Case: 2:20-cv-01638-MHW-EPD As of: 07/12/2020 11:45 PM EDT 1 of 13

U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:20−cv−01638−MHW−EPD

CLOSED

League of Women Voters of Ohio et al v. LaRose Assigned to: Judge Michael H. Watson Referred to: Magistrate Judge Elizabeth Preston Deavers Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/30/2020 Date Terminated: 04/20/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

League of Women Voters of Ohio

represented by Naila S. Awan Demos 80 Broad Street, 4th Floor New York, NY 10004 212−485−6065 Fax: 212−633−2015 Email: nawan@demos.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Lioz Demos 740 6th Street, NW 2nd Floor Washington, DC 20001 (202) 251−8519 Email: alioz@demos.org PRO HAC VICE ATTORNEY TO BE NOTICED

Chiraag Bains Demos 740 6th Street NW Second Floor Washington, DC 20001 202−864−2746 Email: cbains@demos.org PRO HAC VICE ATTORNEY TO BE NOTICED

David J. Carey American Civil Liberties Union of Ohio Foundation 1108 City Park Avenue Suite 203 Columbus, OH 43206 (614) 586−1972 Fax: (614) 586−1974 Email: dcarey@acluohio.org ATTORNEY TO BE NOTICED

Ezra Rosenberg Lawyers Committee for Civil Rights Under Law 1500 K Street, NW Suite 900 Washington, DC 20005 (202) 662−8345 Email: erosenberg@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff Ohio A. Philip Randolph Institute

Freda J Levenson ACLU of OHIO 4506 Chester Avenue Cleveland, OH 44103 614/586−1959 Fax: 216−472−2210 Email: flevenson@acluohio.org ATTORNEY TO BE NOTICED
Jacob Conarck Lawyers Committee for Civil Rights Under Law 1500 K Street, NW Suite 900 Washington, DC 20005 (202) 662−8395 Email: jconarck@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum Lawyers Committee for Civil Rights Under Law 1500 K Street, NW Suite 900 Washington, DC 20005 (202) 662−8315 Email: jgreenbaum@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Pooja Chaudhuri Lawyers Committee for Civil Rights Under Law 1500 K Street, NW Suite 900 Washington, DC 20005 (202) 662−8319 Email: pchaudhuri@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Emerson Gordon−Marvin Demos 80 Broad Street 4th Floor New York, NY 10004 (212) 485−6064 Email: egordonmarvin@demos.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Naila S. Awan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Lioz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:20-cv-01638-MHW-EPD As of: 07/12/2020 11:45 PM EDT 3 of 13

Plaintiff Lashunda Lee

Chiraag Bains (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Freda J Levenson (See above for address) ATTORNEY TO BE NOTICED
Jacob Conarck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Emerson Gordon−Marvin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Naila S. Awan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Lioz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chiraag Bains (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Freda J Levenson

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Plaintiff Munia Mostafa

(See above for address) ATTORNEY TO BE NOTICED
Jacob Conarck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Emerson Gordon−Marvin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Naila S. Awan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Lioz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chiraag Bains (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Freda J Levenson (See above for address) ATTORNEY TO BE NOTICED
Jacob Conarck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address)

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Plaintiff Audrianna Victorian Rodriguez
Plaintiff Hannah Tuvall TERMINATED: 03/31/2020

PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Emerson Gordon−Marvin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Naila S. Awan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Lioz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chiraag Bains (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Freda J Levenson (See above for address) ATTORNEY TO BE NOTICED
Jacob Conarck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Emerson Gordon−Marvin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Naila S. Awan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Carey

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Plaintiff Hannah Tuvell

(See above for address) ATTORNEY TO BE NOTICED
Freda J Levenson (See above for address) ATTORNEY TO BE NOTICED
represented by Naila S. Awan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Lioz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chiraag Bains (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Ezra Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Freda J Levenson (See above for address) ATTORNEY TO BE NOTICED
Jacob Conarck (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Emerson Gordon−Marvin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
Libertarian Party of Ohio TERMINATED: 04/05/2020

represented by Mark R Brown 303 East Broad Columbus, OH 43215 614−236−6590

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Fax: 614−236−6956 Email: markrbrown59@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Frank LaRose in his official capacity as Secretary of State of Ohio

represented by Jonathan Rea Secrest Dickinson Wright PLLC 150 East Gay Street Suite 2400 Columbus, OH 43215 614−744−2572 Fax: 844−670−6009 Email: jsecrest@dickinsonwright.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann Yackshaw Ohio Attorney Generals Office Constitutional Offices Section 30 E. Broad Street, 16th Floor Suite 1200 Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: ann.yackshaw@ohioattorneygeneral.gov TERMINATED: 04/01/2020
David A. Lockshaw , Jr. Dickinson Wright PLLC 150 E. Gay Street 24th Floor Columbus, OH 43215 614−744−2945 Fax: 844.670.6009 Email: dlockshaw@dickinsonwright.com ATTORNEY TO BE NOTICED
Julie M Pfeiffer Ohio Attorney General's Office Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: Julie.Pfeiffer@ohioattorneygeneral.gov TERMINATED: 04/01/2020

V. Intervenor Defendant State Of Ohio

represented by Julie M Pfeiffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann Yackshaw (See above for address) ATTORNEY TO BE NOTICED

Case: 2:20-cv-01638-MHW-EPD As of: 07/12/2020 11:45 PM EDT 8 of 13

Intervenor Defendant Ohio Democratic Party
Intervenor Defendant Ohio Republican Party
Amicus Honest Elections Project Amicus Disability Rights Ohio

represented by Nathaniel Zachary West O'Connor Haseley & Wilhelm, LLC 35 North Fourth Street Ste. 340 Columbus, OH 43215 614−208−4375 Email: west@goconnorlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek S. Clinger McTigue McGinnis & Colombo LLC 545 E. Town Street Columbus, OH 43215 614−263−7000 Fax: 614−263−7078 Email: dclinger@electionlawgroup.com ATTORNEY TO BE NOTICED
Donald Joseph McTigue McTigue & McGinnis LLC 545 E. Town Street Columbus, OH 43215 614−263−7000 Fax: 614−263−7078 Email: dmctigue@electionlawgroup.com ATTORNEY TO BE NOTICED
represented by Christopher N Slagle Bricker & Eckler LLP 100 South Third Street Columbus, OH 43215 614−227−8826 Email: cslagle@bricker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Marie Sferra Bricker & Eckler − 2 100 S Third Street Columbus, OH 43215−4291 614−227−2300 Email: asferra@bricker.com ATTORNEY TO BE NOTICED
represented by Jason R Stuckey Bricker and Eckler 201 E. Fifth Street Suite 1110 Cincinnati, OH 45202 513−870−6687 Email: jstuckey@bricker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin J Truitt Disability Rights Ohio 200 Civic Center Drive

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Suite 300 Columbus, OH 43215 614−466−7264, Ext 122 Fax: 614−644−1888 Email: ktruitt@disabilityrightsohio.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie G. Keys Ohio Disability Rights Law and Policy Center, Inc. 200 Civic Center Drive Suite 300 Columbus, OH 43215−4234 614−466−7264 Email: jkeys@disabilityrightsohio.org ATTORNEY TO BE NOTICED

Date Filed 03/30/2020
03/30/2020 03/30/2020 03/31/2020
03/31/2020 03/31/2020 03/31/2020 03/31/2020 03/31/2020

# Docket Text
1 COMPLAINT against Frank LaRose ( Filing fee $ 400 paid − receipt number: 0648−7402349), filed by Audrianna Victorian Rodriguez, Lashunda Lee, Ohio A. Philip Randolph Institute, Hannah Tuvall, League of Women Voters of Ohio, Munia Mostafa. [ELECTION ISSUE(S) CITED] (Attachments: # 1 Civil Cover Sheet, # 2 Summons Form) (Awan, Naila) (Entered: 03/30/2020)
2 Corporate Disclosure Statement by Plaintiff Ohio A. Philip Randolph Institute. (Awan, Naila) Modified filer on 3/31/2020 (ew). (Entered: 03/30/2020)
3 Corporate Disclosure Statement by Plaintiff League of Women Voters of Ohio. (Awan, Naila) (Entered: 03/30/2020)
4 Emergency MOTION for Temporary Restraining Order by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall. [ELECTION ISSUE(S) CITED] (Attachments: # 1 Exhibit Exhibit A, Declaration of Hannah Tuvell, # 2 Exhibit Exhibit B, Declaration of Molly Katherine Shack, # 3 Exhibit Exhibit C, Ohio Supreme Court Amicus Brief on behalf of LWVO and Ohio APRI, # 4 Exhibit Exhibit D, Ohio Secretary of State, Letter to Members of the Ohio General Assembly (March 21, 2020), # 5 Exhibit Exhibit E, Ohio Association of Election Officials, Letter to Legislative Leaders (March 24, 2020), # 6 Exhibit Exhibit F, Declaration of Lashunda Lee, # 7 Exhibit Exhibit G, Declaration of Robert Flanagan Moore, # 8 Exhibit Exhibit H, Declaration of Munia Mostafa, # 9 Exhibit Exhibit I, Declaration of Audrianna Victorian Rodriguez, # 10 Exhibit Exhibit J, Declaration of Jen Miller, # 11 Exhibit Exhibit K, Declaration of Brenda Savage, # 12 Exhibit Exhibit L, Declaration of Braxton Marie Nicole Jeter, # 13 Exhibit Exhibit M, Declaration of Latrell Sheree Riley, # 14 Exhibit Exhibit N, Declaration of Andre Washington, # 15 Text of Proposed Order Exhibit O, Proposed Order) (Awan, Naila) (Entered: 03/31/2020)
5 AMENDED COMPLAINT against Frank LaRose, filed by Audrianna Victorian Rodriguez, Lashunda Lee, Ohio A. Philip Randolph Institute, Hannah Tuvall, League of Women Voters of Ohio, Munia Mostafa. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Form) (Awan, Naila) (Entered: 03/31/2020)
6 Summons Issued as to Frank LaRose. (ew) (Entered: 03/31/2020)
7 NOTICE of Appearance by Julie M Pfeiffer for Defendant Frank LaRose (Pfeiffer, Julie) (Entered: 03/31/2020)
8 NOTICE of Appearance by Ann Yackshaw for Defendant Frank LaRose (Yackshaw, Ann) (Entered: 03/31/2020)
9 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7403121) of Adam Lioz by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell. (Awan, Naila) (Entered:

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03/31/2020 03/31/2020
03/31/2020
03/31/2020
03/31/2020
03/31/2020 03/31/2020
03/31/2020
04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020

03/31/2020)
NOTICE of Hearing − Telephone Status Conference set for 3/31/2020 at 3:00 p.m. before Judge Michael H. Watson. (jk) (Entered: 03/31/2020)
10 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7403661) of Ezra Rosenberg by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell. (Awan, Naila) (Entered: 03/31/2020)
11 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7403678) of Jacob Conarck by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell. (Awan, Naila) (Entered: 03/31/2020)
12 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7403685) of Jon Greenbaum by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell. (Awan, Naila) (Entered: 03/31/2020)
13 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7403698) of Pooja Chaudhuri by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell. (Awan, Naila) (Entered: 03/31/2020)
14 ORDER signed by Judge Michael H. Watson on 3/31/2020. (jk) (Entered: 03/31/2020)
15 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7404420) of Sean Emerson Gordon−Marvin by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell. (Awan, Naila) (Entered: 03/31/2020)
16 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7404425) of Chiraag Bains by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell. (Awan, Naila) (Entered: 03/31/2020)
17 NOTATION ORDER granting 9 , 10 , 11 , 12 , 13 , and 15 Motions for Leave to Appear Pro Hac Vice of Adam Lioz, Ezra Rosenberg, Jacob Conarck, Jon Greenbaum, Pooja Chaudhuri, and Sean Emerson Gordon−Marvin. By Magistrate Judge Elizabeth Preston Deavers on 4/1/2020. (ew) (Entered: 04/01/2020)
18 NOTICE of Deficiency re 16 Motion for Leave to Appear Pro Hac Vice of Chiraag Bains. (ew) (Entered: 04/01/2020)
Set Deadlines: Deficiency Deadline by 4/15/2020. (ew) (Entered: 04/01/2020)
Reset deadlines pursuant to 14 : Response to 4 Emergency Motion for Temporary Restraining Order due by 4/2/2020 at 3:00 p.m. Reply due by 4/3/2020 at 3:00 p.m. (ew) (Entered: 04/01/2020)
Notice of Correction: An entry setting a deadline for payment of a filing fee was erroneously docketed in this case on 4/1/2020 and has been moved to the correct case by the Clerk's Office. (ew) (Entered: 04/01/2020)
19 Amended MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7404425) of Chiraag Bains by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell. (Awan, Naila) (Entered: 04/01/2020)

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04/01/2020
04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020
04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/02/2020 04/02/2020
04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/02/2020

20 NOTICE of Substitution of Counsel − Jonathan Rea Secrest, David A. Lockshaw, Jr. and Terrence ODonnell substituting for Julie M. Pfeiffer and Ann Yackshaw as to Defendant Frank LaRose. (Secrest, Jonathan) Modified text on 4/2/2020 (ew). (Entered: 04/01/2020)
21 MOTION to Intervene by Intervenor Defendant State Of Ohio. (Attachments: # 1 Exhibit Proposed Notice of Defenses) (Pfeiffer, Julie) (Entered: 04/01/2020)
22 NOTICE of Appearance by Ann Yackshaw for Intervenor Defendant State Of Ohio (Yackshaw, Ann) (Entered: 04/01/2020)
23 NOTICE by Defendant Frank LaRose Regarding Motion to Intervene by the State of Ohio (ECF#21) (Secrest, Jonathan) (Entered: 04/01/2020)
24 ORDER granting 21 Intervenor Defendant State Of Ohio's Motion to Intervene. Signed by Judge Michael H. Watson on 4/1/2020. (jk) (Entered: 04/01/2020)
25 MOTION to Intervene by Intervenor Defendant Ohio Democratic Party. (Attachments: # 1 Exhibit ODP's Proposed Answer, # 2 Exhibit ODP Memorandum in Partial Support and Partial Opposition of Plaintiff's Motion for TRO, # 3 Exhibit Evidence for ODP's Memorandum in Partial Support and Partial Opposition to Plaintiff's Motion for TRO, # 4 Exhibit ODP Corp. Disclosure) (West, Nathaniel) (Entered: 04/01/2020)
26 NOTICE of Appearance by Nathaniel Zachary West for Intervenor Defendant Ohio Democratic Party (West, Nathaniel) (Entered: 04/01/2020)
27 NOTICE of Appearance by Derek S. Clinger for Intervenor Defendant Ohio Democratic Party (Clinger, Derek) (Entered: 04/01/2020)
28 NOTICE of Appearance by Donald Joseph McTigue for Intervenor Defendant Ohio Democratic Party (McTigue, Donald) (Entered: 04/01/2020)
29 MOTION to Intervene by Intervenor Plaintiff Libertarian Party of Ohio. (Attachments: # 1 Exhibit Complaint of Intervenor−Plaintiff) (Brown, Mark) (Entered: 04/01/2020)
30 Corporate Disclosure Statement by Intervenor Plaintiff Libertarian Party of Ohio (Brown, Mark) Modified text on 4/2/2020 (ew). (Entered: 04/01/2020)
31 Proposed Motion for Preliminary Relief by Intervenor Plaintiff Libertarian Party of Ohio . (Brown, Mark) Modified event on 4/2/2020 (ew). (Entered: 04/01/2020)
32 MOTION to Intervene by Movant Ohio Republican Party. (Attachments: # 1 Text of Proposed Order Proposed Answer of Intervenor−Defendant Ohio Republican Party to Amended Complaint) (Sferra, Anne) (Entered: 04/02/2020)
33 MOTION for Leave to File Instanter Amicus Brief Opposing Plaintiffs' Motion for Temporary Restraining Order by Amicus Honest Elections Project. (Attachments: # 1 Exhibit Exhibit A Amicus Brief, # 2 Exhibit Exhibit B Proposed Order) (Stuckey, Jason) (Entered: 04/02/2020)
34 NOTICE of Appearance by Anne Marie Sferra for Movant Ohio Republican Party (Sferra, Anne) (Entered: 04/02/2020)
35 Corporate Disclosure Statement by Movant Ohio Republican Party. (Sferra, Anne) (Entered: 04/02/2020)
36 NOTICE of Appearance by Christopher N Slagle for Movant Ohio Republican Party (Slagle, Christopher) (Entered: 04/02/2020)
37 Corporate Disclosure Statement by Amicus Honest Elections Project. (Stuckey, Jason) (Entered: 04/02/2020)
38 ORDER granting 25 Motion to Intervene; granting 29 Motion to Intervene; granting 32 Motion to Intervene. Signed by Judge Michael H. Watson on 4/2/2020. (jk) (Entered: 04/02/2020)
39 Supplemental Memorandum Supporting re 25 MOTION to Intervene Memorandum Partially Supporting and Partially Opposing TRO filed by Intervenor Defendant Ohio Democratic Party. (West, Nathaniel) (Entered: 04/02/2020)

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04/02/2020
04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/02/2020
04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/03/2020 04/03/2020
04/03/2020 04/03/2020

40 MOTION for Leave to File Excess Pages State of Ohios Motion for Leave to File Instanter The State of Ohios Opposition to Plaintiffs Motion for Temporary Restraining Order in Excess of Twenty Pages by Intervenor Defendant State Of Ohio. (Attachments: # 1 Exhibit States Oppostion to TRO, # 2 Exhibit Declaration of Former Governor Taft, # 3 Exhibit Declaration of Karla Herron) (Pfeiffer, Julie) (Entered: 04/02/2020)
41 Supplemental Memorandum Supporting re 29 MOTION to Intervene In Accord With Court Order filed by Intervenor Plaintiff Libertarian Party of Ohio. (Brown, Mark) (Entered: 04/02/2020)
NOTATION ORDER granting 40 Motion for Leave to File Excess Pages. (jk) (Entered: 04/02/2020)
NOTATION ORDER granting 33 Motion for Leave to File. (jk) (Entered: 04/02/2020)
42 NOTATION ORDER granting 19 Motion for Leave to Appear Pro Hac Vice of Chiraag Bains. By Magistrate Judge Elizabeth Preston Deavers on 4/2/2020. (ew) (Entered: 04/02/2020)
43 RESPONSE in Opposition re 4 Emergency MOTION for Temporary Restraining Order filed by Movant Ohio Republican Party. (Sferra, Anne) (Entered: 04/02/2020)
44 RESPONSE in Opposition re 4 Emergency MOTION for Temporary Restraining Order filed by Defendant Frank LaRose. (Attachments: # 1 Exhibit Advisory 2020−05, # 2 Exhibit Grandjean Declaration, # 3 Exhibit Directive 2020−06, # 4 Exhibit 1_133−2644−1) (Secrest, Jonathan) (Entered: 04/02/2020)
45 Notice by Clerk of Southern District of Ohio of Pro Hac Vice Rules as to Attorneys Terrence O'Donnell, Jason B. Torchinsky, and Dennis W. Polio. (ew) (Entered: 04/02/2020)
46 Corporate Disclosure Statement by Intervenor Defendant Ohio Democratic Party. (ew) (Entered: 04/02/2020)
47 ANSWER to 5 Amended Complaint filed by Intervenor Defendant Ohio Democratic Party. (ew) (Entered: 04/02/2020)
48 Memorandum in Partial Support and Partial Opposition to 4 Emergency Motion for Temporary Restraining Order filed by Intervenor Defendant Ohio Democratic Party. (Attachments: # 1 Exhibits) (ew) (Entered: 04/02/2020)
49 Intervenor COMPLAINT filed by Intervenor Plaintiff Libertarian Party of Ohio. (ew) (Entered: 04/02/2020)
50 ANSWER to 5 Amended Complaint filed by Intervenor Defendant Ohio Republican Party. (ew) (Entered: 04/02/2020)
51 BRIEF by Amicus Honest Elections Project. (ew) (Entered: 04/02/2020)
52 RESPONSE in Opposition to 4 Emergency MOTION for Temporary Restraining Order filed by Intervenor Defendant State Of Ohio. (Attachments: # 1 Declaration of Former Governor Taft, # 2 Declaration of Karla Herron) (ew) (Entered: 04/02/2020)
53 REPLY to Response to Motion re 4 Emergency MOTION for Temporary Restraining Order , 31 MOTION for Preliminary Injunction filed by Intervenor Plaintiff Libertarian Party of Ohio. (Brown, Mark) (Entered: 04/03/2020)
54 MOTION for Leave to File Instanter Brief of Amicus Curiae In Support of Plaintiffs Emergency Motion For Temporary Restraining Order by Amicus Disability Rights Ohio. (Attachments: # 1 Exhibit A − Brief of Amicus Curiae Disability Rights Ohio In Support of Plaintiffs Emergency Motion For Temporary Restraining Order, # 2 Exhibit B − Proposed Order) (Truitt, Kevin) (Entered: 04/03/2020)
55 Corporate Disclosure Statement by Amicus Disability Rights Ohio. (Truitt, Kevin) (Entered: 04/03/2020)
56 MOTION for Leave to File Excess Pages for Reply in Support of TRO by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvall, Hannah Tuvell.

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04/03/2020
04/03/2020 04/03/2020 04/03/2020
04/05/2020 04/16/2020
04/16/2020 04/16/2020 04/17/2020 04/20/2020
04/20/2020

(Attachments: # 1 Exhibit Plaintiffs' Reply Memorandum in Support of TRO, # 2 Exhibit Exhibit 1 − SOS Sixth Circuit Reply Brief in Mays v. LaRose, # 3 Exhibit Exhibit 2 − Supplemental Declaration of Jen Miller) (Awan, Naila) (Entered: 04/03/2020)
57 OPINION and ORDER denying 31 Motion for Preliminary Injunction; denying 4 Motion for TRO. Signed by Judge Michael H. Watson on 4/3/2020. (jk) (Entered: 04/03/2020)
NOTATION ORDER granting 56 Motion for Leave to File Excess Pages. (jk) (Entered: 04/03/2020)
58 BRIEF by Amicus Disability Rights Ohio. (ew) (Entered: 04/03/2020)
59 REPLY to Response to 4 Emergency MOTION for Temporary Restraining Order filed by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvell. (Attachments: # 1 Exhibit 1 − SOS Sixth Circuit Reply Brief in Mays v. LaRose, # 2 Exhibit 2 − Supplemental Declaration of Jen Miller) (ew) (Entered: 04/03/2020)
60 NOTICE of Voluntary Dismissal by Intervenor Plaintiff Libertarian Party of Ohio (Brown, Mark) (Entered: 04/05/2020)
61 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7425917) of Terrence O'Donnell by Defendant Frank LaRose. (Attachments: # 1 Exhibit Certificate of Good Standing) (Secrest, Jonathan) (Entered: 04/16/2020)
62 NOTICE of Deficiency re 61 Motion for Leave to Appear Pro Hac Vice of Terrence O'Donnell. (ew) (Entered: 04/16/2020)
Set Deadlines: Deficiency Deadline by 4/30/2020. (ew) (Entered: 04/16/2020)
63 WAIVER OF SERVICE Returned Executed. Waiver sent to Frank LaRose on 3/30/2020, answer due 5/29/2020. (Awan, Naila) (Entered: 04/17/2020)
64 STIPULATION of Dismissal by Plaintiffs League of Women Voters of Ohio, Lashunda Lee, Munia Mostafa, Ohio A. Philip Randolph Institute, Audrianna Victorian Rodriguez, Hannah Tuvell. (Awan, Naila) (Entered: 04/20/2020)
***Civil Case Terminated. (ew) (Entered: 04/21/2020)

 
 Case: 2:20-cv-01638-MHW-EPD Doc #: 1 Filed: 03/30/20 Page: 1 of 26 PAGEID #: 1

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

LEAGUE OF WOMEN VOTERS OF OHIO, OHIO A. PHILIP RANDOLPH INSTITUTE, LASHUNDA LEE, MUNIA MOSTAFA, AUDRIANNA VICTORIAN RODRIGUEZ, and HANNAH TUVALL,

CASE NO. 2:20-cv-1638

Plaintiffs,

v.

FRANK LAROSE, in his official capacity as Secretary of State of Ohio,

Defendant.

COMPLAINT 1. Ohio has imposed a new set of rules for its 2020 primary election that will disenfranchise voters on a staggering scale as they contend with the COVID-19 pandemic. 2. On Friday, March 27, 2020, through enactment of House Bill 197 (“H.B. 197”), Ohio (1) moved its abruptly canceled primary election from March 17 to April 28; (2) refused to extend the voter registration deadline, which passed on February 18, to at most thirty days prior to April 28; (3) ignored the pleas of bipartisan state and local elections officials, and imposed a cumbersome multi-step, multi-mailing process that will be impossible for elections officials and voters to complete in the time left before the election concludes; and (4) eliminated in-person voting for all but a narrow set of voters, leaving no recourse for voters who do not receive absentee ballots in time to cast them by mail. 3. Research indicates that these changes may hit Black and brown voters the hardest. 4. The new rules violate the National Voter Registration Act by denying voters an effective means to register and cast a ballot in the 2020 primary election.
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5. These rules will also deprive Ohioans of their fundamental right to vote, in violation of the First and Fourteenth Amendments of the U.S. Constitution.
6. Immediate judicial relief is necessary to prevent the State from compounding the current public health crisis into a crisis for democracy in Ohio.
PARTIES A. Plaintiffs
7. Plaintiff League of Women Voters of Ohio (“LWVO”) is a non-partisan, non-profit organization located at 100 E Broad St. #1310, Columbus, OH 43215. LWVO is a membership organization with approximately 3,000 members across 30 local leagues. LWVO is affiliated with the League of Women Voters of the United States and has fought since 1920 to hold government accountable and engage all Americans in the political process. LWVO’s mission is to promote civic engagement by encouraging the informed and active participation of citizens in government, including by registering citizens to vote, providing information to citizens about how to vote, and influencing public policy on voting and other issues through education and advocacy.
8. Ahead of the primary election scheduled for March 17, LWVO and its local leagues registered voters across the State. The State’s response to the spread of COVID-19 has required LWVO to divert significant resources toward making sure that prospective voters know when and how they can vote in the ever-changing circumstances and are not disenfranchised.
9. As a result of H.B. 197’s enactment, LWVO is now dedicating significant resources to helping prospective voters throughout the State navigate the new multi-stage absentee voting process in the short timeline before the April 28 primary election—for example, one local league is helping residents of a Summit County retirement home who had planned to vote in person on March 17 to now navigate the mail voting process. More generally, LWVO is fielding questions
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and sharing public education information about the timing and conduct of the primary election. League members and staff are under significant pressure to complete this work on an extremely short timeline and are concerned that their constituents will not be able to vote in the primary election.
10. H.B. 197’s burdensome process will disenfranchise LWVO members, as well as voters they have helped register. Many LWVO members, as well as many of the voters they serve, do not own printers or have money to buy ink and stamps for mailing out their absentee ballot applications. Many places people go to print—such as libraries— are closed. These individuals must rely on their local boards of elections to mail absentee ballot applications to them. Mail delivery in Ohio takes 3–5 days even under ordinary circumstances. LWVO is concerned that H.B. 197’s tight timeline for sending postcards, requesting ballots, receiving ballots, and returning ballots will disenfranchise its members and other Ohio voters.
11. Plaintiff Ohio A. Philip Randolph Institute (“Ohio APRI”) is a state chapter of the A. Philip Randolph Institute, a national organization for African-American trade unionists and community activists affiliated with the AFL-CIO and established in 1965 to forge an alliance between the civil rights and labor movements. Ohio APRI has eight chapters across the State, including in Columbus, and members across the State. Ohio APRI’s mission includes voter outreach, voter education, and voter registration, and the majority of Ohio APRI’s resources are dedicated to voter engagement work.
12. Ohio APRI members spent several weeks helping eligible Ohioans register to vote prior to the February 18 deadline for the March 2020 primary.
13. Members of Ohio APRI, as well as individuals in the communities in which Ohio APRI conducts voter registration and education drives, planned to vote in person at their polling
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places on March 17. Many of these individuals have never voted by mail. Because they are unaccustomed to voting by mail, the multi-step vote-by-mail process established under H.B. 197 may be confusing for them. The confusion also increases the chances that they make an error on their application, and that will likely cause additional delays in the process. Because the State has shifted the date of the 2020 primary multiple times, they may not be aware of the newly established April 28 date until they receive a mailing from their board of elections. Even if the process were to go smoothly, many of these individuals will not be able to complete the multi-step process in time to cast a ballot and will be unable to vote in person under the narrow exception for in-person voting created by the State. For these same reasons, H.B. 197’s burdensome process may disenfranchise Ohio APRI members.
14. Plaintiff Lashunda Lee is an eligible, registered, and regular voter who has lived in Ohio for more than thirty years. Ms. Lee has never voted by mail, only in person on Election Day, and planned to vote in person in the 2020 primary. She does not own a printer, does not have one reasonably available to her, and the places she normally goes to access a printer are currently closed. She is concerned that going out to try to print the ballot application and mail it in could expose her or her family to COVID-19 and is worried that she will not be able to exercise her fundamental right to vote in the upcoming primary if she is required to follow the procedures required by the State.
15. Plaintiff Munia Mostafa is an eligible, registered, and regular voter in Ohio, and has been since she became a naturalized citizen in 2017. Ms. Mostafa has never voted by mail, only voted in person on Election Day, and planned to vote in person in the 2020 primary. She does not have a working printer at home and is limiting her trips outside her home because she does not want to expose her two children to COVID-19. She is concerned that the process of submitting an
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absentee ballot application—which could require her to go to a post office and office supply store or printing location—could place the health of her family at risk. She is also concerned that any delays in the process H.B. 197 lays out for voting absentee or any mistakes she makes during the unfamiliar absentee voting process could deny her the opportunity to cast a ballot in the upcoming primary.
16. Plaintiff Audrianna Victorian Rodriguez is an eligible, registered, and regular voter in Ohio, and had planned to vote in person in the 2020 primary. Ms. Rodriguez moved to a different precinct within Cuyahoga County and intended to update her voting address when she voted in person on March 17. On March 28, Ms. Rodriguez submitted a voter registration application through the State’s online portal to update her voting address. She is concerned that her updated voter registration application will not be processed before the 2020 primary concludes and, as a result, she will not be provided a regular absentee ballot to vote. Ms. Rodriguez does not own a printer or have stamps and she is concerned that she will not be able to complete the absentee ballot request process in time if she is required to follow the procedures required by the State.
17. Plaintiff Hannah Tuvall is a life-long Ohio resident who has never registered to vote before and would like to vote in the 2020 primary election. Ms. Tuvall submitted a voter registration application on the Secretary of State’s website on March 29, 2020. She received confirmation that the application had been forwarded to her board of election. Ms. Tuvall will not be able to vote in the upcoming primary because H.B. 197 prohibits her county board of elections from processing voter registration applications submitted after February 18. B. Defendant
18. Defendant Frank LaRose serves as Secretary of State of the State of Ohio. His office is located at 22 N. 4th Street Columbus, OH 43215. He is sued in his official capacity.
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19. Under Ohio law, the Secretary of State is the chief election officer in the State, with the power to issue directives to prepare rules and instructions for the conduct of elections. Ohio Rev. Code Ann. §§ 3501.04, 3501.05, 3501.053.
20. Under Ohio law, the Secretary of State has the power to “issue instructions as to the proper method of conducting elections to members of the boards of elections by permanent or temporary directives.” Id. § 3501.053(A).
21. The Secretary of State can issue a temporary directive beginning ninety days before Election Day through the fortieth day following the election and these directives, unlike permanent directives, are not subject to public review and public comment. Id. § 3501.053(A)(2).
JURISDICTION 22. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution, and under Section 8 of the National Voter Registration Act of 1993, 52 U.S.C. § 20507. 23. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States, because Plaintiffs bring this action to redress the deprivation, under color of state law, of rights, privileges, and immunities secured by the Constitution of the United States and federal law, and because Plaintiffs bring this action to secure equitable relief under federal law providing for the protection of voting rights. 24. This Court has personal jurisdiction over Defendant, who is sued only in his official capacity as an officer of the State of Ohio. 25. Venue is proper in this Court under 28 U.S.C. § 1391(b) because Plaintiff Mostafa resides in Columbus, Ohio; LWVO is located in Columbus, Ohio and has members in the region;
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APRI has a chapter and members in the region; and a substantial part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district.
FACTS COVID-19’s Impact on Ohio’s 2020 Primary Election 26. COVID-19 presents serious risk to all Ohioans, especially to people who are over the age of sixty, have underlying health conditions (such as heart disease, diabetes, or lung disease), have weakened immune systems, or who are pregnant. As of March 29, 2020, there have been 1,653 confirmed cases and twenty-nine deaths in Ohio. Ohio Dep’t of Health, Resources for Local Health Districts and Providers – COVID-19, https://odh.ohio.gov/wps/portal/gov/ odh/know-our-programs/Novel-Coronavirus. These numbers are rising daily. 27. Prior to the COVID-19 outbreak, Ohio’s 2020 primary elections were scheduled for March 17, 2020. 28. On March 9, 2020, Ohio Governor Mike DeWine declared a state of emergency “to protect the well-being of the citizens of Ohio from the dangerous effects of COVID-19.” The Office of Governor Mike DeWine, Executive Order 2020 O1D (Mar. 9, 2020), https://content.govdelivery.com/attachments/OHOOD/2020/03/09/file_attachments/1396418/Exe cutive%202020-01D.pdf. 29. On March 11, the World Health Organization declared the COVID-19 outbreak a pandemic. Jamie Gumbrecht & Jacqueline Howard, WHO Declares Novel Coronavirus Outbreak a Pandemic, CNN (Mar. 11, 2020, 8:45 PM), https://www.cnn.com/2020/03/11/health/ coronavirus-pandemic-world-health-organization/index.html. 30. On March 12, the Ohio Department of Health (“ODH”) issued an order prohibiting mass gatherings of one-hundred or more persons until the Governor’s office modifies or rescinds
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the state of emergency. Ohio Dep’t of Health, Director’s Order, (Mar. 12, 2020), available at https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/bans-massgatherings-of-100-or-more.
31. On March 13, President Trump declared the COVID-19 outbreak a national emergency. White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Diseaase (COVID-19) Outbreak, (Mar. 13, 2020).
32. On March 16, Governor DeWine announced at a press conference that state officials had determined it was unsafe to hold the election the following day, and that he anticipated, and would not contest, a private lawsuit to postpone the election. That lawsuit was brought in the Franklin County Court of Common Pleas.
33. The same day, the Franklin County Court of Common Pleas denied the motion to delay the primary election. See Reardon v. LaRose, 20-cv-2105 (Franklin Cty. Ct. Com. Pl Mar. 16, 2020).
34. Later that same evening of March 16, ODH Director Dr. Amy Acton issued an order prohibiting polling locations from operating the following day due to COVID-19. Ohio Dep’t of Health, Director’s Order, (Mar. 16, 2020), available at https://governor.ohio.gov/wps/portal/gov/ governor/media/news-and-media/order-on-closure-of-polling-locations.
35. Immediately following ODH’s Order, Defendant Secretary of State Frank LaRose issued Directive 2020-06, which postponed the March 17, 2020 presidential primary election to June 2, 2020. Ohio Sec’y of State, Directive 2020-06, (Mar. 16, 2020).
36. Secretary LaRose’s Directive stated: “The boards of elections are prohibited from processing any new voter registrations for the June 2, 2020 presidential primary election. The February 18, 2020 voter registration deadline remains the voter registration deadline.” Id. at 1.
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37. On March 17, two legal actions challenged the Secretary’s authority to set a new election date. State ex rel. Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Sup. Ct. Mar. 17, 2020); Reardon v. LaRose, No. 20-cv-2105 (Franklin Cty. Ct. Com. Pl. Mar. 17, 2020) (answer and cross claim). One of these cases, filed in the Ohio Supreme Court, requested the State move up the date of the primary and move to an all-mail election.
38. Plaintiffs LWVO and Ohio APRI submitted a brief as amici curiae to the Ohio Supreme Court informing the Court that the prohibition on processing registrations received after February 18, 2020 in Defendant LaRose’s Directive 2020-06 violated the National Voter Registration Act (“NVRA”) and requesting that the Court, in considering how to proceed with Ohio’s 2020 primary election, ensure that any relief protect Ohio electors who would find it prohibitively challenging to exercise their right to vote under the current circumstances given the State’s restrictive mail voting practices. Brief of Amici Curiae of the League of Women Voters of Ohio and Ohio A. Philip Randolph Institute in Support of Neither Party, State ex rel. Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Mar. 24, 2020).
39. On March 18, 2020, Plaintiffs LWVO and Ohio APRI formally notified Defendant LaRose that his failure to shift the voter registration deadline to within 30 days of the new June 2 primary date violates Section 8 of the NVRA, 52 U.S.C. § 20507(a), and copied leaders of the Ohio General Assembly on this notice letter.
40. On March 22, Governor DeWine and ODH’s Dr. Acton issued a “stay at home order” requiring Ohioans to remain at home except for essential business from March 23 through April 6. Ohio Dep’t of Health, Director’s Stay at Home Order (March 22, 2020), https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf.
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41. Mail delivery is considered an essential business operation under the order, but libraries and other places that may offer free or low-cost printing are not named and hence are unlikely to remain open during the duration of the stay-at-home-order. All library locations in Columbus, Ohio, closed on March 13 and will remain closed at least through April 6, as will other libraries throughout the State.
42. On March 29, President Trump extended federal guidance currently in place, which encourages social distancing through April 30. Brittany Shammas, et al., New York Surpasses 1,000 Deaths in Coronavirus Pandemic as Trump Says Social Distancing Guidelines Will Remain Through April, Wash. Post (Mar. 29, 2020), https://www.washingtonpost.com/world/ 2020/03/29/coronavirus-latest-news/.
Lead-up to the Enactment of H.B. 197 43. In the wake of Secretary LaRose’s Directive 2020-06 and subsequent lawsuits, the Ohio General Assembly sought to assert its authority to set the date of the 2020 primary election by passing legislation. 44. On March 21, Secretary LaRose sent a letter to the Ohio General Assembly proposing that the legislature set a June 2 primary, allow for in-person voting on that date, and mail every registered voter a postage pre-paid absentee ballot application. Ohio Sec’y of Sate, Letter to Members of the Ohio General Assembly (March 21, 2020), https://www.sos.state.oh.us/globalassets/media-center/news/2020/2020-03-21_letterto legislators.pdf. 45. In his letter, Secretary LaRose stated that “June 2 is the earliest date [for the election] due to the logistical realities of conducting a vote-by-mail election, the ever-evolving health realities of protecting against the spread of Coronavirus and the sacred responsibility we
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have as public officials to preserve the integrity of our election” and warned that “[a] plan that sets unattainable timelines for mailing absentee requests to voters, or calls for inadequate procedures for ensuring that every voter has an opportunity to cast a ballot at no charge, would likely fail a legal challenge.” Id.
46. Secretary LaRose noted that even the June 2 timeframe he recommended “does not come without its challenges. Historically, when the General Assembly authorizes the Secretary to do so, it has taken as long as five months from the time the Secretary of State’s office begins to mail the absentee ballot request form to all 7.7 million registered voters in Ohio until election day. . .I have directed my team to achieve an incredibly aggressive timeline that would bring the entire absentee ballot process to a close within two and a half months. This includes gathering data from all 88 county boards of elections, verifying that data, designing, printing, pre-sorting and mailing more than 7 million ballot request forms, instructions and return envelopes. This plan also allows for a tight but reasonable amount of time for voters to submit their requests, receive their ballots, and return their voted ballots to their respective board of elections.”
47. On March 24, the bipartisan Ohio Association of Election Officials (“OAEO”) sent a letter to the leaders of the Ohio legislature commenting on a pending legislative proposal to set a new date for the primary to April 28. The election officials stated that “April 28th is too soon to conclude the election” because “there are simply too many steps in the process to allow ample time for voters to receive and vote their ballots in the timeframes allotted,” and they suggested May 19 as a “best-case scenario” election date. OAEO noted in its letter that “[t]he postal service advises that it takes 3–5 days for mail to reach its destination.”
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48. On March 25, the Ohio legislature nonetheless passed legislation, H.B. 197, setting the primary date at April 28 and directing the election to be held without Election Day polling locations for the vast majority of voters or early in-person voting.
49. On March 27, Governor DeWine signed the legislation into law. Requirements of H.B. 197
50. H.B. 197 prohibits boards of elections from “process[ing] any voter registration application submitted after February 18, 2020.” H.B. 197 § 32(B)(3), (C)(1)(a).
51. H.B. 197 sets out a cumbersome, multi-step process for voting by mail, all of which needs to take place in the thirty-two days between March 27 and April 28. Id. § 32(B)(1).
52. Under H.B. 197, the Secretary “shall produce and send a postcard” to registered voters in Ohio informing them of the new election date and the “procedures and deadlines to apply for absent voter’s ballots.” Id. § 32(C)(1)(b).
53. Voters must then “apply by mail to the appropriate board of elections” for their absentee ballot. Id. § 32(C)(3). Under current Ohio law, a voters must “make written application” for absentee ballots. Ohio Rev. Code Ann. § 3509.03(A). There are two ways voter can make a written request. They can download and print an application available on the Secretary’s website and mail the request to their boards of elections. Or, they can request their boards of elections send an them absentee applications by mail. The last day to request absentee ballots is April 25 at noon. H.B. 197 § (C)(3).
54. H.B. 197 requires county elections officials to process absentee ballot applications and determine whether applications “contain[s] all of the required information.” Id. § 32(C)(5)(A). Boards must notify applicants of any additional information required and applicants must provide that information in order for their “application to be valid.” Id.
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55. Only when election officials determine that an application is valid, can they mail the applicant an absentee ballot. Id. § 32(C)(6).
56. Finally, voters must mail back their voted absentee ballots postmarked the day prior to Election Day, by April 27 in order for their ballots to count. Id. § 32(E)(2).
57. Under current Ohio law, boards of elections may reject absentee ballots for missing or non-matching information on the absentee ballot identification envelope, including mismatching signatures, incorrect date of birth (including substituting the current date), or errors in the identification field, such as transposition of the SSN and Driver’s license fields. Ohio Rev. Code Ann. §§ 3509.06(D)(1), (D)(2)(a).
58. H.B. 197 requires voters to cure any provisional ballots or mistakes on their absentee identification envelopes by May 5, which is before the deadline for ballots to be received (May 8). Yet Secretary LaRose’s Directive 2020-07 implementing the statute does not require the official canvass to begin until May 13. Existing Ohio law requires boards of elections to mail voters a notification of any deficiencies in their ballot envelopes. Ohio Rev. Code Ann. § 3509.06(D)(3)(b).
59. H.B. 197 states that only two classes of voters may vote in person on Election Day: voters with disabilities who wish to vote using an accessible electronic voting machine, and voters who are unable to receive mail at their residence or another location. H.B. 197, § 32(D)(1)(a)–(b). The Act does not allow in-person voting for anyone else, such as those with unreliable mail delivery or those who request but do not receive their mail ballots in time to cast it by the postmark deadline.
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Impact of House Bill 197 on Ohio Primary Voters Unlawful Voter Registration Deadline
60. H.B. 197’s voter registration deadline of February 18 is unlawful and will disenfranchise Ohio’s prospective voters.
61. Thousands of Ohioans have submitted voter registration forms since February 18. They are barred from voting on April 28 because of H.B. 197’s hard voter registration cut-off. A single nonprofit organization, Ohio Organizing Collaborative, helped 2,233 Ohioans complete applications to register to vote between February 19 and March 13 and transmitted their applications to the appropriate boards of elections.
62. Others would have registered after February 18, and would register by March 30, if Defendant extends the registration deadline extended to comply with federal law.
63. Plaintiff Tuvall submitted a voter registration application after February 18 and will not be able to vote on April 28 because H.B. 197 prohibits county boards of elections from processing applications submitted after February 18.
64. Plaintiff Rodriguez attempted to update her address by submitting a voter registration application online on March 28, after moving between precincts. Due to H.B. 197, and despite the fact that the election is not set to end for nearly one month, she will not be able to vote a regular absentee ballot in the rescheduled primary election.
65. Plaintiff LWVO has fielded numerous calls from members and prospective voters concerned that they will not be able to vote on April 28 due to H.B. 197’s February 18 voter registration deadline.
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66. Plaintiff Ohio APRI engages many voters who rent rather than own their residences and therefore tend to move more often. Many of these voters will be unable to register to vote or update their voter registrations due to H.B. 197.
Unduly Burdensome Vote-by-Mail Process 67. H.B. 197’s cumbersome, multi-step process for voting by mail and tight deadline will disenfranchise Ohio voters. The time it will take election officials to design, print, and mail postcards to voters, followed by the multiple subsequent rounds for completion, review, and mailing of forms, will be longer than the time remaining for Ohioans to vote by mail. 68. Both Defendant Secretary LaRose and the OAEO have stated publicly that the Act’s April 28 timeline is not feasible for election officials and voters. 69. The vast majority of Ohio voters cast their ballots in person on Election Day. For example, according to data provided on the Secretary of State’s website, in the 2016 Primary Election, only 450,901 voters cast absentee ballots either in person during the early voting period or by mail: a fraction of the 3,302,832 total ballots cast in the election. This indicates that more than 86% of Ohio voters who participated in the last presidential primary voted in-person on Election Day—and 2016 was not an anomaly. These voters will now be relying heavily on the absentee mail voting process as it is their only option for casting ballots in a mail-ballot only election. See Ohio Sec’y of State, 2016 Official Election Results, https://www.sos.state.oh.us/elections/election-results-and-data/2016-official-elections-results/ (comparing the voter turnout by county and absentee supplemental reports for the March 15, 2016 primary election). 70. At least some county boards of elections have scheduled their staff on staggered shifts to allow for social distancing and reduce the likelihood of staff contracting or spreading
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COVID-19. Having fewer staff will make it more difficult for county boards of elections to process an increased influx of mail absentee ballot applications and ballots from voters who had planned to vote in-person on Election Day. See The Editorial Board, Reset the Date, Toledo Blade (Mar. 29, 2020, 12 AM), https://www.toledoblade.com/opinion/editorials/2020/03/29/reset-the-dateohio-primary-2020-election-voting/stories/20200329030.
71. “Fewer than half of Ohio’s county elections offices . . . have the equipment to print absentee ballots in-house,” according to an election official. These boards of elections must rely on the four outside vendors who have been approved to print absentee ballots. Id.
72. In the past, county boards of elections in Ohio have also flagged or rejected absentee ballot applications due to errors such as allegedly mismatched signatures or missing dates of birth, causing applicants to have to restart the application process. Julie Carr Smyth, AP Exclusive: Thousands of Ohio Absentee Applications Denied, AP (Dec. 16, 2019), https://apnews.com/ddfed70e98d79cf0bee49eb1d9fd85b9.
73. The process laid out in H.B. 197 leaves no room for delays on the part of the postal service or overloaded county elections boards, no room for printing delays, and no room for error on the part of voters or elections officials. Any errors in the process will put voters outside the tight timeline for casting their absentee ballots and result in disenfranchisement.
74. Many Ohio voters had planned to vote in person in the 2020 primary election and are unfamiliar with the mail voting process. Plaintiffs Lee and Mostafa, for example, have only ever voted in person and planned to vote in person in the 2020 primary. Many voters in the communities Plaintiff APRI engages have never before voted by mail.
75. Having always voted in person, Plaintiff Mostafa finds the absentee process confusing and worries that she will not have enough time to correct any deficiencies on her
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absentee ballot application or absentee identification envelope and vote in the April 28 primary election.
76. Acquiring an absentee ballot application without a printer adds an additional, unnecessary step to the process, making it nearly impossible to meet the April 27 postmark deadline. Many Ohio voters do not have working printers in their homes or do not own printers at all; cannot access low-cost printing at libraries because of COVID-19 closures; or do not have the option of using their friends or neighbors’ printers because they do not wish to risk their health and violate Ohio’s stay at home order. Plaintiffs Lee, Mostafa, and Rodriguez all lack access to a working printer in their homes, as do the Executive Director of Plaintiffs LWVO and the President of Ohio APRI. The places that Plaintiff Lee would normally go to print documents for free, such as the Cleveland Public Library and Cuyahoga Community College, are closed due to COVID-19. Many voters Plaintiff APRI engages do not have access to a printer, and a number are older or otherwise at high risk for serious health consequences due to COVID-19 such that they cannot leave home to use others’ printers.
77. In this era of digital correspondence, many voters do not regularly keep postage stamps in their homes, and under the process set out by H.B. 197, would need to risk their health to go to a post office or other essential business establishment to acquire postage to mail their absentee ballot applications. Plaintiff Rodriguez, for example, does not have stamps in her home.
78. Mail service is likely to take longer than normal. Voters have experienced significant election-related mail delays around receiving their absentee ballots in time to vote in the previously scheduled March 17 election. For at least one voter who requested her absentee ballot prior to the original March 14 deadline, it took as long as eight days from the time of request
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to the time of receipt of her ballot. Postal workers in Ohio have contracted COVID-19, which will likely further slow the process for the new April 28 election date.
79. Many LWVO members and constituents, APRI members, and other Ohioans do not have reliable postal service, such as students who are currently locked out of their dormitories. They may not receive the Secretary’s postcard notifying them of that they need to request absentee ballots, when a mailing is likely a necessary prerequisite for many to understand the fast-changing rules surrounding Ohio’s 2020 primary. Further, these individuals might experience greater delays due to mail forwarding from dormitories or undeliverable addresses.
80. H.B. 197 provides insufficient time for voters to cure their provisional ballots or any mistakes on their absentee ballot envelopes. The seven-day cure period mirrors the timeframe in existing law, but in sharply different circumstances. By the time a voter receives a mailed notice of a problem with her ballot she may not have time to mail back the corrected information so it arrives by May 5. In-person opportunities to cure ballot problems are helpful in normal times, but much less so when voters may still be under a stay-at-home order and will certainly face health risks by leaving their homes. Plaintiff LWVO is concerned about its members and constituents being unable to cure any ballot mistakes.
81. The unrealistic and unyielding process H.B. 197 sets forth for mail voting will unduly burden and disenfranchise Plaintiffs Lee, Mostafa, and Rodriguez; members and constituents of Plaintiffs LWVOH and Ohio APRI; and many other Ohio voters. Defendant LaRose and the State of Ohio have no interest sufficient to justify burdening Ohio voters and thereby violating their constitutional right to vote.
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Insufficient In-Person Voting 82. H.B. 197 prohibits in-person voting for anyone other than voters with disabilities who wish to vote using an accessible electronic voting machine and for voters who are unable to receive mail at their addresses. H.B. 197, § 32(D)(1)(a) –(b). 83. H.B. 197 therefore disenfranchises all other classes of voters who will face challenges voting by mail, such as voters with unreliable mail service, voters who request absentee ballots but do not receive their ballots in time to meet the postmark deadline, and voters who, for a whole host of reasons, are simply unable to complete the entire multi-stage process required by H.B. 197 in time to vote by mail. 84. H.B. 197’s near-exclusive vote-by-mail system is likely to have a disproportionate impact on Black and brown voters and young people. Younger voters and voters of color were “at least twice as likely as older and white voters to have their [vote-by-mail] ballots rejected in the presidential elections of 2012 and 2016” in Florida. Daniel A. Smith, Vote-By-Mail Ballots Cast in Florida, ACLU Florida at 3 (September 19, 2018), https://www.aclufl.org/sites/default/files/ aclufl_-_vote_by_mail_-_report.pdf.
Ohio’s H.B. 197 Is an Outlier Among States’ Vote-By-Mail Procedures and COVID-19 Responses 85. Five states—Colorado, Hawaii, Oregon, Utah, and Washington—conduct their elections entirely by mail, and at least sixteen states authorize local governments to opt into a voteby-mail system, allow all-mail absentee voting in local or special elections, or permit certain jurisdictions to conduct elections by mail based on population size. 86. Every jurisdiction which both has a voter registration requirement and conducts either all or some of its elections by mail automatically mails ballots to active voters without requiring voters to apply for absentee ballots.
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87. All five states that run all-mail elections require county boards of elections to provide in-person voting options prior to and on Election Day.
88. Other states that postponed their primaries because of COVID-19 set the new election date for June (Connecticut, Indiana, Maryland, Pennsylvania, Rhode Island, Louisiana, New York, Kentucky), except for Georgia, which postponed its primary to May 19. Nick Corasaniti & Stephanie Saul, 12 States and Territories Have Postponed Their Primaries Because of Coronavirus. Here’s a List, N.Y. Times, Mar. 28, 2020, https://www.nytimes.com/article/2020campaign-primary-calendar-coronavirus.html.
89. In Alaska, Wyoming, and Kansas, states where the Democratic Party runs the presidential primary or caucus, elections were not postponed but are now vote by mail. Voters do not have to apply for a vote-by-mail ballot.
CLAIMS FOR RELIEF Count I
Failure to Register Voters in Violation of Section 8 of the National Voter Registration Act of 1993 (52 U.S.C. § 20507) 90. Plaintiffs rely herein upon all the paragraphs of this Complaint. 91. H.B. 197 requires that ballots cast through April 28, 2020, count in Ohio’s 2020 presidential primary election, H.B. 197 § 32(E)(1)–(2), but prohibits anyone who registered to vote after February 18, 2020, from participating in the election, id. § 32(C)(1)(a). 92. The National Voter Registration Act of 1993 (“NVRA”) applies to federal elections, such as Ohio’s 2020 presidential primary election. See, e.g., 52 U.S.C. §§ 20501(b)(1), 20502(1)–(2). 93. Section 8(a)(1) of the NVRA requires that in elections for federal office the registration date be no earlier than 30 days prior to “the date of the election.” Id. § 20507(a)(1);
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see also U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 376 (6th Cir. 2008) (“Section 8 of the NVRA [requires] state election officials must ‘ensure that any eligible applicant is registered to vote in an election’ whenever a valid voter registration form is . . . received by the appropriate state official no later than 30 days before the date of the election.”).
94. H.B. 197’s restriction on registration is an ongoing violation of the NVRA occurring within 30 days of a federal election, allowing Plaintiffs to seek relief without providing prior notice. 52 U.S.C. § 20510(b)(3).
95. This restriction will deprive thousands of eligible Ohio voters of their right to participate in the 2020 primary election and violates the clear mandate of the NVRA.
Count II Undue Burden on the Right to Vote Under the First and Fourteenth Amendments of the U.S. Constitution Pursuant to 42 U.S.C. § 1983 96. Plaintiffs rely herein upon all the paragraphs of this Complaint. 97. When considering challenges brought to state election laws and procedures, courts 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 v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). 98. H.B. 197—which was only signed into law on March 27, 2020—burdens the fundamental right to vote by creating multiple hurdles Ohio voters must navigate in the span of just weeks in order to cast a ballot by April 28. 99. First, the Act requires the Secretary of State to provide registered voters who have not yet participated in the 2020 primary election with a postcard informing them of how they can
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apply for vote-by-mail ballots; the Act does not allow for voters to be automatically mailed absentee ballot applications or absentee ballots. H.B. 197 § 32(C)(2). The OAEO estimates that the production, proof, and mailing of the postcard alone would take 2–3 weeks and then additional time to deliver to voters. And, because voters had previously been informed that the election has been moved to June 2, see Directive 2020-06, for many voters, the mailings may be a necessary educational piece to inform them of the new election date. But, by the time the mailing goes out, voters will be on a tight timeline to cast their ballots.
100. Second, voters must obtain ballot applications either by printing the applications themselves or requesting their boards of elections to mail them applications. Because many voters do not own printers and places like libraries are closed in response to the COVID-19 crisis, the additional steps associated with obtaining absentee ballot applications and thereafter envelopes and stamps places a significant burden on voters. And, requesting that boards of elections send applications to voters adds another step and will take at least another 3–5 days out of the tight timeframe to vote.
101. Third, once voters send in their ballot applications, they will be sent ballots if county boards determine that the applications are “valid”. H.B. 197, § 32(C)(6). If there are any deficiencies in their applications, the county boards must notify voters and allow them to cure. H.B. 197 does not take this process into account, which, again, adds additional time to the voting process. Id. § 32(C)(5)(a).
102. Fourth, voters must cast and send ballots and have their ballots postmarked by April 27, 2020, or drop them off at their boards of elections by 7:30 p.m. on April 28, 2020. Id. § 32(E)(1)–(2). Voters who do not receive their ballots in time to postmark them, cannot vote in the April 28 election.
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103. Under H.B. 197, registered Ohio voters who do not qualify under one of two narrow exceptions to cast in-person ballots cannot vote in person—therefore, voters who do not receive their mail absentee ballots prior to April 28, who have unreliable mail delivery, or for whatever reason, cannot complete the absentee process in time, cannot vote in the April 28 election. See id. § 32(D)(1).
104. H.B. 197 requires voters to take a series of steps in order to exercise their fundamental right to vote. The Act does not provide enough time for voters to complete those steps. Election officials informed the Ohio General Assembly of this before H.B. 197 was adopted, but the legislature ignored the information before it.
105. Election officials tasked with administering the election have repeatedly stated that their boards of elections need more time.
106. There is no state justification for H.B. 197 that can justify the unconstitutional burden, either severe or substantial, placed on the ability of Ohioans to exercise their fundamental right to vote.
REQUEST FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that the Court enter an order: (a) Requiring that any qualified Ohio elector who submitted a voter registration application
or updated their registration information between February 19, 2020, and 30 days prior to the day on which the 2020 primary election is set to conclude shall have their registration information processed and be permitted to vote in the 2020 primary election; (b) Requiring that, at least 21 days prior to the close of polls for the 2020 primary election, county boards of elections shall mail all registered electors who have not already voted
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in the election a primary ballot for each party with candidates on the ballot, return postage pre-paid, with instructions to cast only one ballot and return the ballot in the official pre-paid postage envelope; (c) Allowing any elector who has not received a mail absentee ballot at least 14 days prior to the close of polls for the 2020 primary election to submit a request for such a ballot to their local board of election by phone; (d) Allowing any elector who qualified for in-person voting pursuant to H.B. 197 § 32(D)(1), and who received a mail absentee ballot, to vote a regular, in-person ballot if they bring their unmarked absentee ballot to the local board of elections simultaneously; (e) Requiring that any elector who cannot or does not receive their mail absentee ballot in time to cast it by the postmark date for mail absentee ballots shall be permitted to vote a provisional ballot in person at their local board of elections; (f) Requiring that electors be permitted to cure any deficiencies in their provisional ballots or absentee ballot identification envelopes by mail, phone, or email up through the day prior to the day the official canvass is required to begin; (g) Setting a date for the 2020 primary election to conclude that would allow election officials sufficient time to provide orderly notice to electors and administer the election in the manner provided for herein; (h) Requiring Defendant LaRose to issue a directive notifying Ohio’s eighty-eight county boards of elections the aforementioned requirements; and (i) Requiring Defendant LaRose to educate and inform electors: about the timeline and process for voting in the upcoming election; and that if they did not receive absentee
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Dated: March 30, 2020

Respectfully submitted,

Ezra D. Rosenberg* Jon M. Greenbaum* Pooja Chaudhuri* Jacob Conarck* Lawyers’ Committee For Civil Rights Under Law 1500 K Street, NW, Ste. 900 Washington, D.C. 20005 (202) 662-8600 erosenberg@lawyerscommittee.org jgreenbaum@lawyerscommittee.org pchaudhuri@lawyerscommittee.org jconarck@lawyerscommittee.org
Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, Ohio 44103 (216) 472-2220 flevenson@acluohio.org

/s/ Naila S. Awan_________ Naila S. Awan, Trial Attorney (0088147) Brenda Wright* Emerson Gordon-Marvin* Dēmos 80 Broad St, 4th Floor New York, NY 10004 (212) 485-6055 nawan@demos.org bwright@demos.org egordonmarvin@demos.org
Chiraag Bains* Adam Lioz* Dēmos 740 6th Street NW, 2nd Floor Washington, DC 20001 (202) 864-2746 cbains@demos.org alioz@demos.org

David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Suite 203 Columbus, Ohio 43206 (614) 586-1972 dcarey@acluohio.org

Attorneys for the Plaintiffs

*motions for admission pro hac vice forthcoming

26

 
 Case: 2:20-cv-01638-MHW-EPD Doc #: 4 Filed: 03/31/20 Page: 1 of 25 PAGEID #: 33

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

LEAGUE OF WOMEN VOTERS OF OHIO, OHIO A. PHILIP RANDOLPH INSTITUTE, LASHUNDA LEE, MUNIA MOSTAFA, AUDRIANNA VICTORIAN RODRIGUEZ, and HANNAH TUVELL,
Plaintiffs,
v.

