonsion to File Motion for Attorneys' Fees (Coglianese, Richard) (Entered: 07/19/2013)
115 MOTION to Withdraw as Attorney of Record, Aaron D. Epstein, by Defendant Jon Husted. (Attachments: # 1 Text of Proposed Order withdrawing Counsel of Record) (Butcher−Lyden, Erin) (Entered: 07/19/2013)
116 Transcript of Oral Argument Proceedings held on 7/12/2013, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

09/30/2013 10/02/2013 11/07/2013 12/12/2013

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 8/16/2013. Redacted Transcript Deadline set for 8/26/2013. Release of Transcript Restriction set for 10/24/2013. (er1) (Entered: 07/26/2013)
117 ORDER of USCA as to 91 Notice of Appeal filed by OHIO, State of, Jon Husted. We DISMISS the appeal as MOOT and DENY SEIU's request for vacatur. (sr1) (Entered: 09/30/2013)
118 ORDER granting 115 Motion to Withdraw as Attorney. Attorney Aaron D Epstein terminated. Signed by Magistrate Judge Terence P Kemp on 10/2/2013. (kk2) (Entered: 10/02/2013)
119 MOTION for Extension of Time to File Response/Reply New date requested 11/26/2013. by Defendants Jon Husted, OHIO, State of. (Coglianese, Richard) (Entered: 11/07/2013)
120 MOTION for Attorney Fees by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Declaration of Stacey Leyton, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Declaration of Catherine Harshman, # 7 Exhibit A, # 8 Exhibit B, # 9 Declaration of Donita Judge, # 10 Exhibit A, # 11 Declaration of Daniel R. Mordarski, # 12 Exhibit A, # 13 Exhibit

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 31 of 35

12/23/2013 01/06/2014 01/06/2014 01/14/2014 01/24/2014 01/27/2014 01/28/2014 01/31/2014 01/31/2014
02/04/2014 02/05/2014 02/07/2014 02/10/2014 02/10/2014
03/11/2014

B, # 14 Exhibit C) (Berzon, Stephen) (Entered: 12/12/2013)
121 Consent MOTION for Extension of Time to File Response/Reply as to 120 MOTION for Attorney Fees New date requested 1/27/2014. by Defendants Jon Husted, OHIO, State of. (Coglianese, Richard) (Entered: 12/23/2013)
122 ORDER granting 121 Motion for Extension of Time to File Response/Reply. New date requested 1/27/2014. Signed by Judge Algenon L. Marbley on 1/6/2014. (cw) (Entered: 01/06/2014)
Set/Reset Deadlines as to 120 MOTION for Attorney Fees . Responses due by 1/27/2014 (pes1) (Entered: 01/06/2014)
123 MOTION to Vacate Notice of Settlement on Appeal: Joint Motion for Indicative Ruling to Effect Terms of Settlement by Defendants Jon Husted, OHIO, State of. (Attachments: # 1 Text of Proposed Order) (Coglianese, Richard) (Entered: 01/14/2014)
124 Second MOTION for Extension of Time to File Response/Reply as to 120 MOTION for Attorney Fees New date requested 2/10/2014. by Defendants Jon Husted, OHIO, State of. (Coglianese, Richard) (Entered: 01/24/2014)
125 ORDER granting 124 Motion for Extension of Time to File Response/Reply re 124 Second MOTION for Extension of Time to File Response/Reply as to 120 MOTION for Attorney Fees New date requested 2/10/2014. Responses due by 2/10/2014. Signed by Judge Algenon L. Marbley on 1/27/2014. (cw) (Entered: 01/27/2014)
Set/Reset Deadlines as to 120 MOTION for Attorney Fees . Responses due by 2/10/2014 (pes1) (Entered: 01/28/2014)
126 ORDER granting 123 Motion to Vacate. Signed by Judge Algenon L. Marbley on 1/31/2014. (cw) (Entered: 01/31/2014)
127 MOTION for Extension of Time New date requested 3/10/2014. CONSENTED MOTION FOR EXTENSION OF TIME TO FILE REPLY IN SUPPORT OF MOTION FOR ATTORNEYS FEES by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Declaration of Stacey Leyton, # 2 Text of Proposed Order) (Berzon, Stephen) (Entered: 01/31/2014)
128 ORDER granting 127 Motion for Extension of Time. Plaintiffs shall file their reply brief no later than 3/10/2014. Signed by Judge Algenon L. Marbley on 2/4/2014. (cw) (Entered: 02/04/2014)
Set/Reset Deadlines as to 120 MOTION for Attorney Fees . Replies due by 3/10/2014. (pes1) (Entered: 02/05/2014)
129 ORDER VACATING The Court's November 13, 2012 103 Order. Signed by Judge Algenon L. Marbley on 2/7/2014. (cw) (Entered: 02/07/2014)
130 NOTICE of Appearance by Zachery Paul Keller for Defendant OHIO, State of (Keller, Zachery) (Entered: 02/10/2014)
131 RESPONSE to Motion re 120 MOTION for Attorney Fees filed by Defendants Jon Husted, OHIO, State of. (Attachments: # 1 Appendix Table of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23) (Coglianese, Richard) (Entered: 02/10/2014)
132 REPLY to Response to Motion re 120 MOTION for Attorney Fees filed by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 32 of 35

03/11/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014 03/11/2014

and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Berzon, Stephen) (Entered: 03/11/2014)
133 AFFIDAVIT re 132 Reply to Response to Motion,, Stacey Leyton by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Berzon, Stephen) (Entered: 03/11/2014)
134 AFFIDAVIT re 132 Reply to Response to Motion,, Danielle Leonard by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Berzon, Stephen) (Entered: 03/11/2014)
135 AFFIDAVIT re 132 Reply to Response to Motion,, Cathrine Harshman by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Berzon, Stephen) (Entered: 03/11/2014)
136 AFFIDAVIT re 132 Reply to Response to Motion,, Daniel Mordarski by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Berzon, Stephen) (Entered: 03/11/2014)
137 REPLY to Response to Motion re 120 MOTION for Attorney Fees [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES FOR 2012 WORK IN DEFENSE OF CONSENT DECREE filed by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Berzon, Stephen) (Entered: 03/11/2014)
138 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel,

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 33 of 35

09/05/2014
09/29/2014 10/28/2014 10/29/2014 11/04/2014 11/07/2014
11/26/2014

Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union re 132 Reply to Response to Motion,, ERRATA: CORRECTIONS TO JOINT REPLY MEMORANDUM OF PLAINTIFFS IN SUPPORT OF MOTIONS FOR ATTORNEYS FEES AND [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES (Attachments: # 1 Errata Brief, # 2 Errata Proposed Order) (Berzon, Stephen) (Entered: 03/11/2014)
139 NOTICE by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union re 120 MOTION for Attorney Fees OF SUPPLEMENTAL AUTHORITY REGARDING PENDING MOTION FOR ATTORNEYS FEES AND COSTS (Berzon, Stephen) (Entered: 09/05/2014)
140 ORDER denying as moot 119 Motion for Extension of Time to File Response/Reply ; granting with modifications 120 Motion for Attorney Fees. Plaintiffs are hereby ORDERED to submit to the Court, within 30 days of the date of this Order, a Bill of Costs, together with supporting documentation, reflecting the hours the Court has approved, including those omissions and reductions made voluntarily by Plaintiffs, as well as those ordered by the Court, billed at the hourly rates the Court set forth above, and including fees for fees for no more than 3% of the total merit hours in the two cases combined. Signed by Judge Algenon L. Marbley on 9/29/2014. (cw) (Entered: 09/29/2014)
141 NOTICE OF APPEAL as to 140 Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Attorney Fees,,,, by Defendants Jon Husted, OHIO, State of. Filing fee $ 505, receipt number 0648−4790335. (Keller, Zachery) (Entered: 10/28/2014)
142 BILL OF COSTS by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Berzon, Stephen) (Entered: 10/29/2014)
USCA Case Number 14−4084 for 141 Notice of Appeal filed by OHIO, State of, Jon Husted. Case Manager − Laura A. Jones. (sct1) (Entered: 11/04/2014)
143 NOTICE OF CROSS APPEAL as to 140 Order on Motion for Extension of Time to File Response/Reply, Order on Motion for Attorney Fees,,,, by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Filing fee $ 505, receipt number 0648−4804466. (Berzon, Stephen) (Entered: 11/07/2014)
USCA Case Number 14−4133 for 143 Notice of Cross Appeal,,, filed by United Food and Commerical Workers, Local 75, Ohio Organizing Collaborative, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, Service Employees International Union Local 1, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 880

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 34 of 35

12/01/2014

(Case Manager: Laura Jones). (sem1) (Entered: 11/26/2014)
144 Transcript of Oral Argument Proceedings held on 6/27/2012, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

12/01/2014

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. (er1) (Entered: 12/01/2014)
145 Transcript of Oral Arguments Proceedings held on 7/30/2012, before Judge Algenon L. Marbley. Court Reporter/Transcriber Shawna J. Evans, Telephone number 614−719−3316. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.

12/22/2014 02/17/2015
03/19/2015 03/23/2015 03/31/2015
04/10/2015

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. (er1) (Entered: 12/01/2014)
146 ORDER GRANTING Plaintiffs Unopposed Motion for Extension (2:06−cv−896 doc. 440]. Plaintiffs Reply in Support of Motion for Fees Preparing and Defending Attorneys Fees Motion (Fees for Fees) Related to Consent−Decree Extension (Docs. 431, 438), is now due on January 6, 2015. Signed by Judge Algenon L. Marbley on 12/22/2014. (cw) (Entered: 12/22/2014)
147 ORDER − re 142 Bill of Costs,, filed by United Food and Commerical Workers, Local 75, Ohio Organizing Collaborative, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, Service Employees International Union Local 1, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 880. Signed by Judge Algenon L. Marbley on 2/17/2015. (cw) (Entered: 02/17/2015)
148 NOTICE OF APPEAL as to 147 Order,, by Defendant Jon Husted. Filing fee $ 505, receipt number 0648−4976379. (Keller, Zachery) (Entered: 03/19/2015)
USCA Case Number 15−3296 for 148 Notice of Appeal filed by Jon Husted (Case Manager: Laura Jones). (sem1) (Entered: 03/23/2015)
149 NOTICE OF CROSS APPEAL as to 147 Order,, by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Filing fee $ 505, receipt number 0648−4994574. (Berzon, Stephen) (Entered: 03/31/2015)
USCA Case Number 15−3381 for 149 Notice of Cross Appeal,, filed by United Food and Commerical Workers, Local 75, Ohio Organizing Collaborative, International Union, United Automobile, Aerospace and Agricultural Implement Workers of

Case: 2:12-cv-562 As of: 11/02/2018 05:26 PM EDT 35 of 35

09/04/2015
09/16/2015 09/02/2016
09/06/2016 10/06/2016
10/07/2016 10/12/2016 07/01/2017