CASE NO. 2:20-cv-1638
JUDGE MICHAEL H. WATSON Magistrate Judge Elizabeth Preston Deavers
EXPEDITED TREATMENT REQUESTED

FRANK LAROSE, in his official capacity as Secretary of State of Ohio,
Defendant.

PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PROPOSED ORDER AND MEMORANDUM IN SUPPORT

TELEPHONIC CONFERENCE REQUESTED

Plaintiffs, through their counsel, respectfully move this Court, pursuant to Fed. R. Civ. P. 65, S.D. Ohio Civ. R. 65.1, and for the reasons contained in the Memorandum of Law being submitted herewith, for an emergency temporary restraining order to prevent qualified Ohio voters from being denied their right to register to vote and to vote in Ohio’s 2020 primary election, currently set to conclude on April 28, 2020. Defendant will be provided actual notice of this motion.
WHEREFORE, Plaintiffs respectfully request that this Court issue an emergency temporary restraining order mandating that:
(1) Any qualified Ohio elector who submitted a voter registration application or updated their registration information between February 19, 2020, and 30 days prior to the day on which the 2020 primary election is set to conclude shall have their registration information processed and be permitted to vote in the 2020 Primary Election;

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(2) At least 21 days prior to the close of polls for the 2020 primary election, county boards of elections shall mail all registered electors who have not already voted in the election a primary ballot for each party with candidates on the ballot, return postage pre-paid, with instructions to cast only one ballot and return the ballot in the official pre-paid postage envelope;
(3) Any elector who has not received a mail absentee ballot at least 14 days prior to the close of polls for the 2020 primary election may submit a request for such a ballot to their local board of election by phone;
(4) Any elector who qualifies for in-person voting pursuant to H.B. 197, § 32(D)(1), and who received a mail absentee ballot, can vote a regular ballot in-person ballot if they bring their absentee ballots to their local board of election;
(5) Any elector who does not receive their mail absentee ballot prior to the postmark date for mail absentee ballots shall be permitted to vote a provisional ballot in person at their local board of election;
(6) Any elector will be permitted to cure any deficiencies in their provisional ballots or absentee ballot identification envelopes by mail, phone, or email up through the day prior to the day the official canvass is required to begin;
(7) The conclusion of the 2020 primary election be set at such a time as will allow election officials to provide orderly notice to electors and administer the election in the manner provided for herein;
(8) Defendant LaRose to issue a directive notifying Ohio’s eighty-eight county boards of elections of the aforementioned requirements; and
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(9) Defendant LaRose to educate and inform electors about: the timeline and process for voting in the upcoming election; and that if they did not receive an absentee ballot in the mail they may contact their boards of elections and (a) confirm whether they have been sent a ballot, and (2) if they have not received a ballot, request a ballot by phone.

Dated: March 31, 2020

Respectfully submitted,

Ezra D. Rosenberg* Jon M. Greenbaum* Pooja Chaudhuri* Jacob Conarck* Lawyers’ Committee for Civil Rights Under Law 1500 K Street, NW, Ste. 900 Washington, D.C. 20005 (202) 662-8600 erosenberg@lawyerscommittee.org jgreenbaum@lawyerscommittee.org pchaudhuri@lawyerscommittee.org jconarck@lawyerscommittee.org
Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, Ohio 44103 (216) 472-2220 flevenson@acluohio.org

/s/ Naila S. Awan________ Naila S. Awan, Trial Attorney (0088147) Brenda Wright* Emerson Gordon-Marvin* Dēmos 80 Broad St, 4th Floor New York, NY 10004 (212) 485-6055 nawan@demos.org bwright@demos.org egordonmarvin@demos.org
Chiraag Bains* Adam Lioz* Dēmos 740 6th Street NW, 2nd Floor Washington, DC 20001 (202) 864-2746 cbains@demos.org alioz@demos.org

David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Suite 203 Columbus, Ohio 43206 (614) 586-1972 dcarey@acluohio.org

Attorneys for the Plaintiffs

*motions for admission pro hac vice forthcoming

3

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MEMORANDUM OF LAW I. INTRODUCTION
The spread of COVID-19 has altered our patterns of life, including the conduct of Ohio’s primary election. But this public health crisis must not also become a crisis for our democracy. Ohio’s plans for conducting a virtually all vote-by-mail election on April 28, 2020—over admonitions from the Secretary of State and the bipartisan Ohio Association of Election Officials that the required steps cannot be completed by that date—will disenfranchise thousands of voters, in violation of statutory and constitutional requirements protecting the fundamental right to vote. These include the requirement that eligible persons may register to vote at least until 30 days before the election, pursuant to Section 8 of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C § 20507(a)(1), and that they have sufficient opportunity to cast a ballot in the election, as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Emergency relief to protect these rights is imperative.
The night before the scheduled primary election day of March 17, 2020, Ohio’s top executive officers announced that the primary would not proceed as scheduled, citing the threat to public safety from the spread of COVID-19. After Defendant Secretary of State Frank LaRose (“Secretary LaRose”) rescheduled the election for June 2, the Ohio General Assembly chose to convert the 2020 Ohio primary election to an almost entirely vote-by-mail election on April 28. In doing so, the General Assembly barred the registration of any voter who submitted an application after February 18, in violation of the NVRA, and erected a multi-step process requiring design and production of an informational postcard and a minimum of four mailings within 32 days, to reach up to 7.7 million voters. The process imposes greater burdens on voters without computers, internet
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access, printer capability, or postage. These conditions will render it impossible for many Ohioans to vote.
There are straightforward solutions to the threat of disenfranchisement created by the General Assembly, solutions that have been implemented by numerous other states: send absentee ballots to all voters, allow them to register to vote up until the time required by federal law, schedule the election for a date that allows election officials to educate the public and conduct the election in an orderly and safe manner, and allow an in-person voting option for those voters who are unable to vote by mail. That is the relief Plaintiffs seek.
II. STATEMENT OF FACTS A. COVID-19’s Impact on Ohio’s 2020 Primary Election
On March 9, 2020, Ohio Governor Mike DeWine declared a state of emergency “to protect the well-being of the citizens of Ohio from the dangerous effects of COVID-19.” Exec. Order 2020 O1D, (Mar. 9, 2020).1 On the eve of the scheduled March 17 primary, the Governor announced that state officials had determined it was unsafe to hold the election on Tuesday, and Ohio Department of Health Director Dr. Amy Acton ordered all polls closed.2 Shortly thereafter, Secretary LaRose issued Directive 2020-06, postponing the March 17, 2020, primary election to June 2, 2020, and further stating that “[t]he boards of elections are prohibited from processing any new voter registrations for the June 2, 2020 presidential primary election. The February 18, 2020 voter registration deadline remains the voter registration deadline.” Ohio Sec’y of State, Directive 2020-06 (Mar. 16, 2020). On March 18, Plaintiffs League of Women Voters of Ohio (“LWVO”) and
1 Following the declaration, Secretary LaRose ordered county boards of elections to relocate all polling places out of residential senior citizen facilities to protect that high-risk demographic. Ohio Sec’y of State, Directive 2020-03 (Mar. 9, 2020). 2 Ohio Governor Mike DeWine, Statement from Ohio Governor Mike DeWine on the March 17, 2020 Election, (Mar. 16, 2020), https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/dewine-statementon-march-17-2020-election.
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the Ohio A. Philip Randolph Institute (“Ohio APRI”) formally notified Secretary LaRose— copying Ohio House and Senate leadership —that failing to shift the voter registration deadline to within 30 days of any new primary date violates Section 8 of the NVRA, 52 U.S.C. § 20507(a).3
On March 22, Governor DeWine and Dr. Acton issued a “stay at home order” requiring Ohioans to remain at home except for essential business from March 23 through April 6.4 Mail delivery is considered an essential business operation under the order, but the order does not name libraries or other places that may offer free or low-cost printing and hence these establishments are unlikely to remain open during the duration of the stay-at-home-order.5 B. House Bill 197 Is Enacted
On March 25, with the lawsuits surrounding the timing of the election pending, the Ohio legislature passed a bill establishing an April 28 vote-by-mail-only primary election. H.B. 197. Governor DeWine signed the bill into law on March 27 (“the Act”).
The Act, like Defendant’s Directive 2020-06, retained the February 18 voter registration deadline and explicitly prohibited boards of elections from processing voter registration applications submitted after that date. Id. § 32(B)(3), (C)(1). This prevents thousands of Ohioans who submitted voter registration forms after February 18 from voting in the 2020 primary election. Ex. A, Tuvell Decl. ¶¶ 5–6, 9; Ex. B, Shack Decl. ¶¶ 12, 20 (Ohio Organizing Collaborative submitted voter registration applications for 2,233 Ohioans register to vote between February 19 and March 13).
3 On March 17, two legal actions challenged the Secretary’s authority to set a new election date. State ex rel. Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Sup. Ct., filed Mar. 17, 2020); Reardon v. LaRose, No. 20-cv-2105 (Franklin Cty. Ct. Com. Pl. Mar. 17, 2020) (answer and cross-claim). Plaintiffs LWVO and Ohio APRI submitted a brief as amici curiae in the Ohio Supreme Court action, alerting the court and parties to the NVRA violation in Directive 2020-06 and requesting that the court ensure that any relief protect Ohio electors who would find it prohibitively challenging to exercise their right to vote given the state’s restrictive mail voting practices. Ex. C. 4 Ohio Dep’t of Health, Director’s Stay at Home Order, (March 22, 2020). 5 See id.
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The Act also establishes a multi-step process that must be completed on a short timeline for Ohio electors to participate in the vote-by-mail-only election.6 First, the Secretary must send a postcard to all registered voters informing them of the new election date and the mail-ballot only election. H.B. 197, § 32(C)(2). Second, voters must acquire absentee ballot applications, either by downloading and printing applications from the Secretary’s website or requesting that their boards of elections mail applications. Third, voters must acquire and apply postage since applications are not postage pre-paid. Fourth, voters must mail their applications to their county boards of elections, which must arrive by noon April 25. Id. § 32(C)(3). Fifth, county boards must process applications and determine completeness.7 If election officials determine an application is “invalid,” they must notify the applicant who then must cure the purported defect by April 25. Id. § 32(C)(5). Sixth, assuming the applications are valid, boards of elections must mail absentee ballots to voters. Id. § 32(C)(6). Seventh, voters must cast their ballots. Eighth, and finally, the voters must return their ballots, which has pre-paid postage, to county boards of elections, postmarked by April 27 or dropped off in person by 7:30 p.m. on April 28. Id. § 32(E)(1). Voters must cure any deficiencies in their absentee ballot identification envelopes by May 5. Id. § 32(F)(1).
In passing the Act, the legislature rejected Secretary LaRose’s proposal to set a June 2 primary, allow for in-person voting on that date, and mail every registered voter a postage pre-paid absentee ballot application.8 In his letter explaining that proposal, Secretary LaRose stated that “June 2 is the earliest date [for the election] due to the logistical realities of conducting a vote-by-
6 Only voters who are disabled or unable to receive mail at their residences are eligible to vote in person at the board of elections, and only on April 28. H.B. 197, § 32 (D)(1). 7 In addition, if the ballot request is deemed invalid “because the applicant is an elector who has moved or had a change of name without updating the elector’s registration . . . or for any other reason,” the board of elections is required to provide the applicant with a pre-paid provisional ballot. Id. § 32(C)(7). 8 See Ohio Sec’y of State, Letter to Members of the Ohio General Assembly (March 21, 2020), Ex. D (“Secretary LaRose Letter”).
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mail election, the ever-evolving health realities of protecting against the spread of Coronavirus
and the sacred responsibility we have as public officials to preserve the integrity of our election.”
Secretary LaRose Letter. Noting the difficulty of contacting up to 7.7 million Ohio voters,
Secretary LaRose continued:
No date before June 2nd is logistically possible. We simply cannot put a postagepaid absentee ballot request in the hands of each eligible voter and afford them a reasonable time to cast a ballot any earlier. A plan that does not afford every Ohioan an opportunity to vote free of charge would be unconstitutional . . . . A plan that sets unattainable timelines for mailing absentee requests to voters, or calls for inadequate procedures for ensuring every voter has an opportunity to cast a ballot at no charge, would likely fail a legal challenge. Such a decision would both create greater confusion for voters and almost certainly ensure that your authority as legislators is usurped by a federal court who will order a new plan that could extend well beyond June 2nd.
Id. The legislature also acted contrary to the pleas of county elections officials. On March 24, while
legislation was pending, the bipartisan Ohio Association of Election Officials (“OAEO”) sent a
letter to the leaders of the Ohio legislature stating that “April 28th is too soon to conclude the election” and recommending “that the election conclude no earlier than May 19th.”9 The request
for more time was based on the multi-step process being considered (and ultimately adopted) for
voters to request, receive, and return absentee ballots. For example, the OAEO expressed concern
that the initial postcard mailing “could take 2–3 weeks under the best of circumstances to produce,
proof, and mail” and then an additional 3–5 days to arrive at voters’ residences. OAEO Letter.
If election officials and voters are able to perfectly follow the process set out by the Act,
using the most favorable estimates put forth by the OAEO (including the fastest production time
for postcards and optimal postal delivery times for each step), voters would be able to send back their absentee ballots only two days before the postmark deadline.10 But there is every reason to
9 Ohio Ass’n of Election Officials, Letter to Legislative Leaders, (March 24, 2020), Ex. E (“OAEO Letter”). 10 Under this timeline, the Secretary would mail postcards on April 9 (less than 14 days from the Act’s passage); postcards would arrive to voters on April 12 (three days, including Easter Sunday); voters would take a single
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believe the process will not work perfectly and proceed at that pace, as both Secretary LaRose and the OAEO made clear. The process leaves no room for delay or error by the postal service or overloaded county elections boards. C. Hurdles to Voting Under the Process Set Forth in H.B. 197
Many Ohio voters are accustomed to voting in person,11 had planned to do so in this year’s primary election, and are unfamiliar with the absentee voting process. Exs. F, Lee Decl. ¶ 6; G, Moore Decl. ¶ 8; H, Mostafa Decl. ¶ 9. Many were unaware that, although they can register to vote online, requests for absentee ballots must be submitted by mail. Exs. F, Lee Decl. ¶ 8; G, Moore Decl. ¶ 11.
In addition, many Ohioans do not have the supplies to print and mail absentee ballot applications. Exs. F, Lee Decl. ¶ 9; I, Rodriguez Decl. ¶¶ 17–18. And, those who do not own either printers or cars will find it especially burdensome to quickly secure absentee ballot applications when many printing locations are closed and taking public transportation may present serious health risks. Exs. F, Lee Decl. ¶ 11; H, Mostafa Decl. ¶ 15. In this era of digital correspondence, many Ohioans also do not have proper postage at home, and under the current public health crisis are concerned about leaving home to acquire postage.12 Ex. H, Mostafa Decl. ¶¶ 11, 14.

day to print absentee ballot applications, acquire postage, and mail their applications on April 14 to arrive at

elections boards on April 17; elections boards would take 24 hours to process these applications over the

weekend and mail ballots to voters on April 20; voters would receive absentee ballots on April 23; and voters

would take 24 hours to complete the ballots and mail them on April 25.

11 In the 2016 Primary Election, 450,901 voters cast absentee ballots either in-person during the early voting

period or by mail, out of 3,302,832 ballots cast in the election. Ohio Sec’y of State, 2016 Official Election

Results,

https://www.sos.state.oh.us/elections/election-results-and-data/2016-official-elections-results/

(comparing the voter turnout by county and absentee supplemental reports for the March 15, 2016, primary

election).

12 Further, while voters may contact their local board of elections and request an absentee ballot application be

submitted sent to them—adding one more mailing to the process—boards may not be equipped to respond to

these requests. For example, when one registered voter attempted to call the Franklin County Board of Elections

to request an absentee ballot application, they were he was directed to an automatic recording that was on a loop

but did not provide an option to request an application, speak with an official, or leave a voicemail. Ex. G, Moore

Decl. ¶¶ 15–16. While the voter eventually pressed “0” without prompting, he was placed on hold for 10 minutes

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If voters do not fill out their absentee ballot applications perfectly, boards must notify them of any deficiencies and the voters must forward additional information to their boards prior to the April 25 ballot request deadline, H.B. 197, § 32(C)(5)(a), requiring at least one additional minimum-three-day trip through the mail—adding further uncertainty to the process. Further, if voters vote a provisional ballot that requires additional information or make any errors or omissions on their absentee ballot identification envelopes they may find it impossible to cure their ballots within the seven-day statutory window, id. § 32(F), given that this cure may require two trips through the mail. This window and method is imposed despite the fact that counties are not required to begin the official canvass until May 13, Ohio Sec’y of State, Directive 2020-07 (Mar. 27, 2020), and OAEO has suggested allowing fixes by phone and email, OAEO Letter, Ex. E; see also Ex. H, Mostafa Decl. ¶ 16. (“I am also worried that if I make a mistake because I am not familiar with voting this way that there will not be enough time for me to fix that mistake.”); Ex. J, Miller Decl. ¶¶ 25–26.
There are also indications that boards of elections and postal services are not working at optimal speeds during this public health emergency. COVID-19 infections among postal workers in Ohio threaten to slow mail delivery over the next month.13 Boards of elections, meanwhile, will need to process an influx of absentee ballot applications and ballots from voters who had planned to vote in-person on Election Day. Some will do this with staggered shifts for their staffs to allow for social distancing and reduce the likelihood of contracting or spreading COVID-19, and “[f]ewer than half of Ohio’s county elections offices . . . have the equipment to print absentee
and when he finally got through to someone at the board of elections he was ultimately patched through to an automated system. Id. ¶ 16. The voter was not able to confirm the information provided or directly speak to anyone about his application request. Id. 13 See Courtney Shaw, Beachwood Mail Carrier Tests Positive for COVID-19, News 5 Cleveland (Mar. 22, 2020), https://www.news5cleveland.com/news/continuing-coverage/coronavirus/beachwood-mail-carrier-testspositive-for-covid-19.
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ballots in-house,” while the other offices must rely on four outside vendors who have been approved to print absentee ballots.14 Even in mid-March, when many Ohioans were still planning to vote in-person on March 17, and when the boards would have been receiving and processing far fewer absentee ballot requests, it took more than a week for some voters receive a ballot after submitting an application.15 Ex. K, Savage Decl. ¶ 12 (8 days to receive ballot). And many registered Ohio voters—including college students forced to leave in response to the COVID-19 pandemic—may have their mail even more delayed because they are trying to receive their ballots outside Ohio. See Exs. L, Jeter Decl. ¶¶ 18–20; M, Riley Decl. ¶¶ 12–13. D. Plaintiffs
Plaintiff LWVO is a non-partisan, non-profit organization with approximately 3,000 members across 30 local leagues. LWVO works to promote civic engagement, including by registering citizens to vote and providing information to citizens about how to vote. The spread of COVID-19 has required LWVO to divert its resources towards making sure that prospective voters are not disenfranchised. Ex. J, Miller Decl. ¶¶ 3–4, 14–15, 18, 20, 21, 33, 35–43.
Plaintiff Ohio APRI is a state chapter of the A. Philip Randolph Institute, a national organization for African-American trade unionists and community activists established in 1965 to forge an alliance between the civil rights and labor movements. Ohio APRI has eight chapters, including in Columbus, and members across the State. Its mission includes voter outreach, voter education, and voter registration; the majority of Ohio APRI’s resources are dedicated to voter
14 The Editorial Board, Reset the Date, The Blade (Mar. 29, 2020, 12:00AM), https://www.toledoblade.com/opinion/editorials/2020/03/29/reset-the-date-ohio-primary-2020-electionvoting/stories/20200329030. 15 If the election had proceeded to on March 17, 2020, Ms. Savage would not have been able to submit her ballot by the deadline. As the state moves the primary election to mail, it is making no provision for voters who have not received mail absentee ballots to still obtain and cast a ballot. See H.B. 197, § 32(D)(1).
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engagement work, and this included efforts leading up to the scheduled March 2020 primary election. Ex. N, Washington Decl. ¶¶ 11–16.
Plaintiff Lashunda Lee is a regular voter and Ohio resident. Ms. Lee has never voted by mail, planned to vote in person in the 2020 primary, and lacks easy access to a printer. Ex. F, Lee Decl. ¶¶ 5, 7, 9, 11. Plaintiff Munia Mostafa has been registered to vote in Ohio since she became a naturalized citizen in 2017. Ms. Mostafa has never voted by mail, planned to vote in person in the 2020 primary, lacks easy access to a printer, and is limiting trips outside her home so as not to expose her children to COVID-19. Ex. H, Mostafa Decl. ¶¶ 4, 7–8, 11–14. Plaintiff Audrianna Victorian Rodriguez is a regular voter who moved to a different precinct within Cuyahoga County and intended to update her address when she voted in person on March 17. On March 28, Ms. Rodriguez submitted a voter registration application through the State’s online portal to update her address. She does not own a printer or have stamps and fears that she will not be able to complete the ballot request process in time. Ex. I, Rodriguez Decl. ¶¶ 5–6, 9, 12, 17–18. Plaintiff Hannah Tuvell is a life-long Ohio resident who has never registered to vote before and would like to vote in the 2020 primary election. Ms. Tuvell submitted a voter registration application on the Secretary of State’s website on March 29, 2020. She received confirmation that the application had been forwarded to her board of election. Ex. A, Tuvell Decl. ¶¶ 2–4, 5–6. E. Practices Followed by Other Vote-By-Mail Jurisdictions
Five states—Colorado, Hawaii, Oregon, Washington, and Utah—conduct elections entirely by mail.16 These states still require county boards to establish vote centers or voting booths
16 Colo. Rev. Stat. § 1-7.5-104 (all counties “shall” conduct general, primary, odd-year, coordinated, recall, and congressional vacancy elections by mail ballot); Haw. Rev. Stat. § 11-101 (all elections “shall be conducted by mail” beginning with the 2020 primary election); Or. Rev. Stat. § 254.465 (“[c]ounty clerks shall conduct all elections in this state by mail”); Wash. Rev. Code § 29A.40.010 (in every general, special, or primary election, each active registered voter “shall receive a ballot by mail” unless the voter is removed from the rolls); Utah
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for a period of time leading up to and on Election Day, so that voters have the option to vote inperson.17
At least 16 states authorize local governments to opt into a vote-by-mail system,18 allow all-mail absentee voting in local or special elections,19 or permit certain jurisdictions to conduct elections by mail based on population size.20 In these sixteen jurisdictions, which conduct either all or at least some of their elections by mail and require voters to register, boards of elections automatically mails ballots to registered voters without requiring voters to apply for absentee ballots. Of the five states with all-mail elections, Colorado allows some voters—those who are unaffiliated—to cast a ballot in either party’s primary. These voters receive the ballots of both major political parties during a primary election—but may only cast one ballot.21

Code Ann. § 20A-3-302 (authorizing election officers to mail a ballot to each active voter in the precinct). In

2020, all of Utah’s 21 counties opted into the mail-ballot only.

17 Colo. Rev. Stat. § 1-7.5-102(2) (“[r]ecognizing the continued need for in-person voting options through early

voting and on election day, the general assembly finds that mail ballot elections conducted by the county clerk

and recorder must include voter service and polling centers so voters can register to vote, update voter

registration information, and vote in person.”); Haw. Rev. Stat. § 11-92.1 (election officials must establish voter

service centers across the state); Or. Rev. Stat. § 254.474 (county clerks at each primary and general election

must maintain “voting booths” in the county); Wash. Rev. Code § 29A.40.160(1) (“[T]he voting center shall be

open during business hours during the voting period, which begins eighteen days before, and ends at 8:00 p.m.

on the day of, the primary, special election, or general election.”).

18 See, e.g., Utah Code Ann. § 20A-3-302 (authorizing election officers to mail a ballot to each active voter in

the precinct); Cal. Elec. Code § 4005 (authorizing all-mailed ballot elections, including mailing each registered

voter a ballot); N.D. Cent. Code § 16.1-11.1-01 (authorizing mailed ballots).

19 See, e.g., Alaska Stat. § 15.20.800 (director may conduct any election other than a general, party primary, or

municipal election by mail and “shall” send a ballot to every registered voter); Ariz. Rev. Stat. Ann. §§ 16-409,

16-558.01 (a city, town or school district may conduct a mail ballot election and “shall send by nonforwardable

mail all official ballots” to each qualified voter); Fla. Stat. § 101.6102 (same); Kan. Stat. Ann. § 25-432 (vote-

by-mail only in certain elections); Md. Code Ann. § 9-501 (same); Mo. Rev. Stat. § 115.652 (same); Mont. Code

Ann. § 13-19-104 (same); Wyo. Stat. Ann. § (same).

20 See, e.g., Neb. Rev. Stat. § 32-960 (certain counties can apply to conduct all-mailed ballot elections and upon

approval, must mail ballots to registered voters); Idaho Code § 34-308 (precincts with fewer than a certain

number of voters may be designated as vote-by-mail only); Nev. Rev. Stat. § 293.213 (same); N.M. Stat. Ann.

§ 1-6-22.1 (same); Minn. Stat. § 204B.45 (municipalities with fewer than a certain number of voters may be

designated as vote-by-mail only jurisdictions); N.J. Stat. Ann. § 19:62-1 (same).

21

Colo.

Sec’y

of

State,

Primary

Elections

FAQs,

https://www.sos.state.co.us/pubs/elections/FAQs/primaryElectionsFAQ.html (last visited Mar. 28, 2020).

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III. ARGUMENT A. Standard of Review
The standard governing the issuance of a temporary restraining order is the same as that of a preliminary injunction. See Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). A plaintiff must establish (1) a likelihood of success on the merits, (2) a likelihood of suffering irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in plaintiff’s favor, and (4) that issuing a restraining order is in the public interest. Obama for Am. v. Husted (“OFA”), 697 F.3d 423, 428 (6th Cir. 2012). When plaintiffs mount a constitutional challenge, “the likelihood of success on the merits often will be the determinative factor” because “irreparable injury is presumed” where “constitutional rights are threatened or impaired.” Id. at 436. Moreover, when plaintiffs seek injunctive relief against the government, the balance of equities and public interest “merge” because both the government and the public benefit when courts ensure state action is lawful. See Nken v. Holder, 556 U.S. 418, 435 (2009).
In the instant case, Plaintiffs satisfy each of the four criteria for a temporary restraining order. H.B. 197 cuts off voter registration and prohibits counties from processing voter registration applications submitted after February 18 and fails to administer a workable vote-by-mail scheme that would allow all eligible Ohioans to participate in the primary election. B. Plaintiffs Are Likely to Succeed on the Merits of Their Claims
To prevail on a motion for a preliminary relief, “a plaintiff must show more than a mere possibility of success,” Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 543 (6th Cir. 2007), but “is not required to prove his case in full.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Plaintiffs easily meet this standard.
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1. Plaintiffs Have Standing Article III standing requires (1) an “injury in fact,” i.e., an invasion of a legally protected
interest which is concrete and particularized and actual and imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) that a favorable decision will “likely” redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). It is only necessary to establish standing on behalf of one plaintiff for each cause of action. ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 652–53 (6th Cir. 2007), cert. denied, 552 U.S. 1179 (2008).
As set forth in their declarations, Organizational Plaintiffs LWVO and Ohio APRI have diverted significant resources, and will divert more absent judicial relief, educating their members and other voters about the Act’s cumbersome vote-by-mail process and cramped timeline, and scrambling to help voters apply for, obtain, and cast absentee ballots before it is too late. Ex. J, Miller Decl. ¶¶ 14–15, 18, 20, 21, 33, 35–43; Ex. N, Washington Decl. ¶¶ 23, 25, 29. LWVO and Ohio APRI also have associational standing because their members are unduly burdened by Ohio’s procedures for the primary. Id. These facts clearly give rise to Article III standing for Plaintiffs. See Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 624 (6th Cir. 2016) (“[A]n overhaul of the get-out-the-vote strategy of an organization that uses its limited resources helping [] voters cast ballots” constitutes Article III standing). Likewise, Individual Plaintiffs have established Article III standing as they have convincingly alleged that they will either be severely burdened in exercising their fundamental right to vote in the April 28 election, Ex. H, Mostafa Decl. ¶ 17; Ex. F, Lee Decl. ¶ 14; Ex. I, Rodriguez Decl. ¶ 20, or that they will be outright disenfranchised because
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they submitted their registrations or updated a change of address after February 18, Ex. A, Tuvell Decl. ¶ 9; see also LWVO v. Brunner, 548 F.3d 463, 466 (6th Cir. 2008).22
2. The National Voter Registration Act Requires the State to Process Registrations Received After February 18, 2020 The National Voter Registration Act (“NVRA”) was designed to “increase the number of
eligible citizens who register to vote in elections for Federal office.”23 52 U.S.C. § 20501(b)(1). To achieve this end, Section 8(a)(1) of NVRA provides that “each State shall . . . ensure that any eligible applicant is registered to vote in an election” for Federal office “if the valid voter registration form of the applicant is received by the appropriate State election official not later than the lesser of 30 days, or the period provided by State law, before the date of the election.” 52 U.S.C § 20507(a)(1); see also U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 376 (6th Cir. 2008) (“Section 8 of the NVRA [requires] state election officials must ‘ensure that any eligible applicant is registered to vote in an election’ whenever a valid voter registration form is . . . received by the appropriate state official no later than 30 days before the date of the election.”).
H.B. 197 violates this clear mandate. The Act prohibits all elections officials from “[p]rocessing any voter registration application submitted after February 18, 2020,” and prohibits voters not registered by February 18 from participating in the federal primary election for which voting is presently set to conclude on April 28, 2020. H.B. 197, § 32(B)(3), (C)(1)(a), (E)(1). This sets the voter registration deadline 70 days prior to the close of polls for Ohio’s 2020 Federal
22 H.B. 197’s restriction on registration is an ongoing violation of the NVRA occurring within 30 days of a federal election, allowing Plaintiffs to seek relief without providing prior notice. 52 U.S.C. § 20510(b)(3). 23 Under the NVRA, an “election” is defined as “a general, special, primary, or runoff election,” 52 U.S.C. § 20502(1) (citing 52 U.S.C. § 30101(1)), and “Federal office” is defined as “the office of President or Vice President, or of Senator or Representative in, or Delegate of Resident Commissioner to, the Congress, 52 U.S.C. § 20502(2) (citing 52 U.S.C. § 30101(3)). In Fish v. Kobach, the Tenth Circuit noted that because the NVRA relies on the Federal Election Campaign Act to define the terms, “election” and “Federal office,” the NVRA “applies expressly to all federal general and primary elections, including presidential elections.” 840 F.3d 710, 719 n.7 (10th Cir. 2016).
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Primary Election. Under Section 8(a)(1) of the NVRA, Ohio must allow any eligible person to vote if they are registered 30 days prior to the primary. That means the registration deadline for an April 28 primary may be no earlier than March 29, 2020.
When elections move, for whatever reason, the strong protections of the NVRA move with them. Federal courts consistently find the NVRA violated where state registration deadlines extend more than thirty days before an election. In Georgia, a district court held that because the date of a special runoff election was more than 30 days after the original voter registration deadline set for the general election, this original voter registration deadline violated Section 8 of the NVRA and had to be extended. See Ga. State Conf. of the NAACP v. Kemp, No. 1:17-cv-1397, 2018 WL 2271244, Order at 3 (N.D. Ga. Apr. 11, 2018); see also Ga. State Conf. of the NAACP v. Kemp, No. 1:17-cv-1397 (N.D. Ga. Oct. 17, 2017), Consent Decree, ECF No. 42, at *2–3 (extending preliminary injunction to all future federal elections including runoffs). Similarly, a district court ruled that Arizona violated the NVRA because its deadline to register by mail was 31 days before the election and the deadline to register in-person at some state agencies was 32 days before the election. Ariz. Democratic Party v. Reagan, No. CV-16-03618-PHX-SPL, 2016 WL 6523427, at *13–14 (D. Ariz. Nov. 3, 2016). The NVRA’s registration deadline is so clear that states typically comply without incident.24
Ohio cannot avoid the NVRA by redefining its election date. Under the NVRA, the April 28, 2020, deadline represents an “election,” not a mere technical extension of the deadline for receiving ballots. As discussed above, a primary purpose of the NVRA was to reduce barriers to
24 For example, the Secretary of State of Mississippi moved the voter registration deadline to 30 days before the runoff election in response to an NVRA notice letter pointing out that an earlier registration deadline for the runoff election violated Section 8 of the NVRA. Response Letter from Miss. Sec’y of State Jim Hood to NVRA Notice of Non-Compliance Letter from the Lawyers’ Comm. for Civil Rights Under Rule of Law (July 12, 2018), https://lawyerscommittee.org/wp-content/uploads/2018/07/MS-SOS-letter-re-NVRAcompliance.pdf.
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registration. Moreover, a state cannot proffer its own definitions to evade the NVRA. For example, when Michigan argued that it had not violated the NVRA’s restrictions on voter-list maintenance because it defined “registrant” more narrowly under its state law, the Sixth Circuit rejected this argument and instead applied a broad construction of “registrant” under the NVRA. Land, 546 F.3d at 381–82. The Sixth Circuit rejected Michigan’s state-law definition because allowing a state to narrowly define election terms “would frustrate the NVRA’s purpose” and allow states to “completely ignore . . .the NVRA.” Id. at 383. Similarly, if Ohio is permitted to set an election for one date, prohibit the vast majority of registrants from actually voting on that date, and later force them to vote absentee by a later date, then “election” will cease to have meaning and Section 8(a)(1) of the NVRA will become a hollow promise of voter registration protection. Plaintiffs are likely to succeed on the merits of their NVRA claim.
3. H.B. 197 Unconstitutionally Burdens the Fundamental Right to Vote H.B. 197 severely burdens the Plaintiffs’ First and Fourteenth Amendment rights in
connection with the right to vote. H.B. 197 also burdens LWVO’s and Ohio APRI’s members’ right to vote. In evaluating these claims, courts “weigh ‘the character and magnitude of the asserted injury’ against the ‘precise interests put forward by the State . . . taking into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.’” OFA, 697 at 433 (6th Cir. 2012) ((quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983))). In OFA, the Sixth Circuit affirmed the grant of a preliminary injunction enjoining Ohio’s Secretary of State and Attorney General from enforcing a statute that prohibited the use of in-person, early voting for nonmilitary voters in the last seventytwo hours before the election. The court held that there was a “particularly high” burden upon the estimated 100,000 voters (disproportionately women, older, and of lower income and educational
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attainment) who would choose to vote in that three-day period even though they could vote prior to the three-day period or on Election Day. Id. at 431.
The magnitude of injury in this case is far greater. Virtually all Ohio voters will have no choice other than to vote by mail in the 2020 primary. The State’s multi-step process must be executed perfectly by election officials, printing services, the postal service, and voters for citizens to cast their ballots and have them counted. Compared to states with widespread vote by mail, Ohio’s process creates far fewer options for voting and requires more steps to be executed by election officials, the postal service, and voters in less time and at greater cost to voters.
To begin, H.B. 197 requires the Secretary of State to take the unnecessary step of designing, printing, and mailing out up to 7.7 million postcards informing voters of the new procedures and deadlines. Clearing up confusion is important, but this mailing will only delay the process and leave voters with insufficient time to obtain and cast their ballots.
In addition, unlike the vote-by-mail states that send ballots to all registered voters, Ohio is requiring voters to submit applications first. This requirement itself creates a severe burden and will likely disenfranchise hundreds of thousands of voters. The burden is particularly severe on voters such as Plaintiffs Mostafa, Lee, and Rodriguez who do not own printers, know anyone else with printers, or have ink and postage to be able to mail their absentee ballot requests. It also falls hard on voters, such as college students, now voting from outside Ohio due to the pandemic.
The burden on voters is exacerbated by the compressed timeframe in which the election is occurring. Other states that postponed their primaries because of COVID-19 set the new election date for June (Connecticut, Indiana, Maryland, Pennsylvania, Rhode Island, Louisiana, New York,
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Kentucky), except for Georgia, which postponed its primary to May 19.25 In Alaska, Wyoming, and Kansas, elections were not postponed but are now vote-by-mail, voters do not have to apply for a vote by mail ballot.26 Unlike other states who have responded to the COVID-19 crisis, Ohio is a complete outlier in making vote by mail unnecessarily and unjustifiably burdensome.
Ohio is also limiting in-person voting in a way that will leave many voters with no opportunity to cast a ballot. The Act restricts in-person voting on April 28 to voters with disabilities and those with no place to receive mail. This will disenfranchise voters who are unable to cast a mail ballot before the election, including those who submit an absentee ballot request form but do not receive a ballot before the election concludes, as well as those who have insufficient time to cure deficiencies in their requests. See OAEO Letter, Ex. E, at 2 (“This is an especially prevalent issue for primaries, as voters frequently forget to designate a party preference on the application.”). Black and brown voters are more likely to have unreliable mail delivery, and young voters and voters of color are more likely to have their ballots rejected due to deficiencies. See Daniel A. Smith, Vote-By-Mail Ballots Cast in Florida, ACLU Florida at 3 (September 19, 2018), https://www.aclufl.org/sites/default/files/ aclufl_-_vote_by_mail_-_report.pdf.
The Sixth Circuit has held that while certain “requirements may only impose a reasonable burden on constitutional rights,” the proper analysis looks at “the combination of these laws,” which taken together can constitute “a severe burden.” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 595 (6th Cir. 2006); see also Libertarian Party of Ohio v. Husted, No. 2:13-cv-953, 2015 WL 12967768, at *9 (S.D. Ohio Mar. 16, 2015) (holding that the “aggregate effect” of election
25 Nick Corasaniti & Stephanie Saul, 12 States and Territories Have Postponed Their Primaries Because of Coronavirus. Here’s a List, N.Y. Times (Mar. 28, 2020), https://www.nytimes.com/article/2020-campaignprimary-calendar-coronavirus.html. 26 Id.; see also Kansas Democrats to Hold May Primary Completely by Mail, KSHB Kansas City (Mar. 30, 2020), https://www.kshb.com/news/coronavirus/kansas-democrats-to-hold-may-primary-completely-by-mail.
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law requirements “severely burdened associational rights”); Am. Ass’n of People with Disabilities, 690 F. Supp. 2d at 1219–20 (holding the court “must address the burdens the law poses collectively” as it cannot “parse out” the requirements that “in the aggregate impose an undue burden”).
Moreover, federal courts have moved similar election deadlines that were rendered burdensome by emergencies. See Fla. Dem. Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016) (finding the state imposed a “severe burden on the right to vote” when a hurricane impeded voter registration); Ga. Coal. for the Peoples’ Agenda, Inc., v. Deal, 214 F. Supp. 3d 1344, 1345 (S.D. Ga. 2016) (extending voter registration deadline after a hurricane).
Taken together, the provisions of H.B. 197—the April 28 deadline and multiple steps required for casting an absentee ballot—place a severe burden on Plaintiffs’ ability to vote. Given this severe burden, Ohio must justify H.B. 197 under strict scrutiny. Burdick, 504 U.S. at 434; OFA, 697 F.3d at 429. In light of how other states have approached a similar situation, it is clear that Ohio’s voting restrictions are not narrowly tailored to serve a compelling state interest. But even if the standard were more relaxed, Ohio cannot justify why it has enacted a process for its primary election that will likely result in mass disfranchisement, particularly when even its own state and local elections officials have warned the state against it. C. In the Absence of Injunctive Relief, Plaintiffs Will Suffer Irreparable Harm Because
They Will Not Be Able to Vote in the 2020 Primary Election The individual Plaintiffs, LWVO and Ohio APRI’s members and constituents, and voters
across Ohio will be unable to vote if this Court does not grant emergency relief. As the Sixth Circuit recognized, “a restriction on the fundamental right to vote . . . constitutes irreparable injury.” OFA, 697 F.3d 423, 436 (6th Cir. 2012); see also ACLU of Ky. v. McCreary Cty., Ky., 354 F.3d 438, 445 (6th Cir. 2003) (“[I]f it is found that a constitutional right is being threatened or
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impaired, a finding of irreparable injury is mandated.”); Mich. State A. Philip Randolph Inst. v. Johnson, 16-CV-11844, 2016 WL 3922355, at *13 (E.D. Mich. July 21, 2016) (“[Because t]he case at bar deals with the right to vote . . . this factor is presumed satisfied.”).
Plaintiffs have presented substantial evidence that they—and, in the case of the Organizational Plaintiffs, their members—are at serious risk of not being able to exercise their fundamental right to vote. They have demonstrated the severe obstacles to their and thousands of Ohioans’ casting a ballot in the upcoming election due to Ohio’s burdensome process. For example, more than 2000 new voter registrants whose applications a single nonprofit, Ohio Organizing Collaborative, submitted between February 19 and March 13 will not be able to vote because the Act prohibits counties from processing voter registrations submitted after February 18. Ex. B, Shack Decl. ¶¶ 12, 20. Without this Court’s intervention, untold numbers of voters could lose their right to vote either because boards cannot process their registrations; the absentee ballot process is so cumbersome, confusing, and logistically infeasible that they are unable to vote by mail; or they need to vote in person and cannot under H.B. 197’s unduly narrow provisions. D. The Balance of Harms Weighs in Favor of Plaintiffs
Absent a court order that directs Defendant to accept voter registration applications submitted after February 18, reset the voter registration deadline to 30 days prior to the new election date, and modify H.B. 197’s absentee voting procedures, Plaintiffs and at least hundreds of thousands of other Ohioans will not be able to vote in an election in which they are eligible to vote. This substantially outweighs any harm, presumably cost and administrative burden, that would be imposed on the State if the injunction is granted. OFA, 697 F.3d at 436-37. The relief here “eliminates a risk of individual disenfranchisement without creating any new substantial threats to the integrity of the election process.” Land, 546 F.3d at 388–89.
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E. The Public Interest Is Served by Ensuring that Plaintiffs Can Exercise Their Right to Vote The public interest factor primarily addresses the impact on non-parties. Hunter v.
Hamilton Cty. Bd. of Elections, 635 F.3d 219, 244 (6th Cir. 2011). In general, “the public has 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.” OFA, 697 F.3d at 436–437. “The public interest therefore favors permitting as many qualified voters to vote as possible,” id. at 437, and enforcing voter registration obligations set forth in the NVRA, see, e.g., Ass’n of Communities for Reform Now v. Scott, 2008 WL 2787931 (W.D. Mo. July 15, 2008); Fish v. Kobach, 189 F. Supp. 3d 1107, 1150 (D. Kan. 2016).
When, as here, the state severely burdens or constructively denies the right to vote through its policies, it harms not just those individuals who are disenfranchised but the public interest as a whole in conducting free and fair elections.
IV. CONCLUSION For the reasons stated above, this Court should enter an order providing the relief described above and as outlined in Plaintiffs’ Motion for Temporary Restraining Order.
20

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Dated: March 31, 2020

Respectfully submitted,

Ezra D. Rosenberg* Jon M. Greenbaum* Pooja Chaudhuri* Jacob Conarck* Lawyers’ Committee for Civil Rights Under Law 1500 K Street, NW, Ste. 900 Washington, D.C. 20005 (202) 662-8600 erosenberg@lawyerscommittee.org jgreenbaum@lawyerscommittee.org pchaudhuri@lawyerscommittee.org jconarck@lawyerscommittee.org
Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, Ohio 44103 (216) 472-2220 flevenson@acluohio.org

/s/ Naila S. Awan_________ Naila S. Awan, Trial Attorney (0088147) Brenda Wright* Emerson Gordon-Marvin* Dēmos 80 Broad St, 4th Floor New York, NY 10004 (212) 485-6055 nawan@demos.org bwright@demos.org egordonmarvin@demos.org
Chiraag Bains* Adam Lioz* Dēmos 740 6th Street NW, 2nd Floor Washington, DC 20001 (202) 864-2746 cbains@demos.org alioz@demos.org

David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Suite 203 Columbus, Ohio 43206 (614) 586-1972 dcarey@acluohio.org

*pro hac vice forthcoming Attorneys for the Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on March 31, 2020, I served the foregoing on counsel for Defendant via e-mail as indicated below: Bridget C. Coontz Section Chief, Constitutional Offices Ohio Attorney General bridget.coontz@ohioattorneygeneral.gov Julie Pfeiffer Assistant Section Chief, Constitutional Offices Ohio Attorney General julie.pfeiffer@ohioattorneygeneral.gov
/s/ Naila S. Awan__________________ Naila S. Awan, Trial Attorney (0088147) Dēmos 80 Broad St, 4th Floor New York, NY 10004 (212) 485-6055 nawan@demos.org
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 Case: 2:20-cv-01638-MHW-EPD Doc #: 14 Filed: 03/31/20 Page: 1 of 2 PAGEID #: 189

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

League of Women Voters, et al.,

Plaintiffs,

Case No. 2:20-cv-1638

v.

Judge Michael H. Watson

Frank LaRose,

Magistrate Judge Deavers

Defendant.

ORDER

The Court held a telephone conference in this matter on March 31, 2020.

During the telephone conference, the Court addressed the fact that

Defendant has already attempted to alleviate some of the alleged burdens

associated with H.B. 197 by, inter alia, not requiring voters to submit the official

ballot request form. Defendant indicated that he is currently reviewing other

ways to address Plaintiffs’ concerns. The Court expects the parties to be in

constant contact and to notify the Court if the parties are able to narrow the

scope of Plaintiffs’ challenges to H.B. 197 through reaching mutual agreement

regarding implementation of any of the provisions Plaintiffs challenge. Finally, as

addressed at the conference, the Court ORDERS the following:

1. Defendant shall respond to Plaintiffs’ motion for a temporary restraining order by 3:00 p.m. on Thursday, April 2, 2020. a. Defendant’s response shall specifically include the State’s interests that justify the burden on voting rights imposed by the establishment of an April 28, 2020 deadline for absentee voting (as opposed to Defendant’s original suggestion of a June 2, 2020 deadline for absentee voting).

Case: 2:20-cv-01638-MHW-EPD Doc #: 14 Filed: 03/31/20 Page: 2 of 2 PAGEID #: 190
b. Defendant shall also address its position regarding whether the writ of prohibition currently pending in the Supreme Court of Ohio has any impact on this litigation.
2. Plaintiffs’ reply brief shall be filed by 3:00 p.m. on Friday, April 3, 2020.
IT IS SO ORDERED.
__/s/ Michael H. Watson__________ MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

 
 Case: 2:20-cv-01638-MHW-EPD Doc #: 43 Filed: 04/02/20 Page: 1 of 6 PAGEID #: 418

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

League of Women Voters of Ohio, et al., :

:

Plaintiffs,

:

:

v.

:

:

Frank LaRose, in his official capacity as :

Secretary of State of Ohio,

:

:

Defendant.