America, Local 1005, Service Employees International Union Local 1, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 880. Case Manager − Laura A. Jones. (sct1) (Entered: 04/10/2015)
150 ORDER deferring ruling on 431 Motion for Attorney Fees filed in 2:06CV896. Plaintiffs are directed to renew their request for a ruling on Plaintiffs Supplemental Fees Motion for Preparing and Defending Attorneys Fees Motion Related to Work Obtaining Consent Decree Extension, (Doc. 431), after the parties appeals from the September 29, 2014 Opinion and Order and February 17, 2015 Opinion and Order are ruled upon by the Sixth Circuit. Signed by Judge Algenon L. Marbley on 9/4/2015. (cw) (Entered: 09/04/2015)
151 ORDER SETTING Telephonic Status Conference for 9/16/2015 04:30 PM before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 9/16/2015. (cw) (Entered: 09/16/2015)
152 MOTION for Extension of Time to File New date requested 10/7/2016. by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Ohio Organizing Collaborative, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Responses due by 9/26/2016 (Berzon, Stephen) (Entered: 09/02/2016)
153 ORDER granting 152 Motion for Extension of Time to File. Signed by Judge Algenon L. Marbley on 9/6/2016. (cw) (Entered: 09/06/2016)
154 Joint MOTION for Extension of Time New date requested 10/19/2016. by Plaintiffs International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1005, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 863, Service Employees International Union Local 1, United Food and Commerical Workers, Local 1059, United Food and Commerical Workers, Local 75, United Food and Commerical Workers, Local 880, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Responses due by 10/31/2016 (Berzon, Stephen) (Entered: 10/06/2016)
155 STIPULATION Stipulated Judgment Entry Regarding Settlement of Attorneys' Fees and Costs by Defendants Jon Husted, OHIO, State of. (Voigt, Steven) (Entered: 10/07/2016)
156 JUDGMENT entered awarding attorneys fees and costs to the parties in the amounts listed in the Order; denying as moot 154 Motion for Extension of Time. Signed by Judge Algenon L. Marbley on 10/12/2016. (cw) (Entered: 10/12/2016)
157 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Chelsey M. Vascura for all further proceedings. Magistrate Judge Terence P Kemp no longer assigned to case. Signed by Chief Judge Edmund A. Sargus on 6/30/17. (jcw) (Entered: 07/01/2017)

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0359p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

No. 12-3916

X -

NORTHEAST OHIO COALITION FOR THE

-

HOMELESS; SERVICE EMPLOYEES

-

INTERNATIONAL UNION, LOCAL 1199,

,>

Plaintiffs-Appellees, OHIO DEMOCRATIC PARTY,
Intervenor Plaintiff-Appellee,

-

-

v.

-

-

JON HUSTED; STATE OF OHIO,

-

Defendants-Appellants. -

-

No. 12-4069

-

-

SERVICE EMPLOYEES INTERNATIONAL UNION -

LOCAL 1, et al.

-

Plaintiffs-Appellees,

-

-

v.

-

-

JON HUSTED,

-

Defendant-Appellant,

-

-

STATE OF OHIO,

-

Intervenor. N

Nos. 12-3916/4069

Appeal from the United States District Court for the Southern District of Ohio at Columbus. Nos. 2:06-cv-00896; 12:-cv-00562—Algenon L. Marbley, District Judge.

Argued: October 1, 2012

Decided and Filed: October 11, 2012 Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge*

*The Honorable Lee H. Rosenthal,United States District Judge for the Southern District of Texas, sitting by designation.
1

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_________________
COUNSEL
ARGUED: Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants in 12-3916. DanieellLeonard, ALTSHULER BERZON LLP, San Francisco, California, for Appellees in 12-3916. Aaron D. Epstein, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 12-4069. Danielle Leonard, ALTSHULER BERZON LLP, San Francisco, California, for Appellees in 12-4069. Frederick D. Nelson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Intervenor in 12-4069. ON BRIEF: Stephen P. Carney, Peggy Corn, Aaron D. Epst ein, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellantsin 12-3916. Danielle Leonard, Stephen P. Berzon, Stacey Leyton, Barbara Chishol m, ALTSHULER BERZON LLP, San Francisco, California, Caroline Gentry, Daniel B. Miller, PORTER, WRIGHT, MORRIS & ARTHUR LLP, Dayton, Ohio, Subodh Chandra, THE CHANDRA LAWFIRM, LLC, Cleveland, Ohio, Michael J. Hunter, HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN, Columbus, Ohio, Donald J. McTigue, Mark A. McGinnis, McTIGUE LAW GROUP, Columbus, Ohio, for Appell ees in 12-3916. Aaron D. Epstein, Erin Butcher-Lyden, Peter K. Glenn-App legate, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant in 12-4069. Danielle Leonard, Stephen P. Berzon, Stacey Leyton, Barbara Chisholm , ALTSHULER BERZON LLP, San Francisco, California, Michae l J. Hunter, Cathrine J. Harshm an, HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN, Columbus, Ohio, for Appellees in 12-4069. Frederick D. Nelson, Richard N. Coglianese, Michael J. Hendershot, Stephen P. Carney, OFFICE OF THE OHIO ATTO RNEY GENERAL, Columbus, Ohio, for Intervenor in 12-4069. Majeed G. Makhlouf, Joseph W. Boatwright, IV, CUYAHOGA COUNTY DEPARTMENT OF LAW, Cleveland, Ohio, Bassel C. Korkor, ARNOLD & PORTER LLP, Washington, D.C., Patrick T. Lewis, BAKER & HOSTETLER LLP, Cleveland, Ohio, Elizabeth Petrela Papez, Eric M. Goldstein, WINSTON & STRAWN LLP, Washington, D.C., for Amici Curiae in 12-4069.
_________________
OPINION
_________________
PER CURIAM. These consolidated election law appeals present constitutional
challenges to Ohio’s strict application of its disqualification rules for nonconform ing
provisional ballots to those caused by poll-worker error, as well as issues involving the
validity of a federal court’s c onsent decree that abrogates state law without finding
violations of federal law. At issue are Ohio’s requirements that provisional ballots be
cast in the correct precinct and with a completed voter affirmation, making no exception

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for wrong-precinct and deficient-affirmation ballots caused by poll-worker error. See O.R.C. §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). Given the time-sensitive nature of these appeals with the November election approaching, we ordered expedited briefing and conducted a telephonic argument on October 1.
Appeal 12-3916 stems from the district court’s denial of the state’s m otion to vacate a 2010 consent decree that requires the counting of certain wrong-precinct and deficient-affirmation provisional ballots where poll-worker error caused the nonconformity. Under the consent decree, this remedy applies only to voters that use the last four digits of their social security number (“SSN-4 voters”) for identification to cast their provisional ballots. The Ohio Secretary of St ate and the State (collectively “State defendants” or “State appellees”) both appeal this judgm ent. Appeal 12-4069 arises from the district court’s preliminary injunction that requires the counting of all wrong-precinct and deficient-affirmation provisional ballots to remedy Ohio’s systemic exclusion of nonconforming ballots caused by poll-worker error. The Secretary contests only the deficient-affirm ation aspect of the preliminary injunction; the State as intervenor-appellant challenges the injunction’s wrong-precinct rem edy. Absent the preliminary injunction or consent decree, Ohio would not count any wrong-precinct or deficient-affirmation provisional ballots, regardless of poll-worker error. See O.R.C. §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii).
For the following reasons, we sustain part of the preliminary injunction in appeal 12-4069, AFFIRMING the wrong-precinct rem edy and REVERSING the deficientaffirmation remedy. The district court’s judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED so that the district court may expeditiously address (1) the equal protection issue created by the consent dec ree’s provision for the counting of deficient-affirmation ballots by SSN-4 voters, and (2) a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots.

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I. BACKGROUND
A. Facts Related to Appeal 12-3916: The Consent Decree
As the district court recognized, the consent decree arose from the “turbulent saga of Ohio’s provisional voting regi me” that began in 2006 whe n Ohio enacted comprehensive election reforms. (No. 2:12-CV-562, R. 67, Plenary Op. & Order at 2.) Because we previously detailed the consent decree’s history in Hunter v. Hamilton County Board of Elections, 635 F.3d 219, 223–24 (6th Cir. 2011), we review only the relevant parts.
In 2006, the Northeast Ohio Coalition for the Hom eless and the Service Employees International Union Local 1199 (collectively “NEOCH plaintiffs” or “NEOCH appellees”) filed suit against Ohio’s Secretary of State challenging numerous aspects of Ohio’s new voter-identification laws. After lengthy negotiations, the NEOCH plaintiffs settled their claims with then-Secretary of State Jennifer Brunner by entering into a consent decree. Though the consendt ecree stopped short of finding constitutional violations, it provided the following injunctive relief for SSN-4 voters: the State would not reject provisional ballots that, due to poll-worker error, were cast (1) in the wrong precinct but correct polling place, or (2) with nonconfor ming or incom plete ballot affirmations. (No. 2:06-cv-896, R. 210, Consent Decree ¶ 5(b)(v), (vi).) As explained in Hunter,
The consent decree, in effect, carved out an except ion for counting provisional ballots otherwise invalid under Ohio law if the deficiency was due t o poll-worker error—al beit a narrow one lim ited to those provisional ballots cast by a voter who uses the last four digits of his or her Social Security number as identification.
635 F.3d at 224. By its terms, the consent decree remains in effect until June 30, 2013 unless modified.
The State did not object to the consent decree’s remedy until the Ohio Supreme Court issued a 2011 decision holding that Ohio’s election laws offered no protections for wrong-precinct provisional ballotscaused by poll-worker error. State ex rel. Painter

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v. Brunner, 941 N.E.2d 782, 794 (Ohio 2011) (per curiam ). After Painter, the State defendants returned to di strict court seek ing to vacate the consent decree, citing a conflict between state law and the consent decree’s rem edies. Moreover, the State defendants argued that the consent decree was void ab initio because the Secretary of State lacked the unilateral authority to abrogate state law i n the absence of a federal constitutional violation. (Again, the consent decree did not find constitutional violations.) In the meantime, a different groupof plaintiffs, whose claims we will discuss next, challenged the consent decree’s preferential treatment of SSN-4 voters in separate litigation. Responding to this em erging issue, the NEOCH plaintiffs also m oved to modify the consent decree, seeking to expand its remedy to all provisional voters (not just SSN-4 voters) in order to prevent itsdisparate vote-counting standards fromcausing constitutional violations.
By opinion and order of July 9, 2012, th e district court denied the State defendants’ motion both on issue preclusion gor unds and on the merits. Specifically, the district court rejected the State defendants’ argum ent that the consent decree irreconcilably conflicted with state law, as pronounced in Painter and State ex rel. Skaggs v. Brunner, 900 N.E.2d 982 (Ohio 2008). CitingNorthridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 614 (6th Cir. 2011), the district court al so held that Federal Rule of Civil Procedure 60(b) governed the State defendants’ motion to vacate the consent decree. Because State defendantsfailed to show that the consent decree was no longer necessary to prevent constitutional violations, the district court held that they had not shown gr ounds for relief under Rule 60(b)(4) and (b)(5). The district court withheld judgment on the NEOCH plaintiffs’motion to expand the consent decree at this time.
The State defendants tim ely appealed. The Ohi o Democratic Party, which intervened as a co-plaintiff at the district court, joins the NEOCH plaintiffs as appellees.