:

Case No. 2:20-cv-01638 Judge Michael H. Watson Chief Magistrate Judge Deavers

INTERVENOR-DEFENDANT OHIO REPUBLICAN PARTY’S MEMORANDUM OPPOSING PLAINTIFF’S
MOTION FOR TEMPORARY RESTRAINING ORDER

Intervenor-Defendant Ohio Republican Party (“ORP”) opposes Plaintiffs’ motion for a

temporary restraining order and asks the Court to uphold the timing and process for conducting

Ohio’s 2020 primary election as set forth in Amended Substitute House Bill 197 of the 133rd

Ohio General Assembly ("H.B. 197").

Specifically, the ORP asks this Court to deny Plaintiffs’ (1) request to once again change the

date of Ohio’s primary election (which has already been changed more than once); (2) request to

extend the voter registration; and (3) request that Secretary of State LaRose (the “Secretary”) be

ordered to send multiple ballots to every voter who has not yet voted.

STATEMENT OF FACTS

In the interest of brevity (and because the Court is well aware of what transpired from

other filings herein), the ORP will not reiterate all of the facts that led to the enactment of H.B.

197, which allows voting in the March 17, 2020 through April 28, 2020.

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What is important here is that the General Assembly, on March 25, 2020, in the midst of an historical pandemic, took action to pass comprehensive emergency legislation to address a number of pressing legal issues related to the pandemic, including Ohio’s March 17, 2020 primary election. This comprehensive emergency legislation, H.B. 197, was unanimously passed. As aptly stated by the Ohio Democratic Party (“ODP”):
Leaders of both parties spoke in support of HB 197’s provisions related to the election, which set a primary date of April 28, 2020 and gave Ohioans an unprecedented additional 40 days to cast a ballot by mail, return postage prepaid. At the same time, it addressed the needs of candidates, parties, and school districts and other government subdivisions for finality in the election by not drawing out the election any longer than necessary. The General Assembly acted swiftly and decisively in unanimous, bipartisan fashion to address bringing the primary election to a conclusion and provide additional time for voting.
Two days later, the Governor signed H.B. 197 and it became Ohio law. Prior to March 17, 2020, Ohioans who had properly and timely registered to vote 30 days
prior to the March 17, 2020 primary election had the full 28 days of early voting provided under Ohio law to cast their vote in-person. Of course, those who had properly and timely registered to vote 30 days prior to the March 17, 2020 primary election were also able to avail themselves of absentee voting prior to March 17, 2020. H.B. 197 was enacted to provide electors who had not voted prior to March 17, 2020, the opportunity to do so. In enacting H.B. 197, the General Assembly was cognizant of relevant time frames necessary to process ballots and votes and of the serious health risks associated with the coronavirus, and attempted to balance these interests.
ARGUMENT I. Delaying the election again will further confuse voters and may preclude the ORP’s
members from meaningfully participating in the Republican National Convention. The authority to set the “time, place and manner” of voting in Ohio elections rests with the General Assembly. Further, the General Assembly’s authority to establish the rules for elections
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involving Congressional candidates comes from the Elections Clause of the U.S. Constitution, which provides in relevant part:
the Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. Art. I, Sec. 4, c. 1, U.S. Constitution. The Elections Clause extends to primary elections in which Congressional candidates are nominated. See United States v. Classic, 313 U.S. 299, 320 (1941). Because Congress did not take any action to determine the date for Ohio’s 2020 primary election, the time place and manner of the election “shall be prescribed” by the Ohio General Assembly. After ample consideration of all factors, the General Assembly exercised this authority, pursuant to R.C. 3501.01(E), and most recently in enacting H.B. 197, unanimously.1 Pursuant to H.B.197, the primary election will continue through April 28, 2020. Changing this date again, will only cause further voter confusion and likely lead to even further litigation. “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S. 1, 5 (2006); see also SEIU Local 1 v. Husted, 698 F.3d 342, 345-46 (6th Cir. 2012) (stating that the public interest strongly disfavors last-minute changes to election procedures). Notably, Plaintiffs’ Amended Complaint leaves open-ended when the 2020 primary election should conclude. Like the ODP, the ORP has a right and desires to meaningfully participate in its national convention.2 See ODP’s Memorandum in Partial Support/Opposition, at 4-8. To this end, there should be certainty as to the conclusion of the primary election as set forth in H.B. 197.
1 In the interest of brevity, the ORP defers to the State (an Intervenor herein), at this stage of the action, to defend the constitutionality of this legislation. 2 While the ORP’s schedule for delegate selection differs from that of the ODP, it still requires significant time after the primary election is certified.
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II. There is no need to extend voter registration. Under Section 8 (a) of the National Voter Registration Act (“NVRA”), “the state shall ensure that
any eligible applicant is registered to vote in an election that has submitted a valid voter registration form to the appropriate State Election Officer no later than the lesser of 30 days, or the period provided by State law, before the date of the election.” 54 U.S.C. §20507 (a)(1). Ohio law complies with this requirement as is evident in Article V, Section 1 of the Ohio Constitution which states that “Every citizen of the United States, of the age of eighteen years, who has been a resident of the state . . . and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections.” The State allowed for eligible voters to register to vote by February 18, 2020, which is 30 days prior to the primary election date of March 17, 2020. Thus, eligible voters had the full statutorilyrequired time frame of 30 days prior to the primary election date of March 17, 2020 to register to vote. Therefore, eligible voters are not harmed in violation of the NVRA.
Under H.B. 197, Ohio’s primary election date remains unchanged. House Bill 197 references March 17, 2020 as the primary election date. H.B. 197, § (B)(1), (B)(2), (C)(1)(a), (C)(1)(b). April 28, 2020 is only referred to as the deadline for absentee ballots. H.B. 197 § (C)(3). Section 32 (B)(3) of H. B. 197 prohibits voter registration forms to be processed because processing such forms would be in direct contradiction with Ohio law. The primary election date is set as the third Tuesday following the first Monday in March. R.C. 3501.01 (E)(2). March 17, 2020 is the primary election date and the proper registration period was 30 days prior, on February 18, 2020. Again, eligible voters were able to register to vote during the proper time period of 30 days prior to the primary election. And, no one should have had any expectation that, if they were not registered to vote by February 18, 2020, they would have been able to vote in the 2020 primary election. Therefore, eligible voters’ rights were not violated and there is no need to reopen voter registration.
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III. The ORP opposes Plaintiffs’ proposal to send multiple ballots to voters for the same reasons as those articulated by the ODP and the State.
The ODP and the State have thoroughly articulated the many reasons why requiring the
Secretary to send multiple ballots to each voter is unworkable and unconstitutional. For
instance:
Because this is a primary election, voters must request the ballot of the party they wish to be affiliated with. Plaintiffs propose to short circuit this by sending every voter in the state who has not yet voted each party’s ballot in the same envelope. There are several million voters in Ohio who have not yet voted. That would require printing several million Democratic ballots, several million Republican ballots, and several million Libertarian party ballots, mailing them all to voters, and then hoping the voter reads the instructions saying to only fill one out. In addition, voters who do not wish to be affiliated with any political party may request an issue-only ballot. If these voters are not sent an issue-only ballot as well as these partisan ballots, those voters are forced to either affiliate with a political party against their wishes, or be deprived of their right to vote. Sending an issue-only in addition to the partisan ballots would result in some voters being confronted with up to four ballots to choose from.
See ODP’s Memorandum in Partial Support/Opposition, at 8-9.
Further “sending multiple ballots is also likely to result in a significant number of voters
being confused and having their votes thrown out” and “the only way for an Ohio voter to
formally affiliate with a political party is to request that party’s ballot at a partisan primary
election” Id. at 9; see also State’s Opposition, at 17-18.
In the interest of brevity, the ORP agrees with the ODP’s the State’s arguments opposing
the request to order the Secretary to send multiple ballots to voters, and incorporates them herein
by reference.
CONCLUSION
For the reasons listed above, the Court should deny the Plaintiffs’ request for a new
election date, deny an extension of voter registration, and deny the request to order the Secretary
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to send every voter multiple ballots as requested in Plaintiff’s motion for a temporary restraining order.
Respectfully submitted, /s/ Anne Marie Sferra Anne Marie Sferra (0030855) Christopher N. Slagle (0077641) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215-4291 Phone: (614) 227-2300 Facsimile: (614) 227-2390 E-mail:asferra@bricker.com
cslagle@bricker.com Counsel for Intervenor-Defendant, Ohio Republican Party CERTIFICATE OF SERVICE I hereby certify that on April 2, 2020, I caused a true and correct copy of the foregoing document to be served upon all counsel of record registered with the Court’s ECF system, by electronic service via the Court’s ECF transmission facilities.
/s/ Anne Marie Sferra Anne Marie Sferra (0030855)
6
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

LEAGUE OF WOMEN VOTERS OF OHIO, OHIO A. PHILIP RANDOLPH INSTITUTE, LASHUNDA LEE, MUNIA MOSTAFA, AUDRIANNA VICTORIAN RODRIGUEZ, and HANNAH TUVELL,
Plaintiffs,

CASE NO. 2:20-cv-1638 JUDGE MICHAEL H. WATSON Magistrate Judge Elizabeth Preston Deavers

v.

FRANK LAROSE, in his official capacity as Secretary of State of Ohio,

Defendant.

DEFENDANT OHIO SECRETARY OF STATE FRANK LAROSE’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER (DOC. 4)

Respectfully submitted,
/s/ Jonathan R. Secrest Jonathan R. Secrest (0075445) David A. Lockshaw, Jr. (0082403) Terrence O’Donnell (0074213) DICKINSON WRIGHT, PLLC 150 E. Gay Street, Suite 2400 Columbus, Ohio 43215 Telephone: (614) 744-2572 Fax: (844) 670-6009 jsecrest@dickinsonwright.com dlockshaw@dickinsonwright.com todonnell@dickinsonwright.com
Counsel for Defendant Ohio Secretary of State Frank LaRose

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Case: 2:20-cv-01638-MHW-EPD Doc #: 44 Filed: 04/02/20 Page: 2 of 33 PAGEID #: 425 TABLE OF CONTENTS
I. INTRODUCTION ...............................................................................................................1 II. POSTURE OF THIS ACTION AND RESPONSE TO THIS COURT’S ORDER ..........11 III. PLAINTIFFS’ PURPORTED CAUSES OF ACTION AND MOTION ..........................12 IV. PLAINTIFFS’ MOTION FAILS .......................................................................................12
A. Plaintiffs’ Request for a Temporary Restraining Order fails.................................12 1. Likelihood of Success on the Merits..........................................................12
B. Plaintiffs’ Requested Relief is Unwarranted, Unworkable, and Should be Denied ....................................................................................................................20
V. THE OHIO DEMOCRATIC PARTY’S REQUESTED RELIEF IS LOGISTICALLY IMPOSSIBLE ......................................................................................26
VI. CONCLUSION..................................................................................................................28 CERTIFICATE OF SERVICE ......................................................................................................29
ii

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TABLE OF AUTHORITIES Cases Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir.
2015) ....................................................................................................................................... 12 Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)................. 14, 19 Doe v. Ronan, 2009 WL 10679456, at *2 (S.D. Ohio, 2009)....................................................... 13 Eppley v. Tri-Valley Local School Dist. Bd. Of Educ., 122 Ohio St.3d 56, 59 (Ohio 2009) ........ 14 Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011) ........................... 13 Int'l Dairy Foods Ass'n v. Boggs, 622 F.3d 628, 635 (6th Cir. 2010) .......................................... 13 Jolivette v. Husted, 694 F.3d 760, 767 (6th Cir. 2012)................................................................. 14 McGowan v State of Maryland, 366 U.S. 425,426; 81 S. Ct. 1101; 6 L.Ed.2d 393 (1961) ......... 19 McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012)................................................................... 12 NAACP v. Kemp, No. 1:17-cv-1397, 2018 WL 2271244, Order at 3 (N.D. Ga. Apr. 11,
2018) ....................................................................................................................................... 17 Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012)................................................ 13, 18 Ohio Democratic Party v. Husted, 834 F.3d 620, 623 (6th Cir.2016)...........................................25 Overstreet v. Lexington–Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002) ............ 12 Purcell v. Gonzalez, 549 U.S. 1, 4-5; 127 S.Ct. 5; 166 L.Ed.2d 1 (2006) .................................... 13 Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997).............. 13 State v. Boczar, 113 Ohio St. 3d 148, 150 (Ohio 2007) ............................................................... 13 State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35, 941 N.E.2d 782, ¶ 37 ...........7 Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d
589 (1997) ............................................................................................................................... 14 Wetland Preservation LTD. v. Corlett, 975 N.E.2d 1033, 1038 (11th Dist. 2012) ....................... 14
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Statutes 52 U.S.C. § 20507................................................................................................................... 16, 21 Ky. Rev. Stat. § 39A.100(1)(l).........................................................................................................7 La. Rev. Stat. § 18:401.1.A..............................................................................................................7 R.C. 3.23 ..........................................................................................................................................7 R.C. 161.09 ..................................................................................................................................... 7 R.C. 3501.01 ......................................................................................................................... 1, 6, 15 R.C. 3501.04 ............................................................................................................................. 7, 25 R.C. 3501.05 ....................................................................................................................................7 R.C. 3501.32 ....................................................................................................................................6 R.C. 3505.18 ........................................................................................................................... 22, 24 R.C. 3509.03 ................................................................................................................. 6, 22, 23, 27 R.C. 3513.05 ................................................................................................................................. 22 R.C. 3513.12 ............................................................................................................................. 1, 15 R.C. 3701.13 ....................................................................................................................................2 R.C. 3513.19 ................................................................................................................................. 22 R.C. Title XXXV ............................................................................................................................ 7
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DEFENDANT OHIO SECRETARY OF STATE FRANK LAROSE’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER (DOC. 4) Defendant Ohio Secretary of State Frank LaRose (“Secretary LaRose”), through counsel, respectfully submits for his response to Plaintiffs’ Motion for a Temporary Restraining Order (Doc. 4), the following: I. INTRODUCTION The unprecedented fight to stop the spread of COVID-19 has upended much of our lives. Ohioans have been ordered to stay at home except when conducting essential activities. We must maintain social distancing of at least six feet from any other person, and we must not gather together in groups larger than ten people. Other businesses that are very important to people such as restaurants, bars, fitness gyms, and other places of public amusement where people gather together are shuttered. All K-12 schools are closed. Ohioans have had to postpone cherished events like high school proms, baby showers, and family reunions. It is no wonder that our presidential primary election has been impacted in ways few people ever expected. Ohio’s presidential primary elections are set by statute. Revised Code 3501.01 defines a presidential primary election as a primary election “at which an election is held for the purpose of choosing delegates and alternates to the national conventions of the major political parties pursuant to section 3513.12 of the Revised Code.” R.C. 3501.01(E)(2). The Revised Code further specifies that when “a presidential primary election is held, all primary elections shall be held on the third Tuesday after the first Monday in March except as otherwise authorized by a municipal or county charter.” Id. In 2020, the third Tuesday after the first Monday in March fell on March 17, 2020. As March 17 approached, so too did the novel coronavirus named COVID-19. COVID-19, a new strain of coronavirus that had not been previously identified in humans, is a respiratory
1

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disease that can result in serious illness or death. See Order to Limit and/or Prohibit Mass Gatherings in the State of Ohio, available at https://coronavirus.ohio.gov/wps/portal/gov/covid19/home/public-health-orders/order-to-limit-and-or-prohibit-mass-gatherings-in-the-state-ofohio. The Director of the Ohio Department of Health, Dr. Amy Acton, announced the first cases of COVID-19 on March 9, 2020, just over a week before the scheduled primary. Id. Every day as the primary drew nearer, Dr. Acton announced more and more cases of COVID-19 throughout Ohio.
As the Director of the Department of Health, Dr. Acton has extremely broad authority to regulate the spread of infectious diseases like COVID-19. The Revised Code gives the Director of the Ohio Department of Health “supervision of all matters relating to the preservation of the life and health of the people,” including “ultimate authority in matters of quarantine and isolation.” R.C. 3701.13. The Director may also “make special or standing orders or rules . . . for preventing the spread of contagious or infectious diseases.” Id. And “[t]he director of health shall investigate or make inquiry as to the cause of disease or illness, including contagious, infectious, epidemic, pandemic, or endemic conditions, and take prompt action to control and suppress it.” R.C. 3701.14(A) (emphasis added).
Since March 12, 2020, Ohio Department of Health Director Dr. Acton has made necessary use of her authority to curb the spread of COVID-19 in Ohio. First, she issued an order prohibiting mass gathering in the State of Ohio pursuant to her authority under R.C. 3701.13. See Order to Limit and/or Prohibit Mass Gatherings in the State of Ohio, available at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/order-to-limitand-or-prohibit-mass-gatherings-in-the-state-of-ohio. The order seeks to “prevent the spread of COVID-19 into the State of Ohio” by prohibiting mass gatherings. It defines a mass gathering as
2

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“any event or convening that brings together one hundred (100) or more persons in a single room or single space at the same time, such as an auditorium, stadium, arena, large conference room, meeting hall, theater, or any confined indoor or outdoor.”1 The order urged all persons to “maintain social distancing (approximately six feet away from other people) whenever possible.” Id.
As the threat mounted, the Director took more aggressive steps, including closing K-12 schools in Ohio (many of which serve as polling places) until April, and eliminating visitor access to nursing homes. See Order the Closure of all K-12 Schools in Ohio, available at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/order-theclosure-of-all-k-12-school-in-the-state-of-ohio; Order to Limit Access to Ohio’s Nursing Homes and Similar Facilities, available at https://coronavirus.ohio.gov/wps/portal/gov/covid19/home/public-health-orders/order-to-limit-access-to-ohios-nursing-homes-and-similarfacilities. Within days, these orders proved insufficient to slow the spread of COVID-19 in Ohio. So, on Sunday March 15, the Director closed restaurants for dine-in customers and shuttered Ohio’s pubs and bars. Order Limiting the Sale of Food and Beverages, Liquor, Wine, and Beer to Carry-Out and Delivery Only, available at https://coronavirus.ohio.gov/wps/portal/gov/covid19/home/public-health-orders/health-director-order-limit-food-alcohol-sales-to-carry-outdelivery-only.
Each one of the Director’s Orders reiterated the need to maintain social distancing of six feet from other persons. The Orders also noted that while the coronavirus is most contagious when carriers are symptomatic, spread can occur before a carrier shows symptoms. As the March 17,
1 As the virus spread, Dr. Acton later revised the definition of mass gatherings down to fifty or more people. See Amended Order, available at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/publichealth-orders/order-to-limit-prohibit-mass-gatherings-ohio-amended. The Centers for Disease Control and Prevention recommends that gatherings and events of any size in communities with substantial spread be canceled. See CDC, “Resources for Large Community Events & Mass Gatherings,” available at https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/index.html.
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2020, presidential primary election approached, it became apparent that these coronavirus

characteristics posed obvious risks to in-person voting, where asymptomatic virus carriers entering

the polling places across the state to vote or work the polls could spread the virus to voters and

poll workers. Secretary LaRose instructed the boards of election to mitigate these risks by

sanitizing the voting machines and pledged to reimburse the boards for any supplies purchased for

this purpose. See Press Release, available at https://www.sos.state.oh.us/media-center/press-

releases/2020/2020-03-132/.

Even prior to that, Secretary LaRose had taken an extraordinary step to try to mitigate the

risk of COVID-19 spread to a particularly vulnerable population – our senior citizens. On March

9, just eight days prior to the primary election, he instructed the county boards of elections to

relocate any polling locations that were to be housed within senior residential living facilities. See

Directive

2020-03

available

at

www.sos.state.oh.us/globalassets/elections/directives/2020/dir2020-03.pdf. Secretary LaRose

took this proactive step because individuals over the age of 65 are at an especially high risk of

suffering more severe illness or even death due to COVID-19. Secretary LaRose also instructed

the county boards of election to make greater use of so-called “curbside voting” and pledged to

reimburse the boards for any expenses they incurred in procuring hand sanitizer, sanitizing wipes,

and other disinfecting products. See Secretary of State Directive 2020-05 attached as Exhibit 1.

On the afternoon of March 16, 2020 – the day before the primary election – Governor

DeWine, Dr. Acton, and Lieutenant Governor Jon Husted held what has since become a daily 2:00

P.M. press conference. Despite hearing from the public health professionals as late as Sunday,

March 15 that it was still safe to have in-person voting on March 17, on the morning of Monday,

March 16 that changed. See Doc. 4-4. Secretary LaRose participated in this press conference

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because of what the Governor and Dr. Acton were going to announce at that press conference. For

the first time since the COVID-19 outbreak began, Dr. Acton and Governor DeWine recommended

that Ohioans over the age of 65 not appear in person at the polls for Ohio’s March 17, 2020

primary.

See

3-16-20

COVID-19

Update,

available

at

http://ohiochannel.org/collections/governor-mike-dewine. A press release from Secretary

LaRose’s Office followed, noting that while pre-March 16 guidance “indicated it would be safe to

vote on election day . . ., new information has led ODH to recommend Ohioans who are 65 and

older to self-quarantine in their homes.” Press Release, available at

https://www.sos.state.oh.us/media-center/press-releases/2020/2020-03-16/. This virus is fifteen

times more likely to be fatal for vulnerable populations, which includes those over the age of 65.

Without some state intervention, the election would have proceeded in a matter of hours,

bringing hundreds of voters together in small polling places across the State. Many of these voters

might have already had COVID-19 without showing symptoms and thus had the potential to

widely spread COVID-19 among the voting population, and beyond. Proceeding with the primary

had one clear result: exposing millions of Ohio voters and their families to COVID-19. Finding

the increased risk of transmission of COVID-19 medically untenable, the Director issued the

following order late Monday evening:

Accordingly, to avoid an imminent threat with a high probability of widespread exposure to COVID-19 with a significant risk of substantial harm to a large number of people in the general population, including the elderly and people with weakened immune systems and chronic medical conditions, I hereby ORDER all polling locations in the State of Ohio closed on March 17, 2020. This Order shall take effect immediately and remain in full force and effect until the State of Emergency declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies this Order.

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Closure of the Polling Locations in the State of Ohio on Tuesday March 17, 2020, available at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/order-to-closepolling-locations-3-16-2020.
When Director Acton issued her order on the evening of March 16, the time for requesting an absentee ballot had passed. For most voters, Saturday, March 14, 2020, was the deadline to request an absentee ballot by mail. R.C. 3509.03(D).2 Likewise, early in-person voting at the county boards of elections had concluded at 2:00 P.M. earlier that day. R.C. 3509.051; Directive 2019-28 § 1.04. Due to the Director’s Order, Ohio’s polling places could not open at 6:30 A.M. on March 17, 2020, as contemplated by R.C. 3501.01(E)(2) and R.C. 3501.32(A). While Ohio provides multiple options for voting, including liberal periods for early in-person and absentee voting, in the last three presidential primary elections, nearly 85% of Ohio voters still chose to vote in person at their assigned polling location on election day. Declaration of Grandjean attached as Exhibit 2, ¶ 41.
Thus, registered Ohio voters who had not cast absentee ballots – either by mail or in person – and who planned to vote at their polling place on election day had no remaining alternative method to vote. As of March 16, just 523,522 of the 7,776,063 Ohioans who were registered to vote in the 2020 presidential primary had voted. Id. at ¶¶ 16, 31. This left up to 7.2 million registered Ohio voters, through no fault of their own, without a way to vote.
Faced with the very real prospect of disenfranchising up to 7.2 million voters due to the COVID-19 virus, Secretary LaRose acted. Unfortunately Ohio, unlike several other states, has no procedure or mechanism in the Revised Code for an election to be extended, postponed, or rescheduled by an executive officer of the state in the event of an unforeseen public health crisis,
2 Unexpectedly hospitalized voters can request absentee ballots until 3:00 P.M. on election day. R.C. 3509.08.
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natural disaster, or emergency declared on or just before a scheduled election day.3 See, e.g., Ky. Rev. Stat. § 39A.100(1)(l); La. Rev. Stat. § 18:401.1.A. Secretary LaRose is the Chief Election Officer for the State of Ohio. R.C 3501.04 (“The secretary of state is the chief election officer of the state, with such powers and duties relating to the registration of voters and the conduct of elections as are prescribed in Title XXXV of the Revised Code.”). He may issue directives to the boards of elections “as to the proper methods of conducting elections” and to “prepare rules and instructions for the conduct of elections.” R.C. 3501.05(B)-(C). Further, the Secretary, like every elected official, took an oath of office in which he swore to “support the constitution of the United States and the constitution of [Ohio,] and faithfully to discharge the duties of the office.” R.C. 3.23. He also must instruct the boards of elections on the applicable requirements of federal law. State ex rel. Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35, 941 N.E.2d 782, ¶ 37. In the absence of emergency authority to change an election date from the General Assembly, these statutory duties obligated Secretary LaRose to issue a directive to prevent widespread, and unprecedented, disenfranchisement.
After Dr. Acton issued her Order at approximately 10:00 P.M. on March 16 closing all the polling locations the next day, Secretary LaRose used these powers a few minutes later on the evening of March 16 to issue Secretary of State Directive 2020-06, which suspended in-person voting in the primary election until June 2, 2020. See Directive 2020-06, available at https://www.sos.state.oh.us/globalassets/elections/directives/2020/dir2020-06am.pdf. Directive 2020-06 attached as Exhibit 3. The Secretary ordered the boards of election to “post notice on their websites, social media, at the board of elections, and at polling places that in-person voting for the March 17, 2020 Presidential Primary Election is suspended.” Id. Secretary LaRose ordered
3 Governor DeWine may change the date of an election under R.C. 161.09, which applies only in the event of an “attack” by a foreign power. The General Assembly has created no other emergency exceptions.
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boards of elections to accept absentee ballot applications until Tuesday, May 26, 2020, and to count any absentee ballot postmarked by June 1, 2020, and received by the boards no later than June 12, 2020. The Directive included special instructions for UOCAVA absentee ballots and voters experiencing unforeseen hospitalizations. The Directive ordered the boards to “conduct inperson voting at polling locations in their county. The polls will open at 6:30 A.M. and close at 7:30 P.M. on Tuesday, June 2, 2020.” The Directive specifically prohibited boards “from tabulating and reporting any results until the close of polls on Tuesday, June 2, 2020,” and set forth a timeline for official canvassing “[c]onsistent with current law” and based upon the conclusion of in-person voting on June 2. Nothing in the Directive altered the March 17 primary election date, canceled it, or re-scheduled it. It is clear from the Directive that the actions Secretary LaRose directed the county boards of election to take were aimed at extending the time for voters to vote, much like when a judge orders Ohio polling locations to be kept open after the statutory closing time of 7:30 P.M. because an emergency or disaster disrupted voting in a county.
In the days that followed March 17, the Ohio General Assembly announced its intention to meet the week of March 23, 2020, to consider legislation to deal with a number of issues that have affected Ohioans during the current COVID-19 pandemic, including how to conclude the March 17 primary election. Secretary LaRose vigorously lobbied the General Assembly to adopt a plan to conclude the March 17 primary election that was based on his Directive 2020-06 and the knowledge of the logistical issues that the handful of states who conduct “vote by mail” elections have faced. See Secretary of State Frank LaRose March 21, 2020, Letter to All Members of the Ohio General Assembly. (Doc. 4-4). His plan was to have his office mail to every one of the approximately 7.2 million registered voters who were registered by February 18, 2020, (and thus, eligible to vote in the March 17 primary elections) and who had not already voted in the March 17
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primary election an application to request an absentee ballot with a postage-paid return envelope included addressed to the particular voter’s county board of elections. The Secretary’s plan included reimbursing each of the 88 county boards of election for the postage costs they would incur by then sending an absentee ballot back to those registered voters who returned a completed application AND including with their ballot a postage-paid return envelope addressed to the voter’s county board of elections. And finally, the Secretary’s plan contemplated some form of limited inperson voting to accommodate those voters who need assistance in voting or those voters who have difficulty in receiving mail. The in-person voting opportunity would be had on June 2, 2020, provided that the Director of the Ohio Department of Health deemed it safe to have in-person voting. That date would also be the date the extended absentee voting period would end. June 2, 2020, was originally the last date that any state’s primary election would be held in advance of the Democratic National Convention then scheduled to begin on July 13, 2020, and rescheduled for August 17, 2020.4
In the hope that the General Assembly would consider and pass a bill that contained his plan to conclude the March 17 primary election, Secretary LaRose had a bill draft prepared for the General Assembly’s consideration, calling it the “Ohio Voters First Act.” See draft of the “Ohio Voters First Act,” Legislative Services Commission Bill Draft l_133_2644-1 attached as Exhibit 4; Doc. 4-4. Ultimately, the General Assembly decided not to adopt the Secretary plan to conclude the March 17 election. The bill passed by the General Assembly on March 25, 2020, which was unanimously passed in both the House and the Senate, instead directs Secretary LaRose to mail an
4 Some states in which voting has not yet begun for their primary election have since rescheduled their elections to dates after June 2, 2020. For example, West Virginia rescheduled its primary election date from May 12 to June 9, 2020. See https://abcnews.go.com/Health/wireStory/west-virginia-governorreschedules-states-12-primary-election-69918754
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informational postcard to all of Ohio’s registered voters informing them of the ways in which they can request an absentee ballot. See Sections 32-33 of Amended Substitute House Bill 197 (“H.B. 197”). The bill also provides for limited, in-person voting on April 28, 2020, and that the extended voting period for the March 17 primary election ends on the same day. Id. The bill includes an emergency clause, making it immediately effective upon the Governor’s signature. Governor DeWine signed the bill on Friday, March 27, 2020.
Upon the General Assembly’s passage of H.B. 197 on March 25, 2020 – and even before Governor DeWine signed the bill into law – Secretary LaRose rescinded his Directive 2020-06 as it was inconsistent with the elections-related provisions of H.B. 197. While the legislature had not adopted Secretary LaRose’s preferred plan to conclude the March 17 primary election, the legislature had spoken. Secretary LaRose respects the role of the Legislature and recognizes H.B. 197 as the law of land. He is ready, willing, and able to fulfill his duties in compliance with H.B. 197, and indeed he and his team have been doing so ever since the bill was passed on March 25. They have already devoted countless, almost around-the-clock, hours to carrying out the provisions of H.B. 197 so that Ohioans may have an expeditious and orderly primary election.
Unfortunately, in this case the Plaintiffs seek to upend Ohio’s primary once again. They disguise their own election policy preferences as federal constitutional mandates. They have failed as a threshold matter to show that H.B. 197 violates the state or federal constitution. They have failed to establish that this Court, or the judicial branch itself, is properly vested with the authority to usurp the legislature’s power to enact election laws. As a practical matter, Plaintiffs’ proposed package of remedies are unworkable from an administrative and logistical point of view – at odds with longstanding Ohio law and practice. The relief they seek would result in massive confusion
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among voters and elections officials alike. A classic case of the cure being worse than the perceived disease. II. POSTURE OF THIS ACTION AND RESPONSE TO THIS COURT’S ORDER
On March 30, 2020, Plaintiffs filed this action naming Secretary LaRose as the only Defendant. (Doc. 1). The next day, Plaintiffs filed an Amended Complaint (“Am. Compl.”) and their Motion for a Temporary Restraining Order (“Motion”). (Doc. 4, 5). On March 31, 2020, this Court issued an Order recognizing Secretary LaRose “has already attempted to alleviate some of the alleged burdens associated with H.B. 197 by, inter alia, not requiring voters to submit the official ballot request form” and “is currently reviewing other ways to address Plaintiffs’ concerns.” (Doc. 14). This Court ordered Secretary LaRose to promptly respond to Plaintiffs’ Motion and address:
a. … [T]he State’s interests that justify the burden on voting rights imposed by the establishment of an April 28, 2020 deadline for absentee voting (as opposed to [Secretary LaRose’s] original suggestion of a June 2, 2020 deadline for absentee voting).
b. … [I]ts position regarding whether the writ of prohibition currently pending in the Supreme Court of Ohio has any impact on this litigation.
Id. Secretary LaRose defers to the intervener, the State of Ohio, for an express response to this
Court’s order to describe the State’s interests in implementing the aspects of H.B. 197 pertaining to the election. Secretary LaRose did not draft or enact the law, though he will dutifully abide by and carry the law into action. In response to this Court’s second directive: On March 31, 2020, the Supreme Court of Ohio dismissed that action before it as moot. Accordingly, the former action before the Supreme Court does not impact this matter.
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III. PLAINTIFFS’ PURPORTED CAUSES OF ACTION AND MOTION Plaintiffs’ Amended Complaint sets forth two causes of action that are the subject of its
Motion alleging the State’s enactment of H.B. 197 pertaining to the current primary election violates: (1) Section 8 of the National Voter Registration Act (“NVRA” or “Act”) (Count I), and (2) the First and Fourteenth Amendments of the U.S. Constitution (Count II). Am. Compl., pp. 2023. Plaintiffs seek substantially the same relief in their Amended Complaint as they do in their Motion.5 Plaintiffs’ Motion should be denied because (a) they have not met their burden as established herein and in the State of Ohio’s response brief, and (b) the extraordinary relief they seek is not warranted or appropriate as discussed below. IV. PLAINTIFFS’ MOTION FAILS
A. Plaintiffs’ Request for a Temporary Restraining Order fails 1. Likelihood of Success on the Merits
“The party seeking a preliminary injunction bears the burden of justifying such relief.” McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012). “A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington–Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002); see Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015) (“preliminary injunctions are extraordinary and drastic remedies… never awarded as of right”).
5 Plaintiffs’ Amended Complaint and Motion contain factual and legal inaccuracies beyond what is expressly addressed in this Memorandum. It is Secretary LaRose’s intention to be brief and only address Plaintiffs’ allegations to the extent necessary to inform this Court’s decision on their Motion. Secretary LaRose does not accept or agree with Plaintiffs’ allegations and arguments that are not specifically addressed herein and silence should not be construed as approval.
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This Court considers four factors when deciding whether to issue a preliminary injunction: (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. See Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). When plaintiffs mount a constitutional challenge, “the likelihood of success on the merits often will be the determinative factor” Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012). Furthermore, “[a]s a general rule, last-minute injunctions changing election procedures are strongly disfavored.” Purcell v. Gonzalez, 549 U.S. 1, 4-5; 127 S.Ct. 5; 166 L.Ed.2d 1 (2006) (“Court orders affecting elections... can themselves result in voter confusion.... As an election draws closer, that risk will increase.”). Given the extraordinary, unforeseen circumstances that brought us to this time and place, the admonitions contained in Purcell are controlling in this action.
Plaintiffs are unable to demonstrate a likelihood of success on the merits in this action. To establish a likelihood of success on the merits, “a plaintiff must show more than a mere possibility of success.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997). A plaintiff must “establish a substantial likelihood or probability of success on the merits.” Int'l Dairy Foods Ass'n v. Boggs, 622 F.3d 628, 635 (6th Cir. 2010) (emphasis added). Additionally, “all statutes are presumed constitutional, and the party challenging a statute bears the burden of proving otherwise.” Doe v. Ronan, 2009 WL 10679456, at *2 (S.D. Ohio, 2009) (quoting State v. Boczar, 113 Ohio St. 3d 148, 150 (Ohio 2007)). A statute will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt. Id. As such, “courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.”
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Eppley v. Tri-Valley Local School Dist. Bd. Of Educ., 122 Ohio St.3d 56, 59 (Ohio 2009). Here, H.B. 197 passed in the General Assembly unanimously with full bipartisan support and the bill was promptly signed into law by Governor DeWine to help address the COVID-19 crisis. As a duly enacted statute, H.B. 197 is “entitled to the benefit of every presumption in favor of its constitutionality.” Wetland Preservation LTD. v. Corlett, 975 N.E.2d 1033, 1038 (11th Dist 2012).
Furthermore, “[t]he Supreme Court’s approach to constitutional challenges to election regulations requires balancing a state’s ‘broad power’ to regulate elections against the fundamental rights of candidates and voters.” Jolivette v. Husted, 694 F.3d 760, 767 (6th Cir. 2012). The level of scrutiny applied to a state election regulation depends on the burden imposed by the regulation on the constitutional rights of voters and candidates. See Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). In evaluating an election regulation against a constitutional challenge, the court “weigh[s] the character and magnitude of the burden the State’s rule imposes on citizens’ constitutional rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997).
a. Plaintiffs have not demonstrated likelihood of success on Count I alleging an NVRA violation
Count I of Plaintiffs’ Amended Complaint alleges that H.B. 197’s provision directing Secretary LaRose not to process voter registrations received after February 18, 2020 violates the NVRA. Am. Compl., PAGEID #153. Plaintiffs are not likely to succeed on the merits of Count I because they cannot establish a violation of the Act.
R.C. 3501.01 defines a presidential primary election as a primary election “at which an election is held for the purpose of choosing delegates and alternates to the national conventions of
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the major political parties pursuant to section 3513.12 of the Revised Code.” R.C. 3501.01(E)(2). The Revised Code further specifies that when “a presidential primary election is held, all primary elections shall be held on the third Tuesday after the first Monday in March except as otherwise authorized by a municipal or county charter.” Id. (emphasis added). Pursuant to Ohio law, primary election day is the third Tuesday after the first Monday in March. In this case, that is March 17, 2020 (“Election Day”). The enactment of H.B. 197 did not change Election Day. The date is fixed by law and can only be moved in the event of an attack by a foreign power (R.C. 161.09), with no exception for a pandemic. Secretary LaRose has been clear that the date of the election has not changed: “March 17 was primary election day, but a public health emergency necessitated the polls not open on Tuesday, effectively extending the March 17 election through June 2.” Secretary of State Letter to Ohio General Assembly; Doc. 4-4, PAGEID #90 (emphasis added).
Similarly, H.B. 197 does not fix a new date for Election Day. It specifically provides: (B) During the period beginning on the effective date of this section and ending at 7:30 p.m. on April 28, 2020, no board of elections, and no election official, shall do any of the following: (1) Count any ballots cast in the March 17, 2020, primary election, or in any special election held on the day of the primary election; (2) Release the count or any portion of the count of any ballots cast in the March 17, 2020, primary election, or in any special election held on the day of the primary election; (3) Process any voter registration application submitted after February 18, 2020. H.B. 197, § 32. By its express terms, H.B. 197 does not fix a new date for the primary election; rather, because the polls were unavailable on March 17, 2020, the legislature held the polls open until April 28, 2020. As such, Plaintiffs’ contention that H.B. 197 violates the NVRA by prohibiting the processing of voter registrations after February 18, 2020 is without merit. The NVRA provides:
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(a) IN GENERAL In the administration of voter registration for elections for Federal office, each State shall—
(1) ensure that any eligible applicant is registered to vote in an election—
(A) in the case of registration with a motor vehicle application under section 20504 of this title, if the valid voter registration form of the applicant is submitted to the appropriate State motor vehicle authority not later than the lesser of 30 days, or the period provided by State law, before the date of the election;
(B) in the case of registration by mail under section 20505 of this title, if the valid voter registration form of the applicant is postmarked not later than the lesser of 30 days, or the period provided by State law, before the date of the election;
(C) in the case of registration at a voter registration agency, if the valid voter registration form of the applicant is accepted at the voter registration agency not later than the lesser of 30 days, or the period provided by State law, before the date of the election; and
(D) in any other case, if the valid voter registration form of the applicant is received by the appropriate State election official not later than the lesser of 30 days, or the period provided by State law, before the date of the election;
52 U.S.C. § 20507. As noted above, Election Day did not change. H.B. 197’s prohibition against
processing voter registrations received after February 18, 2020 is consistent with the NVRA.
Plaintiffs argue the February 18, 2020 date “sets the voter registration deadline 70 days
prior to the close of polls for Ohio’s 2020 Federal Primary Election.” Motion, PAGEID ## 48-49.
Plaintiffs’ words are chosen carefully in an attempt to avoid the actual language of the NVRA.
Plaintiffs wish to distract this Court and have it focus on when polls will close—this in and of itself
is a tacit acknowledgement that H.B. 197 extends the date for polls to remain open and does not
change Election Day, and the NVRA does not speak to the date polls close. The NVRA mandates
processing of voter registrations received 30 days before the date of election. Plaintiffs are not
reasonably likely to succeed on Count I of the Amended Complaint because they cannot establish
that H.B. 197’s prohibition against processing registrations received after February 18, 2020
violates the NVRA.
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Further, the authority cited by Plaintiffs does not support their claims or argument. Plaintiffs direct this Court to NAACP v. Kemp, No. 1:17-cv-1397, 2018 WL 2271244 (N.D. Ga. Apr. 11, 2018) and contend that the district court found a violation of the NVRA because the date of a special runoff election was more than 30 days after the original voter registration deadline set for the general election. Motion, PAGEID #49. The decision Plaintiffs cite, however, involved the plaintiff’s request for attorneys’ fees. Id at *1. The court previously granted the plaintiff’s motion for preliminary injunction, but that was based on NVRA’s definition of “runoff election” and the case settled shortly thereafter. Kemp simply does not stand for the proposition for which Plaintiffs cite.
Plaintiffs also cite Ariz. Democratic Party v. Reagan, No. CV-16-03618-PHX-SPL, 2016 WL 6523427 (D. Ariz. Nov. 3, 2016), but it is of little import to this case. In Reagan, the Arizona Secretary of State set the voter registration deadline for October 10, 2016, the twenty-ninth day before the November 8, 2016 general election. Id. at *13. On its face, that date complies with the 30-day requirement of the NVRA. However, that was a Monday, and post offices were closed on the Sunday before (October 9). October 10 also was Columbus Day. The Arizona Motor Vehicle Department (“MVD”) was closed October 8 through October 10 for the weekend and the holiday and the court determined:
[I]n effect, the deadline to register by postmarked mail was Saturday, October 8, 2016 – 31 days before the election. The deadline to register in-person at the MVD was Friday, October 7, 2016 – 32 days before the election. The voter registration deadline therefore did not ensure that any applicant who registered to vote ‘not later’ than 30 days before November 8, 2016 was eligible to vote in the general election. Id. In contrast to Ohio voters, certain Arizona voters were not provided 30 days prior to the election date to register. In Ohio, all voters were provided the opportunity to register on or before February 18, 2020.
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Although discussed in the context of First and Fourteenth Amendment claims, the Reagan decision is instructive regarding the impact on voters who did not register by February 18, 2020. The court stated:
Assuming that there was demonstrable number of individuals who did not register to vote on October 10, 2016 because it fell on a holiday, those voters cannot be said to have been disenfranchised by the Secretary’s deadline… The deadline did not prevent individuals from registering to vote in-person at the MVD or by postmarked mail; it merely required those wishing to do so during open operating business hours at some date and time prior to October 10, 2016. The voters at issue here could have registered in time for the general election, but unfortunately did not do so. Id. at *9. Accordingly, relevant in this case: Any Ohio voter wishing to vote in the 2020 primary election could have registered by February 18, 2020. Any failure to do so was not caused by or the result of H.B. 197.
b. Plaintiffs have not demonstrated likelihood of success on Count II alleging violation of the First and Fourteenth Amendments
Intervener the State of Ohio is the more appropriate party to address Plaintiffs’ assertions under Count II. Accordingly, Secretary LaRose defers to the State of Ohio response to Plaintiffs’ Motion in substantial part.
Secretary LaRose will only briefly address Plaintiffs’ reliance upon Obama for Am. v. Husted, 697 F.3d 423 (“OFA”) in support of their claim that H.B. 197 is unconstitutional. OFA does not support Plaintiffs’ position. The election law at issue in that case restricted the rights of all non-military members from in-person early voting in the three days leading to Election Day. Id. at 432. Plaintiffs state that the court upheld the preliminary injunction because of a “particularly high burden upon the estimated 100,000 voters” effected by the legislation. Motion, PAGEID ## 50-51. That does not accurately describe the court’s holding. The court in OFA upheld the
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injunction only because of the regulation’s discriminatory application against non-military members:
If the State had enacted a generally applicable, nondiscriminatory voting regulation that limited in-person early voting for all Ohio voters, its “important regulatory interests” would likely be sufficient to justify the restriction. See Burdick, 504 U.S. at 434, 112 S.Ct. 2059. However, Ohio’s statutory scheme is not generally applicable to all voters, nor is the State’s justification sufficiently “important” to excuse the discriminatory burden it has placed on some but not all Ohio voters. OFA at 433-434. Unlike the law at issue in that case, H.B. 197 applies to all Ohio voters equally. If anything, OFA supports the validity of H.B. 197 because Ohio has critical regulatory interests in planning through the immense logistical uncertainty caused by COVID-19. H.B. 197 is applied in a nondiscriminatory manner. Contrary to Plaintiffs’ assertions that H.B. 197 may result in unintended discrimination, “[s]tate legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v State of Maryland, 366 U.S. 425,426; 81 S. Ct. 1101; 6 L.Ed.2d 393 (1961). In accordance with the foregoing and the State of Ohio’s opposition, Plaintiffs fail to meet their burden to establish likelihood of success on the merits of their claim. Therefore, their Motion fails, should be denied, and the other elements of Plaintiffs’ request for a temporary restraining order are moot. To the extent this Court continues its analysis, Secretary LaRose defers to the position of the State of Ohio regarding Plaintiffs claims that (a) they will suffer irreparable harm without the injunction, (b) issuance of an injunction will not cause substantial harm to others, and (c) the public interest is served by the issuance of an injunction. B. Plaintiffs’ Requested Relief is Unwarranted, Unworkable, and Should be
Denied
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Plaintiffs’ Motion should also be denied because the nine aspects of Plaintiffs’ requested relief are unwarranted, unworkable, and should not be implemented by extraordinary judicial action. Plaintiff’s requests and reasons why they fail are as follows:
Request: (1) An order mandating that any qualified Ohio elector who submitted a voter registration application or updated their registration information between February 19, 2020, and 30 days prior to the day on which the 2020 primary election is set to conclude shall have their registration information processed and be permitted to vote in the 2020 primary election.
Response: This request is inconsistent with the law before and after H.B. 197. Even if COVID-19 did not create a public health crisis and H.B. 197 was not enacted, only those who were registered to vote by February 18, 2020 are eligible to vote in the 2020 primary election. Today’s circumstances do not change that and there is no valid justification to disregard prior and current Ohio law and grant Plaintiffs’ request that persons who submit voter registration applications or update their registration information after February 18, 2020 be deemed properly registered and permitted to vote in the 2020 primary election.
The Ohio Constitution, Article V, Section 1 requires a person to register to vote no later than 30 days before the election. Election Day for the 2020 primary in Ohio was and remains March 17, 2020. The voting opportunities that come after March 17 are a mere extension of the election. In other words, because this election is ongoing and currently held open, there is no basis to change or extend registration deadlines. Everyone registered and eligible to vote in the 2020 primary before COVID-19 created a state of emergency and H.B. 197 was enacted is still registered and eligible to vote in this election, which H.B. 197 recognizes. The extension of voting opportunities beyond Election Day under H.B. 197 is akin to circumstance extending voting hours
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or permitting voting in successive days after an election day because of an emergency or natural disaster; in this case, COVID-19.
The law before and after H.B. 197 dictates that persons who submit a voter registration application or updated their registration information after February 18, 2020 are not eligible to register and vote in the 2020 primary election. Approximately half a million people already voted in this election and their votes will be processed and counted. Ohio is not starting the election over from scratch, which might warrant additional registration deadlines in advance of a “new” election day under Ohio law and possibly the NVRA. See, e.g., 52 U.S.C. § 20507(a). Under H.B. 197, Ohio will allow the millions of people already registered to vote in this election to do just that— vote in the 2020 primary election. Plaintiffs’ requested relief is not warranted and should be denied.
Request: (2) An order mandating, at least 21 days prior to the close of polls for the 2020 primary election, county boards of elections shall mail all registered electors who have not already voted in the election a primary ballot for each party with candidates on the ballot, return postage pre-paid, with instructions to cast only one ballot and return the ballot in the official pre-paid postage envelope.
Response: This request is both logistically and administratively unworkable and will create confusion for voters. Before COVID-19 and H.B. 197, a voter could request one of four different ballots for the 2020 primary election: Republican, Democrat, Libertarian, or Issues Only. If Plaintiffs’ request is granted, the State will have to print and mail up to 7.7 million Republican, 7.7 million Democrat, 7.7 million Libertarian, and 7.7 million Issues Only ballots. Because many Ohio counties use direct recording or hybrid voting systems (that print a completed ballot) for inperson voting, they do not have anywhere near the number of paper ballots or paper absentee ballots and envelopes to accommodate a mandate for mailing ballots numbering four-times the
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amount of registered voters in those counties. For example, county boards of elections do not generally have on hand enough Issues Only ballots for 100% of the registered voters in the county, and millions of new envelopes would need to be designed and acquired to accommodate mailing four difference ballots to each voter. The logistical challenges are immense.
Also, in Ohio, voters designate themselves a Republican, Democrat, or Libertarian by requesting that party’s ballot either in the absentee ballot application or when the voter goes to the polls. See R.C. 3513.19; 3513.05 (paragraph 7). Even with explicit instruction, mailing four different ballots to each voter is bound to cause confusion and mistakes, such as a voter returning two, three, all four ballots. In that event, what is the voter’s county board of elections to make of that voter’s political party designation?
In sum, implementing Plaintiffs’ proposal is contrary to Ohio law and procedure both before and after H.B. 197, is a recipe for mass confusion and potential voter errors, and will cause logistical nightmares for county boards of elections and state-level administrators. Accordingly, Plaintiffs’ requested relief should be denied.
Request: (3) An order mandating that any elector who has not received a mail absentee ballot at least 14 days prior to the close of polls for the 2020 primary election may submit a request for such a ballot to their local board of election by phone.
Response: Again, Plaintiffs’ request is contrary to election laws before and after H.B. 197. The law requires proper identification and a person’s signature to vote whether absentee by mail, early in-person, or at the polls on an election day. Allowing a person to request an absentee ballot over the phone eliminates this important voter verification safeguard, which is not prudent or warranted, even in an emergency. See R.C. 3505.18; R.C. 3509.03(B)(5). Accordingly, Plaintiffs’ requested relief should be denied.
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Request: (4) An order mandating that any elector who qualifies for in-person voting pursuant to H.B. 197, § 32(D)(1), and who received a mail absentee ballot, can vote a regular ballot in-person ballot [sic.] if they bring their absentee ballots to their local board of election.
Response: Plaintiffs’ request pertains to voters with recognized ADA disabilities who need assistance casting a ballot and those who have issues receiving mail. These situations are expressly accounted for and appropriately addressed in the law pursuant to H.B. 197, and there is no reason to issue an order modifying Ohio law in accordance with Plaintiffs’ request. H.B. 197, § 32.
Request: (5) An order mandating any elector who does not receive their mail absentee ballot prior to the postmark date for mail absentee ballots shall be permitted to vote a provisional ballot in person at their local board of election.
Response: The absentee ballot deadlines in H.B. 197 correspond with the absentee ballot deadlines in current, permanent law by requiring all applications for absentee ballots to be received by noon on April 25, 2020, postmarked no later than April 27, or returned in person to the board of elections by 7:30 P.M. on April 28. See H.B. 197, § 32(E); R.C. 3509.03(D); R.C. 3509.05. H.B. 197 does not allow for this contemplated group of individuals to arrive at the designated polling places on April 28 to cast provisional ballots in person. Presumably to limit the spread of COVID-19 and to minimize the risk to voters and persons working the polls that day, H.B. 197 limited the persons who can vote in-person on April 28 to those who have a disability requiring them to have assistance in marking their ballot and those who do not receive mail at a regular location. H.B. 197 already allows for a provisional ballot by mail solution and a period of time for a voter to cure any deficiencies in their provisional ballot. Thus, for public health reasons and because the absentee ballot deadlines in H.B. 197 mirror the deadlines in permanent law, there is
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no reason or justification for extraordinary relief beyond what the law currently provides, and Plaintiff’s request should be denied.
Request: (6) An order mandating any elector will be permitted to cure any deficiencies in their provisional ballots or absentee ballot identification envelopes by mail, phone, or email up through the day prior to the day the official canvass is required to begin.
Response: Plaintiffs’ request should be denied because H.B. 197 adequately addresses these issues in a manner comparable to current, permanent law. Under the Revised Code, if a voter casts a provisional ballot, and after examining it, the board of elections finds there is a problem with the ballot, the board must notify the voter and give the voter an opportunity to address and cure the problem. The current, permanent law provides a seven-day period for that process. See R.C. 3505.181(B)(7). Plaintiffs request an extension of that period for three to eight additional days beyond the time that is provided for in H.B. 197 and provided in permanent law. An order from this Court modifying an Ohio law unanimously enacted by the entire General Assembly to provide three to eight additional days in a process already accounted for is not warranted under the circumstances brought upon us by COVID-19 or otherwise. Plaintiffs’ request should be denied.
Request: (7) An order mandating the conclusion of the 2020 primary election be set at such a time as will allow election officials to provide orderly notice to electors and administer the election in the manner provided for herein.
Response: Mere disagreements with the deadlines set by statute do not render them unconstitutional nor does it establish a right to extraordinary relief as discussed herein and in the State of Ohio’s response to Plaintiffs’ TRO Motion. As Secretary LaRose emphasized throughout this brief, H.B. 197 was passed unanimously by the General Assembly and signed by the Governor.
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While the timeline to complete the March 17 primary election in H.B. 197 is ambitious, Secretary LaRose and his team are working tirelessly to implement the portions of the law pertaining to Ohio’s primary election. Secretary LaRose does not support usurping the authority of the duly elected members of the General Assembly and the Governor. The deadlines established with respect to the closing of the polls are consistent with current law. As such, Plaintiffs have not met their burden to establish a right to the requested relief. Accordingly, their request and TRO Motion should be denied.
Requests: (8) An order mandating Secretary LaRose to issue a directive notifying Ohio’s eighty-eight county boards of elections of the aforementioned requirements; and (9) to educate and inform electors about: the timeline and process for voting in the upcoming election; and that if they did not receive an absentee ballot in the mail they may contact their boards of elections and (a) confirm whether they have been sent a ballot, and (2) if they have not received a ballot, request a ballot by phone.
Response: Plaintiffs’ request fails in accordance with the discussion above. H.B. 197 was unanimously passed by the General Assembly with full bipartisan support and signed into law by the Governor and “[p]roper deference to state legislative authority requires that Ohio’s election process be allowed to proceed unhindered by the federal courts.” Ohio Democratic Party v. Husted, 834 F.3d 620, 623 (6th Cir.2016); see also R.C. 3501.04 (“The secretary of state is the chief election officer of the state, with such powers and duties relating to the registration of voters and the conduct of elections”). Without question, on his own Secretary LaRose will do his utmost to keep Ohio’s voters informed of the process by which the March 17 primary election will be completed.
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V. THE OHIO DEMOCRATIC PARTY’S REQUESTED RELIEF IS LOGISTICALLY IMPOSSIBLE While not waiving any arguments related to other portions of the Ohio Democratic Party’s
(“ODP”) Memorandum, nor conceding any points or issues contained therein, Secretary LaRose briefly addresses a portion of the relief requested by ODP.6
ODP opposes Plaintiffs’ request that this Court change the date of Ohio’s primary election. (Doc. 25-2, PAGEID #234). While opposing any extension of the time to complete the primary election, ODP also requests this Court order Secretary LaRose to mail to an absentee ballot, with postage pre-paid, to every voter in Ohio. These two positions are irreconcilable – it is simply not feasible to accomplish all of the tasks required of election officials and voters to mail absentee ballot requests and then absentee ballots to every responsive voter in Ohio and conclude voting on April 28, 2020.
To comply with such an order, the Secretary of State’s Office would need to: (a) draft and create the mail piece that is the application for an absent voter’s ballot; (b) make certain the data for the 7.2 million registered voters who have not yet voted is correct to be given to the vendor by requesting all data from boards of elections and verifying and analyzing that data; (c) have a vendor print the 7.2 million mail pieces, making certain that each mail piece contains a reply envelope with each voter’s correct board of elections; (d) rely on the vendor to mail all 7.2 million pieces; (e) rely on the U.S. Postal Service to deliver all 7.2 million mail pieces with the applications; (f) allow time for each voter to open the mailing, complete the application, and mail it back to their board of elections; (g) give each board of elections time to process each absent voter’s application;
6 ODP requests this Court require Secretary LaRose undertake action that cannot be completed by April 28th, while at the same time is unyielding in its insistence that it must certify its delegates by June 20th, despite the postponement of Democratic National Convention until August 17th. Doc. 39. These are unprecedented times in which all have been forced to make adjustments; ODP should as well.
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(h) ensure that each board mails the correct ballot style (Republican, Democrat, Libertarian, or Issues Only ballot) to every voter who requested the absent voter’s ballot; and (i) allow voters sufficient time to receive the ballot, vote it, and return it via mail to the board of elections – and all of this must be done by April 28, 2020. Exhibit 2, ¶ 35.
For all of the reasons provided herein, it would be logistically impossible for the Secretary of State’s Office and Ohio’s boards of elections to send unsolicited absentee ballot applications to all 7.7 million registered voters, or to all 7.2 million registered voters who have not previously voted in the March 17, 2020 primary election, process the applications, send the correct ballots, allow time for the ballots to be received by the voter, voted, and returned to the boards of election by April 28, 2020. Id. at ¶ 36.
Regardless of the impossibility of effecting ODP’s requested relief, this is yet another request to change current law and extend dates not affected by the closure of the polls. Absenteeballot deadlines are set by statute and are tied to the date of an election. Absentee-ballot applications must be received by the boards of elections no later than noon on Saturday before election day. R.C. 3509.03(D). Voters must postmark absentee ballots no later than the day before election day, and the boards must receive the ballots ten days after the election. R.C. 3509.05(B)(1). For the March 17, 2020 primary election, these dates fell on March 14, March 16, and March 27, respectively. These dates were not affected by the closure polls. Accordingly, ODP seeks an unnecessary remedy tailored only to advance its own special interests, not to remedy an actual harm.
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VI. CONCLUSION In accordance with the foregoing, and the State of Ohio’s response to Plaintiffs’ Motion,
the Motion should be denied. Respectfully submitted, /s/ Jonathan R. Secrest Jonathan R. Secrest (0075445) David A. Lockshaw, Jr. (0082403) Terrence O’Donnell (0074213) DICKINSON WRIGHT, PLLC 150 E. Gay Street, Suite 2400 Columbus, Ohio 43215 Telephone: (614) 744-2572 Fax: (844) 670-6009 jsecrest@dickinsonwright.com dlockshaw@dickinsonwright.com todonnell@dickinsonwright.com Counsel for Defendant Ohio Secretary of State Frank LaRose
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Case: 2:20-cv-01638-MHW-EPD Doc #: 44 Filed: 04/02/20 Page: 33 of 33 PAGEID #: 456 CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of April, 2020, the foregoing was filed with the Court. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties for whom counsel has entered an appearance. Parties may access this filing through the Court’s system.
/s/ Jonathan R. Secrest Jonathan R. Secrest (0075445)
4848-0696-7225 v1 [50729-2]
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 Case: 2:20-cv-01638-MHW-EPD Doc #: 47 Filed: 04/02/20 Page: 1 of 5 PAGEID #: 490

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

LEAGUE OF WOMEN VOTERS OF OHIO, OHIO A. PHILIP RANDOLPH INSTITUTE, LASHUNDA LEE, MUNIA MOSTAFA, AUDRIANNA VICTORIAN RODRIGUEZ, and HANNAH TUVELL,

CASE NO. 2:20-cv-1638

Plaintiffs, v.

JUDGE MICHAEL H. WATSON Magistrate Judge Elizabeth Preston Deavers

FRANK LAROSE, in his official capacity as Secretary of State of Ohio,

Defendant,

and

THE OHIO DEMOCRATIC PARTY,

Proposed Intervenor-Defendant.

PROPOSED ANSWER OF INTERVENOR-DEFENDANT OHIO DEMOCRATIC PARTY

NOW COMES the Ohio Democratic Party (“ODP”), Proposed Intervenor-Defendant in the above captioned action, and answers Plaintiffs’ Amended Complaint as follows:
1. ODP denies the allegations in Paragraph 1. 2. In response to the allegations in Paragraph 2, ODP states that H.B. 197 speaks for itself. 3. ODP denies the allegations in Paragraph 3 for lack of knowledge. 4. ODP admits the allegations in Paragraph 4 only to the extent that the February 18, 2020 voter registration deadline has not been moved to March 30, 2020.

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5. ODP denies the allegations in Paragraph 5 for lack of knowledge. 6. Paragraph 6 is a positional statement of the Plaintiffs to which no admissions or denials are required. 7. ODP admits the allegations in Paragraph 7. 8. ODP denies the allegations in Paragraphs 8-10 for lack of knowledge. 9. ODP admits the allegations in Paragraph 11. 10. ODP denies the allegations in Paragraphs 12-17 for lack of knowledge. 11. ODP admits the allegations in Paragraph 18. 12. In response to the allegations in Paragraphs 19-21, ODP states that the cited statutes speak for themselves. 13. Paragraph 22 is a positional statement of the Plaintiffs to which no admissions or denials are required. 14. In response to the allegations in Paragraph 23, Plaintiffs admit that the Court has jurisdiction over the complaint. The remaining allegations constitute a positional statement of Plaintiffs to which no admissions or denials are required. 15. ODP admits the allegations in Paragraphs 24-35. 16. In response to the allegations in Paragraph 36, ODP states that Defendant Secretary’s Directive 2020-06 speaks for itself. 17. ODP admits the allegations in Paragraph 37. 18. In response to the allegations in Paragraph 38, ODP admits that Plaintiffs LWVO and Ohio APRI submitted a brief as amici curiae to the Ohio Supreme Court. As to the remaining allegations, ODP states that the brief of amici curiae speaks for itself. 19. ODP denies the allegations in Paragraph 39 for lack of knowledge.
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20. ODP admits the allegations in Paragraphs 40-42. 21. ODP admits the allegations in Paragraph 43, and states further that not only did Ohio General Assembly seek to assert its authority to set the date of the 2020 primary election in the wake of Defendant Secretary’s Directive 2020-06, but that the Ohio General Assembly did assert such authority. 22. In response to the allegations in Paragraph 44-46, ODP states that the cited letter from Defendant Secretary speaks for itself. 23. In response to the allegations in Paragraph 47, ODP admits that the OAEO sent a letter to the Ohio Legislature but states that the letter speaks for itself. 24. In response to the allegations in Paragraph 48, ODP admits that the Ohio Legislature passed H.B. 197 on March 25, 2020 but states that H.B. 197 speaks for itself. 25. ODP admits the allegations in Paragraph 49. 26. In response to the allegations in Paragraphs 50-59, ODP states that H.B. 197 speaks for itself 27. ODP admits the allegations in Paragraph 60 only to the extent that the February 18, 2020 voter registration deadline has not been moved to March 30, 2020. 28. ODP denies the allegations in Paragraphs 61-66 for lack of knowledge. 29. ODP denies the allegations in Paragraph 67. 30. In response to the allegations in Paragraph 68, ODP states that the public statements of Defendant Secretary and the OAEO speak for themselves. 31. ODP denies the allegations in Paragraphs 69-71 for lack of knowledge. 32. ODP admits the allegations in Paragraph 72. 33. ODP denies the allegations in Paragraph 73.
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34. ODP denies the allegations in Paragraphs 74-81 for lack of knowledge. 35. In response to the allegations in Paragraph 82, ODP states that H.B. 197 speaks for itself. 36. ODP denies the allegations in Paragraphs 83-89 for lack of knowledge. 37. In response to Paragraph 90, the ODP incorporates by reference its responses to Paragraphs 1-89. 38. In response to the allegations in Paragraph 91, ODP states that H.B. 197 speaks for itself. 39. In response to the allegations in Paragraphs 92-93, ODP states that the National Voter Registration Act of 1993 speaks for itself. 40. ODP admits the allegations in Paragraphs 94-95 only to the extent that the February 18, 2020 voter registration deadline has not been moved to March 30, 2020. 41. In response to Paragraph 96, the ODP incorporates by reference its responses to Paragraphs 1-95. 42. In response to the allegations in Paragraph 97, ODP states that the quoted caselaw speaks for itself. 43. ODP denies the allegations in Paragraph 98. 44. In response to the allegations in Paragraph 99, ODP states that H.B. 197 speaks for itself and denies the statements attributed to the OAEO for lack of knowledge. 45. ODP denies the allegations in Paragraphs 100-101 for lack of knowledge. 46. In response to the allegations in Paragraphs 102-103, ODP states that H.B. 197 speaks for itself.
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47. In response to the allegations in Paragraphs 104, ODP states that H.B. 197 speaks
for itself and denies for lack of knowledge the statements attributed to election officials.
48. ODP denies the allegations in Paragraph 105 for lack of knowledge.
49. ODP denies the allegations in Paragraphs 106.
50. Plaintiffs’ Prayer for Relief does not require admissions or denials.
51. Any allegation not expressly admitted by ODP is denied.
Respectfully submitted,
/s/ N. Zachary West N. Zachary West (0087805), Trial Attorney O'CONNOR, HASELEY, & WILHELM LLC 35 North Fourth Street, Ste. 340 Columbus, OH 43215 Phone: (614) 208-4375 west@goconnorlaw.com
Donald J. McTigue (0022849) Derek S. Clinger (0092075) MCTIGUE & COLOMBO, LLC 545 E. Town St. Columbus, Ohio 43215 Phone: (614) 263-7000 dmctigue@electionlawgroup.com dclinger@electionlawgroup.com
Counsel for Intervenor Ohio Democratic Party
CERTIFICATE OF SERVICE
I hereby certify that on April 1, 2020, I caused a true and correct copy of the foregoing
document to be served upon all counsel of record registered with the Court’s ECF system, by
electronic service via the Court’s ECF transmission facilities.
Respectfully submitted,
/s/ N. Zachary West N. Zachary West (0087805)
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 Case: 2:20-cv-01638-MHW-EPD Doc #: 48 Filed: 04/02/20 Page: 1 of 13 PAGEID #: 495

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

LEAGUE OF WOMEN VOTERS OF OHIO, OHIO A. PHILIP RANDOLPH INSTITUTE, LASHUNDA LEE, MUNIA MOSTAFA, AUDRIANNA VICTORIAN RODRIGUEZ, and HANNAH TUVELL,

CASE NO. 2:20-cv-1638

Plaintiffs, v.

JUDGE MICHAEL H. WATSON Magistrate Judge Elizabeth Preston Deavers

FRANK LAROSE, in his official capacity as Secretary of State of Ohio,

Defendant,

and

THE OHIO DEMOCRATIC PARTY,

Intervenor-Defendant.

INTERVENOR DEFENDANT OHIO DEMOCRATIC PARTY’S MEMORANDUM IN PARTIAL SUPPORT AND PARTIAL OPPOSITION TO
PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER

Intervenor-Defendant the Ohio Democratic Party (“ODP”) joins this action to protect its’ members rights to participate in the Ohio primary election and to ensure Ohio complies with statutory requirements for voter registration.
Specifically, ODP asks that this Court deny the Plaintiffs’ request to change the date of Ohio’s primary election for the fourth time; grant Plaintiffs’ request to extend the voter registration deadline to March 30, 2020; deny Plaintiffs’ request that Secretary of State LaRose be ordered to send multiple ballots to every voter; order Secretary LaRose to include an absentee ballot application, postage prepaid, with the postcard he is already sending to every voter; and order
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Secretary LaRose to direct the county boards of elections to accept ballot applications submitted online or by email if they meet all other requirements.
STATEMENT OF FACTS Ohio’s 2020 presidential primary election was set to occur on March 17, 2020. At this election, Ohio’s Republicans and Democrats would nominate candidates at the federal, state, and local level, including candidates for Congress, the Ohio Supreme Court, and the Ohio General Assembly. Voters would also elect delegates to the parties’ national conventions who would, in turn, select their parties’ presidential nominees. Voters would also participate in the organization of their state and county political parties by selecting party committee members. And, important to local communities throughout the state, voters would weigh in on local ballot issues, including funding for public schools and public transportation. At approximately 2:53 p.m. on Monday, March 16, 2020, Secretary LaRose and Governor DeWine held a joint news conference. See The Ohio Channel, Governor Mike DeWine - 3-16-2020 - COVID-19 Update, https://ohiochannel.org/video/governor-mike-dewine-3-16-2020-covid-19update. Governor DeWine announced that he was advising people age 65 or older to isolate themselves and, further, that it was unsafe to hold the March 17, 2020 election. Id. Governor DeWine and Secretary LaRose then announced their “recommendation” that the March 17, 2020 election be postponed. Id. Secretary LaRose and Governor DeWine both conceded that they lacked the legal authority to postpone the election on their own. Id. They explained that because they lacked the authority to change the date of the election, some citizens would file a lawsuit to postpone the election. Id. Secretary LaRose stated further that he had instructed the Ohio Attorney General to not oppose the lawsuit and that he would provide the court with his recommended remedy of postponing the election until June 2, 2020. Id.
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The lawsuit was filed in the Franklin County Court of Common Pleas late in the afternoon
on March 16. A judge held an emergency hearing on the motion that evening and ultimately denied
it as untimely and unlikely to succeed on the merits. The Judge also stated that it was up to the
legislature to act.
At approximately 9 p.m., Secretary LaRose and Governor DeWine issued a joint statement
that read as follows:
The only thing more important than a free and fair election is the health and safety of Ohioans. The Ohio Department of Health and the CDC have advised against anyone gathering in groups larger than 50 people, which will occur if the election goes forward. Additionally, Ohioans over 65 and those with certain health conditions have been advised to limit their nonessential contact with others, affecting their ability to vote or serve as poll workers. Logistically, under these extraordinary circumstances, it simply isn’t possible to hold an election tomorrow that will be considered legitimate by Ohioans. They mustn’t be forced to choose between their health and exercising their constitutional rights.
March 16, 2020 Joint Statement of Secretary LaRose and Governor DeWine, Exhibit A.
Other than stating that “it simply isn’t possible to hold an election tomorrow,” the joint statement
offered no indication as to what, if anything, was next.
An hour later, at approximately 10:11 p.m., Dr. Amy Acton, the Director of the Ohio
Department of Health, issued an order closing the State of Ohio’s polling locations. Exhibit B. The
Order stated that it would take effect immediately and “remain in full force and effect until the
State of Emergency declared by the Governor no longer exists, or the Director of Ohio Department
of Health rescinds or modifies this Order.” Id.
Shortly after Director Acton’s order, at approximately 10:30 p.m., Secretary LaRose sent
Directive 2020-06 to the county boards of elections. Exhibit C. In Directive 2020-06, Secretary
LaRose stated that he was issuing the Directive “in response to Ohio Governor Mike DeWine’s
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and Ohio Director of Health Dr. Amy Acton’s order closing polling places on March 17, 2020.” Id. The Directive then states “[t]he March 17, 2020 Presidential Primary Election is suspended until June 2, 2020.” Id at 1 (emphasis added). The Directive also refers twice to “the June 2, 2020 presidential primary election.” Id at 1, 3 (emphasis added).
Despite being in the middle of a pandemic, the Ohio General Assembly met on March 25, 2020 – just 8 days after the primary was supposed to be held – and unanimously passed comprehensive emergency legislation, in the form of HB 197, to address a number of issues related to the coronavirus, including Ohio’s primary election. Leaders of both parties spoke in support of HB 197’s provisions related to the election, which set a primary date of April 28, 2020 and gave Ohioans an unprecedented additional 40 days to cast a ballot by mail, return postage prepaid. At the same time, it addressed the needs of candidates, parties, and school districts and other government subdivisions for finality in the election by not drawing out the election any longer than necessary. The General Assembly acted swiftly and decisively in unanimous, bipartisan fashion to address bringing the primary election to a conclusion and provide additional time for voting.1
ARGUMENT I. Delaying the election further will disenfranchise ODP’s members from having a say in
their party’s national convention and further confuse voters. “[I]n exercising their powers of supervision over elections and in setting qualifications for
voters, the States may not infringe upon basic constitutional protections.” Kusper v. Pontikes, 414 U.S. 51, 57 (1973). A State's broad power to regulate the time, place, and manner of elections "does not extinguish the state's responsibility to observe the limits established by the First
1 Prior to the General Assembly enacting HB 197, the ODP brought an action for a writ of prohibition in the Ohio Supreme Court against Defendant LaRose’s unilateral extension of the election to June 2. The action was brought by ODP in order to safeguard its ability to send delegates to the Democratic Party’s national convention. ODP voluntarily dismissed the action after the General Assembly passed HB 197.
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Amendment rights of the State's citizens." Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 216 (1989). The Democratic Party’s “Convention serves the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.” Cousins v. Wigoda, 419 U.S. 477, 490 (1975) (emphasis added).
1. ODP requires several weeks after the primary election is certified to ensure its delegation meets Democratic Party rules and is seated at the Democratic National Convention.
ODP is a major political party that serves as the Ohio branch of the national Democratic Party. It is affiliated with the Democratic National Committee (the “DNC”), the governing body of the national Democratic Party. The national Democratic Party’s convention (the “Convention”), where the party will select a presidential nominee and approve a platform outlining the Democratic Party’s ideology and policy goals, is scheduled to occur in Milwaukee, WI on July 13-16, 2020. Each state Democratic Party sends a delegation to the Convention to vote on the nominee and the platform, as well as various other issues related to party governance and ideology. In Ohio, the majority of these delegates are determined based on the outcome of Ohio’s primary election, which was originally scheduled to occur on March 17, 2020. Exhibit D. The DNC sets the Convention’s rules. In August 2018, the DNC approved the Call to Convention which included the Convention’s governing rules. Two of these rules included setting a June 20, 2020 deadline for state parties to certify to the DNC’s Secretary the state party’s delegations to the Convention. Exhibit E. States who fail to meet this deadline risk not being able to participate in the Convention.
The DNC’s rules for the Convention also include requiring state parties to submit a detailed delegate selection plan, including measures to ensure each state’s delegation is representative of the Democratic Party’s diverse membership. Well before the current pandemic began, ODP’s
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governing committee approved, and ODP submitted, a delegate selection plan that included
approximately eight weeks of post-primary actions to ensure ODP’s delegation meets the DNC’s
requirements. The delegate selection plan approved by ODP’s executive committee includes the
following post-primary election timeline:
1. Primary results certified. 2. Within three calendar days post-certification: ODP certifies delegates awarded to
presidential candidates based on congressional district level primary results. 3. 8 days post-certification: Special post-primary caucuses held if needed. 4. 12 days post-certification: ODP’s chair certifies special post-primary caucus results
to the Secretary of the DNC. 5. 23 days after primary results certified: Deadline for candidates for Party Leader and
Elected Official (“PLEO”) and at-large delegates to file their declaration of candidacy with ODP’s chair 6. 27 days post-certification: ODP’s chair files the list of PLEO and at-large candidates with each presidential campaign eligible to receive PLEO and at-large delegates 7. 29 days post-certification: Presidential campaigns file list of approved candidates for PLEO and at-large delegates with ODP’s chair 8. 31 days post-certification: ODP’s executive committee elects PLEO and at-large delegates. Note that, per ODP bylaws, this meeting requires advance notice. 9. 40 days post-certification: Presidential campaigns submit list of standing committee candidates to ODP’s chair. 10. 40 days post-certification: ODP’s chair certifies the list of elected PLEO and atlarge delegates to the DNC’s secretary. 11. 43 days post-certification: ODP’s convention delegation meets and elects standing committee members and the delegation chair. 12. 47 days post-certification: ODP’s chair certifies the elected standing committee members and the delegation chair to the DNC. Exhibit D. 2. Extending voting beyond April 28 will deprive Relators of their First and Fourteenth Amendment rights to participate in their political party’s affairs.
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“The…Democratic Party and its adherents enjoy a constitutionally protected right of political association. There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity' protected by the First and Fourteenth Amendments…The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Moreover, any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” Cousins, 419 U.S. 477, 487-88 (1975) (internal citations omitted).
By seeking to extend the primary indefinitely, the Plaintiffs overlook “the significant fact that the suffrage was exercised at the primary election to elect delegates to a National Party Convention…The vital business of the Convention is the nomination of the Party's candidates for the offices of President and Vice President of the United States…The Convention serves the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.” Cousins, 419 U.S. at 489-490 (emphasis added). Extending or rescheduling Ohio’s primary election day beyond April 28 and the certification of results beyond mid-May will deprive ODP’s members of their right to participate in the selection of their party’s presidential nominee.
3. Changing the date of the election again will result in voter confusion and cause voters to be disenfranchised.
Ohioans have already been told that the election will occur on three separate dates. First, they were told for months that voting would end on March 17. Less than 12 hours before the polls opened, the Ohio Department of Health issued an unprecedented order shuttering the polls and
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preventing Ohioans from voting on the previously scheduled election day. Exhibit B. Almost immediately thereafter, Defendant LaRose unilaterally extended voting to June 2. Exhibit C.
Less than a week later, despite the logistical difficulties in assembling 132 elected officials during a pandemic – much less getting them to unanimously agree - the Ohio General Assembly unanimously passed HB 197 which, among other things, set April 28, 2020 as the last day for voting in Ohio’s primary election. HB 197 gave voters an additional 40 days of voting by mail, in addition to the 28 days they already could have taken advantage of during Ohio’s statutory early in-person voting period.
“Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S. 1, 5 (2006). Now, two weeks after this saga began, and nearly a week after the Ohio General Assembly unanimously and decisively addressed the issue, the Plaintiffs ask this Court to further confuse voters about when and how they can vote. Plaintiffs do not even propose a date, they merely ask this Court to set a new date sometime in the distant future future, after “sufficient” time for voting has elapsed.
4. The Plaintiffs’ proposal to send multiple ballots to voters is unworkable, unconstitutional, and likely to result in disenfranchisement of voters.
Because this is a primary election, voters must request the ballot of the party they wish to be affiliated with. Plaintiffs propose to short circuit this by sending every voter in the state who has not yet voted each party’s ballot in the same envelope. There are several million voters in Ohio who have not yet voted. That would require printing several million Democratic ballots, several million Republican ballots, and several million Libertarian party ballots, mailing them all to voters, and then hoping the voter reads the instructions saying to only fill one out. In addition, voters who do not wish to be affiliated with any political party may request an issue-only ballot.
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If these voters are not sent an issue-only ballot as well as these partisan ballots, those voters are forced to either affiliate with a political party against their wishes, or be deprived of their right to vote. Sending an issue-only in addition to the partisan ballots would result in some voters being confronted with up to four ballots to choose from.
Sending multiple ballots is also likely to result in a significant number of voters being confused and having their votes thrown out. In every election, there is some percentage of voters who inadvertently spoil their ballot by misunderstanding or failing to follow instructions. Under the Plaintiffs’ proposal, voters – many of whom, by the Plaintiffs’ own admission are unfamiliar with mail-in voting – would be confronted with up to four separate ballots. At least some, and likely a sizable number, of these voters will fill out more than one ballot and send it back to the board. This error will not be detected until the voters’ ballot has been opened and separated from the absentee envelope, at which time these ballots must be discarded and the voter has lost their right to vote.
Moreover, the only way for an Ohio voter to formally affiliate with a political party is to request that party’s ballot at a partisan primary election. Once the voter requests that ballot, the voter is identified as a member of the political party on the state’s voter rolls. Parties use these rolls to identify members and communicate with them about ways to become more involved and about the party’s candidates for office. The Plaintiffs’ proposal to send partisan ballots to each voter, without that voter identifying which party the voter wishes to affiliate with, will effectively deny voters their first and fourteenth amendment rights to affiliate with ODP, and ODP’s first and fourteenth amendment rights to identify and communicate with ODP’s new members. Cousins, 419 U.S. at 487. II. Anyone who returned their voter registration form on or before March 30, 2020 should
be permitted to vote in the primary election.
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By passing a bill establishing April 28 as the last day for voting, the Ohio General Assembly effectively set a new date for Ohio’s primary election. Article I, Section 4, c. 1, U.S. Constitution (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations”).
Article V, Section 1 of the Ohio Constitution states in pertinent part that “Every citizen of the United States, of the age of eighteen years, who…has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections.” This requirement largely comports with the requirements of the National Voter Registration Act, which provides that Ohio shall “ensure that any eligible applicant is registered to vote in an election” if the person mailed or returned their voter registration form at least 30 days prior to the date of the election. 52 U.S.C. § 20507(a).
There is no justification for preventing people who registered to vote between February 19 and March 30 from being able to vote in the April 28, 2020 primary election. III. Secretary LaRose is already planning to a postcard to voters instructing them how to
request an absentee ballot application; it would impose no additional burden to order him to include a tear off absentee ballot application, return postage prepaid, as part of the postcard and creating a way for voters to apply for absentee ballots online.
The Ohio General Assembly included a requirement for Secretary LaRose to send a postcard to all registered Ohio voters instructing them on how to request and return an absentee ballot application to the voters’ county boards of elections. This Court should order LaRose to include an absentee ballot application as part of that postcard. Under the plain text of R.C. 3509.03(B), the application “need not be in any particular form” so long as it includes the required information.
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At the same time, nothing in R.C. 3509.03 requires that voters submit a paper application. Ohio already allows UOCAVA voters to apply for absentee ballots online, and this does not seem to overly burden boards of elections, despite having one of the nation’s largest military bases Wright-Patterson Air Force Base - located in Ohio. There is no reason why allowing nonUOCAVA voters to apply online would create any more burden on boards of elections than allowing those voters to apply by mail or by dropping off an absentee ballot application in person – which Ohio already does. As in Obama for America v. Husted, “[t]he State's asserted goal of accommodating the unique situation of members of the military…[is] certainly a worthy and commendable goal. However, while there is a compelling reason to provide more opportunities for military voters to [apply for] their ballots, there is no corresponding satisfactory reason to prevent non-military voters from [applying for] their ballots as well.” Obama for America v. Husted, 697 F.3d 423, 434 (6th Cir. 2012).
The Court should order that Secretary LaRose both include a ballot application on the postcard being submitted to voters, and that Secretary LaRose direct boards of elections to accept absentee ballot applications submitted online, so long as all the necessary fields are filled out.
CONCLUSION For the reasons listed above, the Court should deny the Plaintiffs’ request for a new election date, extend the voter registration deadline to March 30, 2020, deny the Plaintiffs’ request to send every voter multiple ballots; order Secretary LaRose to include an absentee ballot application, return postage prepaid, on the postcard he is already sending to each registered voter; and order Secretary LaRose to direct the county boards of elections to accept absentee ballot applications submitted online.
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Respectfully submitted, /s/ N. Zachary West N. Zachary West (0087805), Trial Attorney O'CONNOR, HASELEY, & WILHELM LLC 35 North Fourth Street, Ste. 340 Columbus, OH 43215 Phone: (614) 208-4375 west@goconnorlaw.com Donald J. McTigue, Esq. (0022849) Derek J. Clinger, Esq. (0092075) MCTIGUE & COLOMBO, LLC 545 East Town Street Columbus, OH 43215 Tel: (614) 263-7000 dmctigue@electionlawgroup.com dclinger@electionlawgroup.com Attorneys for Intervenor-Defendant Ohio Democratic Party
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Case: 2:20-cv-01638-MHW-EPD Doc #: 48 Filed: 04/02/20 Page: 13 of 13 PAGEID #: 507 CERTIFICATE OF SERVICE
I hereby certify that on April 1, 2020, I caused a true and correct copy of the foregoing document to be served upon all counsel of record registered with the Court’s ECF system, by electronic service via the Court’s ECF transmission facilities.
Respectfully submitted, /s/ N. Zachary West N. Zachary West (0087805)
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 Case: 2:20-cv-01638-MHW-EPD Doc #: 49 Filed: 04/02/20 Page: 1 of 11 PAGEID #: 531

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

LEAGUE OF WOMEN VOTERS OF OHIO, OHIO A. PHILIP RANDOLPH INSTITUTE, LASHUNDA LEE, MUNIA MOSTAFA, AUDRIANNA VICTORIAN RODRIGUEZ, and HANNAH TUVELL, Plaintiffs,
and
LIBERTARIAN PARTY OF OHIO, Intervenor-Plaintiff,
v.
FRANK LAROSE, in his official capacity as Secretary of State of Ohio, Defendant,
and
STATE OF OHIO, Intervenor-Defendant.

Case No. 20-1638 Judge Watson

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION REQUESTED
COMPLAINT

1. This is an action on behalf of the Libertarian Party of Ohio to declare unconstitutional, enjoin and/or modify Ohio's law prohibiting voters who register after February 18, 2020 from voting in Ohio's April 28, 2020 federal election.

JURISDICTION 1

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2. Jurisdiction in this case is predicated on 28 U.S.C. § 1331, this being a case arising under federal law, including the National Voter Registration Act of 1993, 52 U.S.C. § 20507, the United States Constitution, and 42 U.S.C. § 1983.
VENUE 3. Venue is proper in this District under 28 U.S.C. 1391(b) because a substantial part of the events giving rise to Intervenor-Plaintiff’s claims occurred in this District.
PARTIES 4. Intervenor-Plaintiff, Libertarian Party of Ohio, is one of three fully recognized political parties in Ohio with ballot access in Ohio's primary and general elections. As a recognized political party in Ohio, its members include eligible voters who can and will vote in Ohio's 2020 primary and general elections. Its membership also includes several candidates for congressional and local office in Ohio who are required to participate in Ohio's 2020 primary. It will also run a presidential ticket in Ohio in the November 2020 general election following the selection of that ticket at its National Convention. 5. Plaintiff, League of Women Voters of Ohio (“LWVO”). is a non-partisan, nonprofit membership organization located in Columbus, Ohio. 6. Plaintiff, Ohio A. Philip Randolph Institute (“Ohio APRI”), is a state chapter of the A. Philip Randolph Institute, a national organization for African-American trade unionists and community activists affiliated with the AFL-CIO and established in 1965 to forge an alliance between the civil rights and labor movements. 7. Plaintiff Lashunda Lee is an eligible, registered, and regular voter who has lived in Ohio for more than thirty years.
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8. Plaintiff Munia Mostafa is an eligible, registered, and regular voter in Ohio, and has been since she became a naturalized citizen in 2017. 9. Plaintiff Audrianna Victorian Rodriguez is an eligible, registered, and regular voter in Ohio, and had planned to vote in person in the 2020 primary. 10. Plaintiff Hannah Tuvell is a life-long Ohio resident who has never registered to vote before and would like to vote in the 2020 primary election. 11. Defendant Frank LaRose serves as Secretary of State of the State of Ohio and is being sued in his official capacity. 12. Intervenor-Defendant is the State of Ohio acting on behalf of the General Assembly.
FACTS 13. On July 17, 2019, the Ohio General Assembly passed Am. Sub. H.B. 166 to amend R.C. § 3501.01(E) to provide that in-person voting in Ohio’s 2020 presidential, congressional and state-office primary election “be held on the third Tuesday after the first Monday in March.” For Ohio’s 2020 congressional, presidential and state-office primary election, this meant that the election would conclude with in-person voting at the close of the day on March 17, 2020. The Ohio Governor signed Am. Sub. H.B. 166 into law on July 18, 2019. 14. In a press conference on the afternoon of March 16, 2020, Ohio Governor Mike DeWine and Respondent Secretary stated that they lacked the legal authority to change the date of Ohio’s 2020 presidential primary election. 15. On or about 10:11 p.m. on Monday, March 16, 2020, Ohio Governor Mike DeWine announced that the Director of the Ohio Department of Health was closing the
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polling locations in the State of Ohio on Tuesday, March 17, 2020 due to concerns of
exposure to COVID-19.
16. In the early morning hours on Tuesday, March 17, 2020, Respondent Secretary
issued Directive 2020-06 to Ohio’s 88 county boards of election directing that, “in
response to Ohio Governor Mike DeWine’s and Director of the Ohio Department of
Health Dr. Amy Acton’s order closing polling places on March 17, 2020,” he was
“suspending” the March 17, 2020 presidential primary election and “moving the date of
the election to June 2, 2020.
17. Directive 2020-06 included the following instructions to the county boards of
elections:
a. “The March 17, 2020 Presidential Primary Election is suspended until June 2, 2020.”
b. “The boards of elections are prohibited from processing any new voter registrations for the June 2, 2020 presidential primary election. The February 18, 2020 voter registration deadline remains the voter registration deadline.”
c. “Boards of elections must remain open on March 17, 2020 to receive any absentee ballots at the boards of elections through 7:30 p.m. Boards of elections are required to process any UOCAVA ballots. Boards of elections are required to process any-non UOCAVA absentee ballot post-marked by Monday, March 16, 2020 and received by the boards of elections through March 27, 2020. Boards of elections are prohibited from tabulating and reporting any results until the close of polls on Tuesday, June 2, 2020.”
d. “The boards of elections are required to process absentee ballot applications received at the board of elections postmarked by Tuesday, May 26, 2020. Absentee ballots must be postmarked by June 1, 2020 and must be received by the boards of elections no later than Friday, June 12, 2020. UOCAVA absentee ballots must be submitted for mailing not later than 12:01 a.m. at the place where the voter completes the ballot, on Tuesday, June 2, 2020.”
e. “On Tuesday, June 2, 2020, boards of elections must conduct in-person voting at polling locations in their county. The polls will open at 6:30 a.m. and close at 7:30 p.m. on Tuesday, June 2, 2020. Boards of elections should work with their county prosecutors to review any contracts with polling locations to ensure that
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in-person voting can take place at those polling locations on Tuesday, June 2, 2020.” 18. On March 17, 2020, the Ohio Democratic Party filed an original action in the Supreme Court of Ohio challenging Defendant-LaRose's action and seeking to have the previously scheduled March 17, 2020 primary concluded by April 28, 2020. 19. The Libertarian Party of Ohio moved to intervene in that action on March 19, 2020, in an effort to have the previously scheduled March 17, 2020 election lawfully concluded no later than May 12, 2020. 20. The Libertarian Party challenged not only Defendant-LaRose's authority under the federal Constitution to cancel the March 17, 2020 election in that action before the Ohio Supreme Court, but also his authority under the Constitution to substitute his own Directive fixing Ohio's registration deadline as February 18, 2020. 21. The Libertarian Party of Ohio's Motion to Intervene was granted by the Ohio Supreme Court over the Ohio Democratic Party's and Defendant-LaRose's objections on March 20, 2020. 22. On or about March 25, 2020, the Ohio General Assembly passed 2020 Am.Sub.H.B. No. 197 (“House Bill 197”)—an emergency act that voided Directive 2020-06 and established a new election date, April 28, 2020, and how that primary election would proceed in Ohio. 23. House Bill 197 was signed by the Governor on or about March 30, 2020. 24. In addition to setting the primary election for April 28, 2020, House Bill 197 also fixes the registration date for that election as February 18, 2020. 25. House Bill 197 also precludes "no excuse" in person voting during the April 28, 2020 election.
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26. House Bill 197 requires the vast majority of voters in Ohio to vote by mail and absorb most of the costs associated with obtaining a ballot and voting that ballot at the April 28, 2020 primary election. 27. As described by Defendant-LaRose on his official web page:
The Ohio Secretary of State must design, print and mail approximately 7.8 million informational postcards to every registered Ohioan that explains to them how to obtain the form necessary to request an absentee ballot. Based on preliminary estimates from prospective vendors, it is expected that these postcards will reach registered voters in the second week of April. Voters who want to cast a ballot must then either print out an absentee ballot request form themselves or call their county board and ask for one to be sent to them. Voters must then affix their own postage and send the request to their county board of elections. Boards must then process the request, print the ballot and send it to the voter. Each voter must receive their ballot, cast their vote, and return the ballot in a postage-paid envelope, postmarked by April 27th. LaRose Issues Statement on Legislation Finalizing Ohio's Primary Election, March 25, 2020.1
28. On March 26, 2020, the Democratic Party moved the Ohio Supreme Court to dismiss it from the case following the General Assembly's having passed House Bill 197. 29. The Ohio Supreme Court granted the Democratic Party’s application and dismissed its complaint on March 27. State ex rel. Ohio Democratic Party v. LaRose, __ Ohio St.3d __, 2020-Ohio1139, __ N.E.3d __.
1 https://www.ohiosos.gov/media-center/press-releases/2020/2020-03-25/.
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30. On March 31, 2020, the Ohio Supreme Court then dismissed the Libertarian Party of Ohio's challenge to Directive 2020-06 as moot, stating that should the Libertarian Party wish to press its argument that "House Bill 197 violates federal law (and thus does not render its claim moot)[,] … that claim is for another day and another case." See id., 2020-1253 at 3. 31. On March 30, 2020, this action was filed. 32. The Ohio Democratic Party moved to intervene as a Defendant on April 1, 2020.
FIRST CAUSE OF ACTION 33. All prior paragraphs are incorporated herein. 34. House Bill requires that ballots cast through April 28, 2020, count in Ohio’s 2020 presidential primary election, H.B. 197 § 32(E)(1)–(2), but prohibits anyone who registered to vote after February 18, 2020, from participating in the election, id. § 32(C)(1)(a). 35. The National Voter Registration Act of 1993 (“NVRA”) applies to federal elections, such as Ohio’s 2020 presidential primary election. See, e.g., 52 U.S.C. §§ 20501(b)(1), 20502(1)–(2). 36. Section 8(a)(1) of the NVRA requires that in elections for federal office the registration date be no earlier than 30 days prior to “the date of the election.” Id. § 20507(a)(1). 37. House Bill 197’s restriction on registration violates the NVRA. This restriction will deprive eligible Ohio voters, including members of the Libertarian Party of Ohio, of their right to participate in the 2020 primary election in violation of federal law.
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38. Defendant-LaRose's enforcement of this February 18, 2020 registration deadline violates the NVRA.
SECOND CAUSE OF ACTION 39. All prior paragraphs are incorporated herein. 40. Article I, § 4 of the Constitution of the United States provides that "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." (Emphasis added). 41. Congress has in the NVRA prescribed the proper manner and temporal deadlines for electing Senators and Representatives in the United States, and that manner includes precluding States from requiring voter registration more than 30 days before the federal election. 42. The General Assembly had no authority under Article I, § 4 to pass a law that required voters to register more than 30 days before Ohio's upcoming federal primary election. 43. The General Assembly's inclusion of its voter registration date in House Bill 197 violates the powers delegated to it by Article I, § 4 of the United States Constitution. 44. Defendant-LaRose's enforcement of House Bill 197's registration deadline violates 42 U.S.C. § 1983.
THIRD CAUSE OF ACTION 45. All prior paragraphs are incorporated herein.
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46. House Bill 197 requires that voters in Ohio absorb most of the costs associated with obtaining and voting their ballots. 47. The Twenty-Fourth Amendment prohibits poll taxes in any federal elections. 48. The Equal Protection Clause of the Fourteenth Amendment prohibits poll taxes in any elections. See Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966). 49. House Bill 197's requirement that voters cast absentee ballots and themselves absorb most of the costs associated with obtaining and voting their ballots constitute an unconstitutional poll tax in violation of the Fourteenth and Twenty-Fourth Amendments to the United States Constitution. 50. Defendant-LaRose's enforcement of House Bill 197 imposes an unconstitutional poll tax in violation of the Fourteenth and Twenty-Fourth Amendments to the United States Constitution. 51. Defendant-LaRose's enforcement of House Bill 197's registration deadline violates 42 U.S.C. § 1983.
FOURTH CAUSE OF ACTION 52. All prior paragraphs are included herein. 53. The Libertarian Party of Ohio relied on the scheduling of Ohio's March 17, 2020 primary to its detriment in planning to participate in the Libertarian National Convention. 54. Should Ohio conduct its primary later than approximately May 12, 2020, the Libertarian Party of Ohio's participation in that National Convention will be prejudiced. 55. The Libertarian Party of Ohio has a First Amendment right to order its internal affairs as it sees fit.
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56. Delaying Ohio's primary election beyond May 12, 2020 will interfere with and irreparably damage the Libertarian Party of Ohio's First Amendment rights. 57. Defendant-LaRose's conducting the primary after May 12, 2020 will violate the First Amendment rights of the Libertarian Party of Ohio and 42 U.S.C. § 1983.
DEMAND FOR RELIEF WHEREFORE, the Libertarian Party of Ohio respectfully pray that this Court: (1) Assume original jurisdiction over this case; (2) Issue a temporary restraining order, preliminary and/or permanent injunction (i) prohibiting enforcement of Ohio's February 18, 2020 registration deadline; (ii) directing Defendant-LaRose to comply with federal law by setting a registration deadline that is no more than 30 days before the date of the primary election; (iii) directing DefendantLaRose to conduct that election no later than May 12, 2020; and (iv) directing DefendantLaRose to either bear the full costs associated with obtaining and voting ballots, or alternatively provide some reasonable alternative like "no excuse" in person voting before the close of the election to allow voters to cast their ballots at no cost. (3) Issue a declaratory judgment under 28 U.S.C. § 2201(a) stating that (i) enforcement of Ohio's February 18, 2020 registration deadline is illegal; (ii) DefendantLaRose must comply with federal law by setting a registration deadline that is no more than 30 days before the date of the primary election; (iii) Defendant-LaRose must conduct that election no later than May 12, 2020; and (iv) Defendant-LaRose must bear the full costs associated with obtaining and voting ballots, or alternatively provide some reasonable alternative like "no excuse" in person voting before the close of the election to allow voters to cast their ballots at no cost.
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(4) Order Defendant-LaRose to pay to Intervenor-Plaintiff the Libertarian Party of Ohio its costs and a reasonable attorney’s fees under 42 U.S.C. § 1988(b); and (5) Retain jurisdiction over this matter and order Defendant-LaRose to provide to the Libertarian Party of Ohio any additional relief the Court deems just.
Respectfully submitted, /s Mark R. Brown Mark R. Brown (#81941) 303 East Broad Street Columbus, OH 43215 Phone: (614) 236-6590 Fax: (614) 236-6956 mbrown@law.capital.edu Counsel for Intervenor-Plaintiff Libertarian Party of Ohio
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 Case: 2:20-cv-01638-MHW-EPD Doc #: 50 Filed: 04/02/20 Page: 1 of 8 PAGEID #: 542

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

League of Women Voters of Ohio, et al., :

:

Plaintiffs,

:

:

v.

:

:

Frank LaRose, in his official capacity as :

Secretary of State of Ohio,

:

:

Defendant.

:

Case No. 2:20-cv-01638 Judge Michael H. Watson Chief Magistrate Judge Deavers

PROPOSED ANSWER OF INTERVENOR-DEFENDANT, OHIO REPUBLICAN PARTY, TO AMENDED COMPLAINT

NOW COMES the Ohio Republican Party (“ORP”), Proposed Intervenor-Defendant in

the above-captioned action, and answers Plaintiffs’ Amended Complaint as follows:

1. ORP denies the allegations in Paragraph 1.

2. In response to the allegations in Paragraph 2, ORP states House Bill 197 speaks

for itself.

3. ORP denies the allegations in Paragraph 3 for lack of knowledge.

4. ORP denies the allegations in Paragraph 4.

5. ORP denies the allegations in Paragraph 5.

6. Paragraph 6 is an opinion statement of the Plaintiffs to which no admissions or

denials are required.

7. ORP denies the allegations in Paragraph 7 for lack of knowledge.

8. ORP denies the allegations in Paragraph 8 for lack of knowledge.

9. ORP denies the allegations in Paragraph 9 for lack of knowledge.

10. ORP denies the allegations in Paragraph 10 for lack of knowledge.

1
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11. ORP denies the allegations in Paragraph 11 for lack of knowledge. 12. ORP denies the allegations in Paragraph 12 for lack of knowledge. 13. ORP denies the allegations in Paragraph 13 for lack of knowledge. 14. ORP denies the allegations in Paragraph 14 for lack of knowledge. 15. ORP denies the allegations in Paragraph 15 for lack of knowledge. 16. ORP denies the allegations in Paragraph 16 for lack of knowledge. 17. ORP denies the allegations in Paragraph 17 for lack of knowledge. 18. ORP admits the allegations in Paragraph 18. 19. In response to the allegations in Paragraph 19, ORP states that the cited statutes speak for themselves, and no admission or denial is required. 20. In response to the allegations in Paragraph 20, ORP states that the cited statute speaks for itself, and no admission or denial is required. 21. In response to the allegations in Paragraph 21, ORP states that the cited statute speaks for itself, and no admission or denial is required. 22. In response to Paragraph 22, ORP states the paragraph is a position statement of the Plaintiffs, to which no admissions or denials are required. 23. In response to the allegations in Paragraph 23, ORP admits that the Court has jurisdiction. The remaining allegations are positional statements of the Plaintiffs, to which no admission or denials are required. 24. Paragraph 24 sets forth a legal conclusion to which no response is necessary. 25. Paragraph 25 sets forth a legal conclusion to which no response is necessary. 26. ORP admits the allegations in Paragraph 26. 27. ORP admits the allegations in Paragraph 27.
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28. ORP admits the allegations in Paragraph 28. 29. ORP admits the allegations in Paragraph 29. 30. ORP admits the allegations in Paragraph 30. 31. ORP admits the allegations in Paragraph 31. 32. ORP admits the allegations in Paragraph 32. 33. ORP admits the allegations in Paragraph 33. 34. ORP admits the allegations in Paragraph 34. 35. ORP admits the allegations in Paragraph 35. 36. In response to the allegations in Paragraph 36, ORP states the Defendant Secretary’s Directive 2020-06 speaks for itself. 37. ORP admits the allegations in Paragraph 37. 38. In response to the allegations in Paragraph 38, ORP admits that Plaintiffs LWVO and Ohio APRI submitted a brief as amici curiae to the Ohio Supreme Court. As to the remaining allegations, ORP states the brief of amici curiae speaks for itself 39. ORP denies the allegations in Paragraph 39 for lack of knowledge. 40. ORP admits the allegations in Paragraph 40. 41. ORP denies the allegations Paragraph 41 for lack of knowledge. 42. ORP admits the allegations in Paragraph 42. 43. ORP admits the allegations in Paragraph 43, and states further that the Ohio General Assembly did in fact assert its authority through the passage of House Bill 197. 44. In response to the allegations in Paragraph 44, ORP states the cited material from the Secretary’s letter speaks for itself.
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45. In response to the allegations in Paragraph 45, ORP states the cited material from the Secretary’s letter speaks for itself.
46. In response to the allegations in Paragraph 46, ORP states the cited material from the Secretary’s letter speaks for itself.
47. In response to the allegations in Paragraph 47, ORP admits the OAEO sent a letter to the Ohio General Assembly members and states that the letter speaks for itself.
48. ORP admits the allegations in Paragraph 48, but states that House Bill 197 speaks for itself and provides for absentee ballots for all registered voters.
49. ORP admits the allegations in Paragraph 49. 50. In response to allegations in Paragraph 50, ORP states House Bill 197 speaks for itself. 51. In response to the allegations in Paragraph 51, ORP states House Bill 197 speaks for itself. 52. In response to the allegations in Paragraph 52, ORP states House Bill 197 speaks for itself. 53. In response to the allegations in Paragraph 53, ORP states House Bill 197 speaks for itself. 54. In response to the allegations in Paragraph 54, ORP states House Bill 197 speaks for itself. 55. In response to the allegations in Paragraph 55, ORP states House Bill 197 speaks for itself. 56. In response to the allegations in Paragraph 56, ORP states House Bill 197 speaks for itself.
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57. Paragraph 57 calls for a legal conclusion, and therefore no response is necessary. 58. In response to the allegations in Paragraph 58, ORP states House Bill 197 speaks for itself. 59. In response to the allegations in Paragraph 59, ORP states House Bill 197 speaks for itself. 60. Paragraph 60 calls for a legal conclusion, and therefore no response is necessary. 61. ORP denies allegations in Paragraph 61 for lack of knowledge. 62. ORP denies allegations in Paragraph 62 for lack of knowledge. 63. ORP denies allegations in Paragraph 63 for lack of knowledge. 64. ORP denies allegations in Paragraph 64 for lack of knowledge. 65. ORP denies allegations in Paragraph 65 for lack of knowledge. 66. ORP denies allegations in Paragraph 66 for lack of knowledge. 67. ORP denies the allegations in Paragraph 67, including the characterization of House Bill 197’s process. 68. In response to Paragraph 68, ORP states the public statements of the Secretary and the OAEO speak for themselves. 69. ORP denies allegations in Paragraph 69 for lack of knowledge. 70. ORP denies allegations in Paragraph 70 for lack of knowledge. 71. ORP denies allegations in Paragraph 71 for lack of knowledge. 72. ORP denies allegations in Paragraph 72 for lack of knowledge. 73. ORP denies the allegations in Paragraph 73. 74. ORP denies the allegations in Paragraph 74 for lack of knowledge. 75. ORP denies the allegations in Paragraph 75 for lack of knowledge.
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76. ORP denies the allegations in Paragraph 76 for lack of knowledge. 77. ORP denies the allegations in Paragraph 77 for lack of knowledge. 78. ORP denies the allegations in Paragraph 78 for lack of knowledge. 79. ORP denies the allegations in Paragraph 79 for lack of knowledge. 80. ORP denies the allegations in Paragraph 80 for lack of knowledge. 81. ORP denies the allegations in Paragraph 81 for lack of knowledge. 82. In response to the allegations in Paragraph 82, ORP states that H.B. 197 speaks for itself. 83. ORP denies the allegations in Paragraph 83. 84. ORP denies the allegations in Paragraph 84 for lack of knowledge. 85. ORP denies the allegations in Paragraph 85 for lack of knowledge. 86. ORP denies the allegation in Paragraph 86 for lack of knowledge. 87. ORP denies the allegation in Paragraph 87 for lack of knowledge. 88. ORP denies the allegation in Paragraph 88 for lack of knowledge. 89. ORP denies the allegation in Paragraph 89 for lack of knowledge. 90. In response to Paragraph 90, the ORP incorporates by reference its responses to Paragraphs 1-89. 91. In response to the allegations in Paragraph 91, ORP states that H.B. 197 speaks for itself. 92. In response to the allegations in Paragraph 92, ORP states that the National Voter Registration Act of 1993 speaks for itself. 93. In response to the allegations in Paragraph 93, ORP states that the National Voter Registration Act of 1993 speaks for itself.
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94. ORP denies the allegations in Paragraph 94. 95. ORP denies the allegations in Paragraph 95. 96. In response to Paragraph 96, the ORP incorporates by reference its responses to Paragraphs 1-95. 97. In response to the allegations in Paragraph 97, ORP states that the quoted case law speaks for itself. 98. ORP denies the allegations in Paragraph 98. 99. In response to the allegations in Paragraph 99, ORP states that H.B. 197 speaks for itself and denies the statements attributed to the OAEO for lack of knowledge. 100. ORP denies the allegations in Paragraph 100 for lack of knowledge. 101. ORP denies the allegations in Paragraph 101 for lack of knowledge. 102. In response to the allegations in Paragraphs 102, ORP states that H.B. 197 speaks for itself. 103. In response to the allegations in Paragraph 103, ORP states that H.B. 197 speaks for itself. 104. In response to the allegations in Paragraph 104, ORP states that H.B. 197 speaks for itself and denies for lack of knowledge the statements attributed to election officials. 105. ORP denies the allegations in Paragraph 105 for lack of knowledge. 106. ORP denies the allegations in Paragraph 106. 107. Plaintiffs’ Prayer for Relief does not require admissions or denials. 108. Any allegation not expressly admitted by ORP is denied. 109. ORP expressly reserves the right to amend or supplement this Proposed Answer.
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Respectfully submitted, /s/ Anne Marie Sferra Anne Marie Sferra (0030855) Christopher N. Slagle (0077641) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215-4291 Phone: (614) 227-2300 Facsimile: (614) 227-2390 E-mail:asferra@bricker.com
cslagle@bricker.com Counsel for Proposed Intervenor-Defendant, Ohio Republican Party
CERTIFICATE OF SERVICE I hereby certify that on April 2, 2020, I caused a true and correct copy of the foregoing document to be served upon all counsel of record registered with the Court’s ECF system, by electronic service via the Court’s ECF transmission facilities.
/s/ Anne Marie Sferra Anne Marie Sferra (0030855)
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 Case: 2:20-cv-01638-MHW-EPD Doc #: 51 Filed: 04/02/20 Page: 1 of 18 PAGEID #: 550

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

LEAGUE OF WOMEN VOTERS OF

)

OHIO, OHIO A. PHILIP RANDOLPH )

INSTITUTE, LASHUNDA LEE, MUNIA )

MOSTAFA, AUDRIANNA VICTORIAN )

RODRIGUEZ, and HANNAH TUVELL, )

)

Plaintiffs,

)

)

v.