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B. Facts Related to Appeal 12-4069: The Preliminary Injunction
On June 22, 2012, several unions and a com munity organizing group (collectively the “SEIU plaintiffs” or “SEIU appellees”) 1 filed suit against Ohio’s current Secretary of State Jon Hus ted, as well as m embers of the Cuyahoga County, Franklin County, and Hamilton County Boards ofElections. The SEIU plaintiffs allege that Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii), as interpreted by the Ohio Suprem e Court, automatically disqualified wrong-precinct and deficientaffirmation provisional ballots, despite evidence that poll-worker error caused the ballot deficiencies. According to the SEIU plai ntiffs, Ohio’s strict application of t he disqualification rules to ballot deficiencies caused by poll-worker error violated, inter alia, the Fourteenth Am endment’s Equal Prot ection and Due Process Clauses. The SEIU plaintiffs also alleged that the co nsent decree’s preferential treatment of SSN-4 voters’ wrong-precinct and deficient-affirmation ballots violated equal protection. The SEIU plaintiffs moved for a preliminary injunction, arguing that the relevant statutory provisions impermissibly burdened the funda mental right to vote without serving sufficient state interests. To rem edy this problem, the SEIU plaintiffs proposed “remaking” wrong-precinct provisional ballots to count onl y “up-ballot” votes—i.e., votes in eligible races.
The district court held an evidentiary hearing on July 30, 2012, and issued its preliminary injunction on August 27, 2012. As necessary for the issuance of a preliminary injunction, the court’s 58-page Plenary Opinion and Order as sessed the SEIU plaintiffs’ likelihood of success on the merits of their constitutional claims, as well as the equitable factors necessary for injunctive relief: irreparable harm, harm to others,

1The plaintiffs consisted of the Service Employees International Union, Local 1; the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,Allied Industrial and Service Workers International Union; the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, including Locals 863 and 1005; and the Ohio Organizing Collaborative.

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and the public interest. The court prem ised injunctive relief upon three likely equal protection violations and a likely due process violation.2
1. Equal Protection: Wrong-Precinct Ballots Caused by Poll-Worker Error
Beginning with the SEIU plaintiffs’ wrong-precinct ballots claim, the court found reliable evidence that Ohio’s county election boards disqualified thousands of wrongprecinct ballots in each of Ohio’s three m ost recent elections. Specifically, the court found that Ohio rejected more than 14,000 wrong-precinct ballots in 2008 and 11,000 more in 2010, with wrong-precinct rejections occurring in the vast majority of Ohio counties. (Plenary Op. & Order at 26 & n.28, 27 (counting 14,335 wrong-precinct rejections in 2008 and 11,775 in 2010).) And in the mid-cycle election of 2011, which involved no federal races, Ohio kept specifci data regarding right-place/wrong-precinct ballots revealing that Ohio disqualified m ore than 1,800 such ballots. But for the consent decree entered in the NEOCH litigation, Ohio would have disqualified another 1,500 such ballots. ( Id. at 25–26 (f inding that Ohio disqualif ied 1,826 of 3,380 right-place/wrong-precinct ballots in 2011).) This data led the court to conclude that “[w]hile the num ber and frequency of wrong-precinct ballot disqualifications vary county to county, the problem as a whole is systemic and statewide.” (Id. at 26.) The court noted that “[m]uch of the factual basis upon which the Court relies for its findings is uncontested, or has already been established by this Court or the courts in [theHunter litigation].” (Id. at 25.)
Though the Secret ary did not dispute the accuracy of these statistics, it challenged their relevance in light of recent efforts to improve Ohio’s provisional ballot system. The Secretary also argued that reasons other than poll-worker error may have caused some of the wrong-precinct ballots. The district court rejected these arguments, citing the failure of previous state directiv es and the absence of evidence that voters disobeyed poll-worker instructions regarding voting precincts. “No pa rty,” it stated,
2The district court rejected the SEIU plaintiffs’ third equal protection claim asserting a greater burden on voters in m ore populous urban counties, finding insufficient evidence that Ohio’s disqualification of wrong-precinct ballots disproportionately affects voters in those counties. The SEIU appellees do not contest this finding.

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“has identified a single example, from the past four years’ elections, of a wrong-precinct provisional ballot being cast because the voter refused to vote in the correct precinct.” (Id. at 29.) Invoking poll workers’ statutory m andate to direct voters to the correct precinct and inform them that wrong-preci nct votes will not count, see O.R.C. § 3505.181(C)(1), the district court reasoned, “It is common sense that no rational voter who arrives at the correct polling place would everrefuse to cast a provisional ballot in the correct precinct . . . .” (Plenary Op. &Order at 29.) “Based on the record evidence provided thus far,” the court concluded th at “Plaintiffs ha[d] established a strong likelihood that thousands of lawfully-registered voters will be completely deprived of their right to vote under Ohio Rev. Code § 3505.183(B)(4)(a)(ii) in the upcom ing election because of poll-worker error.” (Id. at 30.)
Deeming this burden “arbitrary,” “irreversible,” and “severe,” the court proceeded to weigh the state interests jutsifying the automatic disqualification of wrongprecinct provisional ballots under the balancing test set forth inAnderson v. Celebrezze, 460 U.S. 780, 789 (1983), andBurdick v. Takushi, 504 U.S. 428, 434 (1992). To justify the automatic-disqualification rule, the Secretary relied on the “significant and numerous” advantages of the precinct voting system articulated in Sandusky County Democratic Party v. Blackwel l, 387 F.3d 565, 569 (6th Cir. 2004) (per curiam ): (1) capping the number of voters at a pollinglocation; (2) limiting the precinct ballot to the applicable federal, state, and local elections a citizen m ay vote in, which has the result of (3) m aking the precinct ballot less confusing; (4) simplifying election administration and oversight, so as to minimize election fraud; and (5) enabling the state to place polling locations closer to voter residences. The court deemed the first, third, and fifth Sandusky factors inapposite, because the autom atic-disqualification rule affected voters who arrived at the right polling location and did nothing t o make provisional ballots less confusing. The second Sandusky factor—limiting precinct ballots to eligible races—som ewhat justified the disqualificat ion of wrong-precinct ballots in the court’s view, inasmuch as the State has an interest in preventing ineligible voters from casting votes in the wrong races. But because the SEIU plaintiffs sought to “remake” wrong-precinct ballots to count only “up-ballot” votes—a practice the court

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noted had be en employed by the consent decree since 2010—the court found no likelihood of vote dilution or detrimental effect on the precinct voting system. Finally, the court rejected for lack of evidence th e Secretary’s purported interest in election administration, monitoring, and recordkeeping. Citing dicta from this court’s decision in Hunter, see 635 F.3d at 243 (expresing “substantial constitutional concerns regarding [Ohio’s] invalidation of votes cast in the wrong precinct due solely to poll-worker error”), the district court concluded that the SEIU plaintif fs “have submitted reliable, uncontroverted evidence demonstrating that a discrete class of prospective voters will be severely burdened by [t he disqualification of wrong-precinct provisional ballots caused by poll-worker error].” (Plenary Op. & Order at 39–40.)
In addition to its Anderson/Burdick balancing, the district court found Ohio’s disqualification of right-place/wrong-precinctprovisional ballots to constitute invidious discrimination because the restriction bore no relation to those voters’ qualifications. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 666–67 (1966). Though Ohio’s disqualification rule differed fromthe “archetypal case of an invidious restriction”—the poll taxes at issue in Harper—the district court reasoned that “[l]ike poll taxes . . . any rational basis for rejecting wrong-precinct ballots of registered voters due to poll-worker error is equally unreasonable,” because the restriction “is unrelated to the prospective Plaintiffs’ voter qualifications.” (Plenary Op. & Order at 41.)
2. Equal Protection: Deficient-Affirmation Ballots Caused by Poll-Worker Error
Turning to the SEIU plaintiffs’ claimregarding deficient-affirmation ballots, the court cited 2011 election data showing thatOhio rejected 568 provisional ballots due to such technical deficiencies as “a missing or misplaced printed name or voter signature, or the voter’s signature was deemed not to match the exemplar on file with the Board.” (Id. at 43.) The court attributed these deficiencies to poll-worker error “because it is the poll worker’s duty to ensure that provisional ballots are cast with a validly completed ballot envelope and affirmation.” (Id. (citing O.R.C. §§ 35051. 81(B)(2)–(3), 3505.182).) Still, the court conceded that the class of affected voters “is likely to be signif icantly smaller” than the right-place/wrong-precinctballots, and that the burden on these voters

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“is arguably less severe” because “the individual voter has a greater degree of control over whether the ballot envelope contains the required elements.” (Id. at 44.) While it could not “quantify the precise magnitude of the burden imposed by this law’s restriction on the class of affect ed voters,” it deem ed the State’s interests—the sam e Sandusky factors discussed above— insufficient to support the restriction under the Anderson/Burdick test. (Id. at 44–45.)
The Secretary argued that new directives, especially Directive No. 2012-01, mitigated the burden on these voters, but the district court disagreed, stating that the directive “instructs boards of elections that provisional ballots are not to be rejected only where the poll worker fails to fill out his or her portoi n of the provisional envelope.” (Id. at 45.)
3. Equal Protection: The Consent Decree’s Preferential Treatment of SSN-4 Ballots
Next, the district court agreed with the SEIU plaintif fs that Ohio’s differential treatment of wrong-precinct ballots, depending onthe form of identification used to cast the ballot, violated equal protection. Recognizing that the NEOCH consent decree provided a different vote-counting standard for SSN-4 provional ballots (allowing a chance to prove poll-worker error and have the vote counted) and all other provisional ballots (not), the court inquired whether state interests justified the preferential treatment. The State—by now seeking tovacate the consent decree—offered none, and the court agreed, finding “[t]here is no reason for treating provisional ballots differently based on the type of identification used.” (Id. at 49.)
4. Due Process: Wrong-Precinct Ballots Caused by Poll-Worker Error
Last, the court adopted dicta from the post-remand judgment in the Hunter litigation that Ohio’s strict disqualification of deficient ballots, regardless ofpoll-worker error, rendered the election system “fundamentally unfair,” in violation of due process. See Hunter v. Hamilton Cnty. Bd. of Elections , 850 F. Supp. 2d 795, 847 (S.D. Ohio 2012). Relying on the sam e evidence discussed in the equal protection claim s, the

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district court found a strong likelihood that the SEIU plaintiffs would prevail on the due process claim.
5. Injunctive Reli ef & Staying the NEOC H Plaintiffs’ Motion to Modify the Consent Decree
Having found a likelihood of success on the merits of these claims, the district court determined that the equitable factors favored the issuance of a prelim inary injunction. Accordingly, the court granted a prelim inary injunction requiring the counting of wrong-precinct and deficient-affirmation provisional ballots, unless the State could prove that the poll worker properly a dvised the voter to cast the ballot in the correct precinct and the voter refused. Having granted t he broader relief of the preliminary injunction in the SEIU litigation, the district court stayed t he NEOCH plaintiffs’ motion to expand the consent decree in the NEOCH litigation, deeming that issue moot so long as the preliminary injunction remained in effect.
The Secretary now appeals the deficient-affirmation aspect of the preliminary injunction, and the State intervenesto appeal the wrong-precinct remedy.3 The Citizens Reform Association of Cuyahoga County and individual voters appear as am ici (collectively “CRACC amici”) in favor of the State appellants, 4 and Common Cause Ohio, Cuyahoga County, and the League of Women Voters of Ohio appear as amici for the SEIU appellees. W e have jurisdiction to hear both of these appeals. 28 U.S.C. § 1292.

3Alternatively, the State prem aturely filed a sepa rate appeal (12-4070) of the district court’s preliminary injunction prior to becoming a party in the matter. We dismissed that appeal, but granted the State’s motion to intervene in appeal 12-4069.
4CRACC amici previously attempted permissive intervention in the dsi trict court and intervention as of right in appeal 12-4069. The district courtruled their application untimely, and CRACC amici have appealed that ruling. (Appeal 12-4079.) Because that appeal remains pending and is the proper avenue to address the intervention arguments raised in the district court, we denied their motion to intervene on appeal and permitted their alternative request to file amicus briefs.

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II. SCOPE OF PRELIMINARY INJUNCTION: THE WRONG-PRECINCT REMEDY
Before we m ay assess the propriety of the prelim inary injunction, we m ust resolve a dispute over the scope of its re lief for wrong-precinct ballots. The district court’s plenary opinion and order required th e Secretary to instruct Ohio’s county election boards not to reject provisional ballots “cast . . . in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot” directed the voter to the correct precinct, informed the voter of theramifications of casting a wrong-precinct vote (disqualification), and the voter nevertheless insisted on casting the ballot in the wrong precinct. (Plenary Op. & Order at 56–57.) The SEIU appellees read thi s remedy to apply to all wrong-precinct ballots, regardlessof whether the voter cast his or her ballot at the correct polling l ocation. The State counters that the rem edy applies only to provisional ballots cast at the correct polling place, citing the district court’s later clarifying orders. The Secretary, who does not appeal this aspect of the prelim inary injunction, ostensibly adopted the State’s position on the scope of the pr eliminary injunction in Directive Num ber 2012-44, noting that the injunction’s wrong-precinct remedy applied only to “ballots cast in the correct polling place but wrong precinct.” See SOS Directive No. 2012-44 (r eferring to the affected ballots as “Right Church/Wrong Pew” ballots). With one small caveat, we agree with the State.
The State correctly notes that significant portions of the district court’s opinion specifically address the right-place/wrong-precinct problem. For instance, the district court’s burden analysis cites statistics for right-place/wrong-precinct provisional ballots cast during the 2011 general election, concludingthat “[t]here is, then, a high statistical probability that in the upcoming election thousands of lawfully-registered voters will arrive at the correct polling place only to receive a provi sional ballot from the poll worker for the wrong precinct.” (Plenary Op. & Order at 26.) 5 Elsewhere, the court states that “[t]he evidence further confirm s that, of the thousands of rejected wrong-
5The statistics fromprior elections do not distinguish between right-place/wrong-precinct ballots and wrong-place/wrong-precinct ballots because “ [t]he Secretary did not begin requiring Boards to separately report [those num bers] until the 2011 genera l election.” (Plenary Op. & Order at 2 6 n.27 (citation omitted).)

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precinct/correct location provisional ballots, the vast majority will be disqualified as a result of poll-worker error.” (Id. at 28–29.) And later on in its invidiousness analysis, the court notes that “[t]he Plaintiffs sue on behalf of registered voters who arrive in the correct polling place, and only through an inter vening error violate the precinct requirement.” (Id. at 41.)
Admittedly, the SEIU plaintiffs did not confine their requested relief to rightplace/wrong-precinct provisional ballots. (See R. 63, SEIU Pls.’ Second Am. Compl. at 35–36; R. 4, Mot. Prelim . Inj. at 4–5.) And certain aspects of the district court’s opinion appeared to follow this lead—na mely, the court’s sum mary of the SEIU plaintiffs’ requested relief and the court’s “order” of “Appropriate Injunctive Relief.” (Plenary Op. & Order at 12, 56–57.) But if any doubt remained, the district court’s framing of its equal-protection analysis settles the matter: “It is the particular burden imposed by Ohio’s prohibition of wrong-precinctballots on the rights of a ‘discrete class of prospective voters’—those whoarrive at thecorrect polling placebut are misdirected due to poll-worker error—against which the Satte’s asserted interests must be weighed.” (Id. at 34 (emphasis added) (citation omitted); see also id. at 37 n.56 (weighing state interests in disqualifying right-place/wrong-precinct provisional ballots).)
Two additional pieces of extrinsic evidencesupport this view. First, the district court issued three post-injunction orders—two scheduling orders and an order granting the State’s m otion to intervene—that char acterized the prelim inary injunction’s wrong-precinct remedy as extending no further than ballots m iscast from the correct polling place. Second, the SEIU appellees conceded at oral argument that they never sought to have wrong-county provisional ballotscounted, but that would be the practical effect of granting their interpretation of the district court’s wrong-precinct remedy.
Rather than presume the district court intended a “vote anywhere” remedy, we take the court at its word that it considered the constitutionality of the State’s disqualification of right-place/wrong-precinct provisional ballots. We therefore read the district court’s wrong-precinct remedy to encompass only those votes. Consequently,

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our remaining discussion of wrong-precinct ballots and the wrong-precinct rem edy addresses only right-place/wrong-precinct provisional ballots.6
We do note, however, that the State’s interpretation fails to account for provisional ballots cast at the county boards of election. Because Ohio law authorizes the casting of provisional ballots at the county boards, see O.R.C. § 3505.181(C)(2) (disqualifying certain provisional ballots where “the individual refuses to travel to the polling place for the correct jurisdiction or to the office of the board of electionsto cast a ballot” (emphasis added)), we see no reason to distinguish these right-place/wrongprecinct provisional ballots from those cast at precinct polling locations. In both instances, the voter appears at a state-authorized polling location, but the alleged pollworker error results in the casting of a wrong-precinct provisional ballot. Accordingly, we assume the district court’s wrong-precinct remedy includes these right-place/wrongprecinct provisional ballots.
III. THE PRELIMINARY INJUNCTION (Appeal 12-4069)
A. Standard of Review
Our review focuses on the four factor s a plaintiff m ust establish to receive injunctive relief:
(1) whether the movant has a strong likelihood of success on the merits; (2) whether the m ovant would suffer irreparable injury without the
injunction; (3) whether issuance of the injunction would cause substantial har m to
others; and (4) whether the public interest would be s erved by the issuance of the
injunction.
Hunter, 635 F.3d at 233 (quoting Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)). Athe preliminary injunction stage,

6Our ruling does not preclude the SEIU appelleesor others from seeking broader relief for pollworker-induced wrong-place/wrong-precinct provisional ballots upon a showing that Ohio’s law unconstitutionally burdens those voters’ rights. As those issues are not before us, we express no view on their merits.

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“a plaintiff must show more than a mere possibility of success,” but need not “prove his case in full.” Certified Restoration Dry Cleaning Network, 511 F.3d at 543 (citations omitted). “[I]t is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997) (citation omitted).
The State argues for a higher eviden tiary burden, characterizing the SEIU plaintiffs’ claims as pr esenting only a facial attack on Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii)–(iii) and (B)(4)(b)(ii). No doubt, certain aspects of the SEIU plaintiffs’ Second Amended Complaint appear to present facial challenges, but others advance as-applied challenges focusing on these statutes’ failure to make exception for poll-worker error. ( See SEIU Pls.’ Second Am . Compl. ¶¶ 79, 82 (challenging the State’s rationale for excluding wrong-precinct and deficient-affirmation ballots caused by poll-worker error).) W e read the district court’s opinion as sustaining these asapplied claims and therefore limit our review accordingly.
Though we consider the ultim ate decision to issue the injunction under a deferential abuse-of-discretion standard, we assess the underlying legal conclusions de novo and factual findings for clear error. Obama for America v. Husted , — F.3d —, Nos. 12-4055/4076, slip op. at 6 (6th Cir. 2012). Consequently, we give fresh review to the district court’s legal conclusions regarding a plaintiff’s likelihood of success on the merits. Id. at 7; Hunter, 635 F.3d at 233. An injunction “will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, im properly applied the governing law, or used an erroneous legal standard.” Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 312 (6th Cir. 1998).
B. The Wrong-Precinct Ballots
1. Likelihood of Success on the Merits
The district court identif ied three st rands of likely constitutional violations related to the wrong-precinct ballots as requiring injunctive relief: the unreasonableness

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and fundamental unfairness of disqualifying wrong-precinct ballots caused by pollworker error (equal protection and due process,) and the disparate treatment of deficient provisional ballots under the consent decree (equal protection). Having reviewed the record afresh, we agree on all counts.
a. Equal Protection & Disqualification Despite Poll-Worker Error
Our Constitution accords special protection for the fundamental right of voting, Harper, 383 U.S. at 670, recognizing its essential role in the “ preservati[on] of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Because“[o]ther rights, even the most basic, are illusory if the right to vote is underm ined,” Wesberry v. Sanders, 376 U.S. 1, 17 (1964), “‘[t]he right to vote is portected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise,’”League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir. 2008) (quotingBush v. Gore, 531 U.S. 98, 104 (2000)). A t the sam e time, the C onstitution vests states w ith the authority to prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives.” U.S. Cons t. Art. I, § 4, cl. 1. “[W ]hen a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justif y the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788). When equal protection challenges ask us to resolve these competing interests, we calibrate the equal protection standard to “[t]he precise character of the state’s action and the nature of the burden on voters.” Obama for America, Nos. 12-4055/4076, slip op. at 8 (citingBiener v. Cailo, 361 F.3d 206, 214 (3d Cir. 2004) for the proposition that “[t]he scrutiny test de pends on the [regulation’s] effec t on [the plaintiff’s] rights.”).
While a rational basis standard applies tostate regulations that do not burdenthe fundamental right to vote, strict scrutiny a pplies when a state’s restriction im poses “severe” burdens. Id. (citing McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 807–09 (1969) and Burdick, 504 U.S. at 434). For the majority of cases falling between these extremes, we apply the “flexible” Anderson/Burdick balancing test. Id.; see also

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Crawford v. Marion Cnty. Election Bd,.553 U.S. 181, 189–91 (2008) (Stevens, J., joined by Roberts, C.J., and Kennedy, J., announcing the judgm ent of the Court); id. at 211 (Souter, J., joined by Ginsburg, J., dissenting).
The State defendant, intervening as appellant, resists this standard, arguing that Ohio’s automatic-disqualification rule for wrong-precinct ballots treats all voters equally and therefore does not “involve any classification that could violate the equal protection standard.” But the State overlooks the fact that a clear majority of the Supreme Court in Crawford applied som e form of Burdick’s burden-measuring equal protection standard to Indiana’s facially neutral voter-identification requirement. See 553 U.S. at 189–91 (Stevens, J., announcing the judgment of the Court), 204 (Scalia, J., joined by Alito and Thomas, JJ., concurring in the judgment) (“To evaluate a law respecting the right to vote—whether it governs voter qualifci ations, candidate selection, or the voting process—we use the approach set out in Burdick . . . .”), 211 (Souter, J., dissenting). Because the SEIU plaintiffs “demonstrated that their right to vote is . . . burdened by” Ohio’s law that rejects wrong-precinct ballots regardless of pol l-worker error, “[t]he Anderson-Burdick standard . . . applies.” Obama for America, Nos. 12-4055/4076, slip op. at 10 (rejecting Ohio’s a ttempt to lim it the Anderson/Burdick test to First Amendment free association claims and Fourteenth Amendment due process claims).
Following the Anderson/Burdick test,
[we] must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Am endments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”
Burdick, 504 U.S. at 434 (quotingAnderson, 460 U.S. at 789)). “There is no litmus test to separate valid frominvalid voting regulations; courts must weigh the burden on voters against the state’s asserted justifications and make the hard judgment that our adversary system demands.” Obama for America , Nos. 12-4055/4076, slip op. at 9 (internal