)

)

FRANK LAROSE, in his official capacity )

As Secretary of State of Ohio,

)

)

Defendant.

)

)

Case No. 2:20-cv-1638 Judge Michael H. Watson

BRIEF OF THE HONEST ELECTIONS PROJECT AS AMICUS CURIAE IN SUPPORT OF DEFENDANTS

INTEREST OF AMICUS CURIAE1

Amicus Curiae, the Honest Elections Project, is a nonpartisan organization

devoted to supporting the right of every lawful voter to participate in free and honest

elections. Through public engagement, advocacy, and public-interest litigation, the

Honest Elections Project defends fair, reasonable, common sense measures that

voters put in place to protect the integrity of the voting process.

1 On April 1, 2020 counsel for Amicus Curiae sought consent from counsel for Plaintiffs and the State for the filing of this Amicus Brief. Counsel for Plaintiffs indicated that they would not file any objection. Counsel for the State indicated that he did not have the opportunity to discuss it with his client.

Case: 2:20-cv-01638-MHW-EPD Doc #: 51 Filed: 04/02/20 Page: 2 of 18 PAGEID #: 551
As part of its mission in this challenging time, the Honest Elections Project seeks to ensure that elections are carried out using lawful methods while accounting for public health issues. Challenges to duly enacted election procedures, such as those brought by Plaintiffs in the present case, have the potential to damage the integrity and perceived legitimacy of the election results. After all, “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974). The Honest Elections Project thus has a significant interest in this important case.
INTRODUCTION Plaintiffs urge this Court to override duly enacted state election laws through judicial fiat at the eleventh hour before an election. Specifically, Plaintiffs seek to (1) reopen and extend the registration period for the 2020 primary election; (2) force election administrators to send to all registered electors who have not voted by 21 days before the primary election a ballot for each party, return postage pre-paid, and instructions; (3) permit any elector who has not received a mail absentee ballot at least 14 days prior to the close of polls to request one by phone; (4) allow electors who qualify for in-person voting but received an absentee ballot by mail, to vote inperson; (5) permit electors who do not cast an absentee ballot by the deadline to vote by in-person provisional ballot; (6) force election administrators to provide
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opportunities to cure deficiencies in provisional ballots and absentee ballot identification envelopes by mail, phone, or email after the date of the primary election; and (7) implement other changes to the administration of Ohio’s primary election, including potentially changing its timing (collectively, the “Challenged Provisions”). See Amended Complaint, ECF No. 5 (PageID#156-58); Emergency Motion for Temporary Restraining Order, ECF No. 4 (PageID#33-34).
This Court should not grant Plaintiffs’ requested relief. Doing so, so close in time before an election and after the State has already made massive, emergency changes to their election procedures, would wreak havoc among election administrators, who would have scant time and possibly very few resources to implement new procedures. This would not only result in strains on election administration, but also undoubtedly disenfranchise voters, or worse yet, provide disparate standards in some areas compared to others. The Supreme Court and the Sixth Circuit have repudiated this kind of last-minute disruption of election administration.
ARGUMENT I. GRANTING PLAINTIFFS’ RELIEF WOULD COMPROMISE
ELECTION ADMINISTRATION CONTRARY TO THE PUBLIC INTEREST. A. The Supreme Court’s Purcell Doctrine Counsels Against Granting
the Plaintiffs’ Injunction.
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The United States Supreme Court repeatedly held that judicial intrusion2 into
elections must take account of “considerations specific to election cases.” Purcell v.
Gonzalez, 549 U.S. 1, 4 (2006). These considerations include the fact that “[c]ourt
orders affecting elections . . . can themselves result in voter confusion and
consequent incentive to remain away from the polls.” Id. at 4–5. “As an election
draws closer, that risk will increase.” Id. at 5. Courts must therefore weigh such
factors as the harms associated with judicial action or inaction, the proximity of the
upcoming election, the “possibility that the nonprevailing parties would want to
seek” further review, and the risk of “conflicting orders” from such review. See id.
Other relevant factors that a Court must weigh when evaluating whether to grant
extraordinary relief affecting impending elections include “the severity and nature
of the particular constitutional violation,” the “extent of the likely disruption” to the
2 The Supreme Court has repeatedly recognized the important role States play in regulating elections—especially those designed to provide certainty and reliability in the election process and to protect those elections from any hint of fraud. See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 196 (2008) (“There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters [or in] orderly administration.”); Purcell, 549 U.S. at 4 (2006) (per curiam) (“Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”); Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989) (“A State indisputably has a compelling interest in preserving the integrity of its election process.”); see also Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’” (citation omitted). Indeed, the statutory policy of a Legislature “is in itself a declaration of public interest.” Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552 (1937).
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upcoming election, and “the need to act with proper judicial restraint when intruding on state sovereignty.” North Carolina v. Covington, 137 S. Ct. 1624, 1626 (2017).
In accordance with the hesitation to intrude into the conduct of elections, the Supreme Court has long rejected last-minute changes to elections, even when faced with potential constitutional violations. See, e.g., Wells v. Rockefeller, 394 U.S. 542, 547 (1969) (affirming decision of district court permitting election to proceed under map with constitutional infirmities because “primary election was only three months away”); Kilgarlin v. Martin, 386 U.S. 120, 121 (1967) (per curiam) (affirming district court’s action permitting 1966 Texas election to continue under a “constitutionally infirm” plan due to the proximity of the election date). As the Supreme Court stated in Reynolds v. Sims:
In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree. 377 U.S. 533, 585 (1964). Through Purcell and Reynolds, the Supreme Court made clear that, even when faced with potential constitutional issues, eleventh-hour disruptions to elections must be avoided. The Sixth Circuit has also joined the Supreme Court in discouraging last-minute challenges of election procedures. See SEIU Local 1 v. Husted, 698 F.3d 341, 345-46 (6th Cir. 2012) (“last-minute
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injunctions changing election procedures are strongly disfavored”); Ne. Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) (“[T]here is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the middle of submission of absentee ballots.”); Summit Cty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004) (“the State’s interest in not having its voting processes interfered with, assuming that such processes are legal and constitutional, is great. It is particularly harmful to such interests to have the rules changed at the last minute.”).
Purcell itself dealt with an injunction of laws of a similar character to those in the present case. Specifically, that case reviewed a judicial order of the Ninth Circuit, issued less than five weeks before an election, forbidding use of Arizona’s voter ID requirement. Purcell, 549 U.S. at 2-4. By forbidding use of voter ID, the Ninth Circuit required a state to depart from procedures established by state law, which is not unlike the relief the Plaintiffs seek here. Id. The Supreme Court held such judicial intrusion to be improper given the, inter alia, looming election and necessity for clear guidance to the state. Id. at 5.
Within the preceding weeks, a number of courts have rebuked eleventh-hour challenges to state election laws justified by COVID-19.
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Only days ago, on March 30, 2020, the Eastern District of Arkansas denied an emergency motion for temporary restraining order and preliminary injunction which, similar to the Plaintiffs in the present case, sought to require state election officials to accept ballots that are postmarked before or on Election Day that arrive after Election Day and to provide adequate notice to voters and election officials of this extension and the absentee voting process. Mays, 2020 U.S. Dist. LEXIS 54498, *1*2 (E.D. Ark. March 30, 2020). The court denied plaintiffs’ motion because it held that the public interest laid with denying plaintiffs’ motion because such “a lastminute restructuring of the state-absentee voting law, would add further confusion and uncertainty and impair the public’s strong interest in the integrity of the electoral process.” Id.
The Eastern District of Arkansas also found that plaintiffs were unlikely to succeed on the merits of their claims because plaintiffs failed to articulate any injury and therefore did not have standing. Id. at *4-*5. That case was triggered because the governor of Arkansas issued an executive order altering the structure of that state’s absentee voting law. Mays, 2020 U.S. Dist. LEXIS 54498, *1-*2. Specifically, the executive order effectively permitted anyone to request an absentee ballot, regardless of whether they are unavoidably absent or unable to attend, and to allow them to request the absentee ballot by mail within seven days before the election. Id. When the Eastern District determined that plaintiffs lacked standing, it
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did so because it held that plaintiffs failed to articulate an injury suffered at the hands of the governor, secretary of state or any other state official. Id. at 4. Specifically,
[p]laintiffs’ right to vote during this global pandemic have been made easier by the Governor’s March 20 executive order suspending the normal prerequisites for requesting an absentee ballot. Plaintiffs complain that the Governor did not do enough. However, Plaintiffs' injury, if any, will occur only if they did not follow the absentee voting requirements as loosened by the Governor or if they do not show up to vote at a designated voting place exercising the social distancing and other protections suggested by the State and the federal government. Id. Essentially, any injury plaintiffs might suffer by failing to take advantage of the available avenues to vote, is caused by the global pandemic, not by the actions of the state. On March 20, 2020, the Western District of Wisconsin almost entirely denied a last-minute effort by the Democratic National Committee and the Democratic Party of Wisconsin to change Wisconsin’s election laws because of COVID-19. Democratic National Committee v. Bostelmann, 2020 U.S. Dist. LEXIS 48394 (W.D. Wis. Mar. 20, 2020). Specifically, those plaintiffs sought to bar enforcement of (1) the electronic and mail-in voter registration deadline; (2) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted; and (3) the requirements of proof of residence and voter ID for electronic and mailin registration and of photo identification for absentee ballot applications. Id. at *2. The plaintiffs filed the case on the day of the registration deadlines and less than three weeks before Wisconsin’s primary election. See generally id. The Western
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District granted the most minor of partial relief, only extending the deadline for registration 12 days (closing one week prior to the primary election) and denying all other relief. Id. at *24-27. The court noted that the narrowness of its remedy was due the fact that “last-minute changes to election laws may generate confusion and in turn undermine confidence in the electoral system.” Id. at *25 (citing Purcell, 549 U.S. at 4).3
On March 17, 2020, the Northern District of Florida denied a temporary restraining order to plaintiffs who cited COVID-19 as a reason for seeking fundamental alterations to the manner in which voting should be conducted in Florida. Williams v. DeSantis, Case No. 1:20-cv-67-RH-GRJ, Order Denying a Temporary Restraining Order (N.D. Fla. Mar. 17, 2020). The motion for temporary restraining order sought to alter vote-by-mail requirements by, inter alia, extending deadlines for requesting and returning vote-by-mail ballots, waiving the requirement to complete affidavits, allowing voters to designate other individuals to return their ballots, and mandating that election officials accept delivered ballots regardless of
3 In an unrelated separate action, the Supreme Court of Wisconsin, on March 31, 2020, ordered a county clerk to remove a Facebook post containing instructions on how individuals could avoid the state’s voter ID requirements during the COVID-19 pandemic. Jefferson v. Dane Cty., No. 2020AP557-OA at *1-2 (Mar. 31, 2020). Specifically, the Facebook post instructed voters to declare themselves to be “indefinitely confined due to illness” solely because the Wisconsin Department of Health Services had issued a “Safer at Home Order”, allowing individuals to avoid the legal requirement to present or upload a copy of the voter's proof of identification when requesting an absentee ballot. Id. Such an interpretation differed from the Wisconsin Election Commission’s guidance and the Wisconsin Supreme Court held the interpretation to be “legally incorrect.” Id.
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the precinct to which they are returned. Williams v. DeSantis, Case No. 1:20-cv-67RH-GRJ, Plaintiffs’ Emergency Mot. for a Temp. Restraining Order and Prelim. Inj. (N.D. Fla. Mar. 16, 2020). While the Northern District of Florida acknowledged that the COVID-19 emergency “will make it difficult or impossible for some to vote,” it found that the temporary restraining order was not in the public interest due to the proximity to the election. Williams v. DeSantis, Case No. 1:20-cv-67-RH-GRJ, Order Denying a Temp. Restraining Order. Specifically, the court stated:
At this hour, with voting in progress, a temporary restraining order would be adverse to the public interest. At least until the polls close, and under all the circumstances, it will be in the public interest to allow the Governor, Secretary of State, and Supervisors of Elections to perform their respective roles. The national healthcare emergency is not a basis to cancel an election, and the plaintiffs do not assert it is. Id. The same circumstances surround the present case due to the impending primary election. Moreover, although the circumstances surrounding the Plaintiffs’ claims— those of a viral pandemic—are otherwise novel in American election law jurisprudence, other courts have denied similar relief in cases concerning natural disasters such as hurricanes. For example, in Bethea v. Deal, Hurricane Matthew resulted in the governor of Georgia ordering mandatory evacuations for a number of counties in that state, which in turn resulted in the temporary closure of those counties’ Board of Elections offices prior to the voter registration deadline. 2016 U.S. Dist. LEXIS 144861 at *1-3 (S.D. Ga. 2016). All of the Board of Elections
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offices at issue in Bethea opened at latest on the last day of registration. Id. Plaintiffs in that case, similar to the Plaintiffs in this case, sought to enjoin provisions of state election law because they asserted that individuals were prevented from registering (both in person and electronically) and voting due to Board of Elections office closures, power outages, transportation concerns, post office closures, the suspension of mail services, evacuation, and other recovery efforts. Id. at *1-4. The State contended that to do so would create a significant burden for election officials because implementing such changes would be too difficult and would stretch resources, given the approaching election, and would force election officials to work from multiple voter lists, thus increasing the chances of human error and unnecessary provisional ballots. Id. at *4-5. The State also argued that the citizens of the affected counties were able to register at their local election offices in person for at least one day prior to the registration deadline, and that the impacts of Hurricane Matthew did not preclude individuals from registering electronically or by mail. Id. The court denied the plaintiffs’ injunctive relief because it determined that there was no government action, i.e., Georgia’s decision not to extend the deadline was not an action that created an impediment to the right to vote. Id. at *6. The court went further and held that even assuming Anderson-Burdick applied, the minimal burdens imposed by refusing a registration extension did not outweigh Georgia’s interest in conducting a smooth statewide election. Id. at *7-11.
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Additionally, in Florida Democratic Party v. Detzner, Hurricane Michael resulted in the mandatory evacuation of some areas of the Florida gulf coast close in time to that state’s voter registration deadline. 2018 U.S. Dist. LEXIS 174528, *1 (N.D. Fla. 2018). The Florida Secretary of State issued a directive to all Florida supervisors of elections authorizing them to extend in-person voter registration if their office was closed on the last day of the registration deadline, but not extending mailed registration applications or online registration. Id. at *1-2. The Florida Democratic Party, sued, arguing that the directive did not go far enough and seeking a temporary restraining order mandating a statewide extension of one week for all forms of registration. Id. The District Court for the Northern District of Florida denied the Florida Democratic Party’s motion because there was no justification for such a broad remedy, especially given there were avenues open for individuals to register to vote before and during the hurricane evacuations. Id. at *2-4.
Here, numerous options remain for individuals to request an absentee ballot, to actually vote by absentee ballot or in person. Plaintiffs and all other electors who cannot receive or, due to a disability cannot complete an absentee ballot, may still vote in person at a polling place. See H.B. 197 Section 32(D)(1). The hardships that the Plaintiffs assert are all but nonexistent or are caused by the global pandemic and not the State. See Mays, 2020 U.S. Dist. LEXIS 54498 at *4-5. For example, Plaintiffs argue that the subset of voters permitted to vote at polling places is too
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narrow and that the absentee ballot laid out in H.B. 197 is too confusing for voters. Amended complaint at 12-14 (ECF no. 5) (March 31, 2020). However, this argument sidesteps the fact that the process for voting by absentee ballot has actually been made easier by H.B. 197, not more difficult. Registered voters are now sent a postcard outlining exactly how and when to request and submit their absentee ballots. H.B. 197 Section 32(C)(2). And while polling places will allow fewer voters to enter, that is necessary given the COVID-19 pandemic. Voters who might be prohibited from polling places are still able to vote by absentee ballot. Much like Mays case in the Eastern District of Arkansas, what relatively slight injury Plaintiffs can articulate is caused not by state action, which has made it easier to vote, but by the global pandemic. Plaintiffs are essentially arguing that state action did not go far enough.
The relatively slight burden on voters that Ohio’s new voting procedures place on individuals, even under current circumstances, is far outweighed by the interests the state has in continuing to utilize those requirements. The implementation of any of the Plaintiffs’ requested remedies would complicate election administration in the state due to the decentralized county-based nature of the State’s elections administration structure,4 the technical requirements any changes to election
4 https://www.sos.state.oh.us/elections/elections-officials/county-boards-of-elections-directory/.
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administration would require, and the resulting potential for chaos and voter confusion. See Purcell, 549 U.S. at 4-5; Reynolds, 377 U.S. at 585. Further, there are deadlines following the April 28 primary election that election administrators must meet including the requirements that board of elections complete the official canvass of election ballots, certify the results, and report the results to the Secretary of State. Extending the deadlines for receipt of ballots would significantly interfere with this statutory schedule for election administration and would stretch the resources of many election boards.
Additionally, Plaintiffs’ requested remedy leaves the door open to significant election integrity concerns. For example, Plaintiffs remedy would permit an individual to conceivably obtain three ballots during a single election. The Plaintiffs ask for all registered voters to be mailed an absentee ballot 21 days before the election. Amended Complaint at 23-24 (ECF No. 5). Plaintiffs also wish to permit any registered voter who claims to not have received an absentee ballot by 14 days before the primary election to request a second ballot. Id. at 24. Finally, Plaintiffs ask that anyone be permitted to vote in-person, provided they bring an unmarked absentee ballot with them to the polls or vote a provisional ballot. Id. This will not only overburden election administration with the need to provide up to three ballots for every elector, but it also leads to self-evident problems for election integrity. This
14

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opens the door for allegations of fraud, which the State and public have a significant interest in avoiding.
All of the aforementioned difficulties would only be exaggerated exponentially given how close in time before the election these changes would be made and given that the requirements have already changed once. These changes are precisely the kind of disruptions to election administration and voting that the Supreme Court, the Sixth Circuit, and countless other courts have prevented through the Purcell doctrine. This Court should also refuse to countenance such disruption.
B. The Plaintiffs’ Requested Relief Would Affect Some Areas More than Others.
The relief the Plaintiffs seek is also not in the public interest because it would have a disparate impact on election administration throughout Ohio. Specifically, the previously discussed burdens that 11th hour changes would place on election administrators would cause a different impact depending on the particular county board of elections. Such an unequal impact, in the election administration context, could lead to confusion in some areas and not others, which could have severe and artificial electoral implications.
The election administrators that would have to shoulder the burden of implementing many of Plaintiffs’ remedies do not receive equal resources across the state. Each of Ohio’s 88 counties has a Board of Elections office that is responsible
15

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for administering local elections.5 Some of these Board of Elections offices enjoy much greater resources than others. For example Franklin County’s Board of Elections enjoys an annual budget of $3,564,765,6 while the Morgan County Board of Elections has an annual budget of approximately $162,220.7 Similarly, Cuyahoga County budgets $8,333,929 for their Election Administration,8 while Gallia County’s Board of Elections budget is only $268,146.73.9 It is predictable the counties with larger budgets tend to be those containing more densely populated urban and suburban areas while those with smaller budgets and more part-time staff tend to be those encompassing rural areas.
The fact that resources are allocated so unevenly across Ohio Boards of Elections means that it will be more difficult for some election officials to implement the changes the Plaintiffs seek, than others. Those counties with larger budgets and more permanent or full-time staff will enjoy more efficient and orderly administration of the changes to election regulation. Other counties, which have
5 https://www.sos.state.oh.us/elections/elections-officials/county-boards-of-elections-directory/. 6 https://budget.franklincountyohio.gov/OMB-website/media/Documents/Budget/2020/2020Approved-Budget-Summary-Tables.pdf. 7 https://www.morganga.org/DocumentCenter/View/1387/DOC062217?bidId= (FY2018). 8 http://council.cuyahogacounty.us/pdf_council/en-US/2020-2021Budget/OldChartsAccount.pdf.
9
https://gallianet.net/images/Commissioners/Budget/2019%20general%20fund%20actual%20ove rview%20spreadsheet.pdf.
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smaller budgets and more part-time staff, might suffer more confusing

administration of the late changes to election law. Communicating the requested

changes to those Boards and making necessary modifications to the computer

hardware and software ensuring consistent implementation across the state would

pose a significant challenge to election administrators, especially under such a

compressed timeline.

CONCLUSION

For the foregoing reasons, Amicus Curiae respectfully requests this Court

deny the Plaintiffs’ Motion for Temporary Restraining Order.

Dated: April 2, 2020

/s/ Jason R. Stuckey Jason R. Stuckey (0091220) Bricker & Eckler LLP 201 E. Fifth Street, Suite 1110 Cincinnati, Ohio 45202 Telephone: 513-870-6700 Facsimile: 513-870-6699 jstuckey@bricker.com

and

/s/ Jason B. Torchinsky Jason B. Torchinsky Dennis W. Polio HOLTZMAN VOGEL JOSEFIAK TORCHINSKY 45 North Hill Drive, Suite 100 Warrenton, VA 20186 P: (540) 341-8808 F: (540) 341-8809 E: JTorchinsky@hvjt.law

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Counsel for Amicus Curiae Honest ElectionsProject CERTIFICATE OF SERVICE I hereby certify that the foregoing has been filed through the CM/ECF system which instantaneously sent a Notice of Electronic Filing (NEF) to all counsel required to be served. /s/ Jason R. Stuckey Jason R. Stuckey
18

 
 Case: 2:20-cv-01638-MHW-EPD Doc #: 52 Filed: 04/02/20 Page: 1 of 27 PAGEID #: 568

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

LEAGUE OF WOMEN VOTERS OF OHIO, et al, Plaintiffs, v.
FRANK LAROSE, et al, Defendants.

: : : Case No. 2:20-cv-1638 : : JUDGE WATSON : : : :

DEFENDANT STATE OF OHIO’S OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Defendant State of Ohio hereby responds to Plaintiffs’ Motion for a Temporary Restraining Order. The State respectfully requests that the Court deny Plaintiffs’ motion. A memorandum in support is attached.
Respectfully submitted, DAVE YOST Ohio Attorney General

/s/ Julie M. Pfeiffer JULIE M. PFEIFFER (0069762) ANN YACKSHAW (0090623) Associate Assistant Attorney General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 Julie.pfeiffer@ohioattorneygeneral.gov Ann.Yackshaw@ohioattorneygeneral.gov
Counsel for State of Ohio

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I. INTRODUCTION Elections in Ohio are conducted by statute, not by litigation. Elections conducted by
litigation invite special interest groups to intervene to plead for special benefits and pet causes. See, e.g., ODP Motion to Intervene, Doc. 25; LPO Motion to Intervene, Doc. 29; ORP Motion to Intervene, Doc. 32.1 But when elections are conducted by statute, one decision-making body makes one set of rules. And that is precisely what happened here: the Ohio General Assembly responded to a once-in-a-generation pandemic that shut down in-person voting for the 2020 presidential primary election. Changing Ohio’s existing election mechanics as little as possible, the General Assembly enacted House Bill 197, which provides a way for every voter who could have voted in person on March 17, 2020, to vote by absentee ballot.
But now, special interest groups and political parties knock on this Court’s door and ask for this new change and that new deadline. The General Assembly could have enshrined these groups’ policy preferences into statute in House Bill 197. It did not, and its enactment cannot be disturbed simply because these groups failed to get the policies they wanted. House Bill 197 must stand even if there are other alternatives that could have been enacted; even if there are better alternatives that could have been enacted.
There are only two questions in this case: (1) whether House Bill 197 violates federal law and (2) whether it violates the United States Constitution. The answer to both questions is an easy “no.” House Bill 197 does not violate the National Voter Registration Act’s requirement that states permit voter registration until 30 days before a federal election. Nothing about H.B. 197 changed
1 The Ohio Democratic Party and the Libertarian Party of Ohio also sought writs of prohibition against Secretary LaRose in the Supreme Court of Ohio. Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Mar. 17, 2020). Each party asked the Supreme Court to implement detailed election schedules and accompanying election procedures of its choosing. Five additional parties, including some of the plaintiffs here, filed amicus briefs, setting forth still other proposed election schedules and mechanics. See id.
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the date of the election from March 17, and Ohio indisputably allowed voter registration to occur until 30 days before that date. And as for Plaintiffs’ claim that House Bill 197 burden their right to vote, Plaintiffs cannot show any non-speculative burden on voting, much less a severe one. And any burden is more than justified by the State of Ohio’s interests in preventing the spread of an infectious disease, ensuring orderly elections, lessening the burdens on boards, and bringing the election to a close.
The merits of this case aside, it’s hard to imagine a temporary restraining order that would more drastically alter the status quo than the one sought here. Ohio’s boards of elections are diligently working to implement House Bill 197, and voters are complying. Plaintiffs here ask this Court to upend this system completely for just fourteen days. Fed. R. Civ. P. 65(b)(2). II. STATEMENT OF FACTS
Ohio’s presidential primary elections are set by statute. Ohio Revised Code 3501.01 defines a presidential primary election as a primary election “held for the purpose of choosing delegates and alternates to the national conventions of the major political parties pursuant to section 3513.12 of the Revised Code.” Ohio Rev. Code § 3501.01(E)(2). When “a presidential primary election is held, all primary elections shall be held on the third Tuesday after the first Monday in March.” Id. In 2020, the third Tuesday after the first Monday in March fell on March 17.
As March 17 approached, so too did the novel coronavirus named COVID-19. COVID19, a new strain of coronavirus that had not been previously identified in humans, is a respiratory disease that can result in serious illness or death. As the Director of the Department of Health, Dr. Acton has extremely broad authority to regulate the spread of infectious diseases like COVID-19, including making “special or standing orders or rules . . . for preventing the spread of contagious or infectious diseases.” Ohio Rev. Code § 3701.13. Since the first cases of COVID-19 were announced on March 9, Dr. Acton has made necessary use of her authority to curb the spread of
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COVID-19 in Ohio, including banning mass gatherings, closing K-12 schools, prohibiting visitors at nursing homes, shuttering bars and restaurants, and ordering most Ohioans to stay at home. See Public Health Orders, available at https://coronavirus.ohio.gov/wps/portal/gov/covid19/home/public-health-orders/public-health-orders. Dr. Acton’s orders noted that, while the coronavirus is most contagious when carriers are symptomatic, spread can occur before a carrier shows symptoms. See id.
The coronavirus posed obvious risks to in-person voting, where asymptomatic virus carriers could nonetheless spread the virus to voters and often elderly poll workers. Older adults are at a higher risk of infection, serious complications, ICU admission, and death from COVID19. Dr. Acton recommended that elderly Ohioans remain at home on March 17 and not report to the polls. Secretary LaRose Press Release, available at https://www.ohiosos.gov/mediacenter/press-releases/2020/2020-03-16/.
Two elderly Ohioans, citing Dr. Acton’s recommendation to remain at home, sued Secretary LaRose to halt the election but failed to obtain emergency relief. See Reardon v. LaRose, No. 20 CV 002105 (F.C.C.P. Mar. 16, 2020). The court ruled that postponing or extending voting was the statutory duty of the General Assembly, not a state trial court. Thus, late on March 16, without some state intervention, the election would have proceeded in a matter of hours, bringing hundreds of voters together in small polling places across the State. Finding the increased risk of transmission of COVID-19 medically untenable, Dr. Acton issued the following order late Monday evening approximately two hours after the denial of the TRO:
Accordingly, to avoid an imminent threat with a high probability of widespread exposure to COVID-19 with a significant risk of substantial harm to a large number of people in the general population, including the elderly and people with weakened immune systems and chronic medical conditions, I hereby ORDER all polling locations in the State of Ohio closed on March 17, 2020. This Order shall take effect immediately and remain in full force and effect until the State of Emergency
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declared by the Governor no longer exists, or the Director of the Ohio Department of Health rescinds or modifies this Order. Closure of the Polling Locations in the State of Ohio on Tuesday March 17, 2020, available at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/order-to-closepolling-locations-3-16-2020. When Dr. Acton issued her order on the evening of March 16, the time for requesting an absentee ballot had passed. For most voters, Saturday, March 14, 2020, was the deadline to request an absentee ballot by mail. Ohio Rev. Code § 3509.03(D).2 Likewise, early in-person voting at the county boards of elections had concluded at 2:00 p.m. earlier that day. Ohio Rev. Code § 3509.051; Directive 2019-28 § 1.04. Due to the Director’s order, Ohio’s polling places could not open at 6:30 a.m. on March 17, 2020, as contemplated by Ohio Rev. Code §§ 3501.01(E)(2) and 3501.32(A). Thus, registered Ohio voters who had not cast absentee ballots either by mail or in person and planned to vote at their polling place on election day had no remaining alternative method to vote.3 And without some state action, the boards could have begun tabulating votes after 7:30 p.m. on March 17—even though no in-person could occur. In response, Secretary LaRose issued Directive 2020-06 on March 16. This directive prevented the boards from tabulating votes and suspended in-person voting in the primary election until June 2, 2020. Secretary LaRose ordered boards of elections to accept absentee ballot applications until Tuesday, May 26, 2020, and to count any absentee ballot postmarked by June 1, 2020, and received by the boards no later than June 12, 2020.
2 Unexpectedly hospitalized voters can request absentee ballots until 3:00 p.m. on election day. Ohio Rev. Code § 3509.08. 3 Approximately 7.2 million registered voters fall into this category. Ohio Democratic Party v. LaRose, No. 2020-0388, LaRose Merit Brief Grandjean Aff. (Ohio Mar. 25, 2020).
4

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March 17, 2020, proceeded with the Director’s order in effect. The polls were closed and
there was no in-person voting that day.4 Due to Directive 2020-06, the boards did not tabulate
election results that evening but proceeded under the schedule set forth in that directive.
Litigation immediately followed. The Ohio Democratic Party sought a writ of prohibition
preventing Secretary LaRose from implementing Directive 2020-06 and proposed an election
schedule nearly identical to the schedule adopted by the General Assembly in House Bill 197.5
Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Mar. 17, 2020). The Libertarian Party
of Ohio intervened in the prohibition action, proposing yet another election schedule.6 See id.
Meanwhile, the only entity in the State of Ohio with the authority to set election dates—
the General Assembly—had not yet spoken. The General Assembly went into session and
unanimously passed House Bill 197 on March 25, 2020. The bill provides as follows:
• Secretary of State Directive 2020-06 is void.
• Boards of elections may not count any ballots cast in the March 17, 2020, primary election until April 28, 2020.
• Boards may not count any absentee ballots submitted by voters who were not registered before February 18, 2020.
• Secretary of State Frank LaRose must “send a postcard to each registered elector in this state, notifying the elector of the methods by which the elector may obtain an application for absent voter's ballots, the procedures and deadlines to apply for absent voter's ballots under this section, and the procedures and deadline to return voted ballots to the office of the board of elections under this section.”
4 A judicial candidate filed a writ of mandamus in the Ohio Supreme Court seeking to force the Secretary to proceed with in-person voting. The Supreme Court denied the writ. Speweik v. LaRose, No. 2020-0832, 2020-Ohio-997 (Ohio Mar. 17, 2020). 5 The Ohio Democratic Party requested an absentee-ballot cutoff of April 28, 2020, but also wanted Secretary LaRose to mail absentee ballot applications to all registered voters who had not yet voted. See Compl. Ex. A Proposed Order, Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Mar. 17, 2020). 6 The Libertarian Party of Ohio preferred an absentee-ballot cutoff of May 8, 2020. It agreed that Secretary LaRose should be ordered to mail absentee ballot applications to voters. See Compl. Prayer for Relief, Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Mar. 19, 2020).
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• Voters registered by February 18, 2020, and who had not already voted in the March 17 primary election, are permitted to request absentee ballots until April 25.
• Boards of elections must count absentee ballots from voters registered by February 18, 2020, and who had not already voted in the March 17 primary election if the voter return the absentee ballot to the boards of elections by 7:30 p.m. on April 28, 2020, or by May 8, 2020, if submitted by mail and postmarked by April 27, 2020.
• Disabled voters and voters unable to receive mail may vote in person at the county boards of elections on April 28, 2020 until 7:30 p.m.
See generally H.B. 197 § 32. Again, every Republican and Democratic legislator in both houses of the General Assembly voted for House Bill 197. See House Bill 197 Votes, available at https://www.legislature.ohio.gov/legislation/legislation-votes?id=GA133-HB-197. Secretary LaRose rescinded Directive 2020-06, Governor DeWine signed House Bill 197 on March 27, and it went into effect immediately.
The passage of House Bill 197 ultimately resolved the prohibition case pending against the Secretary of State in the Ohio Supreme Court. See Ohio Democratic Party v. LaRose, No. 20200388, 2020-Ohio-1253 (Ohio Mar. 31, 2020). With House Bill 197 adopting its preferred election schedule, the Ohio Democratic Party moved to dismiss its complaint in prohibition. The Libertarian Party of Ohio, which preferred a more extended election schedule, did not. But the Ohio Supreme Court found that the Libertarian Party’s prohibition claim was mooted when Secretary LaRose rescinded Directive 2020-06. See id.7
On March 30, Plaintiffs brought a two-count complaint against Secretary LaRose, alleging that House Bill 197 (1) violates the National Voter Registration Act and (2) violates the First and Fourteenth Amendments of the United States Constitution. Plaintiffs seek emergency relief, including an order setting a new, but unspecified, primary date. Plaintiffs also seek an order
7 This Court instructed the parties to address “whether the writ of prohibition currently pending in the Supreme Court of Ohio has any impact on this litigation.” Doc. 14 at PageID 190. That case has been dismissed and no longer poses any risk of an inconsistent judgment.
6

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forcing Secretary LaRose to, among other things, mail all registered voters who have not yet voted in the March 17 primary “a primary ballot for each party” (i.e., Republican, Democrat, Libertarian, and presumably issues-only) with a return envelope, postage pre-paid, and to permit anyone who registers to vote 30 days before the new primary date to receive and complete an absentee ballot. III. LAW AND ARGUMENT
A. Legal Standard. To obtain a temporary restraining order, Plaintiffs must show: (1) it has a strong likelihood of success on the merits; (2) it would suffer irreparable injury absent the TRO; (3) issuance of a TRO would not cause substantial harm to others; and (4) the public interest would be served by issuance of a TRO. See Project Vote v. Madison Cnty. Bd. of Elections, 2008 U.S. Dist. LEXIS 74016, at *18-19 (N.D. Ohio Sept. 29, 2008); see also Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). The standard for granting a TRO matches the standard for a preliminary injunction “with emphasis, however, on irreparable harm given that the purpose of a TRO is to maintain the status quo.” Doe v. Univ. of Cincinnati, 2015 U.S. Dist. LEXIS 132864, at *3 (S.D. Ohio Sept. 30, 2015). The movants bear the burden of establishing their claim to a TRO, which “should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009) (citations omitted). Here, the request for TRO must be considered in the elections context, where courts understand that “States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). Accordingly, the State’s power to regulate its own elections—a power specifically reserved to it in the Constitution—is “substantial.” Storer v. Brown, 415 U.S. 724, 730 (1974).
7

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B. Plaintiffs Cannot Show Likelihood of Success on The Merits. 1. Plaintiffs’ claim under the National Voter Registration Act is likely to fail.8
Plaintiffs’ NVRA claim stands on a faulty premise – that the 2020 presidential primary election was moved to April 28, 2020. Doc. 4 at 3. Using this faulty premise, Plaintiffs claim that more than two thousand individuals who submitted voter registration applications between February 18 and March 13 should now be registered and permitted to cast a vote, even though they missed the statutory February 18, 2020 deadline for voter registration in the 2020 presidential primary election. Id. at 3, Exhs. A and B. Plaintiffs offer no legal support for their novel claim.
The National Voter Registration Act provides that “each State shall insure that any eligible applicant is registered to vote in a[ federal] election … not later than the lesser of 30 days, or the period provided by State law, before the date of the election.” 52 U.S.C. § 20501(a)(1)(A)-(D). The NVRA defines “election” in relevant part as “a general, special, primary, or runoff election.” 52 U.S.C. § 30101(1)(A).
Ohio provides statutorily defined times for all of these types of elections. For example, under Ohio Rev. Code § 3501.01(A), a “general election” is “the election held on the first Tuesday after the first Monday in each November.” A “special election” is “any election other than those elections defined in other divisions of this section. A special election may be held only on the first Tuesday after the first Monday in May, August, or November…”. Ohio Rev. Code § 3501.01(D). A primary election, and in particular, a presidential primary election, “shall be held on the third
8 To the extent Plaintiffs’ reading of the NVRA “displace[s Ohio’s] voter qualifications or dictate[s] what evidence [Ohio] may consider in deciding whether those qualifications have been met,” their interpretation raises “serious constitutional problems.” Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1850 (Thomas, J., concurring). The State of Ohio preserves its argument that Plaintiffs’ reading of the NVRA is unconstitutional, or at the very least, should be avoided because of serious constitutional concerns. See id.
8

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Tuesday after the first Monday in March except as otherwise authorized by a municipal or county charter.” Ohio Rev. Code § 3501.01(E)(2).
In Ohio, the 2020 presidential primary election is March 17, 2020, which is the “third Tuesday after the first Monday in March” as provided for by Ohio Rev. Code § 3501.01(E)(2). In accordance with the NVRA, voter registration closed on February 18, 2020, thirty days before the March 17 Presidential Primary Election. Plaintiffs’ claim that H.B. 197 moved or reset the 2020 presidential primary election to April 28, 2020, and therefore, voter registration must be retroactively opened from February 18 through March 29, 2020 is wrong. None of the events that occurred either immediately before or after March 17 changed the date of the 2020 presidential primary election. First, on March 16, 2020, Dr. Acton closed all polling locations in order to slow the spread of COVID 19. She did not cancel the election. The Director’s authority under Ohio Rev. Code § 3701.13 extended to the closure of polling places to contain the spread of an uncured, highly contagious disease. She exercised that authority on the evening of March 16, 2020 when she closed all polling locations.
Secretary LaRose did not cancel or move Ohio’s 2020 presidential primary election either. Secretary LaRose issued Directive 2020-06 to allow voting beyond the scheduled election date of March 17, 2020, to prevent the disenfranchisement of millions of Ohioans. The directive instructed the county boards of elections how to continue to conduct a constitutional primary election by ordering them not to tabulate votes and to continue to accept absentee-ballot applications and completed ballots. Further, the Directive instructed the boards how to address the closure of the polls on March 17, which would have resulted in widespread disenfranchisement. The directive did not cancel the election. It provided additional opportunities for voting when the polls had to be closed on March 17.
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Finally, on March 25, 2020, the Ohio General Assembly unanimously passed, and
Governor DeWine signed into law H.B. 197. H.B. 197 extends absentee voting in the March 17,
2020 primary election through April 28, 2020. H.B. 197 § 32(C)(3), (D). Electors who have not
already cast a ballot in the election, and who were registered to vote in Ohio as of the February 18
deadline, may cast absentee ballots through April 28. Id. §32(C)(3). Importantly, H.B. 197 did
not cancel or reset the 2020 presidential primary election to April 28, 2020, as wrongly argued by
the Plaintiffs. All votes already cast in the 2020 presidential primary election are being held and
will be counted at the conclusion of the election. Id. § 32(B). The statute itself shows that the
election’s date did not change, repeatedly referring to the March 17 primary:
(B) During the period beginning on the effective date of this section and ending at 7:30 p.m. on April 28, 2020, no board of elections, and no election official, shall do any of the following:
(1) Count any ballots cast in the March 17, 2020, primary election, or in any special election held on the day of the primary election;
*** (C)(1)(a) An elector who has not already cast a ballot in the March 17, 2020, primary election, or in any special election held on the day of the primary election, and who was registered to vote in this state as of February 18, 2020, may vote in that election in accordance with this section.
*** (G) The boards of elections and the Secretary of State shall complete the unofficial count, the canvass of the election returns, and all other post-election procedures with respect to the March 17, 2020, primary election, and any special election held on the day of the primary election, on the dates provided in the Revised Code, except that each deadline shall be calculated by adding 42 days.
See H.B. 197 § 32. H.B. 197 simply extended absentee voting through April 28, 2020.
In compliance with the NVRA, Ohioans were able to register to vote until February 18,
which was 30 days prior to an election. Ohio Rev. Code § 3503.06(A). Because H.B. 197 only
extended absentee voting through April 28, and did not legislate a “re-do” of the primary election,
it did not re-open voter registration. H.B. 197 § 32(B), (C)(3). Accordingly, the NVRA does not
entitle Plaintiffs to a retroactive reopening of the voter resignation deadline. 10

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Unfortunately, Ohio’s need to modify its election due to a statewide emergency is not unique. Over the years, states natural disasters and other public emergencies such as Hurricane Katrina in 2006, Hurricane Sandy in 2012, and the terrorist attacks of September 11, 2001, have interfered with election schedules. See Morley, Michael T., Symposium: Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 Emory L.J. 545 (2018). States that faced these disasters have fallen into three paradigms: election modifications, election postponements, and election cancellations. Id. at 548. In an “election modification,” a state “accepts as valid everything that transpired before an election emergency arose and simply authorizes additional methods of, or time for, voting.” Id. (emphasis added). Similarly, in an “election postponement,” “an election scheduled for a particular date is held on a different day while holding constant as much as possible, including the identities of the candidates running, the people entitled to vote, and potentially even the candidates’ spending.” Id. (emphasis added). On the other hand, an “election cancellation” entirely nullifies the originally scheduled election with the expectation that a new election will be held at some point in the future. Id. at 550. When a state cancels an election, as opposed to modifying or postponing an election, “critical components of the election are determined entirely anew rather than attempting to hold them constant from the originally scheduled election.” Id. (emphasis added).
Ohio’s extension of absentee voting until April 28 falls into the election-modification paradigm. Plaintiffs have offered no legal support for their theory that a modification amounts to an entirely new “election,” which triggers the voter registration provision of the NVRA. To the contrary, New York employed a similar election modification in response to the terrorist attacks on September 11, 2001, where it also statutorily defined voter eligibility in the modified scheme without offending the NVRA. New York passed a statute which “attempted to minimize the consequences of the disruption by providing that only people who were eligible to vote in the
11

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original primaries would be permitted to vote in the rescheduled elections.” Id. at 554. New York also, “permitted people to request absentee ballots, however, even if they had not submitted such requests for the original September 11 election.” Id. Like New York’s election modification in the wake of the terrorist attacks of September 11, 2001, H.B. 197 simply modifies the already scheduled March 17, 2020 presidential primary to extend absentee ballot voting through April 28, 2020. In such situations, the NVRA does not mandate the retroactive re-opening of voter registration.9
Further, Plaintiffs’ reliance on Ga. State Conf. of the NAACP v. Kemp, No. 1:17-cv-1397, 2018 WL 2271244 and Ariz. Democratic Party v. Reagan, No. CV-16-03618-PHX-SPL, 2016 WL 6523427 (D.C. Ariz. Nov. 3, 2016) to argue that Ohio’s modification of the 2020 presidential primary election must also come with an extension of the voter registration deadline under the NVRA falls flat. Doc. 4 at 14. In Georgia State Conference, the NAACP challenged a Georgia statute setting a voter registration deadline that for a subsequent runoff election in its primary. The parties ultimately agreed to a Consent Decree recognizing the obvious, that “runoffs” are specifically included in the definition of “election” in the NVRA. Ga. State Conf., at ECF Doc. 42. See 52 U.S.C. § 30101(1)(A).
Arizona Democratic Party is equally inapposite. There, Arizona miscalculated its voter registration deadline due to an intervening holiday, causing the state to close its registration one day early. 2016 WL 6523427 at 6. The Court ruled that, while the one-day discrepancy did not severely burden voting from a constitutional perspective, it technically violated the NVRA. Id. at 43. Here, Ohio closed voter registration thirty days before the March 17 primary election. Nothing
9 In fact, if Plaintiffs’ theory were correct, every time elections officials or a court holds open a polling place for an hour, it would also have to retroactively extend voter-registration by an hour as well. Boards of elections would need to review their files to determine if someone registered to vote just after the voter-registration deadline had closed.
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in NAACP or Arizona Democratic Party remotely relates to the circumstances found here, and they provide absolutely no legal support for Plaintiffs’ NVRA claim.
Finally, H.B. 197 and the events leading up to its enactment posed no barriers to voter registration. While Ohio’s ramp up to prevent the spread of COVID-19 started in early January, the Ohio Department of Health did not issue its first order limiting Ohioans’ daily activities until March 12, 2020, when it prohibited mass gatherings in the State of Ohio. This was nearly one month after the February 18 deadline to register to vote in the upcoming primary. As such, Plaintiffs cannot legitimately claim that the fight against COVID-19 actually caused barriers to an individual’s ability to timely register to vote. Accordingly, for all of the reasons set forth above, Plaintiffs’ NVRA claim fails, and their request for a temporary restraining order must be denied.
2. Plaintiffs’ First and Fourteenth Amendment claims are likely to fail. Anderson-Burdick standard. When considering challenges to state election laws under the First and Fourteenth Amendments, the Court must first weigh the “character and magnitude” of the asserted injury to the rights protected by those amendments, i.e., the right to vote. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). The Anderson-Burdick test weighs the burden on voting from the perspective of the affected electors, taking into account the whole range of voting opportunities the state provides. See Mays v. LaRose, No. 19-4112, 2020 U.S. App. 6673 (6th Cir. Mar. 3, 2020). Thus, if the affected voters have or had alternative voting opportunities, the burden will not be severe. See id. Once it has established the burden on voting, the Court weighs the precise interests put forward by the State as justifications for the burden, taking into consideration the extent to which those interests make it necessary to burden the Plaintiff’s rights. Id. As the burden on voting increases, so too must the regulation’s importance in promoting the State’s interests. For severe burdens, the regulation must advance a compelling State interest
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in a narrowly-drawn manner. This test resembles that of strict scrutiny. See Ohio Council 8 Am. Fed’n of State, Cty. & Mun. Emps. v. Husted (AFSCME), 814 F.3d 329, 335 (6th Cir. 2016). When the burden on voting is only “moderate,” the State’s interest in orderly election administration is sufficient to justify that burden. See Mays, 2020 U.S. App. LEXIS 6673, at *18-21. And finally, “the State’s important regulatory interests are generally sufficient to justify” reasonable and generally-applicable restrictions. Anderson, 460 U.S. at 788.
Last month, the Sixth Circuit addressed an Anderson-Burdick claim strikingly similar to this one. See Mays v. LaRose, No. 19-4112, 2020 U.S. App. LEXIS 6673 (6th Cir. Mar. 3, 2020). Like Plaintiffs, the plaintiffs in Mays failed to take advantage of Ohio’s early voting opportunities and later found themselves unable to vote on election day when circumstances unexpectedly changed. In Mays, the plaintiffs were arrested after the deadline to request absentee ballots and were held in detention through election day. Because plaintiffs had no avenue to vote on election day, they challenged the constitutionality of Ohio’s absentee-ballot deadline. Although it agreed that unexpected circumstances prevented the plaintiffs from voting in person on election day, the Sixth Circuit found that the burden on voting was “moderate.” Id. at *15. In assessing the burden on voting, the court took into account “the alternative voting opportunities Ohio provides,” including “all voting opportunities Plaintiffs could have taken advantage of, even if they were no longer a possibility at the time of the election.” Id. The Sixth Circuit found that the State’s interest in orderly election administration justified any burden imposed by the challenged law.
Burden on voting. Here, Plaintiffs cannot even articulate the “moderate” burden on voting found in Mays. Plaintiffs do not account for Mays in their motion and do not explain why the burden here exceeds, or even equals, the “moderate” burden in that case. True, like the plaintiffs in Mays, Plaintiffs here were not able to vote in person on March 17 under Dr. Acton’s order closing polling locations. But unlike the plaintiffs in Mays, the General Assembly specifically
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extending voting opportunities for the Plaintiffs: it extended the absentee-ballot deadline until
April 28 and allowed disabled voters and other voters who cannot vote by mail to vote in person
at the boards of elections. These additional opportunities, when combined with all the early voting
opportunities available to Plaintiffs before March 17, result in an even lower burden than the
“moderate” burden in Mays.
Plaintiffs “fear” that voting might prove difficult, but they can only speculate that they will
be burdened or harmed by House Bill 197. See Lee Aff., Doc. 4-6; Mostafa Aff., Doc. 4-8;
Rodriguez Aff., Doc. 4-9; Jeter Aff., Doc. 4-12; Riley Aff., Doc. 4-13. First, Plaintiffs’ complaint
that House Bill 197 unduly compresses the voting period is exaggerated. Plaintiffs list eight steps
that must proceed in sequence, beginning with the Secretary’s postcard mailing. Doc. 4 at PageID
39. But no voter needs to wait to receive the Secretary’s postcard to begin the absentee-ballot
process, and widespread publicity already alerted many voters to House Bill 197. Declaration of
Gov. Taft at ¶ 15. That leaves ample time—more than four weeks—to (1) apply for the appropriate absentee ballot,10 (2) process the application, (3) receive the ballot in the mail, and (4) complete
10 Plaintiffs note that the states that have developed mail-only elections automatically mail absentee ballots to registered voters without requiring voters to apply and demand that Secretary LaRose do likewise. Doc. 4 at PageID 44-45. But these states also developed certain partyaffiliation requirements—absent from Ohio—to fit that process. In Hawaii, for example, the Democratic Party of Hawai’i mails presidential primary ballots only to voters who have already enrolled in the party. See Democratic Party of Hawai’i https://hawaiidemocrats.org/join/ (the party runs the state’s presidential primary election). And in Oregon, “the county clerk shall mail the official ballot of a major political party to each elector who is registered as being affiliated with the major political party as of the 21st day before the date of the election.” Or. Rev. Stat. § 254.470(3)(a) (Oregon provides unaffiliated voters opportunities to request parties’ primary ballots as well). Washington has an open primary, where all candidates for office, regardless of party affiliation, appear on all voters’ primary ballots. Wash. Rev. Code § 29A.52.112. Only Colorado allows the mailing of multiple ballots to voters, but Colorado, unlike Plaintiffs here, specifically legislated for the possibility that voters would return multiple ballots. Colo. Rev. Stat. § 1-4-101(2). These states’ election mechanics complement their vote-by-mail systems. Boards of elections do not have to guess which primary ballots to send voters; nor do they send four ballots
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and return the ballot. Id. Voters and boards have a week to complete each step, with time left over to account for mailing delays and to correct mistakes. And this does not count the time between March 17 and the passage of House Bill 197, during which voters could have submitted absenteeballot requests. With time built into each step in the process, plaintiffs’ fears that they will run out of time to vote are simply unsubstantiated. See, e.g., Regan v. Vinick & Young, 862 F.2d 896, 902 (1st Cir. 1988) (“Speculation or unsubstantiated fears about what may happen in the future cannot provide the basis for a preliminary injunction.”); NACCO Material Users, Inc. v. Toyota Materials Handling USA, Inc., 246 F. App’x 929, 943 (6th Cir. 2007) (same).
Plaintiffs also claim they will not be able to mail their absentee-ballot applications because they cannot access a printer. Lee Aff., Doc. 4-6; Mostafa Aff., Doc. 4-8; Rodriguez Aff., Doc. 49. Access to a printer is immaterial; no voter needs to print an application to vote. Ohio Rev. Code § 3509.03(B) (noting that an application for an absentee ballot “need not be in any particular form”). Voters can call their boards of election to request an application. See 2020 Primary FAQs, available at https://www.sos.state.oh.us/elections/voters/2020-primary-frequently-askedquestions/. The only plaintiff who chose this option was able to request an absentee ballot application by telephone. Flanagan Moore Aff., Doc. 4-7. Alternatively, voters can simply write down all the information that must be included in an absentee-ballot application, see Ohio Revised Code § 3509.03(B), on any available piece of paper and mail it to the boards. No one will be prevented from voting due to lack of printer access. Plaintiffs are correct that a stamp is required,
to every voter. Ohio’s party-affiliation system is simply different. Ohio allows primary voters to select a party or issues-only ballot at the time of voting, and it allows voters to switch freely between the parties from election-to-election. Ohio Rev. Code § 3509.03(B)(8); Ohio Election Official Manual, Directive 2016-06 Ch. 13 § 1.01. Ohio’s laws, therefore, require different mechanics than the other states. Ohio’s absentee-ballot application alerts the boards of elections which ballot style should be mailed to the voter.
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but stamps are widely available for purchase online and at post offices, shipping centers, supply stores, grocery stores, and ATMs. Plaintiffs do not say they don’t know how to or cannot acquire stamps before the end of April.
State’s interests. The State’s interest in conducting the March 17 primary, to the greatest extent possible, through absentee voting is simple: it seeks to save Ohioans’ lives. No one disputes Dr. Acton’s conclusion that in-person voting carries “a high probability of widespread exposure to COVID-19.”11 Further, Ohioans have been instructed to remain at home. So, the General Assembly curtailed in-person voting as much as possible, including only disabled voters and voters unable to receive mail. For these voters, voting by mail is difficult, perhaps impossible, and a requirement that they vote by mail could amount to a ban on voting. For everyone else, the need to stop the spread of COVID-19 more than justifies the elimination of in-person voting for the March 17 primary.
The State also has an interest in minimizing disorder and easing the burdens on the boards of elections. House Bill 197 allows the boards to continue to use an absentee-balloting system that the boards already have in place and use for every single election: processing absentee ballot applications, sending absentee ballots, and counting ballots as they come in. See Mays, 2020 U.S. App. LEXIS 6673, at *19-20. True, the volume will greatly exceed past numbers, but the boards already have processes in place and plans to handle the influx of requests. See, e.g., Directive 2020-07 (giving the boards instructions on complying with H.B. 197).