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quotation marks omitted) (quoting Crawford, 553 U.S. at 190 (Stevens, J., announcing the judgment of the Court)).
i. The Burden on Provisional Voters
Here, the district court identified a subtsantial burden on provisional voters. The court’s factual findings detail Ohio’s “systemic” disqualification of thousands of wrongprecinct provisional ballots and a strong likelihood that the m ajority of these miscast votes result frompoll-worker error. Torecap, Ohio tossed out more than 14,000 wrongprecinct ballots in 2008 and 11,000 more in 2010, with such rejections occurring across the state. And in the m id-cycle election of 2011, Ohio disqualif ied more than 1,800 right-place/wrong-precinct ballots—1,500 f ewer than it w ould have rejected in the absence of NEOCH consent decree.7 Like the Secretary before the district court, the State intervening as appellant does not contest the accuracy of this data, but emphasizes that wrong-precinct ballots make up a small percentage of the total votes cast. (State Br. at 12 (explaining that wrong-precinct ballots made up 0.248% of the ballots cast in the 2008 election, with right-place/wrong-precinct ballot s comprising an even sm aller share).)
Though the district court did not m ake specific factual findings regarding the incidence of poll-worker error, it found sucherror evident in poll workers’ statutory duty to direct voters to the correct polling place.See O.R.C. § 3505.181(C)(1).8 As the State
7These findings regarding the statewide disqualification of wrong-precinct ballots amplify the countywide evidence established in Hunter. See Hunter, 635 F.3d at 237 (recognizing 269 rightplace/wrong-precinct ballots in the November 2010 election for Hamilton County Juvenile Court Judge).
8This provision states:
If an individual declares that the individual is eligible to vote in a jurisdiction other than the jurisdiction in which the individual desires to vote, or if, upon review of the precinct voting location guide using the residential street address provided by the individual, an election official at the polling place at which the individual desires to vote determines that the i ndividual is not eligible to vote in that jurisdiction, the election official shall [1] direct the individual to the pollingplace for the jurisdiction in which the individual appears to be eligible to vote, [2] explain that the individual may cast a provisional ballot at the current location but the ballot will not be counted if it is cast in the wrong precinct,and [3] provide the telephone number of the board of elections in case the individual has additional questions.
O.R.C. § 3505.181(C)(1) (emphasis and brackets added).

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acknowledges, Ohio law requires poll workers to “determine whether an individual is eligible to vote in a specif ic precinct, and direct them to the precinct in which ‘the individual appears to be eligible to vot e.’” (State Br. at 12 (quoting O.R.C. § 3505.181(C)(1)).) See also Hunter, 635 F.3d at 243 (“Ohio has created a system in which state actors (poll workers) are giventhe ultimate responsibility of directing voters to the right location to vote.”). The court also cited the proliferation of multi-precinct polling locations in Ohio’s counties as i ncreasing the likelihood of poll-worker error causing right-place/wrong-precinct ballots. (See Plenary Op. & Order at 6 n.10 (finding, as of the 2012 primaries, shared-polling place rates for the following counties’ election precincts: Butler, 95%; Cuyahoga, 94%; Greene, 100%; Franklin County, 68%; Lorain, 90%; Montgomery, 88%; Stark County, 71%).)
In addition to these findings, the SEIUplaintiffs presented voluminous evidence that poll workers give voters wrong-precinc t ballots for a number of reasons, ranging from misunderstanding counties’ precinct location guides to failing to understand the vote-disqualifying ramifications of handing out wrong-precinct ballots. This recent sample of Franklin County’s precinct location guide, which shows how different house numbers on the same street end up in different precincts, almost at random, demonstrates how easily poll workers can make mistakes under the pressures of election day.

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(R. 13-12 at 9.) The Secretary failed to present evidence to the district court that other
factors besides poll-worker error caused wrong-precinct ballots, and the State offers
none now. Given this record and the clearlegal duty imposed on poll workers by Ohio
law, the district court deduced:
As a matter of law, if a person cas ts a provisional ballot in the wrong precinct, it is always going to be due to poll-worker error unless the poll worker has instructed the individual where the correct polling location is and that individual “refuses to travel to the polling place for the correct [precinct] or to the office of the boardof elections to cast a ballot.” Ohio Rev. Code §§ 3505.181(C)(2), 181(E)( 1). Such an act would be an irrational and futile exercise by the voter, because, as required by Ohio Rev. Code § 3505.181(C)(1), the poll worker must first inform him that if he insist s on voting in the wrong precinct, his ballot will not be counted.

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(Plenary Op. & Order at 8.) Because the State offers no evidence of alternative causes, we find no clear error with the district c ourt’s factual conclusion that m ost rightplace/wrong-precinct ballots result, and will continue to result, frompoll-worker error.9
The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii) to right-place/wrong-precinct ballots caused by poll-worker error effectively requires voters to have a greater knowledge of their precinct, precinct ballot, and polling place than poll workers. Absent such om niscience, the State will perm anently reject their ballots without an opportunity to cure the situation. The m ere fact that these voters cast provisional ballots does not justify this additoinal burden; as the district court explained, Ohio law now requires thirteen different categories of voters to cast provisional ballots, ranging from individuals who do not have an acceptable form of identification to those who requested an absentee ballot or whose sginature was deemed by the precinct official not to m atch the nam e on the registration form s. See Ohio Rev. Code § 3505.181(A)(1)–(13).
ii. The State’s Interests: Sandusky Factors
Faced with this burden on voters, the State falls back on the sam e Sandusky factors rejected by the district court. Firs t, the State objects to the district court’s conclusion that the f irst Sandusky factor—capping the number of voters at a polling place—does not support disqualifying right-place/wrong-precinct ballots. We find no

9We note that the Secretary, in im plementing the district court’s wrong-precinct rem edy, has prescribed a new election form for poll workers to doc ument recalcitrant voters that refuse to go to the correct polling location: SOS Form 12-D. This form , known as the “Provisional Voter Precinct Verification Form,” identifies five steps that poll workers must take “whenever a voter’s name does not appear in the signature poll book or poll list, the vot er is in the wrong precinct of the correct m ultipleprecinct polling place and the voter insists on casting a provisional ballot in the wrong precinct.” First, the poll worker must “[f]ind the voter’s address in the Voting Location Guide.” At steps two and three, the poll worker must record the voter’s correct precinct and the address of the correctpolling place on the form. The last two steps invol ve instructing the voter to go to the correct precinct to cast a provisional ballot and informing the voter that casting a wrong-precinct ballotat the current location will result in the disqualification of the ballot. If th e voter still insists on casting a ballot in the wrong precinct after receiving this advice, then the poll worker will complete the form’s affirmation “under penalty of election falsification” to document that the voter disregardedthe advice provided in the five steps. The poll worker will then attach the completed form to the miscast ballot for purposes of verification. The county board of election will reject the miscast ballot if the poll worker directed the voter to the correct precinct.
We do not view this measure as alleviating the SEIU plaintiffs’ burden of establishing a likely constitutional violation, but we do find it relevant to weighing the state’s asserted interests in preserving its strict disqualification rules in the face of SEIU’s poll-worker-error claims.

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error here. By definition, right-place/wrong-precinct ballotsare cast at the right polling location, demonstrating that these voters attempted to comply with the State’s precinct requirement. Of course, if a recalcitrantvoter insists on casting a wrong-precinct ballot after making the effort to arrive at the correct polling place, the State would have a strong interest in rejecting that non-compliant vote. But the State offers no evidence or logical support for this phenom enon, while the SEIU pl aintiffs provided substantial evidence of poll-worker error.
As for the second and thirdSandusky factors, the State argues that it has a strong interest in limiting precinct ballots to eligible races, which facilitates the administration of elections and sim plifies the ballot for voters. No disagreem ent there, but these interests do not justify the precise restriction challenged here: the exclusion of wrongprecinct ballots caused by poll-worker error. Additionally, the State asserts “an interest in avoiding a circumstance in which voters are in effect given the option of surrendering their right to vote in ‘down ballot,’ precinct-specific races in exchange for the ability to cast ‘up ballot’ votes in a (perhaps less busy)precinct other than their own.” (State Br. at 48.) Again, the State offers no evidence for this speculation. We have no reason to think that voters, who will be correctly advised by poll workers about their assigned precinct, see O.R.C. § 3505.181(C)(1) and SOS Directive No. 2012-441,0 will opt to roll the dice in a less busy precinct on pain of having their votes disqualified. The State offers no reason to think that the district court’s limited relief for the narrow class of right-place/wrong-precinct ballots caused by poll-worker error—which has no effect on the design of precinct ballots—will undermine Ohio’s precinct system or make ballots more confusing.
Turning to the fourth Sandusky factor, the State claims that the district court’s remedy makes it more difficult to monitor the voting process and prevent election fraud. According to the State,

10The new election formprescribed by the Secretary, Form 12-D, further decreases the likelihood that opportunistic voters will engage in precinct-shopping, because voters will actually see poll-workers documenting non-compliance with poll-worker instructions.

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moving toward a system in which (absent new and affirm ative evidentiary “verification” actions by the boards) the total potential number of provisional ballots that m ust be count ed is not capped by reference to the number of registered voters assigned to a given precinct, or capable of estimation at any tim e until af ter the polls have closed would, almost by definition, make it more difficult for elections officials to monitor and keep up with the voting process.
(State Br. at 50.) Not only will the injunction make it more difficult to administer the election on election day, the State argues, butit will make it more difficult for the State to comply with the federal safe harbor deadline for Presidential electors, December 11, 2012. See 3 U.S.C. § 5; O.R.C. § 3515.041. Beyondthese administrative burdens, amici CRACC movants suggest that the district court’s remedy opens the door to more pollworker error, which will result in the di lution of proper votes via the counting of ineligible votes. We find neither argument persuasive.
First, the record does not support the State’s fear that the district court’s limited remedy will increase the number of voters attempting to cast votes at the wrong polling location or facilitating voter fraud. Barring substantial num bers of recalcitrant voters insisting on casting wrong-precinct votes—again, a phenomenon not supported by the record or logic—the district court’s limited remedy should not burden poll workers with longer lines or tax county boards with an unmanageable number of ballot verifications after election day. Second, neither the Stat e nor amici present evidence that county boards err in remaking wrong-precinct ballots to count only votes in “up-ballot” races, despite the fact that county boards have followed the practice since the adoption of the consent decree in April 2010. The State’s chifeelection official, who adopted Directive No. 2012-44 and Form 12-D, apparently believes that poll workers and county boards can both implement the district court’s injunctive relief and performtheir other election duties within the time allotted.
iii. Conclusion
In sum, while the Sandusky factors reflect a state’s legitim ate interests in maintaining a precinct-based election syst em, the St ate does not show how these interests support the specific restriction challenged here: the summary rejection of poll-

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worker-induced right-place/wrong-precinct ballots. Because the State fails to identify precise interests justifying this substantial burden, we agree with the district court that the SEIU plaintiffs have shown a likely equal protection violation.
b. Due Process & Disqualification Despite Poll-Worker Error
The voter burden identified by the SEIU plaintiffs likewise supports the district court’s finding of a probable due process vi olation. The Due Process Clause protects against extraordinary voting restrictions that render the voting system “fundamentally unfair.” See, e.g., Warf v. Bd. of Elections of Green Cnty., Ky. , 619 F.3d 553, 559 (6th Cir. 2010); League of Women Voters, 548 F.3d at 478. “[G]arden variety election irregularities” do not rise to that level, Griffin v. Burns, 570 F. 2d 1065, 1076 (1st Cir. 1978), but substantial changes to state election procedures and/or the implementation of non-uniform standards run afoul of due pr ocess if t hey “result in significant disenfranchisement and vote dilution,”Warf, 619 F.3d at 559 (citations omitted). So too do state actions that induce voters to m iscast their votes. Griffin, 570 F.2d at 1074, 1078–79 (finding that Rhode Island’s post-election invalidation of absentee ballots violated due process, because voters relied on state directives allowing such ballots); Hoblock v. Albany Cnty. Bd. of Elections, 487 F. Supp. 2d 90, 97 (N.D.N.Y. 2006).
Although this iss ue was not ripe at the tim e, Hunter expressed “substantial constitutional concerns regarding the invalidation of votes cast in the wrong precinct due solely to poll-worker error.” 635 F.3d at 243.
Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directingvoters to the right location to vote. Yet, the state law penalizes the voterwhen a poll worker directs the voter to the wrong precinct, and the penalyt, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundam entally unfair. Cf. [Purcell v. Gonzalez , 549 U .S. 1, 4 (2006)] (“[T]he possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.”).