11 It will take months, if not years, to calculate the effect of in-person primaries on the spread of

COVID-19. But it bears mentioning that Michigan reported a strong uptick in COVID-19

infections—far exceeding Ohio’s—beginning 9 days after its March 10 in-person primary election.

Laura Johnston, “Ohio has 351 coronavirus cases, compared to 1,035 in Michigan: Compare

timeline

of

restrictions,”

Cleveland.com,

available

at

https://www.cleveland.com/news/2020/03/compare-coronavirus-cases-in-ohio-michigan.html.

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Plaintiffs’ proposal, on the other hand, would force boards to create entirely new processes on the fly, including at least (1) compiling a list of voters who have not yet voted in the primary, (2) mailing, for the first time in Ohio history, four different ballot styles (Republican, Democrat, Libertarian, and issues-only) to every voter identified above, (3) creating a new set of instructions to mail with the four ballot styles to inform voters to complete only one of the four ballots, and (4) creating an in-person provisional voting process for voters who have received absentee ballots but still need to vote in person. With four ballots per voter in circulation, boards will have to implement additional processes to prevent fraud (e.g., someone else filling out a voter’s unused ballots), to determine which ballot to count when some voters inevitably complete multiple, and to protect the integrity of the election. Taft Decl. ¶¶ 10-12.
Finally, the State has an interest in concluding the March 17 primary as expeditiously as possible, while ensuring that everyone who was eligible to vote on March 17 can vote. As more time elapses between the March 17 primary and its conclusion, more Ohio voters might change addresses, names, or even pass away, leading to additional logistical complications for the boards. See, e.g., Rodriguez Aff., Doc. 4-9.
Under the Anderson-Burdick test, Plaintiffs here cannot even articulate a moderate burden on the right to vote. And on the other side of the ledger, the State’s interests include stopping the spread of COVID-19 and saving lives, minimizing the burden on the boards of elections by keeping an already developed process, and preserving the integrity of the election by bringing it to an expeditious end. These interests more than justify any speculative burden on voting.
3. The April 28, 2020 conclusion to the election does not impose an undue burden on voting as opposed to Secretary LaRose’s plan in Directive 2020-06.12
12 “Defendant’s response shall specifically include the State’s interests that justify the burden on voting rights imposed by the establishment of an April 28, 2020 deadline for absentee voting (as
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House Bill 197’s absentee voting plan to conclude the 2020 presidential primary election by April 28, 2020 imposes no higher burden on voting that the plan suggested by Secretary LaRose that would have concluded the election on June 2, 2020. See Letter of Secretary of State Frank LaRose to All Members of the Ohio General Assembly dated March 21, 2020 available at https://www.ohiosos.gov/globalassets/media-center/news/2020/2020-0321_lettertolegislators.pdf To be clear, the absentee voting plan set forth in Secretary LaRose’s now rescinded Directive 2020-06, which he advocated before the Ohio General Assembly in his March 21, 2020 letter, is not the same absentee voting plan that the General Assembly passed into law through H.B. 197. Because they are fundamentally different plans, they contain fundamentally different conclusion dates. The Directive 2020-06 plan for absentee voting required Secretary LaRose “to produce and mail a postage paid absentee ballot request form to every eligible Ohio voter who did not cast a ballot during Ohio’s early voting period from February 18 through March 16 and to pay the postage for the voter to return their ballot.” Id. The following steps would have been required: Secretary LaRose would have needed to develop a mailing piece, hire a vendor to print it, create a list of voters who had not yet voted, and create individualized postage-paid return envelopes for each of the 7.2 million voters that corresponded to the voter’s particular board of elections. See Ohio Democratic Party v. LaRose, No. 2020-0388, LaRose Merit Brief Grandjean Aff. (Ohio Mar. 25, 2020). It was this rejected plan coupled with a day of in person voting that Secretary LaRose asserted he could not complete before June 2, 2020. Id.
The Ohio General Assembly took a different approach in H.B. 197, utilizing postcards instead of mailing pre-printed ballot requests and envelopes to all of the nearly 7.2 million eligible Ohio voters who did not cast a ballot during the early voting period. H.B. 197 is arguably more
opposed to Defendant’s original suggestion of a June 2, 2020 deadline for absentee voting).” Doc. 14 at PageID 189.
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efficient, more streamlined, and less time consuming than the plan articulated in Directive 202006 and LaRose’s letter, thus lending itself to a quicker conclusion to the 2020 presidential primary election. Moreover, by avoiding an in person vote on June 2, 2020, H.B. 197 provides a safer and swifter end to the election.
C. Plaintiffs Have Not Shown That, Absent A TRO, They Will Be Irreparably Harmed.
Plaintiffs correctly note that “a restriction on the fundamental right to vote . . . constitutes irreparable injury.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). And they claim that House Bill 197 will irreparably harm them because they are “at a serious risk” of not being able to vote. But as set forth above, Plaintiffs’ claim of potential disenfranchisement depends upon key misinterpretations of House Bill 197, as well as several layers of speculation unsupported by any evidence. See, e.g., Regan v. Vinick & Young, 862 F.2d 896, 902 (1st Cir. 1988) (“Speculation or unsubstantiated fears about what may happen in the future cannot provide the basis for a preliminary injunction.”); NACCO Material Users, Inc. v. Toyota Materials Handling USA, Inc., 246 F. App’x 929, 943 (6th Cir. 2007) (same).
D. The Balance of Equities Weighs Heavily in The State’s Favor. Plaintiffs incorrectly assert that the only potential harm in their requested TRO is the cost and administrative burden of compliance. Doc. 4 at PageID 54. Additionally, Ohio’s interests “will suffer if the Court takes away the Ohio General Assembly’s prerogative” to set the State’s election schedule. Libertarian Party of Ohio v. Husted, No. 2:13-cv-953, 2014 U.S. Dist. LEXIS 49841, at *34. This Court has already said that it “does not intrude upon the Ohio legislature’s prerogative lightly,” and that this factor weighs in favor of denying the TRO. Id. at *35.
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E. The Public Interest Does Not Favor the Entry of a TRO Adopting Yet Another Election Schedule.
It is well-settled that the public interest does not favor the alteration of election processes in the weeks leading up to an election. In Purcell v. Gonzalez, 549 U.S. 1 (2006), the Supreme Court vacated an injunction preventing Arizona’s voter identification laws from taking effect just before a general election. The Court concluded that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.” Id. at 4-5; see also SEIU Local 1 v. Husted, 698 F.3d 341, 345-46 (6th Cir. 2012) (noting that the public interest strongly disfavors last-minute changes to election procedures). Thus, where relief cannot be granted without serious disrupting the State’s election process, it must be denied. See Williams v. Rhodes, 393 U.S. 23, 24 (1968). In Williams, the Supreme Court upheld the district court’s determination that a political candidate should remain off of the ballot and rejected his party’s request to issue a separate set of ballots. Id. at 24. Notably, the Court held that “the confusion that would attend to such a last-minute change poses a risk poses a risk with the rights of other Ohio citizens, for example, absentee voters.” Id.
Relying on this precedent, in Veasey v. Perry, the Fifth Circuit Court of Appeals stayed a district court’s order enjoining Texas’ voter ID law on the eve of the election. Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014). The Court noted that it was not “a run-of-the-mill case; instead, it is a voting case decided on the eve of an election.” Id. at 893. Because the judgment below “substantially disturb[ed] the election process of the State [] just nine days before early voting [was to begin]”, the court held that “the value of preserving the status quo” was much higher there than in other contexts and stayed the lower court’s injunction. Id.; see also Spirit Lake Tribe v. Jaeger, 2018 U.S. Dist. LEXIS 186993 (N.D.N.D. Nov. 1, 2018) (“The federal courts are unanimous that
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is highly important to preserve the status quo when elections are fast approaching.” (citing Purcell,

549 U.S. 1; Williams, 393 U.S. 23)).

In so holding the Fifth Circuit recognized that “[t]he Supreme Court has continued to look

askance at changing election laws on the eve of an election.” Veasey, 769 F.3d at 894. For support,

the Court noted three cases in which the Supreme Court halted decisions “that would have altered

the rules of the [election] just before it [began].” Id. (citing Frank v. Walker, 135 S. Ct. 7 (2014);

North Carolina v. League of Women Voters of North Carolina, 135 S. Ct. 6 (2014); Husted v. Ohio

State Conference of N.A.A.C.P., 135 S. Ct. 42 (2014)). It noted that, although the Supreme Court

did not explain its reasoning for the stays, “the common thread is clearly that the decision of the

Court of Appeals would change the rules of the election too soon before the election date.” Id.

Critically, “the timing of the decisions, rather than their merits seems to be the key.” Id. Thus,

even where the challenged law is found to be invalid, when an election is imminent, and the

“State’s election machinery is already in progress, equitable considerations might justify a court

withholding the granting of immediate relief.” Id. (quotation omitted).

Ohio’s election laws provide certainty to Ohio voters, candidates, and boards of elections.

Every year, the Secretary of State posts an election calendar on his website so that deadlines and

legal requirements are widely publicized. See13 2020 Ohio Election Calendar, available at:

https://www.sos.state.oh.us/globalassets/publications/election/2020electioncalendar_12x18.pdf.

Further, he uses his authority to issue Directives to instruct Boards as to how to implement

elections and comply with Ohio law.

See, e.g., id., available at:

https://www.sos.state.oh.us/elections/elections-officials/rules/. Boards rely on the Secretary’s

direction and are required to follow it. Ohio Rev. Code § 3501.11; see also Taft Decl. at ¶ 14.

13 All websites cited herein, last visited April 2, 2020. 22

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Changes to that direction via a court order can only exacerbate the confusion that has thus far run rampant.14
It is truly unavoidable that Ohio is now on its third schedule for completing the primary
election. First, Ohio voters and boards of elections were operating under the election schedules
set forth in Ohio law and published on the Secretary’s elections calendar. Next, Ohio voters and
boards were operating under the schedule set forth in Directive 2020-06 due to the closure of the
polls. Now, the General Assembly has exercised its legislative prerogative and enacted H.B. 197,
ending the confusion. The Bill is effective. The Secretary of State has instructed all of Ohio’s 88
county boards how to comply with it. See Directive 2020-07. Even the Plaintiffs are publicizing
its requirements. See “Covid-19 & the 2020 Elections,” League of Women Voters, available at
https://www.lwvohio.org/covid-19-elections. H.B. 197 ends the chaos and offers Ohio voters and
boards a certain path forward for completing Ohio’s 2020 primary.
But, a new source of confusion has cropped up: this lawsuit. See, e.g., Craig Shoup,
“Candidates in primary election deal with stress, confusion,” available at https://www.thenews-
messenger.com/story/news/politics/elections/2020/03/31/candidates-sandusky-county-primary-
election-ohio-handle-confusion/5093408002/, published March 31, 2020. This report states as
follows:
14 See, e.g., Rick Rouan “Coronavirus: Ohio Supreme Court allows delay to primary election,” available at https://www.dispatch.com/news/20200316/coronavirus-ohio-supreme-court-allowsdelay-to-primary-election (“The [Franklin County] legal action capped a chaotic 12 hours in which it appeared that the election was off, back on, and then off again.”); Alexa Course, “Ohio’s Primary Postponement Sows Confusion Among Voters,” available at https://www.wsj.com/articles/ohiospostponement-of-primary-leaves-many-voters-confused-11584464786; Tyler Olson, “Confusion over how and when Ohio’s primary will take place after coronavirus postponement,” https://www.foxnews.com/politics/after-election-day-postponement-still-not-clear-how-ohioanswill-vote-in-primary, published March 18, 2020; Tyler Olson, “Confusion over how and when Ohio’s primary will take place after coronavirus postponement,” https://www.foxnews.com/politics/after-election-day-postponement-still-not-clear-how-ohioanswill-vote-in-primary, published March 18, 2020.
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“On March 25 the state legislature passed a bill that required all voting in Ohio’s Primary be done by April 28. But uncertainty remains after a federal lawsuit filed by the League of Women Voters seeks to push the election to a later date[.]” Id. Notably, this statement was made after two separate intervenors, the Ohio Democratic Party and the Libertarian Party of Ohio, moved to intervene and advocate for each’s own preferred relief. See Doc. 29-1 (setting forth the LPO’s preferred schedule); Doc. 25-2 (setting forth ODP’s preferred relief). Given that the existence of this lawsuit has already been widely publicized, boards of elections, who are often wary veterans of last-minute election litigation, and voters are now likely aware that the laws governing the 2020 primary might change – for a fourth time. And unlike the changes at issue in Purcell, White, or Veasey, this change would not occur at the eve of the election, it would occur midstream after implementation of the newly enacted Ohio law is underway. And any such change would require Secretary LaRose to issue yet another directive as to how to conclude the 2020 Primary. Courts must act in the public interest and must refrain from issuing orders that cause further confusion and disruption. The Sixth Circuit has ruled that “ there is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the middle of the submission of absentee ballots.” Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) citing Summit County Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004) “There is also a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote.” Id. Finally, “[a]s the Supreme Court recently recognized, court orders affecting elections can themselves result in voter confusion and cause the very chilling effect that plaintiffs claim they seek to avoid.” Id. citing Purcell v. Gonzalez, 549 U.S. 1 (2006). This Court should permit H.B. 197 to proceed without interference in the public interest.
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We now have clarity and certainty as to how Ohio is going to complete voting in the 2020 Primary Election. And though the purpose of a TRO is to maintain the status quo, Plaintiffs ask this Court to reverse the well-plotted course that the General Assembly set for Ohio through H.B. 197. Existing Supreme Court precedent instructs this Court to avoid such disruptions. Accordingly, Plaintiffs’ motion for a temporary restraining order should be denied. IV. CONCLUSION
For these reasons, the State of Ohio respectfully requests that this Court deny Plaintiffs’ motion for temporary restraining order.
Respectfully submitted, DAVE YOST Ohio Attorney General
/s/ Julie M. Pfeiffer JULIE M. PFEIFFER (0069762) ANN YACKSHAW (0090623) Associate Assistant Attorney General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 @ohioattorneygeneral.gov Ann.Yackshaw@ohioattorneygeneral.gov Counsel for Defendant State of Ohio
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Case: 2:20-cv-01638-MHW-EPD Doc #: 52 Filed: 04/02/20 Page: 27 of 27 PAGEID #: 594 CERTIFICATE OF SERVICE
I hereby certify that on April 2, 2020, the foregoing Defendant State of Ohio’s Opposition to Plaintiffs’ Motion for Temporary Restraining Order was filed with the Court. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties for whom counsel has entered an appearance. Parties may access this filing through the Court’s system.
/s/ Julie M. Pfeiffer JULIE M. PFEIFFER (0069762) Assistant Attorney General
26

 
 Case: 2:20-cv-01638-MHW-EPD Doc #: 53 Filed: 04/03/20 Page: 1 of 13 PAGEID #: 601

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

LEAGUE OF WOMEN VOTERS OF OHIO, OHIO A. PHILIP RANDOLPH INSTITUTE, LASHUNDA LEE, MUNIA MOSTAFA, AUDRIANNA VICTORIAN RODRIGUEZ, and HANNAH TUVELL, Plaintiffs,
and
LIBERTARIAN PARTY OF OHIO, Proposed Intervenor-Plaintiff,
v.
FRANK LAROSE, in his official capacity as Secretary of State of Ohio, Defendant,
and
STATE OF OHIO, Intervenor-Defendant.

Case No. 20-1638 Judge Watson

INTERVENOR-PLAINTTIFF LIBERTARIAN PARTY OF OHIO'S REPLY TO DEFENDANTS' RESPONSE TO MOTION FOR EMERGENCY RELIEF
I. Defendant-LaRose's Cancellation of the March 17, 2020 Primary Violated the Federal Elections Clauses. Defendant-LaRose concedes that neither he nor the Governor possessed lawful authority
to cancel or postpone the March 17, 2020 election. Still, he goes to great lengths to claim that
his cancellation of the March 17, 2020 primary was pursuant to a lawful directive issued by
Ohio's Department of Health. To the extent that issue remains relevant to these proceedings, he
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Case: 2:20-cv-01638-MHW-EPD Doc #: 53 Filed: 04/03/20 Page: 2 of 13 PAGEID #: 602
is wrong. Neither he, the Governor, nor the Department of Health, had lawful authority to cancel or postpone the March 17, 2020.
Section 4 of Article I of the United States Constitution states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ….” U.S. Const., art. I, § 4 cl. 1 (emphasis added). Section 1 of Article II, meanwhile, provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to vote for President. U.S. Const., art. II, § 1, cl. 2 (emphasis added). Together, these federal Elections Clauses dictate that Ohio’s Legislature must prescribe the time and manner of electing federal Representatives and Senators, as well as the President of the United States. Ohio's Legislature fixes the deadlines; Ohio's Legislature prescribes the manner of voting. Neither Respondent, the Governor,1 nor Ohio's Department of Health, has any say in this regard unless the Legislature expressly says so.
This Court analyzed these provisions in 2008 in response to the Ohio Secretary of State's promulgation of deadlines and rules for ballot access during Ohio's 2008 presidential election. See Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d 1006 (S.D. Ohio 2008). There, Secretary Brunner, by executive Directive, attempted to fix a deadline for political parties seeking to qualify for Ohio's primary and general election ballots. She also included a provision setting the number of signatures needed for political parties to qualify. Both were issued because Ohio's legislatively prescribed deadline and number of signatures had been ruled unconstitutional
1 Of course, the Governor plays an antecedent role through his veto authority when the legislation is passed. This role does not offend either of the Elections Clauses. In Smiley v. Holm, 285 U.S. 355 (1932), the Supreme Court ruled that Art. I, § 4’s reference to “Legislature” assumes the basic legislative processes spelled out by a state’s fundamental charter. Hence, bicameralism in Ohio is required for the “Legislature” to act, and Ohio’s gubernatorial veto can be constitutionally applied to the Legislature’s proposed time and manner of conducting federal elections.
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under the First Amendment in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006).
In Brunner, 567 F. Supp. 2d 1006, the Court concluded that Ohio's Secretary of State did not possess statutory under Ohio law, nor constitutional authority under the federal Elections Clauses, to regulate federal elections and ballots. Regulating federal elections transcended the Ohio Secretary of State’s authority under the federal Election Clauses because delegated power to the "Legislature," and not the executive: “Plaintiffs correctly contend that only the legislative branch has the authority, under Articles I and II of the United States Constitution, to prescribe the manner of electing candidates for federal office.” Id. at 1011.
The Court in Brunner, 567 F. Supp. 2d at 1011, observed that “[e]ven if the Ohio General Assembly could delegate its authority to a member of the executive branch, an issue that is not before the Court, there is no evidence that the state legislature has specifically delegated its authority to Defendant to direct the manner in which the state of Ohio votes for Senators and Representatives or selects electors to vote for President.” (Emphasis added). The Court further stated that “[a]bsent an express delegation of legislative authority, this Court cannot assume that the Ohio General Assembly intended to vest the Secretary of State with the legislative authority conferred in Article I, Section 4 and Article II, Section 1." Id.
In terms of legislative delegation to the Secretary, the Court in Brunner, 567 F. Supp. 2d at 1011, recognized that the Secretary had been delegated some authority to act; the Secretary could and can “[i]ssue instructions by directives and advisories … to election boards as to the proper methods of conducting elections,” and to “[p]repare rules and instructions for the conduct of elections ….” This did not, however, support “filling a void in Ohio's election law …." Id. However, it concluded that a “general, statutory authority to direct the conduct of electors
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cannot, as to Articles I and II of the Constitution, serve as a substitute for state legislative action regarding the election of federal officials.” Id. at 1012-13 (emphasis added).
Judge Sargus's conclusion that Ohio's General Assembly had not specifically delegated its Article I and II powers to the Secretary of State was undoubtedly correct. Longstanding practice and authority in Ohio establishes that the Secretary has no power to “amplify” the state’s election laws. In a 1930 response to a question posed by Ohio’s Secretary of State, Attorney General Gilbert Bettman stated that while the “Legislature has manifestly left to the discretion of the Secretary of State as chief election officer the determination of certain details which it cannot foresee and determine in the administration of the election laws,” this power can only be exercised “so long as the laws were not thereby amplified ….” 1930 Ohio A.G. Op. 1423, at 12223 (emphasis added).2 Ohio law thus provides two conjunctive conditions for the Secretary to act in the context of elections: (1) he or she must be filling in administrative details the Legislature had not foreseen, and (2) he or she cannot be expanding or amplifying existing laws.
Defendant-LaRose now concedes that he was given no such express delegation. He admits that he could not unilaterally cancel or postpone the election. Still, he asserts that the Department of Health could. Because he did what the Department of Health ordered, his actions were somehow made lawful.
He is wrong. The Department of Health is constrained by Articles I and II in the exact same way as is Defendant-LaRose. So is the Governor. None of them can forcibly or unilaterally wrest from the State Legislature the authority delegated to it by Articles I and II of the United States Constitution. No precedent supports such an autocratic stripping of electoral responsibility and right. This fact is driven home by the Supreme Court's decision in Arizona State Legislature
2 https://www.ohioattorneygeneral.gov/getattachment/85a53730-c62e-4de9-a7421b1e1a68c2d8/1930-1423.aspx.
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v. Arizona Department Redistricting Commission, 135 S. Ct. 2652 (2015), where a five-to-four majority on the Supreme Court barely sustained even the people's right by popular initiative to take from the State Legislature the authority to "legislate" under Article II of the United States Constitution. It was a foregone conclusion to all the Justices in that case that an executive officer, as opposed to the people, could not unilaterally do the same.
As explained by the Court in Arizona State Legislature, 135 S. Ct. at 2672, "[t]he [Elections] Clause was [] intended to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate." Quite contrary to the problem of having a single politician or faction seize the reins of electoral rulemaking, "[t]he Elections Clause … is not reasonably read to disarm States from adopting modes of legislation that place the lead rein in the people's hands." Id. "The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature. But the invention of the initiative was in full harmony with the Constitution's conception of the people as the font of governmental power." Id. at 2674 (emphasis added). The same cannot be said for state autocrats and bureaucrats. II. The Department of Health Was Precluded by the Elections Clauses and Ohio Law
From Cancelling the March 17, 2020 Election. Just as Defendant-LaRose is limited by Articles I and II, so is the Department of Health. It has no power under Articles I and II to cancel or postpone federal elections. Even assuming that a State Legislature could delegate such authority to health officials -- no State has done so -no such delegation has occurred here. Defendant-LaRose cites the Department's authority under O.R.C. § 3701.13 to "to make special orders … for preventing the spread of contagious or infectious diseases …." The
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Department, for its part, singularly relied on this same statute. See Director of Department of Health Order, March 16, 2020.3 That statute, however, says absolutely nothing about voting and
elections -- let alone voting in federal elections.
Section 3701.13 states:
The department may make special or standing orders or rules for preventing the use of fluoroscopes for nonmedical purposes that emit doses of radiation likely to be harmful to any person, for preventing the spread of contagious or infectious diseases, for governing the receipt and conveyance of remains of deceased persons, and for such other sanitary matters as are best controlled by a general rule.
Contrary to Defendant-LaRose's claim, this is not a blank check. It does not override all of Ohio
law.
The Ohio Supreme Court made this clear in D.A.B.E., Inc. v. Toledo-Lucas County Board
of Health, 96 Ohio St.3d 250, 773 N.E.2d 536 (2002). There, the Court held that
notwithstanding a general grant of power to protect "public health," local health officials in Ohio
have limited powers that do not include the authority to prohibit smoking in public places.
General health powers are no substitute for specific grants, and cannot override specific
limitations.
The local health officials in that case claimed that O.R.C. § 3709.21's grant of power to pass rules "for the public health" supported their action.4 The Ohio Supreme Court disagreed:
3 https://governor.ohio.gov/wps/wcm/connect/gov/81d164da-757d-4818-b898122325ccf509/Director%27s+Order+Closure+of+the+Polling+Locations.pdf?MOD=AJPERES &CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDD DM3000-81d164da-757d-4818-b898-122325ccf509-n3EOF8I. 4 The statute at issue, R.C. § 3709.21, broadly stated that "[t]he board of health of a general health district may make such orders and regulations as are necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement, or suppression of nuisances." It further stated that "[i]n cases of emergency caused by epidemics of contagious or infectious diseases, or conditions or events endangering the public health, the board may declare such orders and regulations to be emergency measures …." Id.
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"At first glance, the language of R.C. 3709.21 seems to grant petitioners the necessary authority to enact the regulation at issue." Id. at 255, 773 N.E.2d at 542. Read in context, however, it became clear that local health officials did not have "unlimited authority to adopt regulations addressing all public-health concerns." Id. "Throughout R.C. Chapter 3709, and elsewhere, the General Assembly has explicitly and in great detail identified specific areas where local boards of health have substantive regulatory power to address public-health issues." Id. These many specific qualifications and conditions proved that R.C. § 3709.21 was not a general delegation of authority to regulate for the "public health." "At a minimum, enactment of the provisions cited above indicates that the General Assembly did not intend through R.C. 3709.21 to vest local boards of health with plenary authority to adopt any regulations that they deem necessary for the public health." Id. at 256, 773 N.E.2d at 543.
The same is true of O.R.C. § 3701.13's delegation of authority to the Department of Health. Contrary to Defendant-LaRose's claim, this grant is not even a blank check to regulate the public health. It is a far cry from being a grant of power to cancel elections and close polls.
Nor does the Department's power to "quarantine" and "isolate" under O.R.C. § 3701.13 support cancelling elections. In Ex parte Company, 106 Ohio St. 50, 57 (1922), where it sustained a quarantine measure applied to persons reasonably suspected of having several kinds of venereal disease, the Court explained the nature of the quarantine power:
Quarantine in the sense herein used means detention to the point of preserving the infected person from contact with others. The power to so quarantine in proper case and reasonable way is not open to question. It is exercised by the state and the subdivisions of the state daily. The protection of the health and lives of the public is paramount, and those who by conduct and association contract such disease as makes them a menace to the health and morals of the community must submit to such regulation as will protect the public. Id. at 57 (emphasis added). See also Ex parte Kilbane, 67 N.E.2d 22 (Ohio 1945) (same).
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It has long been understood that health officials' quarantine and isolation authority allows them to detain infected people and isolate infected places in order to protect both from coming into "contact with others." It has never been understood to authorize the detention of uninfected individuals and prevent them from visiting or occupying uninfected places. As stated by one authority, quarantine and isolation are designed to allow "local health authorities [] to prevent the spread of communicable and epidemic diseases, … [by] persons afflicted with or exposed to those diseases …." 53 OHIO JUR. 3D, HEALTH AND SANITATION § 101 (2020). Toward this end, "[a]n isolated or quarantined person may not leave the premises to which he or she has been restricted without the written permission of the board …. " Id.
Whether the Department should have broad quarantine authority is not the question here. The point is the Department's power has never been understood that way. It is beyond debate that the General Assembly never intended to delegate to the Department of Health sweeping powers to regulate, cancel, and postpone federal elections. Its action in this very case makes that clear. Indeed, the General Assembly makes this very point in O.R.C. § 3707.05 of the Revised Code, which states that health officials "shall not … interfere with public officers not afflicted with or directly exposed to a contagious or infectious disease, in the discharge of their official duties, …." (Emphasis added). The General Assembly fully envisioned that health officials might attempt to interfere with government and made plain that they could not.
* * * The Constitution guarantees "a Republican Form of Government." U.S. Const., art. IV, § 4. Further, as Chief Justice Marshall said so poignantly in McCulloch v. Maryland, 17 U.S. 316, 415 (1819), this Constitution was "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." (Emphasis original). It was not meant to be
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jettisoned, as Defendant-LaRose seems to argue, during emergencies. Justice Robert Jackson made this same point in his renowned concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, concurring), where he observed that the Constitution's only “express provision for exercise of extraordinary authority because of a crisis,” is found in the Suspension Clause of Article I, § 9, cl. 2 (which allows Congress to suspend the Writ of Habeas Corpus). Nothing in the Constitution allows local health officials to cancel federal elections. III. No Precedent Supports Postponing and/or Extending a Federal Election While
Maintaining a Pre-existing Registration Deadline. Defendant-LaRose cites no authority nor historical precedent for his and Ohio's refusing to extend the voter registration deadline in lockstep with the election date. He cites only New York City's odd-year local election as an example. That election, however, was purely local and had nothing to do with federal office. It is irrelevant here. The fact is that no court has ever authorized what Ohio and Defendant-LaRose propose to do, even under catastrophic conditions that have completely destroyed local infrastructure. Louisiana has a world of experience with this sort of thing, having experienced Hurricanes Katrina and Gustav, and in both instances having been forced to delay the State's September elections. Louisiana's Governor in September 2008 following Gustav, and acting under an explicit delegation of emergency power, see La. Rev. Stat. § 18:401.1.A., postponed Louisiana's presidential primary. See Louisiana Ex. Order BJ 08-89.5 Most recently, the Governor of Louisiana postponed its 2020 primaries under this same authority. See Louisiana Governor
5 https://www.doa.la.gov/osr/other/bj08-89.htm.
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Moves Primary Because of Coronavirus, N.Y. TIMES, March 13, 2020.6 In both instances, voter registration deadlines were automatically extended (consistent with Louisiana law) in lockstep with the new election dates. There was no special law -- like that here -- stating that registration was frozen on the earlier-prescribed dates.
The Court in Florida Democratic Party v. Scott, 215 F. Supp.3d 1250, 1257 (N.D. Fla. 2016), made much of these facts in ruling that Florida's excuse for not doing the same was "incomprehensible." It stated: Many other states, for example, either extended their voting registration deadlines in the wake of Hurricane Matthew or already allow voter registration on Election Day. There is no reason Florida could not do the same." Id. It elaborated: "Other states ravished by Hurricane Matthew extended their registration deadline to protect voters. In fact, fifteen other states, including, for example, Iowa, even allow registration on Election Day. It is incomprehensible that Florida could not follow suit." Id. at 1258 (emphasis added). IV. Imposing Costs on Voters Violates the Fourteenth and Twenty Fourth
Amendments. Defendant-LaRose fails to explain why it can constitutionally impose costs on voters in this particular election when in other elections it cannot. In scheduled elections across Ohio, for example, voters have the right to vote free of charge. This is accomplished through in-person voting. While voters can be expected to purchase stamps for their absentee ballots, they always have the option of voting in person (no excuse needed) for free. This choice avoids violations of the Fourteenth and Twenty Fourth Amendments. In contrast, in Ohio's newly scheduled election, voters must cast absentee ballots, must pay to acquire the ballots, and must pay to insure that
6 https://www.nytimes.com/aponline/2020/03/13/us/ap-us-virus-outbreak-louisiana-1st-ldwritethru.html.
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their ballots are cast. They have no option to vote in person -- for free -- without excuse. This combination means they must pay, and it is this combination that constitutes a quintessential poll tax.
The Twenty Fourth Amendment, ratified in 1964, bars the use of poll taxes by the States (or the Congress) in federal elections. In Harman v. Forsesenius, 380 U.S. 528, 541 (1965), the Supreme Court interpreted this Amendment to reach beyond technical and literal taxes; according to the Court, the Twenty Fourth Amendment "‘hits onerous procedural requirements which effectively handicap exercise of the franchise …." "Significantly," the Court stated, "the Twenty-fourth Amendment does not merely insure that the franchise shall not be ‘denied’ by reason of failure to pay the poll tax; it expressly guarantees that the right to vote shall not be ‘denied or abridged’ for that reason." Id. at 540. "Thus," the Court concluded, "like the Fifteenth Amendment, the Twenty-fourth ‘nullifies sophisticated as well as simple-minded modes' of impairing the right guaranteed." Id. at 540-41. In short, "the Twenty–Fourth Amendment exists to combat the 'disenfranchisement of the poor....'” Johnson v. Bredesen, 624 F.3d 742, 750 (6th Cir. 2010) (quoting Harman, 380 U.S. at 539) (emphasis added).
In Harman, the Court used this analysis to invalidate a Virginia law that imposed no tax at all on federal voters. Instead, it required that federal voters "either pay the customary poll taxes as required for state elections [which had not yet been invalidated by the Supreme Court's decision in Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)] or file a certificate of residence." Harman, 380 U.S. at 532. The Court ruled that "it need only be shown that [the law] imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax." Id. at 541. Applying this standard, the Court ruled that Virginia's certificate of residence requirement "constitutes an
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abridgment of the right to vote in federal elections in contravention of the Twenty-fourth Amendment." Id.
It is irrelevant that some, or most voters, moreover, can readily satisfy whatever financial obstacles a State to chooses to impose. "The right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily." Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016) (holding that individual challenges to State photo ID law could proceed under theory that they constituted unconstitutional poll tax).
"In Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966), the Court held that Virginia could not condition the right to vote in a state election on the payment of a poll tax of $1.50," Crawford v. Marion County Election Board, 553 U.S. 181, 189 (2008), thus effectively extending as a matter of Fourteenth Amendment Equal Protection the reach of the Twenty Fourth Amendment to state and local elections. Consequently, whether federal, state or local elections are involved, a State may not constitutionally "impose[] a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax." Harman, 380 U.S. at 541.
Here, Ohio does just that. According to Defendant-LaRose, "Voters who want to cast a ballot must [after receiving a post card] then either print out an absentee ballot request form themselves or call their county board and ask for one to be sent to them. Voters must then affix their own postage and send the request to their county board of elections." LaRose Issues Statement on Legislation Finalizing Ohio's Primary Election, March 25, 2020 (emphasis added). Voters must first supply their own ballot request forms, then must supply their own postage to send those forms to their county boards of elections. Only then will they receive a ballot and be able to vote.
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Many voters, of course, can satisfy the first step using their own computers, printers and paper at home. Unfortunately, many voters cannot. Many voters can easily afford the cost of postage to return their ballot requests to their elections boards. Unfortunately, many poor voters cannot. And as stated by the Sixth Circuit, "the Twenty–Fourth Amendment exists to combat the 'disenfranchisement of the poor....'” Bredesen, 624 F.3d at 750 (emphasis added). That is exactly what Ohio is doing.
CONCLUSION Intervenor-Plaintiff respectfully requests that the Court issue emergency relief directing Defendant-LaRose to comply with federal law while conducting Ohio's federal primary election. Intervenor-Plaintiff further respectfully requests that the election be concluded no later than May 12, 2020.
Respectfully submitted,
/s Mark R. Brown Mark R. Brown (#81941) 303 East Broad Street Columbus, OH 43215 Phone: (614) 236-6590 Fax: (614) 236-6956 mbrown@law.capital.edu Counsel for Intervenor-Plaintiff Libertarian Party of Ohio
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 Case: 2:20-cv-01638-MHW-EPD Doc #: 58 Filed: 04/03/20 Page: 1 of 9 PAGEID #: 728

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

LEAGUE OF WOMEN VOTERS OF OHIO, et al., Plaintiffs,
v. FRANK LAROSE, et al.,
Defendants.

CASE NO. 2:20-CV-1638 JUDGE MICHAEL H. WATSON

BRIEF OF AMICUS CURIAE DISABILITY RIGHTS OHIO IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

I. STATEMENT OF INTEREST OF AMICUS CURIAE Disability Rights Ohio (“DRO”) is a not-for-profit organization designated by the Ohio
Governor as the protection and advocacy system under federal law for people with disabilities in Ohio. See 42 U.S.C. § 15001, et seq.; Ohio Rev. Code. § 5123.60. The mission of DRO is to advocate for the human, civil, and legal rights of people with disabilities in Ohio. As the protection and advocacy system for Ohio, DRO investigates abuse, neglect, and rights violations affecting people with disabilities; pursues administrative, legal, and policy remedies to address identified violations; and advocates for individuals in many areas of disability rights, including voting, housing, employment, government benefits and services, and special education.
Voting rights for people with disabilities is an important aspect of DRO’s work, and is reflected in the organization’s priorities. This work includes education and outreach to voters with disabilities and professionals in the disability field, direct and systemic voter advocacy, and operating a voter hotline every Election Day. DRO also engages in voting-related litigation.

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II. INTRODUCTION People with disabilities face unique and frightening challenges during the COVID-19
pandemic. COVID-19 could be a death sentence for many Ohioans with disabilities, as they face not only a higher risk of contracting the virus, but also a higher risk for serious, or even fatal, complications resulting from the virus. The public health crisis has caused upheaval in the lives of many people with disabilities who were already vulnerable, and sadly is likely to worsen in the weeks ahead.
Due to the COVID-19 pandemic, many people with disabilities have not yet voted in the 2020 primary election but still want to cast ballots. Ohio House Bill 197 (“H.B. 197”), as passed by the General Assembly and signed into law by Governor DeWine, will result in substantial obstacles for these voters and will likely disenfranchise large numbers of them. It forces many of them to choose between exercising their constitutional right to vote and their health and even their lives. The state of Ohio has legal obligations under the Americans with Disabilities Act to ensure equal access to the electoral process for people with disabilities. The emergency relief sought by the Plaintiffs in this case will provide necessary and expanded opportunities for people with disabilities to exercise their fundamental right to vote and to cast a ballot in the 2020 primary election. III. STATEMENT OF FACTS
Ohio’s 2020 primary election was to be held on March 17, 2020. Because of the COVID-19 pandemic, the Director of the Ohio Department of Health ordered polling locations closed late in the evening on March 16, 2020. On March 27, 2020, Ohio created, through the enactment of H.B. 197, abbreviated timelines to comply with burdensome, time-consuming, confusing requirements to apply for, receive, and return absentee ballots, and also allowed limited options for in-person voting on April 28, 2020. This contradicted the recommendations
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of the Ohio Secretary of State’s office, which had advocated for in-person voting to occur on June 2, 2020 (instead of “unattainable timelines” which would be logistically impossible) and mailing every registered voter a postage prepaid absentee ballot application. Doc. 4 at 7-8. The Plaintiffs filed their Complaint and an Emergency Motion for a Temporary Restraining Order in this Court on March 31, 2020. IV. ARGUMENT
A. The Americans with Disabilities Act Requires States to Conduct Elections in a Manner That Allows Equal Access to People with Disabilities.
The Americans with Disabilities Act (“ADA”) prohibits discrimination against individuals with disabilities in all areas of public life. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a). Title II of the ADA, 42 U.S.C. § 12141 et seq., not only prohibits discrimination based on an individual’s disability by states and local governments; it also seeks to ensure full participation of people with disabilities in society by removing barriers to access. 28 C.F.R. § 35.130(b)(7).
Participation in the political process is crucial to full participation in society and a central value of the disability rights movement. To ensure that individuals with disabilities can be full participants in the political process, Title II of the ADA requires that people with disabilities have a full and equal opportunity to vote. These protections extend to every aspect of voting, from registration to casting a ballot, and during all stages of voting, including absentee ballots, early-voting opportunities, and in-person voting on Election Day.1 See also Help America Vote Act of 2002 Pub.L. 107–252. Title III, § 302, 116 Stat. 1706 (codified at 42 U.S.C. § 15301 et
1 U.S. Department of Justice, The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities (Oct. 10, 2014) https://www.ada.gov/ada_voting/ada_voting_ta.htm (last accessed Apr. 2, 2020).
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seq.) (requiring jurisdictions responsible for conducting federal elections to provide at least one accessible voting system for persons with disabilities at each polling place in federal elections).2
If a state’s laws, rules, policies, and practices deny voters with disabilities opportunities to cast ballots that are available to non-disabled voters, this has the discriminatory effect of excluding them from participation in elections on the basis of their disability. See Mooneyhan v. Husted, No. 3:12-CV-379, 2012 WL 5834232, at *5 (S.D. Ohio Nov. 16, 2012) (holding that the Ohio Secretary of State and a county board of elections had to modify its policies, practices, and procedures under the ADA to enable a hospitalized voter with psychiatric disabilities to cast her ballot on Election Day).
B. H.B. 197 Will Result in Substantial Obstacles for People with Disabilities Who Have Not Yet Voted in the 2020 Primary Election and Will Likely Disenfranchise Large Numbers of Them.
H.B. 197 establishes a burdensome, time-consuming, confusing framework for voters who have not yet cast a ballot in the 2020 primary election. Aside from limited opportunities to vote in person on April 28, 2020 (which poses its own risks to many people with disabilities, as discussed below), Ohio law currently provides less than a month for voters to apply for an absentee ballot by mail, receive the ballot in the mail, and return the completed and signed ballot.3
2 Voting locations must be physically accessible for voters with disabilities. When a public entity cannot modify barriers--either permanently or temporarily--and are unable to identify an alternative accessible voting location, the public entity must offer an alternative method of voting at the polling place. Voting Accessibility for the Elderly and Handicapped Act of 1984, 52 U.S.C. § 20102 (formerly 42 U.S.C. § 1973ee–1). 3 The time-constraints under H.B. 197 are a serious concern. Even if people are able to submit an application for an absentee ballot, despite all of the challenges, it must be completed properly. And if a voter does obtain an absentee ballot, it too must be completed properly. There is limited time to cure any deficiencies, and any delay under the processes set forth under H.B. 197 could be problematic, particularly since mail service is anticipated to be slower during this pandemic, and county boards of elections staff are overburdened. Many voters are accustomed to the tradition of voting in person and may be unfamiliar with the absentee ballot process, so mistakes are likely, especially during the stress and anxiety of the COVID-19 pandemic.
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Because of the challenges many people with disabilities face during this public health crisis, these voters may be unable to apply for an absentee ballot and may be effectively disenfranchised. Submitting an application for an absentee ballot in writing and at the voter’s expense, as Ohio law requires, will be an insurmountable obstacle for many people. For example, many have limited or no access to a computer, internet, printer, envelopes, or stamps, and therefore cannot download, print, and mail the application for an absentee ballot to their county board of elections.
Nor can many people with disabilities easily and safely travel to libraries, post offices, and other business establishments or public places to print and obtain postage to mail the application during this public health crisis.4 To the extent these places are even open (many are not), many people with disabilities would face higher risks leaving their homes. According to the Centers for Disease Control and Prevention (“CDC”), persons with disabilities are at a higher risk for serious illness resulting from COVID-19.5 This includes individuals with impaired lung function, immunocompromising disorders, including individuals taking immunocompromising drugs, high blood pressure, diabetes, and heart disease.6 Although not an exhaustive list, the CDC identifies the following chronic conditions as more common in people with disabilities: arthritis, asthma, cancer, chronic fatigue syndrome, diabetes, heart disease, limb loss, MRSA, and musculoskeletal disorders.7 Anyone who has an underlying acute health condition is at
4 The apparent opportunity to contact the county board of elections to ask for an absentee ballot application by mail is not widely known. 5 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk for Severe Illness (Apr. 2, 2020) https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higherrisk.html (last accessed Apr. 3, 2020). 6 Seth McBride, New Mobility, Disability-Specific Recommendations for COVID-19 (Mar. 12, 2020) https://www.newmobility.com/2020/03/disability-specific-recommendations-for-covid-19/ (last accessed Apr. 2, 2020). 7 Centers for Disease Control and Prevention, Disability and Health Promotion: Disability and Health Related Conditions (Sep. 9, 2019) https://www.cdc.gov/ncbddd/disabilityandhealth/relatedconditions.html (last accessed Apr. 2, 2020).
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increased risk of severe symptoms for both illnesses because “there would be two separate issues for their immune system to fight.”8
Many people with disabilities are not only at higher risk for serious complications from the virus, but also at higher risk for contracting the virus because they are often unable to follow all the suggested precautions to keep themselves healthy. Guidance from the CDC includes “taking everyday precautions,” limiting contact with others, washing hands often, avoiding crowds, and “staying home as much as possible” when there is a COVID outbreak in the community.9 Some other precautions include avoiding touching one’s face, coughing into a tissue, and regularly disinfecting surfaces. But many people with disabilities rely on others (family, personal care aides, home health aides, nurses) for their care and for assistance with activities of daily living, and cannot practice safe and recommended social distancing to the same extent as others. They may not have access to needed supplies and equipment, like face masks, disposable gloves, and disinfectant products.
Assuming they even want to take the risk of traveling out in public during this public health crisis (either to print and submit an application for an absentee ballot, or to vote in person on April 28, 2020), people with disabilities may not have access to their own private transportation, or may have to rely on public transportation or on others to transport them, putting themselves at higher risk of infection.10 And presently there is pervasive, widespread
8 Seth McBride, New Mobility, Disability-Specific Recommendations for COVID-19 (Mar. 12, 2020) https://www.newmobility.com/2020/03/disability-specific-recommendations-for-covid-19/ (last accessed Apr. 2, 2020). 9 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk for Severe Illness (Apr. 2, 2020) https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higherrisk.html (last accessed Apr. 3, 2020). 10 In March 2016, DRO conducted a survey that identified transportation as the second most prevalent issue for people with disabilities in accessing in-person voting. See Disability Rights Ohio, VOTING IN OHIO: A Disability Rights Perspective, 5 (Mar. 2018) https://www.disabilityrightsohio.org/assets/documents/dro_voting_in_ohio_report_march_2018.pdf (last accessed Apr. 2, 2020). While some voters with disabilities can utilize their own vehicle, the 2017 Self Advocates Becoming
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fear among many people with disabilities of a worsening home care worker shortage, as these workers may contract the COVID-19 virus or may not be working at all to avoid the risk of infection. Those who rely on others to do tasks for them would have significant difficulty going out into public to print, obtain postage, and mail an absentee ballot or vote in person on April 28, 2020.
Furthermore, persons with disabilities residing in facilities, institutions, or hospitals may be prohibited from leaving these facilities and returning to their home because of the potential to infect many other at- risk individuals. On March 12, 2020, the Ohio Department of Developmental Disabilities listed “restricting individual community engagement” as a possible precaution for Intermediate Care Facilities.11 Other long-term care facilities are guided to take similar precautions. It is also possible that if an individual did leave the facility where they reside, they would be forced into prolonged quarantine upon their return to the facility.
Therefore, many people with disabilities, unable to obtain and properly submit an application for an absentee ballot or vote in person on April 28, 2020 without serious risks to their health and their lives, may choose to forgo their right to vote. They should not be forced to make this choice. The relief requested by the Plaintiffs is necessary to avoid large-scale disenfranchisement and discrimination against people with disabilities in the 2020 primary election in Ohio and to uphold the integrity of the democratic process. Other accommodations
Empowered (“SABE”) report found that many voters with disabilities rely on family, friends, or service providers to provide transportation. Id. at 4 n.12, 5. Some use public transportation, but service availability to polling places can limit this option. Given the current local and national guidelines to avoid contact with others, many of the transportation options voters with disabilities rely on may no longer be available, or may pose another risk of exposure. 11 Ohio Department of Developmental Disabilities, ICFs: DODD Prepares for COVID-19 (Mar. 12, 2020) https://dodd.ohio.gov/wps/portal/gov/dodd/about-us/communication/news/news-icf-coronavirus (last accessed Apr. 2, 2020).
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for people with disabilities may be needed,12 but H.B. 197 is untenable for many people with disabilities across Ohio and will effectively exclude them from the electoral process. V. CONCLUSION
For the foregoing reasons, Amicus Curiae Disability Rights Ohio respectfully requests that this Court grant the Plaintiffs’ Emergency Motion for Temporary Restraining Order and the relief requested by the Plaintiffs.
Respectfully submitted, /s/Kevin J. Truitt Kevin J. Truitt (0078092) ktruitt@disabilityrightsohio.org Trial Attorney Julie Keys (0092537)) jkeys@disabilityrightsohio.org Disability Rights Ohio 200 Civic Center Drive, Suite 300 Columbus, Ohio 43215 Telephone: 614-466-7264 Facsimile: 614-644-1888 Counsel for Amicus Curiae Disability Rights Ohio
12 For example, the Ohio Secretary of State’s office should widely publicize opportunities to request personal delivery of absentee ballots under Ohio Rev. Code § 3509.08 for people with disabilities who are home-bound or in institutions or facilities or hospitals. These voters must still submit an application for absentee ballots, raising the same challenges described in this brief. For personal delivery of absentee ballots by county board of elections staff, the state should ensure adequate health and safety precautions are taken to prevent further spread of the COVID-19 virus. The state should also widely publicize the reasonable accommodations process for voters with disabilities unexpectedly hospitalized outside their county of residence.
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Case: 2:20-cv-01638-MHW-EPD Doc #: 58 Filed: 04/03/20 Page: 9 of 9 PAGEID #: 736 CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing was filed electronically on April 3, 2020. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt.
/s/Kevin J. Truitt Kevin J. Truitt (0078092)
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 Case: 2:20-cv-01638-MHW-EPD Doc #: 59 Filed: 04/03/20 Page: 1 of 28 PAGEID #: 737

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

LEAGUE OF WOMEN VOTERS OF OHIO, OHIO A. PHILIP RANDOLPH INSTITUTE, LASHUNDA LEE, MUNIA MOSTAFA, AUDRIANNA VICTORIAN RODRIGUEZ, and HANNAH TUVELL,

CASE NO. 20-cv-1638

Plaintiffs,

JUDGE MICHAEL H. WATSON

and

Magistrate Judge Elizabeth Preston Deavers

LIBERTARIAN PARTY OF OHIO,

Intervenor-Plaintiffs,

v.

FRANK LAROSE, in his official capacity as Secretary of State of Ohio,

Defendant,

and

STATE OF OHIO, OHIO DEMOCRATIC PARTY, and OHIO REPUBLICAN PARTY

Intervenor-Defendants.

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF THEIR EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
Intervenor State of Ohio begins its response to Plaintiffs’ Motion for Emergency Relief on a curious note: elections, it says, “are conducted by statute, not by litigation.” But elections are conducted by civil servants and elected officials for the people. And the government officials who conduct elections are subject not only to state laws, but also to federal laws and, most important, the Constitution. This is what this case is about: whether a cramped schedule that state
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and local election officials themselves acknowledged as infeasible during a public health crisis will be permitted to prevent Ohioans from exercising their most fundamental right when the State’s interests would be fully vindicated by allowing more time for the process.
In this reply brief, Plaintiffs will respond not only to the arguments of the IntervenorDefendant State of Ohio (“State”), but also those of the Defendant Secretary of State (“SOS”), and the other Intervenors and amici curiae, to the extent possible. But we begin with a few overarching premises:
First, as to Plaintiffs’ NVRA claim, the State’s calling April 28 a “continuation” of the March 17 primary date is untenable. No legal authority exists—and neither the SOS nor the State has cited to any—that allows the General Assembly to post hoc allow voting to resume after an election. If March 17 was the election—despite the State’s eleventh-hour closing of every polling place—then no more votes may be cast and counted, and a different constitutional violation will have occurred. If March 17 was not the election—as common sense dictates—then the right to register for the real election continues up until 30 days before that day.
Second, so much of what threatens the loss of Plaintiffs’ right to vote is the result of the confluence of the multi-layered absentee ballot process insisted upon by the General Assembly and the constricted schedule in which the General Assembly ordered the entire process must be completed. No one with real experience and qualifications to opine on the issue believes April 28 is a reasonable date: not the Secretary of State, not the county boards of elections, not public health officials. Indeed, the Governor of Ohio has indicated that the public health crisis will still be on the upslope in April. There is no state interest that can justify the disenfranchisement that will result from April 28 date, and, further, no state interest that can justify the demanding sequence of requirements—four to five mailings—that must be completed in this short period.
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Defendant SOS and Intervenor State have shed no helpful light as to why the General Assembly rejected the SOS’s June 2 date for the primary, despite this Court explicitly requesting that the Defendants address this point in its April 2 Order. The SOS expressly deferred to the State on the issue. The State took up the gauntlet, but explained that the different date can be justified because it is “different.” Doc. 52, at 19. It then described its election plan as “less time consuming,” id. at 20, an assertion that is true only because the State cut in half the amount of time that election officials said was necessary to get the job done properly—and, we submit, constitutionally.
Third, there is no preservation of any “status quo” that stands as a barrier to the relief Plaintiffs request. COVID-19 has erased the “status quo” from existence. If relief is granted to Plaintiffs, voters will have ample time to adjust to, say, a late May or early June date, for the primary; that would be far less “confusing” than the whip-sawing that the General Assembly put them through over the past two weeks. Moreover, confusion, if any, would be benign, because to move an election date into the future would only cause a voter to get their ballot in early, rather than too late.
Whatever has spurred legislators to adopt such a hurried schedule, it certainly was not the interests of their voters, the people. I. PLAINTIFFS HAVE A HIGH PROBABILITY OF SUCCESS ON THE MERITS OF
THEIR NVRA CLAIM. Despite Defendants’ semantic contortions, April 28, 2020, is Ohio’s current “election” date
both under state law and the National Voter Registration Act of 1993 (“NVRA”). Ohio must process registrations submitted 30 days prior to April 28, or whatever date is ultimately set, because Section 8(a)(1) of the NVRA requires Ohio to allow eligible applicants to register to vote in its federal primary election if the application is received “not less[] than 30 days” “before the date of the election,” 52 U.S.C. § 20507(a)(1).
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A. Ohio’s election currently is set for April 28, 2020. The Defendants seek to avoid the clear requirements of the NVRA by playing word games.
The SOS argues that the “election” was March 17, even though the State neither commenced nor concluded voting on that day, prohibited the overwhelming majority of its citizens from voting on that day,1 has not reviewed the few ballots submitted by that day, and elected no officeholders on that day.
Plaintiffs reiterate the straightforward idea that an “election” is the day on which citizens select individuals to hold public office.2 Here, the State’s own laws establish Election Day as April 28, 2020—the day when ballots are due, and counting will begin. See H.B. 197, § (B)(1)-(2) (prohibiting all elections officials from counting or reporting any ballots cast until “7:30 p.m. on April 28, 2020”). H.B. 197 provides that elections officials shall complete the “unofficial count,” “canvass of election returns,” and other procedures for the federal primary “except that each deadline shall be calculated by adding 42 days” to the March 17 date. Id. § 32(G).
Ohio law defines these procedures in terms of their proximity to the Election Day. For example, the unofficial “count, in no event, shall be made later than twelve noon on the day following the election.” Ohio Rev. Code Ann. § 3505.30 (emphasis added). Similarly, the board of elections “shall complete the canvass [of returns] not later than the twenty-first day after the day of the election.” Id. § 3505.32 (emphasis added).
By extending all of these deadlines by 42 days, the State now treats April 28 as the election. Voting will overwhelmingly cease on April 28, counting of ballots will begin on April 28, and
1 Per a brief submitted by the Secretary in the Ohio Supreme Court, “nearly 85% of voters still vote on election day.” See Merit Br. of Respondent Ohio Secretary of State Frank LaRose, State ex rel. Ohio Democratic Party v. LaRose, No. 2020-0388, at 12 (Ohio Sup. Ct., filed Mar. 25, 2020). 2 This is not only common sense, but also the literal definition. See Elect, American Heritage Dictionary of the English Language (5th ed. 2020) (“To select by vote for an office.”); Election, id. (“The act or process of electing someone to fill an office or position” or “an instance of this.”).
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officials will begin reporting results on April 28. Even H.B. 197 itself implies that April 28 is the
election: it extends eligibility for “uniformed services and overseas” voters’ ballots to May 8, 2020,
H.B. 197, § 32(E)(3). These voters would certainly not have been prejudiced by the closure of
physical polling places on March 17. Extending the deadline for them makes no sense unless the
State views April 28 as Election Day.3
Given that the State treats April 28, 2020, as the election date for every other relevant deadline,
April 28 must also constitute Election Day for the procedure of registration. The fact that no
Defendant has even tried to offer a practical reason for treating registration differently from these
other deadlines only highlights the absurdity of their position.
3 H.B. 197 also treats April 28 as Election Day in other ways. For example, H.B. 197 sets the deadline for submitting absentee ballot applications as noon on April 25 (the Saturday preceding the election), except for those disabled and confined voters who qualify to request a ballot up to 3 p.m. on April 28 pursuant to Section 3509.08 of the Ohio Revised Code. H.B. 197, § 32(C)(3). H.B. 197 also requires absentee ballots be postmarked, if mailed, “on or before April 27” and received “not later than May 8,” or returned “at the office of the appropriate board of elections not later than 7:30 p.m. on April 28,” id. § 32(E)(2), and it requires that people eligible to vote in person be permitted to cast a ballot so long as they are in line by 7:30 p.m. on April 28, id. § 32(D). These are the rules applied to Election Day in Ohio. See, e.g., Ohio Rev. Code Ann. § 3509.03(D) (noting that the deadline for applying for an absentee ballot is “not later than twelve noon on the third day before the day of the election at which the ballots are or be voted”); id. § 3509.08(B) (noting that the regular absentee ballot request deadline is extended for “any qualified elector who is unable to travel to the voting booth in the elector’s precinct on the day of any general, special, or primary election” until “three p.m. on the day of the election”) (emphasis added); id. § 3509.05(B)(1) (noting that absentee ballots sent via mail will be counted if they are “postmarked prior to the day of the election” and “delivered to the director prior to the eleventh day after the election”) (emphasis added); id. § 3509.05(A) (noting absentee ballots not delivered by mail must be “delivered to the director not later than close of polls on election day”) (emphasis added); id. § 3501.32 (noting that “on the day of the election the polls . . . shall be closed . . . at seven-thirty p.m., unless there are voters waiting in line to cast their ballots, in which case the polls shall be kept open until such waiting voters have voted”); see also Ohio Sec’y of State, Election Official Manual, ch. 6, 5-5 (“If an absentee ballot does not have a postmark, it must be received by the board of elections no later than 7:30 p.m. on Election Day.”) (emphasis added). Finally, H.B. 197, § 32(E)(3) provides that mail ballots cast by military and overseas voters pursuant to the Uniformed and Overseas Citizens Absentee Voting Act, (“UOVACA”) received by the board of election after 7:30 p.m. on April 28, 2020, and not later than May 8, 2020, are eligible to be counted “if they were submitted for mailing not later than 12:01 a.m. at the place where the voter completed the ballot s on April 28, 2020, regardless of whether the ballots are postmarked.” These categories of voters would have been able to cast their votes by mail before March 17, and would not have been affected by the State’s prohibition on in-person voting that day. If the election date were truly March 17, then there would be no reason for the state to extend Election Day to UOCAVA voters. The fact that it did so reinforces that Mach 17 was not Election Day.
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B. The NVRA Requires the Election be Interpreted as April 28, or Whatever Date Is Eventually Used for the 2020 Primary Election. The NVRA demands this Court adopt Plaintiffs’ interpretation. Congress’s authority to
regulate federal elections under the Elections Clause, U.S. Const. art., I § 4, supersedes the states’ power to regulate their elections, and the NVRA is a valid exercise of this authority. See Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 9 (2013); League of Women Voters of United States v. Newby, 838 F.3d 1, 4 (D.C. Cir. 2016). No party disputes this. Nor does any party dispute that the NVRA was designed to “increase the number of eligible citizens who register to vote in elections for Federal office.” 52 U.S.C. § 20501(b)(1).
In light of the NVRA’s superseding authority and its explicit purpose to increase registration, the Sixth Circuit has indicated that courts should not defer to narrowly construed, state-law election terms when adjudicating alleged NVRA violations because allowing states to impose crimped state-law definitions would “frustrate the NVRA’s purpose” and let states “completely ignore . . . the NVRA.” U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 383 (6th Cir. 2008).
Defendants now seek to do exactly that, by proffering a narrow state-law definition of “election” with no explanation of how that definition comports with the NVRA’s structure or purpose, or even other aspects of state law. Despite Plaintiffs’ previous explanation of this point, see Plaintiffs’ Memorandum in Support of a Temporary Restraining Order, Doc. 4 at 14-15, no Defendant rejects the applicability of Land, nor attempts to square Ohio’s 70-day prohibition on registration with the NVRA’s requirement to allow registration up to 30 days before an election. See Defendant State of Ohio’s Opposition, Doc. 52; Defendant LaRose’s Memorandum in Opposition, Doc. 44; Intervenor-Defendant Ohio Republican Party’s Memorandum, Doc. 43 (all
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omitting any discussion of Land). Nor can they. The NVRA is clear: the election is April 28, 2020. Otherwise, the State would frustrate the NVRA’s purpose of maximizing registrations.
Defendants’ implicit tautology—that an election is whatever day state law says because state law says it—would admit absurd scenarios like barring new registrations for a full six months by articulating a supposed de jure primary “election” on February 1 and then moving the de facto election to August 1. This would nullify the NVRA’s promise of voter registration protection.
C. Attempts to distinguish or distort precedent are incorrect or inapposite. Defendants attempt to cast and recast various precedents to suit their needs. These attempts
are unavailing. First, Plaintiffs cited Georgia State Conference of the NAACP v. Kemp and Arizona
Democratic Party v. Reagan for the proposition that courts “find the NVRA violated where state registration deadlines extend more than thirty days before an election.” Doc. 4, at 14. Defendant LaRose asserts that Kemp does not support this proposition, Doc. 44 at 17, but the Kemp court in fact found a likely violation of Section 8(a)(1) of the NVRA and granted a preliminary injunction. See Kemp for Georgia, No. 1:17-CV-1397, 2018 WL 2271244, at *1 (N.D. Ga. Apr. 11, 2018) (reciting these facts). No final merits ruling was issued only because the parties settled in a consent decree that recapitulated the NVRA’s 30-day registration deadline. Kemp, No. 1:17-cv-1397 (N.D. Ga. Oct. 17, 2017), Consent Decree, ECF No. 42, at *2–3; see also Defendant State’s Brief, Doc. 52, at 12 (indicating Georgia’s deadline violated the NVRA because its election fell within the NVRA’s definition of election).
Second, Defendant State attempts to distinguish Reagan as “inapposite” only to recognize that the state “close[d] its registration deadline one day early” and “[t]he Court ruled that” this “technically violated the NVRA.” Doc. 40-1 at 12. While Reagan may not have defined “election,”
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it demonstrates that the NVRA prohibits a deadline even one day too early, to say nothing of Ohio’s deadline 40 days too early.
Third, Defendant State points to New York’s laws affecting its registration deadline after it postponed its primary in the wake of the September 11, 2001, attacks. Doc. 40-1 at 11-12. But the scheme is inapposite: no Court ever reviewed those laws’ validity under Section 8 of the NVRA.4
As the NVRA, precedent, common sense, and Ohio’s own statutory scheme all indicate, the election is on April 28, 2020. II. PLAINTIFFS HAVE A PROBABILITY OF SUCCESS ON THEIR
CONSTITUTIONAL CLAIMS A. The Burdens Fall More Heavily in this Case than in Mays or Obama for America.
The burdens in this case fall heavily on all voters in Ohio who had not voted by March 16. The State’s argument that Plaintiffs’ opportunities to vote early “before March 17” factors into “an even lower burden,” State Br. at 15, than in Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020), is disingenuous. This Court need not take Plaintiffs’ word. It can take the word of the SOS himself, who, in his reply brief filed with the Sixth Circuit in Mays v. Larose, explained the circumstances in which election law restrictions may be described as “severe.” In responding to the Mays plaintiffs’ argument that, if the SOS were right, he could be free to abolish Election Day voting, without warning, the day before polls were to open, the SOS objected to the mere suggestion:
The Secretary has never made so extreme an argument. His point is, and always has been, that Ohio does not “outright deny” anyone the right to vote, since everyone affected by the Saturday-noon deadline can plan ahead and vote early if they fear being unavailable on Election Day. That logic would not extend to a case in which
4 Similarly, Defendant State’s hypothetical that a one-hour extension at polling place would require a corresponding one-hour shift in registration deadlines is incorrect for the simple reason that the NVRA counts in terms of days, not hours. See 52 U.S.C. § 20501(a)(1) (mandating registration applications be accepted not less than “30 days” “before the date of an election”). Even if this hypothetical close case of minutes or hours mattered, this Court need not consider it in the context of Ohio’s vast, 70-day deadline.
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the State changed the rules midstream, abolishing Election Day only once it was too late to vote early. By denying voters any notice of the change in rules until it was too late to comply, the State would “virtual[ly] exclu[de]” anyone who relied on those rules from voting, severely burdening the right to vote. SOS Reply Br., Mays v. LaRose, No. 19-4112, Doc. 35, at 11 (Exh. 1 hereto) (citation omitted) (emphasis added). That is precisely what happened here. Unlike the plaintiffs in Mays, Plaintiffs here did not have notice of the “change in rules until it was too late to comply.” Plaintiffs did not know that they had to vote earlier in order to avoid the changes in the rules. Thus, under the SOS’s own reasoning, if those changes threaten Plaintiffs’ exercise of their franchise, as it does here, the burden is “severe.” These burdens fall much heavier and wider than those in in Mays. The burdens in this case are also much more severe than those in Obama for America v. Husted, 697 F. 3d 423 (6th Cir. 2012), where the Sixth Circuit considered the cut-back of three days of early voting as “not severe,” but above “slight.” 697 F.3d at 433. B. Defendants Ignore the Cumulative Impact of the Burdens on Voters. Both the State and the SOS attempt to dilute the collective effect of H.B. 197’s burdens by parsing each particular aspect of them independently of each other. In doing so, they miss the big picture: the State’s multi-step, complex, vote-by-mail-only process which election officials and voters must complete in less than a four-week period leading up to April 28, against the backdrop of the greatest public health crisis this country has faced in over a century.5 See Clingman v. Beaver, 544 U.S. 581, 607–08 (2005) (“panoply” of burdens should be viewed together in right-
5 Defendants suggest Plaintiffs exaggerate the extent of this multi-stage process, Doc. 52 at 15, but the SOS’s own fact witness describes the relief requested by the Ohio Democratic Party—which skips the initial postcard and instead would send every voter an absentee ballot application, so is in fact more streamlined—as a nine-stage process, with seven of the nine stages essentially identical to the process laid out in H.B. 197. Grandjean Decl., Doc. 44-2, ¶ 35.
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to-vote case). The Sixth Circuit has held that while certain “requirements may only impose a reasonable burden on constitutional rights,” the proper analysis looks at “the combination of these laws,” which taken together can constitute “a severe burden.” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 595 (6th Cir. 2006).6
Although Defendants criticize Plaintiffs’ fears as speculative, Plaintiffs have supported their claims with detailed declarations as to the problems voters have already experienced and why it is likely that they will experience similar problems in the 25 days left before the primary election date. Indeed, Defendant LaRose’s own declarant indicates boards of elections may be even less equipped now than they were when they first said April 28 was infeasible because they are now “operating without full staffs” “[d]ue to COVID-19.” Grandjean Decl., Doc. 44-2, ¶ 9. If anything is “speculative,” it is the State’s wishful thinking that it can hold a fair, inclusive, and constitutional election on April 28 that allows all those who wish to vote to participate.
Theoretically, as the State would have it, a voter need not wait to receive the SOS’s postcard to begin the absentee-ballot voting process, Doc. 52, at 15. Instead, the voter might independently request an absentee ballot. This ignores the reality that many voters do not today know that they have to request an absentee ballot: Plaintiffs have fielded calls from voters who believe that their boards of elections will automatically mail out ballots to them. Ex. 2, Suppl. Miller Decl. ¶¶ 2, 4. Next, in the State’s imagination, if a voter cannot download and print an absentee ballot application, the voter could call their potentially understaffed board of election to request an application (State Br. at 16), or perhaps write down “all the information that must be
6 See also Libertarian Party of Ohio v. Husted, No. 2:13-cv-953, 2015 WL 12967768, at *9 (S.D. Ohio Mar. 16, 2015) (holding that the “aggregate effect” of election law requirements “severely burdened associational rights”); Am. Ass’n of People with Disabilities, 690 F. Supp. 2d at 1219–20 (holding the court “must address the burdens the law poses collectively” as it cannot “parse out” the requirements that “in the aggregate impose an undue burden”).
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included” in an application (without mistake), and mail it to their board, id.7 Then, in order to mail
the absentee ballot application, the voter, who is unlikely to have postage at home, would either
have to order stamps online and wait as long as a week for them to arrive, or go outside—against
a stay-at-home order—to buy stamps “at post offices, shipping centers, supply stores, grocery
stores, and ATMs.” State Br. at 17. Then, the State assumes that, in this new COVID-19 universe,
the boards of election and the post offices would work with precision to ensure that every absentee
ballot application is processed immediately, every absentee ballot is mailed out, and every absentee
ballot is mailed back and received in the 25 days left before Election Day,8 despite postal workers
and election officials being taken sick, despite stay-at-home orders, despite print shops that sell
postage being closed, and despite voters’ fears that they cannot leave their homes. Voters’
constitutional rights should not be made contingent on such an absurd chain of speculative fantasy.
And, most important: what is the State’s possible justification for burdening voters with such a
cumbersome, time consuming process within this 25-day period in the middle of this public health
crisis?
C. The Defendants Do Not Sufficiently Justify the Burdens Imposed.
7 It should also be noted that the idea that a voter can write down the information on a piece of paper and submit it to request an absentee ballot, rather than using the absentee ballot application is not a new accommodation the Secretary has made to address the present circumstances—rather this is provided for in the Ohio Revised Code and had been the rule for years, See Ohio Rev. Code Ann. § 3509.03(B) (noting that an “application need not be in any particular form” but needs to contain the information outlined on the absentee ballot application). None of the Defendants indicated how frequently electors have submitted handwritten absentee ballot applications or how frequently there are deficiencies in those applications. 8 Secretary LaRose estimated, on March 25, that “it is expected that the[] postcards [H.B. 197 requires be sent] will reach registered voters in the second week of April.” Press Release, LaRose Issues Statement on Legislation Finalizing Ohio’s Primary, Mar. 25, 2020, https://www.sos.state.oh.us/media-center/pressreleases/2020/2020-03-25/; see also H.B. 197, § 32(C)(2) (noting that the postcards are being sent to each registered elector “notify[] the elector of the methods by which the elector may obtain an application for absent voter’s ballots, the procedures and deadlines to apply for absent voter’s ballots . . ., and the procedures and deadline to return voted ballots to the office of the board of elections”). This would be the first of many mailings. And, as the Ohio Association of Election Officials noted, “[t]he postal service advises that it takes 3-5 days for mail to reach its destination,” Doc. 4-5, at 1. All this is assuming that operations proceed as they do in normal circumstances.
11

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These severe burdens must be justified by a compelling state interest to survive the appropriate application of strict scrutiny. Even in Mays and Obama, where the court characterized the burdens as “moderate” (in Mays) or somewhere between “slight” and “not severe” (in Obama), the Sixth Circuit held the state to proof that its precise interests were at least “necessary” to burden the plaintiffs’ rights. Obama, 697 F.3d at 433; Mays, 951 F.3d at 784. Neither the State nor the SOS has demonstrated any such necessity for the burdens here.
First and most important, neither the State nor the SOS has explained why it was “necessary” for the General Assembly to set April 28 as the primary day, despite warnings from both the SOS and county election officials that it would be difficult, if not impossible to prepare for the election on that day.9 The compressed schedule required by an April 28 election actually undermines the interests the State articulates at pages 18-19 of its brief. Far from “minimizing disorder and easing the burdens on the boards of elections,” the timeline set by H.B. 197 puts incredible pressure of elections officials, as they themselves noted in objecting to the infeasibility of the April 28 date. Doc. 52 at 18. The State also claims an interest in “concluding the March 17 primary as expeditiously as possible, while ensuring that everyone who was eligible to vote on March 17 can vote.” Id. at 19. There can be no interest in disenfranchising those eligible to register and vote in the rescheduled primary under the NVRA. Moreover, the current timely will not ensure all eligible voters can vote, because it is too constricted for elections officials and the Post Office to ensure mail ballots are available in time to be cast.
9 Defendants briefs emphasize that H.B. 197 was passed unanimously. However, that the General Assembly unanimously adopted the new election date does not fill the gap in explaining why it did so. Indeed, members of the General Assembly are themselves on the primary ballot, and closing the election process as quickly as possible may have been seen as in the self-interest of persons on both sides of the aisle. In addition, the election change was just one part of an overall coronavirus package with urgently needed relief for the state, and even legislators with strong misgivings about the election provisions would have been hard-pressed to cast a “nay” vote in these circumstances.
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Despite this Court expressly asking the SOS and the State to address the issue of why the General Assembly chose April 28 as the primary day over the SOS’s set date of June 2, neither party did so. The SOS expressly “defer[red] to the Intervener, the State of Ohio, for an express response to this Court’s order to describe the State’s interests in implementing the aspects of H.B. 197 pertaining to the election,” Doc. 52 at 11.
The State failed to respond to this subject in its brief. Certainly, the State purported to respond, State Br. at 18–19 n. 12, but its explanation reduces to the fact that the General Assembly’s plan and the SOS’s plan were “fundamentally different.” Id. at 19. The SOS’s plan, while not perfect, would have at least placed an absentee ballot application in the hands of every voter who had not yet voted. LaRose Letter to Legislators, Doc, 4-4. The General Assembly’s plan instead places the burden on the voter to ask for the application, increases the number of mailings, and more than halves the time to get all of this done.
That the State self-servingly describes this as “more streamlined, and less time consuming” is neither completely true nor sufficient justification. Id. at 20. Mere administrative convenience cannot justify abrogating the fundamental right to vote. See, e.g., Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1258 (N.D. Fla. 2016) (“it would be nonsensical” to prioritize legislative deadlines, set for convenience, over the fundamental right to vote); Carrington v. Rash, 380 U.S. 89, 96 (1965) (“States may not casually deprive a class of individuals of the right to vote because of some remote administrative benefit to the State.”). It is a fortiori “less time consuming” only because the General Assembly set a much earlier primary date than did the SOS, making it immeasurably more difficult to complete all necessary actions in the time allotted . And it is not “more streamlined,” unless the State is counting on its process to reduce voter turnout.
13

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Creating a more burdensome, “less time consuming” process is, in fact, at the core of the loss of the right to vote. It is common sense that the more steps that a voter is required to take in order to vote, the less likely it is that the voter will vote. Sending the voter a ballot without the need for an application—as is done by every vote-by-mail state that requires voters to register— insures that the greatest number of voters will vote. Adding a step of first sending every voter an application directly reduces somewhat the odds that the voter will vote. Adding a third step of first sending the voter a postcard, informing the voter that they must ask for an application in order to get a ballot reduces the odds even more. And it is this last option that the State—without justification—chose to implement. These burdens are compounded by the State’s constitutional error in forcing the voter to take all of these steps in an unconscionably short period of time, under the circumstances of the current public health crisis.10 That is the essence of Plaintiffs’ constitutional claim.
D. Defendants’ and Amici’s Criticisms of the Requested Relief Either Misconstrue the Requests or Are Easily Dismissed. The relief sought by Plaintiffs has been misconstrued in multiple briefs filed in this case.
Plaintiffs’ requested relief seeks to effectuate the State’s move toward a predominately vote-by-

10 Other states that have moved to virtually all mail elections have given themselves more time or sped up

the process of getting ballots into the hands of voters. For example, on March 24, Nevada announced that

it would conduct its June 9 primary primarily by mail and that it would send absentee ballots directly to all

registered voters. Press Release, Secretary Cegavske Announces Plan to Conduct the June 9, 2020 Primary

Election

by

All

Mail

(Mar.

24,

2020),

https://www.nvsos.gov/sos/Home/Components/News/News/2823/309. Michigan’s governor announced on

March 27 that it would send absentee ballots to new registrants and absentee ballot request forms to all

registered voters and for the March 5 state elections. Governor Whitmer Signs Executive Order Expanding

Absentee Voting in May 5 Elections, https://www.michigan.gov/whitmer/0,9309,7-387-90499_90640-

523402--,00.html. On April 1, West Virginia moved its primary from April 12 to June 9, and the state is

sending absentee ballot applications to all registered voters. West Virginia Launches Plan to Send Absentee

Ballot Applications to All Voters, WHSV.com (Mar. 26, 2020), https://www.whsv.com/content/news/West-

Virginia-launches-plan-to-send-absentee-ballot-applications-to-all-voters-569129731.html.

14

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mail election in light of the dual constraints of the time limitations imposed by the General Assembly and the public health crisis.
First, in the declaration that the State submitted from Karla Herron, Director of the Delaware County Board of Elections,11 Ms. Herron incorrectly states that if Plaintiffs’ requested relief is granted, the county “will have to scramble to find polling locations.” Herron Declaration, Doc. 52-2, ¶ 19. Nothing in Plaintiffs’ requested relief requires counties identify and operate polling locations. Rather Plaintiffs request only a modest expansion of in-person voting options only at boards of elections. See, e.g., Doc. 4 at 1-3.
Second, the Honest Elections Project incorrectly asserts that “Plaintiffs ask that anyone be permitted to vote in-person, provided they bring an unmarked absentee ballot with them to the polls or vote a provisional ballot.” Doc. 51 at 14. This grossly mischaracterizes Plaintiffs’ requested relief. Plaintiffs ask that disabled electors who qualify to vote in-person under Section (D)(1)(a) of H.B. 197 be able to cast a regular ballot in person if they bring their absentee ballot mailing to their local board of elections.12 Doc. 4 at 2 (number 4). In addition, Plaintiffs request that voters who do not receive their ballots in the mail be permitted to vote a provisional ballot in person at their local board of elections.13 Id. (number 5).
Finally, the State alleges that “Plaintiffs here ask this court to upend this system completely for just fourteen days.” Doc. 52, at 3 (emphasis in original). Plaintiffs did not request a specific date—rather, Plaintiffs noted that the process set forth by the State is one that Ohio’s election administrators warned could not be completed by April 28. Plaintiffs suggest a more simplified
11 This was the only declaration submitted from any member of the boards of elections in Ohio’s 88 counties. 13 The Secretary notes that “H.B. 197 does not allow for this contemplated group of individuals to arrive at the designated polling places on April 28 to cast provisional ballots in person.” Doc. 44, at 27.
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process, building on the procedures used in other states that predominately conduct elections by mail, and ask that whatever relief the court grants it set a date that will allow Ohioans a meaningful opportunity to participate in the election. Doc. 4 at 2 (number 7).
In this context, Plaintiffs address the SOS’s more specific responses to the relief requested by Plaintiffs: Relief Request 2:14 An order mandating, at least 21 days prior to the close of polls for the 2020 primary election, county boards of elections shall mail all registered electors who have not already voted in the election a primary ballot for each party with candidates on the ballot, return postage pre-paid, with instructions to cast only one ballot and return the ballot in the official pre-paid postage envelope.
The SOS complains that too many ballots will have to be printed, noting—interestingly— that Ohio counties “do not have anywhere near” enough envelopes to accommodate the mailing.15 Doc. 52 at 21. Because only one envelope would be sent to each voter, under either Plaintiffs’ suggested process or the State’s, this means that, even if every voter exercised their right to request an absentee ballot under the State’s process, the counties could not meet that demand. Obviously, the State is not prepared for this primary—at least not for an April 28 primary date. It is not farfetched to predict that there will be a much higher than usual absentee vote, as virtually all voters are staying at home.
And again, both the State and the SOS miss the larger point. The State is already prepared to mail 7.8 million postcards to voters, at an estimated cost of 2.4 million dollars.16 If voters ask for applications to be sent by phone, because they cannot download and print out the application
14 The response to the SOS as to Relief Request (1) is addressed in the NVRA section. 15 Even here, the State exaggerates the number of ballots necessary, claiming that they would need to print 7.7 million Libertarian ballots, Doc. 51, at 21, when in fact Libertarians have primary candidates on the ballot in only 6 of Ohio’s 16 congressional districts, representing just 37% of the population. Vote Free, Ohio!, https://votefreeohio.com/2020-libertarian-candidates/. 16 Sec’y of State, Press Release: Postcard Mailings, (Apr. 4, 2020), https://www.sos.state.oh.us/mediacenter/press-releases/2020/2020-04-02/.
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or write it out in longhand, then there will be another mailing costing untold dollars. Mailing out
the ballots themselves will cost additional dollars to the State. And, voters themselves will have to
potentially spend a total of thousands of dollars in postage to mail in their applications. But
Plaintiffs’ process calls for only one mailing by the State and a pre-paid mailing back of the ballot
by voters.17 It is simpler, potentially less expensive, and the only process that is certain to be
accomplished in the short time given the voters by the legislature.18
Nor is there a basis for the naked claim of administrative burden. Prior to the 2012, 2014,
2016, and 2018 general elections, the Secretary has mailed absentee ballot applications to every
active registered voter, Grandjean Decl., Doc. 44-2, ¶ 15, and in 2018, these applications were
even pre-filled with the voter’s name, current address, and local voter identification number. Id.
¶¶ 23-25. Mailing ballots instead of applications is even easier. Further, in this primary, election
administration costs should be reduced compared to past elections, because there will be a severe
reduction of costs associated with open polling places, fewer to no poll workers, and no operating
costs.19
The SOS’s claim that voters would likely be confused by receiving as many as four ballots
is unsubstantiated. Any potential for confusion is easily addressed with a clear instruction that the
17 The mailing of pre-paid absentee ballots (and provisional ballots) is already a cost allotted for in H.B. 197, H.B. 197, § 32(C)(6)-(7), and the state must be prepared to sent pre-paid ballots to every qualified and registered voter who requests one. 18 We note that neither the State nor the SOS has attempted to justify the failure to pre-pay the postage on the absentee ballot application, with the State arguing that “stamps are widely available for purchase online and at post offices, shipping centers, supply stores, grocery stores, and ATMs.” (State Br. at 17). But the State does not explain how someone without internet or printer access can purchase a stamp “online,” and how people who are ordered to stay home can go out to buy stamps. In addition, the State fails to account for the fact that someone who orders stamps online at the postal service will have to wait at least 3–5 business days for those stamps to arrive. 19 Mass. Institute of Tech., Vote By Mail Reform Memo, (Nov. 2013), http://web.mit.edu/supportthevoter/www/files/2013/11/Vote-by-Mail-Reform-Memo.pdf (noting that academic studies concluded that if Colorado sent all registered voters ballots by mail the state could cut costs by $1.05 per registered vote, and that despite an initial investment of $1.5 million by the state over two fiscal years, this program could save Colorado’s counties $5 million over the same period).
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voter should return only one ballot. In fact, the existing envelope for absentee ballot requires that the voter check off which party ballot the voter is casting.20
The State’s claim that providing multiple ballots would increase the chance for voter fraud (“someone else filling out a voter’s unused ballots”), State Br. at 18, makes no sense. A voter will receive only a single official envelope and must return her ballot in its official envelope, which requires specific identifying information; so, an unused ballot without an associated envelope could not be used effectively. See Northeast Ohio Coal. for the Homeless v. Husted, 837 F. 3d 612, 632 (2012) (rejecting State’s claim that requiring perfection in absentee ballot information prevents fraud and finding that “[y]et some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh”)
Finally, neither the SOS nor the State explain why they are not able to undertake vote-bymail the same way most other vote-by-mail-only states do: by sending ballots to all voters. This includes Colorado, which has an open primary; it has a process under which it sends ballots of all parties to unaffiliated voters.21
If the Court nonetheless finds this relief too burdensome on the State, an alternative is to require the state to mail to the voter a single ballot for the party in whose primary the voter last participated and multiple ballots only to unaffiliated voters. This is acceptable as long as any voter
20 This fact resolves the complaint of the Ohio Democratic Party that it needs application forms to be sent out in order to track affiliated voters. ODP Br. at 8–9. That information is available from the envelopes. Further, in-person voters in Ohio are free to choose any party ballot, so the information ODP seeks would in any event not be available to it under normal circumstances for the vast majority of voters until after the election. The relief Plaintiffs’ seek provides voters with the same choices they would be presented at the polls. 21 The State’s only response to the Colorado example is that Colorado “specifically legislated for the possibility that voters would return multiple ballots.” State Br. 15 n. 10. But the issue is not whether Ohio’s law is different. We are in court, because it is different. The issue is whether Ohio’s law is part of a sufficient justification of the entire process adopted by the General Assembly that threatens to burden Plaintiffs’ right to vote unconstitutionally.
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can call or email her county board of elections to request a different ballot, in order to preserve Ohio’s distinctive primary system in which any voter can choose to vote any party ballot. This alternative would place a lower burden on the state—substantially reducing the number of ballots printed and mailed—but somewhat increase the burden on voters who wish to vote in a different party’s primary than last election. Relief Request (3): An order mandating that any elector who has not received a mail absentee ballot at least 14 days prior to the close of polls for the 2020 primary election may submit a request for such a ballot to their local board of election by phone.
The SOS argues that telephone requests would eliminate “voter verification safeguard.” Doc 52. at 22. But the only voter information that cannot be provided over the telephone is the voter’s signature to an affidavit, and the absentee ballot itself also requires a signature, which must be checked by election officials to verify that the voter’s ballot is eligible to be counted. See Ohio Rev. Code Ann. § 3509.03(B). Thus, a signature safeguard remains. Relief Request: (4) An order mandating that any elector who qualifies for in-person voting pursuant to H.B. 197, § 32(D)(1), and who received a mail absentee ballot, can vote a regular ballot in-person ballot [sic.] if they bring their absentee ballots to their local board of election.
The SOS misunderstands this request. See Doc 52. at 23. Plaintiffs are requesting that, if this Court orders that boards of elections to automatically send all eligible voters who did not vote in the March 17 election absentee ballots, then boards should provide the in-person regular voting option to voters with recognized disabilities who need assistance casting a ballot. This small adjustment would be necessary because, under current Ohio law, voters who requested and received an absentee ballot but decide to vote in person are given only provisional ballots. Ohio Rev. Code Ann. § 3505.181(A)(3). Relief Request (5): An order mandating any elector who does not receive their mail absentee ballot prior to the postmark date for mail absentee ballots shall be permitted to vote a provisional ballot in person at their local board of election.
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The SOS attempts to justify the State’s interest in opposing this relief “[p]resumably to limit the spread of COVID-19.” Doc. 52 at 23. Certainly, setting the primary day for April 28 has increased the chances that in-person voting may occur at the height of the current crisis. Current projections indicate that delaying the primary until late May or early June may be wiser in that regard. In any event, the SOS’s response ignores the realities of the current impact of the public health crisis on the postal system and the fact that an April 25 request deadline and an April 27 postmark deadline for absentee ballots creates a high probability that timely requests will not be honored in time, as can be seen in Plaintiffs’ declarations and in the declarations of fact declarants. If the process were to run as smoothly as the State insists, Defendants should have no concern with this relief since the number of affected voters would be insubstantial. Such a safeguard is necessary to prevent voter disenfranchisement. Relief Request: (6) An order mandating any elector will be permitted to cure any deficiencies in their provisional ballots or absentee ballot identification envelopes by mail, phone, or email up through the day prior to the day the official canvass is required to begin.
Again, ignoring the realities of the current public health crisis, the SOS sees no reason to extend the time for curing provisional ballots for even a short period of time. SOS Br. at 24. But Ohio law requires that provisional voters “appear at the office of the board of elections” to cure deficiencies in their provisional ballots. Ohio Rev. Code Ann. § 3509.181(B)(7). In addition, H.B. 197(F)(1) requires that absentee voters whose absentee ballots boards of elections deem “incomplete . . . shall provide the necessary information to the board of elections.” The law does not clarify how a voter can provide this information without appearing at the board of elections. Under these extraordinary circumstances, there is no justification for the State’s refusal to extend the time for cure.22 For both absentee and provisional ballots, the current date for cure of absentee
22 Further, there is no justification for prohibiting voters from curing their ballot by phone or email, particularly during a public health crisis. In suggesting alterations to the timeline and process set forth in
20

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ballots cast for the election is May 5. H.B. 197(F)(1). Under the circumstances a short extension to allow voters to locate necessary material and travel or mail additional proof of identification to boards of elections is reasonable; and denying it is not
Relief Request: (7) An order mandating the conclusion of the 2020 primary election be set at such a time as will allow election officials to provide orderly notice to electors and administer the election in the manner provided for herein.
Not surprisingly, the Secretary puts up a half-hearted defense of the April 28 date. Doc 44. at 24–25. As noted in Plaintiffs’ opening brief, both the Secretary and county election officials had told the General Assembly that an April 28 date was not feasible. Doc 4. at 4–5. Even now, SOS’s own witness attests that it would be “logistically impossible . . . to send unsolicited absentee ballot applications to all 7.7 million registered voters” and suitably process those applications by April 28. Grandjean Decl., Doc. 44-2, ¶ 36. If the Secretary cannot feasibly provide a ballot to every registered voter by the statutory deadline—in other words, conduct an election in compliance with the U.S. Constitution—then that deadline must be moved.
The Ohio Democratic Party has claimed—even after the Democratic Party moved its Party Convention to August—that it must meet the June 20 deadline for state parties to certify their delegations to the Convention. See ODP Br. at 5, ECF No. 25-2. But the ODP’s own 2020 Delegate Selection Plan expressly provides the ODP Chair the authority to change the schedule of the plan if the State of Ohio changes the date of the primary election. ODP Br. at 15, ECF No. 25-2 (“In the event that the State of Ohio changes the date of Ohio’s Primary, the Chair of the Ohio Democratic Party is hereby granted the authority to change the dates within this plan to comply with State law.”). Moreover, the DNC 2020 Delegate Selection Rules provide for a primary election to be held as late as June 9, 2020. DNC 2020 Delegate
H.B. 197, the Ohio Association of Election Officials stated: “Voters should be able to correct mistakes on their absentee ballot applications via email or telephone as opposed to the normal process.” OAEO Letter, Doc. 4-5 at 2. There is no reason provided for why these same types of accommodations cannot be provided for voters needing to cure their ballots.
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Selection

Rules,

Rule

12(A),

at

*12,

https://democrats.org/wp-

content/uploads/sites/2/2019/07/Regulations-of-the-RBC-for-the-2020-Convention-12.17.18-FINAL.pdf.

While the ODP argues its 47-day post-certification process means the election must be held on

April 28, 2020 to comply with the DNC’s June 20, 2020 deadline for selecting the state party’s delegates,

nowhere in their briefing do they justify why that schedule cannot be truncated given the extraordinary

hardships faced by Ohio voters dealing with the COVID-19 public health emergency while trying to

exercise their constitutionally protected right to vote. For example, the ODP’s timeline for delegate

selection includes 11 days allotted for PLEO’s and at-large delegates to file their candidacy declarations

with the ODP chair and nine days allotted for presidential campaigns to submit a list of committee

candidates to the ODP chair. ODP Br. at 6, ECF No. 25-2. Moreover, at least three other states have moved

the presidential primary election date itself either on or past the June 20, 2020 DNC deadline. At the time

of this filing, neither Louisiana, whose primary is scheduled on June 20, nor Kentucky and New York,

whose primaries are scheduled on June 23, have faced any repercussions for violating the DNC rules.

Jonathan Easley, DNC Calls on States Not to Postpone Primaries, The Hill, Mar. 17, 2020,

https://thehill.com/homenews/campaign/488111-dnc-calls-on-states-not-to-postpone-primaries; Stephanie

Saul, Cuomo Postpones New York’s Primary Election to June 23 Because of Coronavirus, N.Y. Times,

Mar. 28, 2020, https://www.nytimes.com/2020/03/28/us/politics/ny-primary-voting-coronavirus.html In

addition, to the best of Plaintiffs’ knowledge, no state Democratic Party in the eight states that have

postponed their primary elections to June has filed an action similar to ODP’s demanding an earlier date

citing difficulty selecting delegates to the, now delayed, convention.”

Relief Request: (8) An order mandating Secretary LaRose to issue a directive notifying Ohio’s eighty-eight county boards of elections of the aforementioned requirements; and to educate and inform electors about: the timeline and process for voting in the upcoming election; and that if they did not receive an absentee ballot in the mail they may contact their boards of elections and (a) confirm whether they have been sent a ballot, and (b) if they have not received a ballot, request a ballot by phone.

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The SOS does not dispute his obligation to fully inform and educate the public as to changes in the voting process. This Court has had to order the Secretary of State to make sufficient communications to voters in the past. See Ohio A. Phillip Randolph Inst. v. Husted, 2016 WL 6093371, at *7–8 (S.D. Ohio Oct. 19, 2016). The SOS has not made sufficient communications to educate voters who are unfamiliar with the vote-by-mail process. Plaintiffs continue to field calls from voters who do not know how to request absentee ballots, who express confusion as to which address they must mail their ballots, and who express frustration because they remain uncertain as to the date of the election. Ex. 2, Suppl. Miller Decl. ¶¶ 2, 4. The SOS plans to send postcards to 7.7 million voters, but as discussed previously, are one postcard mailing and materials on the SOS’s website sufficient to educate voters? The answer is “no”. More time and better education would serve Ohioans best and help ensure an inclusive and fair election. III.THE REMAINING EQUITIES SUPPORT PLAINTIFFS’ REQUEST FOR
EMERGENCY RELIEF. That the General Assembly has the “prerogative” to set Ohio’s election schedule, State Br.
at 20, does not immunize the State from liability for unconstitutional action. Plaintiffs do not ask this Court to “intrude upon the Ohio legislature’s prerogative lightly.” Id. Rather, Plaintiffs ask the Court to act with due circumspection and with respect for the General Assembly, on a record that overwhelmingly supports the threat to Plaintiffs’ fundamental right to vote.
In this context, the Court can assess the various parties’ reliance on Purcell v. Gonzalez, 549 U.S. 1 (2006), for the proposition that this Court must reject all relief for Ohio voters out of deference to the “status quo.” The status quo for Ohio’s primary election was to hold the election on March 17, 2020. That status quo has been wiped out by the COVID-19 public health emergency. A primary election on April 28, 2020 was never the status quo in Ohio prior to the global pandemic which we are now experiencing. Indeed, the April 28 date was first adopted only one week ago on
23

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March 27, 2020, as part of a vital coronavirus relief bill, and in direct contravention of warnings of Ohio’s Secretary of State and local elections officials that an April 28 date was completely unworkable.
Purcell in no way prevents relief in the current circumstances. Purcell declined to provide relief in Arizona’s 2006 elections against application of a voter ID requirement that Arizona had adopted in 2004, two years before plaintiffs filed suit. 549 U.S. at 2. After Purcell, many courts have granted pre-election relief in circumstances much more similar to those here. For example, in Northeast Ohio Coalition for the Homeless v. Husted, 696 F.3d 580 (6th Cir. 2012), the Sixth Circuit upheld relief granted shortly before the 2012 general election to ensure that ballots cast in the wrong precinct because of poll worker error could be corrected and counted.
Similarly, a recent decision responding to COVID-19 concerns in Wisconsin held that extension of the voter registration deadline was consistent with Purcell, noting that “it is apparent that some accommodation is necessary to preserve citizens’ right to vote amidst this unprecedented public health crisis.” Democratic Nat’l Comm. v. Bostelmann, 2020 U.S. Dist. LEXIS 48394, *24 (W.D. Wis. Mar. 20, 2020). The same court subsequently issued a preliminary injunction easing absentee balloting deadlines and procedures in order to protect the right to vote in the state’s upcoming April 7 election. Democratic Nat’l Comm. v. Bostelmann, 2020 U.S. Dist LEXIS 57918 (E.D. Wis. Apr. 2, 2020). In Georgia Coal. for the Peoples’ Agenda, Inc. v. Deal, the court extended the period for voter registration after a hurricane had prevented timely submission of voter registration applications, distinguishing Purcell and stating “the Court does not discount that the extension would present some administrative difficulty. However, those administrative hurdles pale in comparison to the physical, emotional, and financial strain Chatham County residents faced in the aftermath of Hurricane Matthew.” 214 F. Supp. 3d 1344, 1345 (S.D. Ga. 2016).
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The Sixth Circuit has emphasized that it does not construe Purcell as having outlined “a categorically higher burden for Plaintiffs who move for relief soon before an election, and this Court has explicitly rejected such a notion. A. Philip Randolph Inst. v. Husted, 907 F. 3d 913, 918 (6th Cir. 2018), citing Ohio Republican Party v. Brunner, 544 F. 3d 711, 718 (6th Cir. 2008) (en banc). In fact, it is not unusual for a court to issue relief to protect the fundamental right to vote in the midst of an election cycle. See, e.g., Martin v. Kemp, 341 F. Supp. 3d 1326 (N.D. Ga. 2018) (ordering improvements to absentee balloting procedures shortly before 2018 general election), application for stay pending appeal denied sub nom. Ga. Muslim Voter Project v. Kemp, 918 F.3d 1262, 1274 (11th Cir. March 21, 2019) (Pryor, J., concurring) (“‘A stay [of the relief ordered by the district court] would disenfranchise many eligible electors whose ballots were rejected’ for a perceived signature mismatch even when they were eligible to vote. And public knowledge that legitimate votes were not counted due to no fault of the voters . . . would be harmful to the public’s perception of the election’s legitimacy.” (citations omitted)); Common Cause of Georgia v. Kemp, 347 F. Supp. 3d 1270, 1298-99 (N.D. Ga. 2018) (granting, twenty-two days before a scheduled runoff election, a temporary restraining order pushing back the certification of Georgia’s 2018 general election due to concerns about counting provisional ballots, in spite of Defendant’s claim that even a day of delay would have a “massive impact on every Georgia runoff election,” and still recognizing “the State has a critically important interest in the orderly conduct of elections”); Ga. Coalition for the People’s Agenda v. Kemp, 347 F. Supp. 3d 1251, 1268 (N.D. Ga. 2018) (granting an emergency preliminary injunction four days before the 2018 general election providing voting opportunities for those flagged due to citizenship while “recogniz[ing] the administrative burden the Court’s order may place on the Defendant, particularly this close to the election” and yet
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finding the burden “is minimal compared to the potential loss of a right to vote altogether by a group of people”).
Amicus Honest Elections points to cases in Florida and Arkansas in which courts denied requests for emergency relief with respect to absentee balloting. Mays v. Thurston, 2020 U.S. Dist. LEXIS 54498 (E.D. Ark. March 30, 2020); Williams v. DeSantis, Case No. 1:20-cv-67-RH-GRJ (N.D. Fla., Order, Mar. 17, 2020). These cases are inapposite. In Mays, the plaintiffs sought relief just two working days before the election; and in Williams, plaintiffs sought relief the day before the election. Here, the plaintiffs sought relief well before the newly scheduled April 28 election. Moreover, in none of the cases relied upon by opposing parties was the state’s chief election official on record stating unequivocally that the election simply cannot be administered within the time set by the legislature [cite to exhibits], which is the situation confronted by this Court.
Most important, the defending parties cannot rely on a doctrine that presumes a stable status quo in the circumstances here, where the defending parties themselves have upended the status quo in numerous ways as the election was unfolding. No matter how understandable the reasons, the status quo was upended when the March 17, 2020 election was cancelled on March 16, 2020, one day before it was scheduled to begin, and the Secretary rescheduled it for June 2, 2020. The legislature similarly upended the status quo when it countermanded both the March 17 and June 2 dates, and rescheduled the election for April 28, a date which all the officials responsible for actually running the election agreed would be impossible to meet. Under these unusual circumstances, it is untenable for any party to invoke the status quo, rather than seeking a solution that will protect the right to vote for as many eligible persons as possible while preserving the State’s ability to conduct the election. The relief sought by Plaintiffs uniquely serves these twin goals and should be granted.
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CONCLUSION For the reasons set forth above, and in Plaintiffs’ opening brief, Plaintiffs respectfully request that this Court grant them the emergency relief they set forth in their proposed order.

Dated: April 3, 2020

Respectfully submitted,

Ezra D. Rosenberg (admitted pro hac vice) Jon M. Greenbaum (admitted pro hac vice) Pooja Chaudhuri (admitted pro hac vice) Jacob Conarck (admitted pro hac vice) Lawyers’ Committee For Civil Rights Under Law 1500 K Street, NW, Ste. 900 Washington, D.C. 20005 (202) 662-8600 erosenberg@lawyerscommittee.org jgreenbaum@lawyerscommittee.org pchaudhuri@lawyerscommittee.org jconarck@lawyerscommittee.org
Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, Ohio 44103 (216) 472-2220 flevenson@acluohio.org

/s/ Naila S. Awan_________ Naila S. Awan, Trial Attorney (0088147) Brenda Wright* Emerson Gordon-Marvin (admitted pro hac vice) Dēmos 80 Broad St, 4th Floor New York, NY 10004 (212) 485-6055 nawan@demos.org bwright@demos.org egordonmarvin@demos.org
Chiraag Bains (admitted pro hac vice) Adam Lioz (admitted pro hac vice) Dēmos 740 6th Street NW, 2nd Floor Washington, DC 20001 (202) 864-2746 cbains@demos.org alioz@demos.org

David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Suite 203 Columbus, Ohio 43206 (614) 586-1972 dcarey@acluohio.org

*pro hac vice forthcoming

Attorneys for the Plaintiffs

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I do hereby certify on the 3rd day of April, 2020, that the foregoing document was filed via this Court’s CM/ECF system. Notice of this filing will be sent by operation of that system to all parties of record, who may access it through the Court’s system.
/s/ Naila S. Awan Naila S. Awan (0088147) Attorney for Plaintiffs
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

League of Women Voters of Ohio, et al.,

Plaintiffs,

Case No. 2:20-cv-1638

v.

Judge Michael H. Watson

Frank LaRose,

Magistrate Judge Deavers

Defendant.

OPINION AND ORDER

Plaintiffs sue Ohio Secretary of State Frank LaRose (“Secretary LaRose”)

and seek an emergency temporary restraining order (“TRO”) to prevent Ohio’s

primary election from taking place in the time and manner prescribed by House

Bill 197 (“H.B. 197”). Mot., ECF No. 4. The State of Ohio, the Ohio Democratic

Party (“ODP”), and the Ohio Republican Party (“ORP”) moved for, and were

granted, leave to intervene as Defendants. Order, ECF No. 38. Likewise, the

Libertarian Party of Ohio (“LPO”) moved for, and was granted, leave to intervene

as a Plaintiff. Id. LPO moves for a TRO or preliminary injunction as well.1 ECF

No. 31. The Court granted Honest Elections Project’s motion to file an amicus

1 The Court has reviewed LPO’s reply brief, ECF No. 53, but does not consider the arguments (not to mention new claims) raised for the first time in that brief.

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brief, ECF No. 25, and the Court now grants Disability Rights Ohio’s (“DRO”) motion to file an amicus brief, ECF No. 54-1.2
I. FACTS3 A. Background Ohio’s primary election was scheduled for March 17, 2020. On March 9, 2020, Governor Mike DeWine declared a state of emergency in response to the spread of COVID-19. Within a matter of days, the World Health Organization declared COVID-19 a pandemic, President Donald Trump declared the COVID19 outbreak a national emergency, and, in Ohio, all schools were closed, gatherings limited, and restaurants and bars closed for dining-in. Confusion ensued on March 16, 2020, the day before the election, after Governor DeWine announced that it was unsafe to hold in-person voting for the primary election. A lawsuit was filed in the Franklin County Court of Common Pleas seeking an emergency delay of the election, but the request was denied later that same day. Ultimately, Ohio’s Department of Health Director Dr. Amy Acton issued an order prohibiting polling locations from operating on March 17, 2020, due to the COVID-19 pandemic. Thereafter, Secretary LaRose issued

2 To the extent DRO seeks to argue a new claim, such as a claim that H.B. 197 violates the ADA, that is not included in Plaintiffs’ Amended Complaint, the Court does not consider it. 3 All relevant facts are taken from Plaintiffs’ Amended Complaint, ECF No. 4, unless stated otherwise.

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Directive 2020-06, which suspended in-person voting in the primary election until June 2, 2020. See LaRose Ex 3, ECF No. 44-3.
On March 17, 2020, two lawsuits were filed in the Ohio Supreme Court and Franklin County Court of Common Pleas challenging Secretary LaRose’s authority to issue that Directive. See State ex rel. Ohio Democratic Party v. LaRose, No. 2020-0388 (Ohio Sup. Ct. Mar. 17, 2020); Reardon v. LaRose, No. 20-cv-2105 (Franklin Cty. Ct. Com. Pl. Mar. 17, 2020)4. The case filed in the Supreme Court requested that the date of the primary be re-set for an earlier time and that voting be only through the mail.5
The Ohio General Assembly became involved and on March 25, 2020, unanimously passed H.B. 197, a comprehensive COVID-19 bill, which also established April 28, 2020, as the deadline by which absentee ballots must be received. Secretary LaRose rescinded his prior directive, and on March 27, 2020, Governor DeWine signed the bill into law. It is that bill that is challenged in this lawsuit.
Specifically, H.B. 197, Section 32, part of an overarching COVID-19 relief bill, implements, as relevant, the following for completing voting in Ohio’s primary election:

4 Appeal voluntarily dismissed on March 31, 2020. See Reardon, et al. v. LaRose, No. 20AP-160 (10th Dist. Ohio Mar. 31, 2020). 5 ODP voluntarily dismissed its lawsuit in the Ohio Supreme Court after H.B. 197 was passed. ODP Resp. 4 n.1, ECF No. 48; see also State ex rel. Ohio Democratic Party v. LaRose, 202 Ohio LEXIS 762, (Sup. Ct. Ohio Mar. 27, 2020) (Order granting ODP’s application for dismissal).

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• Voids Secretary LaRose’s Directive 2020-06, § 32(A); • Prohibits the processing of voter registration applications
submitted after February 18, 2020, § 32(B)(3); • Permits eligible voters to apply for an absentee ballot up
through noon on April 25, 2020 (with exceptions for voters under O.R.C. § 3509.08) and votes cast by absentee mail ballot6 postmarked by April 27, 2020, and received by May 8, 20207, to be counted, § 32(C), (E)
o Defines eligible electors as those individuals who have not already cast a ballot in the March 17, 2020 primary election or other special election, and who were registered to vote as of February 18, 2020, § 32(C)(1)(a); and
• Requires Secretary LaRose to send out postcards to registered voters notifying them how to apply for and submit an absentee ballot and the deadlines for doing so. § 32(C)(2).8
H.B. 197, Section 32.
Plaintiffs allege that, by prohibiting the processing of voter registration
applications after February 18, 2020, H.B. 197 violates the National Voter
Registration Act of 1993 (“NVRA”), which requires registration be made available

6 With very limited exceptions for in-person voting. § 32(D)(1). 7 With limited exceptions. § 32(E)(2)–(3). 8 Currently Ohio Revised Code § 3509.03 requires applicants to “make a written application” for absentee ballots. Plaintiffs allege that this requirement will disproportionately burden voters who do not have means for or access to printers, envelopes, or stamps. However, the Court takes judicial notice of the FAQ section of the Secretary of State’s website which does not require a pre-printed form, as long as a written submission of a request for an absentee ballot includes the required information. It also permits calling your county board of elections and requesting that an absentee ballot application be sent to you. See Ohio Secretary of State Website, “I don’t have a printer. Can I request a vote-by-mail ballot?;” https://www.sos.state.oh.us/elections/voters/2020-primary-frequently-asked-questions/, last visited April 1, 2020. It still appears, however, that the voter is responsible for postage required to mail-in the absentee ballot application.