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Id. at 243. The SEIU plain tiffs have shown, and the State does not deny, that pollworker error causes thousands of qualified voetrs to cast wrong-precinct ballots fromthe correct polling locations.
Even so, t he State argues that a due process violation requires intentional conduct. See, e.g., Shannon v. Jacobowitz, 394 F.3d 90, 96 (2nd Cir. 2005). It appears we have not opined on the scienter necessary for a voting r estriction to violate due process, see League of Women Voters, 548 F.3d at 476 (declining to decide the scienter requirement for a voting restriction to vi olate equal protection), 478 (finding, at the 12(b)(6) stage, that allegations of system ic irregularities in Ohio’s elections system supported a due process violation, without a ddressing scienter). Yet, accepting the State’s premise, we find sufficient indicia of purposeful conduct in the State’s intent to enforce its strict disqualif ication rules without exception, despite the system ic pollworker error identified in this litigation and others. Hunter shed light on this problem last year, but the State persisted in its position. In light of the well-docuemnted problem of wrong-precinct provisi onal ballots caused by poll-worker error, resulting in the rejection of thousands of provisional ballo ts each year, we have no basis on which t o disagree with the district court’s finding of a likely due process violation.
c. Equal Protection & Consent Decree’s Non-Uniform Standards
We next address the consent decree’s dfiferential treatment of provisional ballots depending on the form of identificati on used by the voters. As the district court explained, the Ohio Revised Code rejects all wrong-precinct ballots, but the consent decree provides a rem edy only for SSN-4 voters. For those SSN-4 voters who later show that poll-worker error caused their wrong precinct or deficient-affirm ation vote, the consent decree saves their ballots fromrejection. A provisionalvoter using any other form of identification (e.g., current photo identification, copy of current utility bill, paycheck) receives no such reprieve.
Both the State and the SEIU plaintiffs addressed this issue before the district court. In arguing for an expansion of the consent decree, the SEIU plaintiffs objected to its “arbitrary and unequal counting and rejecting of the ballots of lawfully registered

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Ohio voters.” (SEIU Pls.’ Second Am . Compl. ¶ 94; Mot. Prelim . Inj. at 31.) The Secretary similarly acknowledged this equal protection problem in the consent decree, but argued that “it’s equally plausible to say that the proper reemdy is to treat everybody the same and do away with the NEOCH decree.” (R. 69, Tr. Oral Arg. at 58:11–17.) Though both parties continue to recognize this equal protection problem, they disagree on a fix. The NEOCH plaintiffslikewise recognized this problemwhen they moved the district court to expand the consent decree to avoid constitutional infirmity.
We agree with all of the parties and th e district court that the consent decree likely violates the equal protection principle recognized in Bush v. Gore. “[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972). “Having once granted the right to vote on equal term s, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104–05. It appears to us that the consent decree does just that.
Our Hunter case noted a sim ilar equal protection problem with thi s consent decree. There, the Hamilton County electionsboard “considered evidence ofpoll-worker error with respect to som e ballots cast in the wrong precinct but not ot her similarly situated ballots when it evaluated which ballots to count.” Hunter, 635 F.3d at 238. Hunter recognized the possibility that Ham ilton County’s treatm ent of provisional ballots under the consent decree could create a statewide equal protection problem, but limited its analysis to the county-based equal protection claim brought by the parties. See id. at 241–42.
Here, the SEIU plaintiffs’ equal protection claim squarely raises the statewide disparity inherent in the terms of the consent decree: its preferential treatment of SSN-4 provisional ballots. (SEIU Pls.’ SecondAm. Compl. ¶ 94.) Consistent withHunter, we join the pa rties and the district court in finding that the consent decree’s different treatment of similarly situated provisional ballots likely violates equal protection.

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2. Irreparable Injury, Substantial Harm to Others, Public Interest
Turning to the equitable consider ations, the State does not contest the district court’s core findings of irreparable harm to the voter and absence of harm to others. Rather, it offers only vague public-interest concerns, speculating that the injunction will spawn additional poll-worker error, vote dilution, and post-election litigation. As we explained in rejecting the CRACC amici’s vote-dilution argument, the record does not support the f ear that count y boards w ill err in rem aking wrong-precinct ballots by improperly counting ineligible “down ballot” votes. Nor do we anticipate that the injunction’s narrow remedy—saving “up-ballot” votes frompoll-worker-induced wrongprecinct ballots—will spur a mountain of post-election litigation. The State has not shown that the district court abused its discretion in weighing the equitable considerations.
Nor has the State shown abuse in the district court’s fashioning of injunctive relief tailored to t he identified harm. The State would disqualify thousands of rightplace/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s prec inct guidance. That path unjustifiably burdens these voters’ fundamental right to vote. Recognizing that a prospective remedy could not undo all of the harm occasioned by poll-worker error, the district court crafted a narrow reemdy that preserves as m uch of a m iscast ballot as possible. The Secretary has now adopted regulations implementing the district court’s lim ited remedy for right-place/wrongprecinct provisional ba llots. See SOS Directive 2012-44 & Form 12-D. These regulations enable the State to identify and document recalcitrant voters that disregard poll-workers’ precinct instructions, so that these provisional ballots can be excluded. Because the State offers no persuasive reason to disturb the district court’s remedy, as implemented by the Secretary, we affirm the wrong-precinct aspect of the preliminary injunction.

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C. The Deficient-Affirmation Ballots
The district court identif ied only one probable constitutional violation as supporting the injunction’s deficient-affi rmation remedy: the unreasonableness of disqualifying deficient-affirmation ballots caused by poll-worker error, in derogation of equal protection. Because the spotty reco rd and Ohio law do not support the district court’s presumption of poll-worker error, we find no likely constitutional violation and reverse this aspect of the preliminary injunction.
The district court’s opinion suffers fromtwo presumptions not supported by the record: (1) that the absence of legitimate state interests overcom es any dif ficulty “quantify[ing] the precise magnitude of the burden imposed by [Ohio’s] restriction on the class of affected voters,” and (2) that state law requires poll-workers to ensure that provisional voters properly complete ballot affirmations. (Plenary Op. & Order at 44.) The district court’s m inimal findings on th is count reflect that Ohi o rejected 568 provisional ballots in 2011 due to technical deficiencies appearing in the ballot affirmations, but do not specify which of thees ballots suffered fromwhich deficiencies. To be sure, the SEIU plaintiffs grouped a variety of voter-penned errors in support of this claim—e.g., missing, misplaced, and non-matching signatures, and failure to include a printed name.
In our view, the difficulty in measuring the voter burden imposed by the ballotaffirmation requirement stems from the fact that all of the identified deficiencies arise from voters’ f ailure to f ollow the f orm’s rather sim ple instructions: (1) print nam e, (2) provide identification,11 and (3) sign the affirmation appearing at the bottom. See SOS Form 12-B. Even the last step is optoi nal, because Ohio law permits voters to cast a provisional ballot without signing the affirmation upon notifying a poll worker. O.R.C. § 3505.181(B)(6). Contrary to the district court’s suggestion, Ohio law does not task poll-workers with quality control of ballot affirmations. Rather, the Ohio provisions cited by the district court instruct provisional voters to “execut[ e] . . . a written

11The SEIU plaintiffs do not challenge Ohio’s voter-identification requirements.

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affirmation . . . before an election o fficial,” O.R.C. § 3505.181(B)(2), and require election officials to “record the type of identification provided, the social security number information, the fact that t he affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot,” O.R.C. § 3505.181(B)(6).
During oral argum ent, the SEIU appe llees conceded that Ohio’s ballotaffirmation requirement imposes a lesser burden on voters than Ohio’s precinct requirement. In light of Ohio’s similar signature requirements for casting regular ballots with proper identification, absentee ballots, and issue petitions, see O.R.C. §§ 3509.03, 3509.05, 3519.01, 3505.18, we agree. Ohio’s legitimate interests in election oversight and fraud prevention easily justify the minimal, unspecified burden asserted by the SEIU plaintiffs. Because the SEIU plaintiffs have not shown a likelihood of success on the merits, we reverse the preliminary injunction’s deficient-affirmation remedy.
IV. THE CONSENT DECREE (Appeal 12-3916)
A. Applicability of Rule 60(b)
Ohio and the Secretary argue that Rule 60(b) does not apply to this case because (1) Ohio election law does not provide exceptions for the counting of any wrongprecinct or deficient-affirmation ballots, and the consent decree m ade no predicate findings of a constitutional violation; (2) the consent decree, by its own term s, is modifiable for “good cause”; and (3) this court already ruled that the consent decree is not a “final judgment.” They claim that because Oh io and the Secretary entered an agreement with the plaintiffs that they now contend violates Ohio law, it is void, and Rule 60(b) does not apply to a request to vacate it. We hold that Rule 60(b) applies to this case and that Ohio and the Secretary have not sustained their burden under Rule 60(b). Thus, we a ffirm the district court’s denial of the request to vacate the consent decree.
Ohio and the Secretary argue that if a consent decree requires a state to take actions that violate state law, and no predicate federal constitutional violation has been

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established, Rule 60(b) does not apply. They cite a number of cases for this proposition,
but all of them involved either third parties challenging a consent decree reached by others, or review of legal challenges to a consent decree on direct appeal.12 Rule 60(b)
would not have been implicated in these cases because those challenging the validity of
the decrees were either not “parties,” as required by Rule 60(b), or properly raised their
argument on direct appeal in the underlying litigation. None involved a party contesting
the validity of a decree to which it previously consented after the decree became final
and the time for direct appeal passed. In the only case we are aware of addressing facts
similar to those posed here, the Second Circuit applied Rule 60(b) to deny the
government’s request for relief from the consent decree. See Congregation Mischknois
Lavier Yakov, Inc. v. Bd. of Trs. for Village of Airmont, 301 F. App’x 14, 15 (2d C ir.
2008) (rejecting defendant’s argument “inasmuch as the settlem ent and order were
contrary to state law, they were void and should be vacated”).
Although they do not acknowledge it, Ohio and the Secretary make an argument
properly characterized as falling under Rule 60(b)(4). Rule 60(b)(4) perm its final
judgments to be lifted if “void.” But the Supreme Court has held that nothing short of
a “jurisdictional error” or “a violation of due process” justifies relief under Rule
60(b)(4). See United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).
Neither is alleged or shown here. Espinosa was itself a case where a final judgment
enshrined a violation of federal law, andthe corporation challenging that judgment under
Rule 60(b) did nothing to address this problem in a timely fashion. Id. at 1380. Ohio
and the Secretary contend that the consent decree was flawed “when it was entered.”
12See St. Charles Tower, Inc. v. Kurtz, 643 F.3d 264, 266 (8thCir. 2011) (appeal by intervenors who were not parties to a consent decree betw een plaintiffs and defendant zoning board); League of Residential Neighborhood Advocates v. City of L.A., 498 F.3d 1052, 1053 (9th Cir. 2007) (lawsuit brought by neighbors of a synagogue that entered a consent decree with the defendant in a separa te case); Cleveland Cnty. Ass’n for Gov’t by the People v. Cleveland Cnty. Bd. of Comm’rs, 142 F.3d 468, 471 (D.C. Cir. 1998) (lawsuit brought by third-party voters group challe nging consent decree entered by NAACP and the defendant); Keith v. Volpe , 118 F.3d 1386, 1389–90 (9th Cir. 1997) (appeal of an injunction entered pursuant to a consent decree by a businessman who was not a party to the decree); Perkins v. City of Chi. Heights, 47 F.3d 212, 214 (7th Cir. 1995) (appeal by two of the named plaintiffs in a class action objecting to a consent decree reached by the rem aining named plaintiffs and the defendant); People Who Care v. Rockford Bd. of Educ. Sch. Dist. No. 205, 961 F.2d 1335, 1336 (7th Cir. 1992) (appeal by a teacher’s union that was not a party to a consent decree between a school district and various citizens’ groups); Kasper v. Bd. of Election Comm’rs of the City oCf hi., 814 F.2d 332, 338–39 (7th Cir. 1987) (appeal by plaintiffs dissatisfied with a consent decree reached by intervening plaintiffs and defendants).

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(Appellant’s Br. at 27.) Nonetheless, they agreed to and were signatories to the consent decree and did not begin challenging it as “void” until more than a year after the fact. “Where, as here, a party [has notice of a violation of law enshrined in a final judgment] and fails to object to [it] before the time for appeal expires, that party has been afforded a full and fair opportunity to litigate, and the party’s failure to avail itself of that opportunity will not justify Rule 60(b)(4) relief.” Espinosa, 130 S. Ct. at 1380. Therefore, we agree with the plaintiffs that Rule 60(b)(4) governs challenges to an allegedly “void” consent decree and that Ohio and the Secretary have not met the high threshold necessary to bring such a challenge.
The consent decree provides that “[a]ny of the parties may file a motion with the Court to modify, extend or term inate this Decree for good cause shown.” (Consent Decree at V(11).) Ohio and the Secretary argue that this clause constitutes a “waiver” of the strictures of Rule 60(b). It does not. While a consent decree “embodies an agreement of the parties and thus in some respects is con tractual in nature,” it is nonetheless subject to Rule 60(b) because it is “a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992). The words “good cause shown” do not upset this general presumption. Even when consent decrees explicitly provdie instructions for their own modification, Rule 60(b) governs. Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 741 (6th Cir. 2012) (“[A] district court is not merely an instrument of a consent decree or of the parties’ stipulations with respect to it,” and termination of a decree must be “lawful given not only the decree’s terms, but also the broader legal rules that govern consent decrees”). Moreover, while we review the district court’s interpretation of a consent decree it approves de novo, we have applied “deferential de novo” review to the district court’s interpretation of a consent decree it supervised and approved. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 371–72 (6th Cir. 1998) (emphasis added). The district court’s conclusion that Rule 60(b) applied to this dispute removes any doubt that the “good cause shown” language in the consent decree reaf firms Rule 60(b)’s applicability, rather than circumventing it.

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The consent decree explains that it is “final and binding among and between [the parties] as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree.” (Consent Decree, preamble.) Nonetheless, Ohio and the Secretary argue that this court’s recent opinion in NEOCH v. Husted, --F.3d ----, 2012 WL 3734369 (6th Cir. Aug. 30, 2012), establishes that the consent decree is not a “final judgment” subject to Rule 60(b). That decision addressed whether the plaintiffs, by entering into the consent decree, waived their right to petition f or supplemental attorney fees and costs pursuant to 42 U.S.C. § 1988(b). NEOCH, 2012 WL 3734369, at *4. We found that the consent decreedid not constitute such a waiver. Id. at *8.
Contrary to the position taken by Ohio and the Secretary, that ruling had no bearing on whether or not the consent decree was a “final order, judgm ent, or proceeding” for Rule 60(b) purposes. Our case law interpreting § 1988(b) in the context of settlement agreements has focused on whether or not “the parties intended the settlement to be a final disposition of all claims,” or if the agreem ent contemplates a future motion for such fees by the “prevailing party.” See Jennings v. Metro. Gov’t of Nashville, 715 F.2d 1111, 1113–14 (6th Cir. 1983) (emphasis added). But in either case, the underlying resolution of the plaintiff’s claims that supports the request for fees is a “final” one for Rule 60(b) purposes. Entitlement to such fees is determined by whether a party “‘succeed[s] on any significant issue in litigation which achieves som e of the benefit the parties sought in bringing suit.’” Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). It is not possible to apply for “prevailing party” fees until a form of “judicially-sanctioned relief” has been provided. Sierra Club v. Hamilton Cnty. Bd. of Cnty. Comm’rs , 504 F.3d 634, 656 (6th Cir. 2007). The consent decree’s explicit statement that it is “final and binding” as to the “matters resolved in this decree” erases any doubts on this point. Accordingly, the recent decision in NEOCH does not alter our views regarding Rule 60(b)’s applicability in this context.

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B. Analysis Under Rule 60(b)
Having rejected the objections to Rule 60(b)’s applicability, our resolution of the appeal is straightforward. “We review a district court’s decision to vacate a decree for an abuse of discretion.” Doe v. Briley, 562 F.3d 777, 782 (6th Cir. 2009). Ohio and the Secretary “‘bear[ ] the burden of establishing that a significant change in circumstances warrants revision of the decree.’” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir. 1996) (quoting Rufo, 502 U.S. at 760). We have already explained why the district court properly found that the consent decree is not “void” under Rule 60(b)(4). As to Rule 60(b)(5), Ohio and the Secretary advanced no argument that they were actually entitled to such relief in their opening brief, since they chose to rely solely on arguments challenging Rule 60(b)’s applicability. See Youghiogheny & Ohio Coal Co. v. Milliken, 200 F.3d 942, 955 (6th Cir. 1999) (“[A]rguments not raised in the proponent’s opening brief on appeal are generally considered abandoned.”). In their reply brief, Ohio and the Secretary argue that they have met the requirements of Rule 60(b)(5) and Rufo because “modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent.” Rufo, 502 U.S. 367, 388 (1992); see also Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994).
Rufo does not support Ohio and the Secretary’s argument. First, Rufo dealt specifically with the issue of clarifying decisions of federal law, not state law, which is the only legal change asserted in No. 12-3916. Second, Ohio and the Secretary have conceded that, at best, Painter merely clarified preexisting Ohio law. Rufo is limited to genuinely unanticipated circumstances. Id. at 384 (“[M]odification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree.”). Third, Rufo acknowledged that parties can and do “settle . . . dispute[s] over the proper remedy for . . . constitutional violations that had been found by undertaking to do more than the Constitution itself requires,” and that allowing the modification of decrees whenever “a clarification in the law” comes about would greatly “undermine the finality of such agreements” and “serve as a disincentive to negotiation of settlements

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in institutional reform litigation.” Id. at 388–89; see also Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 613–14 (6th Cir. 2011) (“[Rule 60(b)(5)] does not allow modification ‘when it is no longer convenient to live with the terms of a consent decree’ . . . .” (quoting Rufo, 502 U.S. at 383) (emphasis in Northridge Church)). Applying Rufo in this case would raise serious finality concerns, given Ohio and the Secretary’s change of course on the proper law to be applied.
Moreover, even taking into account the arguments raised in the reply brief, Ohio and the Secretary have not carried their burden on two other aspects of the Rufo test recognized by this circuit. In addition to a “significant change in circumstances,” the moving party must show that the consent decree is “onerous,” “unworkable,” or “detrimental to the public interest.” Heath v. DeCourcy, 992 F.2d 630, 635 (6th Cir. 1993). Furthermore, if changes are anticipated, as they appeared to be in this case, the party seeking to modify the decree must show that the original decree was agreed to in good faith, that reasonable ef forts at compliance were made, and that it ought to be relieved of its obligations. Id. Ohio and the Secretary have not attempted to make these showings, much less carry their burden on them. Accordingly, the district court did not abuse its discretion in refusing to modify the consent decree under Rule 60(b).
C. Remaining Issues with Consent Decree
Before concluding, we note some additional issues our ruling creates that must be resolved. While we have set aside the potrion of the preliminary injunction addressing deficient-affirmation provisional ballots, the consent decree continues to mandate that some deficient-affirmation provisional ballots will be counted. This dsicrepancy appears to create a Bush v. Gore problem. Similarly, the consent decree standing on its own also raises Bush v. Gore issues by virtue of treating some provisional ballots differently than others. This latter concern is not purely academic, as the consent decree will be the only agreement governing these issues for Ohio’s 2013 primary elections.
In the order on appeal in No. 12-4069, the dsitrict court held that the discrepancy the consent decree creates between different sets of provisional ballots form ed an alternate justification for the prelim inary injunction. Both Ohio and the Plaintiffs

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attempted to leverage this ruling on appeal in No. 12-4069 by arguing that either none or all of these ballots ought to be counted,respectively. But the district court has never ruled on this argument in the context of a request to modify or vacate the consent decree. The NEOCH Plaintiffs did make a motion to this effect in the district court, but it was stayed pending this appeal. Moreover, the discrepancy betwee n deficient-affirmation ballots for the November 2012 election is entirely a creature of this court’s decisions, and has never been considered by the district court. Because the district court has not had an opportunity to address these issues, and decisions to modify consent decrees are generally left to the discretion of the trial court, the proper course is to remand this case so that the parties, by proper motion or agreement, may address the issue in the district court. Ohio, which has the m ost to lose by a rem and, suggested such relief would be appropriate on appeal if such a finding were made. (Ohio Br., No. 12-4069, at 32 (“[I]f [the court] finds that the Decree creates a constitutional violation, it can note that as a holding, leaving the district court on remand to address that.”).)
V. CONCLUSION
For the above reasons, we AFFIRM IN PART and REVERSE IN PART the district court’s preliminary injunction in appeal 12-4069. Specifically, the preliminary injunction’s wrong-precinct rem edy is AFFIRMED, and the deficient-affi rmation remedy is REVERSED. The district court’s judgment in No. 12-3916 is AFFIRMED, and the matter is REMANDED for further proceedings.