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thirty days before any election for federal office. Plaintiffs also argue that H.B.
197 creates an unconstitutional burden on the right to vote, in violation of the
First and Fourteenth Amendments.
Plaintiffs seek a temporary restraining order that mandates the following:
(1)Any qualified Ohio elector who submitted a voter registration application or updated their registration information between February 19, 2020, and 30 days prior to the day on which the 2020 primary election is set to conclude shall have their registration information processed and be permitted to vote in the 2020 Primary Election;
(2)At least 21 days prior to the close of polls for the 2020 primary election, county boards of elections shall mail all registered electors who have not already voted in the election a primary ballot for each party with candidates on the ballot, return postage pre-paid, with instructions to cast only one ballot and return the ballot in the official pre-paid postage envelope;
(3)Any elector who has not received a mail absentee ballot at least 14 days prior to the close of polls for the 2020 primary election may submit a request for such a ballot to their local board of election by phone;
(4)Any elector who qualifies for in-person voting pursuant to H.B. 197, § 32(D)(1), and who received a mail absentee ballot, can vote a regular in-person ballot if they bring their absentee ballots to their local board of election;
(5)Any elector who does not receive their mail absentee ballot prior to the postmark date for mail absentee ballots shall be permitted to vote a provisional ballot in person at their local board of election;
(6)Any elector will be permitted to cure any deficiencies in their provisional ballots or absentee ballot identification envelopes by mail, phone, or email up through the day prior to the day the official canvass is required to begin;
(7)The conclusion of the 2020 primary election be set at such a time as will allow election officials to provide orderly notice to electors and administer the election in the manner provided for herein;

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(8)Defendant LaRose to issue a directive notifying Ohio’s eighty-eight county boards of elections of the aforementioned requirements; and
(9)Defendant LaRose to educate and inform electors about: the timeline and process for voting in the upcoming election; and that if they did not receive an absentee ballot in the mail they may contact their boards of elections and (a) confirm whether they have been sent a ballot, and (2) if they have not received a ballot, request a ballot by phone. TRO Mot. 1–2, ECF No. 4.
Furthermore, as noted above, the Court has granted permission for the
State of Ohio, the ODP, the LPO, and the RPO to intervene in this action. The
Court also granted Honest Elections Project’s and DRO’s motions to file amicus
briefs. While the Court does not set forth each of their arguments herein, it has
considered everything submitted by these parties in coming to this Opinion and
Order. The Court will discuss certain of their arguments, where appropriate,
infra.
II. STANDARD OF REVIEW
Plaintiffs seek injunctive relief pursuant to Federal Rule of Civil Procedure
65. In determining whether to grant such relief, the Court considers four factors:
(1) whether the movant has established a substantial probability of success on
the merits; (2) whether the movant would suffer irreparable harm in the absence
of an injunction; (3) whether an injunction would substantially harm third parties;
and (4) whether an injunction would serve the public interest. Winnett v.
Caterpillar, Inc., 609 F.3d 404, 408 (6th Cir. 2010). The factors are not

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prerequisites; rather, they must be balanced in weighing the equities involved. Capobianco, D.C. v. Summers, 377 F.3d 559, 561 (6th Cir. 2004).
III. ANALYSIS As a preliminary matter, no party has disputed Plaintiffs’ standing in this case, but the Court has an independent duty to ascertain whether the plaintiffs in a case have standing. The Court has reviewed Plaintiffs’ standing argument and is satisfied that standing exists to assert these claims. Accordingly, the Court turns to an analysis of the TRO factors. A. Likelihood of Success on the Merits 1. The National Voter Registration Act of 1993 Plaintiffs first allege that H.B. 197 violates the NVRA’s thirty-day registration requirement by prohibiting boards of elections from processing any voter registration applications received after February 18, 2020. Pls.’ Mot. 13, ECF No. 4 (citing 52 U.S.C. § 20507(a)(1))9. ODP agrees with Plaintiffs and argues that by establishing April 28, 2020, as the last day for voting, the Ohio legislature effectively set a new date for Ohio’s primary election. ODP Resp. 10, ECF No. 48. ODP advances their argument under both the NVRA and Article V, Section 1 of the Ohio Constitution, which largely mirrors the NVRA’s requirements and establishes that all citizens

9 Formerly codified at 42 U.S.C. §§ 1973–1973gg-10. Case No. 2:20-cv-1638

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over eighteen years old, who have “been registered to vote for thirty days, ha[ve] the qualifications of an elector, and [are] entitled to vote at all elections.”
LPO echoes Plaintiffs’ and ODP’s arguments and adds that H.B. 197 violates Article I, § 4 of the United States Constitution by interfering with Congress’s authority to regulate the time and manner of federal elections. LPO Mot. 10–11, ECF No. 31.
The State of Ohio contends that Plaintiffs are operating under the faulty premise that the Ohio 2020 primary election was moved to April 28, 2020.10 State of Ohio Resp. 8, ECF No. 52. Instead, the State of Ohio argues that the primary election was not cancelled on March 16, 2020, only the polling locations for in-person voting the next day were closed due to a public health crisis. Id. at 9. Likewise, the State of Ohio argues that H.B. 197 did not cancel or reset the 2020 primary election to April 28, 2020, it just extended the deadline by which already registered voters could cast an absentee ballot. Id. In support, they argue that H.B. 197 does not establish a new election date because all votes already cast in the 2020 primary election up and through March 16, 2020, are being held and will be counted. Id. (citing H.B. 197 § 32(B)). Thus, the State of Ohio argues, this is not “a ‘re-do’ of the primary election” that requires a reopening of voter registration. Id. at 10. Rather, this is an “election modification” in that Secretary LaRose is “accept[ing] as valid everything that transpired before

10 Secretary LaRose advances similar arguments. See Secretary LaRose Memo in Opp. 14–18, ECF No. 44.

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an election emergency arose and simply authoriz[ing] additional methods of, or time for, voting.” Id. at 11 (quoting Morley, Michael T., Symposium: Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 Emory L.J. 545, 548–50 (2018)) (comparing an election modification, such as here, with an election cancellation, which entirely nullifies the originally scheduled election with the expectation that a new one will be held at a later date).
“In 1993, Congress passed the NVRA as a measure meant to reinforce the right of qualified citizens to vote.” U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 376 (6th Cir. 2008) (citation omitted). “The NVRA reflects the view of Congress that the right to vote ‘is a fundamental right,’ that government has a duty to ‘promote the exercise of that right,’ and that discriminatory and unfair registration laws can have a ‘damaging effect on voter participation’ and ‘disproportionately harm voter participation by various groups, including racial minorities.’” Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 334 (4th Cir. 2012) (citations to former code provision omitted). Section 8(a)(1) of the NVRA provides that “each State shall . . . insure that any eligible applicant is registered to vote in an election . . . not later than . . . 30 days . . . before the date of the election.” 52 U.S.C. § 20507(a)(1).11 Under the NVRA, “election” means “a

11 “A person is registered to vote for purposes of Section 8 when ‘the valid voter registration form of the applicant is: (1) ‘submitted to the appropriate State motor vehicle authority’ in accordance with 52 U.S.C. § 20504 (registration by application simultaneous with an application for a motor vehicle driver’s license); (2) submitted by postmarked mail in accordance with 52 U.S.C. § 20505; (3) ‘accepted at the voter

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general, special, primary, or runoff election.” See 52 U.S.C. § 20502 (terms synonymous with meanings set forth in 52 U.S.C. § 30101).
Here, Plaintiffs’ arguments under the NVRA are unlikely to succeed on the merits because the cases upon which Plaintiffs rely are distinguishable, and Ohio has complied with the NVRA’s requirements.
Ohio’s extension of its absentee ballot deadline is not comparable to the cases upon which Plaintiffs rely. For example, in Kemp, there was a special runoff election scheduled more than thirty days after the original voter registration deadline established for the general election. See Georgia St. Conf. of the NAACP v. Kemp, No. 1:17-cv-1397, Order on Preliminary Injunction, Doc. 29 (N.D. Ga. May 4, 2017). The court in that case found that the failure to permit voters to register up until thirty days before the runoff election violated the NVRA. But the runoff election in that case was a new election, with new candidates and different ballots, thereby triggering the NVRA’s registration provision.
In Arizona Democratic Party v. Reagan, the district court found that the Arizona Secretary of State’s failure to account for a federal holiday (Columbus Day) in establishing its voter registration deadline for the general election violated the NVRA’s thirty-day requirement because otherwise eligible voters were unable

registration agency’ in accordance with 52 U.S.C. § 20506 (in-person registration at registration sites or government offices designated by each state); or (4) otherwise ‘received by the appropriate State election official.’ 52 U.S.C. § 20507(a)(1)(A) — (D).” Ariz. Democratic Party v. Reagan, No. CV-16-03618, 2016 U.S. Dist. LEXIS 153431, at *41 (D. Az. Nov. 3, 2016) (citation omitted).

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to submit their applications when the post office was closed for the holiday. 2016

U.S. Dist. LEXIS 153431, at **40–47.

The State of Ohio and Secretary LaRose correctly distinguish between an

election modification, which we have here, and an election cancellation. COVID-

19 presented Defendants with an unprecedented situation where in-person

voting was no longer safe because of a global-health crisis. But unlike in Kemp

or Reagan, there is not a new election scheduled for April 28, 2020. Rather, this

is just a modification and extension of the date by which voters—who were

otherwise eligible and prepared to cast their votes in-person on March 17,

2020—can submit their votes, primarily by absentee ballot. Under Ohio law,

eligible persons interested in voting in Ohio’s March 17, 2020 primary were

required to register by February 18, 2020. That February deadline came and

went before any change was made to the March 17, 2020 in-person voting. In

other words, had in-person voting taken place on March 17, 2020, people who

had not registered to vote by February 18, 2020, would not have been able to

show up that day and cast a vote. As such, the State complied with the NVRA in

granting registration up to thirty days before “the election.”

House Bill 197 does not change the date of “the election”; it merely

extends the deadline for submitting absentee ballots for the March 17, 2020

election until April 28, 2020, and established that only certain people could

submit their votes in person on April 28, 2020. By its own terms, it refers to the

election as the “March 17, 2020 primary election.” E.g., H.B. 197 § 32(B)(1), (2),

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(C)(1). It provides methods for voters “who ha[d] not already cast a ballot in the March 17, 2020, primary election” to vote “in that election.” Id. at (C)(1). Because H.B. 197 does not establish a new election or new election date, Ohio did not violate the NVRA by leaving the cut-off for voter registration as February 18, 2020. Cf. Morley, 67 Emory L.J. at 554 (discussing how New York employed a similar election modification process after the September 11, 2001 terrorist attack in that it did not extend the voter registration deadline but did extend the deadline by which already registered voters could request an absentee ballot, although this action appears not to have been challenged under the NVRA).
Finally, although the Court does not rely on the intent of the statute, the Court finds that this decision is not contrary to the purpose of the NVRA. Granting Plaintiffs’ requested relief would not protect the ability of individuals to register, but, instead, would confer an extra benefit to a group of people who had missed their window of opportunity to register by February 18, 2020, before any change was made by the Ohio legislature.
For these reasons, the Court finds that Plaintiffs are unlikely to succeed on the merits of their NVRA claim. For the same reasons, the Court finds LPO is unlikely to succeed on its argument that the Ohio Legislature has exceeded its authority and violated Article I, § 4 of the United States Constitution by keeping the registration date February 18, 2020.

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2. First and Fourteenth Amendments

Plaintiffs also contend that the Ohio Legislature’s changes to the voting

procedures for the March 17, 2020 primary election amount to an

unconstitutional burden on the right to vote in violation of the First and Fourteenth

Amendments.

Voting is a fundamental and precious right, and “[o]ther rights, even the

most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders,

376 U.S. 1, 17 (1964). However, “there must be a substantial regulation of

elections if they are to be fair and honest and if some sort of order, rather than

chaos, is to accompany the democratic processes.” Anderson v. Celebrezze,

460 U.S. 780, 788 (1983) (internal quotation marks and citation omitted). “To

achieve these necessary objectives, States have enacted comprehensive and

sometimes complex election codes. Each provision of these schemes . . .

affects—at least to some degree—the individual’s right to vote . . . .” Id.

“Nevertheless, the state’s important regulatory interests are generally sufficient to

justify reasonable, nondiscriminatory restrictions.” Id. Indeed, voting regulations

do not automatically trigger strict scrutiny even when they impact the right to vote

because, as the Supreme Court has instructed, “states ‘may, and inevitably must,

enact reasonable regulations of parties, elections, and ballots to reduce election-

and campaign-related disorder.’” Libertarian Party of Ohio v. Blackwell, 462 F.3d

579, 585 (6th Cir. 2006) (quoting Timmons v. Twin Cities Area New Party, 520

U.S. 351, 358 (1997); citing Storer v. Brown, 415 U.S. 724, 730 (1974)).

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The Court must determine the nature of the burden the regulation places
on voters when setting the standard of review to apply. “While a rational basis
standard applies to state regulations that do not burden the fundamental right to
vote, strict scrutiny applies when a state’s restriction imposes ‘severe’ burdens.”
NE Ohio Coalition for Homeless v. Husted, 696 F.3d 580, 592 (6th Cir. 2012)
(citing Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012)). If, however,
the Court finds that Plaintiffs’ right to vote is burdened, but not “severely”
burdened, the Court analyzes Plaintiffs’ claim under the flexible Anderson-
Burdick standard.
Under the Anderson-Burdick test,
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 v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at
789). “There is no ‘litmus test’ to separate valid from invalid 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
Am., 697 F.3d at 429 (quoting Crawford v. Marion Cty. Election Bd., 553 U.S.
181, 190 (2008) (Stevens, J., announcing the judgment of the Court)). “However
slight that burden may appear . . . it must be justified by relevant and legitimate

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state interests ‘sufficiently weighty to justify the limitation.’” Crawford, 533 U.S. at 191 (citation omitted).
a. Burden on the Right to Vote Under the Anderson-Burdick test, the Court must first “consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789. Plaintiffs allege that H.B. 197 provides insufficient time to effectively conduct voting in Ohio. In support, they point to Secretary LaRose’s own statements to the Ohio General Assembly, which advocated for a June 2, 2020 deadline. See Secretary LaRose Letter to Legislatures, dated March 21, 2020, Am. Compl. ¶ 44, ECF No. 5. Plaintiffs also allege that the process for extending voting primarily through absentee ballots is unnecessarily complicated and cumbersome, thereby disenfranchising or discouraging voters from participating. For example, H.B. 197 requires eligible voters to correctly fill out an absentee ballot application (either by printing it out or writing it down on some sort of paper); mail it to their local board of elections using their own stamps and envelopes; wait for their application to be processed; receive their ballot in the mail; fill the ballot out correctly; and mail the ballot back so that it is postmarked by April 27, 2020. All of this must take place for millions of Ohio voters.

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Plaintiffs contend that this process in this tight timeframe “leaves no room for delay” because there may not be time to correct any errors in the applications in time to postmark absentee ballots by April 27, 2020, if the initial absentee ballot application requests are denied. Further, they argue, the length of this process could be compounded by delays at the post office or restrictions in place because of the COVID-19 pandemic, resulting in some voters being unable to postmark their ballots in time to be counted. Plaintiffs also argue that the mail-in only option burdens voters’ rights to vote, especially those who are economically disadvantaged, by requiring voters to access a printer to print off the official ballot request form12 and to obtain postage for the absentee ballot request. Additionally, Plaintiffs allege that the in-person voting options provided for in H.B. 197 are insufficient and too narrowly drawn, thereby disenfranchising voters who are unable to complete the absentee ballot process or who would otherwise prefer to vote in person. Plaintiffs argue that all of the above-described aspects of H.B. 197 make it a severe burden on the right to vote.
The Court finds H.B. 197 does not impose a severe burden on the right to vote. First, voters had various opportunities to vote, both by mail and in person, prior to late March 16, 2020, when the polls were closed.
Second, under H.B. 197, certain voters can still vote in person on April 28, 2020.

12 As noted just above and again, infra, voters need not possess a printer to request an absentee ballot.

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Third, all voters who have not yet voted and who cannot vote in person on

April 28, 2020, can still vote by requesting and submitting a mail-in ballot.

Plaintiffs contend that the deadline for doing so, and the requirements of printing

out the ballot request form and obtaining proper postage to submit the ballot

request, unduly burden the right to vote.

The Court recognizes that due to the current COVID-19 pandemic, which

has required many places of business (including libraries and other places where

Plaintiffs may wish to print a ballot request form) to close, voters may face a

difficulty submitting the ballot request form. But, Secretary LaRose has already

taken steps to make submission as easy as possible by, for example, permitting

voters to submit a ballot request on any piece of paper containing the required

information instead of requiring voters to submit the official ballot request form.

Further, voters can request the absentee ballot application by calling their county

board of elections.

The requirement that voters affix a stamp to their ballot application is no

more than a minimal burden as stamps are available at multiple locations that

remain open during the Governor’s stay-at-home order, including grocery stores.

Those who do not wish to leave their homes to purchase stamps can purchase

them online. And, contrary to Plaintiffs’ assertion, Secretary LaRose’s mailing of

informative postcards does not cause any delay—voters need not wait to receive

the postcard; they are free to begin requesting their absentee ballots prior to

receiving that postcard.

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Still, given that H.B. 197 sets the voting deadline at April 28, 2020, the bill creates a tight deadline to accomplish the proper request and submission of a ballot. The Court therefore concludes that H.B. 197 creates, at most, a modest burden on the right to vote and will be analyzed under the Anderson-Burdick framework. It is not a severe burden subject to strict scrutiny.
b. The State’s Interests The Court agrees with Defendant and Intervenor Defendants that the State’s interests outweigh the burdens caused by the generally applicable, nondiscriminatory procedures laid out in H.B. 197. Certainly, the State has an interest in curbing the global COVID-19 pandemic. The prohibition of gatherings of large amounts of people is central to the President’s guidelines on social distancing that are effective until April 30, 2020, and the Governor’s stay-at-home order for the State of Ohio, which has been extended to May 1, 2020. Accordingly, the State has a strong interest in limiting in-person voting during this period of crisis. Limiting in-person voting to only those who are disabled or unable to receive mail is a justifiable burden on the rights of those who would otherwise prefer to vote in person13 but can vote by mail when weighed against the State’s interest in preventing its hospitals from

13 The Court also notes the inconsistency between Plaintiffs arguing, on the one hand, that the inability to vote in person is an unconstitutional burden on their right to vote and, on the other, that some voters will be unconstitutionally burdened by having to potentially expose themselves or their family members to the virus at a post office in order to obtain postage to mail an absentee ballot application.

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exceeding critical capacity and preventing as many illnesses and deaths from COVID-19 as possible. It also prohibits the disenfranchisement of persons who are categorically unable to vote by mail due to disability or the inability to receive mail.
Further, Secretary LaRose, the State of Ohio, and ODP have adequately explained the justifications for requiring voters to submit an application for an absentee ballot rather than mailing out ballots directly to voters. As Secretary LaRose explained, he is required by law to properly verify a voter’s identity and a voter’s signature—whether submitted absentee by mail, early in-person, or at the polls on election day—as part of that verification process. LaRose Resp. 22, ECF No. 44 (citing R.C. 3505.18; 3509.03(B)(5)). Thus, allowing a person to request an absentee ballot over the phone or online without an accompanying signature undermines that important voter verification safeguard. Id.
Moreover, this is a primary election, and voters in Ohio can only vote in one primary. If voters did not request a particular ballot, they would not be able to register with one of the political parties. Moreover, Secretary LaRose would have to mail up to four separate ballots to every voter.14 It would require a massive undertaking to print and mail so many ballots to voters, not to mention the confusion it would cause given that voters are only allowed to submit one of

14 The Court agrees with the State of Ohio’s footnote 10—Ohio’s primary requires different mechanics than the states Plaintiffs seek to emulate.

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the ballots.15 Mailing up to four ballots to each voter would inevitably result in the disenfranchisement of some voters who would erroneously return more than one ballot and not have their vote counted at all. Given how easy Secretary LaRose is making it to request an absentee ballot (the ability to request it online or via phone, the ability to send multiple ballot requests within the same envelope, and not requiring the request to be on the official form), the State’s interest in sending only one ballot to each voter outweighs any burden that requesting the ballot16 imposes on voters.
Furthermore, the State of Ohio argues that H.B. 197’s postcard process is more efficient and streamlined than the process outlined in Secretary LaRose’s Letter to the Legislature and, thus, is manageable. See State of Ohio Resp. 19– 20, ECF No. 52; see also Secretary LaRose Resp. 26–27, ECF No. 44 and Grandjean Dec., ECF No. 44-2 (explaining why mailing an absentee ballot application to each registered voter in time for the April 28, 2020 deadline is unworkable). Indeed, Secretary LaRose’s response indicates that he will be able to carry out the process established by H.B. 197 and, conversely, contends that

15 Plaintiffs’ arguments are inconsistent. They argue both that sending four separate ballots will not confuse voters, while arguing elsewhere that having to fill out an absentee ballot request as a well as a ballot will confuse voters. 16 ODP argues the Court should require Secretary LaRose to include a ballot request form at the bottom of the postcard that H.B. 197 requires him to mail out. ODP’s suggestion was filed on April 1, 2020, after the Court was informed on the March 31, 2020, teleconference that the postcards were already being printed. It is simply not feasible to grant ODP’s requested relief as the postcards have already been printed and requiring a reprint would, among other difficulties, cause additional delay on an already tight timeline.

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all of Plaintiffs’ requested relief is unworkable.17 See Secretary LaRose Resp. 10, 19–25, ECF No. 44; Grandjean Dec., ECF No. 44-2.
The compressed timeframe for the completion of absentee voting does pose a burden on voters. Those who request the ballot by mail will have to wait for their request to reach the county board of elections, then wait for the ballot to be mailed back to and reach the voter, and then, the voter must fill out the ballot and have it postmarked in time to be counted. Any delay on the part of the voter, county board of elections, or the postal service could result in the voter’s ballot not being counted.
Nonetheless, at the time the State enacted H.B. 197, this timeframe was justified, and it remains so. Secretary LaRose had advocated for a June 2, 2020 voting deadline, but ODP requested April 28, 2020, specifically to permit it to send delegates to the Democratic National Convention (“DNC”). ODP made the same argument in favor of the April 28, 2020 deadline in this litigation before the DNC delayed its convention on April 2, 2020. Similarly, LPO argued that voting must conclude by May 12, 2020, in order for LPO to send delegates to its national convention. RPO likewise argued against extending the voting deadline. And, ODP has informed the Court that the delay of the DNC does not change

17 Further, the Court notes that in Secretary LaRose’s letter to the Ohio General Assembly, in which he advocated for a June 2, 2020 voting deadline, he explained that he could not complete his proposed plan earlier than June 2, 2020. But his proposed plan was different than H.B. 197.

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ODP’s position on this matter because the delay does not impact the rules or

deadlines for certifying state party delegations.

The State of Ohio certainly has an interest in concluding voting early

enough to permit the major political parties to send delegates to their national

conventions, and this interest outweighs the burden that the tight timeframe

imposes on Ohio voters. ODP has explained that, notwithstanding the fact that

the DNC has been rescheduled, there remains a deadline of June 20, 2020, for

state parties to certify to the DNC’s Secretary the state party’s delegation to the

convention. ODP requires that the election be at least eight weeks prior to that

June 20, 2020 deadline in order to meet the same.

The fact that other states have afforded more voting opportunities to their

voters, in this case by extending their primaries until June 2020 in response to

the COVID-19 pandemic, is not persuasive evidence undermining Ohio’s interest

in concluding voting by April 28, 2020. There is no evidence regarding whether

the political parties in those other states have adopted delegate selection plans

like ODP’s that require approximately eight weeks of post-primary actions, nor is

it at all clear whether ODP could have a different delegate selection plan

approved in order to accommodate a later deadline for submitting absentee

ballots while still meeting the June 20, 2020 DNC certification deadline.

LPO and RPO offer similar arguments in support of concluding voting

quickly, and the Court finds them equally applicable to the State of Ohio’s interest

in having the deadline on April 28, 2020, notwithstanding the DNC’s change in

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date. In particular, the Court rejects LPO’s supplemental argument that the Court

no longer needs to keep the April 28, 2020, deadline but should establish a

deadline by May 12, 2020. LPO did not address DPO’s argument that the

certification deadline has not changed for the DNC.

Finally, given the upheaval that the change to the voting process has

already created, the Court agrees that the State has a strong interest in

minimizing disorder and easing the burdens on county boards of elections. By

permitting the boards of elections to continue to use the absentee-balloting

system already in place and changing only the deadline for accepting those

ballots, H.B. 197 furthers that interest. State of Ohio Resp. 15, ECF No. 52

(citing Mays v. LaRose, No. 19-4112, 2020 U.S. App. LEXIS, at ** 18–21 (6th Cir.

Mar. 3, 2020).

Plaintiffs cite to Fla. Dem. Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla.

2016) and Ga. Coal. for the People’s Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344

(S.D. Ga. 2016) to support their argument that “federal courts have moved similar

election deadlines that were rendered burdensome by emergencies.” Mot. 18,

ECF No. 4. Those cases do not persuade the Court that Plaintiffs in this case

are entitled to relief.

In Scott, the timing of a hurricane created an emergency that resulted in

over a hundred thousand people who were likely to register in the final week of

voter registration being evacuated. 215 F. Supp. 3d at 1257. This left those

voters “foreclosed from the only methods of registering to vote.” Id. The court in

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Scott found that this created a severe burden on the right to vote because some people were unable to register, and, therefore, “categorically” denied the right to vote. Id. There is no such categorical denial of the right to vote here. Plaintiffs have alleged that there could be timing or logistical issues that make voting more challenging than it might otherwise be, but there is not even an allegation of a broad, categorical denial of the right to vote.
Deal provides very little in the way of persuasive authority.18 That case also dealt with a mandatory evacuation caused by a hurricane. 214 F. Supp. 3d at 1345. This resulted in the local board of elections office being closed for the last few days of the registration window. Id. Despite this, the state declined to extend the registration deadline. Id. The court noted that it “harbor[ed] significant reservations concerning the ultimate merits of Plaintiffs’ claims” but nevertheless concluded that they had established a sufficient likelihood of success on the merits to warrant injunctive relief. Id. The court did not reference Anderson-Burdick, opine on the level of the burden on the plaintiffs’ voting rights, or engage in a detailed analysis of why the state’s interest was insufficient to outweigh that burden.
In sum, the Court finds that the State of Ohio’s interests outweigh the burden on voting rights caused by H.B. 197’s various relevant provisions such

18 This is perfectly understandable considering the court there was facing an emergency situation and issued an opinion the same day oral argument was held.

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that H.B. 197 is not an unconstitutional burden on the right to vote in violation of the Fourth and Fourteenth Amendments to the United States Constitution.
3. Poll Tax LPO, in one sentence of its motion, suggests that H.B. 197 is an “impermissible poll tax in violation of the Twenty-Fourth Amendment and the Fourteenth Amendment Equal Protection Clause.”19 LPO Mot. for TRO 10, ECF No. 31 (citing Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)). LPO did not attempt to develop this argument, and neither Defendant responded to it. Nevertheless, the Court has considered the issue and finds that, to the extent obtaining a stamp is a “restriction on the right to vote,” it is not “unrelated to voter qualifications.” See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 189 (2008). Instead, it is the type of “evenhanded restriction[] that protect[s] the integrity and reliability of the electoral process itself” that satisfies Harper. See id. at 189–90 (quoting Anderson, 460 U.S. at 788, n.9); see LaRose Resp. 22, ECF No. 44 (citing R.C. 3505.18; 3509.03(B)(5) (explaining that a signature is needed to protect against voter fraud). B. Irreparable Harm If Plaintiffs are correct that some people will be unable to have their votes counted because of the voting procedures laid out in H.B. 197, the harm they would suffer would be irreparable. However, this alleged harm is speculative and

19 LPO’s lack of development of its poll tax argument is not rescued by its more detailed reply (after Defendants did not even address LPO’s motion).

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is outweighed by the other three factors the Court considers when ruling on the

motion for a temporary restraining order.

C. Harm to Third Parties

As shown by Intervenors’ motions, Plaintiffs’ request to postpone the

deadline for voting in the March 17, 2020 primary yet again could cause harm to

both LPO and ODP. LPO contends that it will be prevented from participating at

its convention if voting does not conclude by, at the latest, May 12, 2020. ODP

argues that it could be prevented from participating in the DNC if voting is

extended beyond the currently scheduled date of April 28, 2020. Accordingly,

the Court finds that at least some of Plaintiffs’ requested relief would cause harm

to third parties.

D. Public Interest

The public has an interest in a free and fair election. The public also has

an interest in avoiding further voter confusion. Because Plaintiffs are unlikely to

succeed on the merits of their claims and because further changes to the election

procedure could cause significant additional voter confusion, the Court finds that

the public interest factor weighs against granting Plaintiffs their requested relief.

The Supreme Court has cautioned that “[c]ourt orders affecting elections,

especially conflicting orders, can themselves result in voter confusion and

consequent incentive to remain away from the polls. As an election draws

closer, that risk will increase.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per

curiam). The Sixth Circuit has previously found that “the difficulty in altering the

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ballot printing and distribution at this late date . . . weighs heavily against an injunction.” Estill v. Cool, 295 F. App’x 25, 27 (6th Cir. 2008) (ballot printing and distribution was scheduled to begin the day after the Sixth Circuit issued its opinion, nineteen days after this Court denied the motion for a preliminary injunction); see also SEIU Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012) (“As a general rule, last-minute injunctions changing election procedures are strongly disfavored.” citing Purcell, supra). Accordingly, the Court finds that the public interest in the election proceeding as determined by the Ohio Legislature in H.B. 197 weighs against granting Plaintiffs’ requested relief.
IV. CONCLUSION The Constitution does not require the best plan, just a lawful one. As is apparent from the briefing in this lawsuit, every group has a different idea of what the best plan would be. But the Court will not declare the Ohio Legislature’s unanimous bill to be unconstitutional simply because other options may have been better. For the above reasons, Plaintiffs’ motion for a TRO, ECF No. 4, is DENIED. LPO’s motion for a TRO or preliminary injunction, ECF No. 31, is likewise DENIED. IT IS SO ORDERED.
/s/ Michael H. Watson________________ MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

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

CHAD THOMPSON, et al., Plaintiffs,
v.
GOVERNOR OF OHIO MICHAEL DEWINE, et al.,
Defendants.

CASE No. 2:20-CV-2129 JUDGE EDMUND A. SARGUS, JR. Magistrate Judge Chelsea M. Vascura

OPINION AND ORDER Three days ago, this Court enjoined Defendants from enforcing certain constitutional and statutory in-person signature gathering requirements. (ECF No. 44.) Defendants have appealed that decision and have requested that this Court stay its order pending appeal and to issue its decision on their request by Monday, May 25, 2020, Memorial Day. (ECF No. 46.) Plaintiffs have opposed Defendants’ request. (ECF Nos. 47, 48, 49.) For the reasons set forth below, the Court DENIES Defendants’ Motion.
I. Ohio has experienced a public health crisis that continues to this day. On March 9, Defendant Ohio Governor Mike DeWine declared a state of emergency in response to the spread of the COVID-19 virus. Days later on March 11, 2020, the World Health Organization declared the disease a global pandemic, and President Donald Trump declared a national emergency on

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March 13, 2020. Until very recently,1 Ohioans had been ordered to stay home, with limited
exceptions, since March 22, 2020, and to maintain social distancing staying at least six feet apart
from each other.
Ohio held an election in 1864 during the Civil War. Because of the pandemic, Defendants
cancelled Ohio’s in-person primary election. This is so even though Defendants recognized that
they lacked explicit constitutional or statutory authority to do so and after the Franklin County
Court of Common Pleas rejected their request for a court order to that effect.2 Defendants Governor
DeWine and Secretary of State LaRose announced in a joint statement why it was unsafe to hold
in-person voting:
The only thing more important than a free and fair election is the health and safety of Ohioans. The Ohio Department of Health and the CDC have advised against anyone gathering in groups larger than 50 people, which will occur if the election goes forward. Additionally, Ohioans over 65 and those with certain health conditions have been advised to limit their nonessential contact with others, affecting their ability to vote or serve as poll workers. Logistically, under these extraordinary circumstances, it simply isn’t possible to hold an election tomorrow that will be considered legitimate by Ohioans. They mustn’t be forced to choose between their health and exercising their constitutional rights.
1 On May 20, 2020, the Ohio Department of Health issued a new order replacing the previous “Stay Safe Ohio Order” that now strongly urges Ohioans, especially those who are high-risk, to stay at home as much as possible. Mass gatherings of more than 10 people are still prohibited. See Urgent Health Advisory Ohioans Protecting Ohioans, Ohio Department of Health (May 20, 2020), https://content.govdelivery.com/attachments/OHOOD/2020/05/20/file_attachments/ 1456370/Urgent%20Health%20Advisory.pdf.
2 See Nick Corasaniti and Stephanie Saul, “Ohio’s Governor Postpones Primary as Health Emergency is Declared Over Virus,” NY Times (Mar. 16, 2020), https://www.nytimes.com/2020 /03/16/us/politics/virus-primary-2020-ohio.html (“By Monday afternoon, Mr. DeWine said he wanted the primary pushed back but did not have the authority to unilaterally delay the election and that a lawsuit would be filed to move the vote. On Monday evening, Judge Frye rejected the request. Dan Tierney, a spokesman for the governor, said Mr. LaRose would seek through the courts to have another date set for in-person voting in Ohio.”)
2

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See “Joint Statement from Governor DeWine and Secretary LaRose on Ohio Primary,” Mike
DeWine Governor of Ohio (Mar. 16, 2020), https://governor.ohio.gov/wps/portal/gov/governor/
media/news-and-media/joint-statement-governor-dewine-secretary-larose-on-ohio-primary.3
The hallmark a republican form of government is undoubtedly the conducting of elections.
Defendant Ohio Department of Health Director Dr. Amy Acton closed all polling locations4 and
Defendant LaRose suspended in-person voting.5 With few exceptions, all voting was conducted
by absentee ballots until April 28, 2020. Defendant LaRose himself has recognized the unusual
circumstances facing Ohio voters, stating: “In a usual year, I would not want to make large changes
this late in the game, but this is not a usual year. These are unusual times. We have to respond to
the unique situation we find ourselves in with these changes.”6
One would know none of this from the Motion to Stay. Defendants now change course.
arguing that their interest in following the constitutional and statutory signature requirements
3 See also “Statement from Ohio Governor Mike DeWine on the March 17, 2020 Election,” Mike DeWine Governor of Ohio (Mar. 16, 2020), https://governor.ohio.gov/wps/portal/gov/governor /media/news-and-media/dewine-statement-on-march-17-2020-election (“During this time when we face an unprecedented public health crisis, to conduct an election tomorrow would would force poll workers and voters to place themselves at a unacceptable health risk of contracting coronavirus. As such, Health Director Dr. Amy Acton will order the polls closed as a health emergency. While the polls will be closed tomorrow, Secretary of State Frank LaRose will seek a remedy through the courts to extend voting options so that every voter who wants to vote will be granted that opportunity.”).
4 See Ohio Department of Health Issues Order on Closure of Polling Location, Mike DeWine Governor of Ohio (Mar. 16, 2020), https://governor.ohio.gov/wps/portal/gov/governor/media/ news-and-media/order-on-closure-of-polling-locations (“To conduct an election at this time would force poll workers and voters to face an unacceptable risk of contracting COVID-19.”).
5 See Secretary of State Directive 2020-06, Frank LaRose Ohio Secretary of State (Mar. 16, 2020), https://www.ohiosos.gov/globalassets/elections/directives/2020/dir2020-06am.pdf (rescinded). 6 See Rick Rouan, “Secretary of State Frank LaRose outlines changes needed for general election,” The Columbus Dispatch (May 5, 2020), https://www.dispatch.com/news/20200505/ secretary-of-state-frank-larose-outlines-changes-needed-for-general-election.”
3

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requiring close, face-to-face interactions, must be followed. In other words, the only thing more important than the health and safety of Ohioans is holding what, in their view, constitutes a free and fair election. This Court does not believe that these interests are mutually exclusive—both may be accomplished under the law of the Sixth Circuit.
As stated in its May 19, 2020 Opinion and Order, this Court does not question or criticize Defendants’ response to the COVID-19 crisis or the decision to suspend in-person voting and extend the voting period. The Court emphasizes these facts to show Defendants understand the gravity of requiring Ohioans to choose between their health and their First Amendment rights. Yet Defendants inexplicably refuse to acknowledge those very same risks are present here.
In requesting a stay of this Court’s Order, Defendants ignore the analysis of the applicable law and Sixth Circuit precedent. This Court is bound by the Sixth Circuit, which has disavowed a state’s strict application of election regulations “without exception for or consideration of the COVID-19 pandemic or the Stay-at-Home Orders.” See Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553, at *1 (6th Cir. May 5, 2020). Just two weeks ago, the Sixth Circuit held that these are unique historical circumstances, and that the combination of Michigan’s “strict enforcement of the ballot-access provisions and the Stay-at-Home Orders imposed a serve burden on the plaintiffs’ ballot access” and that those provisions were not “narrowly tailored to the present circumstances.” Id. (emphasis in original).
Defendants also assert that this Court “rewrote” the Ohio Constitution and exceeded its authority in ordering relief for Plaintiffs. But this Court did no such thing.
This Court did not—as requested by Plaintiffs—modify the constitutional and statutory requirements that petitions contain a specific number of signatures from Ohio voters. The core of this constitutional amendment provision is the requirement that petitions contain signatures equal
4

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to 10% of voters from 44 of Ohio’s 88 counties to ensure enough Ohio voters support the measure before it is placed on the ballot. That has not changed. This Court agreed with Defendants that 440,000 valid signatures must still be submitted before the issue may be placed on the November 2020 ballot. This Court crafted a narrow remedy of a federal constitutional violation, while preserving the core of Ohio’s provisions. See McCarthy v. Briscoe, 429 U.S. 1317 (1976) (“[F]ar from ‘impos[ing] [its] own idea of democracy’ on the State, [this Court] crafted this remedy to allow’ a majority of the provisions to survive.”).
As this Court previously said in upholding in Ohio’s absentee voting scheme for the April 28, 2020 primary, the United States “Constitution does not require the best plan, just a lawful one.” League of Women Voters of Ohio, et al. v. LaRose, No. 2:20-cv-1638 (S.D. Ohio. Apr. 3, 2020) (Watson, J.). Here, Defendants have offered no plan at all. Instead, they propose business as usual in a pandemic and allow violations of First Amendment rights of Ohio citizens to be ignored. Defendants’ own actions demonstrate that otherwise neutral election laws are ill-suited to a pandemic and may offend First Amendment rights.
II. In evaluating a motion to stay pending appeal, courts consider four factors that are traditionally considered when determining whether to grant a preliminary injunction: (1) the likelihood that the party seeking 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. Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006) (citing Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991); Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002) (per curiam)). These four
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factors are not prerequisites, but are “interconnected considerations that must be balanced together. Id. (citing Mich. Coal. of Radioactive Material Users, Inc., 945 F.2d at 153).
III. Defendants put forth many of the same arguments that were unsuccessful at the preliminary injunction stage. Defendants offer no new evidence or arguments that would persuade the Court to reconsider its decision, and their Motion completely ignores much of the Court’s analysis of Plaintiffs’ claims. Defendants have not shown they will suffer irreparable harm absent a stay. Plaintiffs, on the other hand, will. This Court found Plaintiffs were likely to succeed on the merits of their First Amendment claims, and every day that passes without a mechanism for them to safely collect signatures for their initiatives is another day they are harmed. Finally, the Court finds that a stay is not in the public interest, as it is always in the public interest to remedy constitutional violations. The balance of these factors weigh against granting a stay. A. Likelihood of Success on the Merits Defendants once again contend Plaintiffs’ claims do not implicate the First Amendment. (Mot. to Stay at 2, ECF No. 46.) Defendants rely in part on courts of appeals decisions from outside of this circuit, and completely ignore the Sixth Circuit’s holdings in Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019), reh’g en banc denied (6th Cir. Sept. 4, 2019), cert. pending, No. 19-974 (filed Feb. 3, 2020) and Committee to Impose Term Limits v. Ohio Ballot Board, 885 F.3d 443 (6th Cir. 2018), which bind this Court and applied the Anderson-Burdick framework to statutes regulating Ohio’s initiative process. Defendants argue that “[t]his Court’s order requiring the Defendants to accept the Plaintiffs’ ‘Plan B’ for signature gathering offends the Ohio Constitution and is not required under the First Amendment.” (Mot. at 3, ECF No. 46.) According to Defendants, “the Ohio Constitution
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does not provide for contingencies or alternative plans for parties who cannot comply with its provisions.” (Id.) This statement is true, but simply underscores that, other than an injunction, there is no remedy or cure for these constitutional deprivations in these unique circumstances. This Court did not hold there was any such exception in the Ohio Constitution. The issue before this Court was that certain signature requirements in the Ohio Constitution, as enforced against Plaintiffs in these extraordinary circumstances, offend the First Amendment to the United States Constitution. See Reynolds v. Sims, 377 U.S. 533, 584 (1964) (“When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls.”).
Next, Defendants argue that if the First Amendment applies, then any burden on Plaintiffs is “more than justified by the State’s significant regulatory interests” under the Anderson-Burdick framework. (Mot. to Stay, ECF No. 46.) Defendants completely ignore this Court’s analysis of the burden on Plaintiffs under Anderson-Burdick and its reliance on the Sixth Circuit’s decisions in Schmitt and Esshaki. (See Op. & Order at 22-23, ECF No. 44.)
Defendants repeat that the Stay-at Home Orders “specifically exempt Plaintiffs’ signature gathering” and contend again that state action did not cause Plaintiffs’ injuries. (Mot. to Stay at 34, ECF No. 46.) Defendants do not address the Court’s finding that it is Ohio’s strict enforcement of the signature requirements in light of the ongoing COVID-19 pandemic that was unconstitutional, not the Stay-at-Home Orders or the virus themselves. Moreover, Defendants’ arguments insinuate that Plaintiffs should have been attempting to circulate while the Stay-atHome Orders were in effect, beginning in the middle of March and continuing until very recently. As the district court in Esshaki rightly noted, “this argument both defies good sense and flies in the face of all other guidance that the State was offering to citizens at the time.” 2020 WL 2020 WL 1910154, at *5 (E.D. Mich. Apr. 20, 2020).
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Beginning on March 22, 2020, Ohioans were ordered to stay home and maintain social distancing. Even if petition circulation was exempt from the Orders, Defendants cannot seriously suggest that Plaintiffs should have been going out in public, possibly exposing themselves and potential signers to the COVID-19 disease, at the same time when Defendants were urging Ohioans to stay home and avoid close contact. Defendants themselves have recognized the importance of not forcing Ohioans “to choose between their health and exercising their constitutional rights.”
Defendants assert generally that only strict compliance of the electronic signature and witness requirements in the Ohio Constitution can ensure submitted signatures are authentic, serving the state’s “substantial regulatory interests in orderly elections and in protecting the Ohio Constitution and election laws.” (Mot. to Stay at 4, ECF No. 46.) But Defendants have failed to provide any evidence to this Court that OFRW Plaintiffs’ detailed proposal for signatures to be electronically signed and witnessed would lead to fraudulent signatures. Defendants never addressed this plan at the preliminary injunction stage, and they fail to make any argument against it here, other than to say electronic signatures could not comply with the Ohio Constitution’s witness requirement, which this Court also enjoined.
As this Court explained, OFRW Plaintiffs’ proposal included a method for verifying signers’ identities using the last four numbers of their social security numbers, and the warnings regarding the penalties for forging signatures and election falsification that are found on paper petitions. (See Op. & Order at 31, ECF No. 44.) The last four digits of voters’ social security numbers were sufficient to request absentee ballots in the primary election7 and are used to register
7 See 2020 Primary Frequently Asked Questions, Frank LaRose Ohio Secretary of State, https://www.sos.state.oh.us/elections/voters/2020-primary-frequently-asked-questions/ (explaining voters who could not print an absentee ballot request could write certain information, including either their drivers license number, last four digits of their Social Security number, or include a copy of their ID, on a blank sheet of paper and mail it to their board of elections).
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to vote.8 Defendants have offered no reason why this information would be insufficient to validate signatures here. Moreover, the Court instructed the parties to meet and confer regarding any technical or security issues to the on-line signature collection plans and to submit their findings to the Court within seven days of its decision, giving Defendants another opportunity to address OFRW Plaintiffs’ proposed plan. (Op. & Order at 41, ECF No. 44.)
This Court did not invent the notion of electronic signatures. As it noted, large parts of the economy use electronic signatures that can be verified and checked for fraud or errors. (Id. at 31.) This Court’s Local Rules authorize the use of electronic signatures on filings, which Defendants availed themselves of here, and equates them to “hand-signed signatures for all purposes, including Fed. R. Civ. P. 11 or any rule or statute.” See S.D. Ohio Civ. R. 83.5.
Other courts have ordered states to accept electronic signatures for petitions and several states have adopted electronic signatures for petitions on their own, strongly supporting the reliability of such methods. Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 (N.D. Ill., Apr. 23, 2020) (reducing Illinois’ statutory signature requirements for all candidates to 10 percent of previous levels, extending their filing deadlines from June 22, 2020 until August 7, 2020, and enjoining Illinois’s in-person, witnessed, wet and notarized signature collection process in favor of electronic signatures); Goldstein v. Sec’y of Commonwealth, No. SJC-12931, 2020 WL 1903931, at *6 (Mass. Apr. 17, 2020) (holding that the minimum signature requirement and the need to provide “wet signatures” “which may only impose a modest burden on candidates in ordinary times, now impose a severe burden on, or significant interference with, a candidate's right to gain access to the . . . primary ballot, and the government has not advanced a compelling
8 See Register to Vote or Update Your Voter Registration Information, Frank LaRose Ohio Secretary of State, https://olvr.ohiosos.gov/ (last accessed May 22, 2020) (“To register online you will need to provide the following . . . Last four digits of your Social Security Number.”).
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interest”); Omari Faulkner for Virginia v. Va. Dep't. of Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25, 2020) (granting preliminary injunction and reducing candidate signature gathering requirements, and allowing electronic signatures); Michelle Ferrigno Warren v. Colorado Secretary of State Jena Griswold, Denver County (Colo.) Dist. Ct. No. 20CV31077 (Apr. 21, 2020) (placing a candidate for U.S. Senate on the state’s primary election ballot, even though she had not collected a sufficient number of signatures required by Colorado law); Dennis v. Secretary of the Commonwealth, Mass. Case No. SJ-2020-278 (issuing a judgment extending its April 17, 2020 decision in Goldstein to allow four ballot initiative campaigns to collect signatures electronically); Fla. Emergency R. 1SER20-2 (Apr. 2, 2020) (allowing electronic signatures because of COVID-19 pandemic); N.J. Exec. Order Nos. 105, 120 (Mar. 19, 2020, Apr. 8, 2020) (same); Utah Exec. Order No. 2020-8 (Mar. 26, 2020) (same).
Similarly, Defendant Secretary LaRose has publicly advocated for Ohio to adopt a digital absentee ballot request system for the November election instead of the current system that requires a paper form:
“It just does not meet expectations in the year 2020 to require people to print a form and to put a wet ink signature on a dead tree piece of paper to fold it up, root through their junk drawer to find a stamp and mail it to their board of elections,” he said. “That is from the last century and needs to be replaced with a modern, online absentee request system.” See Darrel Rowland & Rick Rouan, After a Problem-Plagued Primary, Ohio Leaders Disagree About November Plan, Columbus Dispatch (April 28, 2020), https://www.dispatch.com/news/202 00428/after-problem-plagued-primary-ohio-leaders-disagree-about-november-election-plan. It is impossible to reconcile this statement with one made yesterday in a formal filing to the United States Court of Appeals for the Sixth Circuit, where Defendants stated:
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It is common knowledge that even the most thoughtfully designed online systems are vulnerable to attack, and that petitions signed electronically and emailed or submitted online can be manipulated. (See Defendants-Appellants’ Combined Emergency Mot. for an Administrative Stay and a Stay Pending Appeal at 17-18, Doc. 8.) Finally, Defendants contend the “Court’s extension of these deadlines has wide ranging implications for other ballot petition requirements such as deadlines for challenges to petitions before the Ohio Supreme Court as set forth in Article II of the Ohio Constitution.” (Mot. to Stay at 4, ECF No. 46.) The Court is aware of these deadlines, and noted in its decision that the Court extended the submission deadline to July 31, 2020 because it is the last date the Secretary of State is already required by law to accept signatures under the current scheme. (Op. & Order at 41, ECF No. 44.) Specifically, under current Ohio law, petitioners are permitted 10 additional days after receiving notice from the Secretary of State that their signatures are insufficient to collect and file additional signatures. See Ohio Const., Art II. § 1g. This year, that date would be July 31, 2020— 10 days after the Secretary of State’s July 21, 2020 deadline for determining the sufficiency of the signatures. Id. This is the date the Court chose for OFRW and OSFE Plaintiffs to submit their signatures. The Secretary of State must then determine the sufficiency of these supplemental signatures by August 30, 2020. Challenges to supplemental signatures must be filed in the Ohio Supreme Court by September 9, 2020. The Secretary of State must certify the form of official ballots for the November 3, 2020 general election to county boards of elections by September 14, 2020. The Ohio Supreme Court must rule on any challenge to the supplemental signatures by September 19, 2020. Defendants have offered no explanation why these deadlines for
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supplemental signatures, already codified in the Ohio Constitution and statutes, would not work here. B. Harm to Defendants, Harm to Others, and the Public Interest
Defendants next contend the Court’s “wrongful injunction” of Ohio’s enforcement of the signature requirements “irreparably harms not only the State, but not all Ohioans.” (Mot. at 5, ECF No. 5.) Defendants assert this Court has rewritten Ohio’s Constitution, affecting the state itself and Ohio citizens. (Id.) Defendants misstate this Court’s decision.
This Court did not hold that the signature requirements in Ohio’s Constitution were facially invalid or order permanent relief. This Court found that those requirements were unconstitutional only as applied to these particular plaintiffs in these extraordinary and unprecedented times, and temporarily enjoined enforcement of those statutes for the November 3, 2020 election only.
Moreover, Defendants ignore that the Court did not touch the requirements that petitions contain a certain number of signatures from, for the constitutional amendment plaintiffs, a specific geographic distribution. The Court recognized the compelling importance of these requirements, particularly for Plaintiffs seeking to amend Ohio’s Constitution who must collect signatures from 10 percent of Ohio voters who voted in the last gubernatorial election, 5 percent of which must come from 44 of Ohio’s 88 counties. These requirements remain in full effect and will ensure that Plaintiffs’ proposed measures have sufficient statewide grassroots support.
Finally, Defendants contend this Court places an “incredible burden upon the individual Defendants who have been tasked with solving the Thompson Plaintiffs’ problems in one week.” (See also Mot. at 1, ECF No. 46 (“The Secretary of State and the 88 county boards of elections must create and implement these significant and unprecedented processes before July 31, 2020, the deadline to which the petition submissions was extended.”).) Defendants overstate this burden.
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This Court directed Defendants to update the Court by Tuesday, May 26, 2020 “regarding adjustments to the enjoined requirements ‘so as to reduce the burden on ballot access’” for Thompson Plaintiffs. (See Op. & Order at 40, ECF No. 46 (citing Esshaki, 2020 WL 2185553 at *2).) This Court did not require a plan be implemented and enacted into law by that date, and notes that Michigan agreed to and announced reasonable adjustments to its signature requirements just three days after the Sixth Circuit’s decision in Esshaki. See Elections, The Office of Secretary of State Jocelyn Benson (Updated May 8, 2020), https://www.michigan.gov/sos/0,4670,7-127-1633--,00.html.
The Court’s ordered relief does not require Defendants to create and implement an electronic signature plan—it directed Defendants to accept electronically signed and witnessed petitions from OSFE and OFRW Plaintiffs by July 31, 2020. Those Plaintiffs have developed electronic signature plans. Defendants offer no reason why they could not adopt the same plan for Thompson Plaintiffs. That is, Thompson Plaintiffs can be responsible for implementing an esignature platform like OFRW and OSFE Plaintiffs.
This Court spent extended discussions with the parties on the record to ensure no factual disputes were unresolved. The Court specifically advised the parties that it would not resolve any factual disputes on briefs or affidavits. The parties were encouraged to offer testimony in the event facts were not agreed upon. All parties stated on the record that there were no disputed facts. This Court did not resolve facts before issuing its decision and will not attempt to resolve disputed facts at this point either.
Defendants have not shown they will suffer irreparable harm absent a stay, and it is not in the public interest to grant a stay. “It is always in the public interest to prevent the violation of a
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party’s constitutional rights.” Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) (quotation omitted).
Conversely, Plaintiffs will be harmed if a stay is granted. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373–74 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)). This Court found Plaintiffs were likely to succeed on the merits of their First Amendment claims, and every day that passes that Plaintiffs are prohibited from collecting signatures is another day they are harmed. Time is of the essence. C. Remedy
Finally, this Court did not exceed its authority in ordering specific relief for OSFE and OFRW Plaintiffs. If the Court did not order relief for these Plaintiffs, it would effectively be defying the Sixth Circuit’s decision in Esshaki. This Court is aware that Esshaki involved a challenge by a candidate seeking access to the ballot, rather than initiative petitions. As this Court explained in its decision, that distinction is precisely why the Court did not reduce the numerical and geographical requirements. This Court recognized the compelling importance of ensuring constitutional amendments and local initiatives have more than just the “modicum of support” required for candidates.
Defendant Secretary LaRose cannot remedy these violations. The Ohio General Assembly is powerless to amend the Ohio Constitution on its own. Instead, only the people of Ohio can amend the Ohio Constitution. This case is about groups of Ohioans seeking to just do that, but who cannot exercise their First Amendment rights in support of their amendments. Defendants have offered no explanation as to how the people of Ohio could remedy the First Amendment violations
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found here in time for the November election. Surely Defendants do not intend to allow these First Amendment violations to go unremedied.
IV. For the reasons set forth above, the Court DENIES Defendants’ Motion to Stay.
IT IS SO ORDERED.

05/22/2020 DATE

s/ Edmund A. Sargus, Jr. EDMUND A. SARGUS, JR. UNITED STATES DISTRICT JUDGE

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