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0375p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1, et al.,
Plaintiffs-Appellees,

X -

-

v.

,>

-

JON HUSTED,

-

Defendant-Appellant,

-

-

STATE OF OHIO,

-

Intervenor Defendant-Appellant,

-

-

TIMOTHY M. BURKE, et al.,

-

Defendants. -

N

No. 12-4264

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 12:-cv-00562—Algenon L. Marbley, District Judge.
Filed: October 31, 2012 Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge*
_________________
OPINION _________________
PER CURIAM. The State of Ohio and Jon Husted, Ohio’s Secretary of State (“Secretary”), move for a stay pending appeal of the district court’s October 26, 2012 order granting the plaintiffs’ renewed m otion for a pr eliminary injunction. The order requires Ohio and the Secretary to count provisional ballots cast in the wrong polling

*The Honorable Lee H. Rosenthal,United States District Judge for the Southern District of Texas, sitting by designation.
1

No. 12-4264

SEIU, et al. v. Jon Husted, et al.

Page 2

place due to poll-worker error—so-called wrong-place/wrong-precinct ballots—in the November 6, 2012 election. We GRANT the motion.

We recently affirmed a preliminary injunction entered by the district court on

August 27, 2012, directing Ohio and the Secretary to count right-place/wrong-precinct

provisional ballots caused by poll-worker error in the upcoming election. See Ne. Ohio

Coal. for the Homeless v. Husted , --- F.3d ----, 2012 WL 4829033 (6th C ir. Oct. 11,

2012) [hereinafter NEOCH]. In that opinion, we notedthat the August 27 order did not

require the counting of wrong-place/wrong-precinct ballots. Id. at *6–8. But we

expressed no view on whether the refusal to count such ballot

s imposed an

unconstitutional burden on voters, leaving the question open f or possible f uture

litigation. Id. at *7 n.6. On October 17, the plaintiffs filed a renewed m otion for a

preliminary injunction in the district court that would mandate the counting of wrong-

place/wrong-precinct ballots, reiterating a request made in their original June 22, 2012

motion for a preliminary injunction but not included in the August 27 order. The district

court granted the renewed motion after a hearing. Ohio and the Secretary unsuccessfully

moved for a stay of the prelim inary injunction during the hearing, prom pting this

emergency appeal.

We review four factors when evaluating a stay pending appeal under Federal Rule of Appellate Procedure 8(a):

(1) the likelihood that the party seekni g the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.

Mich. Coal. of Radioactive Material Users, Inc. v. Gripentrog, 945 F.2d 150, 153 (6th Cir. 1991). “These factors are not prerequisites that m ust be met, but are interrelated considerations that must be balanced together.” Id. As the moving party, Ohio has the burden of showing it is entitled to a stay. Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).

No. 12-4264

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We begin by considering “the likelihood that the district court’s prelim inary injunction order will be upheld on a ppeal.” Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006). This involves exam ination of the four factors the district court considered when assessi ng the plaintiffs’ m otion for a preliminary injunction—likelihood of s uccess on the m erits, irreparable harm to the moving party, harmto other parties, and the public interest.Overstreet, 305 F.3d at 573. While a “grant or denial of a pr eliminary injunction is reviewed for an abuse of discretion,” we are mindful that a preliminary injunction is an “extraordinary” form of relief and that the moving party in the district court has the “burden of proving that the circumstances clearly demand it.” Id.
Ohio and the Secretary are quite likely to demonstrate on appeal that plaintiffs failed to show a strong likelihood of successon the merits of their constitutional claims with respect to wrong-place/wrong-precinct ballot s. The salient feature of the rightplace/wrong-precinct problem addressed in NEOCH is the disenfranchisement of voters who arrive at the correct polling place (and are otherwise eligible to vote) solely as a consequence of poll-worker error, a situation caused by Ohio’s systemof multi-precinct polling places. NEOCH, 2012 W L 4829033, at *10–13. Yet, the distr ict court’s expanded preliminary injunction glosses overthis distinguishing feature—that the voter arrived at the correct polling place—by finding that Ohio law imposes an “identical” burden on voters who cast wrong-place/wrong-precinct ballots. (R. 90, Op. & Order at 9, PageID #6232.) In other words, because poll workers make the same errors, the voter burden must be the same. This conclusion absolves voters of all responsibility for voting in the correct precinct or correct polling place by assessing voter burden solely on the basis of the outcome—i.e., the state’s ballot validity determination. While poll-worker error may contribute to the occurrence of wrong-place/wrong-precinct ballot s, the burden on these voters certainly differs from the burden on right-place/wrong-precinct voters—and likely decreases—because the wrong-place/wrong- precinct voter took affirmative steps to arrive at the wrong polling location. The district court abused i ts discretion by failing to distinguish these burdens.

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Though voters must rely heavily on poll workers to direct them to the proper precinct in a multi-precinct voting place, they are not as dependent on poll workers to identify their correct polling place. Ohio lawrequires election officials to provide notice to voters of where they are eligible to vote after they register or iftheir precinct changes. See Ohio Rev. Code §§ 3503.16(E) (change in address of voter); id. § 3503.17 (change in precinct boundaries); id. § 3503.19(C)(1) (new voters). Furtherm ore, information about where to vote is easily accessible by calling county boards of elections or accessing the Secretary’s webpage. See, e.g., “Find Your Polling Location,” Ohio Sec’y of State, http://www.sos.state.oh.us/SOS/pollinglocation.aspx?page=361. In our view, a voter who fails to utilize these tools and arrives at the wrong polling location cannot be said to be blameless in the same way as a right-place/wrong-precinct voter. And the district court’s findings of thousands of rejected wrong-precinct ballots overstates the sparse evidence of poll workers sending voters to the wrong polling location. (R. 90, Op. & Order at 10 n.3, PageID #6233; see also SEIU Appellees’ Resp. Br. at 14.)
Even assuming that O hio law imposes an “identical” burden on w rongplace/wrong-precinct voters, the state’s interes t in enforcing a particular rule varies according to the impact of non-enforcement on its legitimate interests. We suggested in the NEOCH opinion that shifting all responsibility for determining the proper polling place to poll workers would have far-reaching implications for Ohio’s precinct-based voting system that go well beyond the issues created by multi-precinct polling places. NEOCH, 2012 W L 4829033, at *7 (describing the “wrong place, wrong precinct” remedy as a “vote anywhere” remedy).
Moreover, the district court’s injunction, ni disregarding the importance of voting place, has a signif icant effect on the S tate’s legitimate interest in m aintaining its precinct-based voting system . Unlike the prior injunction, the expanded injunction opens the door for steering last-second voters to convenient (though incorrect) polling places, in the hopes that some of the votes will count. This perverse incentive did not exist with right-place/wrong-precinct voters; voters who make the effort to arrive at the correct polling place would have no reason to miscast their vote at the wrong table or in

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the wrong line. And even if shorter precinc t lines presented such an incentive for a handful of those voters, the district court’s August 27 pr eliminary injunction requires poll-workers to inform voters that a miscast vote would not count. See Ohio Sec’y of State, Form 12-D, available at http://www.sos.state.oh.us/sos/upload/elections/forms/12-D.pdf. These considerations lead us to conclude that Ohio and the Secretary will m ore than likely demonstrate on appeal that the plaintiffs failed to “show more than a mere possibility of success” on the merits of their constitutional claim. Six Clinics Holding Corp., II v. Cafcomp Sys., Inc,. 119 F.3d 393, 402 (6th Cir. 1997).

Turning to the plaintiffs’ assertions of irreparable harm , the obstacles the

plaintiffs will face in defending the wrong-place/wrong-precinct injunction on appeal

become manifest. The plaintiffs concede that they asked for wrong-place/wrong-

precinct relief in their original m otion for a preliminary injunction. (R. 84, Renewed

Mot. for Prelim. Inj. 2, at #6095). But th e district court’s August 27 order, though

ambiguous at points, did not grant that relief, and neither did the Secretary’s directive

implementing the district court’s ruling. See Ohio Sec’y of State, Directive 2012-44, at

1 (Sept. 11, 2012),

available at

http://www.sos.state.oh.us/SOS/Upload/elections/directives/2012/Dir2012-44.pdf.

Furthermore, plaintiffs’ original appellate briefing tacitly acknowledged the di strict

court’s failure to grant broader relieffor wrong-place/wrong-precinct ballots by arguing

that the record—not the district court’s opniion—justified such relief. (SEIU Appellees’

Br. at 81–85.) Accordingly, it is fairto say that, following our decision inNEOCH, the

plaintiffs renewed their request for broader injunctive relief by repeating arguments with

no new facts or law to support them.

As a general rule, last-m inute injunctions changing election pr ocedures are strongly disfavored. Purcell v. Gonzalez , 549 U.S. 1, 4–5 (2006) (“Court orders affecting elections . . . can them selves result in voter confusion . . . . As an election draws closer, that risk will increase.”);Ne. Coal. for the Homeless v. Blackwel,l467 F.3d 999, 1012 (6th Cir. 2006) (“[T]here is a strong public interest in smooth and effective

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administration of the voting laws that militates against changing the rules in the middle of submission of absentee ballots.”); Summit Cnty., 388 F.3d at 551 (“It is particularly harmful to such interests to have the rules changed at the last minute.”). The application of that principle is parti cularly appropriate when a party does not seek to clarify or expand the scope of relief after having an opportunity to do so, in the district court and on appeal, in the m onths before an election, and then asks for reconsideration of that relief days before an el ection. The plain tiffs’ failure to act earlier in pursuing these claims significantly undermines their assertionsof irreparable harmin the absence of the injunction.
Meanwhile, the harm to Ohio, the Secretary, and the general publ ic caused by issuance of this injunction easily outweighs any potential harm to the plaintiffs if their view of the law is eventually determ ined to be correct. The injunction, it should be noted, both requires the expedited issuance ofnew instructions to poll workers less than two weeks before the electionand refuses enforcement of a presumptively constitutional policy regarding voter eligibility. Blackwell, 467 F.3d at 1012 (“There is . . . a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote.”). Moreover, the inevitable result of the injunction’s dramatic changes to Ohio’s precinct voting systemwill be interference with orderly election administration and greater confusion among poll workers and voters. Id. Early voting is already underway in Ohio. eSe “Voting Early in Person,” Ohio Sec’y of State, http://www.sos.state.oh.us/SOS/elections/Voter s/absentee/inperson.aspx. Changing election rules in this manner while voting is occurring disrupts the electoral process and threatens its fairness. Theseharms to the public and its elected government are significant ones. We therefore find that Ohio and the Secretary have demonstrated a high likelihood of success on their appeal of the October 27 preliminary injunction.
We conclude by briefly addressing the three final factors of the test for granting a stay—irreparable harm to Ohio and the Secretary absent a stay, irreparable harm to others if the stay is granted, and the public interest in granting the stay. For the reasons stated previously in r eviewing Ohio’s likelihood of success on an appeal of the

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preliminary injunction, we agree with Ohio and the Secretary that all three of these factors weigh in their favor. Accordingly, the issuance of a stay is appropriate.
For these reasons, we GRANT Ohio and the Secretary’s emergency motion to stay the district court’s October 26, 2012 order.